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PAG LIN 1 1 Section 1. Section 6A.4, subsection 4, Code 2003, is 1 2 amended to read as follows: 1 3 4. CEMETERYASSOCIATIONSCORPORATIONS. Upon anyprivate1 4 cemeteryor cemetery associationcorporation which is 1 5 incorporated under the laws of this state relating to 1 6 corporations not for pecuniary profit, and having its cemetery 1 7 located outside the limits of a city, for the purpose of 1 8 acquiring necessary grounds for cemetery use or reasonable 1 9 additions thereto. The right granted in this subsection shall 1 10 not be exercised until the board of supervisors, of the county 1 11 in which the land sought to be condemned is located, has, on 1 12 written application and hearing, on such reasonable notice to 1 13 all interested parties as it may fix, found that the land, 1 14 describing it, sought to be condemned, is necessary for 1 15 cemetery purposes. Theassociationcemetery corporation shall 1 16 pay all costs attending such hearing. 1 17 Sec. 2. Section 6A.7, Code 2003, is amended to read as 1 18 follows: 1 19 6A.7 CEMETERY LANDS. 1 20 No lands actually platted, used, and devoted to cemetery 1 21 purposes shall be taken for any railway purpose without the 1 22 consent of thepropercemetery corporation's officers or 1 23 owners thereof. 1 24 Sec. 3. Section 331.325, subsections 2 and 3, Code 2003, 1 25 are amended to read as follows: 1 26 2. Each county board of supervisors may adopt an ordinance 1 27 assuming jurisdiction and control of pioneer cemeteries in the 1 28 county. The board shall exercise the powers and duties of 1 29 township trustees relating to the maintenance and repair of 1 30 cemeteries in the county as provided in sections 359.28 1 31 through359.41359.39 except that the board shall not certify 1 32 a tax levy pursuant to section 359.30 or 359.33 and except 1 33 that the maintenance and repair of all cemeteries under the 1 34 jurisdiction of the county including pioneer cemeteries shall 1 35 be paid from the county general fund. The maintenance and 2 1 improvement program for a pioneer cemetery may include 2 2 restoration and management of native prairie grasses and 2 3 wildflowers. 2 4 3. In lieu of management of the cemeteries, the board of 2 5 supervisors may create, by ordinance, a cemetery commission to 2 6 assume jurisdiction and management of the pioneer cemeteries 2 7 in the county. The ordinance shall delineate the number of 2 8 commissioners, the appointing authority, the term of office, 2 9 officers, employees, organizational matters, rules of 2 10 procedure, compensation and expenses, and other matters deemed 2 11 pertinent by the board. The board may delegate any power and 2 12 duties relating to cemeteries which may otherwise be exercised 2 13 by township trustees pursuant to sections 359.28 through 2 14359.41359.39 to the cemetery commission except the commission 2 15 shall not certify a tax levy pursuant to section 359.30 or 2 16 359.33 and except that the expenses of the cemetery commission 2 17 shall be paid from the county general fund. 2 18 Sec. 4. Section 427.1, subsection 6, Code Supplement 2003, 2 19 is amended to read as follows: 2 20 6. PROPERTY OF CEMETERYASSOCIATIONSCORPORATIONS. Burial 2 21 grounds, mausoleums, buildings and equipment owned and 2 22 operated by cemeteryassociationscorporations incorporated as 2 23 a nonprofit corporation under chapter 504A and used 2 24 exclusively for the maintenance and care of the cemeteries 2 25 devoted to interment of human bodies and human remains. The 2 26 exemption granted by this subsection shall not apply to any 2 27 property used for the practice of mortuary science. 2 28 Sec. 5. Section 450.10, subsection 3, unnumbered paragraph 2 29 1, Code 2003, is amended to read as follows: 2 30 When the property or any interest therein or income 2 31 therefrom, taxable under the provisions of this chapter, 2 32 passes in any manner to societies, institutions or 2 33 associations incorporated or organized under the laws of any 2 34 other state, territory, province or country than this state, 2 35 for charitable, educational or religious purposes, or to 3 1 cemeteryassociationscorporations incorporated as a nonprofit 3 2 corporation under chapter 504A, including humane societies not 3 3 organized under the laws of this state, or to resident 3 4 trustees for uses without this state, the rate of tax imposed 3 5 shall be as follows: 3 6 Sec. 6. Section 459.102, subsection 9, Code Supplement 3 7 2003, is amended to read as follows: 3 8 9. "Cemetery" means a space held for the purpose of 3 9 permanent burial, entombment, or interment of human remains 3 10 that is owned or managed by a political subdivision or private 3 11 entity, or a cemetery regulated pursuant to chapter 523Ior3 12566A. However, "cemetery" does not include a pioneer cemetery 3 13 as defined in section 331.325. 3 14 Sec. 7. Section 523A.203, subsection 6, paragraph b, Code 3 15 2003, is amended to read as follows: 3 16 b. Use any funds required to be held in trust under this 3 17 chapteror chapter 566Ato purchase an interest in any 3 18 contract or agreement to which a seller is a party. 3 19 SUBCHAPTER 1 3 20 SHORT TITLE AND DEFINITIONS 3 21 Sec. 8. NEW SECTION. 523I.101 SHORT TITLE. 3 22 This chapter may be cited as the "Iowa Cemetery Act". 3 23 Sec. 9. NEW SECTION. 523I.102 DEFINITIONS. 3 24 For purposes of this chapter, unless the context otherwise 3 25 requires: 3 26 1. "Authorized to do business within this state" means a 3 27 person licensed, registered, or subject to regulation by an 3 28 agency of the state of Iowa or who has filed a consent to 3 29 service of process with the commissioner for purposes of this 3 30 chapter. 3 31 2. "Burial site" means any area, except a cemetery, that 3 32 is used to inter or scatter remains. 3 33 3. "Capital gains" means appreciation in the value of 3 34 trust assets for which a market value may be determined with 3 35 reasonable certainty after deduction of investment losses, 4 1 taxes, expenses incurred in the sale of trust assets, any 4 2 costs of the operation of the trust, and any annual audit 4 3 fees. 4 4 4. "Care fund" means funds set aside for the care of a 4 5 perpetual care cemetery, including all of the following: 4 6 a. Money or real or personal property impressed with a 4 7 trust by the terms of this chapter. 4 8 b. Contributions in the form of a gift, grant, or bequest. 4 9 c. Any accumulated income that the trustee of the fund or 4 10 the cemetery corporation allocates to principal. 4 11 5. "Casket" means a rigid container which is designed for 4 12 the encasement of human remains and which is usually 4 13 constructed of wood, metal, fiberglass, plastic, or like 4 14 material and ornamented and lined with fabric. 4 15 6. "Cemetery" means any area that is or was open to use by 4 16 the public in general or any segment thereof and is used or is 4 17 intended to be used to inter or scatter remains. "Cemetery" 4 18 does not include the following: 4 19 a. A private burial site where use is restricted to 4 20 members of a family, if the interment rights are conveyed 4 21 without a monetary payment, fee, charge, or other valuable 4 22 form of compensation or consideration. 4 23 b. A private burial site where use is restricted to a 4 24 narrow segment of the public, if the interment rights are 4 25 conveyed without a monetary payment, fee, charge, or other 4 26 valuable form of compensation or consideration. 4 27 c. A pioneer cemetery. 4 28 7. "Cemetery corporation" means a corporation that 4 29 operates one or more cemeteries. 4 30 8. "Columbarium" means a structure, room, or space in a 4 31 mausoleum or other building containing niches or recesses for 4 32 disposition of cremated remains. 4 33 9. "Commissioner" means the commissioner of insurance or 4 34 the deputy administrator authorized in section 523A.801 to the 4 35 extent the commissioner delegates functions to the deputy 5 1 administrator. 5 2 10. "Common business enterprise" means a group of two or 5 3 more business entities that share common ownership in excess 5 4 of fifty percent. 5 5 11. "Credit sale" means a sale of goods, services, or an 5 6 interest in land in which all of the following are applicable: 5 7 a. Credit is granted either under a seller credit card or 5 8 by a seller who regularly engages as a seller in credit 5 9 transactions of the same kind. 5 10 b. The buyer is a person other than an organization. 5 11 c. The goods, services, or interest in land are purchased 5 12 primarily for a personal, family, or household purpose. 5 13 d. Either the debt is payable in installments or a finance 5 14 charge is made. 5 15 e. For goods and services, the amount financed does not 5 16 exceed twenty-five thousand dollars. 5 17 12. "Disinterment" means to remove human remains from 5 18 their place of final disposition. 5 19 13. "Doing business in this state" means issuing or 5 20 performing wholly or in part any term of an interment rights 5 21 agreement executed within the state of Iowa. 5 22 14. "Financial institution" means a state or federally 5 23 insured bank, savings and loan association, credit union, 5 24 trust department thereof, or a trust company that is 5 25 authorized to do business within this state, that has been 5 26 granted trust powers under the laws of this state or the 5 27 United States, and that holds funds under a trust agreement. 5 28 "Financial institution" does not include a cemetery, a 5 29 cemetery corporation, or any person employed by or directly 5 30 involved with a cemetery. 5 31 15. "Garden" means an area within a cemetery established 5 32 by the cemetery as a subdivision for organizational purposes, 5 33 not for sale purposes. 5 34 16. "Grave space" means a space of ground in a cemetery 5 35 that is used or intended to be used for an in-ground burial. 6 1 17. "Gross selling price" means the aggregate amount a 6 2 purchaser is obligated to pay for interment rights, exclusive 6 3 of finance charges. 6 4 18. "Inactive cemetery" means a cemetery that is not 6 5 operating on a regular basis, is not offering to sell or 6 6 provide interments or other services reasonably necessary for 6 7 interment, and does not provide or permit reasonable ingress 6 8 or egress for the purposes of visiting interment spaces. 6 9 19. "Income" means the return in money or property derived 6 10 from the use of trust principal after deduction of investment 6 11 losses, taxes, and expenses incurred in the sale of trust 6 12 assets, any cost of the operation of the trust, and any annual 6 13 audit fees. "Income" includes but is not limited to: 6 14 a. Rent of real or personal property, including sums 6 15 received for cancellation or renewal of a lease and any 6 16 royalties. 6 17 b. Interest on money lent, including sums received as 6 18 consideration for prepayment of principal. 6 19 c. Cash dividends paid on corporate stock. 6 20 d. Interest paid on deposit funds or debt obligations. 6 21 e. Gain realized from the sale of trust assets. 6 22 20. "Insolvent" means the inability to pay debts as they 6 23 become due in the usual course of business. 6 24 21. "Interment rights" means the rights to place remains 6 25 in a specific location for use as a final resting place or 6 26 memorial. 6 27 22. "Interment rights agreement" means an agreement to 6 28 furnish memorials, memorialization, opening and closing 6 29 services, or interment rights. 6 30 23. "Interment space" means a space used or intended to be 6 31 used for the interment of remains including, but not limited 6 32 to, a grave space, lawn crypt, mausoleum crypt, and niche. 6 33 24. "Landlocked cemetery" means a cemetery that offered or 6 34 sold interment rights to the public in general, and which does 6 35 not have a means of ingress and egress available to members of 7 1 the public in general. 7 2 25. "Lawn crypt" means a preplaced enclosed chamber, which 7 3 is usually constructed of reinforced concrete and poured in 7 4 place, or a precast unit installed in quantity, either side- 7 5 by-side or at multiple depths, and covered by earth or sod. 7 6 26. "Lot" means an area in a cemetery containing more than 7 7 one interment space which is uniquely identified by an 7 8 alphabetical, numeric, or alphanumerical identification 7 9 system. 7 10 27. "Maintenance fund" means funds set aside for the 7 11 maintenance of a nonperpetual care cemetery, including all of 7 12 the following: 7 13 a. Money or real or personal property impressed with a 7 14 trust by the terms of this chapter. 7 15 b. Contributions in the form of a gift, grant or bequest. 7 16 c. Any accumulated income that the trustee of the fund or 7 17 the cemetery corporation allocates to principal. 7 18 28. "Mausoleum" means an aboveground structure designed 7 19 for the entombment of human remains. 7 20 29. "Mausoleum crypt" means a chamber in a mausoleum of 7 21 sufficient size to contain casketed human remains. 7 22 30. "Memorial" means any product, including any foundation 7 23 other than a mausoleum or columbarium, used for identifying an 7 24 interment space or for commemoration of the life, deeds, or 7 25 career of a decedent including, but not limited to, a 7 26 monument, marker, niche plate, urn garden plaque, crypt plate, 7 27 cenotaph, marker bench, and vase. 7 28 31. "Memorial care" means any care provided or to be 7 29 provided for the general maintenance of memorials including 7 30 foundation repair or replacement, resetting or straightening 7 31 tipped memorials, repairing or replacing inadvertently damaged 7 32 memorials and any other care clearly specified in the purchase 7 33 agreement. 7 34 32. "Memorial dealer" means any person offering or selling 7 35 memorials retail to the public. 8 1 33. "Memorialization" means any permanent system designed 8 2 to mark or record the names and other data pertaining to a 8 3 decedent. 8 4 34. "Merchandise" means any personal property offered or 8 5 sold for use in connection with the funeral, final 8 6 disposition, memorialization, or interment of human remains, 8 7 but which is exclusive of interment rights. 8 8 35. "Neglected cemetery" means a cemetery where there has 8 9 been a failure to cut grass or weeds or care for graves, 8 10 memorials or memorialization, walls, fences, driveways, and 8 11 buildings, or for which proper records of interments have not 8 12 been maintained. 8 13 36. "Niche" means a recess or space in a columbarium or 8 14 mausoleum used for placement of cremated human remains. 8 15 37. "Opening and closing services" means one or more 8 16 services necessarily or customarily provided in connection 8 17 with the interment or entombment of human remains or a 8 18 combination thereof. 8 19 38. "Operating a cemetery" means offering to sell or 8 20 selling interment rights, or any service or merchandise 8 21 necessarily or customarily provided for a funeral, or for the 8 22 entombment or cremation of a dead human, or any combination 8 23 thereof, including but not limited to opening and closing 8 24 services, caskets, memorials, vaults, urns, and interment 8 25 receptacles. 8 26 39. "Outer burial container" means any container which is 8 27 designed for placement in the ground around a casket or an urn 8 28 including, but not limited to, containers commonly known as 8 29 burial vaults, urn vaults, grave boxes, grave liners, and lawn 8 30 crypts. 8 31 40. "Parent company" means a corporation that has a 8 32 controlling interest in a cemetery corporation. 8 33 41. "Perpetual care cemetery" includes all of the 8 34 following: 8 35 a. Any cemetery that was organized or commenced business 9 1 in this state on or after July 1, 1995. 9 2 b. Any cemetery that has established a care fund in 9 3 compliance with subchapter 11. 9 4 c. Any cemetery that represents that it is a perpetual 9 5 care cemetery in its interment rights agreement. 9 6 d. Any cemetery that represents in any other manner that 9 7 the cemetery provides perpetual, permanent, or guaranteed 9 8 care. 9 9 42. "Person" means an individual, firm, corporation, 9 10 partnership, joint venture, limited liability company, 9 11 association, trustee, government or governmental subdivision, 9 12 agency, or other entity, or any combination thereof. 9 13 43. "Pioneer cemetery" means a cemetery where there were 9 14 six or fewer burials in the preceding fifty years. 9 15 44. "Purchaser" means a person who purchases memorials, 9 16 memorialization, opening and closing services, scattering 9 17 services, interment rights, or a combination thereof. The 9 18 purchaser need not be a beneficiary of the interment rights 9 19 agreement. 9 20 45. "Religious cemetery" means a cemetery that is owned, 9 21 operated, or controlled by a recognized church or 9 22 denomination, a cemetery designated as such in the Official 9 23 Catholic Directory on file with the insurance division or in a 9 24 similar publication of a recognized church or denomination, or 9 25 a cemetery that the commissioner determines is operating as a 9 26 religious cemetery upon review of an application by the 9 27 cemetery that includes a description of the cemetery's 9 28 affiliation with a recognized church or denomination, or the 9 29 extent to which the affiliate organization is responsible for 9 30 the financial and contractual obligations of the cemetery, or 9 31 the provision of the federal Internal Revenue Code, if any, 9 32 which exempts the cemetery from the payment of federal income 9 33 tax. 9 34 46. "Relocation" means the act of taking remains from the 9 35 place of interment or the place where the remains are being 10 1 held to another designated place. 10 2 47. "Remains" means the body of a deceased human or a body 10 3 part, or limb that has been removed from a living human, 10 4 including a body, body part, or limb in any stage of 10 5 decomposition, or cremated remains. 10 6 48. "Scattering services provider" means a person in the 10 7 business of scattering human cremated remains. 10 8 49. "Seller" means a person doing business within this 10 9 state, including a person doing business within this state who 10 10 advertises, sells, promotes, or offers to furnish memorials, 10 11 memorialization, opening and closing services, scattering 10 12 services or interment rights, or a combination thereof, 10 13 whether the transaction is completed or offered in person, 10 14 through the mail, over the telephone, by the internet, or 10 15 through any other means of commerce. 10 16 50. "Special care" means any care provided or to be 10 17 provided that supplements or exceeds the requirements of this 10 18 chapter in accordance with the specific directions of any 10 19 donor of funds for such purposes. 10 20 51. "Undeveloped space" means a designated area or 10 21 building within a cemetery that has been mapped and planned 10 22 for future development but is not yet fully developed. 10 23 SUBCHAPTER 2 10 24 CEMETERY DEDICATION REQUIREMENTS AND PROCEDURES 10 25 Sec. 10. NEW SECTION. 523I.201 DEDICATION. 10 26 1. A person that dedicates property for a new cemetery on 10 27 or after July 1, 2004, and a cemetery corporation that 10 28 dedicates an additional garden on or after July 1, 2004, 10 29 shall: 10 30 a. In the case of land, survey and subdivide the property 10 31 into gardens with descriptive names or numbers and make a map 10 32 or plat of the property. Individual spaces do not need to be 10 33 set forth visually. The map or plat must include narrative 10 34 descriptions for each garden that allow individuals to 10 35 determine the location of each interment space. The narrative 11 1 descriptions must include appropriate compass directions, the 11 2 size of interment spaces in each defined area, and a 11 3 description of a progressive numbering system used to organize 11 4 individual spaces in each defined area. 11 5 b. In the case of a mausoleum or a columbarium, make a map 11 6 or plat of the property delineating sections or other 11 7 divisions with descriptive names and numbers. Individual 11 8 spaces do not need to be set forth visually. The map or plat 11 9 must include narrative descriptions for each section or 11 10 division that allow individuals to determine the location of 11 11 each interment space. The narrative descriptions must include 11 12 appropriate compass directions, the size of interment spaces 11 13 in each defined area, and a description of a progressive 11 14 numbering system used to organize individual spaces in each 11 15 defined area. 11 16 c. File the map or plat with the commissioner, including a 11 17 written certificate or declaration of dedication of the 11 18 property delineated by the map or plat, dedicating the 11 19 property to cemetery purposes. The certificate or declaration 11 20 shall include all of the following: 11 21 (1) Provision of information on a form prescribed by the 11 22 directors or officers of the cemetery corporation. 11 23 (2) The signature of two individuals authorized by the 11 24 cemetery corporation for that purpose. 11 25 (3) Verification by a notary public. 11 26 2. A map or plat and a certificate or declaration of 11 27 dedication that is filed pursuant to this section dedicates 11 28 the property for cemetery purposes and constitutes 11 29 constructive notice of that dedication. 11 30 3. A certificate or declaration of dedication may contain 11 31 a provision permitting a cemetery corporation to resurvey and 11 32 change the shape and size of the property for which the 11 33 associated map or plat is filed if that change does not 11 34 disturb any interred remains. If a change is made, the 11 35 cemetery corporation shall file an amended map or plat and 12 1 shall indicate any change in a specific unique number assigned 12 2 to an interment space. 12 3 4. A cemetery corporation shall not sell or convey 12 4 interment rights in a section or garden until a map or plat 12 5 and a certificate or declaration of dedication, if required by 12 6 this section, is filed with the commissioner. 12 7 Sec. 11. NEW SECTION. 523I.202 EFFECT OF DEDICATION. 12 8 1. Property may be dedicated for use as a cemetery, and 12 9 the dedication is permitted out of respect for the dead, to 12 10 provide for the disposition of remains, and in fulfillment of 12 11 a duty to and for the benefit of the public. 12 12 2. Dedication of property as a cemetery and a property 12 13 owner's title to the exclusive interment rights are not 12 14 affected by the dissolution of the corporation owning the 12 15 cemetery, nonuse, alienation, encumbrance, or forced sale of 12 16 the property. 12 17 3. Dedication of property as a cemetery shall not be 12 18 invalidated because of a violation of the law against 12 19 perpetuities or the law against the suspension of the power of 12 20 alienation of title to or use of property. 12 21 4. All property located on land dedicated as a cemetery, 12 22 including a road, alley, or walk in the cemetery: 12 23 a. Is exempt from public improvements assessments, fees, 12 24 and public taxation. 12 25 b. Shall not be sold on execution or applied in payment of 12 26 debts due from individual owners. 12 27 5. If human remains are not interred in a garden, the 12 28 dedication of that portion of the property as a cemetery may 12 29 be removed if notice is filed with the commissioner. Property 12 30 dedicated as a cemetery shall continue to be used for cemetery 12 31 purposes until the dedication is removed by filing notice with 12 32 the commissioner, or by court order. 12 33 Sec. 12. NEW SECTION. 523I.203 REMOVAL OF DEDICATION. 12 34 A cemetery corporation may petition a district court of the 12 35 county in which a cemetery is located to remove the dedication 13 1 with respect to all or any portion of the cemetery if any of 13 2 the following occurs: 13 3 1. All remains have been removed from that portion of the 13 4 cemetery where the dedication is to be removed. 13 5 2. No interments were made in that portion of the cemetery 13 6 where the dedication is to be removed and that portion of the 13 7 cemetery is not used or necessary for interment purposes. 13 8 3. A court orders the removal of the dedication upon 13 9 notice and proof deemed satisfactory by the court. 13 10 SUBCHAPTER 3 13 11 CEMETERY CORPORATIONS 13 12 Sec. 13. NEW SECTION. 523I.301 CORPORATE OWNERSHIP. 13 13 1. Except for a governmental subdivision, a cemetery that 13 14 sells interment rights on or after July 1, 2004, shall be 13 15 operated by a corporation. A corporation may own or operate 13 16 more than one cemetery and need not be formed solely for the 13 17 purpose of owning or operating a cemetery. 13 18 2. The powers, privileges, and duties conferred and 13 19 imposed upon any cemetery corporation doing business under 13 20 this chapter are hereby enlarged as each particular case may 13 21 require to conform to the provisions of this chapter. 13 22 3. Unless otherwise limited by law, a cemetery corporation 13 23 shall have the same powers granted to other corporations in 13 24 general, including the right to enter into contracts secured 13 25 by a mortgage, deed of trust, or other obligation upon the 13 26 cemetery corporation's property. 13 27 Sec. 14. NEW SECTION. 523I.302 PROPERTY ACQUISITION BY 13 28 CEMETERY CORPORATION. 13 29 1. A cemetery corporation may acquire by purchase, 13 30 donation, or devise property consisting of land or other 13 31 property in which remains may be interred under law. 13 32 2. A cemetery corporation that acquires property may 13 33 record title to its property with the county recorder of the 13 34 county in which the property is located if its president and 13 35 secretary or other authorized delegate of the cemetery 14 1 corporation sign and acknowledge a declaration executed by the 14 2 cemetery corporation that describes the property and declares 14 3 the cemetery corporation's intention to use the property or a 14 4 part of the property for interment purposes. 14 5 3. Title recorded pursuant to subsection 2 constitutes 14 6 constructive notice as of the date of filing that the property 14 7 is intended to be used for interment. 14 8 Sec. 15. NEW SECTION. 523I.303 AUTHORITY OF CEMETERY 14 9 CORPORATION. 14 10 A cemetery corporation may do any of the following: 14 11 1. Divide the cemetery into interment spaces and 14 12 subdivisions for cemetery purposes. 14 13 2. Charge an assessment on cemetery property for the 14 14 purpose of general improvement and maintenance. 14 15 3. Take any action that is necessary to carry out the 14 16 cemetery's business purposes including those purposes that are 14 17 necessarily incidental to the final disposition of human 14 18 remains, including any of the following: 14 19 a. Convey property or other assets of the corporation. 14 20 b. Borrow money. 14 21 SUBCHAPTER 4 14 22 INTERMENT RIGHTS 14 23 Sec. 16. NEW SECTION. 523I.401 SALE OF INTERMENT RIGHTS. 14 24 1. For sales or transfers of interment rights made on or 14 25 after July 1, 2004, a cemetery corporation may sell and convey 14 26 exclusive rights of interment in the cemetery under the 14 27 following conditions: 14 28 a. The sale or conveyance is allowed by the rules of the 14 29 cemetery and the restrictions in the certificate of interment 14 30 rights or other instrument of conveyance. 14 31 b. The purchase price for the interment rights has been 14 32 paid in full. 14 33 2. A certificate of interment rights or other instrument 14 34 evidencing the conveyance of exclusive rights of interment 14 35 must be issued by the cemetery corporation. 15 1 3. The interment rights in an interment space that is 15 2 conveyed by a certificate of ownership or other instrument 15 3 shall not be divided without the consent of the cemetery 15 4 corporation. 15 5 4. A conveyance of exclusive rights of interment must be 15 6 filed and recorded in the cemetery corporation's office. Any 15 7 transfer of the ownership of interment rights must be filed 15 8 and recorded in the cemetery corporation's office. The 15 9 cemetery corporation may charge a reasonable recording fee to 15 10 record the transfer of interment rights. 15 11 Sec. 17. NEW SECTION. 523I.402 INTERMENT RIGHTS. 15 12 1. An interment space in which exclusive rights of 15 13 interment are conveyed is presumed to be the separate property 15 14 of the person named as grantee in the certificate of interment 15 15 rights or other instrument of conveyance. 15 16 2. The spouse of a person to whom exclusive rights of 15 17 interment in an interment space are conveyed has a vested 15 18 right of interment of the spouse's remains in the interment 15 19 space while the spouse is married to the interment space owner 15 20 or if the spouse is married to the interment space owner at 15 21 the time of the owner's death. 15 22 Sec. 18. NEW SECTION. 523I.403 MULTIPLE OWNERS OF 15 23 INTERMENT RIGHTS. 15 24 Two or more owners of interment rights may designate a 15 25 person to represent the interment space and file notice of the 15 26 designation of a representative with the cemetery corporation. 15 27 If notice is not filed, the cemetery corporation may inter or 15 28 permit an interment in the space at the request or direction 15 29 of a registered co-owner of the interment space. 15 30 Sec. 19. NEW SECTION. 523I.404 RECORDS OF INTERMENT 15 31 RIGHTS AND INTERMENT. 15 32 1. For sales or transfers of interment rights made on or 15 33 after July 1, 2004, a cemetery corporation shall keep complete 15 34 records identifying the owners of all interment rights sold by 15 35 the cemetery corporation and historical information regarding 16 1 any transfers of ownership. The records shall include all of 16 2 the following: 16 3 a. The name and last known address of each owner or 16 4 previous owner of interment rights. 16 5 b. The date of each purchase or transfer of interment 16 6 rights. 16 7 c. A unique numeric or alphanumeric identifier that 16 8 identifies the location of each interment space sold by the 16 9 cemetery corporation. 16 10 2. For sales or transfers of interment rights made on or 16 11 after July 1, 2004, a cemetery corporation shall keep a record 16 12 of each interment in a cemetery. The records shall include 16 13 all of the following: 16 14 a. The date the remains are interred. 16 15 b. The name, date of birth, and date of death of the 16 16 decedent interred, if those facts can be conveniently 16 17 obtained. 16 18 c. A unique numeric or alphanumeric identifier that 16 19 identifies the location of the interment space where the 16 20 remains are interred. 16 21 Sec. 20. NEW SECTION. 523I.405 UNPAID CARE ASSESSMENTS 16 22 AND UNOCCUPIED INTERMENT SPACES. 16 23 1. FORECLOSURE – UNPAID ASSESSMENTS. Unpaid care 16 24 assessments for an unoccupied interment space not under 16 25 perpetual care shall create a lien by the cemetery corporation 16 26 against the applicable interment space. The cemetery 16 27 corporation may, following notice, foreclose on the interment 16 28 space if the amount of the lien exceeds the amount paid for 16 29 the interment space. If the lien is not paid within one year 16 30 from the date that notice of foreclosure is served on the 16 31 owner of record or the owner of record's heirs, the ownership 16 32 in or right to the unoccupied interment space shall revert to 16 33 the cemetery corporation that owns the cemetery in which the 16 34 unoccupied interment space is located. 16 35 2. ABANDONMENT – QUIET TITLE ACTION. A cemetery 17 1 corporation may file an action to quiet title to determine 17 2 whether an interment space has been abandoned if the interment 17 3 space is unoccupied and has not been occupied in the preceding 17 4 seventy-five years. An action to quiet title shall commence 17 5 when the cemetery corporation serves notice on the owner of 17 6 record or the owner of record's heirs declaring that the 17 7 interment space is considered to be abandoned. If the owner 17 8 of record or the heirs of the owner of record do not respond 17 9 within three years from the date that notice is served, the 17 10 abandonment is considered to be complete. The ownership in or 17 11 right to an abandoned space shall revert to the cemetery 17 12 corporation that owns the cemetery in which the abandoned 17 13 interment space is located and the cemetery corporation may 17 14 sell and convey title to the interment space. 17 15 3. SERVICE OF NOTICE. Notice under this section shall be 17 16 served personally on the owner of record or the heirs of the 17 17 owner of record, or may be served by mailing notice by 17 18 certified mail to the owner of record or to the heirs of the 17 19 owner of record at the last known address. If the address of 17 20 the owner of record or of the heirs of the owner of record 17 21 cannot be ascertained, notice of abandonment shall be given by 17 22 one publication of the notice in the official newspaper of the 17 23 county in which the cemetery is located. 17 24 SUBCHAPTER 5 17 25 INTERMENT RIGHTS AGREEMENTS 17 26 Sec. 21. NEW SECTION. 523I.501 STATEMENT BY PERPETUAL 17 27 CARE CEMETERY. 17 28 1. A perpetual care cemetery shall include the following 17 29 statement in the heading of each interment rights agreement: 17 30 "This cemetery is operated as a perpetual care cemetery, 17 31 which means that a care fund for its maintenance has been 17 32 established in conformity with the laws of the State of Iowa. 17 33 At least twenty percent of the purchase price for interment 17 34 rights must be placed in the care fund and the care fund's 17 35 income is used to maintain, repair, and care for the 18 1 cemetery." 18 2 2. If the care fund contains less than twenty-five 18 3 thousand dollars, the statement shall include a statement that 18 4 the balance of the care fund is less than twenty-five thousand 18 5 dollars or shall disclose the exact amount contained in the 18 6 care fund on a date not more than twelve months prior to the 18 7 date of execution of the interment rights agreement. 18 8 Sec. 22. NEW SECTION. 523I.502 STATEMENT BY NONPERPETUAL 18 9 CARE CEMETERY. 18 10 1. A nonperpetual care cemetery shall include the 18 11 following statement in the heading of each interment rights 18 12 agreement: 18 13 "This cemetery is a nonperpetual care cemetery and has not 18 14 established a perpetual trust fund for the cemetery's care." 18 15 2. A nonperpetual care cemetery shall not represent that 18 16 the cemetery is a perpetual care cemetery or use any similar 18 17 title, description, or term indicating that the cemetery 18 18 provides guaranteed or permanent maintenance and care. If a 18 19 nonperpetual care cemetery has a maintenance fund, trust fund, 18 20 or trust funds, any statements about those funds must be 18 21 factually accurate and explain any variances between the terms 18 22 of the applicable trust and this chapter in regard to the 18 23 twenty-five thousand dollar minimum corpus provision, any 18 24 provisions regarding invasion of principal, and the amount of 18 25 the purchase price placed in trust for each sale of interment 18 26 rights. 18 27 Sec. 23. NEW SECTION. 523I.503 INTERMENT RIGHTS 18 28 AGREEMENT REQUIREMENTS. 18 29 An agreement for interment rights shall be written in 18 30 clear, understandable language and shall contain all of the 18 31 following: 18 32 1. The name of the cemetery where the rights to interment 18 33 are located, the name of the cemetery corporation selling 18 34 interment rights or the name of a seller other than the 18 35 cemetery corporation, and the name of the purchaser. 19 1 2. A description of the interment rights to be provided 19 2 and the cost of merchandise or services to be provided. 19 3 3. The conditions under which substitutions will be 19 4 allowed. 19 5 4. The total purchase price and the terms under which the 19 6 purchase price is to be paid. 19 7 5. That the purchase of interment rights is an irrevocable 19 8 contract, except as otherwise specified in the cemetery 19 9 corporation's rules and regulations. 19 10 6. The amount or percentage of money to be placed in the 19 11 cemetery corporation's care fund or maintenance fund. 19 12 7. A statement explaining that the care fund or 19 13 maintenance fund is an irrevocable trust, that deposits cannot 19 14 be withdrawn even in the event of cancellation of the 19 15 agreement, and that the care fund or maintenance fund must be 19 16 used by the cemetery corporation for the care and maintenance 19 17 of the cemetery. 19 18 8. An explanation of any fees or expenses that may be 19 19 charged. 19 20 9. An explanation of whether the money to be placed in the 19 21 cemetery corporation's care fund or maintenance fund will be 19 22 deposited in trust upon payment in full or on an allocable 19 23 basis as payments are made. 19 24 10. An explanation of whether initial payments on 19 25 agreements for multiple items of merchandise or services, or 19 26 both, will be allocated first to the purchase of interment 19 27 rights. If such an allocation will be made, the agreement 19 28 shall provide for the immediate transfer of such interment 19 29 rights upon payment in full and prominently state that any 19 30 applicable trust deposits under chapter 523A will not be made 19 31 until the cemetery has received payment in full for the 19 32 interment rights. The transfer of interment rights in an 19 33 undeveloped space may be deferred until such space is ready 19 34 for burial. 19 35 11. A provision that if the transfer of an undeveloped 20 1 interment space will be deferred as set forth in subsection 20 2 10, there will be written acknowledgement when payment in full 20 3 is made, specification of a reasonable time period for 20 4 development of the space, a description of what happens in the 20 5 event of the purchaser's death prior to development of the 20 6 space, and immediate transfer of the interment rights when 20 7 development of the space is complete. 20 8 12. Specification of the purchaser's right to cancel the 20 9 agreement and liability for damages upon such cancellation, if 20 10 any. 20 11 13. A statement that the insurance division exercises 20 12 regulatory oversight over interment rights agreements set 20 13 forth in twelve point bold-faced type, in substantially the 20 14 following language: THIS AGREEMENT IS SUBJECT TO RULES 20 15 ADMINISTERED BY THE IOWA INSURANCE DIVISION. YOU MAY CALL THE 20 16 INSURANCE DIVISION AT (___)___________. WRITTEN INQUIRIES OR 20 17 COMPLAINTS SHOULD BE MAILED TO THE IOWA INSURANCE DIVISION, 20 18 (STREET ADDRESS), (CITY), IOWA (ZIP CODE). 20 19 14. If the cemetery corporation offers opening and closing 20 20 services, specification of whether opening and closing of 20 21 interment spaces are included in the interment rights 20 22 agreement, and, if not, the current prices for such opening 20 23 and closing services and a statement that these prices are 20 24 subject to change. 20 25 15. Signatures of the purchaser and the seller. 20 26 A seller shall furnish the purchaser with a completed copy 20 27 of the interment rights agreement at the time the agreement is 20 28 signed. 20 29 SUBCHAPTER 6 20 30 LAWN CRYPTS 20 31 Sec. 24. NEW SECTION. 523I.601 REQUIREMENTS FOR LAWN 20 32 CRYPTS. 20 33 A lawn crypt shall not be installed unless all of the 20 34 following apply: 20 35 1. The lawn crypt is constructed of concrete and 21 1 reinforced steel or other comparable durable material. 21 2 2. The lawn crypt is installed on not less than six inches 21 3 of rock, gravel, or other drainage material. 21 4 3. The lawn crypt provides a method to drain water out of 21 5 the lawn crypt. 21 6 4. The lawn crypt is capable of withstanding the weight of 21 7 the soil and sod above the top surface and the weight of 21 8 machinery and equipment normally used in the maintenance of 21 9 the cemetery. 21 10 5. Except as provided by section 523I.602, the lawn crypt 21 11 is installed in multiple units of ten or more. 21 12 6. The lawn crypt shall be installed in compliance with 21 13 any applicable law or rule adopted by the department of public 21 14 health. 21 15 Sec. 25. NEW SECTION. 523I.602 REQUEST TO INSTALL LAWN 21 16 CRYPT IN FEWER THAN TEN UNITS. 21 17 1. A lawn crypt may be installed in fewer than ten units 21 18 if it is installed in an interment space pursuant to a written 21 19 request to the commissioner signed by the owner or owners of 21 20 the interment space. 21 21 2. The written request shall be filed on a form prescribed 21 22 by the commissioner and shall contain substantially all of the 21 23 following information: 21 24 a. The owner's name and address. 21 25 b. The name of the cemetery and the owner of the cemetery. 21 26 c. The number of lawn crypt units to be installed. 21 27 d. A description of the interment spaces. 21 28 e. A statement that the lawn crypt meets the requirements 21 29 of section 523I.601, including all of the following: 21 30 (1) A statement that the lawn crypt will be constructed of 21 31 concrete and reinforced steel or other comparable durable 21 32 materials. 21 33 (2) A statement that the lawn crypt will be installed on 21 34 not less than six inches of rock, gravel, or other drainage 21 35 material. 22 1 (3) A statement that the lawn crypt will provide a method 22 2 to drain water out of the lawn crypt. 22 3 (4) A statement that the outside top surface of the lawn 22 4 crypt at the time of installation will be capable of 22 5 withstanding the weight of the soil and sod above the top 22 6 surface and the weight of machinery and equipment normally 22 7 used in the maintenance of the cemetery. 22 8 f. A statement that the space in which the lawn crypt is 22 9 to be installed is located in a garden. 22 10 g. The date on which the owner or owners signed the form. 22 11 Sec. 26. NEW SECTION. 523I.603 NEW CONSTRUCTION. 22 12 1. A person shall not offer to sell interment rights in a 22 13 mausoleum or columbarium that will be built or completed in 22 14 the future unless the person has notified the commissioner of 22 15 the offer to sell on a form prescribed by the commissioner and 22 16 accompanied by a fee of one hundred dollars. 22 17 2. The notice of an offer to sell interment rights in such 22 18 a mausoleum or columbarium must include the following 22 19 information: 22 20 a. A description of the new facility or the proposed 22 21 expansion, including a description of the interment rights to 22 22 be offered to prospective purchasers. 22 23 b. A statement of the financial resources available for 22 24 the project. 22 25 c. A copy of the proposed interment rights agreement to be 22 26 used, which shall include the following: 22 27 (1) That purchase payments will be held in trust in 22 28 accordance with the requirements of chapter 523A until 22 29 construction of the mausoleum or columbarium is complete. 22 30 (2) That the purchaser may request a refund of the 22 31 purchase amount, if construction does not begin within five 22 32 years of the purchaser's first payment. 22 33 (3) That the new facility will operate as a perpetual care 22 34 cemetery in compliance with this chapter, even if the facility 22 35 is located at a nonperpetual care cemetery. 23 1 (4) That the purchaser will receive an ownership 23 2 certificate upon payment in full or, if later, when 23 3 construction is complete. 23 4 3. Unless financing has been secured that is adequate in 23 5 amount and terms to complete the facility proposed, new 23 6 construction of a mausoleum or columbarium shall not begin 23 7 until the notice required by this section has been approved by 23 8 the commissioner. 23 9 SUBCHAPTER 7 23 10 GENERAL PROVISIONS 23 11 Sec. 27. NEW SECTION. 523I.701 LIEN AGAINST CEMETERY 23 12 PROPERTY. 23 13 1. A cemetery corporation, by contract, may incur 23 14 indebtedness as necessary to conduct its business and may 23 15 secure the indebtedness by mortgage, deed of trust, or other 23 16 lien against its property. 23 17 2. A mortgage, deed of trust, or other lien placed on 23 18 dedicated cemetery property, or on cemetery property that is 23 19 later dedicated with the consent of the holder of the lien, 23 20 does not affect the dedication and is subject to the 23 21 dedication. A sale on foreclosure of the lien is subject to 23 22 the dedication of the property for cemetery purposes. 23 23 Sec. 28. NEW SECTION. 523I.702 REMOVAL OF REMAINS FROM 23 24 NEGLECTED CEMETERY. 23 25 1. If a neglected cemetery for which no care fund has been 23 26 regularly and legally established is abated as a nuisance, the 23 27 court abating the nuisance and enjoining its continuance or 23 28 the governing body of the municipality in which the cemetery 23 29 is located may authorize the removal of all human remains, 23 30 monuments, tombs, and other similar items from the cemetery to 23 31 another religious cemetery of the same denomination, if 23 32 applicable, or to a perpetual care cemetery in the same 23 33 county. 23 34 2. If a county does not have a perpetual care cemetery 23 35 that under its rules permits the interment of human remains 24 1 that have been removed from another cemetery, the human 24 2 remains, monuments, tombs, and other similar items may be 24 3 removed to a nonperpetual care cemetery in the county that has 24 4 provided for assessments for the cemetery's future care. 24 5 Sec. 29. NEW SECTION. 523I.703 RULEMAKING AND 24 6 ENFORCEMENT. 24 7 1. A cemetery corporation may adopt, amend, and enforce 24 8 rules for the use, care, control, management, restriction, and 24 9 protection of the cemetery, as necessary for the proper 24 10 conduct of the business of the cemetery, including, but not 24 11 limited to, the use, care, and transfer of any space or right 24 12 of interment. 24 13 2. A cemetery corporation may restrict and limit the use 24 14 of all property within the cemetery by rules that do but are 24 15 not limited to doing all of the following: 24 16 a. Prohibiting the placement of memorials or 24 17 memorialization, buildings, or other types of structures 24 18 within any portion of the cemetery. 24 19 b. Regulating the uniformity, class, and kind of memorials 24 20 and memorialization and structures within the cemetery. 24 21 c. Regulating the scattering or placement of cremated 24 22 remains within the cemetery. 24 23 d. Prohibiting or regulating the placement of nonhuman 24 24 remains within the cemetery. 24 25 e. Prohibiting or regulating the introduction or care of 24 26 trees, shrubs, and other types of plants within the cemetery. 24 27 f. Regulating the right of third parties to open, prepare 24 28 for interment, and close interment spaces. 24 29 g. Prohibiting interment in any part of the cemetery not 24 30 designated as an interment space. 24 31 h. Preventing the use of space for any purpose 24 32 inconsistent with the use of the property as a cemetery. 24 33 3. A cemetery corporation shall not adopt or enforce a 24 34 rule that prohibits interment because of the race, color, or 24 35 national origin of a decedent. A provision of a contract or a 25 1 certificate of ownership or other instrument conveying 25 2 interment rights that prohibits interment in a cemetery 25 3 because of the race, color, or national origin of a decedent 25 4 is void. 25 5 4. A cemetery corporation's rules shall be plainly printed 25 6 or typewritten and maintained for inspection in the office of 25 7 the cemetery or, if the cemetery does not have an office, in 25 8 another suitable place within the cemetery. The cemetery's 25 9 rules shall be provided to owners of interment spaces upon 25 10 request. 25 11 5. A cemetery corporation's rules shall specify the 25 12 cemetery corporation's obligations in the event that memorials 25 13 or memorialization are damaged or defaced by acts of 25 14 vandalism. The rules may specify a multiyear restoration of a 25 15 memorial or memorialization when the damage is extensive or 25 16 when money available from the cemetery's trust fund is 25 17 inadequate to complete repairs immediately. The owner of a 25 18 memorial or memorialization that has been damaged or defaced 25 19 shall be notified by the cemetery corporation by restricted 25 20 certified mail at the owner's last known address within sixty 25 21 days of the discovery of the damage or defacement. The rules 25 22 shall specify whether the owner is liable, in whole or in 25 23 part, for the cost to repair or replace a damaged or defaced 25 24 memorial or memorialization. 25 25 6. The cemetery corporation shall not approve any bylaw 25 26 which unreasonably restricts competition, or which 25 27 unreasonably increases the cost to the owner of interment 25 28 rights in utilizing these rights. 25 29 Sec. 30. NEW SECTION. 523I.704 PROTECTION OF CEMETERIES 25 30 AND BURIAL SITES. 25 31 1. EXISTENCE OF CEMETERY OR BURIAL SITE – NOTIFICATION. 25 32 If a governmental subdivision is notified of the existence of 25 33 a cemetery, or a marked burial site that is not located in a 25 34 dedicated cemetery, within its jurisdiction and the cemetery 25 35 or burial site is not otherwise provided for under this 26 1 chapter, the governmental subdivision shall, as soon as is 26 2 practicable, notify the owner of the land upon which the 26 3 cemetery or burial site is located of the cemetery's or burial 26 4 site's existence and location. The notification shall include 26 5 an explanation of the provisions of this section. If there is 26 6 a basis to believe that interment may have occurred more than 26 7 one hundred fifty years earlier, the governmental subdivision 26 8 shall also notify the state archaeologist. 26 9 2. DISTURBANCE OF INTERMENT SPACES – PENALTY. A person 26 10 who knowingly and without authorization damages, defaces, 26 11 destroys, or otherwise disturbs an interment space commits 26 12 criminal mischief in the third degree. Criminal mischief in 26 13 the third degree is an aggravated misdemeanor. 26 14 3. DUTY TO PRESERVE AND PROTECT. A governmental 26 15 subdivision having a cemetery, or a burial site that is not 26 16 located within a dedicated cemetery, within its jurisdiction, 26 17 for which preservation is not otherwise provided, shall 26 18 preserve and protect the cemetery or burial site as necessary 26 19 to restore or maintain its physical integrity as a cemetery or 26 20 burial site. The governmental subdivision may enter into an 26 21 agreement to delegate the responsibility for the preservation 26 22 and protection of the cemetery or burial site to a private 26 23 organization interested in historical preservation. A 26 24 cemetery corporation shall be formed to operate the cemetery, 26 25 if applicable. 26 26 4. CONFISCATION AND RETURN OF MEMORIALS. A law 26 27 enforcement officer having reason to believe that a memorial 26 28 or memorialization is in the possession of a person without 26 29 authorization or right to possess the memorial or 26 30 memorialization may take possession of the memorial or 26 31 memorialization from that person and turn it over to the 26 32 officer's law enforcement agency. If a law enforcement agency 26 33 determines that a memorial or memorialization the agency has 26 34 taken possession of rightfully belongs on an interment space, 26 35 the agency shall return the memorial or memorialization to the 27 1 interment space, or make arrangements with the person having 27 2 jurisdiction over the interment space for its return. 27 3 5. BURIAL SITES LOCATED ON PRIVATE PROPERTY. 27 4 a. If a person notifies a governmental subdivision that a 27 5 burial site of the person's ancestor is located on property 27 6 owned by another person within the jurisdiction of the 27 7 governmental subdivision, the governmental subdivision shall 27 8 notify the property owner of the location of the burial site 27 9 and that the property owner is required to permit the person 27 10 reasonable ingress and egress for the purposes of visiting the 27 11 burial site of the person's ancestor. 27 12 b. Pursuant to section 558.69, each declaration of value 27 13 submitted to a county recorder pursuant to chapter 428A shall 27 14 be accompanied by a statement concerning whether or not any 27 15 known private burial sites are situated on the property. 27 16 6. DISCOVERY OF HUMAN REMAINS. Any person discovering 27 17 human remains shall notify the county or state medical 27 18 examiner or a city, county, or state law enforcement agency as 27 19 soon as is reasonably possible unless the person knows or has 27 20 good reason to believe that such notice has already been given 27 21 or the discovery occurs in a cemetery. If there is reason to 27 22 believe that interment may have occurred more than one hundred 27 23 fifty years earlier, the governmental subdivision notified 27 24 shall also notify the state archaeologist. A person who does 27 25 not provide notice required pursuant to this subsection 27 26 commits a serious misdemeanor. 27 27 Sec. 31. NEW SECTION. 523I.705 COMPLIANCE WITH IOWA 27 28 CONSUMER CREDIT CODE. 27 29 A seller of credit sales agreements pursuant to this 27 30 chapter shall comply with the requirements of chapter 537, and 27 31 is subject to the remedies and penalties provided for in that 27 32 chapter. 27 33 Sec. 32. NEW SECTION. 523I.706 DISCLOSURE REQUIREMENTS. 27 34 1. A cemetery corporation shall disclose, prior to the 27 35 sale of interment rights, whether opening and closing of the 28 1 interment space is included in the purchase of the interment 28 2 rights. If opening and closing services are not included in 28 3 the sale and the cemetery corporation offers opening and 28 4 closing services, the cemetery corporation must disclose that 28 5 the price for this service is subject to change and disclose 28 6 the current prices for opening and closing services provided 28 7 by the cemetery corporation. 28 8 2. The cemetery corporation shall fully disclose all fees 28 9 required for interment, entombment, or inurnment of human 28 10 remains. 28 11 3. A person owning interment rights may sell those rights 28 12 to third parties. The cemetery corporation shall fully 28 13 disclose, in the cemetery corporation's rules, any 28 14 requirements necessary to transfer title of interment rights 28 15 to a third party. 28 16 Sec. 33. NEW SECTION. 523I.707 INSTALLATION OF OUTER 28 17 BURIAL CONTAINERS. 28 18 A cemetery corporation shall provide services necessary for 28 19 the installation of outer burial containers or other similar 28 20 merchandise sold by the cemetery corporation. This section 28 21 shall not require the cemetery corporation to provide for 28 22 opening and closing of interment or entombment space, unless 28 23 an agreement executed by the cemetery corporation expressly 28 24 provides otherwise. 28 25 Sec. 34. NEW SECTION. 523I.708 ACCESS BY FUNERAL 28 26 DIRECTORS. 28 27 A cemetery corporation shall not deny access to a licensed 28 28 funeral director who is conducting funeral services or 28 29 supervising the interment or disinterment of human remains. 28 30 Sec. 35. NEW SECTION. 523I.709 COUNTY AUDITOR AS 28 31 TRUSTEE. 28 32 1. In the absence of a trustee for care funds, unless 28 33 otherwise provided by law, the care funds shall be placed in 28 34 the hands of the county auditor, who shall receipt for, loan, 28 35 and make annual reports of the care funds. 29 1 2. The county auditor shall not be required to post a 29 2 bond. 29 3 3. The county auditor shall serve without compensation, 29 4 but may, out of the income received, pay all proper items of 29 5 expense incurred in the performance of the auditor's duties as 29 6 trustee, if any. 29 7 4. The county auditor shall make a full report of the 29 8 trustee's actions and trust funds annually in January. The 29 9 net proceeds for care funds received by the county auditor as 29 10 trustee shall be apportioned and credited to each of any 29 11 separate care funds assigned to the auditor. 29 12 5. The county auditor shall turn over the accrued income 29 13 from each care fund annually to the person having control of 29 14 the cemetery. 29 15 Sec. 36. NEW SECTION. 523I.710 MEMORIALS AND 29 16 MEMORIALIZATION. 29 17 1. AUTHORIZATION. A cemetery corporation is entitled to 29 18 determine whether a person requesting installation of a 29 19 memorial is authorized to do so, to the extent that this can 29 20 be determined from the records of the cemetery corporation, as 29 21 is consistent with the cemetery corporation's rules. The 29 22 owner of an interment space or the owner's agent may authorize 29 23 a memorial dealer or independent third party to perform all 29 24 necessary work related to preparation and installation of a 29 25 memorial. 29 26 2. CONFORMITY WITH CEMETERY CORPORATION RULES. A person 29 27 selling a memorial shall review the rules of the cemetery 29 28 corporation for the cemetery where the memorial is to be 29 29 installed to ensure that the memorial will comply with those 29 30 rules prior to ordering or manufacturing the memorial. 29 31 3. SPECIFICATIONS. Upon request, a cemetery corporation 29 32 shall provide reasonable written specifications and 29 33 instructions governing installation of memorials, which shall 29 34 apply to all installations whether performed by the cemetery 29 35 corporation or another person. The written specifications 30 1 shall include provisions governing hours of installation or 30 2 any other relevant administrative requirements of the 30 3 cemetery. A copy of these specifications and instructions 30 4 shall be provided upon request, without charge, to the owner 30 5 of the interment space, next of kin, or a personal 30 6 representative or agent of the owner, including the person 30 7 installing the memorial. The person installing the memorial 30 8 shall comply with the cemetery corporation's written 30 9 installation specifications and instructions. A cemetery 30 10 corporation shall not adopt or enforce any rule prohibiting 30 11 the installation of a memorial by a memorial dealer or 30 12 independent third party, unless the rule is adopted and 30 13 enforced uniformly for all memorials installed in the 30 14 cemetery. 30 15 4. WRITTEN NOTICE. A memorial dealer or independent third 30 16 party shall provide the cemetery corporation with at least 30 17 seven business days' prior written notice of intent to install 30 18 a memorial at the cemetery, or such lesser notice as the 30 19 cemetery corporation deems acceptable. The notice shall 30 20 contain the full name, address, and relationship of the 30 21 memorial's purchaser to the person interred in the interment 30 22 space or the owner of the interment space, if different. The 30 23 notice shall also contain the color, type, and size of the 30 24 memorial, the material, the inscription, and the full name and 30 25 interment date of the person interred in the interment space. 30 26 5. PREPARATION AND INSTALLATION. 30 27 a. A person installing a memorial shall be responsible to 30 28 the cemetery corporation for any damage caused to the cemetery 30 29 grounds, including roadways, other than normal use during 30 30 installation of the memorial. 30 31 b. Installation work shall cease during any nearby funeral 30 32 procession or committal service. 30 33 c. Installation work shall be done during the cemetery's 30 34 normal weekday hours or at such other times as may be arranged 30 35 with the cemetery corporation. 31 1 d. A memorial must comply with the cemetery corporation's 31 2 rules and regulations for the cemetery. In the event of 31 3 noncompliance, the person installing a memorial is responsible 31 4 for removal of the memorial and shall pay any reasonable 31 5 expenses incurred by the cemetery in connection with the 31 6 memorial's removal. 31 7 e. The cemetery corporation shall, without charge, provide 31 8 information as described on the cemetery's map or plat 31 9 necessary to locate the place where a memorial is to be 31 10 installed and any other essential information the person 31 11 installing the memorial needs to locate the proper interment 31 12 space. 31 13 f. A person installing a memorial shall follow the 31 14 cemetery corporation's instructions regarding the positioning 31 15 of the memorial. 31 16 g. During the excavation, all sod and dirt shall be 31 17 carefully removed with no sod or dirt left on the interment 31 18 space except the amount needed to fill the space between the 31 19 memorial and the adjacent lawn. 31 20 h. A person installing a memorial shall carefully fill in 31 21 any areas around the memorial with topsoil or sand, in 31 22 accordance with the cemetery corporation's written 31 23 instructions. 31 24 i. A person installing a memorial shall remove all 31 25 equipment and any debris which has accumulated during 31 26 installation of the memorial. 31 27 j. A person installing a memorial shall check to see if 31 28 any adjacent memorials have become soiled or dirty during 31 29 installation of the memorial and, if so, clean the adjacent 31 30 memorials. 31 31 k. If the person who is installing a memorial damages any 31 32 cemetery property, the person shall notify the cemetery 31 33 corporation immediately. The person installing the memorial 31 34 shall then repair the damage as soon as possible, upon 31 35 approval by the cemetery corporation. The cemetery 32 1 corporation may require a person installing a memorial to 32 2 provide current proof of workers' compensation insurance as 32 3 required by state law and current proof of liability 32 4 insurance, sufficient to indemnify the cemetery corporation 32 5 against claims resulting from installation of the memorial. 32 6 Proof of liability insurance in an amount of one million 32 7 dollars or more shall preclude the cemetery corporation from 32 8 requiring a person installing a memorial to obtain a 32 9 performance bond. 32 10 l. If a cemetery has an office, a person installing a 32 11 memorial shall immediately leave notice at the cemetery office 32 12 when the memorial has been installed and all work related to 32 13 the installation is complete. 32 14 6. INSPECTION. A cemetery corporation may inspect the 32 15 installation site of a memorial at any time. If the cemetery 32 16 corporation determines that cemetery corporation rules are not 32 17 being followed during the installation, the cemetery 32 18 corporation may order the installation to stop until the 32 19 infraction is corrected. The cemetery corporation shall 32 20 provide written notice to the installer as soon as possible if 32 21 the cemetery corporation believes that any of the following 32 22 have occurred: 32 23 a. The memorial has not been installed correctly. 32 24 b. The person installing the memorial has damaged property 32 25 at the cemetery. 32 26 c. Other cemetery corporation requirements for 32 27 installation have not been met, such as removal of debris or 32 28 equipment. 32 29 7. LOCATION AND SERVICE CHARGE. A cemetery corporation 32 30 may charge a reasonable service charge for allowing the 32 31 installation of a memorial purchased or obtained from and 32 32 installed by a person other than the cemetery corporation or 32 33 its agents. This service charge shall be based on the 32 34 cemetery corporation's actual labor costs, including fringe 32 35 benefits, of those employees whose normal duty is to inspect 33 1 the installation of memorials, in accordance with generally 33 2 accepted accounting practices. General administrative and 33 3 overhead costs and any other functions not related to actual 33 4 inspection time shall be excluded from the service charge. 33 5 8. FAULTY INSTALLATION. If a memorial sinks, tilts, or 33 6 becomes misaligned within twelve months of its installation 33 7 and the cemetery corporation believes the cause is faulty 33 8 installation, the cemetery corporation shall notify the person 33 9 who installed the memorial in writing and the person who 33 10 installed the memorial shall be responsible to correct the 33 11 damage, unless the damage is caused by inadequate written 33 12 specifications and instructions from the cemetery corporation 33 13 or acts of the cemetery corporation and its agents or 33 14 employees, including but not limited to running a backhoe over 33 15 the memorial, carrying a vault or other heavy equipment over 33 16 the memorial, or opening or closing an interment space 33 17 adjacent to the memorial. 33 18 9. PERPETUAL CARE. A cemetery corporation may require 33 19 contributions from the purchaser of a memorial for perpetual 33 20 care, if a perpetual care fund deposit is uniformly charged on 33 21 every memorial installed in the cemetery. 33 22 Sec. 37. NEW SECTION. 523I.711 INTERMENT, RELOCATION, OR 33 23 DISINTERMENT OF REMAINS. 33 24 1. Unless a decedent has left directions in writing for 33 25 the disposition of the decedent's remains as provided in 33 26 subsection 2, the following persons, in the priority listed, 33 27 shall have the right to control the interment, relocation, or 33 28 disinterment of the decedent's remains within or from a 33 29 cemetery: 33 30 a. The person designated in and adequately identified by a 33 31 written instrument signed by the decedent. 33 32 b. The surviving spouse of the decedent, if not legally 33 33 separated from the decedent. 33 34 c. A majority of the surviving adult children of the 33 35 decedent whose whereabouts are reasonably ascertainable. 34 1 d. The surviving parents or legal guardians of the 34 2 decedent whose whereabouts are reasonably ascertainable. 34 3 e. A majority of the surviving adult siblings of the 34 4 decedent whose whereabouts are reasonably ascertainable. 34 5 f. Any adult person in the next degree of kinship in the 34 6 order named by law to inherit the estate of the decedent under 34 7 the rules of inheritance for intestate succession. 34 8 2. The written instrument referred to in subsection 1, 34 9 paragraph "a", shall be in substantially the following form: 34 10 DIRECTIONS FOR DISPOSITION OF MY REMAINS 34 11 Name of person whose remains are to be disposed of as 34 12 directed (decedent): 34 13 Address: 34 14 Telephone Number: 34 15 Acceptance of Appointment: (signature of agent) 34 16 Date of Signature: 34 17 SUCCESSORS 34 18 If my agent dies, becomes legally disabled, resigns, or 34 19 refuses to act, I hereby appoint the following persons (each 34 20 to act alone and successively, in the order named) to serve as 34 21 my agent (attorney-in-fact) to control the disposition of my 34 22 remains as authorized by this document: 34 23 First Successor 34 24 Name: 34 25 Address: 34 26 Telephone Number: 34 27 Acceptance of Appointment: (signature of first successor) 34 28 Date of Signature: 34 29 Second Successor 34 30 Name: 34 31 Address: 34 32 Telephone Number: 34 33 Acceptance of Appointment: (signature of second successor) 34 34 Date of Signature: 34 35 DURATION 35 1 This appointment becomes effective upon my death. 35 2 PRIOR APPOINTMENTS REVOKED 35 3 I hereby revoke any prior appointment of any person to 35 4 control the disposition of my remains. 35 5 RELIANCE 35 6 I hereby agree that any cemetery corporation that receives 35 7 a copy of this document may act under it. Any modification or 35 8 revocation of this document is not effective as to any such 35 9 party until that party receives actual notice of the 35 10 modification or revocation. No such party shall be liable 35 11 because of reliance on a copy of this document. 35 12 ASSUMPTION 35 13 THE AGENT, AND EACH SUCCESSOR AGENT, BY ACCEPTING THIS 35 14 APPOINTMENT, ASSUMES THE OBLIGATIONS PROVIDED IN, AND IS BOUND 35 15 BY THE PROVISIONS OF, SECTION 523I.711. Signed this _____ day 35 16 of _____________, ____. 35 17 3. A written instrument referred to in subsection 1, 35 18 paragraph "a", is legally sufficient if the wording of the 35 19 instrument complies substantially with subsection 2, the 35 20 instrument is properly completed, the instrument is signed by 35 21 the decedent, the agent, and each successor agent, and the 35 22 signature of the decedent is acknowledged. Such written 35 23 instrument may be modified or revoked only by a subsequent 35 24 written instrument that complies with the requirements of this 35 25 subsection. 35 26 4. A person who represents that the person knows the 35 27 identity of a decedent and, in order to procure the interment, 35 28 relocation, or disinterment of the decedent's remains, signs 35 29 an order or statement, other than a death certificate, that 35 30 warrants the identity of the decedent is liable for all 35 31 damages that result, directly or indirectly, from that 35 32 representation. 35 33 5. A person may provide written directions for the 35 34 interment, relocation, or disinterment of the person's own 35 35 remains in a will, prepaid funeral or cemetery contract, or 36 1 written instrument signed and acknowledged by the person. The 36 2 directions may govern the inscription to be placed on a grave 36 3 marker attached to any interment space in which the decedent 36 4 had the right of interment at the time of death and in which 36 5 interment space the decedent is subsequently interred. The 36 6 directions may be modified or revoked only by a subsequent 36 7 writing signed and acknowledged by the person. A person other 36 8 than a decedent who is entitled to control the interment, 36 9 relocation, or disinterment of a decedent's remains under this 36 10 section shall faithfully carry out the directions of the 36 11 decedent to the extent that the decedent's estate or the 36 12 person controlling the interment, relocation, or disinterment 36 13 is financially able to do so. 36 14 6. If the decedent's directions for the interment of the 36 15 decedent's remains are in a will, the directions shall be 36 16 carried out immediately without the necessity of probate. If 36 17 a will is not probated or is declared invalid for testamentary 36 18 purposes, the directions for the interment of the decedent's 36 19 remains are valid to the extent that they have been acted upon 36 20 in good faith. 36 21 7. A cemetery corporation shall not be liable for carrying 36 22 out the written directions of a decedent or the directions of 36 23 any person entitled to control the interment, relocation, or 36 24 disinterment of the decedent's remains. 36 25 8. If the agreement of a majority of the persons 36 26 designated in subsection 1, paragraph "c", "d", or "e", is 36 27 required and cannot be obtained concerning their right to 36 28 control the interment, relocation, or disinterment of a 36 29 decedent's remains, the dispute may be resolved by a court of 36 30 competent jurisdiction. A cemetery corporation shall not be 36 31 liable for refusing to accept the decedent's remains, relocate 36 32 or disinter, inter or otherwise dispose of the decedent's 36 33 remains, until the cemetery corporation receives a court order 36 34 or other suitable confirmation that the dispute has been 36 35 resolved or settled. 37 1 9. a. If good cause exists to relocate or disinter 37 2 remains interred in a cemetery, the remains may be removed 37 3 from the cemetery pursuant to a disinterment permit as 37 4 required under section 144.34, with the written consent of the 37 5 cemetery corporation, the current interment rights owner and 37 6 the person entitled by this section to control the interment, 37 7 relocation, or disinterment of the decedent's remains. 37 8 b. If the consent required by this subsection cannot be 37 9 obtained, the remains may be relocated by permission of the 37 10 district court of the county in which the cemetery is located. 37 11 Before the date of application to the court for permission to 37 12 relocate remains under this subsection, notice must be given 37 13 to the cemetery corporation that operates the cemetery in 37 14 which the remains are interred, each person whose consent is 37 15 required for relocation of the remains under subsection 1, and 37 16 any other person that the court requires to be served. 37 17 c. For the purposes of this subsection, personal notice 37 18 must be given not later than the eleventh day before the date 37 19 of application to the court for permission to relocate the 37 20 remains, or notice by certified mail or restricted certified 37 21 mail must be given not later than the sixteenth day before the 37 22 date of application. 37 23 d. This subsection does not apply to the removal of 37 24 remains from one interment space to another interment space in 37 25 the same cemetery to correct an error, or relocation of the 37 26 remains by the cemetery from an interment space for which the 37 27 purchase price is past due and unpaid, to another suitable 37 28 interment space. 37 29 10. A person who removes remains from a cemetery shall 37 30 keep a record of the removal, and provide a copy to the 37 31 cemetery, that includes all of the following: 37 32 a. The date the remains are removed. 37 33 b. The name of the decedent and age at death if those 37 34 facts can be conveniently obtained. 37 35 c. The place to which the remains are removed. 38 1 d. The name of the cemetery and the location of the 38 2 interment space from which the remains are removed. 38 3 11. A cemetery corporation may disinter and relocate 38 4 remains interred in the cemetery for the purpose of correcting 38 5 an error made by the cemetery corporation after obtaining a 38 6 disinterment permit as required by section 144.34. The 38 7 cemetery corporation shall provide written notice to the 38 8 commissioner and to the person by restricted certified mail 38 9 describing who has the right to control the interment, 38 10 relocation, or disinterment of the remains erroneously 38 11 interred, at the person's last known address and sixty days 38 12 prior to the disinterment. The notice shall include the 38 13 location where the disinterment will occur and the location of 38 14 the new interment space. A cemetery corporation is not 38 15 civilly or criminally liable for an erroneously made interment 38 16 that is corrected in compliance with this subsection unless 38 17 the error was the result of gross negligence or intentional 38 18 misconduct. 38 19 12. Relocations and disinterments of human remains shall 38 20 be done in compliance with sections 144.32 and 144.34. 38 21 SUBCHAPTER 8 38 22 GOVERNMENTAL SUBDIVISIONS 38 23 Sec. 38. NEW SECTION. 523I.801 CEMETERY AUTHORIZED. 38 24 The governing body of a governmental subdivision may 38 25 purchase, establish, operate, enclose, improve, or regulate a 38 26 cemetery. A cemetery owned or operated by a governmental 38 27 subdivision may sell interment rights subject to the 38 28 provisions of this chapter. 38 29 Sec. 39. NEW SECTION. 523I.802 TRUST FOR CEMETERY. 38 30 1. A governmental subdivision that owns or operates a 38 31 cemetery or has control of cemetery property may act as a 38 32 permanent trustee for the perpetual maintenance of interment 38 33 spaces in the cemetery. 38 34 2. To act as a trustee, a majority of the governmental 38 35 subdivision's governing body must adopt an ordinance or 39 1 resolution stating the governmental subdivision's willingness 39 2 and intention to act as a trustee for the perpetual 39 3 maintenance of cemetery property. When the ordinance or 39 4 resolution is adopted and the trust is accepted, the trust is 39 5 perpetual. 39 6 Sec. 40. NEW SECTION. 523I.803 AUTHORITY TO RECEIVE 39 7 GIFTS AND DEPOSITS FOR CARE – CERTIFICATES. 39 8 1. A governmental subdivision that is a trustee for the 39 9 perpetual maintenance of a cemetery may adopt reasonable rules 39 10 governing the receipt of a gift or grant from any source. 39 11 2. A governmental subdivision that is a trustee for a 39 12 person shall accept the amount the governmental subdivision 39 13 requires for permanent maintenance of an interment space on 39 14 behalf of that person or a decedent. 39 15 3. A governmental subdivision's acceptance of a deposit 39 16 for permanent maintenance of an interment space constitutes a 39 17 perpetual trust for the designated interment space. 39 18 4. Upon acceptance of a deposit, a governmental 39 19 subdivision's secretary, clerk, or mayor shall issue a 39 20 certificate in the name of the governmental subdivision to the 39 21 trustee or depositor. The certificate shall state all of the 39 22 following: 39 23 a. The depositor's name. 39 24 b. The amount and purpose of the deposit. 39 25 c. The location, with as much specificity as possible, of 39 26 the interment space to be maintained. 39 27 d. Other information required by the governmental 39 28 subdivision. 39 29 5. An individual, association, foundation, or corporation 39 30 that is interested in the maintenance of a neglected cemetery 39 31 in a governmental subdivision's possession and control may 39 32 donate funds to the cemetery's perpetual trust fund to 39 33 beautify and maintain the entire cemetery or burial grounds 39 34 generally. 39 35 Sec. 41. NEW SECTION. 523I.804 INVESTMENT OF CARE FUNDS. 40 1 Notwithstanding section 12B.10, a cemetery corporation 40 2 owned by a governmental subdivision may invest and reinvest 40 3 deposits under this subchapter as set forth in section 40 4 523I.1103. The trustee of the trust funds has a fiduciary 40 5 duty to make reasonable investment decisions and to properly 40 6 oversee and manage the funds entrusted to the trust fund. 40 7 Sec. 42. NEW SECTION. 523I.805 APPOINTMENT OF SUCCESSOR 40 8 TRUSTEE. 40 9 A district judge of a county in which a cemetery is located 40 10 shall appoint a suitable successor or trustee to faithfully 40 11 execute a trust in accordance with this subchapter if a 40 12 governmental subdivision renounces a trust assumed under this 40 13 subchapter, fails to act as its trustee, a vacancy occurs, or 40 14 the appointment of a successor or trustee is otherwise 40 15 necessary. 40 16 Sec. 43. NEW SECTION. 523I.806 PRIVATE CARE OF GRAVES. 40 17 This subchapter does not affect the right of a person who 40 18 has an interest in an interment space, or who is related to a 40 19 decedent interred in a cemetery, to beautify or maintain an 40 20 interment space individually or at the person's own expense in 40 21 accordance with reasonable rules established by the cemetery. 40 22 SUBCHAPTER 9 40 23 COUNTY CEMETERY COMMISSIONS AND NEGLECTED CEMETERIES 40 24 Sec. 44. NEW SECTION. 523I.901 NEGLECTED CEMETERIES. 40 25 The commissioner shall create a form that interested 40 26 persons may use to report neglected cemeteries to the 40 27 commissioner and the county board of supervisors. The board 40 28 of supervisors of each county shall accept any neglected 40 29 cemetery report forms filed with the board and submit copies 40 30 of such report forms received during calendar years 2005 and 40 31 2006 to the commissioner no later than March 1 of the year 40 32 following receipt. The commissioner shall catalog and review 40 33 the neglected cemetery reports received, conduct site visits 40 34 as warranted to determine the nature or extent of any neglect, 40 35 and publish a report of findings no later than December 31, 41 1 2007. 41 2 Sec. 45. NEW SECTION. 523I.902 REMOVAL OF REMAINS. 41 3 1. Upon a showing of good cause, a county cemetery 41 4 commission may file suit in a district court in that county to 41 5 have remains interred in a cemetery owned and operated by the 41 6 commission removed to another cemetery. All persons in 41 7 interest, known or unknown, other than the plaintiffs, shall 41 8 be made defendants to the suit. If any parties are unknown, 41 9 notice may be given by publication. After hearing and a 41 10 showing of good cause for the removal, the court may order the 41 11 removal of the remains and the remains shall be properly 41 12 interred in another cemetery, at the expense of the county. 41 13 The removal and reinterment of the remains shall be done 41 14 pursuant to a disinterment permit issued under section 144.34 41 15 with due care and decency. In deciding whether to order the 41 16 removal of interred remains, a court shall consider present or 41 17 future access to the cemetery, the historical significance of 41 18 the cemetery, and the wishes of the parties concerned if they 41 19 are brought to the court's attention, including the desire of 41 20 any beneficiaries to reserve their rights to waive a 41 21 reservation of rights in favor of removal, and shall exercise 41 22 the court's sound discretion in granting or refusing the 41 23 removal of interred remains. 41 24 2. Any heir at law or descendent of a deceased person 41 25 interred in a neglected cemetery may file suit in a district 41 26 court in the county where the cemetery is located, to have the 41 27 deceased person's remains interred in the cemetery removed to 41 28 another cemetery. The owner of the land, any beneficiaries of 41 29 any reservation of rights, and any other persons in interest, 41 30 known or unknown, other than the plaintiffs shall be made 41 31 defendants. If any parties are unknown, notice may be given 41 32 by publication. After hearing and upon a showing of good 41 33 cause, the court may order removal and the proper interment of 41 34 the remains in another cemetery, at the expense of the 41 35 petitioner. The removal and reinterment shall be done with 42 1 due care and decency. 42 2 SUBCHAPTER 10 42 3 REQUIREMENTS APPLYING ONLY TO NONPERPETUAL CARE CEMETERIES 42 4 Sec. 46. NEW SECTION. 523I.1001 ANNUAL REPORT BY 42 5 NONPERPETUAL CARE CEMETERIES. 42 6 1. A cemetery corporation that operates a nonperpetual 42 7 care cemetery shall file a written report at the end of each 42 8 fiscal year of the cemetery that includes the following: 42 9 a. The name and address of the cemetery. 42 10 b. The name and address of the corporation that owns the 42 11 cemetery. 42 12 c. A description of any common business enterprise or 42 13 parent company. 42 14 d. The name and address of each owner, officer, or other 42 15 official of the cemetery corporation, including when relevant, 42 16 the chief executive officer and the members of the board of 42 17 directors. 42 18 e. The name and address of any trustee holding trust funds 42 19 for the cemetery corporation, including the name and location 42 20 of the applicable trust account. 42 21 f. An affidavit that the cemetery is in compliance with 42 22 this chapter. 42 23 g. Copies of all sales agreement forms used by the 42 24 cemetery. 42 25 h. The amount of the principal of the cemetery 42 26 corporation's maintenance funds at the end of the fiscal year. 42 27 2. The report shall be filed with the commissioner each 42 28 March 1 in the form required by the commissioner. 42 29 Sec. 47. NEW SECTION. 523I.1002 UNIFIED ANNUAL REPORTS. 42 30 The commissioner shall permit the filing of a unified 42 31 report in the event of commonly owned or affiliated 42 32 cemeteries. 42 33 Sec. 48. NEW SECTION. 523I.1003 MAINTENANCE ASSESSMENTS 42 34 AND MAINTENANCE FUNDS AT NONPERPETUAL CARE CEMETERIES. 42 35 1. a. On or after July 1, 2004, a cemetery corporation 43 1 that operates a nonperpetual care cemetery shall, prior to 43 2 selling any interment rights, execute a trust instrument and 43 3 establish an irrevocable trust fund to provide funding for the 43 4 maintenance of the cemetery. The trust agreement shall 43 5 provide for the appointment of at least one trustee, with 43 6 perpetual succession, in case the cemetery corporation is 43 7 dissolved or ceases to be responsible for the cemetery's 43 8 maintenance. Maintenance fund distributions shall be used in 43 9 the manner determined to be in the best interests of the 43 10 cemetery, if authorized by a resolution, bylaw, or other 43 11 action or instrument establishing the maintenance fund, 43 12 including but not limited to the general care and maintenance 43 13 of memorials, memorialization, and any of the following: 43 14 (1) Cutting and trimming lawns, shrubs, and trees at 43 15 reasonable intervals. 43 16 (2) Maintaining drains, water lines, roads, buildings, 43 17 fences, and other structures. 43 18 (3) Maintaining machinery, tools, and equipment. 43 19 (4) Compensating maintenance employees, paying insurance 43 20 premiums, and making payments to maintenance employees' 43 21 pension and benefit plans. 43 22 (5) Paying overhead expenses incidental to such payments. 43 23 (6) Paying expenses necessary to maintain ownership, 43 24 transfer, and interment records of the cemetery. 43 25 b. A cemetery corporation and the trustee or trustees of 43 26 the maintenance fund may, by agreement, amend the instrument 43 27 that established the maintenance fund to include any provision 43 28 that is necessary to comply with the requirements of this 43 29 chapter. The commissioner may require amendments to a trust 43 30 agreement that is not in accord with the provisions of this 43 31 chapter. 43 32 c. The maintenance fund shall be administered under the 43 33 jurisdiction of the district court of the county where the 43 34 cemetery is located. Notwithstanding chapter 633, annual 43 35 reports shall be filed with the court when necessary to 44 1 receive approval of appointments of trustees, trust agreements 44 2 and amendments, changes in fees and expenses, and other 44 3 matters within the court's jurisdiction. A court having 44 4 jurisdiction over a maintenance fund shall have full 44 5 jurisdiction to approve the appointment of trustees, the 44 6 amount of surety bond required, if any, and the investment of 44 7 funds. 44 8 d. The maintenance fund shall pay the fund's operation 44 9 costs and any annual audit fees. The principal of the 44 10 maintenance fund is intended to remain available perpetually 44 11 as a funding source for the maintenance of the cemetery. The 44 12 principal of the maintenance fund shall not be reduced 44 13 voluntarily and must remain inviolable, except as provided in 44 14 this section. The cemetery corporation shall maintain the 44 15 principal of the maintenance fund separate from all operating 44 16 funds of the cemetery corporation. 44 17 e. A cemetery corporation shall be responsible for the 44 18 deposit of all moneys required to be placed in the maintenance 44 19 fund. The maintenance fund may receive and hold any property 44 20 contributed to the maintenance fund as a part of the 44 21 maintenance fund or as an incident to the maintenance fund. 44 22 Moneys to be deposited in a maintenance fund shall be 44 23 deposited no later than the fifteenth day after the close of 44 24 the month when the cemetery corporation receives the final 44 25 payment from the purchaser. 44 26 f. Deposits and contributions to the maintenance fund are 44 27 for charitable purposes. The maintenance financed by the 44 28 maintenance fund constitutes the discharge of a duty due by 44 29 the cemetery corporation to persons interred and to be 44 30 interred in the cemetery and for the benefit and protection of 44 31 the public by preserving and keeping the cemetery from 44 32 becoming a place of disorder, reproach, and desolation in the 44 33 community in which the cemetery is located. 44 34 g. A contribution to a maintenance fund is not invalid 44 35 because of the following: 45 1 (1) Indefiniteness or uncertainty as to the identity of 45 2 the person designated as a beneficiary in the instrument 45 3 establishing the maintenance fund. 45 4 (2) A violation of the law against perpetuities or the law 45 5 against the suspension of the power of alienation of title to 45 6 or use of property. 45 7 2. A financial institution holding moneys in a maintenance 45 8 fund for a cemetery corporation shall not do any of the 45 9 following: 45 10 a. Be owned, under the control of, or affiliated with a 45 11 cemetery corporation. 45 12 b. Use any funds required to be deposited pursuant to this 45 13 chapter to purchase an interest in a contract or agreement in 45 14 which the cemetery corporation is a party. 45 15 c. Otherwise invest moneys in a maintenance fund, directly 45 16 or indirectly, in a cemetery corporation's business 45 17 operations. 45 18 3. A cemetery corporation shall make reasonable investment 45 19 decisions and properly oversee and manage moneys in a 45 20 maintenance fund. A cemetery corporation shall use the 45 21 judgment and care, under the circumstances then prevailing, 45 22 that a person of prudence, discretion, and intelligence 45 23 exercises in the management of the person's own affairs, 45 24 without speculation in the permanent disposition of the 45 25 person's own funds, to ensure the probable safety of the 45 26 person's capital. The commissioner may take enforcement 45 27 action against a cemetery corporation for a breach of 45 28 fiduciary duty proven under this chapter. 45 29 4. Maintenance fund moneys may be deposited pursuant to a 45 30 master trust agreement, if each maintenance fund is treated as 45 31 a separate beneficiary of the trust and each maintenance fund 45 32 is separable. The master trust shall maintain a separate 45 33 accounting of principal and income for each maintenance fund. 45 34 Moneys deposited pursuant to a master trust agreement may be 45 35 commingled for investment purposes. 46 1 5. A cemetery corporation may appoint an independent 46 2 investment adviser to advise the financial institution about 46 3 investment of the moneys in a maintenance fund. 46 4 6. All moneys required to be deposited by the cemetery 46 5 corporation shall be deposited in the name of the maintenance 46 6 fund, pursuant to the terms of a written agreement and the 46 7 cemetery corporation shall invest, reinvest, exchange, retain, 46 8 sell, and otherwise manage the maintenance fund for the 46 9 benefit and protection of the cemetery. 46 10 7. This section does not prohibit a cemetery corporation 46 11 from moving moneys in a maintenance fund from one financial 46 12 institution to another. 46 13 8. A cemetery corporation that operates a nonperpetual 46 14 care cemetery shall collect a maintenance assessment equal to 46 15 or greater than fifty dollars or ten percent of the gross 46 16 selling price received by the cemetery corporation for the 46 17 sale of interment rights, whichever is more. The maintenance 46 18 assessments shall be deposited in the cemetery corporation's 46 19 maintenance fund. 46 20 SUBCHAPTER 11 46 21 REQUIREMENTS APPLYING ONLY TO PERPETUAL CARE CEMETERIES 46 22 Sec. 49. NEW SECTION. 523I.1101 APPLICABILITY. 46 23 1. All cemeteries are designated as either "perpetual care 46 24 cemeteries" or "nonperpetual care cemeteries" for the purposes 46 25 of this chapter. 46 26 2. A cemetery corporation organized or commencing business 46 27 in this state on or after July 1, 1995, shall operate as a 46 28 perpetual care cemetery and is subject to this subchapter. 46 29 3. A cemetery corporation that represents that it is 46 30 offering perpetual care is subject to this subchapter. 46 31 4. A cemetery corporation that operates a nonperpetual 46 32 care cemetery may elect to become a perpetual care cemetery by 46 33 complying with the terms of section 523I.1102, if at all times 46 34 subsequent to the date of the election, the cemetery 46 35 corporation complies with the other requirements of this 47 1 subchapter except section 523I.1103, subsection 1. 47 2 Sec. 50. NEW SECTION. 523I.1102 TRUST AGREEMENT – 47 3 IRREVOCABLE TRUST – CARE FUND. 47 4 1. A cemetery corporation operating as a perpetual care 47 5 cemetery shall execute a trust instrument and establish an 47 6 irrevocable trust fund to provide for the care of the 47 7 cemetery. 47 8 2. The trust agreement shall provide for the appointment 47 9 of at least one trustee, with perpetual succession, in case 47 10 the cemetery corporation is dissolved or ceases to be 47 11 responsible for the cemetery's care. 47 12 3. A cemetery corporation and the trustee or trustees of 47 13 the care fund may, by agreement, amend the instrument that 47 14 established the fund to include any provision that is 47 15 necessary to comply with the requirements of this chapter. 47 16 4. A cemetery corporation shall be responsible for the 47 17 deposit of all moneys required to be placed in a care fund. 47 18 5. The commissioner may require amendments to a trust 47 19 agreement that is not in accord with the provisions of this 47 20 chapter. 47 21 Sec. 51. NEW SECTION. 523I.1103 CARE FUND REQUIREMENTS. 47 22 1. A religious cemetery or a cemetery owned or operated by 47 23 a political subdivision of this state is not required to make 47 24 a minimum initial deposit in a care fund. A cemetery 47 25 corporation organized or commencing business in this state on 47 26 or after July 1, 1995, shall not commence operations as a 47 27 perpetual care cemetery unless the cemetery corporation has a 47 28 care fund of at least twenty-five thousand dollars in cash. 47 29 2. If an initial deposit is made by a cemetery corporation 47 30 to satisfy subsection 1, the initial twenty-five thousand 47 31 dollar deposit may be withdrawn by the cemetery corporation 47 32 when the care fund balance reaches one hundred thousand 47 33 dollars. An affidavit shall be filed with the commissioner 47 34 providing prior notice of the intended withdrawal of the 47 35 initial deposit and attesting that the money has not 48 1 previously been withdrawn. Upon a showing by the cemetery 48 2 corporation that the initial deposit has not previously been 48 3 withdrawn, the commissioner shall approve withdrawal of the 48 4 money and the withdrawal shall take place within one year 48 5 after the care fund balance reaches one hundred thousand 48 6 dollars. 48 7 3. The care fund shall be administered under the 48 8 jurisdiction of the district court of the county where the 48 9 cemetery is located. Notwithstanding chapter 633, annual 48 10 reports shall not be required unless specifically required by 48 11 the district court. Reports shall be filed with the court 48 12 when necessary to receive approval of appointments of 48 13 trustees, trust agreements and amendments, changes in fees or 48 14 expenses, and other matters within the court's jurisdiction. 48 15 A court having jurisdiction over a care fund shall have full 48 16 jurisdiction to approve the appointment of trustees, the 48 17 amount of surety bond required, if any, and investment of 48 18 funds. 48 19 4. The trustee shall use the judgment and care under the 48 20 circumstances then prevailing that persons of prudence, 48 21 discretion, and intelligence exercise in the management of 48 22 their own affairs, not in regard to speculation but in regard 48 23 to the permanent disposition of their funds, considering the 48 24 probable income as well as the probable safety of their 48 25 capital. 48 26 a. A financial institution may serve as a trustee if 48 27 granted those powers under the laws of this state or of the 48 28 United States. A financial institution acting as a trustee of 48 29 a care fund under this chapter shall invest the funds in 48 30 accordance with applicable law. 48 31 b. A financial institution acting as a trustee of care 48 32 funds under this chapter has a fiduciary duty to make 48 33 reasonable investment decisions and to properly oversee and 48 34 manage the funds entrusted to the financial institution. The 48 35 commissioner may take enforcement action against a financial 49 1 institution in its capacity as trustee for a breach of 49 2 fiduciary duty proven under this chapter. 49 3 c. Care fund moneys may be deposited pursuant to a master 49 4 trust agreement, if each care fund is treated as a separate 49 5 beneficiary of the trust and each care fund is separable. The 49 6 master care shall maintain a separate accounting of principal 49 7 and income for each care fund. Moneys deposited under a 49 8 master trust agreement may be commingled by the financial 49 9 institution for investment purposes. 49 10 d. Subject to a master trust agreement, the cemetery 49 11 corporation may appoint an independent investment adviser to 49 12 advise the financial institution about investment of the care 49 13 fund. 49 14 e. Subject to an agreement between the cemetery 49 15 corporation and the financial institution, the financial 49 16 institution may receive a reasonable fee from the care fund 49 17 for services rendered as trustee. 49 18 f. If the amount of the care funds exceeds two hundred 49 19 thousand dollars, the cemetery corporation or any officer, 49 20 director, agent, employee, or affiliate of the cemetery 49 21 corporation shall not serve as trustee unless the cemetery is 49 22 a religious cemetery or a cemetery owned or operated by a 49 23 governmental subdivision of this state. A financial 49 24 institution holding care funds shall not do any of the 49 25 following: 49 26 (1) Be owned, under the control of, or affiliated with a 49 27 cemetery corporation. 49 28 (2) Use any funds required to be held in trust under this 49 29 chapter to purchase an interest in a contract or agreement in 49 30 which the cemetery corporation is a party. 49 31 (3) Otherwise invest care funds, directly or indirectly, 49 32 in a cemetery corporation's business operations. 49 33 5. Moneys shall be deposited in the care fund no later 49 34 than the fifteenth day after the close of the month when the 49 35 cemetery corporation receives the final payment from a 50 1 purchaser of interment rights in an amount equal to or greater 50 2 than either of the following: 50 3 a. Fifty dollars or twenty percent of the gross selling 50 4 price received by the cemetery for the sale of interment 50 5 rights, whichever is more. 50 6 b. The amount charged for the perpetual care and special 50 7 care of a memorial or memorialization placed in the cemetery. 50 8 A fee for memorial care shall be uniformly charged on every 50 9 installation of a memorial in the cemetery based upon the size 50 10 of the memorial, using the height and width of the memorial or 50 11 the size of the ground surface area used for the memorial. A 50 12 fee for special care of a memorial may be collected if the 50 13 terms of the special care items and arrangements are clearly 50 14 specified in the interment rights purchase agreement. A 50 15 cemetery corporation's liability for acts of God and vandalism 50 16 is limited to income available from the care fund. 50 17 6. All moneys required to be deposited in the care fund by 50 18 the cemetery corporation shall be deposited in the name of the 50 19 trustee, as trustee, under the terms of a trust agreement and 50 20 the trustee may invest, reinvest, exchange, retain, sell, and 50 21 otherwise manage the care fund trust for the benefit and 50 22 protection of the cemetery. 50 23 7. This section does not prohibit a cemetery corporation 50 24 from moving care funds from one financial institution to 50 25 another. 50 26 8. A care fund may receive and hold as a part of the fund 50 27 or as an incident to the fund any property contributed to the 50 28 fund. 50 29 9. The care fund and contributions to the care fund are 50 30 for charitable purposes. The care financed by the fund is for 50 31 the following purposes: 50 32 a. The discharge of a duty due from the cemetery 50 33 corporation to persons interred and to be interred in the 50 34 cemetery. 50 35 b. The benefit and protection of the public by preserving 51 1 and keeping the cemetery in a dignified condition so that the 51 2 cemetery does not become a nuisance or a place of disorder, 51 3 reproach, and desolation in the community in which the 51 4 cemetery is located. 51 5 10. A contribution to a care fund is not invalid because 51 6 of any of the following: 51 7 a. Indefiniteness or uncertainty as to the person 51 8 designated as a beneficiary in the instrument establishing the 51 9 care fund. 51 10 b. A violation of the law against perpetuities or the law 51 11 against the suspension of the power of alienation of title to 51 12 or use of property. 51 13 Sec. 52. NEW SECTION. 523I.1104 PURPOSES OF CARE FUND. 51 14 1. The care fund shall pay the fund's operation costs and 51 15 any annual audit fees. The principal of a care fund is 51 16 intended to remain available perpetually as a funding source 51 17 for care of the cemetery. The principal of the care fund 51 18 shall not be reduced voluntarily and shall remain inviolable, 51 19 except as provided in this section. The trustee or trustees 51 20 of the care fund shall maintain the principal of the care fund 51 21 separate from all operating funds of the cemetery corporation. 51 22 2. In establishing a care fund, the cemetery corporation 51 23 may adopt plans for the care of the cemetery and installed 51 24 memorials and memorialization. 51 25 3. A cemetery corporation may, by resolution adopted by a 51 26 vote of at least two-thirds of the members of its board at any 51 27 authorized meeting of the board, authorize the withdrawal and 51 28 use of not more than twenty percent of the principal of the 51 29 care fund to acquire additional land for cemetery purposes, to 51 30 repair a mausoleum or other building or structure intended for 51 31 cemetery purposes, or to build, improve, or repair roads and 51 32 walkways in the cemetery. The resolution shall establish a 51 33 reasonable repayment schedule, not to exceed five years, and 51 34 provide for interest in an amount comparable to the care 51 35 fund's current rate of return on its investments. However, 52 1 the care fund shall not be diminished below an amount equal to 52 2 the greater of twenty-five thousand dollars or five thousand 52 3 dollars per acre of land in the cemetery. The resolution, and 52 4 either a bond or proof of insurance to guarantee replenishment 52 5 of the care fund, shall be filed with the commissioner thirty 52 6 days prior to the withdrawal of funds. 52 7 Sec. 53. NEW SECTION. 523I.1105 USE OF DISTRIBUTIONS 52 8 FROM CARE FUND. 52 9 1. Care fund distributions may be used in any manner 52 10 determined to be in the best interests of the cemetery if 52 11 authorized by a resolution, bylaw, or other action or 52 12 instrument establishing the care fund, including but not 52 13 limited to the general care of memorials, memorialization, and 52 14 any of the following: 52 15 a. Cutting and trimming lawns, shrubs, and trees at 52 16 reasonable intervals. 52 17 b. Maintaining drains, water lines, roads, buildings, 52 18 fences, and other structures. 52 19 c. Maintaining machinery, tools, and equipment. 52 20 d. Compensating maintenance employees, paying insurance 52 21 premiums, and making payments to employees' pension and 52 22 benefit plans. 52 23 e. Paying overhead expenses incidental to such purposes. 52 24 f. Paying expenses necessary to maintain ownership, 52 25 transfer, and interment records of the cemetery corporation. 52 26 2. A cemetery corporation may, by amending the cemetery 52 27 corporation trust agreement, elect to withdraw capital gains 52 28 from the care fund, subject to the following conditions: 52 29 a. The amount of principal in the care fund shall be 52 30 adjusted annually by allocating income or capital gains as 52 31 necessary to adjust the principal of the care fund for 52 32 inflation, based on the consumer price index as set by the 52 33 commissioner and the amount of principal in the care fund at 52 34 the beginning of the prior year. The amount of principal in 52 35 the care fund shall also be adjusted by adding the amount of 53 1 the deposits received during the prior year, as required by 53 2 section 523I.1103, subsection 5. 53 3 b. For purposes of this section, "adjusted basis" means 53 4 the total of the market value of the care fund on the date of 53 5 the conversion, the aggregate amount of the inflation 53 6 adjustments required by this section, and the aggregate amount 53 7 of deposits received as required by section 523I.1103, 53 8 subsection 5, since the date of the conversion. 53 9 c. If the adjusted basis of the care fund is more than the 53 10 market value of the care fund at the end of the prior year, 53 11 the cemetery corporation shall not withdraw capital gains. If 53 12 the adjusted basis of the care fund is less than the market 53 13 value of the care fund at the end of the prior year, an amount 53 14 equal to fifty percent of the excess may be withdrawn and used 53 15 for the cemetery's care. 53 16 Sec. 54. NEW SECTION. 523I.1106 SUIT BY COMMISSIONER. 53 17 1. If the directors of a cemetery corporation do not care 53 18 for and maintain the cemetery, the district court of the 53 19 county in which the cemetery is located may do the following: 53 20 a. By injunction compel the directors to expend the net 53 21 income of the care fund as required by this chapter. 53 22 b. Appoint a receiver to take charge of the care fund and 53 23 expend the net income of the care fund as required by this 53 24 chapter. 53 25 c. Grant relief on a petition for relief filed pursuant to 53 26 this section by the commissioner. 53 27 2. Inadequate care and maintenance of the cemetery 53 28 includes but is not limited to the following: 53 29 a. Failure to adequately mow grass. 53 30 b. Failure to adequately edge and trim bushes, trees, and 53 31 memorials. 53 32 c. Failure to keep walkways and sidewalks free of 53 33 obstructions. 53 34 d. Failure to adequately maintain the cemetery's equipment 53 35 and fixtures. 54 1 This subsection is not intended to prevent the 54 2 establishment of a cemetery as a nature park or preserve. 54 3 Sec. 55. NEW SECTION. 523I.1107 ADVERTISING. 54 4 1. A cemetery corporation shall not advertise, represent, 54 5 guarantee, promise, or contract to provide or offer perpetual 54 6 care or use terms or phrases like permanent care, permanent 54 7 maintenance, care forever, continuous care, eternal care, or 54 8 everlasting care to imply that a certain level of care and 54 9 financial security will be furnished or is guaranteed except 54 10 in compliance with the provisions of this subchapter. 54 11 2. A cemetery corporation or person advertising or selling 54 12 interment rights shall not represent that the purchase of the 54 13 interment rights is or will be a desirable speculative 54 14 investment for resale purposes. 54 15 Sec. 56. NEW SECTION. 523I.1108 PERPETUAL CARE REGISTRY. 54 16 1. A cemetery corporation that operates a perpetual care 54 17 cemetery shall maintain a registry of individuals who have 54 18 purchased interment rights in the cemetery subject to the care 54 19 fund requirements of this subchapter. 54 20 2. The registry shall include the amount deposited in 54 21 trust for each interment rights agreement entered into on or 54 22 after July 1, 1995. 54 23 Sec. 57. NEW SECTION. 523I.1109 USE OF GIFT FOR SPECIAL 54 24 CARE. 54 25 A trustee may accept and hold money or property transferred 54 26 to the trustee in trust for the purpose of applying the 54 27 principal or income of the money or property transferred for a 54 28 purpose consistent with the purpose of a perpetual care 54 29 cemetery, including the following: 54 30 1. Improvement or embellishment of any part of the 54 31 cemetery. 54 32 2. Erection, renewal, repair, or preservation of a 54 33 monument, fence, building, or other structure in the cemetery. 54 34 3. Planting or cultivation of plants in or around the 54 35 cemetery. 55 1 4. Special care of or embellishment of an interment space, 55 2 section, or building in the cemetery. 55 3 Sec. 58. NEW SECTION. 523I.1110 GOVERNMENTAL 55 4 SUBDIVISIONS. 55 5 A governmental subdivision subject to this section may 55 6 commingle care funds for the purposes of investment and 55 7 administration and may file a single report, if each cemetery 55 8 is appropriately identified and separate records are 55 9 maintained for each cemetery. 55 10 Sec. 59. NEW SECTION. 523I.1111 ANNUAL REPORT AND FILING 55 11 FEES BY PERPETUAL CARE CEMETERIES. 55 12 1. A cemetery corporation that operates a perpetual care 55 13 cemetery shall file a written report at the end of each fiscal 55 14 year of the cemetery that includes the following: 55 15 a. The name and address of the cemetery. 55 16 b. The name and address of the cemetery corporation. 55 17 c. A description of any common business enterprise or 55 18 parent company. 55 19 d. The name and address of each owner, officer, or other 55 20 official of the cemetery corporation, including, when 55 21 relevant, the chief executive officer and the members of the 55 22 board of directors. 55 23 e. The name and address of any trustee holding trust funds 55 24 for the cemetery corporation, including the name and location 55 25 of the applicable trust account. 55 26 f. An affidavit that the cemetery is in compliance with 55 27 this chapter. 55 28 g. Copies of all sales agreement forms used by the 55 29 cemetery. 55 30 h. The amount of the principal of the cemetery 55 31 corporation's care funds at the end of the fiscal year. 55 32 i. The number of interments made and interment spaces sold 55 33 during the fiscal year. 55 34 2. The report and a five-dollar filing fee for each 55 35 certificate of interment rights issued during the fiscal year 56 1 of the cemetery shall be filed with the commissioner within 56 2 four months following the end of the cemetery corporation's 56 3 fiscal year in the form required by the commissioner. The 56 4 filing fee may be charged directly to the purchaser of the 56 5 interment rights. 56 6 Sec. 60. NEW SECTION. 523I.1112 UNIFIED ANNUAL REPORTS. 56 7 The commissioner shall permit the filing of a unified 56 8 report in the event of commonly owned or affiliated 56 9 cemeteries. 56 10 SUBCHAPTER 12 56 11 FRAUDULENT PRACTICES 56 12 Sec. 61. NEW SECTION. 523I.1201 MISLEADING FILINGS. 56 13 It is unlawful for a person to make or cause to be made, in 56 14 any document filed with the commissioner, or in any proceeding 56 15 under this chapter, any statement of material fact which is, 56 16 at the time and in the light of the circumstances under which 56 17 it is made, false or misleading, or, in connection with such 56 18 statement, to omit to state a material fact necessary in order 56 19 to make the statements made, in the light of the circumstances 56 20 under which they are made, not misleading. 56 21 Sec. 62. NEW SECTION. 523I.1202 MISREPRESENTATIONS OF 56 22 GOVERNMENT APPROVAL. 56 23 It is unlawful for a seller under this chapter to represent 56 24 or imply in any manner that the seller has been sponsored, 56 25 recommended, or approved, or that the seller's abilities or 56 26 qualifications have in any respect been passed upon by the 56 27 commissioner. 56 28 Sec. 63. NEW SECTION. 523I.1203 FRAUDULENT PRACTICES. 56 29 A person who commits any of the following acts commits a 56 30 fraudulent practice which is punishable as provided in chapter 56 31 714: 56 32 1. Knowingly fails to comply with any requirement of this 56 33 chapter. 56 34 2. Knowingly makes, causes to be made, or subscribes to a 56 35 false statement or representation in a report or other 57 1 document required under this chapter, implementing rules, or 57 2 orders, or renders such a report or document misleading 57 3 through the deliberate omission of information properly 57 4 belonging in the report or document. 57 5 3. Conspires to defraud in connection with the sale of 57 6 memorials, memorialization, opening and closing services, 57 7 scattering services, interment rights, or a combination 57 8 thereof under this chapter. 57 9 4. Fails to deposit funds under section 523I.1003 or 57 10 section 523I.1103 or withdraws funds in a manner inconsistent 57 11 with this chapter. 57 12 5. Knowingly sells memorials, memorialization, opening and 57 13 closing services, scattering services, interment rights, or a 57 14 combination thereof without the permits required under this 57 15 chapter. 57 16 6. Deliberately misrepresents or omits a material fact 57 17 relative to the sale of memorials, memorialization, opening 57 18 and closing services, scattering services, interment rights, 57 19 or a combination thereof. 57 20 SUBCHAPTER 13 57 21 ADMINISTRATION AND ENFORCEMENT 57 22 Sec. 64. NEW SECTION. 523I.1301 ADMINISTRATION. 57 23 1. This chapter shall be administered by the commissioner. 57 24 The deputy administrator appointed pursuant to section 502.601 57 25 shall be the principal operations officer responsible to the 57 26 commissioner for the routine administration of this chapter 57 27 and management of the administrative staff. In the absence of 57 28 the commissioner, whether because of vacancy in the office due 57 29 to absence, physical disability, or other cause, the deputy 57 30 administrator shall, for the time being, have and exercise the 57 31 authority conferred upon the commissioner. The commissioner 57 32 may by order from time to time delegate to the deputy 57 33 administrator any or all of the functions assigned to the 57 34 commissioner in this chapter. The deputy administrator shall 57 35 employ officers, attorneys, accountants, and other employees 58 1 as needed for administering this chapter. 58 2 2. It is unlawful for the commissioner or any 58 3 administrative staff to use for personal benefit any 58 4 information which is filed with or obtained by the 58 5 commissioner and which is not made public. This chapter does 58 6 not authorize the commissioner or any staff member to disclose 58 7 any such information except among themselves or to other 58 8 cemetery and funeral administrators, regulatory authorities, 58 9 or governmental agencies, or when necessary and appropriate in 58 10 a proceeding or investigation under this chapter or as 58 11 required by chapter 22. This chapter neither creates nor 58 12 derogates any privileges that exist at common law or otherwise 58 13 when documentary or other evidence is sought under a subpoena 58 14 directed to the commissioner or any administrative staff. 58 15 Sec. 65. NEW SECTION. 523I.1302 SCOPE. 58 16 1. This chapter applies to cemeteries, to any person 58 17 advertising or offering memorials, memorialization, opening 58 18 and closing services, scattering services at a cemetery, 58 19 interment rights, or a combination thereof for sale, and to 58 20 interments made in areas not dedicated as a cemetery by a 58 21 person other than the state archaeologist. 58 22 2. This chapter applies when a purchase agreement is 58 23 executed within this state or an advertisement, promotion, or 58 24 offer to furnish memorials, memorialization, opening and 58 25 closing services, scattering services, interment rights, or a 58 26 combination thereof is made or accepted within this state. An 58 27 offer to furnish memorials, memorialization, opening and 58 28 closing services, scattering services, interment rights, or a 58 29 combination thereof is made within this state, whether or not 58 30 either party is then present in this state, when the offer 58 31 originates from this state or is directed by the offeror to 58 32 this state and received by the offeree in this state through 58 33 the mail, over the telephone, by the internet, or through any 58 34 other means of commerce. 58 35 3. If a foreign person does not have a registered agent or 59 1 agents in the state of Iowa, doing business within this state 59 2 shall constitute the person's appointment of the secretary of 59 3 state of the state of Iowa to be its true and lawful attorney 59 4 upon whom may be served all lawful process of original notice 59 5 in actions or proceedings arising or growing out of any 59 6 contract or tort. 59 7 Sec. 66. NEW SECTION. 523I.1303 INVESTIGATIONS AND 59 8 SUBPOENAS. 59 9 1. The commissioner may, for the purpose of discovering 59 10 violations of this chapter, or implementing rules or orders 59 11 issued under this chapter: 59 12 a. Make such public or private investigations within or 59 13 outside of this state as the commissioner deems necessary to 59 14 determine whether any person has violated or is about to 59 15 violate this chapter, implementing rules, or orders issued 59 16 under this chapter, or to aid in enforcement of this chapter, 59 17 or in the prescribing of rules and forms under this chapter. 59 18 b. Require or permit any person to file a statement in 59 19 writing, under oath or otherwise as the commissioner or 59 20 attorney general determines, as to all the facts and 59 21 circumstances concerning the matter to be investigated. 59 22 c. Notwithstanding chapter 22, keep confidential the 59 23 information obtained in the course of an investigation. 59 24 However, if the commissioner determines that it is necessary 59 25 or appropriate in the public interest or for the protection of 59 26 the public, the commissioner may share information with other 59 27 administrators, regulatory authorities, or governmental 59 28 agencies, or may publish information concerning a violation of 59 29 this chapter, implementing rules, or orders issued under this 59 30 chapter. 59 31 d. Investigate the cemetery corporation and examine the 59 32 books, accounts, papers, correspondence, memoranda, purchase 59 33 agreements, files, or other documents or records of the 59 34 cemetery. 59 35 e. Administer oaths and affirmations, subpoena witnesses, 60 1 compel their attendance, take evidence, and require the 60 2 production of any books, accounts, papers, correspondence, 60 3 memoranda, purchase agreements, files, or other documents or 60 4 records which the commissioner deems relevant or material to 60 5 any investigation or proceeding under this chapter and 60 6 implement rules, all of which may be enforced under chapter 60 7 17A. 60 8 f. Apply to the district court for an order requiring a 60 9 person's appearance before the commissioner or attorney 60 10 general, or a designee of either or both, in cases where the 60 11 person has refused to obey a subpoena issued by the 60 12 commissioner or attorney general. The person may also be 60 13 required to produce documentary evidence germane to the 60 14 subject of the investigation. Failure to obey a court order 60 15 under this subsection constitutes contempt of court. 60 16 2. The commissioner may issue and bring an action in 60 17 district court to enforce subpoenas within this state at the 60 18 request of an agency or administrator of another state, if the 60 19 activity constituting an alleged violation for which the 60 20 information is sought would be a violation of this chapter had 60 21 the activity occurred in this state. 60 22 Sec. 67. NEW SECTION. 523I.1304 CEASE AND DESIST ORDERS 60 23 – INJUNCTIONS. 60 24 If it appears to the commissioner that a person has engaged 60 25 or is about to engage in an act or practice constituting a 60 26 violation of this chapter, or implementing rules or orders 60 27 issued under this chapter, the commissioner or the attorney 60 28 general may do any of the following: 60 29 1. Issue a summary order directed to the person that 60 30 requires the person to cease and desist from engaging in such 60 31 act or practice. A person may request a hearing within thirty 60 32 days of issuance of the summary order. If a hearing is not 60 33 timely requested, the summary order shall become final by 60 34 operation of law. The order shall remain effective from the 60 35 date of issuance until the date the order becomes final by 61 1 operation of law or is overturned by a presiding officer 61 2 following a request for hearing. Section 17A.18A is 61 3 inapplicable to summary cease and desist orders issued under 61 4 this section. 61 5 2. Bring an action in the district court in any county of 61 6 the state for an injunction to restrain a person subject to 61 7 this chapter and any agents, employees, or associates of the 61 8 person from engaging in conduct or practices deemed contrary 61 9 to the public interest. In any proceeding for an injunction, 61 10 the commissioner or attorney general may apply to the court 61 11 for a subpoena to require the appearance of a defendant and 61 12 the defendant's agents, employees, or associates and for the 61 13 production of any books, accounts, papers, correspondence, 61 14 memoranda, purchase agreements, files, or other documents or 61 15 records germane to the hearing upon the petition for an 61 16 injunction. Upon a proper showing, a permanent or temporary 61 17 injunction, restraining order, or writ of mandamus shall be 61 18 granted and a receiver may be appointed for the defendant or 61 19 the defendant's assets. The commissioner or attorney general 61 20 shall not be required to post a bond. 61 21 Sec. 68. NEW SECTION. 523I.1305 COURT ACTION FOR FAILURE 61 22 TO COOPERATE. 61 23 1. If a person fails or refuses to file a statement or 61 24 report or to produce any books, accounts, papers, 61 25 correspondence, memoranda, purchase agreements, files, or 61 26 other documents or records, or to obey a subpoena issued by 61 27 the commissioner, the commissioner may refer the matter to the 61 28 attorney general, who may apply to a district court to enforce 61 29 compliance. The court may order any or all of the following: 61 30 a. Injunctive relief restricting or prohibiting the offer 61 31 or sale of memorials, memorialization, opening and closing 61 32 services, scattering services, interment rights, or a 61 33 combination thereof. 61 34 b. Production of documents or records including but not 61 35 limited to books, accounts, papers, correspondence, memoranda, 62 1 purchase agreements, files, or other documents or records. 62 2 c. Such other relief as may be required. 62 3 2. A court order issued pursuant to subsection 1 is 62 4 effective until the person files the statement or report or 62 5 produces the documents requested, or obeys the subpoena. 62 6 Sec. 69. NEW SECTION. 523I.1306 PROSECUTION FOR 62 7 VIOLATIONS OF LAW – CIVIL PENALTIES. 62 8 1. A violation of this chapter or rules adopted or orders 62 9 issued under this chapter is a violation of section 714.16, 62 10 subsection 2, paragraph "a". The remedies and penalties 62 11 provided by section 714.16, including but not limited to 62 12 injunctive relief and penalties, apply to violations of this 62 13 chapter. 62 14 2. If the commissioner believes that grounds exist for the 62 15 criminal prosecution of persons subject to this chapter for 62 16 violations of this chapter or any other law of this state, the 62 17 commissioner may forward to the attorney general or the county 62 18 attorney the grounds for the belief, including all evidence in 62 19 the commissioner's possession, so that the attorney general or 62 20 the county attorney may proceed with the matter as deemed 62 21 appropriate. At the request of the attorney general, the 62 22 county attorney shall appear and prosecute the action when 62 23 brought in the county attorney's county. 62 24 3. A person who violates a provision of this chapter or 62 25 rules adopted or orders issued under this chapter may be 62 26 subject to civil penalties in addition to criminal penalties. 62 27 The commissioner may impose, assess, and collect a civil 62 28 penalty not exceeding ten thousand dollars for each violation. 62 29 For the purposes of computing the amount of each civil 62 30 penalty, each day of a continuing violation constitutes a 62 31 separate violation. All civil penalties collected pursuant to 62 32 this section shall be deposited in the general fund of the 62 33 state. 62 34 Sec. 70. NEW SECTION. 523I.1307 COOPERATION WITH OTHER 62 35 AGENCIES. 63 1 1. The commissioner may cooperate with any governmental 63 2 law enforcement or regulatory agency to encourage uniform 63 3 interpretation and administration of this chapter and 63 4 effective enforcement of this chapter and effective regulation 63 5 of the sale of memorials, memorialization, and cemeteries. 63 6 2. Cooperation with other agencies may include but is not 63 7 limited to: 63 8 a. Making a joint examination or investigation. 63 9 b. Holding a joint administrative hearing. 63 10 c. Filing and prosecuting a joint civil or administrative 63 11 proceeding. 63 12 d. Sharing and exchanging personnel. 63 13 e. Sharing and exchanging relevant information and 63 14 documents. 63 15 f. Formulating, in accordance with chapter 17A, rules or 63 16 proposed rules on matters such as statements of policy, 63 17 regulatory standards, guidelines, and interpretive opinions. 63 18 Sec. 71. NEW SECTION. 523I.1308 RULES, FORMS, AND 63 19 ORDERS. 63 20 1. Under chapter 17A, the commissioner may from time to 63 21 time make, amend, and rescind such rules, forms, and orders as 63 22 are necessary or appropriate for the protection of purchasers 63 23 and the public and to administer the provisions of this 63 24 chapter, its implementing rules, and orders issued under this 63 25 chapter. 63 26 2. A rule, form, or order shall not be made, amended, or 63 27 rescinded unless the commissioner finds that the action is 63 28 necessary or appropriate to protect purchasers and the public 63 29 and is consistent with the policies and provisions of this 63 30 chapter, its implementing rules, and orders issued under this 63 31 chapter. 63 32 3. A provision of this chapter imposing any liability does 63 33 not apply to an act done or omitted in good faith in 63 34 conformity with any rule, form, or order of the commissioner, 63 35 notwithstanding that the rule, form, or order may later be 64 1 amended or rescinded or be determined by judicial or other 64 2 authority to be invalid for any reason. 64 3 Sec. 72. NEW SECTION. 523I.1309 DATE OF FILING – 64 4 INTERPRETIVE OPINIONS. 64 5 1. A document is filed when it is received by the 64 6 commissioner. 64 7 2. Requests for interpretive opinions may be granted in 64 8 the commissioner's discretion. 64 9 Sec. 73. NEW SECTION. 523I.1310 RECEIVERSHIPS. 64 10 1. The commissioner shall notify the attorney general of 64 11 the potential need for establishment of a receivership if the 64 12 commissioner finds that a cemetery subject to this chapter 64 13 meets one or more of the following conditions: 64 14 a. Is insolvent. 64 15 b. Has utilized trust funds for personal or business 64 16 purposes in a manner inconsistent with this chapter. 64 17 c. The amount held in trust in a maintenance fund or care 64 18 fund is less than the amount required by this chapter. 64 19 2. The commissioner or attorney general may apply to the 64 20 district court in any county of the state for the 64 21 establishment of a receivership. Upon proof that any of the 64 22 conditions described in this section have occurred, the court 64 23 may grant a receivership. 64 24 Sec. 74. NEW SECTION. 523I.1311 INSURANCE DIVISION'S 64 25 ENFORCEMENT FUND. 64 26 A special revenue fund in the state treasury, to be known 64 27 as the insurance division's enforcement fund, is created under 64 28 the authority of the commissioner of insurance. The 64 29 commissioner shall allocate annually from the fees paid 64 30 pursuant to section 523I.1111, an amount not exceeding fifty 64 31 thousand dollars, for deposit to the insurance division's 64 32 enforcement fund. The moneys in the enforcement fund shall be 64 33 retained in the fund. The moneys are appropriated and, 64 34 subject to authorization by the commissioner, shall be used to 64 35 pay auditors, audit expenses, investigative expenses, the 65 1 expenses of consumer education, compliance, and education 65 2 programs for filers and other regulated persons, and 65 3 educational or compliance program materials, the expenses of a 65 4 toll-free telephone line for consumer complaints, and the 65 5 expenses of receiverships of perpetual care cemeteries 65 6 established under section 523I.1310. 65 7 Sec. 75. NEW SECTION. 523I.1312 VIOLATIONS OF LAW – 65 8 REFERRALS TO THE DEPARTMENT OF PUBLIC HEALTH. 65 9 If the commissioner discovers a violation of a provision of 65 10 this chapter or any other state law or rule concerning the 65 11 disposal or transportation of human remains, the commissioner 65 12 shall forward all evidence in the possession of the 65 13 commissioner concerning such a violation to the department of 65 14 public health for such proceedings as the department of public 65 15 health deems appropriate. 65 16 Sec. 76. Sections 359.37, 359.40, and 359.41, Code 2003, 65 17 are repealed. 65 18 Sec. 77. Chapters 523I, 566, and 566A, Code 2003, are 65 19 repealed. 65 20 EXPLANATION 65 21 This bill repeals Code chapter 523I concerning cemeteries, 65 22 Code chapter 566 concerning cemetery management, and Code 65 23 chapter 566A concerning cemetery regulation and creates a new 65 24 Code chapter 523I concerning cemeteries, cemetery regulation, 65 25 and administration and enforcement procedures relating to 65 26 cemeteries. 65 27 The bill contains a procedure to dedicate new cemeteries or 65 28 subdivisions of cemeteries with a public filing with the 65 29 insurance division. 65 30 The bill requires all persons currently operating as 65 31 cemeteries to form a corporation to own and operate the 65 32 cemetery property and prohibits unincorporated cemetery 65 33 associations. 65 34 The bill establishes requirements for recording ownership 65 35 of interment rights at each cemetery location rather than just 66 1 with the county recorder. The bill requires cemeteries to 66 2 maintain complete interment records that identify the owners 66 3 of all interment rights sold or transferred by the cemetery 66 4 corporation on or after July 1, 2004, and contain historical 66 5 information concerning any changes of ownership of interment 66 6 rights. The bill sets forth requirements for interment rights 66 7 agreements. 66 8 The bill sets forth requirements for lawn crypts and their 66 9 installation. 66 10 The bill requires a public filing with the insurance 66 11 division before the construction of new mausoleums and 66 12 columbariums. The bill sets forth procedures governing the 66 13 installation of memorials and memorialization by third 66 14 parties. 66 15 The bill requires cemetery corporations to make disclosures 66 16 to a buyer of interment rights when grave opening and closing 66 17 fees are not included in the agreement. The bill authorizes a 66 18 cemetery corporation to accept written instructions of a 66 19 decedent concerning interment, relocation, or disinterment of 66 20 remains. The bill contains provisions for making a 66 21 determination of who has the right to control interment, 66 22 relocation, or disinterment of remains. 66 23 The bill contains a procedure for the removal of remains 66 24 from a neglected cemetery. The bill provides a procedure for 66 25 reporting neglected cemeteries to the insurance division and 66 26 to the appropriate county board of supervisors. 66 27 The bill increases the penalty for disturbing an interment 66 28 site from a simple misdemeanor to an aggravated misdemeanor. 66 29 A simple misdemeanor is punishable by confinement for no more 66 30 than 30 days or a fine of at least $50 but not more than $500 66 31 or by both. An aggravated misdemeanor is punishable by 66 32 confinement for no more than two years and a fine of at least 66 33 $500 but not more than $5,000. 66 34 The bill requires a nonperpetual care cemetery to create a 66 35 maintenance fund to pay for the upkeep of the cemetery 67 1 property and to deposit at least $50 into the maintenance fund 67 2 for each sale. 67 3 The bill authorizes governmental subdivisions to commingle 67 4 care funds for the purposes of investment and administration. 67 5 The bill authorizes governmental subdivisions that operate 67 6 cemeteries to invest their maintenance and care funds in the 67 7 same manner as other cemetery corporations notwithstanding 67 8 Code section 12B.10. 67 9 The bill authorizes civil lawsuits brought by the insurance 67 10 division against a cemetery corporation that fails to use care 67 11 funds to maintain the cemetery property. 67 12 The bill defines certain acts committed in violation of 67 13 Code chapter 523I as fraudulent practices. 67 14 The bill provides for the establishment of a receivership 67 15 for a cemetery corporation under certain circumstances. 67 16 The bill provides for the creation of a special revenue 67 17 fund in the state treasury to be known as the insurance 67 18 division's enforcement fund by allocating filing fees in an 67 19 amount not exceeding $50,000. The moneys in the fund are 67 20 appropriated to the use of the insurance commissioner to pay 67 21 for auditors, investigative expenses, consumer education 67 22 expenses, a toll-free consumer complaint telephone line, and 67 23 receivership expenses of perpetual care cemeteries. 67 24 LSB 5208SV 80 67 25 av/gg/14
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