Senate File 2245
SENATE FILE
BY COMMITTEE ON COMMERCE
(SUCCESSOR TO SSB 3127)
Passed Senate, Date Passed House, Date
Vote: Ayes Nays Vote: Ayes Nays
Approved
A BILL FOR
1 An Act relating to cemeteries and cemetery regulation;
2 establishing requirements for interment rights agreements and
3 reporting; establishing and appropriating fees; and providing
4 administration and enforcement procedures and penalties.
5 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
6 TLSB 5208SV 80
7 av/gg/14
PAG LIN
1 1 Section 1. Section 6A.4, subsection 4, Code 2003, is
1 2 amended to read as follows:
1 3 4. CEMETERY ASSOCIATIONS CORPORATIONS. Upon any private
1 4 cemetery or cemetery association corporation 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. The association cemetery 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 the proper cemetery 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 through 359.41 359.39 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 14 359.41 359.39 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 CEMETERY ASSOCIATIONS CORPORATIONS. Burial
2 21 grounds, mausoleums, buildings and equipment owned and
2 22 operated by cemetery associations corporations 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 cemetery associations corporations 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 523I or
3 12 566A. 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 chapter or chapter 566A to 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