House File 763 - Introduced



                                       HOUSE FILE       
                                       BY  COMMITTEE ON COMMERCE,
                                           REGULATION AND LABOR

                                       (SUCCESSOR TO HSB 212)


    Passed House, Date                Passed Senate, Date             
    Vote:  Ayes        Nays           Vote:  Ayes        Nays         
                 Approved                            

                                      A BILL FOR

  1 An Act relating to cemeteries and cemetery regulation, providing
  2    administration and enforcement procedures, establishing
  3    requirements for interment rights agreements and reporting,
  4    establishing and appropriating fees, and providing penalties.
  5 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
  6 TLSB 1108HV 81
  7 av/gg/14

PAG LIN



  1  1    Section 1.  Section 331.325, subsections 2 and 3, Code
  1  2 2005, are amended to read as follows:
  1  3    2.  Each county board of supervisors may adopt an ordinance
  1  4 assuming jurisdiction and control of pioneer cemeteries in the
  1  5 county.  The board shall exercise the powers and duties of
  1  6 township trustees relating to the maintenance and repair of
  1  7 cemeteries in the county as provided in sections 359.28
  1  8 through 359.41 359.40 except that the board shall not certify
  1  9 a tax levy pursuant to section 359.30 or 359.33 and except
  1 10 that the maintenance and repair of all cemeteries under the
  1 11 jurisdiction of the county including pioneer cemeteries shall
  1 12 be paid from the county general fund.  The maintenance and
  1 13 improvement program for a pioneer cemetery may include
  1 14 restoration and management of native prairie grasses and
  1 15 wildflowers.
  1 16    3.  In lieu of management of the cemeteries, the board of
  1 17 supervisors may create, by ordinance, a cemetery commission to
  1 18 assume jurisdiction and management of the pioneer cemeteries
  1 19 in the county.  The ordinance shall delineate the number of
  1 20 commissioners, the appointing authority, the term of office,
  1 21 officers, employees, organizational matters, rules of
  1 22 procedure, compensation and expenses, and other matters deemed
  1 23 pertinent by the board.  The board may delegate any power and
  1 24 duties relating to cemeteries which may otherwise be exercised
  1 25 by township trustees pursuant to sections 359.28 through
  1 26 359.41 359.40 to the cemetery commission except the commission
  1 27 shall not certify a tax levy pursuant to section 359.30 or
  1 28 359.33 and except that the expenses of the cemetery commission
  1 29 shall be paid from the county general fund.
  1 30    Sec. 2.  Section 331.502, subsection 34, Code 2005, is
  1 31 amended to read as follows:
  1 32    34.  Serve as a trustee for funds of a cemetery association
  1 33 as provided in sections 566.12 and 566.13 section 523I.505.
  1 34    Sec. 3.  Section 523A.203, subsection 6, paragraph b, Code
  1 35 2005, is amended to read as follows:
  2  1    b.  Use any funds required to be held in trust under this
  2  2 chapter or chapter 566A to purchase an interest in any
  2  3 contract or agreement to which a seller is a party.
  2  4    Sec. 4.  Section 523A.501, Code 2005, is amended by adding
  2  5 the following new subsection:
  2  6    NEW SUBSECTION.  9.  This section does not apply to the
  2  7 commissioner when the commissioner is acting as a court=
  2  8 appointed receiver.  When acting as a court=appointed
  2  9 receiver, the commissioner and employees and agents of the
  2 10 insurance division may sell cemetery merchandise, funeral
  2 11 merchandise, funeral services, or a combination thereof when
  2 12 in the discretion of the commissioner such a sale will further
  2 13 the interests of the receivership or the interests of
  2 14 consumers.
  2 15    Sec. 5.  Section 523A.812, Code 2005, is amended to read as
  2 16 follows:
  2 17    523A.812  INSURANCE DIVISION REGULATORY FUND.
  2 18    The insurance division may authorize the creation of a
  2 19 special revenue fund in the state treasury, to be known as the
  2 20 insurance division regulatory fund.  The commissioner shall
  2 21 allocate annually from the fees paid pursuant to section
  2 22 523A.204, two dollars for each purchase agreement reported on
  2 23 an establishment permit holder's annual report for deposit to
  2 24 the regulatory fund.  The remainder of the fees collected
  2 25 pursuant to section 523A.204 shall be deposited into the
  2 26 general fund of the state.  The commissioner shall also
  2 27 allocate annually the audit fees paid pursuant to section
  2 28 523A.814 for deposit to the regulatory fund.  The moneys in
  2 29 the regulatory fund shall be retained in the fund.  The moneys
  2 30 are appropriated and, subject to authorization by the
  2 31 commissioner, may be used to pay auditors, audit expenses,
  2 32 investigative expenses, the expenses of mediation ordered by
  2 33 the commissioner, consumer education expenses, the expenses of
  2 34 a toll=free telephone line to receive consumer complaints, and
  2 35 the expenses of receiverships established under section
  3  1 523A.811.  An annual allocation to the regulatory fund shall
  3  2 not be imposed if the current balance of the fund exceeds two
  3  3 hundred thousand dollars.
  3  4    Sec. 6.  NEW SECTION.  523A.814  AUDIT FEE.
  3  5    In addition to the filing fee paid pursuant to section
  3  6 523A.204, subsection 5, an establishment filing an annual
  3  7 report shall pay an audit fee in the amount of five dollars
  3  8 for each purchase agreement subject to a filing fee that is
  3  9 sold between July 1, 2005, and December 31, 2007.
  3 10                          SUBCHAPTER 1
  3 11           SHORT TITLE, DEFINITIONS, AND APPLICABILITY
  3 12    Sec. 7.  NEW SECTION.  523I.101  SHORT TITLE.
  3 13    This chapter may be cited as the "Iowa Cemetery Act".
  3 14    Sec. 8.  NEW SECTION.  523I.102  DEFINITIONS.
  3 15    For purposes of this chapter, unless the context otherwise
  3 16 requires:
  3 17    1.  "Authorized to do business within this state" means a
  3 18 person licensed, registered, or subject to regulation by an
  3 19 agency of the state of Iowa or who has filed a consent to
  3 20 service of process with the commissioner for purposes of this
  3 21 chapter.
  3 22    2.  "Burial site" means any area, except a cemetery, that
  3 23 is used to inter or scatter remains.
  3 24    3.  "Capital gains" means appreciation in the value of
  3 25 trust assets for which a market value may be determined with
  3 26 reasonable certainty after deduction of investment losses,
  3 27 taxes, expenses incurred in the sale of trust assets, any
  3 28 costs of the operation of the trust, and any annual audit
  3 29 fees.
  3 30    4.  "Care fund" means funds set aside for the care of a
  3 31 perpetual care cemetery, including all of the following:
  3 32    a.  Money or real or personal property impressed with a
  3 33 trust by the terms of this chapter.
  3 34    b.  Contributions in the form of a gift, grant, or bequest.
  3 35    c.  Any accumulated income that the trustee of the fund or
  4  1 the cemetery allocates to principal.
  4  2    5.  "Casket" means a rigid container which is designed for
  4  3 the encasement of human remains and which is usually
  4  4 constructed of wood, metal, fiberglass, plastic, or like
  4  5 material and ornamented and lined with fabric.
  4  6    6.  "Cemetery" means any area that is or was open to use by
  4  7 the public in general or any segment thereof and is used or is
  4  8 intended to be used to inter or scatter remains.  "Cemetery"
  4  9 does not include the following:
  4 10    a.  A private burial site where use is restricted to
  4 11 members of a family, if the interment rights are conveyed
  4 12 without a monetary payment, fee, charge, or other valuable
  4 13 form of compensation or consideration.
  4 14    b.  A private burial site where use is restricted to a
  4 15 narrow segment of the public, if the interment rights are
  4 16 conveyed without a monetary payment, fee, charge, or other
  4 17 valuable form of compensation or consideration.
  4 18    c.  A pioneer cemetery.
  4 19    7.  "Columbarium" means a structure, room, or space in a
  4 20 mausoleum or other building containing niches or recesses for
  4 21 disposition of cremated remains.
  4 22    8.  "Commissioner" means the commissioner of insurance or
  4 23 the deputy administrator authorized in section 523A.801 to the
  4 24 extent the commissioner delegates functions to the deputy
  4 25 administrator.
  4 26    9.  "Common business enterprise" means a group of two or
  4 27 more business entities that share common ownership in excess
  4 28 of fifty percent.
  4 29    10.  "Disinterment" means to remove human remains from
  4 30 their place of final disposition.
  4 31    11.  "Doing business in this state" means issuing or
  4 32 performing wholly or in part any term of an interment rights
  4 33 agreement executed within the state of Iowa.
  4 34    12.  "Financial institution" means a state or federally
  4 35 insured bank, savings and loan association, credit union,
  5  1 trust department thereof, or a trust company that is
  5  2 authorized to do business within this state, that has been
  5  3 granted trust powers under the laws of this state or the
  5  4 United States, and that holds funds under a trust agreement.
  5  5 "Financial institution" does not include a cemetery or any
  5  6 person employed by or directly involved with a cemetery.
  5  7    13.  "Garden" means an area within a cemetery established
  5  8 by the cemetery as a subdivision for organizational purposes,
  5  9 not for sale purposes.
  5 10    14.  "Grave space" means a space of ground in a cemetery
  5 11 that is used or intended to be used for an in=ground burial.
  5 12    15.  "Gross selling price" means the aggregate amount a
  5 13 purchaser is obligated to pay for interment rights, exclusive
  5 14 of finance charges.
  5 15    16.  "Inactive cemetery" means a cemetery that is not
  5 16 operating on a regular basis, is not offering to sell or
  5 17 provide interments or other services reasonably necessary for
  5 18 interment, and does not provide or permit reasonable ingress
  5 19 or egress for the purposes of visiting interment spaces.
  5 20    17.  "Income" means the return in money or property derived
  5 21 from the use of trust principal after deduction of investment
  5 22 losses, taxes, and expenses incurred in the sale of trust
  5 23 assets, any cost of the operation of the trust, and any annual
  5 24 audit fees.  "Income" includes but is not limited to:
  5 25    a.  Rent of real or personal property, including sums
  5 26 received for cancellation or renewal of a lease and any
  5 27 royalties.
  5 28    b.  Interest on money lent, including sums received as
  5 29 consideration for prepayment of principal.
  5 30    c.  Cash dividends paid on corporate stock.
  5 31    d.  Interest paid on deposit funds or debt obligations.
  5 32    e.  Gain realized from the sale of trust assets.
  5 33    18.  "Insolvent" means the inability to pay debts as they
  5 34 become due in the usual course of business.
  5 35    19.  "Interment rights" means the rights to place remains
  6  1 in a specific location for use as a final resting place or
  6  2 memorial.
  6  3    20.  "Interment rights agreement" means an agreement to
  6  4 furnish memorials, memorialization, opening and closing
  6  5 services, or interment rights.
  6  6    21.  "Interment space" means a space used or intended to be
  6  7 used for the interment of remains including, but not limited
  6  8 to, a grave space, lawn crypt, mausoleum crypt, and niche.
  6  9    22.  "Lawn crypt" means a preplaced enclosed chamber, which
  6 10 is usually constructed of reinforced concrete and poured in
  6 11 place, or a precast unit installed in quantity, either side=
  6 12 by=side or at multiple depths, and covered by earth or sod.
  6 13    23.  "Lot" means an area in a cemetery containing more than
  6 14 one interment space which is uniquely identified by an
  6 15 alphabetical, numeric, or alphanumerical identification
  6 16 system.
  6 17    24.  "Maintenance fund" means funds set aside for the
  6 18 maintenance of a nonperpetual care cemetery, including all of
  6 19 the following:
  6 20    a.  Money or real or personal property impressed with a
  6 21 trust by the terms of this chapter.
  6 22    b.  Contributions in the form of a gift, grant or bequest.
  6 23    c.  Any accumulated income that the trustee of the fund or
  6 24 the cemetery allocates to principal.
  6 25    25.  "Mausoleum" means an aboveground structure designed
  6 26 for the entombment of human remains.
  6 27    26.  "Mausoleum crypt" means a chamber in a mausoleum of
  6 28 sufficient size to contain casketed human remains.
  6 29    27.  "Memorial" means any product, including any foundation
  6 30 other than a mausoleum or columbarium, used for identifying an
  6 31 interment space or for commemoration of the life, deeds, or
  6 32 career of a decedent including, but not limited to, a
  6 33 monument, marker, niche plate, urn garden plaque, crypt plate,
  6 34 cenotaph, marker bench, and vase.
  6 35    28.  "Memorial care" means any care provided or to be
  7  1 provided for the general maintenance of memorials including
  7  2 foundation repair or replacement, resetting or straightening
  7  3 tipped memorials, repairing or replacing inadvertently damaged
  7  4 memorials and any other care clearly specified in the purchase
  7  5 agreement.
  7  6    29.  "Memorial dealer" means any person offering or selling
  7  7 memorials retail to the public.
  7  8    30.  "Memorialization" means any permanent system designed
  7  9 to mark or record the name and other data pertaining to a
  7 10 decedent.
  7 11    31.  "Merchandise" means any personal property offered or
  7 12 sold for use in connection with the funeral, final
  7 13 disposition, memorialization, or interment of human remains,
  7 14 but which is exclusive of interment rights.
  7 15    32.  "Neglected cemetery" means a cemetery where there has
  7 16 been a failure to cut grass or weeds or care for graves,
  7 17 memorials or memorialization, walls, fences, driveways, and
  7 18 buildings, or for which proper records of interments have not
  7 19 been maintained.
  7 20    33.  "Niche" means a recess or space in a columbarium or
  7 21 mausoleum used for placement of cremated human remains.
  7 22    34.  "Opening and closing services" means one or more
  7 23 services necessarily or customarily provided in connection
  7 24 with the interment or entombment of human remains or a
  7 25 combination thereof.
  7 26    35.  "Operating a cemetery" means offering to sell or
  7 27 selling interment rights, or any service or merchandise
  7 28 necessarily or customarily provided for a funeral, or for the
  7 29 entombment or cremation of a dead human, or any combination
  7 30 thereof, including but not limited to opening and closing
  7 31 services, caskets, memorials, vaults, urns, and interment
  7 32 receptacles.
  7 33    36.  "Outer burial container" means any container which is
  7 34 designed for placement in the ground around a casket or an urn
  7 35 including, but not limited to, containers commonly known as
  8  1 burial vaults, urn vaults, grave boxes, grave liners, and lawn
  8  2 crypts.
  8  3    37.  "Perpetual care cemetery" includes all of the
  8  4 following:
  8  5    a.  Any cemetery that was organized or commenced business
  8  6 in this state on or after July 1, 1995.
  8  7    b.  Any cemetery that has established a care fund in
  8  8 compliance with section 523I.810.
  8  9    c.  Any cemetery that represents that it is a perpetual
  8 10 care cemetery in its interment rights agreement.
  8 11    d.  Any cemetery that represents in any other manner that
  8 12 the cemetery provides perpetual, permanent, or guaranteed
  8 13 care.
  8 14    38.  "Person" means an individual, firm, corporation,
  8 15 partnership, joint venture, limited liability company,
  8 16 association, trustee, government or governmental subdivision,
  8 17 agency, or other entity, or any combination thereof.
  8 18    39.  "Pioneer cemetery" means a cemetery where there were
  8 19 six or fewer burials in the preceding fifty years.
  8 20    40.  "Purchaser" means a person who purchases memorials,
  8 21 memorialization, opening and closing services, scattering
  8 22 services, interment rights, or a combination thereof.  A
  8 23 purchaser need not be a beneficiary of the interment rights
  8 24 agreement.
  8 25    41.  "Relative" means a great=grandparent, grandparent,
  8 26 father, mother, spouse, child, brother, sister, nephew, niece,
  8 27 uncle, aunt, first cousin, second cousin, third cousin, or
  8 28 grandchild connected to a person by either blood or affinity.
  8 29    42.  "Religious cemetery" means a cemetery that is owned,
  8 30 operated, or controlled by a recognized church or
  8 31 denomination, or a cemetery designated as such in the Official
  8 32 Catholic Directory on file with the insurance division or in a
  8 33 similar publication of a recognized church or denomination, or
  8 34 a cemetery that the commissioner determines is operating as a
  8 35 religious cemetery upon review of an application by the
  9  1 cemetery that includes a description of the cemetery's
  9  2 affiliation with a recognized church or denomination, the
  9  3 extent to which the affiliate organization is responsible for
  9  4 the financial and contractual obligations of the cemetery, or
  9  5 the provision of the Internal Revenue Code, if any, that
  9  6 exempts the cemetery from the payment of federal income tax.
  9  7    43.  "Relocation" means the act of taking remains from the
  9  8 place of interment or the place where the remains are being
  9  9 held to another designated place.
  9 10    44.  "Remains" means the body of a deceased human or a body
  9 11 part, or limb that has been removed from a living human,
  9 12 including a body, body part, or limb in any stage of
  9 13 decomposition, or cremated remains.
  9 14    45.  "Scattering services provider" means a person in the
  9 15 business of scattering human cremated remains.
  9 16    46.  "Seller" means a person doing business within this
  9 17 state, including a person doing business within this state who
  9 18 advertises, sells, promotes, or offers to furnish memorials,
  9 19 memorialization, opening and closing services, scattering
  9 20 services or interment rights, or a combination thereof,
  9 21 whether the transaction is completed or offered in person,
  9 22 through the mail, over the telephone, by the internet, or
  9 23 through any other means of commerce.
  9 24    47.  "Special care" means any care provided or to be
  9 25 provided that supplements or exceeds the requirements of this
  9 26 chapter in accordance with the specific directions of any
  9 27 donor of funds for such purposes.
  9 28    48.  "Undeveloped space" means a designated area or
  9 29 building within a cemetery that has been mapped and planned
  9 30 for future development but is not yet fully developed.
  9 31    Sec. 9.  NEW SECTION.  523I.103  APPLICABILITY OF CHAPTER.
  9 32    1.  This chapter applies to all of the following:
  9 33    a.  All cemeteries, except religious cemeteries that
  9 34 commenced business prior to July 1, 2005.
  9 35    b.  All persons advertising or offering memorials,
 10  1 memorialization, opening and closing services, scattering
 10  2 services at a cemetery, interment rights, or a combination
 10  3 thereof for sale.
 10  4    c.  Interments made in areas not dedicated as a cemetery,
 10  5 by a person other than the state archaeologist.
 10  6    2.  This chapter applies when a purchase agreement is
 10  7 executed within this state or an advertisement, promotion, or
 10  8 offer to furnish memorials, memorialization, opening and
 10  9 closing services, scattering services, interment rights, or a
 10 10 combination thereof is made or accepted within this state.  An
 10 11 offer to furnish memorials, memorialization, opening and
 10 12 closing services, scattering services, interment rights, or a
 10 13 combination thereof is made within this state, whether or not
 10 14 either party is then present in this state, when the offer
 10 15 originates from this state or is directed by the offeror to
 10 16 this state and received by the offeree in this state through
 10 17 the mail, over the telephone, by the internet, or through any
 10 18 other means of commerce.
 10 19    3.  If a foreign person does not have a registered agent or
 10 20 agents in the state of Iowa, doing business within this state
 10 21 shall constitute the person's appointment of the secretary of
 10 22 state of the state of Iowa to be its true and lawful attorney
 10 23 upon whom may be served all lawful process of original notice
 10 24 in actions or proceedings arising or growing out of any
 10 25 contract or tort.
 10 26                          SUBCHAPTER 2
 10 27                 ADMINISTRATION AND ENFORCEMENT
 10 28    Sec. 10.  NEW SECTION.  523I.201  ADMINISTRATION.
 10 29    1.  This chapter shall be administered by the commissioner.
 10 30 The deputy administrator appointed pursuant to section
 10 31 523A.801 shall be the principal operations officer responsible
 10 32 to the commissioner for the routine administration of this
 10 33 chapter and management of the administrative staff.  In the
 10 34 absence of the commissioner, whether because of vacancy in the
 10 35 office due to absence, physical disability, or other cause,
 11  1 the deputy administrator shall, for the time being, have and
 11  2 exercise the authority conferred upon the commissioner.  The
 11  3 commissioner may by order from time to time delegate to the
 11  4 deputy administrator any or all of the functions assigned to
 11  5 the commissioner in this chapter.  The deputy administrator
 11  6 shall employ officers, attorneys, accountants, and other
 11  7 employees as needed for administering this chapter.
 11  8    2.  It is unlawful for the commissioner or any
 11  9 administrative staff to use for personal benefit any
 11 10 information which is filed with or obtained by the
 11 11 commissioner and which is not made public.  This chapter does
 11 12 not authorize the commissioner or any staff member to disclose
 11 13 any such information except among themselves or to other
 11 14 cemetery and funeral administrators, regulatory authorities,
 11 15 or governmental agencies, or when necessary and appropriate in
 11 16 a proceeding or investigation under this chapter or as
 11 17 required by chapter 22.  This chapter neither creates nor
 11 18 derogates any privileges that exist at common law or otherwise
 11 19 when documentary or other evidence is sought under a subpoena
 11 20 directed to the commissioner or any administrative staff.
 11 21    Sec. 11.  NEW SECTION.  523I.202  INVESTIGATIONS AND
 11 22 SUBPOENAS.
 11 23    1.  The commissioner may, for the purpose of discovering a
 11 24 violation of this chapter, or implementing rules or orders
 11 25 issued under this chapter do any of the following:
 11 26    a.  Make such public or private investigations within or
 11 27 outside of this state as the commissioner deems necessary to
 11 28 determine whether any person has violated or is about to
 11 29 violate this chapter, or implementing rules or orders issued
 11 30 under this chapter, or to aid in the enforcement of this
 11 31 chapter, or in the prescribing of rules and forms under this
 11 32 chapter.
 11 33    b.  Require or permit any person to file a statement in
 11 34 writing, under oath or otherwise as the commissioner or
 11 35 attorney general determines, as to all the facts and
 12  1 circumstances concerning the matter being investigated.
 12  2    c.  Notwithstanding chapter 22, keep confidential the
 12  3 information obtained in the course of an investigation.
 12  4 However, if the commissioner determines that it is necessary
 12  5 or appropriate in the public interest or for the protection of
 12  6 the public, the commissioner may share information with other
 12  7 administrators, regulatory authorities, or governmental
 12  8 agencies, or may publish information concerning a violation of
 12  9 this chapter, or implementing rules or orders issued under
 12 10 this chapter.
 12 11    d.  Investigate a cemetery and examine the books, accounts,
 12 12 papers, correspondence, memoranda, purchase agreements, files,
 12 13 or other documents or records of the cemetery.
 12 14    e.  Administer oaths and affirmations, subpoena witnesses,
 12 15 compel their attendance, take evidence, and require the
 12 16 production of any books, accounts, papers, correspondence,
 12 17 memoranda, purchase agreements, files, or other documents or
 12 18 records which the commissioner deems relevant or material to
 12 19 any investigation or proceeding under this chapter and
 12 20 implement rules, all of which may be enforced under chapter
 12 21 17A.
 12 22    f.  Apply to the district court for an order requiring a
 12 23 person's appearance before the commissioner or attorney
 12 24 general, or a designee of either or both, in cases where the
 12 25 person has refused to obey a subpoena issued by the
 12 26 commissioner or attorney general.  The person may also be
 12 27 required to produce documentary evidence germane to the
 12 28 subject of the investigation.  Failure to obey a court order
 12 29 under this subsection constitutes contempt of court.
 12 30    2.  The commissioner may issue and bring an action in
 12 31 district court to enforce subpoenas within this state at the
 12 32 request of an agency or administrator of another state, if the
 12 33 activity constituting an alleged violation for which the
 12 34 information is sought would be a violation of this chapter had
 12 35 the activity occurred in this state.
 13  1    Sec. 12.  NEW SECTION.  523I.203  CEASE AND DESIST ORDERS
 13  2 == INJUNCTIONS.
 13  3    If it appears to the commissioner that a person has engaged
 13  4 or is about to engage in an act or practice constituting a
 13  5 violation of this chapter, or implementing rules or orders
 13  6 issued under this chapter, the commissioner or the attorney
 13  7 general may do any of the following:
 13  8    1.  Issue a summary order directed to the person that
 13  9 requires the person to cease and desist from engaging in such
 13 10 an act or practice.  A person may request a hearing within
 13 11 thirty days of issuance of the summary order.  If a hearing is
 13 12 not timely requested, the summary order shall become final by
 13 13 operation of law.  The order shall remain effective from the
 13 14 date of issuance until the date the order becomes final by
 13 15 operation of law or is overturned by a presiding officer
 13 16 following a request for hearing.  Section 17A.18A is
 13 17 inapplicable to summary cease and desist orders issued under
 13 18 this section.
 13 19    2.  Bring an action in the district court in any county of
 13 20 the state for an injunction to restrain a person subject to
 13 21 this chapter and any agents, employees, or associates of the
 13 22 person from engaging in conduct or practices deemed contrary
 13 23 to the public interest.  In any proceeding for an injunction,
 13 24 the commissioner or attorney general may apply to the court
 13 25 for a subpoena to require the appearance of a defendant and
 13 26 the defendant's agents, employees, or associates and for the
 13 27 production of any books, accounts, papers, correspondence,
 13 28 memoranda, purchase agreements, files, or other documents or
 13 29 records germane to the hearing upon the petition for an
 13 30 injunction.  Upon a proper showing, a permanent or temporary
 13 31 injunction, restraining order, or writ of mandamus shall be
 13 32 granted and a receiver may be appointed for the defendant or
 13 33 the defendant's assets.  The commissioner or attorney general
 13 34 shall not be required to post a bond.
 13 35    Sec. 13.  NEW SECTION.  523I.204  COURT ACTION FOR FAILURE
 14  1 TO COOPERATE.
 14  2    1.  If a person fails or refuses to file a statement or
 14  3 report or to produce any books, accounts, papers,
 14  4 correspondence, memoranda, purchase agreements, files, or
 14  5 other documents or records, or to obey a subpoena issued by
 14  6 the commissioner, the commissioner may refer the matter to the
 14  7 attorney general, who may apply to a district court to enforce
 14  8 compliance.  The court may order any or all of the following:
 14  9    a.  Injunctive relief restricting or prohibiting the offer
 14 10 or sale of memorials, memorialization, opening and closing
 14 11 services, scattering services, interment rights, or a
 14 12 combination thereof.
 14 13    b.  Production of documents or records including but not
 14 14 limited to books, accounts, papers, correspondence, memoranda,
 14 15 purchase agreements, files, or other documents or records.
 14 16    c.  Such other relief as may be required.
 14 17    2.  A court order issued pursuant to subsection 1 is
 14 18 effective until the person files the statement or report or
 14 19 produces the documents requested, or obeys the subpoena.
 14 20    Sec. 14.  NEW SECTION.  523I.205  PROSECUTION FOR
 14 21 VIOLATIONS OF LAW == CIVIL PENALTIES.
 14 22    1.  A violation of this chapter or rules adopted or orders
 14 23 issued under this chapter is a violation of section 714.16,
 14 24 subsection 2, paragraph "a".  The remedies and penalties
 14 25 provided by section 714.16, including but not limited to
 14 26 injunctive relief and penalties, apply to violations of this
 14 27 chapter.
 14 28    2.  If the commissioner believes that grounds exist for the
 14 29 criminal prosecution of persons subject to this chapter for
 14 30 violations of this chapter or any other law of this state, the
 14 31 commissioner may forward to the attorney general or the county
 14 32 attorney the grounds for the belief, including all evidence in
 14 33 the commissioner's possession, so that the attorney general or
 14 34 the county attorney may proceed with the matter as deemed
 14 35 appropriate.  At the request of the attorney general, the
 15  1 county attorney shall appear and prosecute the action when
 15  2 brought in the county attorney's county.
 15  3    3.  A person who violates a provision of this chapter or
 15  4 rules adopted or orders issued under this chapter may be
 15  5 subject to civil penalties in addition to criminal penalties.
 15  6 The commissioner may impose, assess, and collect a civil
 15  7 penalty not exceeding ten thousand dollars for each violation.
 15  8 For the purposes of computing the amount of each civil
 15  9 penalty, each day of a continuing violation constitutes a
 15 10 separate violation.  All civil penalties collected pursuant to
 15 11 this section shall be deposited in the general fund of the
 15 12 state.
 15 13    Sec. 15.  NEW SECTION.  523I.206  COOPERATION WITH OTHER
 15 14 AGENCIES.
 15 15    1.  The commissioner may cooperate with any governmental
 15 16 law enforcement or regulatory agency to encourage uniform
 15 17 interpretation and administration of this chapter and
 15 18 effective enforcement of this chapter and effective regulation
 15 19 of the sale of memorials, memorialization, and cemeteries.
 15 20    2.  Cooperation with other agencies may include but is not
 15 21 limited to:
 15 22    a.  Making a joint examination or investigation.
 15 23    b.  Holding a joint administrative hearing.
 15 24    c.  Filing and prosecuting a joint civil or administrative
 15 25 proceeding.
 15 26    d.  Sharing and exchanging personnel.
 15 27    e.  Sharing and exchanging relevant information and
 15 28 documents.
 15 29    f.  Formulating, in accordance with chapter 17A, rules or
 15 30 proposed rules on matters such as statements of policy,
 15 31 regulatory standards, guidelines, and interpretive opinions.
 15 32    Sec. 16.  NEW SECTION.  523I.207  RULES, FORMS, AND ORDERS.
 15 33    1.  Under chapter 17A, the commissioner may from time to
 15 34 time make, amend, and rescind such rules, forms, and orders as
 15 35 are necessary or appropriate for the protection of purchasers
 16  1 and the public and to administer the provisions of this
 16  2 chapter, its implementing rules, and orders issued under this
 16  3 chapter.
 16  4    2.  A rule, form, or order shall not be made, amended, or
 16  5 rescinded unless the commissioner finds that the action is
 16  6 necessary or appropriate to protect purchasers and the public
 16  7 and is consistent with the policies and provisions of this
 16  8 chapter, its implementing rules, and orders issued under this
 16  9 chapter.
 16 10    3.  A provision of this chapter imposing any liability does
 16 11 not apply to an act done or omitted in good faith in
 16 12 conformity with any rule, form, or order of the commissioner.
 16 13    Sec. 17.  NEW SECTION.  523I.208  DATE OF FILING ==
 16 14 INTERPRETIVE OPINIONS.
 16 15    1.  A document is filed when it is received by the
 16 16 commissioner.
 16 17    2.  Requests for interpretive opinions may be granted in
 16 18 the commissioner's discretion.
 16 19    Sec. 18.  NEW SECTION.  523I.209  MISLEADING FILINGS.
 16 20    It is unlawful for a person to make or cause to be made, in
 16 21 any document filed with the commissioner, or in any proceeding
 16 22 under this chapter, any statement of material fact which is,
 16 23 at the time and in the light of the circumstances under which
 16 24 it is made, false or misleading, or, in connection with such
 16 25 statement, to omit to state a material fact necessary in order
 16 26 to make the statements made, in the light of the circumstances
 16 27 under which they are made, not misleading.
 16 28    Sec. 19.  NEW SECTION.  523I.210  MISREPRESENTATIONS OF
 16 29 GOVERNMENT APPROVAL.
 16 30    It is unlawful for a seller under this chapter to represent
 16 31 or imply in any manner that the seller has been sponsored,
 16 32 recommended, or approved, or that the seller's abilities or
 16 33 qualifications have in any respect been passed upon by the
 16 34 commissioner.
 16 35    Sec. 20.  NEW SECTION.  523I.211  FRAUDULENT PRACTICES.
 17  1    A person who commits any of the following acts commits a
 17  2 fraudulent practice which is punishable as provided in chapter
 17  3 714:
 17  4    1.  Knowingly fails to comply with any requirement of this
 17  5 chapter.
 17  6    2.  Knowingly makes, causes to be made, or subscribes to a
 17  7 false statement or representation in a report or other
 17  8 document required under this chapter, or implementing rules or
 17  9 orders, or renders such a report or document misleading
 17 10 through the deliberate omission of information properly
 17 11 belonging in the report or document.
 17 12    3.  Conspires to defraud in connection with the sale of
 17 13 memorials, memorialization, opening and closing services,
 17 14 scattering services, interment rights, or a combination
 17 15 thereof under this chapter.
 17 16    4.  Fails to deposit funds under this chapter or withdraws
 17 17 funds in a manner inconsistent with this chapter.
 17 18    5.  Knowingly sells memorials, memorialization, opening and
 17 19 closing services, scattering services, interment rights, or a
 17 20 combination thereof without the permits required under this
 17 21 chapter.
 17 22    6.  Deliberately misrepresents or omits a material fact
 17 23 relative to the sale of memorials, memorialization, opening
 17 24 and closing services, scattering services, interment rights,
 17 25 or a combination thereof.
 17 26    Sec. 21.  NEW SECTION.  523I.212  RECEIVERSHIPS.
 17 27    1.  The commissioner shall notify the attorney general of
 17 28 the potential need for establishment of a receivership if the
 17 29 commissioner finds that a cemetery subject to this chapter
 17 30 meets one or more of the following conditions:
 17 31    a.  Is insolvent.
 17 32    b.  Has utilized trust funds for personal or business
 17 33 purposes in a manner inconsistent with this chapter.
 17 34    c.  The amount held in trust in a maintenance fund or care
 17 35 fund is less than the amount required by this chapter.
 18  1    2.  The commissioner or attorney general may apply to the
 18  2 district court in any county of the state for the
 18  3 establishment of a receivership.  Upon proof that any of the
 18  4 conditions described in this section have occurred, the court
 18  5 may grant a receivership.
 18  6    Sec. 22.  NEW SECTION.  523I.213  INSURANCE DIVISION'S
 18  7 ENFORCEMENT FUND.
 18  8    A special revenue fund in the state treasury, to be known
 18  9 as the insurance division's enforcement fund, is created under
 18 10 the authority of the commissioner.  The commissioner shall
 18 11 allocate annually from the audit fees paid pursuant to section
 18 12 523I.808, an amount not exceeding fifty thousand dollars, for
 18 13 deposit to the insurance division's enforcement fund.  The
 18 14 moneys in the enforcement fund shall be retained in the fund.
 18 15 The moneys are appropriated and, subject to authorization by
 18 16 the commissioner, shall be used to pay auditors, audit
 18 17 expenses, investigative expenses, the expenses of consumer
 18 18 education, compliance, and education programs for filers and
 18 19 other regulated persons, and educational or compliance program
 18 20 materials, the expenses of a toll=free telephone line for
 18 21 consumer complaints, and the expenses of receiverships of
 18 22 perpetual care cemeteries established under section 523I.212.
 18 23    Sec. 23.  NEW SECTION.  523I.214  VIOLATIONS OF LAW ==
 18 24 REFERRALS TO THE DEPARTMENT OF PUBLIC HEALTH.
 18 25    If the commissioner discovers a violation of a provision of
 18 26 this chapter or any other state law or rule concerning the
 18 27 disposal or transportation of human remains, the commissioner
 18 28 shall forward all evidence in the possession of the
 18 29 commissioner concerning such a violation to the department of
 18 30 public health for such proceedings as the department of public
 18 31 health deems appropriate.
 18 32                          SUBCHAPTER 3
 18 33                       CEMETERY MANAGEMENT
 18 34    Sec. 24.  NEW SECTION.  523I.301  DISCLOSURE REQUIREMENTS
 18 35 == PRICES AND FEES.
 19  1    1.  A cemetery shall disclose, prior to the sale of
 19  2 interment rights, whether opening and closing of the interment
 19  3 space is included in the purchase of the interment rights.  If
 19  4 opening and closing services are not included in the sale and
 19  5 the cemetery offers opening and closing services, the cemetery
 19  6 must disclose that the price for this service is subject to
 19  7 change and disclose the current prices for opening and closing
 19  8 services provided by the cemetery.
 19  9    2.  The cemetery shall fully disclose all fees required for
 19 10 interment, entombment, or inurnment of human remains.
 19 11    3.  A person owning interment rights may sell those rights
 19 12 to third parties.  The cemetery shall fully disclose, in the
 19 13 cemetery's rules, any requirements necessary to transfer title
 19 14 of interment rights to a third party.
 19 15    Sec. 25.  NEW SECTION.  523I.302  INSTALLATION OF OUTER
 19 16 BURIAL CONTAINERS.
 19 17    A cemetery shall provide services necessary for the
 19 18 installation of outer burial containers or other similar
 19 19 merchandise sold by the cemetery.  This section shall not
 19 20 require the cemetery to provide for opening and closing of
 19 21 interment or entombment space, unless an agreement executed by
 19 22 the cemetery expressly provides otherwise.
 19 23    Sec. 26.  NEW SECTION.  523I.303  ACCESS BY FUNERAL
 19 24 DIRECTORS.
 19 25    A cemetery shall not deny access to a licensed funeral
 19 26 director who is conducting funeral services or supervising the
 19 27 interment or disinterment of human remains.
 19 28    Sec. 27.  NEW SECTION.  523I.304  RULEMAKING AND
 19 29 ENFORCEMENT.
 19 30    1.  A cemetery may adopt, amend, and enforce rules for the
 19 31 use, care, control, management, restriction, and protection of
 19 32 the cemetery, as necessary for the proper conduct of the
 19 33 business of the cemetery, including, but not limited to, the
 19 34 use, care, and transfer of any interment space or right of
 19 35 interment.
 20  1    2.  A cemetery may restrict and limit the use of all
 20  2 property within the cemetery by rules that do, but are not
 20  3 limited to doing, all of the following:
 20  4    a.  Prohibit the placement of memorials or memorialization,
 20  5 buildings, or other types of structures within any portion of
 20  6 the cemetery.
 20  7    b.  Regulate the uniformity, class, and kind of memorials
 20  8 and memorialization and structures within the cemetery.
 20  9    c.  Regulate the scattering or placement of cremated
 20 10 remains within the cemetery.
 20 11    d.  Prohibit or regulate the placement of nonhuman remains
 20 12 within the cemetery.
 20 13    e.  Prohibit or regulate the introduction or care of trees,
 20 14 shrubs, and other types of plants within the cemetery.
 20 15    f.  Regulate the right of third parties to open, prepare
 20 16 for interment, and close interment spaces.
 20 17    g.  Prohibit interment in any part of the cemetery not
 20 18 designated as an interment space.
 20 19    h.  Prevent the use of space for any purpose inconsistent
 20 20 with the use of the property as a cemetery.
 20 21    3.  A cemetery shall not adopt or enforce a rule that
 20 22 prohibits interment because of the race, color, or national
 20 23 origin of a decedent.  A provision of a contract or a
 20 24 certificate of ownership or other instrument conveying
 20 25 interment rights that prohibits interment in a cemetery
 20 26 because of the race, color, or national origin of a decedent
 20 27 is void.
 20 28    4.  A cemetery's rules shall be plainly printed or
 20 29 typewritten and maintained for inspection in the office of the
 20 30 cemetery or, if the cemetery does not have an office, in
 20 31 another suitable place within the cemetery.  The cemetery's
 20 32 rules shall be provided to owners of interment spaces upon
 20 33 request.
 20 34    5.  A cemetery's rules shall specify the cemetery's
 20 35 obligations in the event that interment spaces, memorials, or
 21  1 memorialization are damaged or defaced by acts of vandalism.
 21  2 The rules may specify a multiyear restoration of an interment
 21  3 space, or a memorial or memorialization when the damage is
 21  4 extensive or when money available from the cemetery's trust
 21  5 fund is inadequate to complete repairs immediately.  The owner
 21  6 of an interment space, or a memorial or memorialization that
 21  7 has been damaged or defaced shall be notified by the cemetery
 21  8 by restricted certified mail at the owner's last known address
 21  9 within sixty days of the discovery of the damage or
 21 10 defacement.  The rules shall specify whether the owner is
 21 11 liable, in whole or in part, for the cost to repair or replace
 21 12 an interment space or a damaged or defaced memorial or
 21 13 memorialization.
 21 14    6.  The cemetery shall not approve any rule which
 21 15 unreasonably restricts competition, or which unreasonably
 21 16 increases the cost to the owner of interment rights in
 21 17 exercising these rights.
 21 18    Sec. 28.  NEW SECTION.  523I.305  MEMORIALS AND
 21 19 MEMORIALIZATION.
 21 20    1.  AUTHORIZATION.  A cemetery is entitled to determine
 21 21 whether a person requesting installation of a memorial is
 21 22 authorized to do so, to the extent that this can be determined
 21 23 from the records of the cemetery, as is consistent with the
 21 24 cemetery's rules.  The owner of an interment space or the
 21 25 owner's agent may authorize a memorial dealer or independent
 21 26 third party to perform all necessary work related to
 21 27 preparation and installation of a memorial.
 21 28    2.  CONFORMITY WITH CEMETERY RULES.  A person selling a
 21 29 memorial shall review the rules of the cemetery where the
 21 30 memorial is to be installed to ensure that the memorial will
 21 31 comply with those rules prior to ordering or manufacturing the
 21 32 memorial.
 21 33    3.  SPECIFICATIONS.  Upon request, a cemetery shall provide
 21 34 reasonable written specifications and instructions governing
 21 35 installation of memorials, which shall apply to all
 22  1 installations whether performed by the cemetery or another
 22  2 person.  The written specifications shall include provisions
 22  3 governing hours of installation or any other relevant
 22  4 administrative requirements of the cemetery.  A copy of these
 22  5 specifications and instructions shall be provided upon
 22  6 request, without charge, to the owner of the interment space,
 22  7 next of kin, or a personal representative or agent of the
 22  8 owner, including the person installing the memorial.  The
 22  9 person installing the memorial shall comply with the
 22 10 cemetery's written installation specifications and
 22 11 instructions.  A cemetery shall not adopt or enforce any rule
 22 12 prohibiting the installation of a memorial by a memorial
 22 13 dealer or independent third party, unless the rule is adopted
 22 14 and enforced uniformly for all memorials installed in the
 22 15 cemetery.
 22 16    4.  WRITTEN NOTICE.  A memorial dealer or independent third
 22 17 party shall provide the cemetery with at least seven business
 22 18 days' prior written notice of intent to install a memorial at
 22 19 the cemetery, or such lesser notice as the cemetery deems
 22 20 acceptable.  The notice shall contain the full name, address,
 22 21 and relationship of the memorial's purchaser to the person
 22 22 interred in the interment space or the owner of the interment
 22 23 space, if different.  The notice shall also contain the color,
 22 24 type, and size of the memorial, the material, the inscription,
 22 25 and the full name and interment date of the person interred in
 22 26 the interment space.
 22 27    5.  PREPARATION AND INSTALLATION.
 22 28    a.  A person installing a memorial shall be responsible to
 22 29 the cemetery for any damage caused to the cemetery grounds,
 22 30 including roadways, other than normal use during installation
 22 31 of the memorial.
 22 32    b.  Installation work shall cease during any nearby funeral
 22 33 procession or committal service.
 22 34    c.  Installation work shall be done during the cemetery's
 22 35 normal weekday hours or at such other times as may be arranged
 23  1 with the cemetery.
 23  2    d.  A memorial must comply with the cemetery's rules.  In
 23  3 the event of noncompliance, the person installing a memorial
 23  4 is responsible for removal of the memorial and shall pay any
 23  5 reasonable expenses incurred by the cemetery in connection
 23  6 with the memorial's removal.
 23  7    e.  The cemetery shall, without charge, provide information
 23  8 as described on the cemetery's map or plat necessary to locate
 23  9 the place where a memorial is to be installed and any other
 23 10 essential information the person installing the memorial needs
 23 11 to locate the proper interment space.
 23 12    f.  A person installing a memorial shall follow the
 23 13 cemetery's instructions regarding the positioning of the
 23 14 memorial.
 23 15    g.  During the excavation, all sod and dirt shall be
 23 16 carefully removed with no sod or dirt left on the interment
 23 17 space except the amount needed to fill the space between the
 23 18 memorial and the adjacent lawn.
 23 19    h.  A person installing a memorial shall carefully fill in
 23 20 any areas around the memorial with topsoil or sand, in
 23 21 accordance with the cemetery's written instructions.
 23 22    i.  A person installing a memorial shall remove all
 23 23 equipment and any debris which has accumulated during
 23 24 installation of the memorial.
 23 25    j.  A person installing a memorial shall check to see if
 23 26 any adjacent memorials have become soiled or dirty during
 23 27 installation of the memorial and, if so, clean the adjacent
 23 28 memorials.
 23 29    k.  If the person who is installing a memorial damages any
 23 30 cemetery property, the person shall notify the cemetery
 23 31 immediately.  The person installing the memorial shall then
 23 32 repair the damage as soon as possible, upon approval by the
 23 33 cemetery.  The cemetery may require a person installing a
 23 34 memorial to provide current proof of workers' compensation
 23 35 insurance as required by state law and current proof of
 24  1 liability insurance, sufficient to indemnify the cemetery
 24  2 against claims resulting from installation of the memorial.
 24  3 Proof of liability insurance in an amount of one million
 24  4 dollars or more shall preclude the cemetery from requiring a
 24  5 person installing a memorial to obtain a performance bond.
 24  6    l.  If a cemetery has an office, a person installing a
 24  7 memorial shall immediately leave notice at the cemetery office
 24  8 when the memorial has been installed and all work related to
 24  9 the installation is complete.
 24 10    6.  INSPECTION.  A cemetery may inspect the installation
 24 11 site of a memorial at any time.  If the cemetery determines
 24 12 that cemetery rules are not being followed during the
 24 13 installation, the cemetery may order the installation to stop
 24 14 until the infraction is corrected.  The cemetery shall provide
 24 15 written notice to the installer as soon as possible if the
 24 16 cemetery believes that any of the following have occurred:
 24 17    a.  The memorial has not been installed correctly.
 24 18    b.  The person installing the memorial has damaged property
 24 19 at the cemetery.
 24 20    c.  Other cemetery requirements for installation have not
 24 21 been met, such as removal of debris or equipment.
 24 22    7.  LOCATION AND SERVICE CHARGE.  A cemetery may charge a
 24 23 reasonable service charge for allowing the installation of a
 24 24 memorial purchased or obtained from and installed by a person
 24 25 other than the cemetery or its agents.  This service charge
 24 26 shall be based on the cemetery's actual labor costs, including
 24 27 fringe benefits, of those employees whose normal duty is to
 24 28 inspect the installation of memorials, in accordance with
 24 29 generally accepted accounting practices.  General
 24 30 administrative and overhead costs and any other functions not
 24 31 related to actual inspection time shall be excluded from the
 24 32 service charge.
 24 33    8.  FAULTY INSTALLATION.  If a memorial sinks, tilts, or
 24 34 becomes misaligned within twelve months of its installation
 24 35 and the cemetery believes the cause is faulty installation,
 25  1 the cemetery shall notify the person who installed the
 25  2 memorial in writing and the person who installed the memorial
 25  3 shall be responsible to correct the damage, unless the damage
 25  4 is caused by inadequate written specifications and
 25  5 instructions from the cemetery or acts of the cemetery and its
 25  6 agents or employees, including but not limited to running a
 25  7 backhoe over the memorial, carrying a vault or other heavy
 25  8 equipment over the memorial, or opening or closing an
 25  9 interment space adjacent to the memorial.
 25 10    9.  PERPETUAL CARE.  A cemetery may require contributions
 25 11 from the purchaser of a memorial for perpetual care, if a
 25 12 perpetual care fund deposit is uniformly charged on every
 25 13 memorial installed in the cemetery.
 25 14    Sec. 29.  NEW SECTION.  523I.306  COMMISSION OR BONUS
 25 15 UNLAWFUL.
 25 16    It shall be unlawful for any organization subject to the
 25 17 provisions of this chapter to pay or offer to pay to, or for
 25 18 any person, firm, or corporation to receive directly or
 25 19 indirectly a commission or bonus or rebate or other thing of
 25 20 value, for or in connection with the sale of any interment
 25 21 space, lot, or part thereof, in any cemetery.  The provisions
 25 22 of this section shall not apply to a person regularly employed
 25 23 and supervised by such organization or to a person, firm,
 25 24 corporation, or other entity licensed under chapter 523A that
 25 25 contracts with the cemetery to sell interment spaces or lots.
 25 26 The conduct of any person, firm, corporation, or other entity
 25 27 described in this section is the direct responsibility of the
 25 28 cemetery.
 25 29    Sec. 30.  NEW SECTION.  523I.307  DISCRIMINATION
 25 30 PROHIBITED.
 25 31    It shall be unlawful for any organization subject to the
 25 32 provisions of this chapter to deny the privilege of interment
 25 33 of the remains of any deceased person in any cemetery solely
 25 34 because of the race, color, or national origin of such
 25 35 deceased person.  Any contract, agreement, deed, covenant,
 26  1 restriction, or charter provision at any time entered into, or
 26  2 bylaw, rule, or regulation adopted or put in force, either
 26  3 subsequent or prior to July 4, 1953, authorizing, permitting,
 26  4 or requiring any organization subject to the provisions of
 26  5 this chapter to deny such privilege of interment because of
 26  6 race, color, or national origin of such deceased person is
 26  7 hereby declared to be null and void and in conflict with the
 26  8 public policy of this state.  An organization subject to the
 26  9 provisions of this chapter or any director, officer, agent,
 26 10 employee, or trustee thereof, shall not be liable for damages
 26 11 or other relief, or be subjected to any action in any court of
 26 12 competent jurisdiction for refusing to commit any act unlawful
 26 13 under this chapter.
 26 14    Sec. 31.  NEW SECTION.  523I.308  SPECULATION PROHIBITED.
 26 15    A cemetery or any person representing a cemetery in a sales
 26 16 capacity shall not advertise or represent, in connection with
 26 17 the sale or attempted sale of any interment space, that the
 26 18 same is or will be a desirable speculative investment for
 26 19 resale purposes.
 26 20    Sec. 32.  NEW SECTION.  523I.309  INTERMENT, RELOCATION, OR
 26 21 DISINTERMENT OF REMAINS.
 26 22    1.  Any available member of the following classes of
 26 23 persons, in the priority listed, shall have the right to
 26 24 control the interment, relocation, or disinterment of a
 26 25 decedent's remains within or from a cemetery:
 26 26    a.  The attorney in fact of the decedent pursuant to a
 26 27 durable power of attorney for health care.
 26 28    b.  The surviving spouse of the decedent.
 26 29    c.  The decedent's surviving adult children.  If there is
 26 30 more than one surviving adult child, any adult child who can
 26 31 confirm, in writing, that all other adult children have been
 26 32 notified of the proposed interment, relocation, or
 26 33 disinterment may authorize the interment, relocation, or
 26 34 disinterment, unless the cemetery receives an objection to
 26 35 such action from another adult child of the decedent.
 27  1    d.  A surviving parent of the decedent.
 27  2    e.  A surviving adult sibling of the decedent.
 27  3    f.  A surviving grandparent of the decedent.
 27  4    g.  The legal guardian of the decedent at the time of the
 27  5 decedent's death.
 27  6    2.  A person who represents that the person knows the
 27  7 identity of a decedent and, in order to procure the interment,
 27  8 relocation, or disinterment of the decedent's remains, signs
 27  9 an order or statement, other than a death certificate, that
 27 10 warrants the identity of the decedent is liable for all
 27 11 damages that result, directly or indirectly, from that
 27 12 representation.
 27 13    3.  A person may provide written directions for the
 27 14 interment, relocation, or disinterment of the person's own
 27 15 remains in a prepaid funeral or cemetery contract, or written
 27 16 instrument signed and acknowledged by the person.  The
 27 17 directions may govern the inscription to be placed on a grave
 27 18 marker attached to any interment space in which the decedent
 27 19 had the right of interment at the time of death and in which
 27 20 interment space the decedent is subsequently interred.  The
 27 21 directions may be modified or revoked only by a subsequent
 27 22 writing signed and acknowledged by the person.  A person other
 27 23 than a decedent who is entitled to control the interment,
 27 24 relocation, or disinterment of a decedent's remains under this
 27 25 section shall faithfully carry out the directions of the
 27 26 decedent to the extent that the decedent's estate or the
 27 27 person controlling the interment, relocation, or disinterment
 27 28 is financially able to do so.
 27 29    4.  A cemetery shall not be liable for carrying out the
 27 30 written directions of a decedent or the directions of any
 27 31 person entitled to control the interment, relocation, or
 27 32 disinterment of the decedent's remains.
 27 33    5.  In the event of a dispute concerning the right to
 27 34 control the interment, relocation, or disinterment of a
 27 35 decedent's remains, the dispute may be resolved by a court of
 28  1 competent jurisdiction.  A cemetery shall not be liable for
 28  2 refusing to accept the decedent's remains, relocate or
 28  3 disinter, inter or otherwise dispose of the decedent's
 28  4 remains, until the cemetery receives a court order or other
 28  5 suitable confirmation that the dispute has been resolved or
 28  6 settled.
 28  7    6.  a.  If good cause exists to relocate or disinter
 28  8 remains interred in a cemetery, the remains may be removed
 28  9 from the cemetery pursuant to a disinterment permit as
 28 10 required under section 144.34, with the written consent of the
 28 11 cemetery, the current interment rights owner and the person
 28 12 entitled by this section to control the interment, relocation,
 28 13 or disinterment of the decedent's remains.
 28 14    b.  If the consent required by this subsection cannot be
 28 15 obtained, the remains may be relocated by permission of the
 28 16 district court of the county in which the cemetery is located.
 28 17 Before the date of application to the court for permission to
 28 18 relocate remains under this subsection, notice must be given
 28 19 to the cemetery in which the remains are interred, each person
 28 20 whose consent is required for relocation of the remains under
 28 21 subsection 1, and any other person that the court requires to
 28 22 be served.
 28 23    c.  For the purposes of this subsection, personal notice
 28 24 must be given not later than the eleventh day before the date
 28 25 of application to the court for permission to relocate or
 28 26 disinter the remains, or notice by certified mail or
 28 27 restricted certified mail must be given not later than the
 28 28 sixteenth day before the date of application.
 28 29    d.  This subsection does not apply to the removal of
 28 30 remains from one interment space to another interment space in
 28 31 the same cemetery to correct an error, or relocation of the
 28 32 remains by the cemetery from an interment space for which the
 28 33 purchase price is past due and unpaid, to another suitable
 28 34 interment space.
 28 35    7.  A person who removes remains from a cemetery shall keep
 29  1 a record of the removal, and provide a copy to the cemetery,
 29  2 that includes all of the following:
 29  3    a.  The date the remains are removed.
 29  4    b.  The name of the decedent and age at death if those
 29  5 facts can be conveniently obtained.
 29  6    c.  The place to which the remains are removed.
 29  7    d.  The name of the cemetery and the location of the
 29  8 interment space from which the remains are removed.
 29  9    8.  A cemetery may disinter and relocate remains interred
 29 10 in the cemetery for the purpose of correcting an error made by
 29 11 the cemetery after obtaining a disinterment permit as required
 29 12 by section 144.34.  The cemetery shall provide written notice
 29 13 describing the error to the commissioner and to the person who
 29 14 has the right to control the interment, relocation, or
 29 15 disinterment of the remains erroneously interred, by
 29 16 restricted certified mail at the person's last known address
 29 17 and sixty days prior to the disinterment.  The notice shall
 29 18 include the location where the disinterment will occur and the
 29 19 location of the new interment space.  A cemetery is not
 29 20 civilly or criminally liable for an erroneously made interment
 29 21 that is corrected in compliance with this subsection unless
 29 22 the error was the result of gross negligence or intentional
 29 23 misconduct.
 29 24    9.  Relocations and disinterments of human remains shall be
 29 25 done in compliance with sections 144.32 and 144.34.
 29 26    Sec. 33.  NEW SECTION.  523I.310  SALE OF INTERMENT RIGHTS.
 29 27    1.  For sales or transfers of interment rights made on or
 29 28 after July 1, 2005, a cemetery shall issue a certificate of
 29 29 interment rights or other instrument evidencing the conveyance
 29 30 of exclusive rights of interment upon payment in full of the
 29 31 purchase price.
 29 32    2.  The interment rights in an interment space that is
 29 33 conveyed by a certificate of ownership or other instrument
 29 34 shall not be divided without the consent of the cemetery.
 29 35    3.  A conveyance of exclusive rights of interment shall be
 30  1 filed and recorded in the cemetery office.  Any transfer of
 30  2 the ownership of interment rights shall be filed and recorded
 30  3 in the cemetery office.  The cemetery may charge a reasonable
 30  4 recording fee to record the transfer of interment rights.
 30  5    Sec. 34.  NEW SECTION.  523I.311  RECORDS OF INTERMENT
 30  6 RIGHTS AND INTERMENT.
 30  7    1.  For sales or transfers of interment rights made on or
 30  8 after July 1, 2005, a cemetery shall keep complete records
 30  9 identifying the owners of all interment rights sold by the
 30 10 cemetery and historical information regarding any transfers of
 30 11 ownership.  The records shall include all of the following:
 30 12    a.  The name and last known address of each owner or
 30 13 previous owner of interment rights.
 30 14    b.  The date of each purchase or transfer of interment
 30 15 rights.
 30 16    c.  A unique numeric or alphanumeric identifier that
 30 17 identifies the location of each interment space sold by the
 30 18 cemetery.
 30 19    2.  For interments made on or after July 1, 2005, a
 30 20 cemetery shall keep a record of each interment in a cemetery.
 30 21 The records shall include all of the following:
 30 22    a.  The date the remains are interred.
 30 23    b.  The name, date of birth, and date of death of the
 30 24 decedent interred, if those facts can be conveniently
 30 25 obtained.
 30 26    c.  A unique numeric or alphanumeric identifier that
 30 27 identifies the location of the interment space where the
 30 28 remains are interred.
 30 29    Sec. 35.  NEW SECTION.  523I.312  DISCLOSURE REQUIREMENTS
 30 30 == INTERMENT AGREEMENTS.
 30 31    1.  Each nonperpetual care cemetery shall have printed or
 30 32 stamped at the head of all of its contracts, deeds,
 30 33 statements, letterheads, and advertising material, the legend:
 30 34 "This is a nonperpetual care cemetery", and shall not sell any
 30 35 lot or interment space in the cemetery unless the purchaser of
 31  1 the interment space is informed that the cemetery is a
 31  2 nonperpetual care cemetery.
 31  3    2.  An agreement for interment rights under this chapter
 31  4 shall be written in clear, understandable language and do all
 31  5 of the following:
 31  6    a.  Identify the seller and purchaser.
 31  7    b.  Identify the salesperson.
 31  8    c.  Specify the interment rights to be provided and the
 31  9 cost of each item.
 31 10    d.  State clearly the conditions on which substitution will
 31 11 be allowed.
 31 12    e.  Set forth the total purchase price and the terms under
 31 13 which it is to be paid.
 31 14    f.  State clearly whether the agreement is revocable or
 31 15 irrevocable, and if revocable, which parties have the
 31 16 authority to revoke the agreement.
 31 17    g.  State the amount or percentage of money to be placed in
 31 18 the cemetery's care or maintenance fund.
 31 19    h.  If the cemetery has a care fund, set forth an
 31 20 explanation that the care fund is an irrevocable trust, that
 31 21 deposits cannot be withdrawn even in the event of
 31 22 cancellation, and that the trust's income shall be used by the
 31 23 cemetery for its care.
 31 24    i.  Set forth an explanation of any fees or expenses that
 31 25 may be charged.
 31 26    j.  Set forth an explanation of whether amounts for
 31 27 perpetual care will be deposited in trust upon payment in full
 31 28 or on an allocable basis as payments are made.
 31 29    k.  Set forth an explanation of whether initial payments on
 31 30 agreements for multiple items of funeral and cemetery
 31 31 merchandise or services, or both, will be allocated first to
 31 32 the purchase of an interment space.  If such an allocation is
 31 33 to be made, the agreement shall provide for the immediate
 31 34 transfer of such interment rights upon payment in full and
 31 35 prominently state that any applicable trust deposits under
 32  1 chapter 523A will not be made until the cemetery has received
 32  2 payment in full for the interment rights.  The transfer of an
 32  3 undeveloped interment space may be deferred until the
 32  4 interment space is ready for interment.
 32  5    l.  If the transfer of an undeveloped interment space will
 32  6 be deferred until the interment space is ready for interment
 32  7 as permitted in paragraph "k", the agreement shall provide for
 32  8 some form of written acknowledgement upon payment in full,
 32  9 specify a reasonable time period for development of the
 32 10 interment space, describe what happens in the event of a death
 32 11 prior to development of the interment space, and provide for
 32 12 the immediate transfer of the interment rights when
 32 13 development of the interment space is complete.
 32 14    m.  Specify the purchaser's right to cancel and the damages
 32 15 payable for cancellation, if any.
 32 16    n.  State the name and address of the commissioner.
 32 17    Sec. 36.  NEW SECTION.  523I.313  NEW CEMETERIES AND
 32 18 GARDENS AND CEMETERY REGISTRY.
 32 19    1.  A person that dedicates property for a new cemetery on
 32 20 or after July 1, 2005, and a cemetery that dedicates an
 32 21 additional garden on or after July 1, 2005, shall:
 32 22    a.  In the case of land, survey and subdivide the property
 32 23 into gardens with descriptive names or numbers and make a map
 32 24 or plat of the cemetery or garden.
 32 25    b.  In the case of a mausoleum or a columbarium, make a map
 32 26 or plat of the property delineating sections or other
 32 27 divisions with descriptive names and numbers.
 32 28    c.  File the map or plat with the commissioner, including a
 32 29 written certificate or declaration of dedication of the
 32 30 property delineated by the map or plat, dedicating the
 32 31 property for cemetery purposes.
 32 32    2.  A map or plat and a certificate or declaration of
 32 33 dedication that is filed pursuant to this section dedicates
 32 34 the property for cemetery purposes and constitutes
 32 35 constructive notice of that dedication.
 33  1    3.  The commissioner shall maintain a registry of perpetual
 33  2 care and nonperpetual care cemeteries, to the extent that
 33  3 information is available.  A cemetery selling interment rights
 33  4 on or after July 1, 2005, shall file a written notice with the
 33  5 commissioner that includes the legal description of the
 33  6 property with boundary lines of the land, the name of the
 33  7 cemetery, the status of the cemetery as either perpetual care
 33  8 or nonperpetual care, the status of the cemetery as either
 33  9 religious or nonreligious, and the cemetery's ownership in a
 33 10 form approved by the commissioner.  A cemetery shall notify
 33 11 the commissioner of any changes in this information within
 33 12 sixty days of the change.
 33 13    Sec. 37.  NEW SECTION.  523I.314  NEW CONSTRUCTION.
 33 14    1.  A person shall not offer to sell interment rights in a
 33 15 mausoleum or columbarium that will be built or completed in
 33 16 the future unless the person has notified the commissioner of
 33 17 the offer to sell on a form prescribed by the commissioner.
 33 18    2.  The notice of an offer to sell interment rights in such
 33 19 a mausoleum or columbarium shall include the following
 33 20 information:
 33 21    a.  A description of the new facility or the proposed
 33 22 expansion, including a description of the interment rights to
 33 23 be offered to prospective purchasers.
 33 24    b.  A statement of the financial resources available for
 33 25 the project.
 33 26    c.  A copy of the proposed interment rights agreement to be
 33 27 used, which shall include the following:
 33 28    (1)  That purchase payments will be held in trust in
 33 29 accordance with the requirements of chapter 523A until
 33 30 construction of the mausoleum or columbarium is complete.
 33 31    (2)  That the purchaser may request a refund of the
 33 32 purchase amount, if construction does not begin within five
 33 33 years of the purchaser's first payment.
 33 34    (3)  That the new facility will operate as a perpetual care
 33 35 cemetery in compliance with this chapter, even if the facility
 34  1 is located at a nonperpetual care cemetery.
 34  2    (4)  That the purchaser will receive an ownership
 34  3 certificate upon payment in full or, if later, when
 34  4 construction is complete.
 34  5    3.  Unless financing has been secured that is adequate in
 34  6 amount and terms to complete the facility proposed, new
 34  7 construction of a mausoleum or columbarium shall not begin
 34  8 until the notice required by this section has been approved by
 34  9 the commissioner.
 34 10    Sec. 38.  NEW SECTION.  523I.315  UNPAID CARE ASSESSMENTS
 34 11 AND UNOCCUPIED INTERMENT SPACES.
 34 12    1.  FORECLOSURE == UNPAID ASSESSMENTS.  Unpaid care
 34 13 assessments for an unoccupied interment space not under
 34 14 perpetual care shall create a lien by the cemetery against the
 34 15 applicable interment space.  The cemetery may, following
 34 16 notice, foreclose on the interment space if the amount of the
 34 17 lien exceeds the amount paid for the interment space.  If the
 34 18 lien is not paid within one year from the date that notice of
 34 19 foreclosure is served on the owner of record or the owner of
 34 20 record's heirs, the ownership in or right to the unoccupied
 34 21 interment space shall revert to the cemetery that owns the
 34 22 cemetery in which the unoccupied interment space is located.
 34 23    2.  ABANDONMENT == QUIET TITLE ACTION.  A cemetery may file
 34 24 an action to quiet title to determine whether an interment
 34 25 space has been abandoned if the interment space is unoccupied
 34 26 and has not been occupied in the preceding seventy=five years.
 34 27 An action to quiet title shall commence when the cemetery
 34 28 serves notice on the owner of record or the owner of record's
 34 29 heirs declaring that the interment space is considered to be
 34 30 abandoned.  If the owner of record or the owner of record's
 34 31 heirs do not respond within three years from the date that
 34 32 notice is served, the abandonment is considered to be
 34 33 complete.  The ownership in or right to an abandoned interment
 34 34 space shall revert to the cemetery in which the abandoned
 34 35 interment space is located and the cemetery may sell and
 35  1 convey title to the interment space.
 35  2    3.  SERVICE OF NOTICE.  Notice under this section shall be
 35  3 served personally on the owner of record or the owner of
 35  4 record's heirs, or may be served by mailing notice by
 35  5 certified mail to the owner of record or to the owner of
 35  6 record's heirs at the last known address.  If the address of
 35  7 the owner of record or the owner of record's heirs cannot be
 35  8 ascertained, notice of abandonment shall be given by one
 35  9 publication of the notice in the official newspaper of the
 35 10 county in which the cemetery is located.
 35 11    Sec. 39.  NEW SECTION.  523I.316  PROTECTION OF CEMETERIES
 35 12 AND BURIAL SITES.
 35 13    1.  EXISTENCE OF CEMETERY OR BURIAL SITE == NOTIFICATION.
 35 14 If a governmental subdivision is notified of the existence of
 35 15 a cemetery, or a marked burial site that is not located in a
 35 16 dedicated cemetery, within its jurisdiction and the cemetery
 35 17 or burial site is not otherwise provided for under this
 35 18 chapter, the governmental subdivision shall, as soon as is
 35 19 practicable, notify the owner of the land upon which the
 35 20 cemetery or burial site is located of the cemetery's or burial
 35 21 site's existence and location.  The notification shall include
 35 22 an explanation of the provisions of this section.  If there is
 35 23 a basis to believe that interment may have occurred more than
 35 24 one hundred fifty years earlier, the governmental subdivision
 35 25 shall also notify the state archaeologist.
 35 26    2.  DISTURBANCE OF INTERMENT SPACES == PENALTY.  A person
 35 27 who knowingly and without authorization damages, defaces,
 35 28 destroys, or otherwise disturbs an interment space commits
 35 29 criminal mischief in the third degree.  Criminal mischief in
 35 30 the third degree is an aggravated misdemeanor.
 35 31    3.  DUTY TO PRESERVE AND PROTECT.  A governmental
 35 32 subdivision having a cemetery, or a burial site that is not
 35 33 located within a dedicated cemetery, within its jurisdiction,
 35 34 for which preservation is not otherwise provided, shall
 35 35 preserve and protect the cemetery or burial site as necessary
 36  1 to restore or maintain its physical integrity as a cemetery or
 36  2 burial site.  The governmental subdivision may enter into an
 36  3 agreement to delegate the responsibility for the preservation
 36  4 and protection of the cemetery or burial site to a private
 36  5 organization interested in historical preservation.
 36  6    4.  CONFISCATION AND RETURN OF MEMORIALS.  A law
 36  7 enforcement officer having reason to believe that a memorial
 36  8 or memorialization is in the possession of a person without
 36  9 authorization or right to possess the memorial or
 36 10 memorialization may take possession of the memorial or
 36 11 memorialization from that person and turn it over to the
 36 12 officer's law enforcement agency.  If a law enforcement agency
 36 13 determines that a memorial or memorialization the agency has
 36 14 taken possession of rightfully belongs on an interment space,
 36 15 the agency shall return the memorial or memorialization to the
 36 16 interment space, or make arrangements with the person having
 36 17 jurisdiction over the interment space for its return.
 36 18    5.  BURIAL SITES LOCATED ON PRIVATE PROPERTY.
 36 19    a.  If a person notifies a governmental subdivision that a
 36 20 burial site of the person's relative is located on property
 36 21 owned by another person within the jurisdiction of the
 36 22 governmental subdivision, the governmental subdivision shall
 36 23 notify the property owner of the location of the burial site
 36 24 and that the property owner is required to permit the person
 36 25 reasonable ingress and egress for the purposes of visiting the
 36 26 burial site of the person's relative.
 36 27    b.  Pursuant to section 558.69, each declaration of value
 36 28 submitted to a county recorder pursuant to chapter 428A shall
 36 29 be accompanied by a statement concerning whether or not any
 36 30 known private burial sites are located on the property.
 36 31    6.  DISCOVERY OF HUMAN REMAINS.  Any person discovering
 36 32 human remains shall notify the county or state medical
 36 33 examiner or a city, county, or state law enforcement agency as
 36 34 soon as is reasonably possible unless the person knows or has
 36 35 good reason to believe that such notice has already been given
 37  1 or the discovery occurs in a cemetery.  If there is reason to
 37  2 believe that interment may have occurred more than one hundred
 37  3 fifty years earlier, the governmental subdivision notified
 37  4 shall also notify the state archaeologist.  A person who does
 37  5 not provide notice required pursuant to this subsection
 37  6 commits a serious misdemeanor.
 37  7                          SUBCHAPTER 4
 37  8      COUNTY CEMETERY COMMISSIONS AND NEGLECTED CEMETERIES
 37  9    Sec. 40.  NEW SECTION.  523I.401  NEGLECTED CEMETERIES.
 37 10    The commissioner shall create a form that interested
 37 11 persons may use to report neglected cemeteries to the
 37 12 commissioner.  The commissioner shall catalog and review the
 37 13 neglected cemetery reports received on or before December 31,
 37 14 2007, conduct site visits as warranted to determine the nature
 37 15 or extent of any neglect, and publish a report of findings on
 37 16 or before December 31, 2008.
 37 17    Sec. 41.  NEW SECTION.  523I.402  REMOVAL OF REMAINS.
 37 18    1.  Upon a showing of good cause, a county cemetery
 37 19 commission may file suit in the district court in that county
 37 20 to have remains interred in a cemetery owned and operated by
 37 21 the commission removed to another cemetery.  All persons in
 37 22 interest, known or unknown, other than the plaintiffs, shall
 37 23 be made defendants to the suit.  If any parties are unknown,
 37 24 notice may be given by publication.  After hearing and a
 37 25 showing of good cause for the removal, the court may order the
 37 26 removal of the remains and the remains shall be properly
 37 27 interred in another cemetery, at the expense of the county.
 37 28 The removal and reinterment of the remains shall be done
 37 29 pursuant to a disinterment permit issued under section 144.34
 37 30 with due care and decency.  In deciding whether to order the
 37 31 removal of interred remains, a court shall consider present or
 37 32 future access to the cemetery, the historical significance of
 37 33 the cemetery, and the wishes of the parties concerned if they
 37 34 are brought to the court's attention, including the desire of
 37 35 any beneficiaries to reserve their rights to waive a
 38  1 reservation of rights in favor of removal, and shall exercise
 38  2 the court's sound discretion in granting or refusing the
 38  3 removal of interred remains.
 38  4    2.  Any heir at law or descendent of a deceased person
 38  5 interred in a neglected cemetery may file suit in the district
 38  6 court in the county where the cemetery is located, to have the
 38  7 deceased person's remains interred in the cemetery removed to
 38  8 another cemetery.  The owner of the land, any beneficiaries of
 38  9 any reservation of rights, and any other persons in interest,
 38 10 known or unknown, other than the plaintiffs shall be made
 38 11 defendants.  If any parties are unknown, notice may be given
 38 12 by publication.  After hearing and upon a showing of good
 38 13 cause, the court may order removal and the proper interment of
 38 14 the remains in another cemetery, at the expense of the
 38 15 petitioner.  The removal and reinterment shall be done with
 38 16 due care and decency.
 38 17                          SUBCHAPTER 5
 38 18                    GOVERNMENTAL SUBDIVISIONS
 38 19    Sec. 42.  NEW SECTION.  523I.501  CEMETERY AUTHORIZED.
 38 20    The governing body of a governmental subdivision may
 38 21 purchase, establish, operate, enclose, improve, or regulate a
 38 22 cemetery.  A cemetery owned or operated by a governmental
 38 23 subdivision may sell interment rights subject to the
 38 24 provisions of this chapter.
 38 25    Sec. 43.  NEW SECTION.  523I.502  TRUST FOR CEMETERY.
 38 26    1.  A governmental subdivision that owns or operates a
 38 27 cemetery or has control of cemetery property may act as a
 38 28 permanent trustee for the perpetual maintenance of interment
 38 29 spaces in the cemetery.
 38 30    2.  To act as a trustee, a majority of the governmental
 38 31 subdivision's governing body must adopt an ordinance or
 38 32 resolution stating the governmental subdivision's willingness
 38 33 and intention to act as a trustee for the perpetual
 38 34 maintenance of cemetery property.  When the ordinance or
 38 35 resolution is adopted and the trust is accepted, the trust is
 39  1 perpetual.
 39  2    Sec. 44.  NEW SECTION.  523I.503  AUTHORITY TO RECEIVE
 39  3 GIFTS AND DEPOSITS FOR CARE == CERTIFICATES.
 39  4    1.  A governmental subdivision that is a trustee for the
 39  5 perpetual maintenance of a cemetery may adopt reasonable rules
 39  6 governing the receipt of a gift or grant from any source.
 39  7    2.  A governmental subdivision that is a trustee for a
 39  8 person shall accept the amount the governmental subdivision
 39  9 requires for permanent maintenance of an interment space on
 39 10 behalf of that person or a decedent.
 39 11    3.  A governmental subdivision's acceptance of a deposit
 39 12 for permanent maintenance of an interment space constitutes a
 39 13 perpetual trust for the designated interment space.
 39 14    4.  Upon acceptance of a deposit, a governmental
 39 15 subdivision's secretary, clerk, or mayor shall issue a
 39 16 certificate in the name of the governmental subdivision to the
 39 17 trustee or depositor.  The certificate shall state all of the
 39 18 following:
 39 19    a.  The depositor's name.
 39 20    b.  The amount and purpose of the deposit.
 39 21    c.  The location, with as much specificity as possible, of
 39 22 the interment space to be maintained.
 39 23    d.  Other information required by the governmental
 39 24 subdivision.
 39 25    5.  An individual, association, foundation, or corporation
 39 26 that is interested in the maintenance of a neglected cemetery
 39 27 in a governmental subdivision's possession and control may
 39 28 donate funds to the cemetery's perpetual trust fund to
 39 29 beautify and maintain the entire cemetery or burial grounds
 39 30 generally.
 39 31    Sec. 45.  NEW SECTION.  523I.504  APPOINTMENT OF SUCCESSOR
 39 32 TRUSTEE.
 39 33    A district judge of a county in which a cemetery is located
 39 34 shall appoint a suitable successor or trustee to faithfully
 39 35 execute a trust in accordance with this subchapter if a
 40  1 governmental subdivision renounces a trust assumed under this
 40  2 subchapter, fails to act as its trustee, a vacancy occurs, or
 40  3 the appointment of a successor or trustee is otherwise
 40  4 necessary.
 40  5    Sec. 46.  NEW SECTION.  523I.505  COUNTY AUDITOR AS
 40  6 TRUSTEE.
 40  7    1.  In the absence of a trustee for care funds, unless
 40  8 otherwise provided by law, the care funds shall be placed in
 40  9 the hands of the county auditor, who shall provide a receipt
 40 10 for, loan, and make annual reports of the care funds.
 40 11    2.  The county auditor shall not be required to post a
 40 12 bond.
 40 13    3.  The county auditor shall serve without compensation,
 40 14 but may, out of the income received, pay all proper items of
 40 15 expense incurred in the performance of the auditor's duties as
 40 16 trustee, if any.
 40 17    4.  The county auditor shall make a full report of the
 40 18 trustee's actions and trust funds annually in January.  The
 40 19 net proceeds for care funds received by the county auditor as
 40 20 trustee shall be apportioned and credited to each of any
 40 21 separate care funds assigned to the auditor.
 40 22    5.  The county auditor shall turn over the accrued income
 40 23 from each care fund annually to the person having control of
 40 24 the cemetery.
 40 25    Sec. 47.  NEW SECTION.  523I.506  COMMINGLING OF CARE FUNDS
 40 26 BY GOVERNMENTAL SUBDIVISIONS.
 40 27    A governmental subdivision subject to this section may
 40 28 commingle care funds for more than one cemetery for the
 40 29 purposes of investment and administration and may file a
 40 30 single report, if each cemetery is appropriately identified
 40 31 and separate records are maintained for each cemetery.
 40 32    Sec. 48.  NEW SECTION.  523I.507  INVESTMENT OF CARE FUNDS
 40 33 BY GOVERNMENTAL SUBDIVISIONS.
 40 34    Notwithstanding section 12B.10, a perpetual care cemetery
 40 35 owned by a governmental subdivision may invest and reinvest
 41  1 deposits pursuant to the requirements of this chapter.  The
 41  2 trustee shall use the judgment and care under the
 41  3 circumstances then prevailing that persons of prudence,
 41  4 discretion, and intelligence exercise in the management of
 41  5 their own affairs, not in regard to speculation but in regard
 41  6 to the permanent disposition of their funds, considering the
 41  7 probable income as well as the probable safety of their
 41  8 capital.  The trustee of the trust funds has a fiduciary duty
 41  9 to make reasonable investment decisions and to properly
 41 10 oversee and manage the funds entrusted to the trust fund.
 41 11    Sec. 49.  NEW SECTION.  523I.508  MANAGEMENT BY
 41 12 GOVERNMENTAL SUBDIVISIONS.
 41 13    1.  POLITICAL SUBDIVISIONS AS TRUSTEES.  Counties, cities,
 41 14 irrespective of their form of government, boards of trustees
 41 15 of cities to whom the management of municipal cemeteries has
 41 16 been transferred by ordinance, and civil townships wholly
 41 17 outside of any city, are trustees in perpetuity, and are
 41 18 required to accept, receive, and expend all moneys and
 41 19 property donated or left to them by bequest for perpetual
 41 20 care, and that portion of interment space sales or permanent
 41 21 charges made against interment spaces which has been set aside
 41 22 in a perpetual care fund for which there is no other acting
 41 23 trustee, shall be used in caring for the property of the donor
 41 24 or lot owner who by purchase or otherwise has provided for the
 41 25 perpetual care of an interment space in any cemetery, or in
 41 26 accordance with the terms of the donation, bequest, or
 41 27 agreement for sale and purchase of an interment space, and the
 41 28 money or property thus received shall be used for no other
 41 29 purpose.
 41 30    2.  AUTHORITY TO INVEST FUNDS == CURRENT CARE CHARGE
 41 31 PAYMENTS.  The board of supervisors, mayor and council, or
 41 32 other elected governmental body, as the case may be, may
 41 33 receive and invest all moneys and property, donated or
 41 34 bequeathed, and that portion of cemetery lot sales and
 41 35 permanent charges made against cemetery lots which have been
 42  1 set aside in a perpetual care fund, and in so investing, shall
 42  2 use the judgment and care under the circumstances then
 42  3 prevailing that persons of prudence, discretion, and
 42  4 intelligence exercise in the management of their own affairs
 42  5 not in regard to speculation but in regard to the permanent
 42  6 disposition of their funds, considering the probable income as
 42  7 well as the probable safety of their capital.  The trustee of
 42  8 the trust funds has a fiduciary duty to make reasonable
 42  9 investment decisions and to properly oversee and manage the
 42 10 funds entrusted to the trust fund.  The income from the
 42 11 investment shall be used in caring for the property of the
 42 12 donor in any cemetery, or as provided in the terms of the gift
 42 13 or donations or agreement for sale and purchase of a cemetery
 42 14 lot.
 42 15    All current care charge payments received shall be
 42 16 allocated to the perpetual care fund or to the fund paying the
 42 17 costs of cemetery operations.  Care charge payments received
 42 18 one year or more after the date they were incurred shall be
 42 19 used to fund the cost of operating the cemetery.  Care charge
 42 20 payments received one year or more in advance of their due
 42 21 date shall be deposited in the perpetual care fund.  Interest
 42 22 from the perpetual care fund shall be used for the maintenance
 42 23 of both occupied and unoccupied lots or spaces.  Any remaining
 42 24 interest may be used for costs of access roads and paths,
 42 25 fencing, and general maintenance of the cemetery.  Lots under
 42 26 perpetual care shall be maintained in accordance with the
 42 27 cemetery covenants of sale.
 42 28    3.  RESOLUTION OF ACCEPTANCE == INTEREST.  Before any part
 42 29 of the principal may be invested or used, the county, city,
 42 30 board of trustees of a city to whom the management of a
 42 31 municipal cemetery has been transferred by ordinance, or civil
 42 32 township shall, by resolution, accept the moneys described in
 42 33 subsection 1 and, by resolution, shall provide for the payment
 42 34 of interest annually to the appropriate fund, or to the
 42 35 cemetery, or the person in charge of the cemetery, to be used
 43  1 in caring for or maintaining the individual property of the
 43  2 donor in the cemetery, or interment spaces which have been
 43  3 sold if provision was made for perpetual care, all in
 43  4 accordance with the terms of the donation or bequest, or the
 43  5 terms of the sale or purchase of an interment space.
 43  6    If there is no person in charge of the cemetery, the income
 43  7 from the fund shall be expended under the direction of the
 43  8 board of supervisors, city council, board of trustees, or
 43  9 civil township trustees, as the case may be, in accordance
 43 10 with the terms of the donation or bequest, or the terms of the
 43 11 sale or purchase of an interment space.
 43 12    4.  DELEGATES TO CONVENTIONS.  A township having one or
 43 13 more cemeteries under its control may designate, not to exceed
 43 14 two, officials from each cemetery as delegates to attend
 43 15 meetings of cemetery officials, and certain expenses,
 43 16 including association dues, not to exceed twenty=five dollars,
 43 17 of the delegates may be paid out of the cemetery fund of the
 43 18 township.
 43 19    5.  SUBSCRIBING TO PUBLICATIONS.  The cemetery officials of
 43 20 every township having a cemetery under its control may
 43 21 subscribe to one or more publications devoted exclusively to
 43 22 cemetery management, and the subscriptions may be paid out of
 43 23 the cemetery fund of the township.
 43 24                          SUBCHAPTER 6
 43 25                       GENERAL PROVISIONS
 43 26    Sec. 50.  NEW SECTION.  523I.601  SETTLEMENT OF ESTATES ==
 43 27 MAINTENANCE FUND.
 43 28    The court in which the estate of a deceased person is
 43 29 administered, before final distribution, may allow and set
 43 30 apart from the estate a sum sufficient to provide an income
 43 31 adequate to pay for the perpetual care and upkeep of the
 43 32 interment spaces upon which the body of the deceased is
 43 33 buried, except where perpetual care has otherwise been
 43 34 provided for.  The sum so allowed and set apart shall be paid
 43 35 to a trustee as provided by this chapter.
 44  1    Sec. 51.  NEW SECTION.  523I.602  MANAGEMENT BY TRUSTEE.
 44  2    1.  TRUSTEE APPOINTED == TRUST FUNDS.  The owners of, or
 44  3 any party interested in, a cemetery may, by petition presented
 44  4 to the district court of the county where the cemetery is
 44  5 situated, have a trustee appointed with authority to receive
 44  6 any and all moneys or property that may be donated for and on
 44  7 account of the cemetery and to invest, manage, and control the
 44  8 moneys or property under the direction of the court.  However,
 44  9 the trustee shall not be authorized to receive any gift,
 44 10 except with the understanding that the principal sum is to be
 44 11 a permanent fund, and only the net proceeds therefrom shall be
 44 12 used in carrying out the purpose of the trust created, and all
 44 13 such funds shall be exempt from taxation.
 44 14    2.  REQUISITES OF PETITION.  The petition shall state the
 44 15 amount proposed to be placed in such trust fund, the manner of
 44 16 investment thereof, and the provisions made for the
 44 17 disposition of any surplus income not required for the care
 44 18 and upkeep of the property described in such petition.
 44 19    3.  APPROVAL OF COURT == SURPLUS FUND.  Such provisions
 44 20 shall be subject to the approval of the court and when so
 44 21 approved the trust fund and the trustee thereof shall, at all
 44 22 times, be subject to the orders and control of the court and
 44 23 such surplus arising from the trust fund shall not be used
 44 24 except for charitable, eleemosynary, or public purposes under
 44 25 the direction of the court.
 44 26    4.  RECEIPT == CEMETERY RECORD.  Every such trustee shall
 44 27 execute and deliver to the donor a receipt showing the amount
 44 28 of money or other property received, and the use to be made of
 44 29 the net proceeds from the same, duly attested by the clerk of
 44 30 the court granting letters of trusteeship, and a copy thereof,
 44 31 signed by the trustee and so attested, shall be filed with and
 44 32 recorded by the clerk in a book to be known as the cemetery
 44 33 record, in which shall be recorded all reports and other
 44 34 papers, including orders made by the court relative to
 44 35 cemetery matters.
 45  1    5.  INVESTMENTS.  Any such trustee may receive and invest
 45  2 all moneys and property, so donated or bequeathed, and that
 45  3 portion of cemetery lot sales and permanent charges made
 45  4 against interment spaces which has been set aside in a
 45  5 perpetual care fund, in such authorized investments and in the
 45  6 manner prescribed in section 636.23.
 45  7    6.  BOND == APPROVAL == OATH.  Every such trustee before
 45  8 entering upon the discharge of the trustee's duties or at any
 45  9 time thereafter when required by the court shall give a bond
 45 10 in an amount as may be required by the court, approved by the
 45 11 clerk, and conditioned for the faithful discharge of the
 45 12 trustee's duties, and take and subscribe an oath the same in
 45 13 substance as the condition of the bond, which bond and oath
 45 14 must be filed with the clerk.
 45 15    7.  CLERK == DUTY OF.  At the time of filing each bond and
 45 16 oath the clerk shall at once advise the court as to the amount
 45 17 of the principal fund in the hands of such trustee, the amount
 45 18 of the bond filed, and whether it is good and sufficient for
 45 19 the amount given.
 45 20    8.  COMPENSATION == COSTS.  Such trustee shall serve
 45 21 without compensation, but may, out of the income received, pay
 45 22 all proper items of expense incurred in the performance of the
 45 23 trustee's duties, including cost of the bond, if any.
 45 24    9.  ANNUAL REPORT.  Such trustee shall make a full report
 45 25 of the trustee's doings in the month of January following
 45 26 appointment and in January of each successive year.  In each
 45 27 report the trustee shall apportion the net proceeds received
 45 28 from the sum total of the permanent funds assigned to the
 45 29 trustee in trust.
 45 30    10.  REMOVAL == VACANCY FILLED.  Any such trustee may be
 45 31 removed by the court at any time for cause, and in the event
 45 32 of removal or death, the court shall appoint a new trustee and
 45 33 require the new trustee's predecessor or the predecessor's
 45 34 personal representative to make a full accounting.
 45 35    Sec. 52.  NEW SECTION.  523I.603  OWNERS OF INTERMENT
 46  1 RIGHTS.
 46  2    1.  An interment space in which exclusive rights of
 46  3 interment are conveyed is presumed to be the separate property
 46  4 of the person named as grantee in the certificate of interment
 46  5 rights or other instrument of conveyance.
 46  6    2.  Two or more owners of interment rights may designate a
 46  7 person to represent the interment space and file notice of the
 46  8 designation of a representative with the cemetery.  If notice
 46  9 is not filed, the cemetery may inter or permit an interment in
 46 10 the interment space at the request or direction of a
 46 11 registered co=owner of the interment space.
 46 12    Sec. 53.  NEW SECTION.  523I.604  LIEN AGAINST CEMETERY
 46 13 PROPERTY.
 46 14    1.  A cemetery, by contract, may incur indebtedness as
 46 15 necessary to conduct its business and may secure the
 46 16 indebtedness by mortgage, deed of trust, or other lien against
 46 17 its property.
 46 18    2.  A mortgage, deed of trust, or other lien placed on
 46 19 dedicated cemetery property, or on cemetery property that is
 46 20 later dedicated with the consent of the holder of the lien,
 46 21 does not affect the dedication and is subject to the
 46 22 dedication.  A sale on foreclosure of the lien is subject to
 46 23 the dedication of the property for cemetery purposes.
 46 24    Sec. 54.  NEW SECTION.  523I.605  PRIVATE CARE OF GRAVES.
 46 25    This subchapter does not affect the right of a person who
 46 26 has an interest in an interment space, or who is a relative of
 46 27 a decedent interred in a cemetery, to beautify or maintain an
 46 28 interment space individually or at the person's own expense in
 46 29 accordance with reasonable rules established by the cemetery.
 46 30                          SUBCHAPTER 7
 46 31                           LAWN CRYPTS
 46 32    Sec. 55.  NEW SECTION.  523I.701  REQUIREMENTS FOR LAWN
 46 33 CRYPTS.
 46 34    A lawn crypt shall not be installed unless all of the
 46 35 following apply:
 47  1    1.  The lawn crypt is constructed of concrete and
 47  2 reinforced steel or other comparable durable material.
 47  3    2.  The lawn crypt is installed on not less than six inches
 47  4 of rock, gravel, or other drainage material.
 47  5    3.  The lawn crypt provides a method to drain water out of
 47  6 the lawn crypt.
 47  7    4.  The lawn crypt is capable of withstanding the weight of
 47  8 the soil and sod above the top surface and the weight of
 47  9 machinery and equipment normally used in the maintenance of
 47 10 the cemetery.
 47 11    5.  Except as provided by section 523I.702, the lawn crypt
 47 12 is installed in multiple units of ten or more.
 47 13    6.  The lawn crypt shall be installed in compliance with
 47 14 any applicable law or rule adopted by the department of public
 47 15 health.
 47 16    Sec. 56.  NEW SECTION.  523I.702  REQUEST TO INSTALL LAWN
 47 17 CRYPTS IN FEWER THAN TEN UNITS.
 47 18    1.  A lawn crypt may be installed in fewer than ten units
 47 19 if it is installed in an interment space pursuant to a written
 47 20 request to the commissioner signed by the owner or owners of
 47 21 the interment space.
 47 22    2.  The written request shall be filed on a form prescribed
 47 23 by the commissioner and shall contain substantially all of the
 47 24 following information:
 47 25    a.  The owner's name and address.
 47 26    b.  The name of the cemetery and the owner of the cemetery.
 47 27    c.  The number of lawn crypt units to be installed.
 47 28    d.  A description of the interment spaces.
 47 29    e.  A statement that the lawn crypt meets the requirements
 47 30 of section 523I.701, including all of the following:
 47 31    (1)  A statement that the lawn crypt will be constructed of
 47 32 concrete and reinforced steel or other comparable durable
 47 33 materials.
 47 34    (2)  A statement that the lawn crypt will be installed on
 47 35 not less than six inches of rock, gravel, or other drainage
 48  1 material.
 48  2    (3)  A statement that the lawn crypt will provide a method
 48  3 to drain water out of the lawn crypt.
 48  4    (4)  A statement that the outside top surface of the lawn
 48  5 crypt at the time of installation will be capable of
 48  6 withstanding the weight of the soil and sod above the top
 48  7 surface and the weight of machinery and equipment normally
 48  8 used in the maintenance of the cemetery.
 48  9    f.  A statement that the space in which the lawn crypt is
 48 10 to be installed is located in a garden.
 48 11    g.  The date on which a representative of the cemetery
 48 12 signed the form.
 48 13                          SUBCHAPTER 8
 48 14            PERPETUAL CARE CEMETERIES == REQUIREMENTS
 48 15    Sec. 57.  NEW SECTION.  523I.801  APPLICABILITY AND
 48 16 CONVERSION BY NONPERPETUAL CARE CEMETERIES.
 48 17    1.  All cemeteries are designated as either "perpetual care
 48 18 cemeteries" or "nonperpetual care cemeteries" for the purposes
 48 19 of this chapter.  A cemetery that represents that it is
 48 20 offering perpetual care on or after July 1, 2005, is subject
 48 21 to this subchapter.
 48 22    2.  A cemetery that operates a nonperpetual care cemetery
 48 23 may elect to become a perpetual care cemetery if at all times
 48 24 subsequent to the date of the election, the cemetery complies
 48 25 with the other requirements of this subchapter except section
 48 26 523I.805.
 48 27    Sec. 58.  NEW SECTION.  523I.802  ADVERTISING.
 48 28    1.  A cemetery shall not advertise, represent, guarantee,
 48 29 promise, or contract to provide or offer perpetual care or use
 48 30 terms or phrases like permanent care, permanent maintenance,
 48 31 care forever, continuous care, eternal care, or everlasting
 48 32 care to imply that a certain level of care and financial
 48 33 security will be furnished or is guaranteed except in
 48 34 compliance with the provisions of this subchapter.
 48 35    2.  A cemetery or person advertising or selling interment
 49  1 rights shall not represent that the purchase of the interment
 49  2 rights is or will be a desirable speculative investment for
 49  3 resale purposes.
 49  4    Sec. 59.  NEW SECTION.  523I.803  PERPETUAL CARE REGISTRY.
 49  5    1.  A cemetery that operates a perpetual care cemetery
 49  6 shall maintain a registry of individuals who have purchased
 49  7 interment rights in the cemetery subject to the care fund
 49  8 requirements of this subchapter.
 49  9    2.  The registry shall include the amount deposited in
 49 10 trust for each interment rights agreement entered into on or
 49 11 after July 1, 1995.
 49 12    Sec. 60.  NEW SECTION.  523I.804  USE OF GIFT FOR SPECIAL
 49 13 CARE.
 49 14    A trustee may accept and hold money or property transferred
 49 15 to the trustee in trust for the purpose of applying the
 49 16 principal or income of the money or property transferred for a
 49 17 purpose consistent with the purpose of a perpetual care
 49 18 cemetery, including the following:
 49 19    1.  Improvement or embellishment of any part of the
 49 20 cemetery.
 49 21    2.  Erection, renewal, repair, or preservation of a
 49 22 monument, fence, building, or other structure in the cemetery.
 49 23    3.  Planting or cultivation of plants in or around the
 49 24 cemetery.
 49 25    4.  Special care of or embellishment of an interment space,
 49 26 section, or building in the cemetery.
 49 27    Sec. 61.  NEW SECTION.  523I.805  INITIAL DEPOSIT.
 49 28    1.  A cemetery owned or operated by a political subdivision
 49 29 of this state is not required to make a minimum initial
 49 30 deposit in a care fund.  Any other cemetery commencing
 49 31 business in this state on or after July 1, 2005, shall not
 49 32 sell interment spaces unless the cemetery has a care fund of
 49 33 at least twenty=five thousand dollars in cash.
 49 34    2.  If an initial deposit is made by a cemetery to satisfy
 49 35 subsection 1, the initial twenty=five thousand dollar deposit
 50  1 may be withdrawn by the cemetery when the care fund balance
 50  2 reaches one hundred thousand dollars.  An affidavit shall be
 50  3 filed with the commissioner providing prior notice of the
 50  4 intended withdrawal of the initial deposit and attesting that
 50  5 the money has not previously been withdrawn.  Upon a showing
 50  6 by the cemetery that the initial deposit has not previously
 50  7 been withdrawn, the commissioner shall approve withdrawal of
 50  8 the money and the withdrawal shall take place within one year
 50  9 after the care fund balance reaches one hundred thousand
 50 10 dollars.
 50 11    Sec. 62.  NEW SECTION.  523I.806  IRREVOCABLE TRUST.
 50 12    1.  A perpetual care cemetery shall establish a care fund
 50 13 as an irrevocable trust to provide for the care of the
 50 14 cemetery, which shall provide for the appointment of a
 50 15 trustee, with perpetual succession.
 50 16    2.  The care fund shall be administered under the
 50 17 jurisdiction of the district court of the county where the
 50 18 cemetery is located.  Notwithstanding chapter 633, annual
 50 19 reports shall not be required unless specifically required by
 50 20 the district court.  Reports shall be filed with the court
 50 21 when necessary to receive approval of appointments of
 50 22 trustees, trust agreements and amendments, changes in fees or
 50 23 expenses, and other matters within the court's jurisdiction.
 50 24 A court having jurisdiction over a care fund shall have full
 50 25 jurisdiction to approve the appointment of trustees, the
 50 26 amount of surety bond required, if any, and investment of
 50 27 funds.
 50 28    Sec. 63.  NEW SECTION.  523I.807  CARE FUND DEPOSITS.
 50 29    1.  To continue to operate as a perpetual care cemetery, a
 50 30 cemetery shall set aside and deposit in the care fund an
 50 31 amount equal to or greater than fifty dollars or twenty
 50 32 percent of the gross selling price received by the cemetery
 50 33 for each sale of interment rights, whichever is more.
 50 34    2.  A cemetery may require a contribution to the care fund
 50 35 for perpetual care of a memorial or memorialization placed in
 51  1 the cemetery.  A cemetery may establish a separate care fund
 51  2 for this purpose.  The contributions shall be nonrefundable
 51  3 and shall not be withdrawn from the trust fund once deposited.
 51  4 The amount charged shall be uniformly charged on every
 51  5 installation of a memorial, based on the height and width of
 51  6 the memorial or the size of the ground surface area used for
 51  7 the memorial.  A fee for special care of a memorial may be
 51  8 collected if the terms of the special care items and
 51  9 arrangements are clearly specified in the interment rights
 51 10 agreement.  Except as otherwise provided in an interment
 51 11 rights agreement, a cemetery is not liable for repair or
 51 12 maintenance of memorials or vandalism.  A cemetery may use
 51 13 income from a care fund to repair or replace memorials or
 51 14 interment spaces damaged by vandalism or acts of God.
 51 15    3.  Moneys shall be deposited in the care fund no later
 51 16 than the fifteenth day after the close of the month when the
 51 17 cemetery receives the final payment from a purchaser of
 51 18 interment rights.
 51 19    Sec. 64.  NEW SECTION.  523I.808  AUDIT FEE.
 51 20    An audit fee shall be submitted with the cemetery's annual
 51 21 report in an amount equal to five dollars for each certificate
 51 22 of interment rights issued during the fiscal year covered by
 51 23 the report.  The cemetery may charge the audit fee directly to
 51 24 the purchaser of the interment rights.
 51 25    Sec. 65.  NEW SECTION.  523I.809  TRUST AGREEMENT
 51 26 PROVISIONS.
 51 27    1.  A trust agreement shall provide for the appointment of
 51 28 at least one trustee, with perpetual succession, in case the
 51 29 cemetery is dissolved or ceases to be responsible for the
 51 30 cemetery's care.
 51 31    2.  A cemetery and the trustee or trustees of the care fund
 51 32 may, by agreement, amend the instrument that established the
 51 33 fund to include any provision that is necessary to comply with
 51 34 the requirements of this chapter.
 51 35    3.  A cemetery is responsible for the deposit of all moneys
 52  1 required to be placed in a care fund.
 52  2    4.  The commissioner may require the amending of a trust
 52  3 agreement that is not in accord with the provisions of this
 52  4 chapter.
 52  5    Sec. 66.  NEW SECTION.  523I.810  CARE FUNDS.
 52  6    1.  A trustee of a care fund shall use the judgment and
 52  7 care under the circumstances then prevailing that persons of
 52  8 prudence, discretion, and intelligence exercise in the
 52  9 management of their own affairs, not in regard to speculation
 52 10 but in regard to the permanent disposition of their funds,
 52 11 considering the probable income as well as the probable safety
 52 12 of their capital.  The trustee of a care fund has a fiduciary
 52 13 duty to make reasonable investment decisions and to properly
 52 14 oversee and manage the funds entrusted to the care fund.
 52 15    a.  A financial institution may serve as a trustee if
 52 16 granted those powers under the laws of this state or of the
 52 17 United States.  A financial institution acting as a trustee of
 52 18 a care fund under this chapter shall invest the funds in
 52 19 accordance with applicable law.
 52 20    b.  A financial institution acting as a trustee of a care
 52 21 fund under this chapter has a fiduciary duty to make
 52 22 reasonable investment decisions and to properly oversee and
 52 23 manage the funds entrusted to the financial institution.  The
 52 24 commissioner may take enforcement action against a financial
 52 25 institution in its capacity as trustee for a breach of
 52 26 fiduciary duty under this chapter.
 52 27    c.  Care fund moneys may be deposited pursuant to a master
 52 28 trust agreement, if each care fund is treated as a separate
 52 29 beneficiary of the trust and each care fund is separable.  The
 52 30 master trust shall maintain a separate accounting of principal
 52 31 and income for each care fund.  Moneys deposited under a
 52 32 master trust agreement may be commingled by the financial
 52 33 institution for investment purposes.
 52 34    d.  Subject to a master trust agreement, the cemetery may
 52 35 appoint an independent investment advisor to advise the
 53  1 financial institution about investment of the care fund.
 53  2    e.  Subject to an agreement between the cemetery and the
 53  3 financial institution, the financial institution may receive a
 53  4 reasonable fee from the care fund for services rendered as
 53  5 trustee.
 53  6    f.  If the amount of a care fund exceeds two hundred
 53  7 thousand dollars, the cemetery or any officer, director,
 53  8 agent, employee, or affiliate of the cemetery shall not serve
 53  9 as trustee unless the cemetery is a cemetery owned or operated
 53 10 by a governmental subdivision of this state.  A financial
 53 11 institution holding care funds shall not do any of the
 53 12 following:
 53 13    (1)  Be owned, under the control of, or affiliated with the
 53 14 cemetery.
 53 15    (2)  Use any funds required to be held in trust under this
 53 16 chapter to purchase an interest in a contract or agreement to
 53 17 which the cemetery is a party.
 53 18    (3)  Otherwise invest care funds, directly or indirectly,
 53 19 in the cemetery's business operations.
 53 20    2.  All moneys required to be deposited in the care fund
 53 21 shall be deposited in the name of the trustee, as trustee,
 53 22 under the terms of a trust agreement and the trustee may
 53 23 invest, reinvest, exchange, retain, sell, and otherwise manage
 53 24 the care fund trust for the benefit and protection of the
 53 25 cemetery.
 53 26    3.  This section does not prohibit a cemetery from moving
 53 27 care funds from one financial institution to another.
 53 28    4.  A care fund may receive and hold as part of the care
 53 29 fund or as an incident to the care fund any property
 53 30 contributed to the care fund.
 53 31    5.  A contribution to a care fund is considered to be for
 53 32 charitable purposes if the care financed by the care fund is
 53 33 for the following purposes:
 53 34    a.  The discharge of a duty due from the cemetery to
 53 35 persons interred and to be interred in the cemetery.
 54  1    b.  The benefit and protection of the public by preserving
 54  2 and keeping the cemetery in a dignified condition so that the
 54  3 cemetery does not become a nuisance or a place of disorder,
 54  4 reproach, and desolation in the community in which the
 54  5 cemetery is located.
 54  6    6.  A contribution to a care fund is not invalid because of
 54  7 the following:
 54  8    a.  Indefiniteness or uncertainty as to the person
 54  9 designated as a beneficiary in the instrument establishing the
 54 10 care fund.
 54 11    b.  A violation of the law against perpetuities or the law
 54 12 against the suspension of the power of alienation of title to
 54 13 or use of property.
 54 14    7.  A care fund shall pay the fund's operation costs and
 54 15 any annual audit fees.  The principal of a care fund is
 54 16 intended to remain available perpetually as a funding source
 54 17 for care of the cemetery.  The principal of a care fund shall
 54 18 not be reduced voluntarily and shall remain inviolable, except
 54 19 as provided in this section.  The trustee or trustees of a
 54 20 care fund shall maintain the principal of the care fund
 54 21 separate from all operating funds of the cemetery.
 54 22    8.  In establishing a care fund, the cemetery may adopt
 54 23 plans for the care of the cemetery and installed memorials and
 54 24 memorialization.
 54 25    9.  A cemetery may, by resolution adopted by a vote of at
 54 26 least two=thirds of the members of its board at any authorized
 54 27 meeting of the board, authorize the withdrawal and use of not
 54 28 more than twenty percent of the principal of the care fund to
 54 29 acquire additional land for cemetery purposes, to repair a
 54 30 mausoleum or other building or structure intended for cemetery
 54 31 purposes, or to build, improve, or repair roads and walkways
 54 32 in the cemetery.  The resolution shall establish a reasonable
 54 33 repayment schedule, not to exceed five years, and provide for
 54 34 interest in an amount comparable to the care fund's current
 54 35 rate of return on its investments.  However, the care fund
 55  1 shall not be diminished below an amount equal to the greater
 55  2 of twenty=five thousand dollars or five thousand dollars per
 55  3 acre of land in the cemetery.  The resolution, and either a
 55  4 bond or proof of insurance to guarantee replenishment of the
 55  5 care fund, shall be filed with the commissioner thirty days
 55  6 prior to the withdrawal of funds.
 55  7    Sec. 67.  NEW SECTION.  523I.811  USE OF DISTRIBUTIONS FROM
 55  8 CARE FUND.
 55  9    1.  Care fund distributions may be used in any manner
 55 10 determined to be in the best interests of the cemetery if
 55 11 authorized by a resolution, bylaw, or other action or
 55 12 instrument establishing the care fund, including but not
 55 13 limited to the general care of memorials, memorialization, and
 55 14 any of the following:
 55 15    a.  Cutting and trimming lawns, shrubs, and trees at
 55 16 reasonable intervals.
 55 17    b.  Maintaining drains, water lines, roads, buildings,
 55 18 fences, and other structures.
 55 19    c.  Maintaining machinery, tools, and equipment.
 55 20    d.  Compensating maintenance employees, paying insurance
 55 21 premiums, and making payments to employees' pension and
 55 22 benefit plans.
 55 23    e.  Paying overhead expenses incidental to such purposes.
 55 24    f.  Paying expenses necessary to maintain ownership,
 55 25 transfer, and interment records of the cemetery.
 55 26    2.  The commissioner may, by rule, establish terms and
 55 27 conditions under which a cemetery may withdraw capital gains
 55 28 from the care fund.
 55 29    Sec. 68.  NEW SECTION.  523I.812  SUIT BY COMMISSIONER.
 55 30    1.  If the person or persons in control of a cemetery do
 55 31 not care for and maintain the cemetery, the district court of
 55 32 the county in which the cemetery is located may do the
 55 33 following:
 55 34    a.  By injunction compel the cemetery to expend the net
 55 35 income of the care fund as required by this chapter.
 56  1    b.  Appoint a receiver to take charge of the care fund and
 56  2 expend the net income of the care fund as required by this
 56  3 chapter.
 56  4    c.  Grant relief on a petition for relief filed pursuant to
 56  5 this section by the commissioner.
 56  6    2.  Inadequate care and maintenance of a cemetery includes
 56  7 but is not limited to the following:
 56  8    a.  Failure to adequately mow grass.
 56  9    b.  Failure to adequately edge and trim bushes, trees, and
 56 10 memorials.
 56 11    c.  Failure to keep walkways and sidewalks free of
 56 12 obstructions.
 56 13    d.  Failure to adequately maintain the cemetery's equipment
 56 14 and fixtures.
 56 15    This subsection is not intended to prevent the
 56 16 establishment of a cemetery as a nature park or preserve.
 56 17    Sec. 69.  NEW SECTION.  523I.813  ANNUAL REPORT BY
 56 18 PERPETUAL CARE CEMETERIES.
 56 19    1.  A perpetual care cemetery shall file a written report
 56 20 at the end of each fiscal year of the cemetery that includes
 56 21 all of the following:
 56 22    a.  The name and address of the cemetery.
 56 23    b.  The name and address of the corporation that owns the
 56 24 cemetery, if any.
 56 25    c.  A description of any common business enterprise or
 56 26 parent company that owns the cemetery, if any.
 56 27    d.  The name and address of any owner, officer, or other
 56 28 official of the cemetery, including, when relevant, the chief
 56 29 executive officer and the members of the board of directors.
 56 30    e.  The name and address of any trustee holding trust funds
 56 31 for the cemetery, including the name and location of the
 56 32 applicable trust account.
 56 33    f.  An affidavit that the cemetery is in compliance with
 56 34 this chapter.
 56 35    g.  Copies of all sales agreement forms used by the
 57  1 cemetery.
 57  2    h.  The amount of the principal of the cemetery's care
 57  3 funds or maintenance funds, if any, at the end of the fiscal
 57  4 year.
 57  5    2.  The report shall be filed with the commissioner within
 57  6 four months following the end of the cemetery's fiscal year in
 57  7 the form required by the commissioner.
 57  8    Sec. 70.  NEW SECTION.  523I.814  UNIFIED ANNUAL REPORTS.
 57  9    The commissioner shall permit the filing of a unified
 57 10 report in the event of commonly owned or affiliated cemeteries
 57 11 if each cemetery is separately identified and separate records
 57 12 are maintained for each cemetery.
 57 13    Sec. 71.  Section 602.8102, subsection 81, Code 2005, is
 57 14 amended to read as follows:
 57 15    81.  Carry out duties relating to cemeteries as provided in
 57 16 sections 566.4, 566.7, and 566.8 section 523I.602.
 57 17    Sec. 72.  Section 602.8104, subsection 2, paragraph h, Code
 57 18 2005, is amended to read as follows:
 57 19    h.  A cemetery record as provided in section 566.4
 57 20 523I.602.
 57 21    Sec. 73.  Section 636.23, subsection 14, Code 2005, is
 57 22 amended to read as follows:
 57 23    14.  LIMITATION AS TO COURT=APPROVED INVESTMENTS.  This
 57 24 section does not prohibit investment of such funds in a
 57 25 savings account or time certificate of deposit of a bank or
 57 26 savings and loan association, located within the city or its
 57 27 county of this state and when first approved by the court.
 57 28 However, a city that is the trustee of a cemetery as provided
 57 29 in section 566.14 523I.508 may invest perpetual care funds in
 57 30 a savings account or certificates of deposit at a bank or
 57 31 savings and loan association, located in this state without
 57 32 court approval.
 57 33    Sec. 74.  Section 359.41, Code 2005, is repealed.
 57 34    Sec. 75.  Chapters 523I, 566, and 566A, Code 2005, are
 57 35 repealed.
 58  1                           EXPLANATION
 58  2    This bill relates to cemeteries and cemetery regulation and
 58  3 provides for administration and enforcement procedures related
 58  4 to cemeteries, including establishing and appropriating fees,
 58  5 and providing for penalties.
 58  6    The bill amends Code section 523A.501 to provide that the
 58  7 commissioner of insurance is not required to obtain an
 58  8 establishment permit to sell cemetery and funeral merchandise
 58  9 and funeral services when acting as a court=appointed
 58 10 receiver.
 58 11    The bill amends Code section 523A.812 and adds new Code
 58 12 section 523A.814 to require a business establishment that is
 58 13 involved with cemetery and funeral merchandise and funeral
 58 14 services or a combination thereof to pay an annual audit fee
 58 15 of $5 for each purchase agreement sold that is filed and
 58 16 subject to a filing fee between July 1, 2005, and December 31,
 58 17 2007.  The insurance commissioner is required to allocate the
 58 18 audit fees collected to the insurance division regulatory fund
 58 19 for pay for auditors, audit expenses, investigative expenses,
 58 20 mediation expenses, consumer education expenses, a toll=free
 58 21 consumer complaint telephone line, and receivership expenses.
 58 22    The bill repeals Code chapter 523I concerning cemeteries,
 58 23 Code chapter 566 concerning cemetery management, and Code
 58 24 chapter 566A concerning cemetery regulation.
 58 25    The bill creates a new Code chapter 523I concerning
 58 26 cemeteries, cemetery administration and enforcement
 58 27 procedures, cemetery management, county cemetery commissions
 58 28 and neglected cemeteries, cemeteries owned or operated by
 58 29 governmental subdivisions, requirements for lawn crypts, and
 58 30 requirements applying to perpetual care cemeteries.
 58 31    The new Code chapter 523I is applicable to all cemeteries,
 58 32 except religious cemeteries that commenced business prior to
 58 33 July 1, 2005; all persons advertising or offering memorials,
 58 34 memorialization, opening and closing services, scattering
 58 35 services at a cemetery, interment rights, or a combination
 59  1 thereof for sale; and interments made in areas not dedicated
 59  2 as a cemetery, by a person other than the state archaeologist.
 59  3    The bill authorizes civil lawsuits brought by the insurance
 59  4 division against a cemetery that fails to use care funds to
 59  5 maintain the cemetery property.
 59  6    The bill defines certain acts committed in violation of
 59  7 Code chapter 523I as fraudulent practices.
 59  8    The bill provides for the establishment of a receivership
 59  9 for a cemetery under certain circumstances.
 59 10    The bill provides for the creation of a special revenue
 59 11 fund in the state treasury to be known as the insurance
 59 12 division's enforcement fund by allocating filing fees in an
 59 13 amount not exceeding $50,000.  The moneys in the fund are
 59 14 appropriated to the use of the insurance commissioner to pay
 59 15 for auditors, investigative expenses, consumer education
 59 16 expenses, a toll=free consumer complaint telephone line, and
 59 17 receivership expenses of perpetual care cemeteries.
 59 18    The bill requires cemeteries to make disclosures to a buyer
 59 19 of interment rights when grave opening and closing fees are
 59 20 not included in the agreement.  The bill authorizes a cemetery
 59 21 to accept written instructions of a decedent concerning
 59 22 interment, relocation, or disinterment of remains.  The bill
 59 23 contains provisions for making a determination of who has the
 59 24 right to control interment, relocation, or disinterment of
 59 25 remains.
 59 26    The bill establishes requirements for recording ownership
 59 27 of interment rights at each cemetery location rather than just
 59 28 with the county recorder.  The bill requires cemeteries to
 59 29 maintain complete interment records that identify the owners
 59 30 of all interment rights sold or transferred by the cemetery on
 59 31 or after July 1, 2005, and contain historical information
 59 32 concerning any changes of ownership of interment rights.  The
 59 33 bill sets forth requirements for interment rights agreements.
 59 34    The bill contains a procedure to dedicate new cemeteries or
 59 35 subdivisions of cemeteries with a public filing with the
 60  1 insurance division.
 60  2    The bill requires a public filing with the insurance
 60  3 division before the construction of new mausoleums and
 60  4 columbariums.  The bill sets forth procedures governing the
 60  5 installation of memorials and memorialization by third
 60  6 parties.
 60  7    The bill increases the penalty for disturbing an interment
 60  8 site from a simple misdemeanor to an aggravated misdemeanor.
 60  9 A simple misdemeanor is punishable by confinement for no more
 60 10 than 30 days or a fine of at least $50 but not more than $500
 60 11 or by both.  An aggravated misdemeanor is punishable by
 60 12 confinement for no more than two years and a fine of at least
 60 13 $500 but not more than $5,000.
 60 14    The bill contains a procedure for the removal of remains
 60 15 from a neglected cemetery.  The bill provides a procedure for
 60 16 reporting neglected cemeteries to the insurance division and
 60 17 provides that the commissioner shall catalog and review such
 60 18 reports received, on or before December 31, 2007, and publish
 60 19 a report of findings on or before December 31, 2008.
 60 20    The bill authorizes governmental subdivisions to commingle
 60 21 care funds for the purposes of investment and administration.
 60 22 The bill authorizes governmental subdivisions that operate
 60 23 cemeteries to invest their maintenance and care funds in the
 60 24 same manner as other cemetery corporations notwithstanding
 60 25 Code section 12B.10.
 60 26    The bill sets forth requirements for lawn crypts and their
 60 27 installation.
 60 28    The bill sets forth requirements for perpetual care
 60 29 cemeteries and provides that cemeteries that represent that
 60 30 they are offering perpetual care on or after July 1, 2005, are
 60 31 subject to the provisions of the bill.  The bill requires any
 60 32 cemetery commencing business on or after July 1, 2005, other
 60 33 than those owned or operated by governmental subdivisions, to
 60 34 establish a care fund of at least $25,000 in cash.  The bill
 60 35 allows a nonperpetual care cemetery to elect to become a
 61  1 perpetual care cemetery if the cemetery complies with the
 61  2 requirements applicable to a perpetual care cemetery, except
 61  3 such a cemetery is not required to make an initial $25,000
 61  4 care fund deposit.  The bill does not apply to religious
 61  5 cemeteries that commenced business prior to July 1, 2005.
 61  6 LSB 1108HV 81
 61  7 av:rj/gg/14