House File 836 - Introduced
HOUSE FILE
BY COMMITTEE ON WAYS
AND MEANS
(SUCCESSOR TO HF 763)
(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 1108HZ 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.812, Code 2005, is amended to read as
2 5 follows:
2 6 523A.812 INSURANCE DIVISION REGULATORY FUND.
2 7 The insurance division may authorize the creation of a
2 8 special revenue fund in the state treasury, to be known as the
2 9 insurance division regulatory fund. The commissioner shall
2 10 allocate annually from the fees paid pursuant to section
2 11 523A.204, two dollars for each purchase agreement reported on
2 12 an establishment permit holder's annual report for deposit to
2 13 the regulatory fund. The remainder of the fees collected
2 14 pursuant to section 523A.204 shall be deposited into the
2 15 general fund of the state. The commissioner shall also
2 16 allocate annually the audit fees paid pursuant to section
2 17 523A.814 for deposit to the regulatory fund. The moneys in
2 18 the regulatory fund shall be retained in the fund. The moneys
2 19 are appropriated and, subject to authorization by the
2 20 commissioner, may be used to pay auditors, audit expenses,
2 21 investigative expenses, the expenses of mediation ordered by
2 22 the commissioner, consumer education expenses, the expenses of
2 23 a toll=free telephone line to receive consumer complaints, and
2 24 the expenses of receiverships established under section
2 25 523A.811. An annual allocation to the regulatory fund shall
2 26 not be imposed if the current balance of the fund exceeds two
2 27 hundred thousand dollars.
2 28 Sec. 5. NEW SECTION. 523A.814 AUDIT FEE.
2 29 In addition to the filing fee paid pursuant to section
2 30 523A.204, subsection 5, an establishment filing an annual
2 31 report shall pay an audit fee in the amount of five dollars
2 32 for each purchase agreement subject to a filing fee that is
2 33 sold between July 1, 2005, and December 31, 2007.
2 34 SUBCHAPTER 1
2 35 SHORT TITLE, DEFINITIONS, AND APPLICABILITY
3 1 Sec. 6. NEW SECTION. 523I.101 SHORT TITLE.
3 2 This chapter may be cited as the "Iowa Cemetery Act".
3 3 Sec. 7. NEW SECTION. 523I.102 DEFINITIONS.
3 4 For purposes of this chapter, unless the context otherwise
3 5 requires:
3 6 1. "Authorized to do business within this state" means a
3 7 person licensed, registered, or subject to regulation by an
3 8 agency of the state of Iowa or who has filed a consent to
3 9 service of process with the commissioner for purposes of this
3 10 chapter.
3 11 2. "Burial site" means any area, except a cemetery, that
3 12 is used to inter or scatter remains.
3 13 3. "Capital gains" means appreciation in the value of
3 14 trust assets for which a market value may be determined with
3 15 reasonable certainty after deduction of investment losses,
3 16 taxes, expenses incurred in the sale of trust assets, any
3 17 costs of the operation of the trust, and any annual audit
3 18 fees.
3 19 4. "Care fund" means funds set aside for the care of a
3 20 perpetual care cemetery, including all of the following:
3 21 a. Money or real or personal property impressed with a
3 22 trust by the terms of this chapter.
3 23 b. Contributions in the form of a gift, grant, or bequest.
3 24 c. Any accumulated income that the trustee of the fund or
3 25 the cemetery allocates to principal.
3 26 5. "Casket" means a rigid container which is designed for
3 27 the encasement of human remains and which is usually
3 28 constructed of wood, metal, fiberglass, plastic, or like
3 29 material and ornamented and lined with fabric.
3 30 6. "Cemetery" means any area that is or was open to use by
3 31 the public in general or any segment thereof and is used or is
3 32 intended to be used to inter or scatter remains. "Cemetery"
3 33 does not include the following:
3 34 a. A private burial site where use is restricted to
3 35 members of a family, if the interment rights are conveyed
4 1 without a monetary payment, fee, charge, or other valuable
4 2 form of compensation or consideration.
4 3 b. A private burial site where use is restricted to a
4 4 narrow segment of the public, if the interment rights are
4 5 conveyed without a monetary payment, fee, charge, or other
4 6 valuable form of compensation or consideration.
4 7 c. A pioneer cemetery.
4 8 7. "Columbarium" means a structure, room, or space in a
4 9 mausoleum or other building containing niches or recesses for
4 10 disposition of cremated remains.
4 11 8. "Commissioner" means the commissioner of insurance or
4 12 the deputy administrator authorized in section 523A.801 to the
4 13 extent the commissioner delegates functions to the deputy
4 14 administrator.
4 15 9. "Common business enterprise" means a group of two or
4 16 more business entities that share common ownership in excess
4 17 of fifty percent.
4 18 10. "Disinterment" means to remove human remains from
4 19 their place of final disposition.
4 20 11. "Doing business in this state" means issuing or
4 21 performing wholly or in part any term of an interment rights
4 22 agreement executed within the state of Iowa.
4 23 12. "Financial institution" means a state or federally
4 24 insured bank, savings and loan association, credit union,
4 25 trust department thereof, or a trust company that is
4 26 authorized to do business within this state, that has been
4 27 granted trust powers under the laws of this state or the
4 28 United States, and that holds funds under a trust agreement.
4 29 "Financial institution" does not include a cemetery or any
4 30 person employed by or directly involved with a cemetery.
4 31 13. "Garden" means an area within a cemetery established
4 32 by the cemetery as a subdivision for organizational purposes,
4 33 not for sale purposes.
4 34 14. "Grave space" means a space of ground in a cemetery
4 35 that is used or intended to be used for an in=ground burial.
5 1 15. "Gross selling price" means the aggregate amount a
5 2 purchaser is obligated to pay for interment rights, exclusive
5 3 of finance charges.
5 4 16. "Inactive cemetery" means a cemetery that is not
5 5 operating on a regular basis, is not offering to sell or
5 6 provide interments or other services reasonably necessary for
5 7 interment, and does not provide or permit reasonable ingress
5 8 or egress for the purposes of visiting interment spaces.
5 9 17. "Income" means the return in money or property derived
5 10 from the use of trust principal after deduction of investment
5 11 losses, taxes, and expenses incurred in the sale of trust
5 12 assets, any cost of the operation of the trust, and any annual
5 13 audit fees. "Income" includes but is not limited to:
5 14 a. Rent of real or personal property, including sums
5 15 received for cancellation or renewal of a lease and any
5 16 royalties.
5 17 b. Interest on money lent, including sums received as
5 18 consideration for prepayment of principal.
5 19 c. Cash dividends paid on corporate stock.
5 20 d. Interest paid on deposit funds or debt obligations.
5 21 e. Gain realized from the sale of trust assets.
5 22 18. "Insolvent" means the inability to pay debts as they
5 23 become due in the usual course of business.
5 24 19. "Interment rights" means the rights to place remains
5 25 in a specific location for use as a final resting place or
5 26 memorial.
5 27 20. "Interment rights agreement" means an agreement to
5 28 furnish memorials, memorialization, opening and closing
5 29 services, or interment rights.
5 30 21. "Interment space" means a space used or intended to be
5 31 used for the interment of remains including, but not limited
5 32 to, a grave space, lawn crypt, mausoleum crypt, and niche.
5 33 22. "Lawn crypt" means a preplaced enclosed chamber, which
5 34 is usually constructed of reinforced concrete and poured in
5 35 place, or a precast unit installed in quantity, either side=
6 1 by=side or at multiple depths, and covered by earth or sod.
6 2 23. "Lot" means an area in a cemetery containing more than
6 3 one interment space which is uniquely identified by an
6 4 alphabetical, numeric, or alphanumerical identification
6 5 system.
6 6 24. "Maintenance fund" means funds set aside for the
6 7 maintenance of a nonperpetual care cemetery, including all of
6 8 the following:
6 9 a. Money or real or personal property impressed with a
6 10 trust by the terms of this chapter.
6 11 b. Contributions in the form of a gift, grant or bequest.
6 12 c. Any accumulated income that the trustee of the fund or
6 13 the cemetery allocates to principal.
6 14 25. "Mausoleum" means an aboveground structure designed
6 15 for the entombment of human remains.
6 16 26. "Mausoleum crypt" means a chamber in a mausoleum of
6 17 sufficient size to contain casketed human remains.
6 18 27. "Memorial" means any product, including any foundation
6 19 other than a mausoleum or columbarium, used for identifying an
6 20 interment space or for commemoration of the life, deeds, or
6 21 career of a decedent including, but not limited to, a
6 22 monument, marker, niche plate, urn garden plaque, crypt plate,
6 23 cenotaph, marker bench, and vase.
6 24 28. "Memorial care" means any care provided or to be
6 25 provided for the general maintenance of memorials including
6 26 foundation repair or replacement, resetting or straightening
6 27 tipped memorials, repairing or replacing inadvertently damaged
6 28 memorials and any other care clearly specified in the purchase
6 29 agreement.
6 30 29. "Memorial dealer" means any person offering or selling
6 31 memorials retail to the public.
6 32 30. "Memorialization" means any permanent system designed
6 33 to mark or record the name and other data pertaining to a
6 34 decedent.
6 35 31. "Merchandise" means any personal property offered or
7 1 sold for use in connection with the funeral, final
7 2 disposition, memorialization, or interment of human remains,
7 3 but which is exclusive of interment rights.
7 4 32. "Neglected cemetery" means a cemetery where there has
7 5 been a failure to cut grass or weeds or care for graves,
7 6 memorials or memorialization, walls, fences, driveways, and
7 7 buildings, or for which proper records of interments have not
7 8 been maintained.
7 9 33. "Niche" means a recess or space in a columbarium or
7 10 mausoleum used for placement of cremated human remains.
7 11 34. "Opening and closing services" means one or more
7 12 services necessarily or customarily provided in connection
7 13 with the interment or entombment of human remains or a
7 14 combination thereof.
7 15 35. "Operating a cemetery" means offering to sell or
7 16 selling interment rights, or any service or merchandise
7 17 necessarily or customarily provided for a funeral, or for the
7 18 entombment or cremation of a dead human, or any combination
7 19 thereof, including but not limited to opening and closing
7 20 services, caskets, memorials, vaults, urns, and interment
7 21 receptacles.
7 22 36. "Outer burial container" means any container which is
7 23 designed for placement in the ground around a casket or an urn
7 24 including, but not limited to, containers commonly known as
7 25 burial vaults, urn vaults, grave boxes, grave liners, and lawn
7 26 crypts.
7 27 37. "Perpetual care cemetery" includes all of the
7 28 following:
7 29 a. Any cemetery that was organized or commenced business
7 30 in this state on or after July 1, 1995.
7 31 b. Any cemetery that has established a care fund in
7 32 compliance with section 523I.810.
7 33 c. Any cemetery that represents that it is a perpetual
7 34 care cemetery in its interment rights agreement.
7 35 d. Any cemetery that represents in any other manner that
8 1 the cemetery provides perpetual, permanent, or guaranteed
8 2 care.
8 3 38. "Person" means an individual, firm, corporation,
8 4 partnership, joint venture, limited liability company,
8 5 association, trustee, government or governmental subdivision,
8 6 agency, or other entity, or any combination thereof.
8 7 39. "Pioneer cemetery" means a cemetery where there were
8 8 six or fewer burials in the preceding fifty years.
8 9 40. "Purchaser" means a person who purchases memorials,
8 10 memorialization, opening and closing services, scattering
8 11 services, interment rights, or a combination thereof. A
8 12 purchaser need not be a beneficiary of the interment rights
8 13 agreement.
8 14 41. "Relative" means a great=grandparent, grandparent,
8 15 father, mother, spouse, child, brother, sister, nephew, niece,
8 16 uncle, aunt, first cousin, second cousin, third cousin, or
8 17 grandchild connected to a person by either blood or affinity.
8 18 42. "Religious cemetery" means a cemetery that is owned,
8 19 operated, or controlled by a recognized church or
8 20 denomination, or a cemetery designated as such in the Official
8 21 Catholic Directory on file with the insurance division or in a
8 22 similar publication of a recognized church or denomination, or
8 23 a cemetery that the commissioner determines is operating as a
8 24 religious cemetery upon review of an application by the
8 25 cemetery that includes a description of the cemetery's
8 26 affiliation with a recognized church or denomination, the
8 27 extent to which the affiliate organization is responsible for
8 28 the financial and contractual obligations of the cemetery, or
8 29 the provision of the Internal Revenue Code, if any, that
8 30 exempts the cemetery from the payment of federal income tax.
8 31 43. "Relocation" means the act of taking remains from the
8 32 place of interment or the place where the remains are being
8 33 held to another designated place.
8 34 44. "Remains" means the body of a deceased human or a body
8 35 part, or limb that has been removed from a living human,
9 1 including a body, body part, or limb in any stage of
9 2 decomposition, or cremated remains.
9 3 45. "Scattering services provider" means a person in the
9 4 business of scattering human cremated remains.
9 5 46. "Seller" means a person doing business within this
9 6 state, including a person doing business within this state who
9 7 advertises, sells, promotes, or offers to furnish memorials,
9 8 memorialization, opening and closing services, scattering
9 9 services or interment rights, or a combination thereof,
9 10 whether the transaction is completed or offered in person,
9 11 through the mail, over the telephone, by the internet, or
9 12 through any other means of commerce.
9 13 47. "Special care" means any care provided or to be
9 14 provided that supplements or exceeds the requirements of this
9 15 chapter in accordance with the specific directions of any
9 16 donor of funds for such purposes.
9 17 48. "Undeveloped space" means a designated area or
9 18 building within a cemetery that has been mapped and planned
9 19 for future development but is not yet fully developed.
9 20 Sec. 8. NEW SECTION. 523I.103 APPLICABILITY OF CHAPTER.
9 21 1. This chapter applies to all of the following:
9 22 a. All cemeteries, except religious cemeteries that
9 23 commenced business prior to July 1, 2005.
9 24 b. All persons advertising or offering memorials,
9 25 memorialization, opening and closing services, scattering
9 26 services at a cemetery, interment rights, or a combination
9 27 thereof for sale.
9 28 c. Interments made in areas not dedicated as a cemetery,
9 29 by a person other than the state archaeologist.
9 30 2. This chapter applies when a purchase agreement is
9 31 executed within this state or an advertisement, promotion, or
9 32 offer to furnish memorials, memorialization, opening and
9 33 closing services, scattering services, interment rights, or a
9 34 combination thereof is made or accepted within this state. An
9 35 offer to furnish memorials, memorialization, opening and
10 1 closing services, scattering services, interment rights, or a
10 2 combination thereof is made within this state, whether or not
10 3 either party is then present in this state, when the offer
10 4 originates from this state or is directed by the offeror to
10 5 this state and received by the offeree in this state through
10 6 the mail, over the telephone, by the internet, or through any
10 7 other means of commerce.
10 8 3. If a foreign person does not have a registered agent or
10 9 agents in the state of Iowa, doing business within this state
10 10 shall constitute the person's appointment of the secretary of
10 11 state of the state of Iowa to be its true and lawful attorney
10 12 upon whom may be served all lawful process of original notice
10 13 in actions or proceedings arising or growing out of any
10 14 contract or tort.
10 15 SUBCHAPTER 2
10 16 ADMINISTRATION AND ENFORCEMENT
10 17 Sec. 9. NEW SECTION. 523I.201 ADMINISTRATION.
10 18 1. This chapter shall be administered by the commissioner.
10 19 The deputy administrator appointed pursuant to section
10 20 523A.801 shall be the principal operations officer responsible
10 21 to the commissioner for the routine administration of this
10 22 chapter and management of the administrative staff. In the
10 23 absence of the commissioner, whether because of vacancy in the
10 24 office due to absence, physical disability, or other cause,
10 25 the deputy administrator shall, for the time being, have and
10 26 exercise the authority conferred upon the commissioner. The
10 27 commissioner may by order from time to time delegate to the
10 28 deputy administrator any or all of the functions assigned to
10 29 the commissioner in this chapter. The deputy administrator
10 30 shall employ officers, attorneys, accountants, and other
10 31 employees as needed for administering this chapter.
10 32 2. It is unlawful for the commissioner or any
10 33 administrative staff to use for personal benefit any
10 34 information which is filed with or obtained by the
10 35 commissioner and which is not made public. This chapter does
11 1 not authorize the commissioner or any staff member to disclose
11 2 any such information except among themselves or to other
11 3 cemetery and funeral administrators, regulatory authorities,
11 4 or governmental agencies, or when necessary and appropriate in
11 5 a proceeding or investigation under this chapter or as
11 6 required by chapter 22. This chapter neither creates nor
11 7 derogates any privileges that exist at common law or otherwise
11 8 when documentary or other evidence is sought under a subpoena
11 9 directed to the commissioner or any administrative staff.
11 10 Sec. 10. NEW SECTION. 523I.202 INVESTIGATIONS AND
11 11 SUBPOENAS.
11 12 1. The commissioner may, for the purpose of discovering a
11 13 violation of this chapter, or implementing rules or orders
11 14 issued under this chapter do any of the following:
11 15 a. Make such public or private investigations within or
11 16 outside of this state as the commissioner deems necessary to
11 17 determine whether any person has violated or is about to
11 18 violate this chapter, or implementing rules or orders issued
11 19 under this chapter, or to aid in the enforcement of this
11 20 chapter, or in the prescribing of rules and forms under this
11 21 chapter.
11 22 b. Require or permit any person to file a statement in
11 23 writing, under oath or otherwise as the commissioner or
11 24 attorney general determines, as to all the facts and
11 25 circumstances concerning the matter being investigated.
11 26 c. Notwithstanding chapter 22, keep confidential the
11 27 information obtained in the course of an investigation.
11 28 However, if the commissioner determines that it is necessary
11 29 or appropriate in the public interest or for the protection of
11 30 the public, the commissioner may share information with other
11 31 administrators, regulatory authorities, or governmental
11 32 agencies, or may publish information concerning a violation of
11 33 this chapter, or implementing rules or orders issued under
11 34 this chapter.
11 35 d. Investigate a cemetery and examine the books, accounts,
12 1 papers, correspondence, memoranda, purchase agreements, files,
12 2 or other documents or records of the cemetery.
12 3 e. Administer oaths and affirmations, subpoena witnesses,
12 4 compel their attendance, take evidence, and require the
12 5 production of any books, accounts, papers, correspondence,
12 6 memoranda, purchase agreements, files, or other documents or
12 7 records which the commissioner deems relevant or material to
12 8 any investigation or proceeding under this chapter and
12 9 implement rules, all of which may be enforced under chapter
12 10 17A.
12 11 f. Apply to the district court for an order requiring a
12 12 person's appearance before the commissioner or attorney
12 13 general, or a designee of either or both, in cases where the
12 14 person has refused to obey a subpoena issued by the
12 15 commissioner or attorney general. The person may also be
12 16 required to produce documentary evidence germane to the
12 17 subject of the investigation. Failure to obey a court order
12 18 under this subsection constitutes contempt of court.
12 19 2. The commissioner may issue and bring an action in
12 20 district court to enforce subpoenas within this state at the
12 21 request of an agency or administrator of another state, if the
12 22 activity constituting an alleged violation for which the
12 23 information is sought would be a violation of this chapter had
12 24 the activity occurred in this state.
12 25 Sec. 11. NEW SECTION. 523I.203 CEASE AND DESIST ORDERS
12 26 == INJUNCTIONS.
12 27 If it appears to the commissioner that a person has engaged
12 28 or is about to engage in an act or practice constituting a
12 29 violation of this chapter, or implementing rules or orders
12 30 issued under this chapter, the commissioner or the attorney
12 31 general may do any of the following:
12 32 1. Issue a summary order directed to the person that
12 33 requires the person to cease and desist from engaging in such
12 34 an act or practice. A person may request a hearing within
12 35 thirty days of issuance of the summary order. If a hearing is
13 1 not timely requested, the summary order shall become final by
13 2 operation of law. The order shall remain effective from the
13 3 date of issuance until the date the order becomes final by
13 4 operation of law or is overturned by a presiding officer
13 5 following a request for hearing. Section 17A.18A is
13 6 inapplicable to summary cease and desist orders issued under
13 7 this section.
13 8 2. Bring an action in the district court in any county of
13 9 the state for an injunction to restrain a person subject to
13 10 this chapter and any agents, employees, or associates of the
13 11 person from engaging in conduct or practices deemed contrary
13 12 to the public interest. In any proceeding for an injunction,
13 13 the commissioner or attorney general may apply to the court
13 14 for a subpoena to require the appearance of a defendant and
13 15 the defendant's agents, employees, or associates and for the
13 16 production of any books, accounts, papers, correspondence,
13 17 memoranda, purchase agreements, files, or other documents or
13 18 records germane to the hearing upon the petition for an
13 19 injunction. Upon a proper showing, a permanent or temporary
13 20 injunction, restraining order, or writ of mandamus shall be
13 21 granted and a receiver may be appointed for the defendant or
13 22 the defendant's assets. The commissioner or attorney general
13 23 shall not be required to post a bond.
13 24 Sec. 12. NEW SECTION. 523I.204 COURT ACTION FOR FAILURE
13 25 TO COOPERATE.
13 26 1. If a person fails or refuses to file a statement or
13 27 report or to produce any books, accounts, papers,
13 28 correspondence, memoranda, purchase agreements, files, or
13 29 other documents or records, or to obey a subpoena issued by
13 30 the commissioner, the commissioner may refer the matter to the
13 31 attorney general, who may apply to a district court to enforce
13 32 compliance. The court may order any or all of the following:
13 33 a. Injunctive relief restricting or prohibiting the offer
13 34 or sale of memorials, memorialization, opening and closing
13 35 services, scattering services, interment rights, or a
14 1 combination thereof.
14 2 b. Production of documents or records including but not
14 3 limited to books, accounts, papers, correspondence, memoranda,
14 4 purchase agreements, files, or other documents or records.
14 5 c. Such other relief as may be required.
14 6 2. A court order issued pursuant to subsection 1 is
14 7 effective until the person files the statement or report or
14 8 produces the documents requested, or obeys the subpoena.
14 9 Sec. 13. NEW SECTION. 523I.205 PROSECUTION FOR
14 10 VIOLATIONS OF LAW == CIVIL PENALTIES.
14 11 1. A violation of this chapter or rules adopted or orders
14 12 issued under this chapter is a violation of section 714.16,
14 13 subsection 2, paragraph "a". The remedies and penalties
14 14 provided by section 714.16, including but not limited to
14 15 injunctive relief and penalties, apply to violations of this
14 16 chapter.
14 17 2. If the commissioner believes that grounds exist for the
14 18 criminal prosecution of persons subject to this chapter for
14 19 violations of this chapter or any other law of this state, the
14 20 commissioner may forward to the attorney general or the county
14 21 attorney the grounds for the belief, including all evidence in
14 22 the commissioner's possession, so that the attorney general or
14 23 the county attorney may proceed with the matter as deemed
14 24 appropriate. At the request of the attorney general, the
14 25 county attorney shall appear and prosecute the action when
14 26 brought in the county attorney's county.
14 27 3. A person who violates a provision of this chapter or
14 28 rules adopted or orders issued under this chapter may be
14 29 subject to civil penalties in addition to criminal penalties.
14 30 The commissioner may impose, assess, and collect a civil
14 31 penalty not exceeding ten thousand dollars for each violation.
14 32 For the purposes of computing the amount of each civil
14 33 penalty, each day of a continuing violation constitutes a
14 34 separate violation. All civil penalties collected pursuant to
14 35 this section shall be deposited in the general fund of the
15 1 state.
15 2 Sec. 14. NEW SECTION. 523I.206 COOPERATION WITH OTHER
15 3 AGENCIES.
15 4 1. The commissioner may cooperate with any governmental
15 5 law enforcement or regulatory agency to encourage uniform
15 6 interpretation and administration of this chapter and
15 7 effective enforcement of this chapter and effective regulation
15 8 of the sale of memorials, memorialization, and cemeteries.
15 9 2. Cooperation with other agencies may include but is not
15 10 limited to:
15 11 a. Making a joint examination or investigation.
15 12 b. Holding a joint administrative hearing.
15 13 c. Filing and prosecuting a joint civil or administrative
15 14 proceeding.
15 15 d. Sharing and exchanging personnel.
15 16 e. Sharing and exchanging relevant information and
15 17 documents.
15 18 f. Formulating, in accordance with chapter 17A, rules or
15 19 proposed rules on matters such as statements of policy,
15 20 regulatory standards, guidelines, and interpretive opinions.
15 21 Sec. 15. NEW SECTION. 523I.207 RULES, FORMS, AND ORDERS.
15 22 1. Under chapter 17A, the commissioner may from time to
15 23 time make, amend, and rescind such rules, forms, and orders as
15 24 are necessary or appropriate for the protection of purchasers
15 25 and the public and to administer the provisions of this
15 26 chapter, its implementing rules, and orders issued under this
15 27 chapter.
15 28 2. A rule, form, or order shall not be made, amended, or
15 29 rescinded unless the commissioner finds that the action is
15 30 necessary or appropriate to protect purchasers and the public
15 31 and is consistent with the policies and provisions of this
15 32 chapter, its implementing rules, and orders issued under this
15 33 chapter.
15 34 3. A provision of this chapter imposing any liability does
15 35 not apply to an act done or omitted in good faith in
16 1 conformity with any rule, form, or order of the commissioner.
16 2 Sec. 16. NEW SECTION. 523I.208 DATE OF FILING ==
16 3 INTERPRETIVE OPINIONS.
16 4 1. A document is filed when it is received by the
16 5 commissioner.
16 6 2. Requests for interpretive opinions may be granted in
16 7 the commissioner's discretion.
16 8 Sec. 17. NEW SECTION. 523I.209 MISLEADING FILINGS.
16 9 It is unlawful for a person to make or cause to be made, in
16 10 any document filed with the commissioner, or in any proceeding
16 11 under this chapter, any statement of material fact which is,
16 12 at the time and in the light of the circumstances under which
16 13 it is made, false or misleading, or, in connection with such
16 14 statement, to omit to state a material fact necessary in order
16 15 to make the statements made, in the light of the circumstances
16 16 under which they are made, not misleading.
16 17 Sec. 18. NEW SECTION. 523I.210 MISREPRESENTATIONS OF
16 18 GOVERNMENT APPROVAL.
16 19 It is unlawful for a seller under this chapter to represent
16 20 or imply in any manner that the seller has been sponsored,
16 21 recommended, or approved, or that the seller's abilities or
16 22 qualifications have in any respect been passed upon by the
16 23 commissioner.
16 24 Sec. 19. NEW SECTION. 523I.211 FRAUDULENT PRACTICES.
16 25 A person who commits any of the following acts commits a
16 26 fraudulent practice which is punishable as provided in chapter
16 27 714:
16 28 1. Knowingly fails to comply with any requirement of this
16 29 chapter.
16 30 2. Knowingly makes, causes to be made, or subscribes to a
16 31 false statement or representation in a report or other
16 32 document required under this chapter, or implementing rules or
16 33 orders, or renders such a report or document misleading
16 34 through the deliberate omission of information properly
16 35 belonging in the report or document.
17 1 3. Conspires to defraud in connection with the sale of
17 2 memorials, memorialization, opening and closing services,
17 3 scattering services, interment rights, or a combination
17 4 thereof under this chapter.
17 5 4. Fails to deposit funds under this chapter or withdraws
17 6 funds in a manner inconsistent with this chapter.
17 7 5. Knowingly sells memorials, memorialization, opening and
17 8 closing services, scattering services, interment rights, or a
17 9 combination thereof without the permits required under this
17 10 chapter.
17 11 6. Deliberately misrepresents or omits a material fact
17 12 relative to the sale of memorials, memorialization, opening
17 13 and closing services, scattering services, interment rights,
17 14 or a combination thereof.
17 15 Sec. 20. NEW SECTION. 523I.212 RECEIVERSHIPS.
17 16 1. The commissioner shall notify the attorney general of
17 17 the potential need for establishment of a receivership if the
17 18 commissioner finds that a cemetery subject to this chapter
17 19 meets one or more of the following conditions:
17 20 a. Is insolvent.
17 21 b. Has utilized trust funds for personal or business
17 22 purposes in a manner inconsistent with this chapter.
17 23 c. The amount held in trust in a maintenance fund or care
17 24 fund is less than the amount required by this chapter.
17 25 2. The commissioner or attorney general may apply to the
17 26 district court in any county of the state for the
17 27 establishment of a receivership. Upon proof that any of the
17 28 conditions described in this section have occurred, the court
17 29 may grant a receivership.
17 30 Sec. 21. NEW SECTION. 523I.213 INSURANCE DIVISION'S
17 31 ENFORCEMENT FUND.
17 32 A special revenue fund in the state treasury, to be known
17 33 as the insurance division's enforcement fund, is created under
17 34 the authority of the commissioner. The commissioner shall
17 35 allocate annually from the audit fees paid pursuant to section
18 1 523I.808, an amount not exceeding fifty thousand dollars, for
18 2 deposit to the insurance division's enforcement fund. The
18 3 moneys in the enforcement fund shall be retained in the fund.
18 4 The moneys are appropriated and, subject to authorization by
18 5 the commissioner, shall be used to pay auditors, audit
18 6 expenses, investigative expenses, the expenses of consumer
18 7 education, compliance, and education programs for filers and
18 8 other regulated persons, and educational or compliance program
18 9 materials, the expenses of a toll=free telephone line for
18 10 consumer complaints, and the expenses of receiverships of
18 11 perpetual care cemeteries established under section 523I.212.
18 12 Sec. 22. NEW SECTION. 523I.214 VIOLATIONS OF LAW ==
18 13 REFERRALS TO THE DEPARTMENT OF PUBLIC HEALTH.
18 14 If the commissioner discovers a violation of a provision of
18 15 this chapter or any other state law or rule concerning the
18 16 disposal or transportation of human remains, the commissioner
18 17 shall forward all evidence in the possession of the
18 18 commissioner concerning such a violation to the department of
18 19 public health for such proceedings as the department of public
18 20 health deems appropriate.
18 21 SUBCHAPTER 3
18 22 CEMETERY MANAGEMENT
18 23 Sec. 23. NEW SECTION. 523I.301 DISCLOSURE REQUIREMENTS
18 24 == PRICES AND FEES.
18 25 1. A cemetery shall disclose, prior to the sale of
18 26 interment rights, whether opening and closing of the interment
18 27 space is included in the purchase of the interment rights. If
18 28 opening and closing services are not included in the sale and
18 29 the cemetery offers opening and closing services, the cemetery
18 30 must disclose that the price for this service is subject to
18 31 change and disclose the current prices for opening and closing
18 32 services provided by the cemetery.
18 33 2. The cemetery shall fully disclose all fees required for
18 34 interment, entombment, or inurnment of human remains.
18 35 3. A person owning interment rights may sell those rights
19 1 to third parties. The cemetery shall fully disclose, in the
19 2 cemetery's rules, any requirements necessary to transfer title
19 3 of interment rights to a third party.
19 4 Sec. 24. NEW SECTION. 523I.302 INSTALLATION OF OUTER
19 5 BURIAL CONTAINERS.
19 6 A cemetery shall provide services necessary for the
19 7 installation of outer burial containers or other similar
19 8 merchandise sold by the cemetery. This section shall not
19 9 require the cemetery to provide for opening and closing of
19 10 interment or entombment space, unless an agreement executed by
19 11 the cemetery expressly provides otherwise.
19 12 Sec. 25. NEW SECTION. 523I.303 ACCESS BY FUNERAL
19 13 DIRECTORS.
19 14 A cemetery shall not deny access to a licensed funeral
19 15 director who is conducting funeral services or supervising the
19 16 interment or disinterment of human remains.
19 17 Sec. 26. NEW SECTION. 523I.304 RULEMAKING AND
19 18 ENFORCEMENT.
19 19 1. A cemetery may adopt, amend, and enforce rules for the
19 20 use, care, control, management, restriction, and protection of
19 21 the cemetery, as necessary for the proper conduct of the
19 22 business of the cemetery, including, but not limited to, the
19 23 use, care, and transfer of any interment space or right of
19 24 interment.
19 25 2. A cemetery may restrict and limit the use of all
19 26 property within the cemetery by rules that do, but are not
19 27 limited to doing, all of the following:
19 28 a. Prohibit the placement of memorials or memorialization,
19 29 buildings, or other types of structures within any portion of
19 30 the cemetery.
19 31 b. Regulate the uniformity, class, and kind of memorials
19 32 and memorialization and structures within the cemetery.
19 33 c. Regulate the scattering or placement of cremated
19 34 remains within the cemetery.
19 35 d. Prohibit or regulate the placement of nonhuman remains
20 1 within the cemetery.
20 2 e. Prohibit or regulate the introduction or care of trees,
20 3 shrubs, and other types of plants within the cemetery.
20 4 f. Regulate the right of third parties to open, prepare
20 5 for interment, and close interment spaces.
20 6 g. Prohibit interment in any part of the cemetery not
20 7 designated as an interment space.
20 8 h. Prevent the use of space for any purpose inconsistent
20 9 with the use of the property as a cemetery.
20 10 3. A cemetery shall not adopt or enforce a rule that
20 11 prohibits interment because of the race, color, or national
20 12 origin of a decedent. A provision of a contract or a
20 13 certificate of ownership or other instrument conveying
20 14 interment rights that prohibits interment in a cemetery
20 15 because of the race, color, or national origin of a decedent
20 16 is void.
20 17 4. A cemetery's rules shall be plainly printed or
20 18 typewritten and maintained for inspection in the office of the
20 19 cemetery or, if the cemetery does not have an office, in
20 20 another suitable place within the cemetery. The cemetery's
20 21 rules shall be provided to owners of interment spaces upon
20 22 request.
20 23 5. A cemetery's rules shall specify the cemetery's
20 24 obligations in the event that interment spaces, memorials, or
20 25 memorialization are damaged or defaced by acts of vandalism.
20 26 The rules may specify a multiyear restoration of an interment
20 27 space, or a memorial or memorialization when the damage is
20 28 extensive or when money available from the cemetery's trust
20 29 fund is inadequate to complete repairs immediately. The owner
20 30 of an interment space, or a memorial or memorialization that
20 31 has been damaged or defaced shall be notified by the cemetery
20 32 by restricted certified mail at the owner's last known address
20 33 within sixty days of the discovery of the damage or
20 34 defacement. The rules shall specify whether the owner is
20 35 liable, in whole or in part, for the cost to repair or replace
21 1 an interment space or a damaged or defaced memorial or
21 2 memorialization.
21 3 6. The cemetery shall not approve any rule which
21 4 unreasonably restricts competition, or which unreasonably
21 5 increases the cost to the owner of interment rights in
21 6 exercising these rights.
21 7 Sec. 27. NEW SECTION. 523I.305 MEMORIALS AND
21 8 MEMORIALIZATION.
21 9 1. AUTHORIZATION. A cemetery is entitled to determine
21 10 whether a person requesting installation of a memorial is
21 11 authorized to do so, to the extent that this can be determined
21 12 from the records of the cemetery, as is consistent with the
21 13 cemetery's rules. The owner of an interment space or the
21 14 owner's agent may authorize a memorial dealer or independent
21 15 third party to perform all necessary work related to
21 16 preparation and installation of a memorial.
21 17 2. CONFORMITY WITH CEMETERY RULES. A person selling a
21 18 memorial shall review the rules of the cemetery where the
21 19 memorial is to be installed to ensure that the memorial will
21 20 comply with those rules prior to ordering or manufacturing the
21 21 memorial.
21 22 3. SPECIFICATIONS. Upon request, a cemetery shall provide
21 23 reasonable written specifications and instructions governing
21 24 installation of memorials, which shall apply to all
21 25 installations whether performed by the cemetery or another
21 26 person. The written specifications shall include provisions
21 27 governing hours of installation or any other relevant
21 28 administrative requirements of the cemetery. A copy of these
21 29 specifications and instructions shall be provided upon
21 30 request, without charge, to the owner of the interment space,
21 31 next of kin, or a personal representative or agent of the
21 32 owner, including the person installing the memorial. The
21 33 person installing the memorial shall comply with the
21 34 cemetery's written installation specifications and
21 35 instructions. A cemetery shall not adopt or enforce any rule
22 1 prohibiting the installation of a memorial by a memorial
22 2 dealer or independent third party, unless the rule is adopted
22 3 and enforced uniformly for all memorials installed in the
22 4 cemetery.
22 5 4. WRITTEN NOTICE. A memorial dealer or independent third
22 6 party shall provide the cemetery with at least seven business
22 7 days' prior written notice of intent to install a memorial at
22 8 the cemetery, or such lesser notice as the cemetery deems
22 9 acceptable. The notice shall contain the full name, address,
22 10 and relationship of the memorial's purchaser to the person
22 11 interred in the interment space or the owner of the interment
22 12 space, if different. The notice shall also contain the color,
22 13 type, and size of the memorial, the material, the inscription,
22 14 and the full name and interment date of the person interred in
22 15 the interment space.
22 16 5. PREPARATION AND INSTALLATION.
22 17 a. A person installing a memorial shall be responsible to
22 18 the cemetery for any damage caused to the cemetery grounds,
22 19 including roadways, other than normal use during installation
22 20 of the memorial.
22 21 b. Installation work shall cease during any nearby funeral
22 22 procession or committal service.
22 23 c. Installation work shall be done during the cemetery's
22 24 normal weekday hours or at such other times as may be arranged
22 25 with the cemetery.
22 26 d. A memorial must comply with the cemetery's rules. In
22 27 the event of noncompliance, the person installing a memorial
22 28 is responsible for removal of the memorial and shall pay any
22 29 reasonable expenses incurred by the cemetery in connection
22 30 with the memorial's removal.
22 31 e. The cemetery shall, without charge, provide information
22 32 as described on the cemetery's map or plat necessary to locate
22 33 the place where a memorial is to be installed and any other
22 34 essential information the person installing the memorial needs
22 35 to locate the proper interment space.
23 1 f. A person installing a memorial shall follow the
23 2 cemetery's instructions regarding the positioning of the
23 3 memorial.
23 4 g. During the excavation, all sod and dirt shall be
23 5 carefully removed with no sod or dirt left on the interment
23 6 space except the amount needed to fill the space between the
23 7 memorial and the adjacent lawn.
23 8 h. A person installing a memorial shall carefully fill in
23 9 any areas around the memorial with topsoil or sand, in
23 10 accordance with the cemetery's written instructions.
23 11 i. A person installing a memorial shall remove all
23 12 equipment and any debris which has accumulated during
23 13 installation of the memorial.
23 14 j. A person installing a memorial shall check to see if
23 15 any adjacent memorials have become soiled or dirty during
23 16 installation of the memorial and, if so, clean the adjacent
23 17 memorials.
23 18 k. If the person who is installing a memorial damages any
23 19 cemetery property, the person shall notify the cemetery
23 20 immediately. The person installing the memorial shall then
23 21 repair the damage as soon as possible, upon approval by the
23 22 cemetery. The cemetery may require a person installing a
23 23 memorial to provide current proof of workers' compensation
23 24 insurance as required by state law and current proof of
23 25 liability insurance, sufficient to indemnify the cemetery
23 26 against claims resulting from installation of the memorial.
23 27 Proof of liability insurance in an amount of one million
23 28 dollars or more shall preclude the cemetery from requiring a
23 29 person installing a memorial to obtain a performance bond.
23 30 l. If a cemetery has an office, a person installing a
23 31 memorial shall immediately leave notice at the cemetery office
23 32 when the memorial has been installed and all work related to
23 33 the installation is complete.
23 34 6. INSPECTION. A cemetery may inspect the installation
23 35 site of a memorial at any time. If the cemetery determines
24 1 that cemetery rules are not being followed during the
24 2 installation, the cemetery may order the installation to stop
24 3 until the infraction is corrected. The cemetery shall provide
24 4 written notice to the installer as soon as possible if the
24 5 cemetery believes that any of the following have occurred:
24 6 a. The memorial has not been installed correctly.
24 7 b. The person installing the memorial has damaged property
24 8 at the cemetery.
24 9 c. Other cemetery requirements for installation have not
24 10 been met, such as removal of debris or equipment.
24 11 7. LOCATION AND SERVICE CHARGE. A cemetery may charge a
24 12 reasonable service charge for allowing the installation of a
24 13 memorial purchased or obtained from and installed by a person
24 14 other than the cemetery or its agents. This service charge
24 15 shall be based on the cemetery's actual labor costs, including
24 16 fringe benefits, of those employees whose normal duty is to
24 17 inspect the installation of memorials, in accordance with
24 18 generally accepted accounting practices. General
24 19 administrative and overhead costs and any other functions not
24 20 related to actual inspection time shall be excluded from the
24 21 service charge.
24 22 8. FAULTY INSTALLATION. If a memorial sinks, tilts, or
24 23 becomes misaligned within twelve months of its installation
24 24 and the cemetery believes the cause is faulty installation,
24 25 the cemetery shall notify the person who installed the
24 26 memorial in writing and the person who installed the memorial
24 27 shall be responsible to correct the damage, unless the damage
24 28 is caused by inadequate written specifications and
24 29 instructions from the cemetery or acts of the cemetery and its
24 30 agents or employees, including but not limited to running a
24 31 backhoe over the memorial, carrying a vault or other heavy
24 32 equipment over the memorial, or opening or closing an
24 33 interment space adjacent to the memorial.
24 34 9. PERPETUAL CARE. A cemetery may require contributions
24 35 from the purchaser of a memorial for perpetual care, if a
25 1 perpetual care fund deposit is uniformly charged on every
25 2 memorial installed in the cemetery.
25 3 Sec. 28. NEW SECTION. 523I.306 COMMISSION OR BONUS
25 4 UNLAWFUL.
25 5 It shall be unlawful for any organization subject to the
25 6 provisions of this chapter to pay or offer to pay to, or for
25 7 any person, firm, or corporation to receive directly or
25 8 indirectly a commission or bonus or rebate or other thing of
25 9 value, for or in connection with the sale of any interment
25 10 space, lot, or part thereof, in any cemetery. The provisions
25 11 of this section shall not apply to a person regularly employed
25 12 and supervised by such organization or to a person, firm,
25 13 corporation, or other entity licensed under chapter 523A that
25 14 contracts with the cemetery to sell interment spaces or lots.
25 15 The conduct of any person, firm, corporation, or other entity
25 16 described in this section is the direct responsibility of the
25 17 cemetery.
25 18 Sec. 29. NEW SECTION. 523I.307 DISCRIMINATION
25 19 PROHIBITED.
25 20 It shall be unlawful for any organization subject to the
25 21 provisions of this chapter to deny the privilege of interment
25 22 of the remains of any deceased person in any cemetery solely
25 23 because of the race, color, or national origin of such
25 24 deceased person. Any contract, agreement, deed, covenant,
25 25 restriction, or charter provision at any time entered into, or
25 26 bylaw, rule, or regulation adopted or put in force, either
25 27 subsequent or prior to July 4, 1953, authorizing, permitting,
25 28 or requiring any organization subject to the provisions of
25 29 this chapter to deny such privilege of interment because of
25 30 race, color, or national origin of such deceased person is
25 31 hereby declared to be null and void and in conflict with the
25 32 public policy of this state. An organization subject to the
25 33 provisions of this chapter or any director, officer, agent,
25 34 employee, or trustee thereof, shall not be liable for damages
25 35 or other relief, or be subjected to any action in any court of
26 1 competent jurisdiction for refusing to commit any act unlawful
26 2 under this chapter.
26 3 Sec. 30. NEW SECTION. 523I.308 SPECULATION PROHIBITED.
26 4 A cemetery or any person representing a cemetery in a sales
26 5 capacity shall not advertise or represent, in connection with
26 6 the sale or attempted sale of any interment space, that the
26 7 same is or will be a desirable speculative investment for
26 8 resale purposes.
26 9 Sec. 31. NEW SECTION. 523I.309 INTERMENT, RELOCATION, OR
26 10 DISINTERMENT OF REMAINS.
26 11 1. Any available member of the following classes of
26 12 persons, in the priority listed, shall have the right to
26 13 control the interment, relocation, or disinterment of a
26 14 decedent's remains within or from a cemetery:
26 15 a. The attorney in fact of the decedent pursuant to a
26 16 durable power of attorney for health care.
26 17 b. The surviving spouse of the decedent.
26 18 c. The decedent's surviving adult children. If there is
26 19 more than one surviving adult child, any adult child who can
26 20 confirm, in writing, that all other adult children have been
26 21 notified of the proposed interment, relocation, or
26 22 disinterment may authorize the interment, relocation, or
26 23 disinterment, unless the cemetery receives an objection to
26 24 such action from another adult child of the decedent.
26 25 d. A surviving parent of the decedent.
26 26 e. A surviving adult sibling of the decedent.
26 27 f. A surviving grandparent of the decedent.
26 28 g. The legal guardian of the decedent at the time of the
26 29 decedent's death.
26 30 2. A person who represents that the person knows the
26 31 identity of a decedent and, in order to procure the interment,
26 32 relocation, or disinterment of the decedent's remains, signs
26 33 an order or statement, other than a death certificate, that
26 34 warrants the identity of the decedent is liable for all
26 35 damages that result, directly or indirectly, from that
27 1 representation.
27 2 3. A person may provide written directions for the
27 3 interment, relocation, or disinterment of the person's own
27 4 remains in a prepaid funeral or cemetery contract, or written
27 5 instrument signed and acknowledged by the person. The
27 6 directions may govern the inscription to be placed on a grave
27 7 marker attached to any interment space in which the decedent
27 8 had the right of interment at the time of death and in which
27 9 interment space the decedent is subsequently interred. The
27 10 directions may be modified or revoked only by a subsequent
27 11 writing signed and acknowledged by the person. A person other
27 12 than a decedent who is entitled to control the interment,
27 13 relocation, or disinterment of a decedent's remains under this
27 14 section shall faithfully carry out the directions of the
27 15 decedent to the extent that the decedent's estate or the
27 16 person controlling the interment, relocation, or disinterment
27 17 is financially able to do so.
27 18 4. A cemetery shall not be liable for carrying out the
27 19 written directions of a decedent or the directions of any
27 20 person entitled to control the interment, relocation, or
27 21 disinterment of the decedent's remains.
27 22 5. In the event of a dispute concerning the right to
27 23 control the interment, relocation, or disinterment of a
27 24 decedent's remains, the dispute may be resolved by a court of
27 25 competent jurisdiction. A cemetery shall not be liable for
27 26 refusing to accept the decedent's remains, relocate or
27 27 disinter, inter or otherwise dispose of the decedent's
27 28 remains, until the cemetery receives a court order or other
27 29 suitable confirmation that the dispute has been resolved or
27 30 settled.
27 31 6. a. If good cause exists to relocate or disinter
27 32 remains interred in a cemetery, the remains may be removed
27 33 from the cemetery pursuant to a disinterment permit as
27 34 required under section 144.34, with the written consent of the
27 35 cemetery, the current interment rights owner and the person
28 1 entitled by this section to control the interment, relocation,
28 2 or disinterment of the decedent's remains.
28 3 b. If the consent required by this subsection cannot be
28 4 obtained, the remains may be relocated by permission of the
28 5 district court of the county in which the cemetery is located.
28 6 Before the date of application to the court for permission to
28 7 relocate remains under this subsection, notice must be given
28 8 to the cemetery in which the remains are interred, each person
28 9 whose consent is required for relocation of the remains under
28 10 subsection 1, and any other person that the court requires to
28 11 be served.
28 12 c. For the purposes of this subsection, personal notice
28 13 must be given not later than the eleventh day before the date
28 14 of application to the court for permission to relocate or
28 15 disinter the remains, or notice by certified mail or
28 16 restricted certified mail must be given not later than the
28 17 sixteenth day before the date of application.
28 18 d. This subsection does not apply to the removal of
28 19 remains from one interment space to another interment space in
28 20 the same cemetery to correct an error, or relocation of the
28 21 remains by the cemetery from an interment space for which the
28 22 purchase price is past due and unpaid, to another suitable
28 23 interment space.
28 24 7. A person who removes remains from a cemetery shall keep
28 25 a record of the removal, and provide a copy to the cemetery,
28 26 that includes all of the following:
28 27 a. The date the remains are removed.
28 28 b. The name of the decedent and age at death if those
28 29 facts can be conveniently obtained.
28 30 c. The place to which the remains are removed.
28 31 d. The name of the cemetery and the location of the
28 32 interment space from which the remains are removed.
28 33 8. A cemetery may disinter and relocate remains interred
28 34 in the cemetery for the purpose of correcting an error made by
28 35 the cemetery after obtaining a disinterment permit as required
29 1 by section 144.34. The cemetery shall provide written notice
29 2 describing the error to the commissioner and to the person who
29 3 has the right to control the interment, relocation, or
29 4 disinterment of the remains erroneously interred, by
29 5 restricted certified mail at the person's last known address
29 6 and sixty days prior to the disinterment. The notice shall
29 7 include the location where the disinterment will occur and the
29 8 location of the new interment space. A cemetery is not
29 9 civilly or criminally liable for an erroneously made interment
29 10 that is corrected in compliance with this subsection unless
29 11 the error was the result of gross negligence or intentional
29 12 misconduct.
29 13 9. Relocations and disinterments of human remains shall be
29 14 done in compliance with sections 144.32 and 144.34.
29 15 Sec. 32. NEW SECTION. 523I.310 SALE OF INTERMENT RIGHTS.
29 16 1. For sales or transfers of interment rights made on or
29 17 after July 1, 2005, a cemetery shall issue a certificate of
29 18 interment rights or other instrument evidencing the conveyance
29 19 of exclusive rights of interment upon payment in full of the
29 20 purchase price.
29 21 2. The interment rights in an interment space that is
29 22 conveyed by a certificate of ownership or other instrument
29 23 shall not be divided without the consent of the cemetery.
29 24 3. A conveyance of exclusive rights of interment shall be
29 25 filed and recorded in the cemetery office. Any transfer of
29 26 the ownership of interment rights shall be filed and recorded
29 27 in the cemetery office. The cemetery may charge a reasonable
29 28 recording fee to record the transfer of interment rights.
29 29 Sec. 33. NEW SECTION. 523I.311 RECORDS OF INTERMENT
29 30 RIGHTS AND INTERMENT.
29 31 1. For sales or transfers of interment rights made on or
29 32 after July 1, 2005, a cemetery shall keep complete records
29 33 identifying the owners of all interment rights sold by the
29 34 cemetery and historical information regarding any transfers of
29 35 ownership. The records shall include all of the following:
30 1 a. The name and last known address of each owner or
30 2 previous owner of interment rights.
30 3 b. The date of each purchase or transfer of interment
30 4 rights.
30 5 c. A unique numeric or alphanumeric identifier that
30 6 identifies the location of each interment space sold by the
30 7 cemetery.
30 8 2. For interments made on or after July 1, 2005, a
30 9 cemetery shall keep a record of each interment in a cemetery.
30 10 The records shall include all of the following:
30 11 a. The date the remains are interred.
30 12 b. The name, date of birth, and date of death of the
30 13 decedent interred, if those facts can be conveniently
30 14 obtained.
30 15 c. A unique numeric or alphanumeric identifier that
30 16 identifies the location of the interment space where the
30 17 remains are interred.
30 18 Sec. 34. NEW SECTION. 523I.312 DISCLOSURE REQUIREMENTS
30 19 == INTERMENT AGREEMENTS.
30 20 1. Each nonperpetual care cemetery shall have printed or
30 21 stamped at the head of all of its contracts, deeds,
30 22 statements, letterheads, and advertising material, the legend:
30 23 "This is a nonperpetual care cemetery", and shall not sell any
30 24 lot or interment space in the cemetery unless the purchaser of
30 25 the interment space is informed that the cemetery is a
30 26 nonperpetual care cemetery.
30 27 2. An agreement for interment rights under this chapter
30 28 shall be written in clear, understandable language and do all
30 29 of the following:
30 30 a. Identify the seller and purchaser.
30 31 b. Identify the salesperson.
30 32 c. Specify the interment rights to be provided and the
30 33 cost of each item.
30 34 d. State clearly the conditions on which substitution will
30 35 be allowed.
31 1 e. Set forth the total purchase price and the terms under
31 2 which it is to be paid.
31 3 f. State clearly whether the agreement is revocable or
31 4 irrevocable, and if revocable, which parties have the
31 5 authority to revoke the agreement.
31 6 g. State the amount or percentage of money to be placed in
31 7 the cemetery's care or maintenance fund.
31 8 h. If the cemetery has a care fund, set forth an
31 9 explanation that the care fund is an irrevocable trust, that
31 10 deposits cannot be withdrawn even in the event of
31 11 cancellation, and that the trust's income shall be used by the
31 12 cemetery for its care.
31 13 i. Set forth an explanation of any fees or expenses that
31 14 may be charged.
31 15 j. Set forth an explanation of whether amounts for
31 16 perpetual care will be deposited in trust upon payment in full
31 17 or on an allocable basis as payments are made.
31 18 k. Set forth an explanation of whether initial payments on
31 19 agreements for multiple items of funeral and cemetery
31 20 merchandise or services, or both, will be allocated first to
31 21 the purchase of an interment space. If such an allocation is
31 22 to be made, the agreement shall provide for the immediate
31 23 transfer of such interment rights upon payment in full and
31 24 prominently state that any applicable trust deposits under
31 25 chapter 523A will not be made until the cemetery has received
31 26 payment in full for the interment rights. The transfer of an
31 27 undeveloped interment space may be deferred until the
31 28 interment space is ready for interment.
31 29 l. If the transfer of an undeveloped interment space will
31 30 be deferred until the interment space is ready for interment
31 31 as permitted in paragraph "k", the agreement shall provide for
31 32 some form of written acknowledgement upon payment in full,
31 33 specify a reasonable time period for development of the
31 34 interment space, describe what happens in the event of a death
31 35 prior to development of the interment space, and provide for
32 1 the immediate transfer of the interment rights when
32 2 development of the interment space is complete.
32 3 m. Specify the purchaser's right to cancel and the damages
32 4 payable for cancellation, if any.
32 5 n. State the name and address of the commissioner.
32 6 Sec. 35. NEW SECTION. 523I.313 NEW CEMETERIES AND
32 7 GARDENS AND CEMETERY REGISTRY.
32 8 1. A person that dedicates property for a new cemetery on
32 9 or after July 1, 2005, and a cemetery that dedicates an
32 10 additional garden on or after July 1, 2005, shall:
32 11 a. In the case of land, survey and subdivide the property
32 12 into gardens with descriptive names or numbers and make a map
32 13 or plat of the cemetery or garden.
32 14 b. In the case of a mausoleum or a columbarium, make a map
32 15 or plat of the property delineating sections or other
32 16 divisions with descriptive names and numbers.
32 17 c. File the map or plat with the commissioner, including a
32 18 written certificate or declaration of dedication of the
32 19 property delineated by the map or plat, dedicating the
32 20 property for cemetery purposes.
32 21 2. A map or plat and a certificate or declaration of
32 22 dedication that is filed pursuant to this section dedicates
32 23 the property for cemetery purposes and constitutes
32 24 constructive notice of that dedication.
32 25 3. The commissioner shall maintain a registry of perpetual
32 26 care and nonperpetual care cemeteries, to the extent that
32 27 information is available. A cemetery selling interment rights
32 28 on or after July 1, 2005, shall file a written notice with the
32 29 commissioner that includes the legal description of the
32 30 property with boundary lines of the land, the name of the
32 31 cemetery, the status of the cemetery as either perpetual care
32 32 or nonperpetual care, the status of the cemetery as either
32 33 religious or nonreligious, and the cemetery's ownership in a
32 34 form approved by the commissioner. A cemetery shall notify
32 35 the commissioner of any changes in this information within
33 1 sixty days of the change.
33 2 Sec. 36. NEW SECTION. 523I.314 NEW CONSTRUCTION.
33 3 1. A person shall not offer to sell interment rights in a
33 4 mausoleum or columbarium that will be built or completed in
33 5 the future unless the person has notified the commissioner of
33 6 the offer to sell on a form prescribed by the commissioner.
33 7 2. The notice of an offer to sell interment rights in such
33 8 a mausoleum or columbarium shall include the following
33 9 information:
33 10 a. A description of the new facility or the proposed
33 11 expansion, including a description of the interment rights to
33 12 be offered to prospective purchasers.
33 13 b. A statement of the financial resources available for
33 14 the project.
33 15 c. A copy of the proposed interment rights agreement to be
33 16 used, which shall include the following:
33 17 (1) That purchase payments will be held in trust in
33 18 accordance with the requirements of chapter 523A until
33 19 construction of the mausoleum or columbarium is complete.
33 20 (2) That the purchaser may request a refund of the
33 21 purchase amount, if construction does not begin within five
33 22 years of the purchaser's first payment.
33 23 (3) That the new facility will operate as a perpetual care
33 24 cemetery in compliance with this chapter, even if the facility
33 25 is located at a nonperpetual care cemetery.
33 26 (4) That the purchaser will receive an ownership
33 27 certificate upon payment in full or, if later, when
33 28 construction is complete.
33 29 3. Unless financing has been secured that is adequate in
33 30 amount and terms to complete the facility proposed, new
33 31 construction of a mausoleum or columbarium shall not begin
33 32 until the notice required by this section has been approved by
33 33 the commissioner.
33 34 Sec. 37. NEW SECTION. 523I.315 UNPAID CARE ASSESSMENTS
33 35 AND UNOCCUPIED INTERMENT SPACES.
34 1 1. FORECLOSURE == UNPAID ASSESSMENTS. Unpaid care
34 2 assessments for an unoccupied interment space not under
34 3 perpetual care shall create a lien by the cemetery against the
34 4 applicable interment space. The cemetery may, following
34 5 notice, foreclose on the interment space if the amount of the
34 6 lien exceeds the amount paid for the interment space. If the
34 7 lien is not paid within one year from the date that notice of
34 8 foreclosure is served on the owner of record or the owner of
34 9 record's heirs, the ownership in or right to the unoccupied
34 10 interment space shall revert to the cemetery that owns the
34 11 cemetery in which the unoccupied interment space is located.
34 12 2. ABANDONMENT == QUIET TITLE ACTION. A cemetery may file
34 13 an action to quiet title to determine whether an interment
34 14 space has been abandoned if the interment space is unoccupied
34 15 and has not been occupied in the preceding seventy=five years.
34 16 An action to quiet title shall commence when the cemetery
34 17 serves notice on the owner of record or the owner of record's
34 18 heirs declaring that the interment space is considered to be
34 19 abandoned. If the owner of record or the owner of record's
34 20 heirs do not respond within three years from the date that
34 21 notice is served, the abandonment is considered to be
34 22 complete. The ownership in or right to an abandoned interment
34 23 space shall revert to the cemetery in which the abandoned
34 24 interment space is located and the cemetery may sell and
34 25 convey title to the interment space.
34 26 3. SERVICE OF NOTICE. Notice under this section shall be
34 27 served personally on the owner of record or the owner of
34 28 record's heirs, or may be served by mailing notice by
34 29 certified mail to the owner of record or to the owner of
34 30 record's heirs at the last known address. If the address of
34 31 the owner of record or the owner of record's heirs cannot be
34 32 ascertained, notice of abandonment shall be given by one
34 33 publication of the notice in the official newspaper of the
34 34 county in which the cemetery is located.
34 35 Sec. 38. NEW SECTION. 523I.316 PROTECTION OF CEMETERIES
35 1 AND BURIAL SITES.
35 2 1. EXISTENCE OF CEMETERY OR BURIAL SITE == NOTIFICATION.
35 3 If a governmental subdivision is notified of the existence of
35 4 a cemetery, or a marked burial site that is not located in a
35 5 dedicated cemetery, within its jurisdiction and the cemetery
35 6 or burial site is not otherwise provided for under this
35 7 chapter, the governmental subdivision shall, as soon as is
35 8 practicable, notify the owner of the land upon which the
35 9 cemetery or burial site is located of the cemetery's or burial
35 10 site's existence and location. The notification shall include
35 11 an explanation of the provisions of this section. If there is
35 12 a basis to believe that interment may have occurred more than
35 13 one hundred fifty years earlier, the governmental subdivision
35 14 shall also notify the state archaeologist.
35 15 2. DISTURBANCE OF INTERMENT SPACES == PENALTY. A person
35 16 who knowingly and without authorization damages, defaces,
35 17 destroys, or otherwise disturbs an interment space commits
35 18 criminal mischief in the third degree. Criminal mischief in
35 19 the third degree is an aggravated misdemeanor.
35 20 3. DUTY TO PRESERVE AND PROTECT. A governmental
35 21 subdivision having a cemetery, or a burial site that is not
35 22 located within a dedicated cemetery, within its jurisdiction,
35 23 for which preservation is not otherwise provided, shall
35 24 preserve and protect the cemetery or burial site as necessary
35 25 to restore or maintain its physical integrity as a cemetery or
35 26 burial site. The governmental subdivision may enter into an
35 27 agreement to delegate the responsibility for the preservation
35 28 and protection of the cemetery or burial site to a private
35 29 organization interested in historical preservation.
35 30 4. CONFISCATION AND RETURN OF MEMORIALS. A law
35 31 enforcement officer having reason to believe that a memorial
35 32 or memorialization is in the possession of a person without
35 33 authorization or right to possess the memorial or
35 34 memorialization may take possession of the memorial or
35 35 memorialization from that person and turn it over to the
36 1 officer's law enforcement agency. If a law enforcement agency
36 2 determines that a memorial or memorialization the agency has
36 3 taken possession of rightfully belongs on an interment space,
36 4 the agency shall return the memorial or memorialization to the
36 5 interment space, or make arrangements with the person having
36 6 jurisdiction over the interment space for its return.
36 7 5. BURIAL SITES LOCATED ON PRIVATE PROPERTY.
36 8 a. If a person notifies a governmental subdivision that a
36 9 burial site of the person's relative is located on property
36 10 owned by another person within the jurisdiction of the
36 11 governmental subdivision, the governmental subdivision shall
36 12 notify the property owner of the location of the burial site
36 13 and that the property owner is required to permit the person
36 14 reasonable ingress and egress for the purposes of visiting the
36 15 burial site of the person's relative.
36 16 b. Pursuant to section 558.69, each declaration of value
36 17 submitted to a county recorder pursuant to chapter 428A shall
36 18 be accompanied by a statement concerning whether or not any
36 19 known private burial sites are located on the property.
36 20 6. DISCOVERY OF HUMAN REMAINS. Any person discovering
36 21 human remains shall notify the county or state medical
36 22 examiner or a city, county, or state law enforcement agency as
36 23 soon as is reasonably possible unless the person knows or has
36 24 good reason to believe that such notice has already been given
36 25 or the discovery occurs in a cemetery. If there is reason to
36 26 believe that interment may have occurred more than one hundred
36 27 fifty years earlier, the governmental subdivision notified
36 28 shall also notify the state archaeologist. A person who does
36 29 not provide notice required pursuant to this subsection
36 30 commits a serious misdemeanor.
36 31 SUBCHAPTER 4
36 32 COUNTY CEMETERY COMMISSIONS AND NEGLECTED CEMETERIES
36 33 Sec. 39. NEW SECTION. 523I.401 NEGLECTED CEMETERIES.
36 34 The commissioner shall create a form that interested
36 35 persons may use to report neglected cemeteries to the
37 1 commissioner. The commissioner shall catalog and review the
37 2 neglected cemetery reports received on or before December 31,
37 3 2007, conduct site visits as warranted to determine the nature
37 4 or extent of any neglect, and publish a report of findings on
37 5 or before December 31, 2008.
37 6 Sec. 40. NEW SECTION. 523I.402 REMOVAL OF REMAINS.
37 7 1. Upon a showing of good cause, a county cemetery
37 8 commission may file suit in the district court in that county
37 9 to have remains interred in a cemetery owned and operated by
37 10 the commission removed to another cemetery. All persons in
37 11 interest, known or unknown, other than the plaintiffs, shall
37 12 be made defendants to the suit. If any parties are unknown,
37 13 notice may be given by publication. After hearing and a
37 14 showing of good cause for the removal, the court may order the
37 15 removal of the remains and the remains shall be properly
37 16 interred in another cemetery, at the expense of the county.
37 17 The removal and reinterment of the remains shall be done
37 18 pursuant to a disinterment permit issued under section 144.34
37 19 with due care and decency. In deciding whether to order the
37 20 removal of interred remains, a court shall consider present or
37 21 future access to the cemetery, the historical significance of
37 22 the cemetery, and the wishes of the parties concerned if they
37 23 are brought to the court's attention, including the desire of
37 24 any beneficiaries to reserve their rights to waive a
37 25 reservation of rights in favor of removal, and shall exercise
37 26 the court's sound discretion in granting or refusing the
37 27 removal of interred remains.
37 28 2. Any heir at law or descendent of a deceased person
37 29 interred in a neglected cemetery may file suit in the district
37 30 court in the county where the cemetery is located, to have the
37 31 deceased person's remains interred in the cemetery removed to
37 32 another cemetery. The owner of the land, any beneficiaries of
37 33 any reservation of rights, and any other persons in interest,
37 34 known or unknown, other than the plaintiffs shall be made
37 35 defendants. If any parties are unknown, notice may be given
38 1 by publication. After hearing and upon a showing of good
38 2 cause, the court may order removal and the proper interment of
38 3 the remains in another cemetery, at the expense of the
38 4 petitioner. The removal and reinterment shall be done with
38 5 due care and decency.
38 6 SUBCHAPTER 5
38 7 GOVERNMENTAL SUBDIVISIONS
38 8 Sec. 41. NEW SECTION. 523I.501 CEMETERY AUTHORIZED.
38 9 The governing body of a governmental subdivision may
38 10 purchase, establish, operate, enclose, improve, or regulate a
38 11 cemetery. A cemetery owned or operated by a governmental
38 12 subdivision may sell interment rights subject to the
38 13 provisions of this chapter.
38 14 Sec. 42. NEW SECTION. 523I.502 TRUST FOR CEMETERY.
38 15 1. A governmental subdivision that owns or operates a
38 16 cemetery or has control of cemetery property may act as a
38 17 permanent trustee for the perpetual maintenance of interment
38 18 spaces in the cemetery.
38 19 2. To act as a trustee, a majority of the governmental
38 20 subdivision's governing body must adopt an ordinance or
38 21 resolution stating the governmental subdivision's willingness
38 22 and intention to act as a trustee for the perpetual
38 23 maintenance of cemetery property. When the ordinance or
38 24 resolution is adopted and the trust is accepted, the trust is
38 25 perpetual.
38 26 Sec. 43. NEW SECTION. 523I.503 AUTHORITY TO RECEIVE
38 27 GIFTS AND DEPOSITS FOR CARE == CERTIFICATES.
38 28 1. A governmental subdivision that is a trustee for the
38 29 perpetual maintenance of a cemetery may adopt reasonable rules
38 30 governing the receipt of a gift or grant from any source.
38 31 2. A governmental subdivision that is a trustee for a
38 32 person shall accept the amount the governmental subdivision
38 33 requires for permanent maintenance of an interment space on
38 34 behalf of that person or a decedent.
38 35 3. A governmental subdivision's acceptance of a deposit
39 1 for permanent maintenance of an interment space constitutes a
39 2 perpetual trust for the designated interment space.
39 3 4. Upon acceptance of a deposit, a governmental
39 4 subdivision's secretary, clerk, or mayor shall issue a
39 5 certificate in the name of the governmental subdivision to the
39 6 trustee or depositor. The certificate shall state all of the
39 7 following:
39 8 a. The depositor's name.
39 9 b. The amount and purpose of the deposit.
39 10 c. The location, with as much specificity as possible, of
39 11 the interment space to be maintained.
39 12 d. Other information required by the governmental
39 13 subdivision.
39 14 5. An individual, association, foundation, or corporation
39 15 that is interested in the maintenance of a neglected cemetery
39 16 in a governmental subdivision's possession and control may
39 17 donate funds to the cemetery's perpetual trust fund to
39 18 beautify and maintain the entire cemetery or burial grounds
39 19 generally.
39 20 Sec. 44. NEW SECTION. 523I.504 APPOINTMENT OF SUCCESSOR
39 21 TRUSTEE.
39 22 A district judge of a county in which a cemetery is located
39 23 shall appoint a suitable successor or trustee to faithfully
39 24 execute a trust in accordance with this subchapter if a
39 25 governmental subdivision renounces a trust assumed under this
39 26 subchapter, fails to act as its trustee, a vacancy occurs, or
39 27 the appointment of a successor or trustee is otherwise
39 28 necessary.
39 29 Sec. 45. NEW SECTION. 523I.505 COUNTY AUDITOR AS
39 30 TRUSTEE.
39 31 1. In the absence of a trustee for care funds, unless
39 32 otherwise provided by law, the care funds shall be placed in
39 33 the hands of the county auditor, who shall provide a receipt
39 34 for, loan, and make annual reports of the care funds.
39 35 2. The county auditor shall not be required to post a
40 1 bond.
40 2 3. The county auditor shall serve without compensation,
40 3 but may, out of the income received, pay all proper items of
40 4 expense incurred in the performance of the auditor's duties as
40 5 trustee, if any.
40 6 4. The county auditor shall make a full report of the
40 7 trustee's actions and trust funds annually in January. The
40 8 net proceeds for care funds received by the county auditor as
40 9 trustee shall be apportioned and credited to each of any
40 10 separate care funds assigned to the auditor.
40 11 5. The county auditor shall turn over the accrued income
40 12 from each care fund annually to the person having control of
40 13 the cemetery.
40 14 Sec. 46. NEW SECTION. 523I.506 COMMINGLING OF CARE FUNDS
40 15 BY GOVERNMENTAL SUBDIVISIONS.
40 16 A governmental subdivision subject to this section may
40 17 commingle care funds for more than one cemetery for the
40 18 purposes of investment and administration and may file a
40 19 single report, if each cemetery is appropriately identified
40 20 and separate records are maintained for each cemetery.
40 21 Sec. 47. NEW SECTION. 523I.507 INVESTMENT OF CARE FUNDS
40 22 BY GOVERNMENTAL SUBDIVISIONS.
40 23 Notwithstanding section 12B.10, a perpetual care cemetery
40 24 owned by a governmental subdivision may invest and reinvest
40 25 deposits pursuant to the requirements of this chapter. The
40 26 trustee shall use the judgment and care under the
40 27 circumstances then prevailing that persons of prudence,
40 28 discretion, and intelligence exercise in the management of
40 29 their own affairs, not in regard to speculation but in regard
40 30 to the permanent disposition of their funds, considering the
40 31 probable income as well as the probable safety of their
40 32 capital. The trustee of the trust funds has a fiduciary duty
40 33 to make reasonable investment decisions and to properly
40 34 oversee and manage the funds entrusted to the trust fund.
40 35 Sec. 48. NEW SECTION. 523I.508 MANAGEMENT BY
41 1 GOVERNMENTAL SUBDIVISIONS.
41 2 1. POLITICAL SUBDIVISIONS AS TRUSTEES. Counties, cities,
41 3 irrespective of their form of government, boards of trustees
41 4 of cities to whom the management of municipal cemeteries has
41 5 been transferred by ordinance, and civil townships wholly
41 6 outside of any city, are trustees in perpetuity, and are
41 7 required to accept, receive, and expend all moneys and
41 8 property donated or left to them by bequest for perpetual
41 9 care, and that portion of interment space sales or permanent
41 10 charges made against interment spaces which has been set aside
41 11 in a perpetual care fund for which there is no other acting
41 12 trustee, shall be used in caring for the property of the donor
41 13 or lot owner who by purchase or otherwise has provided for the
41 14 perpetual care of an interment space in any cemetery, or in
41 15 accordance with the terms of the donation, bequest, or
41 16 agreement for sale and purchase of an interment space, and the
41 17 money or property thus received shall be used for no other
41 18 purpose.
41 19 2. AUTHORITY TO INVEST FUNDS == CURRENT CARE CHARGE
41 20 PAYMENTS. The board of supervisors, mayor and council, or
41 21 other elected governmental body, as the case may be, may
41 22 receive and invest all moneys and property, donated or
41 23 bequeathed, and that portion of cemetery lot sales and
41 24 permanent charges made against cemetery lots which have been
41 25 set aside in a perpetual care fund, and in so investing, shall
41 26 use the judgment and care under the circumstances then
41 27 prevailing that persons of prudence, discretion, and
41 28 intelligence exercise in the management of their own affairs
41 29 not in regard to speculation but in regard to the permanent
41 30 disposition of their funds, considering the probable income as
41 31 well as the probable safety of their capital. The trustee of
41 32 the trust funds has a fiduciary duty to make reasonable
41 33 investment decisions and to properly oversee and manage the
41 34 funds entrusted to the trust fund. The income from the
41 35 investment shall be used in caring for the property of the
42 1 donor in any cemetery, or as provided in the terms of the gift
42 2 or donations or agreement for sale and purchase of a cemetery
42 3 lot.
42 4 All current care charge payments received shall be
42 5 allocated to the perpetual care fund or to the fund paying the
42 6 costs of cemetery operations. Care charge payments received
42 7 one year or more after the date they were incurred shall be
42 8 used to fund the cost of operating the cemetery. Care charge
42 9 payments received one year or more in advance of their due
42 10 date shall be deposited in the perpetual care fund. Interest
42 11 from the perpetual care fund shall be used for the maintenance
42 12 of both occupied and unoccupied lots or spaces. Any remaining
42 13 interest may be used for costs of access roads and paths,
42 14 fencing, and general maintenance of the cemetery. Lots under
42 15 perpetual care shall be maintained in accordance with the
42 16 cemetery covenants of sale.
42 17 3. RESOLUTION OF ACCEPTANCE == INTEREST. Before any part
42 18 of the principal may be invested or used, the county, city,
42 19 board of trustees of a city to whom the management of a
42 20 municipal cemetery has been transferred by ordinance, or civil
42 21 township shall, by resolution, accept the moneys described in
42 22 subsection 1 and, by resolution, shall provide for the payment
42 23 of interest annually to the appropriate fund, or to the
42 24 cemetery, or the person in charge of the cemetery, to be used
42 25 in caring for or maintaining the individual property of the
42 26 donor in the cemetery, or interment spaces which have been
42 27 sold if provision was made for perpetual care, all in
42 28 accordance with the terms of the donation or bequest, or the
42 29 terms of the sale or purchase of an interment space.
42 30 If there is no person in charge of the cemetery, the income
42 31 from the fund shall be expended under the direction of the
42 32 board of supervisors, city council, board of trustees, or
42 33 civil township trustees, as the case may be, in accordance
42 34 with the terms of the donation or bequest, or the terms of the
42 35 sale or purchase of an interment space.
43 1 4. DELEGATES TO CONVENTIONS. A township having one or
43 2 more cemeteries under its control may designate, not to exceed
43 3 two, officials from each cemetery as delegates to attend
43 4 meetings of cemetery officials, and certain expenses,
43 5 including association dues, not to exceed twenty=five dollars,
43 6 of the delegates may be paid out of the cemetery fund of the
43 7 township.
43 8 5. SUBSCRIBING TO PUBLICATIONS. The cemetery officials of
43 9 every township having a cemetery under its control may
43 10 subscribe to one or more publications devoted exclusively to
43 11 cemetery management, and the subscriptions may be paid out of
43 12 the cemetery fund of the township.
43 13 SUBCHAPTER 6
43 14 GENERAL PROVISIONS
43 15 Sec. 49. NEW SECTION. 523I.601 SETTLEMENT OF ESTATES ==
43 16 MAINTENANCE FUND.
43 17 The court in which the estate of a deceased person is
43 18 administered, before final distribution, may allow and set
43 19 apart from the estate a sum sufficient to provide an income
43 20 adequate to pay for the perpetual care and upkeep of the
43 21 interment spaces upon which the body of the deceased is
43 22 buried, except where perpetual care has otherwise been
43 23 provided for. The sum so allowed and set apart shall be paid
43 24 to a trustee as provided by this chapter.
43 25 Sec. 50. NEW SECTION. 523I.602 MANAGEMENT BY TRUSTEE.
43 26 1. TRUSTEE APPOINTED == TRUST FUNDS. The owners of, or
43 27 any party interested in, a cemetery may, by petition presented
43 28 to the district court of the county where the cemetery is
43 29 situated, have a trustee appointed with authority to receive
43 30 any and all moneys or property that may be donated for and on
43 31 account of the cemetery and to invest, manage, and control the
43 32 moneys or property under the direction of the court. However,
43 33 the trustee shall not be authorized to receive any gift,
43 34 except with the understanding that the principal sum is to be
43 35 a permanent fund, and only the net proceeds therefrom shall be
44 1 used in carrying out the purpose of the trust created, and all
44 2 such funds shall be exempt from taxation.
44 3 2. REQUISITES OF PETITION. The petition shall state the
44 4 amount proposed to be placed in such trust fund, the manner of
44 5 investment thereof, and the provisions made for the
44 6 disposition of any surplus income not required for the care
44 7 and upkeep of the property described in such petition.
44 8 3. APPROVAL OF COURT == SURPLUS FUND. Such provisions
44 9 shall be subject to the approval of the court and when so
44 10 approved the trust fund and the trustee thereof shall, at all
44 11 times, be subject to the orders and control of the court and
44 12 such surplus arising from the trust fund shall not be used
44 13 except for charitable, eleemosynary, or public purposes under
44 14 the direction of the court.
44 15 4. RECEIPT == CEMETERY RECORD. Every such trustee shall
44 16 execute and deliver to the donor a receipt showing the amount
44 17 of money or other property received, and the use to be made of
44 18 the net proceeds from the same, duly attested by the clerk of
44 19 the court granting letters of trusteeship, and a copy thereof,
44 20 signed by the trustee and so attested, shall be filed with and
44 21 recorded by the clerk in a book to be known as the cemetery
44 22 record, in which shall be recorded all reports and other
44 23 papers, including orders made by the court relative to
44 24 cemetery matters.
44 25 5. INVESTMENTS. Any such trustee may receive and invest
44 26 all moneys and property, so donated or bequeathed, and that
44 27 portion of cemetery lot sales and permanent charges made
44 28 against interment spaces which has been set aside in a
44 29 perpetual care fund, in such authorized investments and in the
44 30 manner prescribed in section 636.23.
44 31 6. BOND == APPROVAL == OATH. Every such trustee before
44 32 entering upon the discharge of the trustee's duties or at any
44 33 time thereafter when required by the court shall give a bond
44 34 in an amount as may be required by the court, approved by the
44 35 clerk, and conditioned for the faithful discharge of the
45 1 trustee's duties, and take and subscribe an oath the same in
45 2 substance as the condition of the bond, which bond and oath
45 3 must be filed with the clerk.
45 4 7. CLERK == DUTY OF. At the time of filing each bond and
45 5 oath the clerk shall at once advise the court as to the amount
45 6 of the principal fund in the hands of such trustee, the amount
45 7 of the bond filed, and whether it is good and sufficient for
45 8 the amount given.
45 9 8. COMPENSATION == COSTS. Such trustee shall serve
45 10 without compensation, but may, out of the income received, pay
45 11 all proper items of expense incurred in the performance of the
45 12 trustee's duties, including cost of the bond, if any.
45 13 9. ANNUAL REPORT. Such trustee shall make a full report
45 14 of the trustee's doings in the month of January following
45 15 appointment and in January of each successive year. In each
45 16 report the trustee shall apportion the net proceeds received
45 17 from the sum total of the permanent funds assigned to the
45 18 trustee in trust.
45 19 10. REMOVAL == VACANCY FILLED. Any such trustee may be
45 20 removed by the court at any time for cause, and in the event
45 21 of removal or death, the court shall appoint a new trustee and
45 22 require the new trustee's predecessor or the predecessor's
45 23 personal representative to make a full accounting.
45 24 Sec. 51. NEW SECTION. 523I.603 OWNERS OF INTERMENT
45 25 RIGHTS.
45 26 1. An interment space in which exclusive rights of
45 27 interment are conveyed is presumed to be the separate property
45 28 of the person named as grantee in the certificate of interment
45 29 rights or other instrument of conveyance.
45 30 2. Two or more owners of interment rights may designate a
45 31 person to represent the interment space and file notice of the
45 32 designation of a representative with the cemetery. If notice
45 33 is not filed, the cemetery may inter or permit an interment in
45 34 the interment space at the request or direction of a
45 35 registered co=owner of the interment space.
46 1 Sec. 52. NEW SECTION. 523I.604 LIEN AGAINST CEMETERY
46 2 PROPERTY.
46 3 1. A cemetery, by contract, may incur indebtedness as
46 4 necessary to conduct its business and may secure the
46 5 indebtedness by mortgage, deed of trust, or other lien against
46 6 its property.
46 7 2. A mortgage, deed of trust, or other lien placed on
46 8 dedicated cemetery property, or on cemetery property that is
46 9 later dedicated with the consent of the holder of the lien,
46 10 does not affect the dedication and is subject to the
46 11 dedication. A sale on foreclosure of the lien is subject to
46 12 the dedication of the property for cemetery purposes.
46 13 Sec. 53. NEW SECTION. 523I.605 PRIVATE CARE OF GRAVES.
46 14 This subchapter does not affect the right of a person who
46 15 has an interest in an interment space, or who is a relative of
46 16 a decedent interred in a cemetery, to beautify or maintain an
46 17 interment space individually or at the person's own expense in
46 18 accordance with reasonable rules established by the cemetery.
46 19 SUBCHAPTER 7
46 20 LAWN CRYPTS
46 21 Sec. 54. NEW SECTION. 523I.701 REQUIREMENTS FOR LAWN
46 22 CRYPTS.
46 23 A lawn crypt shall not be installed unless all of the
46 24 following apply:
46 25 1. The lawn crypt is constructed of concrete and
46 26 reinforced steel or other comparable durable material.
46 27 2. The lawn crypt is installed on not less than six inches
46 28 of rock, gravel, or other drainage material.
46 29 3. The lawn crypt provides a method to drain water out of
46 30 the lawn crypt.
46 31 4. The lawn crypt is capable of withstanding the weight of
46 32 the soil and sod above the top surface and the weight of
46 33 machinery and equipment normally used in the maintenance of
46 34 the cemetery.
46 35 5. Except as provided by section 523I.702, the lawn crypt
47 1 is installed in multiple units of ten or more.
47 2 6. The lawn crypt shall be installed in compliance with
47 3 any applicable law or rule adopted by the department of public
47 4 health.
47 5 Sec. 55. NEW SECTION. 523I.702 REQUEST TO INSTALL LAWN
47 6 CRYPTS IN FEWER THAN TEN UNITS.
47 7 1. A lawn crypt may be installed in fewer than ten units
47 8 if it is installed in an interment space pursuant to a written
47 9 request to the commissioner signed by the owner or owners of
47 10 the interment space.
47 11 2. The written request shall be filed on a form prescribed
47 12 by the commissioner and shall contain substantially all of the
47 13 following information:
47 14 a. The owner's name and address.
47 15 b. The name of the cemetery and the owner of the cemetery.
47 16 c. The number of lawn crypt units to be installed.
47 17 d. A description of the interment spaces.
47 18 e. A statement that the lawn crypt meets the requirements
47 19 of section 523I.701, including all of the following:
47 20 (1) A statement that the lawn crypt will be constructed of
47 21 concrete and reinforced steel or other comparable durable
47 22 materials.
47 23 (2) A statement that the lawn crypt will be installed on
47 24 not less than six inches of rock, gravel, or other drainage
47 25 material.
47 26 (3) A statement that the lawn crypt will provide a method
47 27 to drain water out of the lawn crypt.
47 28 (4) A statement that the outside top surface of the lawn
47 29 crypt at the time of installation will be capable of
47 30 withstanding the weight of the soil and sod above the top
47 31 surface and the weight of machinery and equipment normally
47 32 used in the maintenance of the cemetery.
47 33 f. A statement that the space in which the lawn crypt is
47 34 to be installed is located in a garden.
47 35 g. The date on which a representative of the cemetery
48 1 signed the form.
48 2 SUBCHAPTER 8
48 3 PERPETUAL CARE CEMETERIES == REQUIREMENTS
48 4 Sec. 56. NEW SECTION. 523I.801 APPLICABILITY AND
48 5 CONVERSION BY NONPERPETUAL CARE CEMETERIES.
48 6 1. All cemeteries are designated as either "perpetual care
48 7 cemeteries" or "nonperpetual care cemeteries" for the purposes
48 8 of this chapter. A cemetery that represents that it is
48 9 offering perpetual care on or after July 1, 2005, is subject
48 10 to this subchapter.
48 11 2. A cemetery that operates a nonperpetual care cemetery
48 12 may elect to become a perpetual care cemetery if at all times
48 13 subsequent to the date of the election, the cemetery complies
48 14 with the other requirements of this subchapter except section
48 15 523I.805.
48 16 Sec. 57. NEW SECTION. 523I.802 ADVERTISING.
48 17 1. A cemetery shall not advertise, represent, guarantee,
48 18 promise, or contract to provide or offer perpetual care or use
48 19 terms or phrases like permanent care, permanent maintenance,
48 20 care forever, continuous care, eternal care, or everlasting
48 21 care to imply that a certain level of care and financial
48 22 security will be furnished or is guaranteed except in
48 23 compliance with the provisions of this subchapter.
48 24 2. A cemetery or person advertising or selling interment
48 25 rights shall not represent that the purchase of the interment
48 26 rights is or will be a desirable speculative investment for
48 27 resale purposes.
48 28 Sec. 58. NEW SECTION. 523I.803 PERPETUAL CARE REGISTRY.
48 29 1. A cemetery that operates a perpetual care cemetery
48 30 shall maintain a registry of individuals who have purchased
48 31 interment rights in the cemetery subject to the care fund
48 32 requirements of this subchapter.
48 33 2. The registry shall include the amount deposited in
48 34 trust for each interment rights agreement entered into on or
48 35 after July 1, 1995.
49 1 Sec. 59. NEW SECTION. 523I.804 USE OF GIFT FOR SPECIAL
49 2 CARE.
49 3 A trustee may accept and hold money or property transferred
49 4 to the trustee in trust for the purpose of applying the
49 5 principal or income of the money or property transferred for a
49 6 purpose consistent with the purpose of a perpetual care
49 7 cemetery, including the following:
49 8 1. Improvement or embellishment of any part of the
49 9 cemetery.
49 10 2. Erection, renewal, repair, or preservation of a
49 11 monument, fence, building, or other structure in the cemetery.
49 12 3. Planting or cultivation of plants in or around the
49 13 cemetery.
49 14 4. Special care of or embellishment of an interment space,
49 15 section, or building in the cemetery.
49 16 Sec. 60. NEW SECTION. 523I.805 INITIAL DEPOSIT.
49 17 1. A cemetery owned or operated by a political subdivision
49 18 of this state is not required to make a minimum initial
49 19 deposit in a care fund. Any other cemetery commencing
49 20 business in this state on or after July 1, 2005, shall not
49 21 sell interment spaces unless the cemetery has a care fund of
49 22 at least twenty=five thousand dollars in cash.
49 23 2. If an initial deposit is made by a cemetery to satisfy
49 24 subsection 1, the initial twenty=five thousand dollar deposit
49 25 may be withdrawn by the cemetery when the care fund balance
49 26 reaches one hundred thousand dollars. An affidavit shall be
49 27 filed with the commissioner providing prior notice of the
49 28 intended withdrawal of the initial deposit and attesting that
49 29 the money has not previously been withdrawn. Upon a showing
49 30 by the cemetery that the initial deposit has not previously
49 31 been withdrawn, the commissioner shall approve withdrawal of
49 32 the money and the withdrawal shall take place within one year
49 33 after the care fund balance reaches one hundred thousand
49 34 dollars.
49 35 Sec. 61. NEW SECTION. 523I.806 IRREVOCABLE TRUST.
50 1 1. A perpetual care cemetery shall establish a care fund
50 2 as an irrevocable trust to provide for the care of the
50 3 cemetery, which shall provide for the appointment of a
50 4 trustee, with perpetual succession.
50 5 2. The care fund shall be administered under the
50 6 jurisdiction of the district court of the county where the
50 7 cemetery is located. Notwithstanding chapter 633, annual
50 8 reports shall not be required unless specifically required by
50 9 the district court. Reports shall be filed with the court
50 10 when necessary to receive approval of appointments of
50 11 trustees, trust agreements and amendments, changes in fees or
50 12 expenses, and other matters within the court's jurisdiction.
50 13 A court having jurisdiction over a care fund shall have full
50 14 jurisdiction to approve the appointment of trustees, the
50 15 amount of surety bond required, if any, and investment of
50 16 funds.
50 17 Sec. 62. NEW SECTION. 523I.807 CARE FUND DEPOSITS.
50 18 1. To continue to operate as a perpetual care cemetery, a
50 19 cemetery shall set aside and deposit in the care fund an
50 20 amount equal to or greater than fifty dollars or twenty
50 21 percent of the gross selling price received by the cemetery
50 22 for each sale of interment rights, whichever is more.
50 23 2. A cemetery may require a contribution to the care fund
50 24 for perpetual care of a memorial or memorialization placed in
50 25 the cemetery. A cemetery may establish a separate care fund
50 26 for this purpose. The contributions shall be nonrefundable
50 27 and shall not be withdrawn from the trust fund once deposited.
50 28 The amount charged shall be uniformly charged on every
50 29 installation of a memorial, based on the height and width of
50 30 the memorial or the size of the ground surface area used for
50 31 the memorial. A fee for special care of a memorial may be
50 32 collected if the terms of the special care items and
50 33 arrangements are clearly specified in the interment rights
50 34 agreement. Except as otherwise provided in an interment
50 35 rights agreement, a cemetery is not liable for repair or
51 1 maintenance of memorials or vandalism. A cemetery may use
51 2 income from a care fund to repair or replace memorials or
51 3 interment spaces damaged by vandalism or acts of God.
51 4 3. Moneys shall be deposited in the care fund no later
51 5 than the fifteenth day after the close of the month when the
51 6 cemetery receives the final payment from a purchaser of
51 7 interment rights.
51 8 Sec. 63. NEW SECTION. 523I.808 AUDIT FEE.
51 9 An audit fee shall be submitted with the cemetery's annual
51 10 report in an amount equal to five dollars for each certificate
51 11 of interment rights issued during the fiscal year covered by
51 12 the report. The cemetery may charge the audit fee directly to
51 13 the purchaser of the interment rights.
51 14 Sec. 64. NEW SECTION. 523I.809 TRUST AGREEMENT
51 15 PROVISIONS.
51 16 1. A trust agreement shall provide for the appointment of
51 17 at least one trustee, with perpetual succession, in case the
51 18 cemetery is dissolved or ceases to be responsible for the
51 19 cemetery's care.
51 20 2. A cemetery and the trustee or trustees of the care fund
51 21 may, by agreement, amend the instrument that established the
51 22 fund to include any provision that is necessary to comply with
51 23 the requirements of this chapter.
51 24 3. A cemetery is responsible for the deposit of all moneys
51 25 required to be placed in a care fund.
51 26 4. The commissioner may require the amending of a trust
51 27 agreement that is not in accord with the provisions of this
51 28 chapter.
51 29 Sec. 65. NEW SECTION. 523I.810 CARE FUNDS.
51 30 1. A trustee of a care fund shall use the judgment and
51 31 care under the circumstances then prevailing that persons of
51 32 prudence, discretion, and intelligence exercise in the
51 33 management of their own affairs, not in regard to speculation
51 34 but in regard to the permanent disposition of their funds,
51 35 considering the probable income as well as the probable safety
52 1 of their capital. The trustee of a care fund has a fiduciary
52 2 duty to make reasonable investment decisions and to properly
52 3 oversee and manage the funds entrusted to the care fund.
52 4 a. A financial institution may serve as a trustee if
52 5 granted those powers under the laws of this state or of the
52 6 United States. A financial institution acting as a trustee of
52 7 a care fund under this chapter shall invest the funds in
52 8 accordance with applicable law.
52 9 b. A financial institution acting as a trustee of a care
52 10 fund under this chapter has a fiduciary duty to make
52 11 reasonable investment decisions and to properly oversee and
52 12 manage the funds entrusted to the financial institution. The
52 13 commissioner may take enforcement action against a financial
52 14 institution in its capacity as trustee for a breach of
52 15 fiduciary duty under this chapter.
52 16 c. Care fund moneys may be deposited pursuant to a master
52 17 trust agreement, if each care fund is treated as a separate
52 18 beneficiary of the trust and each care fund is separable. The
52 19 master trust shall maintain a separate accounting of principal
52 20 and income for each care fund. Moneys deposited under a
52 21 master trust agreement may be commingled by the financial
52 22 institution for investment purposes.
52 23 d. Subject to a master trust agreement, the cemetery may
52 24 appoint an independent investment advisor to advise the
52 25 financial institution about investment of the care fund.
52 26 e. Subject to an agreement between the cemetery and the
52 27 financial institution, the financial institution may receive a
52 28 reasonable fee from the care fund for services rendered as
52 29 trustee.
52 30 f. If the amount of a care fund exceeds two hundred
52 31 thousand dollars, the cemetery or any officer, director,
52 32 agent, employee, or affiliate of the cemetery shall not serve
52 33 as trustee unless the cemetery is a cemetery owned or operated
52 34 by a governmental subdivision of this state. A financial
52 35 institution holding care funds shall not do any of the
53 1 following:
53 2 (1) Be owned, under the control of, or affiliated with the
53 3 cemetery.
53 4 (2) Use any funds required to be held in trust under this
53 5 chapter to purchase an interest in a contract or agreement to
53 6 which the cemetery is a party.
53 7 (3) Otherwise invest care funds, directly or indirectly,
53 8 in the cemetery's business operations.
53 9 2. All moneys required to be deposited in the care fund
53 10 shall be deposited in the name of the trustee, as trustee,
53 11 under the terms of a trust agreement and the trustee may
53 12 invest, reinvest, exchange, retain, sell, and otherwise manage
53 13 the care fund trust for the benefit and protection of the
53 14 cemetery.
53 15 3. This section does not prohibit a cemetery from moving
53 16 care funds from one financial institution to another.
53 17 4. A care fund may receive and hold as part of the care
53 18 fund or as an incident to the care fund any property
53 19 contributed to the care fund.
53 20 5. A contribution to a care fund is considered to be for
53 21 charitable purposes if the care financed by the care fund is
53 22 for the following purposes:
53 23 a. The discharge of a duty due from the cemetery to
53 24 persons interred and to be interred in the cemetery.
53 25 b. The benefit and protection of the public by preserving
53 26 and keeping the cemetery in a dignified condition so that the
53 27 cemetery does not become a nuisance or a place of disorder,
53 28 reproach, and desolation in the community in which the
53 29 cemetery is located.
53 30 6. A contribution to a care fund is not invalid because of
53 31 the following:
53 32 a. Indefiniteness or uncertainty as to the person
53 33 designated as a beneficiary in the instrument establishing the
53 34 care fund.
53 35 b. A violation of the law against perpetuities or the law
54 1 against the suspension of the power of alienation of title to
54 2 or use of property.
54 3 7. A care fund shall pay the fund's operation costs and
54 4 any annual audit fees. The principal of a care fund is
54 5 intended to remain available perpetually as a funding source
54 6 for care of the cemetery. The principal of a care fund shall
54 7 not be reduced voluntarily and shall remain inviolable, except
54 8 as provided in this section. The trustee or trustees of a
54 9 care fund shall maintain the principal of the care fund
54 10 separate from all operating funds of the cemetery.
54 11 8. In establishing a care fund, the cemetery may adopt
54 12 plans for the care of the cemetery and installed memorials and
54 13 memorialization.
54 14 9. A cemetery may, by resolution adopted by a vote of at
54 15 least two=thirds of the members of its board at any authorized
54 16 meeting of the board, authorize the withdrawal and use of not
54 17 more than twenty percent of the principal of the care fund to
54 18 acquire additional land for cemetery purposes, to repair a
54 19 mausoleum or other building or structure intended for cemetery
54 20 purposes, or to build, improve, or repair roads and walkways
54 21 in the cemetery. The resolution shall establish a reasonable
54 22 repayment schedule, not to exceed five years, and provide for
54 23 interest in an amount comparable to the care fund's current
54 24 rate of return on its investments. However, the care fund
54 25 shall not be diminished below an amount equal to the greater
54 26 of twenty=five thousand dollars or five thousand dollars per
54 27 acre of land in the cemetery. The resolution, and either a
54 28 bond or proof of insurance to guarantee replenishment of the
54 29 care fund, shall be filed with the commissioner thirty days
54 30 prior to the withdrawal of funds.
54 31 Sec. 66. NEW SECTION. 523I.811 USE OF DISTRIBUTIONS FROM
54 32 CARE FUND.
54 33 1. Care fund distributions may be used in any manner
54 34 determined to be in the best interests of the cemetery if
54 35 authorized by a resolution, bylaw, or other action or
55 1 instrument establishing the care fund, including but not
55 2 limited to the general care of memorials, memorialization, and
55 3 any of the following:
55 4 a. Cutting and trimming lawns, shrubs, and trees at
55 5 reasonable intervals.
55 6 b. Maintaining drains, water lines, roads, buildings,
55 7 fences, and other structures.
55 8 c. Maintaining machinery, tools, and equipment.
55 9 d. Compensating maintenance employees, paying insurance
55 10 premiums, and making payments to employees' pension and
55 11 benefit plans.
55 12 e. Paying overhead expenses incidental to such purposes.
55 13 f. Paying expenses necessary to maintain ownership,
55 14 transfer, and interment records of the cemetery.
55 15 2. The commissioner may, by rule, establish terms and
55 16 conditions under which a cemetery may withdraw capital gains
55 17 from the care fund.
55 18 Sec. 67. NEW SECTION. 523I.812 SUIT BY COMMISSIONER.
55 19 1. If the person or persons in control of a cemetery do
55 20 not care for and maintain the cemetery, the district court of
55 21 the county in which the cemetery is located may do the
55 22 following:
55 23 a. By injunction compel the cemetery to expend the net
55 24 income of the care fund as required by this chapter.
55 25 b. Appoint a receiver to take charge of the care fund and
55 26 expend the net income of the care fund as required by this
55 27 chapter.
55 28 c. Grant relief on a petition for relief filed pursuant to
55 29 this section by the commissioner.
55 30 2. Inadequate care and maintenance of a cemetery includes
55 31 but is not limited to the following:
55 32 a. Failure to adequately mow grass.
55 33 b. Failure to adequately edge and trim bushes, trees, and
55 34 memorials.
55 35 c. Failure to keep walkways and sidewalks free of
56 1 obstructions.
56 2 d. Failure to adequately maintain the cemetery's equipment
56 3 and fixtures.
56 4 This subsection is not intended to prevent the
56 5 establishment of a cemetery as a nature park or preserve.
56 6 Sec. 68. NEW SECTION. 523I.813 ANNUAL REPORT BY
56 7 PERPETUAL CARE CEMETERIES.
56 8 1. A perpetual care cemetery shall file a written report
56 9 at the end of each fiscal year of the cemetery that includes
56 10 all of the following:
56 11 a. The name and address of the cemetery.
56 12 b. The name and address of the corporation that owns the
56 13 cemetery, if any.
56 14 c. A description of any common business enterprise or
56 15 parent company that owns the cemetery, if any.
56 16 d. The name and address of any owner, officer, or other
56 17 official of the cemetery, including, when relevant, the chief
56 18 executive officer and the members of the board of directors.
56 19 e. The name and address of any trustee holding trust funds
56 20 for the cemetery, including the name and location of the
56 21 applicable trust account.
56 22 f. An affidavit that the cemetery is in compliance with
56 23 this chapter.
56 24 g. Copies of all sales agreement forms used by the
56 25 cemetery.
56 26 h. The amount of the principal of the cemetery's care
56 27 funds or maintenance funds, if any, at the end of the fiscal
56 28 year.
56 29 2. The report shall be filed with the commissioner within
56 30 four months following the end of the cemetery's fiscal year in
56 31 the form required by the commissioner.
56 32 Sec. 69. NEW SECTION. 523I.814 UNIFIED ANNUAL REPORTS.
56 33 The commissioner shall permit the filing of a unified
56 34 report in the event of commonly owned or affiliated cemeteries
56 35 if each cemetery is separately identified and separate records
57 1 are maintained for each cemetery.
57 2 Sec. 70. Section 602.8102, subsection 81, Code 2005, is
57 3 amended to read as follows:
57 4 81. Carry out duties relating to cemeteries as provided in
57 5 sections 566.4, 566.7, and 566.8 section 523I.602.
57 6 Sec. 71. Section 602.8104, subsection 2, paragraph h, Code
57 7 2005, is amended to read as follows:
57 8 h. A cemetery record as provided in section 566.4
57 9 523I.602.
57 10 Sec. 72. Section 636.23, subsection 14, Code 2005, is
57 11 amended to read as follows:
57 12 14. LIMITATION AS TO COURT=APPROVED INVESTMENTS. This
57 13 section does not prohibit investment of such funds in a
57 14 savings account or time certificate of deposit of a bank or
57 15 savings and loan association, located within the city or its
57 16 county of this state and when first approved by the court.
57 17 However, a city that is the trustee of a cemetery as provided
57 18 in section 566.14 523I.508 may invest perpetual care funds in
57 19 a savings account or certificates of deposit at a bank or
57 20 savings and loan association, located in this state without
57 21 court approval.
57 22 Sec. 73. Section 359.41, Code 2005, is repealed.
57 23 Sec. 74. Chapters 523I, 566, and 566A, Code 2005, are
57 24 repealed.
57 25 EXPLANATION
57 26 This bill relates to cemeteries and cemetery regulation and
57 27 provides for administration and enforcement procedures related
57 28 to cemeteries, including establishing and appropriating fees,
57 29 and providing for penalties.
57 30 The bill amends Code section 523A.812 and adds new Code
57 31 section 523A.814 to require a business establishment that is
57 32 involved with cemetery and funeral merchandise and funeral
57 33 services or a combination thereof to pay an annual audit fee
57 34 of $5 for each purchase agreement sold that is filed and
57 35 subject to a filing fee between July 1, 2005, and December 31,
58 1 2007. The insurance commissioner is required to allocate the
58 2 audit fees collected to the insurance division regulatory fund
58 3 for pay for auditors, audit expenses, investigative expenses,
58 4 mediation expenses, consumer education expenses, a toll=free
58 5 consumer complaint telephone line, and receivership expenses.
58 6 The bill repeals Code chapter 523I concerning cemeteries,
58 7 Code chapter 566 concerning cemetery management, and Code
58 8 chapter 566A concerning cemetery regulation.
58 9 The bill creates a new Code chapter 523I concerning
58 10 cemeteries, cemetery administration and enforcement
58 11 procedures, cemetery management, county cemetery commissions
58 12 and neglected cemeteries, cemeteries owned or operated by
58 13 governmental subdivisions, requirements for lawn crypts, and
58 14 requirements applying to perpetual care cemeteries.
58 15 The new Code chapter 523I is applicable to all cemeteries,
58 16 except religious cemeteries that commenced business prior to
58 17 July 1, 2005; all persons advertising or offering memorials,
58 18 memorialization, opening and closing services, scattering
58 19 services at a cemetery, interment rights, or a combination
58 20 thereof for sale; and interments made in areas not dedicated
58 21 as a cemetery, by a person other than the state archaeologist.
58 22 The bill authorizes civil lawsuits brought by the insurance
58 23 division against a cemetery that fails to use care funds to
58 24 maintain the cemetery property.
58 25 The bill defines certain acts committed in violation of
58 26 Code chapter 523I as fraudulent practices.
58 27 The bill provides for the establishment of a receivership
58 28 for a cemetery under certain circumstances.
58 29 The bill provides for the creation of a special revenue
58 30 fund in the state treasury to be known as the insurance
58 31 division's enforcement fund by allocating filing fees in an
58 32 amount not exceeding $50,000. The moneys in the fund are
58 33 appropriated to the use of the insurance commissioner to pay
58 34 for auditors, investigative expenses, consumer education
58 35 expenses, a toll=free consumer complaint telephone line, and
59 1 receivership expenses of perpetual care cemeteries.
59 2 The bill requires cemeteries to make disclosures to a buyer
59 3 of interment rights when grave opening and closing fees are
59 4 not included in the agreement. The bill authorizes a cemetery
59 5 to accept written instructions of a decedent concerning
59 6 interment, relocation, or disinterment of remains. The bill
59 7 contains provisions for making a determination of who has the
59 8 right to control interment, relocation, or disinterment of
59 9 remains.
59 10 The bill establishes requirements for recording ownership
59 11 of interment rights at each cemetery location rather than just
59 12 with the county recorder. The bill requires cemeteries to
59 13 maintain complete interment records that identify the owners
59 14 of all interment rights sold or transferred by the cemetery on
59 15 or after July 1, 2005, and contain historical information
59 16 concerning any changes of ownership of interment rights. The
59 17 bill sets forth requirements for interment rights agreements.
59 18 The bill contains a procedure to dedicate new cemeteries or
59 19 subdivisions of cemeteries with a public filing with the
59 20 insurance division.
59 21 The bill requires a public filing with the insurance
59 22 division before the construction of new mausoleums and
59 23 columbariums. The bill sets forth procedures governing the
59 24 installation of memorials and memorialization by third
59 25 parties.
59 26 The bill increases the penalty for disturbing an interment
59 27 site from a simple misdemeanor to an aggravated misdemeanor.
59 28 A simple misdemeanor is punishable by confinement for no more
59 29 than 30 days or a fine of at least $50 but not more than $500
59 30 or by both. An aggravated misdemeanor is punishable by
59 31 confinement for no more than two years and a fine of at least
59 32 $500 but not more than $5,000.
59 33 The bill contains a procedure for the removal of remains
59 34 from a neglected cemetery. The bill provides a procedure for
59 35 reporting neglected cemeteries to the insurance division and
60 1 provides that the commissioner shall catalog and review such
60 2 reports received, on or before December 31, 2007, and publish
60 3 a report of findings on or before December 31, 2008.
60 4 The bill authorizes governmental subdivisions to commingle
60 5 care funds for the purposes of investment and administration.
60 6 The bill authorizes governmental subdivisions that operate
60 7 cemeteries to invest their maintenance and care funds in the
60 8 same manner as other cemetery corporations notwithstanding
60 9 Code section 12B.10.
60 10 The bill sets forth requirements for lawn crypts and their
60 11 installation.
60 12 The bill sets forth requirements for perpetual care
60 13 cemeteries and provides that cemeteries that represent that
60 14 they are offering perpetual care on or after July 1, 2005, are
60 15 subject to the provisions of the bill. The bill requires any
60 16 cemetery commencing business on or after July 1, 2005, other
60 17 than those owned or operated by governmental subdivisions, to
60 18 establish a care fund of at least $25,000 in cash. The bill
60 19 allows a nonperpetual care cemetery to elect to become a
60 20 perpetual care cemetery if the cemetery complies with the
60 21 requirements applicable to a perpetual care cemetery, except
60 22 such a cemetery is not required to make an initial $25,000
60 23 care fund deposit. The bill does not apply to religious
60 24 cemeteries that commenced business prior to July 1, 2005.
60 25 LSB 1108HZ 81
60 26 av:rj/gg/14