S 572 Session 109 (1991-1992)
S 0572 General Bill, By Drummond
A Bill to amend Section 39-55-55, Code of Laws of South Carolina, 1976,
relating to members of the Cemetery Board, so as to delete the provisions for
two members to be appointed from nominations by the Cemetery Association and
for initial terms, provide for nominations from an individual, a group, or an
association, and provide for appointment after a vacancy; to amend Section
39-55-95, relating to licenses for the operation of a cemetery, so as to
decrease the required experience for a general manager from two years to one
year; to amend Section 39-55-115, relating to powers and duties of the Board,
so as to provide additional duties regarding investigations of licensees and
revocation and suspension of licenses and provide for application of the
Administrative Procedures Act to related proceedings; to amend Section
39-55-125, relating to records and regulations of a cemetery, so as to
prohibit certain regulations, provide for the assessment of fees, define labor
costs, and provide for the establishment, amendment, and abolishment of
regulations pursuant to the Administrative Procedures Act; to amend Section
39-55-185, relating to the Merchandise Trust Fund, so as to require a
financial report to be signed by a licensed accountant; and to reauthorize the
existence of the Cemetery Board for five years.
01/31/91 Senate Introduced and read first time SJ-9
01/31/91 Senate Referred to Committee on General SJ-9
03/27/91 Senate Committee report: Majority favorable with amend.,
minority unfavorable General SJ-9
03/28/91 Senate Read second time SJ-14
03/28/91 Senate Ordered to third reading with notice of
amendments SJ-14
01/29/92 Senate Recommitted to Committee on General SJ-45
Indicates Matter Stricken
Indicates New Matter
COMMITTEE REPORT
March 27, 1991
S. 572
Introduced by SENATOR Drummond
S. Printed 3/27/91--S.
Read the first time January 31, 1991.
THE GENERAL COMMITTEE
To whom was referred a Bill (S. 572), to amend Section 39-55-55,
Code of Laws of South Carolina, 1976, relating to members of the
Cemetery Board, etc., respectfully
REPORT:
That they have duly and carefully considered the same, and
recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking Section 39-55-55,
SECTION 1, page 2, beginning on line 1, and inserting:
/Section 39-55-55. The board consists of seven members,
and six of whom must be appointed by the Governor.
The Secretary of State is a member ex officio, is a nonvoting
member who may not vote even when there is a tie vote, and
shall serve serves as chairman of the board. Two
appointed members must be public members who have no
financial interest in and are not involved in the management of
any a cemetery or funeral related business, two
three members must be owners or managers of cemeteries in
this State, and two members must who may be selected
from four nominees submitted by the South Carolina Cemetery
Association, and one member must be a monument dealer in this
State who may be selected from nominees submitted by the Monument
Builders of the Carolinas. The Governor may reject any or all
of the nominees submitted by the Cemetery Association upon
satisfactory showing of unfitness of those rejected. If the Governor
declines to appoint any of the nominees so submitted, additional
nominees must be submitted in the same manner. Of the six appointed
members, two of the initial board must be appointed for a term of two
years, two for a term of three years, and two for a term of four years. At
the end of their respective terms, successors must be selected in the same
manner and appointed Nominations for appointment may be
received by the Governor from an individual, a group, or an association
in this State. Members must be appointed for terms of four years
and until their successors are appointed and qualify. Any
An appointment to fill a vacancy on the board created by the
resignation, dismissal, death, or disability of a member is for the
balance of the unexpired term in the manner of the original
appointment./
Amend further, Section 39-55-115(A)(2), SECTION 3, page 5, line
9, after /imposed/ by inserting /by the board/.
Amend further, Section 39-55-125(C)(2)(a), SECTION 4, page 7, by
striking the sentence beginning on line 32 and inserting:
/The owner of every a cemetery shall have the
further right to establish reasonable regulations regarding the type
material, design, composition, finish, and specifications, and
installation of any and all merchandise to be used or
installed in the cemetery.
Amend further by striking Section 39-55-125(C)(2)(a)(iii),
SECTION 4, page 8, beginning on line 5, and inserting:
(iii) charges the owner or purchaser of a lot a fee for
purchasing a monument or services related to the installation of a
monument from a vendor or charges a vendor a fee for delivering or
installing the monument. This section does not prohibit a cemetery from
charging the owner or purchaser of a lot a reasonable fee for services
actually performed by the cemetery relating to the installation, care, and
maintenance of the monument;/
Amend further by striking Section 39-55-125(C)(3), SECTION 4,
page 8, beginning on line 25, and inserting:
/(3) When a cemetery lot is sold the cemetery shall disclose on
the sales contract cemetery services for which there may be a later
charge. When a monument, marker, or memorial is sold by a cemetery
company, the cemetery shall provide on the sales contract an itemized
statement of the fees charged for installation, care, and maintenance of
it. Fees charged for installation, care, and maintenance of a monument,
marker, or memorial must be shown on the statement as charges separate
from its price, and the statement must disclose the amount of fees to be
placed in trust by the cemetery company. The board shall promulgate
regulations to provide a form for the disclosure of fees and
services./
Amend further by striking SECTIONS 6 and 7, page 11, beginning
on line 29, and inserting:
/SECTION 6. The members added to the South Carolina Cemetery
Board in Section 39-55-55 of the 1976 Code in Section 1 of this act must
be appointed upon the expiration of the terms of current board members
who serve until their terms expire.
SECTION 7. In accordance with Section 1-20-60 of the 1976
Code, the existence of the South Carolina Cemetery Board is
reauthorized for five years.
SECTION 8. This act takes effect upon approval by the
Governor./
Amend title to conform.
Majority favorable. Minority unfavorable.
DONALD H. HOLLAND JOE WILSON
For Majority. For Minority.
A BILL
TO AMEND SECTION 39-55-55, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO MEMBERS OF THE CEMETERY
BOARD, SO AS TO DELETE THE PROVISIONS FOR TWO
MEMBERS TO BE APPOINTED FROM NOMINATIONS BY THE
CEMETERY ASSOCIATION AND FOR INITIAL TERMS, PROVIDE
FOR NOMINATIONS FROM AN INDIVIDUAL, A GROUP, OR AN
ASSOCIATION, AND PROVIDE FOR APPOINTMENT AFTER A
VACANCY; TO AMEND SECTION 39-55-95, RELATING TO
LICENSES FOR THE OPERATION OF A CEMETERY, SO AS TO
DECREASE THE REQUIRED EXPERIENCE FOR A GENERAL
MANAGER FROM TWO YEARS TO ONE YEAR; TO AMEND
SECTION 39-55-115, RELATING TO POWERS AND DUTIES OF
THE BOARD, SO AS TO PROVIDE ADDITIONAL DUTIES
REGARDING INVESTIGATIONS OF LICENSEES AND
REVOCATION AND SUSPENSION OF LICENSES AND PROVIDE
FOR APPLICATION OF THE ADMINISTRATIVE PROCEDURES
ACT TO RELATED PROCEEDINGS; TO AMEND SECTION
39-55-125, RELATING TO RECORDS AND REGULATIONS OF A
CEMETERY, SO AS TO PROHIBIT CERTAIN REGULATIONS,
PROVIDE FOR THE ASSESSMENT OF FEES, DEFINE LABOR
COSTS, AND PROVIDE FOR THE ESTABLISHMENT,
AMENDMENT, AND ABOLISHMENT OF REGULATIONS
PURSUANT TO THE ADMINISTRATIVE PROCEDURES ACT; TO
AMEND SECTION 39-55-185, RELATING TO THE MERCHANDISE
TRUST FUND, SO AS TO REQUIRE A FINANCIAL REPORT TO
BE SIGNED BY A LICENSED ACCOUNTANT; AND TO
REAUTHORIZE THE EXISTENCE OF THE CEMETERY BOARD
FOR FIVE YEARS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 39-55-55 of the 1976 Code is amended to read:
"Section 39-55-55. The board consists of seven
members, and six of whom must be appointed
by the Governor. The Secretary of State is a member ex officio and
shall serve serves as chairman of the board. Two
appointed members must be public members who have no
financial interest in and are not involved in the management of
any a cemetery or funeral related business, and at
least two members must be owners or managers of cemeteries in
this State, and two members must be selected from four nominees
submitted by the South Carolina Cemetery Association. The Governor
may reject any or all of the nominees submitted by the Cemetery
Association upon satisfactory showing of unfitness of those rejected. If
the Governor declines to appoint any of the nominees so submitted,
additional nominees must be submitted in the same manner. Of the six
appointed members, two of the initial board must be appointed for a
term of two years, two for a term of three years, and two for a term of
four years. At the end of their respective terms, successors must be
selected in the same manner and appointed. Nominations for
appointment may be received by the Governor from an individual, a
group, or an association in this State. Members must be appointed
for terms of four years and until their successors are appointed and
qualify. Any An appointment to fill a vacancy on the
board created by the resignation, dismissal, death, or disability of a
member is for the balance of the unexpired term in the manner
of the original appointment."
SECTION 2. Section 39-55-95 of the 1976 Code is amended to read:
"Section 39-55-95. (a)(A) No legal entity
may engage in the business of operating a cemetery company, except as
authorized by this chapter, without first obtaining a license from the
board.
(b) (B) Any A legal entity
wishing to establish a cemetery shall file a written application for
authority to do so with the board on forms prescribed and provided by
it.
(c) (C) Upon receipt of the application and a
nonrefundable filing fee of at least four hundred dollars the board shall
cause an investigation to be made to establish the following criteria for
approval of the application:
(1) the creation of a legal entity to conduct a cemetery
business and the proposed financial structure.;
(2) An establishment and maintenance of
an irrevocable care and maintenance trust fund agreement must
be established and maintained with a trust institution doing business
in this State, with an initial deposit of not less than fifteen thousand
dollars and a bank cashier's or certified check attached for the amount
and payable to the trustee with the trust executed by the applicant and
accepted by the trustee, conditioned only upon the approval of the
application.;
(3) A presentation of a plat of the land to be
used for a cemetery showing the county or municipality and the names
of roads and access streets or ways.;
(4) designation by the legal entity, wishing to establish a
cemetery, of a general manager who must be a person having had not
less than two years' one year's experience in the
cemetery business.;
(5) presentation of development plans sufficient to
ensure the community that the cemetery will provide adequate cemetery
services and that the property is suitable for use as a cemetery.
(d) (D) The board, after receipt of the
investigating report and within ninety days after receipt of the
application, shall grant or refuse to grant the authority to organize a
cemetery.
(e) (E) If the board intends to deny an application,
it shall give written notice to the applicant of its intention to deny. The
notice shall must state a time and place for a hearing
before the board and a summary statement of the reasons for the
proposed denial. The notice of intent must be mailed by certified mail
to the applicant at the address stated in the application at least fifteen
days prior to before the scheduled hearing date.
Notwithstanding any other provision of law, any An
appeal from the board's decision must be is to the circuit
court.
(f) (F) If the board intends to grant the authority it
shall give written notice that the authority to organize a cemetery has
been granted and that a license to operate will be issued upon the
completion of the following:
(1) establishment of the irrevocable care and maintenance trust
fund and receipt by the board of a certificate from the trust institution
certifying receipt of the initial deposit required under this
chapter.;
(2) development, ready for burial, of not less than two acres,
certified by inspection of the board or its
representative.;
(3) presentation of a description, by metes and
bounds, of the acreage tract of the proposed cemetery, together
with evidence, by title insurance policy or certificate or certification by
an attorney at law, that the applicant is the owner in fee simple of the
tract of land, which must contain not less than thirty acres and that the
fee simple title of the tract of not less than thirty acres is free and clear
of all encumbrances. In counties with a population of less than
thirty-five thousand inhabitants according to the latest official United
States census the tract need needs to be only fifteen
acres.
(4) Submit submission to the board for its
approval a copy of regulations as defined in Section
39-55-125."
SECTION 3. Section 39-55-115 of the 1976 Code is amended to
read:
"Section 39-55-115. (A) In addition to other powers
and duties conferred by this chapter upon the board, the
board it also has the following powers and duties:
(1) Prior to the change of control of any cemetery
company, to examine the licensee's records, and, if the board
considers it advisable, to assess applicable fees provided for in
this chapter or by regulation.;
(2) At any time investigate, upon its own initiative
or upon a verified complaint in writing, the actions of a person engaged
in the business or acting in the capacity of a licensee under this chapter.
A license may be revoked or suspended by the board for not more than
two years or until compliance with a lawful order imposed in the final
order of suspension, or both, if the licensee in performing or attempting
to perform acts specified in this chapter:
(a) fails to pay the required fees;
(b) fails to make required reports;
(c) fails to remit to the care and maintenance trust fund or
merchandise trust fund the required amounts;
(d) makes a substantial misrepresentation;
(e) makes a false statement likely to influence or persuade;
(f) continually and flagrantly misrepresents or makes false
promises through cemetery agents or salesmen;
(g) violates this chapter or regulations promulgated by the
board; or
(h) acts in a manner which constitutes fraud or dishonest
dealing, whether of the same or a different character than specified in
this section.
When the board finds it necessary to bring an action in the name
of the State in the circuit court of the county in which the licensed place
of business is located against any a person who is the
director, the owner, or an officer of a cemetery company to enjoin the
person from engaging in or continuing any a violation
of this chapter or of any regulation regulations or
order orders promulgated pursuant to it. In any
an action of this nature an order or judgment may be entered by
the court awarding a temporary restraining order, temporary injunction,
or permanent injunction, as is considered proper. Before this
action may be brought, the board shall give the person at least thirty
days' notice in writing, stating the alleged violation and giving
the person an opportunity within that period to correct the violation or
to request by certified mail a hearing before the board. In addition to
all other powers under provisions of law governing the
issuance and the enforcement of a temporary restraining order,
temporary injunction, or a permanent injunction, the court has the power
and jurisdiction to impound and appoint a receiver for the property and
business of the person, including books, papers, documents, and records,
or so much of these as the court considers reasonably necessary to
prevent further violation of this chapter or of any regulation
regulations or order orders promulgated
pursuant to it through or by means of the use of the property and
business. The board may institute proceedings against the cemetery or
its officers or owners where, after an examination, pursuant to this
chapter, a shortage in the care and maintenance trust fund is discovered
so as to recover the shortage.
(B) The Administrative Procedures Act applies to proceedings
under this chapter or the revocation or suspension of
licenses."
SECTION 4. Section 39-55-125 of the 1976 Code is amended to
read:
"Section 39-55-125. A. (A) A record must be
kept of every lot owner and every burial in the cemetery showing the
date of purchase, date of burial, name of the person buried and of the lot
owner, and space in which the burial was made. All sales
Sales, trust funds, accounting records, and other records of the
licensee must be available at the licensee's principal place of business
and must be readily available at all reasonable times for
examination by an the chairman or other authorized
representative of the board. In addition, the owner of a perpetual care
cemetery shall have the records of the perpetual care cemetery examined
annually by a licensed public accountant and shall submit a copy of the
report to the board.
B. (B) A record must be kept of each written
complaint received, action taken, and disposition of complaint. These
records must be available for examination by the chairman or other
authorized representatives of the board.
C. (C) (1) (a) The owner of
every a cemetery shall adopt, and enforce
regulations for the use, care, control, management, restriction, and
protection of the cemetery and of all its parts and
subdivisions thereof; for regulating, the use of
all property within a cemetery; for regulating,
the introduction and care of plants or shrubs within the grounds; for
regulating, the conduct of persons and preventing
prevention of improper assemblages therein;,
and for all other purposes considered necessary by the owner of
the cemetery for the proper conduct of the business of the cemetery and
the protection of the premises and the principles on which the cemetery
was organized. The owner may amend or abolish such
the regulations pursuant to item (4).
(b) The regulations must be plainly printed
or typewritten plainly, posted conspicuously, and maintained
subject to inspection at the usual place for transacting the regular
business of the cemetery. However, no cemetery licensed under the
provisions of this chapter may adopt any a
regulation in conflict with any of the provisions of this chapter
or in derogation of the contract rights of lot owners.
(2)(a) The owner of every a cemetery
shall have the further right to may establish reasonable
regulations regarding the type material, design, composition, finish,
and specifications, and installation of any and
all merchandise to be used or installed in the cemetery.
Reasonable regulations may further be adopted regarding the
installing by the cemetery or others of all merchandise to be installed in
the cemetery. However, no regulation may be adopted which:
(i) requires the owner or purchaser of a lot to purchase
a monument or services related to the installation of a monument from
the cemetery company;
(ii) restricts the right of the owner or purchaser of a lot to
purchase a monument or services related to the installation of a
monument from the vendor of choice;
(iii) charges the owner or purchaser of a lot a fee for
purchasing a monument or services related to the installation of a
monument from a vendor or charges a vendor a fee for delivering or
installing the monument. This section does not prohibit a cemetery from
charging the owner or purchaser of a lot a reasonable fee for services
relating to the care and maintenance of a monument;
(iv) discriminates against an owner or a purchaser of a lot who
has purchased a monument or services related to installation of a
monument from a vendor.
(b) These regulations must be posted conspicuously and
maintained, subject to inspection, at the usual place for transacting the
regular business of the cemetery. No cemetery owner may prevent the
use of any merchandise purchased by a lot owner,
or his representative, agent, or heirs, or assigns
from any source, if the merchandise meets all cemetery
regulations.
(3) A cemetery company may assess, at the time of
installation of a marker or monument, a reasonable fee to cover actual
labor costs involved in the installation, care, and maintenance of the
marker or monument. Labor costs means the amount, calculated in
accordance with generally accepted accounting principles and practices,
payable to employees of the cemetery company for wages and fringe
benefits for the time the employees were engaged in installation, care,
and maintenance services and may include general administrative or
overhead costs of the cemetery company that are related directly to care
and maintenance of the marker or monument. A cemetery company
must be prepared to justify to the board that the fee charged does not
exceed the cemetery company's actual labor costs.
(4) All Regulations established, amended, or
abolished by a cemetery pursuant to this subsection must be
submitted to the board for its approval pursuant to the
Administrative Procedures Act."
SECTION 5. Section 39-55-185 of the 1976 Code is amended to
read:
"Section 39-55-185. (A) Any A person
receiving funds from the sale of merchandise for use in a cemetery in
connection with the burial or commemoration of a deceased human
being when the use of the merchandise is not immediately
requested or required immediately shall deposit the funds in a
merchandise trust fund administered by a trust institution.
The cemetery company shall maintain a record of each deposit into
any such the account and shall, identify
the name of the purchaser, the amount of the actual cost to the
seller, and the amount of money to be deposited, and
maintain a copy of the contract for the merchandise.
Nothing contained herein prohibits This section does not
prohibit the trustee from commingling the deposits in any
a trust fund of this kind for purposes of the management
to manage and investment of invest the funds.
(B) When any a memorial, a mausoleum
crypt, or other merchandise is sold in advance of need and not installed
until a later date, one hundred percent of the actual cost to the
seller at the time of deposit must be placed in a trust institution
within sixty days after completion of the contract, with interest to
accrue, and may must not be withdrawn without
the consent of the purchaser until the time of delivery or construction.
(C)(1) The funds must be held in a merchandise trust fund
both as to principal and income earned and must remain intact,
except that the cost of the operation of the trust may be deducted from
the income until delivery of the merchandise is made by the cemetery
company or other entity. Upon delivery of the merchandise, the
cemetery company or other entity shall certify these facts to the trustee.
Upon this certification, the amount of money on deposit to the credit of
that particular contract, including principal and income, must be paid to
the cemetery company, or other entity. The trustee may rely
upon all certifications of this kind and is not liable to
anyone for this reliance.
(2) If for any reason a cemetery company or other entity
which has entered into a contract for the sale of merchandise cannot or
does not provide within a reasonable time the merchandise that has been
fully paid for fully and called for by the contract after
request in writing to do so, the purchaser or his heirs, or
assigns, or duly authorized representative is entitled
to may receive the entire amount paid on the
contract and any income earned by the merchandise trust fund
for that particular item. Reasonable time excludes riots, strikes, acts of
war, or any delays beyond the control of the cemetery company
or other entity.
(D) At any time after After payment in full and
prior to before delivery of merchandise, a purchaser
may make written demand for a refund of the amount deposited in the
merchandise trust fund to the credit of the purchaser, and, within thirty
days of receipt of the written demand, the trustee shall refund to the
purchaser the amount on deposit to his credit, less reasonable
commission fees and administrative costs, together with
all interest, dividends, increases, or accretions earned on the
fund. Upon such the refund, the cemetery company is
relieved from any further liability for this merchandise.
(E) The trustee shall, annually and within ninety days after
the end of the calendar year, shall file a financial report,
signed by a licensed accountant, of the merchandise trust fund with
the board on forms provided by the board, setting forth the
principal, investments, and payments made and the income earned and
disbursed. The board may require the trustee to make additional
financial reports as the board considers advisable.
(F) The board may examine the business of any a
cemetery company or other entity writing contracts for the sale of the
property or services described in this section. The written report of the
examination must be filed in the office of the board. Any
A person or an entity being examined shall produce the
records of the company needed for the examination.
(G) Any A provision of any a
contract for the sale of merchandise described in this section which
provides that the purchaser or beneficiary may waive any of the
provisions of this section is void.
(H) All cemetery Cemetery owners shall have a
full and complete schedule of all charges for services provided
by the cemetery plainly printed or typewritten, posted conspicuously,
and maintained, subject to inspection and copying at the usual
place for transacting the regular business of the cemetery.
(I) Any A cemetery company or other entity failing
to make required contributions to a care and maintenance trust fund or
to a merchandise trust fund is guilty of a misdemeanor and, upon
conviction, must be punished as provided in Section 39-55-265.
(J) If any a report is not received within the
required time stipulated herein, the board may levy and
collect a penalty of twenty-five dollars per a day for
each day of delinquency."
SECTION 6. In accordance with Section 1-20-60 of the 1976 Code,
the existence of the South Carolina Cemetery Board is reauthorized for
five years.
SECTION 7. This act takes effect upon approval by the Governor.
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