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91_HB3988eng
HB3988 Engrossed LRB9112160STsb
1 AN ACT to amend certain Acts in relation to cemeteries
2 and burial services.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The State Comptroller Act is amended by adding
6 Sections 22.3 and 22.4 as follows:
7 (15 ILCS 405/22.3 new)
8 Sec. 22.3. Cemetery Preservation Advisory Board. The
9 Comptroller shall appoint a 5-member Cemetery Preservation
10 Advisory Board. The Board shall serve in an advisory capacity
11 to the Comptroller for the purpose of recommending the
12 distribution of funds from the Cemetery Preservation Fund.
13 Members of the Board shall serve a term as determined by the
14 Comptroller. Members shall serve without compensation but
15 may be reimbursed for their reasonable expenses incurred in
16 the performance of their duties.
17 (15 ILCS 405/22.4 new)
18 Sec. 22.4. Cemetery Preservation Fund.
19 (a) The Cemetery Preservation Fund is created as a
20 special fund in the State Treasury.
21 (b) Beginning on January 1, 2001, all fees and penalties
22 for the payment of registration, licensure, annual reporting,
23 and penalties paid to the State Comptroller pursuant to
24 Sections 8, 9, and 12 of the Cemetery Care Act shall be
25 deposited into the Cemetery Preservation Fund. The
26 Comptroller may accept monetary gifts or grants from any
27 nongovernmental source for deposit into the Cemetery
28 Preservation Fund.
29 (c) The State Comptroller shall determine payments from
30 the Cemetery Preservation Fund. All payments from the
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1 Cemetery Preservation Fund shall be used by the Comptroller
2 to clean up or restore abandoned and neglected cemeteries in
3 Illinois including grants to units of local governments,
4 school districts, and not-for-profit associations.
5 (d) Grant payments provided for the cleanup of cemeteries
6 owned by units of municipal, county, or township government
7 shall not exceed 50% of the projected cost to clean up the
8 cemetery. The Comptroller may adopt rules and regulations in
9 administering this subsection.
10 (e) Expenditures from the Cemetery Preservation Fund are
11 subject to appropriation.
12 Section 10. The State Finance Act is amended by adding
13 Section 5.541 as follows:
14 (30 ILCS 105/5.541 new)
15 Sec. 5.541. The Cemetery Preservation Fund.
16 Section 15. The Grave and Cemetery Restoration Act is
17 amended by changing Section 1 as follows:
18 (55 ILCS 70/1) (from Ch. 21, par. 61)
19 Sec. 1. Care by county.
20 (a) The county board of any county may appropriate funds
21 from the county treasury to be used for the purpose of
22 putting any old, neglected graves and cemeteries in the
23 county in a cleaner and more respectable condition.
24 (b) A county that has within its territory an abandoned
25 cemetery may enter the cemetery grounds and cause the grounds
26 to be cleared and made orderly. Provided, in no event shall a
27 county enter an abandoned cemetery under this subsection if
28 the owner of the property or the legally responsible cemetery
29 authority provides written notification to the county, prior
30 to the county's entry (1) demonstrating the ownership or
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1 authority to control or manage the cemetery and (2) declining
2 the county authorization to enter the property. In making a
3 cemetery orderly under this Section, the county may take
4 necessary measures to correct dangerous conditions that exist
5 in regard to markers, memorials, or other cemetery artifacts
6 but may not permanently remove those items from their
7 location on the cemetery grounds.
8 (c) For the purposes of this Section:
9 "Abandoned cemetery" means an area of land containing
10 more than 6 places of interment for which, after diligent
11 search, no owner of the land or currently functioning
12 cemetery authority can be found and (1) at which no
13 interments have taken place in at least 3 years; or (2) for
14 which there has been inadequate maintenance for at least 6
15 months.
16 "Diligent search" includes, but is not limited to,
17 publication of a notice in a newspaper of local circulation
18 not more than 45 but at least 30 days prior to a county's
19 entry and cleanup of cemetery grounds. The notice shall
20 provide (1) notice of the county's intended entry and cleanup
21 of the cemetery; (2) the name, if known, and geographic
22 location of the cemetery; (3) the right of the cemetery
23 authority or owner of the property to deny entry to the
24 county upon written notice to the county; and (4) the date or
25 dates of the intended cleanup.
26 "Inadequate maintenance" includes, but is not limited to,
27 the failure to cut the lawn throughout a cemetery to prevent
28 an overgrowth of grass and weeds; the failure to trim shrubs
29 to prevent excessive overgrowth; the failure to trim trees so
30 as to remove dead limbs; the failure to keep in repair the
31 drains, water lines, roads, buildings, fences, and other
32 structures of the cemetery premises; or the failure to keep
33 the cemetery premises free of trash and debris.
34 (Source: P.A. 86-696.)
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1 Section 20. The Township Code is amended by changing
2 Section 130-5 as follows:
3 (60 ILCS 1/130-5)
4 Sec. 130-5. Cemeteries; permitted activities.
5 (a) A township may establish and maintain cemeteries
6 within and without its territory, may acquire lands for
7 cemeteries by condemnation or otherwise, may lay out lots of
8 convenient size for families, and may sell lots for a family
9 burying ground or to individuals for burial purposes.
10 Associations duly incorporated under the laws of this State
11 for cemetery purposes shall have the same power and authority
12 to purchase lands and sell lots for burial purposes as are
13 conferred upon townships under this Article.
14 (b) A township that has within its territory an
15 abandoned cemetery may enter the cemetery grounds and cause
16 the grounds to be cleared and made orderly. Provided, in no
17 event shall a township enter an abandoned cemetery under this
18 subsection if the owner of the property or the legally
19 responsible cemetery authority provides written notification
20 to the township, prior to the township's entry (1)
21 demonstrating the ownership or authority to control or manage
22 the cemetery and (2) declining the township authorization to
23 enter the property. In making a cemetery orderly under this
24 Section, the township may take necessary measures to correct
25 dangerous conditions that exist in regard to markers,
26 memorials, or other cemetery artifacts but may not
27 permanently remove those items from their location on the
28 cemetery grounds.
29 (c) In this Section:
30 "Abandoned cemetery" means an area of land containing
31 more than 6 places of interment for which, after diligent
32 search, no owner of the land or currently functioning
33 cemetery authority can be found and (1) at which no
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1 interments have taken place in at least 3 years; or (2) for
2 which there has been inadequate maintenance for at least 6
3 months.
4 "Diligent search" includes, but is not limited to,
5 publication of a notice in a newspaper of local circulation
6 not more than 45 but at least 30 days prior to a township's
7 entry and cleanup of cemetery grounds. The notice shall
8 provide (1) notice of the township's intended entry and
9 cleanup of the cemetery; (2) the name, if known, and
10 geographic location of the cemetery; (3) the right of the
11 cemetery authority or owner of the property to deny entry to
12 the township upon written notice to the township; and (4) the
13 date or dates of the intended cleanup.
14 "Inadequate maintenance" includes, but is not limited to,
15 the failure to cut the lawn throughout a cemetery to prevent
16 an overgrowth of grass and weeds; the failure to trim shrubs
17 to prevent excessive overgrowth; the failure to trim trees so
18 as to remove dead limbs; the failure to keep in repair the
19 drains, water lines, roads, buildings, fences, and other
20 structures of the cemetery premises; or the failure to keep
21 the cemetery premises free of trash and debris.
22 (Source: Laws 1963, p. 824; P.A. 88-62.)
23 Section 25. The Illinois Municipal Code is amended by
24 changing Section 11-49-1 as follows:
25 (65 ILCS 5/11-49-1) (from Ch. 24, par. 11-49-1)
26 Sec. 11-49-1. Cemeteries; permitted activities.
27 (a) The corporate authorities of each municipality may
28 establish and regulate cemeteries within or without the
29 municipal limits; may acquire lands therefor, by purchase or
30 otherwise; may cause cemeteries to be removed; and may
31 prohibit their establishment within one mile of the municipal
32 limits.
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1 (b) The corporate authorities also may enter into
2 contracts to purchase existing cemeteries, or lands for
3 cemetery purposes, on deferred installments to be paid solely
4 from the proceeds of sale of cemetery lots. Every such
5 contract shall empower the purchasing municipality, in its
6 own name, to execute and deliver deeds to purchasers of
7 cemetery lots for burial purposes.
8 (c) The corporate authorities of each municipality that
9 has within its territory an abandoned cemetery may enter the
10 cemetery grounds and cause the grounds to be cleared and made
11 orderly. Provided, in no event shall the corporate
12 authorities of a municipality enter an abandoned cemetery
13 under this subsection if the owner of the property or the
14 legally responsible cemetery authority provides written
15 notification to the corporate authorities, prior to the
16 corporate authorities' entry (1) demonstrating the ownership
17 or authority to control or manage the cemetery and (2)
18 declining the corporate authority authorization to enter the
19 property. In making a cemetery orderly under this Section,
20 the corporate authorities of a municipality may take
21 necessary measures to correct dangerous conditions that exist
22 in regard to markers, memorials, or other cemetery artifacts
23 but may not permanently remove those items from their
24 location on the cemetery grounds.
25 (d) In this Section:
26 "Abandoned cemetery" means an area of land containing
27 more than 6 places of interment for which, after diligent
28 search, no owner of the land or currently functioning
29 cemetery authority can be found and (1) at which no
30 interments have taken place in at least 3 years; or (2) for
31 which there has been inadequate maintenance for at least 6
32 months.
33 "Diligent search" includes, but is not limited to,
34 publication of a notice in a newspaper of local circulation
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1 not more than 45 but at least 30 days prior to entry and
2 cleanup of cemetery grounds by the corporate authorities of a
3 municipality. The notice shall provide (1) notice of the
4 corporate authorities' intended entry and cleanup of the
5 cemetery; (2) the name, if known, and geographic location of
6 the cemetery; (3) the right of the cemetery authority or
7 owner of the property to deny entry to the corporate
8 authorities upon written notice to those authorities; and (4)
9 the date or dates of the intended cleanup.
10 "Inadequate maintenance" includes, but is not limited to,
11 the failure to cut the lawn throughout a cemetery to prevent
12 an overgrowth of grass and weeds; the failure to trim shrubs
13 to prevent excessive overgrowth; the failure to trim trees so
14 as to remove dead limbs; the failure to keep in repair the
15 drains, water lines, roads, buildings, fences, and other
16 structures of the cemetery premises; or the failure to keep
17 the cemetery premises free of trash and debris.
18 (Source: Laws 1961, p. 576.)
19 Section 30. The Illinois Funeral or Burial Funds Act is
20 amended by changing Sections 1a, 1a-1, 2, 2a, 3, 3a, 3e, 3f,
21 4, 7.2, and 8 and by adding Sections 3a-5 and 8.1 as follows:
22 (225 ILCS 45/1a) (from Ch. 111 1/2, par. 73.101a)
23 Sec. 1a. For the purposes of this Act, the following
24 terms shall have the meanings specified, unless the context
25 clearly requires another meaning:
26 "Beneficiary" means the person specified in the pre-need
27 contract upon whose death funeral services or merchandise
28 shall be provided or delivered.
29 "Licensee" means a seller of a pre-need contract who has
30 been licensed by the Comptroller under this Act.
31 "Outer burial container" means any container made of
32 concrete, steel, wood, fiberglass or similar material, used
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1 solely at the interment site, and designed and used
2 exclusively to surround or enclose a separate casket and to
3 support the earth above such casket, commonly known as a
4 burial vault, grave box or grave liner, but not including a
5 lawn crypt as defined in the Illinois Pre-need Cemetery Sales
6 Act.
7 "Parent company" means a corporation that has a
8 controlling interest in another corporation.
9 "Person" means any person, partnership, association,
10 corporation, or other entity.
11 "Pre-need contract" means any agreement or contract, or
12 any series or combination of agreements or contracts, whether
13 funded by trust deposits or life insurance policies or
14 annuities, which has for a purpose the furnishing or
15 performance of funeral services or the furnishing or delivery
16 of any personal property, merchandise, or services of any
17 nature in connection with the final disposition of a dead
18 human body. Nothing in this Act is intended to regulate the
19 content of a life insurance policy or a tax-deferred annuity.
20 "Provider" means a person who is obligated for furnishing
21 or performing funeral services or the furnishing or delivery
22 of any personal property, merchandise, or services of any
23 nature in connection with the final disposition of a dead
24 human body.
25 "Purchaser" means the person who originally paid the
26 money under or in connection with a pre-need contract.
27 "Sales proceeds" means the entire amount paid to a
28 seller, exclusive of sales taxes paid by the seller, finance
29 charges paid by the purchaser, and credit life, accident or
30 disability insurance premiums, upon any agreement or
31 contract, or series or combination of agreements or
32 contracts, for the purpose of performing funeral services or
33 furnishing personal property, merchandise, or services of any
34 nature in connection with the final disposition of a dead
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1 human body, including, but not limited to, the retail price
2 paid for such services and personal property and merchandise.
3 "Purchase price" means the sales proceeds less finance
4 charges on retail installment contracts.
5 "Seller" means the person who sells or offers to sell the
6 pre-need contract to a purchaser, whether funded by a trust
7 agreement, life insurance policy, or tax-deferred annuity.
8 "Trustee" means a person authorized to hold funds under
9 this Act.
10 (Source: P.A. 88-477.)
11 (225 ILCS 45/1a-1)
12 Sec. 1a-1. Pre-need contracts.
13 (a) It shall be unlawful for any seller doing business
14 within this State to accept sales proceeds from a purchaser,
15 either directly or indirectly by any means, unless the seller
16 enters into a pre-need contract with the purchaser which
17 meets the following requirements:
18 (1) It states the name and address of the principal
19 office of the seller provider, all branch locations, and
20 the parent company of the seller, if any or clearly
21 discloses that the provider will be selected by the
22 purchaser or the purchaser's survivor or legal
23 representative at a later date, except that no contract
24 shall contain any provision restricting the right of the
25 contract purchaser during his or her lifetime in making
26 his or her own selection of a provider.
27 (2) It clearly identifies the provider's seller's
28 name and address, the purchaser, and the beneficiary, if
29 other than the purchaser, and the provider, if different
30 than the seller or discloses that the provider will be
31 selected at a later date.
32 (3) It contains a complete description of the
33 funeral merchandise and services to be provided and the
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1 price of the merchandise and services, and it clearly
2 discloses whether the price of the merchandise and
3 services is guaranteed or not guaranteed as to price.
4 (A) Each guaranteed price contract shall
5 contain the following statement in 12 point bold
6 type:
7 THIS CONTRACT GUARANTEES THE BENEFICIARY THE
8 SPECIFIC GOODS AND SERVICES CONTRACTED FOR. NO
9 ADDITIONAL CHARGES MAY BE REQUIRED. FOR DESIGNATED
10 GOODS AND SERVICES, ADDITIONAL CHARGES MAY BE
11 INCURRED FOR UNEXPECTED EXPENSES INCLUDING, BUT NOT
12 LIMITED TO, CASH ADVANCES, SHIPPING OF REMAINS FROM
13 A DISTANT PLACE, OR DESIGNATED HONORARIA ORDERED OR
14 DIRECTED BY SURVIVORS.
15 (B) Each non-guaranteed price contract shall
16 contain the following statement in 12 point bold
17 type:
18 THIS CONTRACT DOES NOT GUARANTEE THE PRICE THE
19 BENEFICIARY WILL PAY FOR ANY SPECIFIC GOODS OR
20 SERVICES. ANY FUNDS PAID UNDER THIS CONTRACT ARE
21 ONLY A DEPOSIT TO BE APPLIED TOWARD THE FINAL PRICE
22 OF THE GOODS OR SERVICES CONTRACTED FOR. ADDITIONAL
23 CHARGES MAY BE REQUIRED.
24 (4) It provides that if the particular supplies and
25 services specified in the pre-need contract are
26 unavailable at the time of delivery, the provider shall
27 be required to furnish supplies and services similar in
28 style and at least equal in quality of material and
29 workmanship.
30 (5) It discloses any penalties or restrictions,
31 including but not limited to geographic restrictions or
32 the inability of the provider, if selected, to perform,
33 on the delivery of merchandise, services, or pre-need
34 contract guarantees.
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1 (6) Regardless of the method of funding the
2 pre-need contract, the following must be disclosed:
3 (A) Whether the pre-need contract is to be
4 funded by a trust, life insurance, or an annuity;
5 (B) The nature of the relationship among the
6 person entity funding the pre-need contract, the
7 provider, if selected, and the seller; and
8 (C) The impact on the pre-need contract of (i)
9 any changes in the funding arrangement including but
10 not limited to changes in the assignment,
11 beneficiary designation, or use of the funds; (ii)
12 any specific penalties to be incurred by the
13 contract purchaser as a result of failure to make
14 payments; (iii) penalties to be incurred or moneys
15 or refunds to be received as a result of
16 cancellations; and (iv) all relevant information
17 concerning what occurs and whether any entitlements
18 or obligations arise if there is a difference
19 between the proceeds of the particular funding
20 arrangement and the amount actually needed to pay
21 for the funeral at-need.; and
22 (D) The method of changing or selecting the
23 designation of the provider.
24 (b) All pre-need contracts are subject to the Federal
25 Trade Commission Rule concerning the Cooling-Off Period for
26 Door-to-Door Sales (16 CFR Part 429).
27 (c) No pre-need contract shall be sold in this State
28 unless there is a provider for the services and personal
29 property being sold, or unless disclosure has been made by
30 the seller as provided in subdivision (a)(1). If the seller
31 is not a provider and a provider has been selected, then the
32 seller must have a binding agreement with a provider, and the
33 identity of the provider and the nature of the agreement
34 between the seller and the provider shall be disclosed in the
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1 pre-need contract at the time of the sale and before the
2 receipt of any sales proceeds. Any subsequent change made in
3 the identity of the provider shall be approved in writing by
4 the purchaser and beneficiary within 30 days after it occurs.
5 The failure to disclose the identity of the provider, the
6 nature of the agreement between the seller and the provider,
7 or any changes thereto to the purchaser and beneficiary, or
8 the failure to make the disclosures required in subdivision
9 (a)(1), constitutes an intentional violation of this Act.
10 (d) All pre-need contracts must be in writing in at
11 least 12 point type, numbered, and executed in duplicate and
12 no pre-need contract form shall be used without prior filing
13 with the Comptroller. A signed copy of the pre-need contract
14 must be provided to the purchaser at the time of entry. The
15 Comptroller shall review all pre-need contract forms and
16 shall prohibit the use of contract forms which do not meet
17 the requirements of this Act upon written notification to the
18 seller. Any use or attempted use of any oral pre-need
19 contract or any written pre-need contract in a form not filed
20 with the Comptroller or in a form which does not meet the
21 requirements of this Act shall be deemed a violation of this
22 Act and is voidable by the purchaser without penalty. Life
23 insurance policies, tax-deferred annuities, endorsements,
24 riders, or applications for life insurance or tax-deferred
25 annuities are not subject to filing with the Comptroller.
26 The Comptroller may by rule develop a model pre-need contract
27 form which meets the requirements of this Act.
28 (e) The State Comptroller shall by rule develop a
29 booklet for consumers in plain English describing the scope,
30 application, and consumer protections of this Act. After the
31 adoption of these rules, no pre-need contract shall be sold
32 in this State unless the seller (i) distributes to the
33 purchaser prior to the sale a booklet promulgated or approved
34 for use by the State Comptroller and (ii) explains to the
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1 purchaser the terms of the pre-need contract prior to the
2 purchaser's signing.
3 (f) All sales proceeds received in connection with a
4 pre-need contract shall be deposited into a trust account as
5 provided in Section 1b and Section 2 of this Act, or shall be
6 used to purchase a life insurance policy or tax-deferred
7 annuity as provided in Section 2a of this Act.
8 (g) No pre-need contract shall be sold in this State
9 unless it is accompanied by a funding mechanism permitted
10 under this Act, and unless the seller is licensed by the
11 Comptroller as provided in Section 3 of this Act. Nothing in
12 this Act is intended to relieve sellers of pre-need contracts
13 from being licensed under any other Act required for their
14 profession or business, and being subject to the rules
15 promulgated to regulate their profession or business,
16 including rules on solicitation and advertisement.
17 (Source: P.A. 90-47, eff. 1-1-98.)
18 (225 ILCS 45/2) (from Ch. 111 1/2, par. 73.102)
19 Sec. 2. (a) If a purchaser selects a trust arrangement
20 to fund the pre-need contract, all trust deposits as
21 determined by Section 1b shall be made within 30 days of
22 receipt.
23 (b) A trust established under this Act must be
24 maintained:
25 (1) in a trust account established in a bank,
26 savings and loan association, savings bank, or credit
27 union authorized to do business in Illinois in which
28 accounts are insured by an agency of the federal
29 government; or
30 (2) in a trust company authorized to do business in
31 Illinois.
32 (c) Trust agreements and amendments to the trust
33 agreements used to fund a pre-need contract shall be filed
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1 with the Comptroller prior to their use.
2 (d) Trust agreements shall follow the format of the
3 standard Funeral Trust Agreements approved by the Comptroller
4 for guaranteed or non-guaranteed price funeral plans.
5 (e) A seller or provider shall furnish to the trustee
6 and depositary the name of each payor and the amount of
7 payment on each such account for which deposit is being so
8 made. Nothing shall prevent the trustee or a seller or
9 provider acting as a trustee in accordance with this Act from
10 commingling the deposits in any such trust fund for purposes
11 of its management and the investment of its funds as provided
12 in the Common Trust Fund Act. In addition, multiple trust
13 funds maintained under this Act may be commingled or
14 commingled with other funeral or burial related trust funds
15 if all record keeping requirements imposed by law are met.
16 (f) Trust funds may be maintained in a financial
17 institution described in subsection (b) which is located in a
18 state adjoining this State where: (1) the financial
19 institution is located within 50 miles of the border of this
20 State, (2) its accounts are federally insured, and (3) it has
21 registered with the Illinois Secretary of State for purposes
22 of service of process.
23 (g) Upon notice to the Comptroller, the seller may
24 change the trustee of the fund.
25 (Source: P.A. 88-477.)
26 (225 ILCS 45/2a)
27 Sec. 2a. Purchase of insurance or annuity.
28 (a) If a purchaser selects the purchase of a life
29 insurance policy or tax-deferred annuity contract to fund the
30 pre-need contract, the application and collected premium
31 shall be mailed within 30 days of signing the pre-need
32 contract.
33 (b) If life insurance or an annuity is used to fund a
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1 pre-need contract, the seller or provider shall not be named
2 as the owner or beneficiary of the policy or annuity. No
3 person whose only insurable interest in the insured is the
4 receipt of proceeds from the policy or in naming who shall
5 receive the proceeds nor any trust acting on behalf of such
6 person or seller or provider shall be named as owner or
7 beneficiary of the policy or annuity.
8 (c) Nothing shall prohibit the purchaser from
9 irrevocably assigning ownership of the policy or annuity used
10 to fund a guaranteed price pre-need contract to a person or
11 trust for the purpose of obtaining favorable consideration
12 for Medicaid, Supplemental Security Income, or another public
13 assistance program, as permitted under federal law, except
14 that neither the seller nor the contract provider shall be
15 named the owner of the policy or annuity.
16 (d) If a life insurance policy or annuity contract is
17 used to fund a pre-need contract, except for guaranteed price
18 contracts permitted in Section 4(a) of this Act, the pre-need
19 contract must be revocable, and the assignment provision in
20 the pre-need contract must contain the following disclosure
21 in 12 point bold type:
22 THIS ASSIGNMENT MAY BE REVOKED BY THE ASSIGNOR OR
23 ASSIGNOR'S SUCCESSOR OR, IF THE ASSIGNOR IS ALSO THE INSURED
24 AND DECEASED, BY THE REPRESENTATIVE OF THE INSURED'S ESTATE
25 BEFORE THE RENDERING TO THE CEMETERY SERVICES OR GOODS OR
26 FUNERAL SERVICES OR GOODS. IF THE ASSIGNMENT IS REVOKED, THE
27 DEATH BENEFIT UNDER THE LIFE INSURANCE POLICY OR ANNUITY
28 CONTRACT SHALL BE PAID IN ACCORDANCE WITH THE BENEFICIARY
29 DESIGNATION UNDER THE INSURANCE POLICY OR ANNUITY CONTRACT.
30 (e) Sales proceeds shall not be used to purchase life
31 insurance policies or tax-deferred annuities unless the
32 company issuing the life insurance policies or tax-deferred
33 annuities is licensed with the Illinois Department of
34 Insurance, and the insurance producer or annuity seller is
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1 licensed to do business in the State of Illinois.
2 (f) The seller or provider must give notice in writing
3 that the cash surrender value of a life insurance policy may
4 be less than the amount provided for by the refund provisions
5 of the trust.
6 (Source: P.A. 88-477.)
7 (225 ILCS 45/3) (from Ch. 111 1/2, par. 73.103)
8 Sec. 3. Licensing.
9 (a) No person, firm, partnership, association or
10 corporation may act as seller without first securing from the
11 State Comptroller a license to so act. Application for such
12 license shall be in writing, signed by the applicant and duly
13 verified on forms furnished by the Comptroller. Each
14 application shall contain at least the following:
15 (1) The full name and address (both residence and
16 place of business) of the applicant, and every member,
17 officer and director thereof if the applicant is a firm,
18 partnership, association, or corporation, and of every
19 shareholder holding more than 10% of the corporate stock
20 if the applicant is a corporation. Any license issued
21 pursuant to the application shall be valid only at the
22 address stated in the application for such applicant or
23 at such new address as may be approved by the
24 Comptroller;
25 (2) A statement of the applicant's assets and
26 liabilities approximate net worth;
27 (3) The name and address of the applicant's
28 principal place of business at which the books, accounts,
29 and records shall be available for examination by the
30 Comptroller as required by this Act;
31 (4) The names and addresses of the applicant's
32 branch locations at which pre-need sales shall be
33 conducted and which shall operate under the same license
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1 number as the applicant's principal place of business;
2 (5) For each individual listed under item (1) above,
3 a detailed statement of the individual's business
4 experience for the 10 years immediately preceding the
5 application; any present or prior connection between the
6 individual and any other person engaged in pre-need
7 sales; any felony or misdemeanor convictions for which
8 fraud was an essential element; any charges or complaints
9 lodged against the individual for which fraud was an
10 essential element and which resulted in civil or criminal
11 litigation; any failure of the individual to satisfy an
12 enforceable judgment entered against him based upon
13 fraud; and any other information requested by the
14 Comptroller relating to past business practices of the
15 individual. Since the information required by this item
16 (5) may be confidential or contain proprietary
17 information, this information shall not be available to
18 other licensees or the general public and shall be used
19 only for the lawful purposes of the Comptroller in
20 enforcing this Act;
21 (6) The name of the trustee and, if applicable, the
22 names of the advisors to the trustee, including a copy of
23 the proposed trust agreement under which the trust funds
24 are to be held as required by this Act; and
25 (7) Such other information as the Comptroller may
26 reasonably require in order to determine the
27 qualification of the applicant to be licensed under this
28 Act. and (3)
29 (b) Applications for license shall be accompanied by a
30 fidelity bond executed by the applicant and a surety company
31 authorized to do business in this State or an irrevocable,
32 unconditional letter of credit issued by a bank, credit
33 union, or trust company authorized to do business in the
34 State of Illinois, as approved by the State Comptroller, in
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1 such amount not exceeding $10,000 as the Comptroller may
2 require. Individual salespersons employed by a licensee
3 shall not be required to obtain licenses in their individual
4 capacities. Upon receipt of such application and bond or
5 letter of credit the Comptroller shall issue a license unless
6 he or she shall determine that the applicant has made false
7 statements or representations in such application, or is
8 insolvent, or has conducted or is about to conduct his
9 business in a fraudulent manner, or is not duly authorized to
10 transact business in this State. Such license shall be kept
11 conspicuously posted in the place of business of the
12 licensee. If, after notice and an opportunity to be heard, it
13 has been determined that a licensee has violated this Act
14 within the past 5 calendar years, or if a licensee does not
15 retain a corporate fiduciary, as defined in the Corporate
16 Fiduciary Act, to manage the funds in trust pursuant to this
17 Act, the Comptroller may require an additional bond or letter
18 of credit from the licensee from time to time in amounts
19 equal to one-tenth of such trust funds, which bond or letter
20 of credit shall run to the Comptroller for the use and
21 benefit of the beneficiaries of such trust funds.
22 The licensee shall keep accurate accounts, books and
23 records in this State, at the principal place of business
24 identified in the licensee's license application or as
25 otherwise approved by the Comptroller in writing, of all
26 transactions, copies of all pre-need contracts, trust
27 agreements, and other agreements, dates and amounts of
28 payments made and accepted thereon, the names and addresses
29 of the contracting parties, the persons for whose benefit
30 such funds are accepted, and the names of the depositaries of
31 such funds. Each licensee shall maintain the documentation
32 for a period of 3 years after the licensee has fulfilled his
33 obligations under the pre-need contract. Additionally, for a
34 period not to exceed 6 months after the performance of all
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1 terms in a pre-need sales contract, the licensee shall
2 maintain copies of the contract at the licensee branch
3 location where the contract was entered. If an insurance
4 policy or tax-deferred annuity is used to fund the pre-need
5 contract, the licensee under this Act shall keep and maintain
6 accurate accounts, books, and records in this State, at the
7 principal place of business identified in the licensee's
8 application or as otherwise approved by the Comptroller in
9 writing, of all insurance policies and tax-deferred annuities
10 used to fund the pre-need contract, the name and address of
11 insured, annuitant, and initial beneficiary, and the name and
12 address of the insurance company issuing the policy or
13 annuity. If a life insurance policy or tax-deferred annuity
14 is used to fund a pre-need contract, the licensee shall
15 notify the insurance company of the name of each pre-need
16 contract purchaser and the amount of each payment when the
17 pre-need contract, insurance policy or annuity is purchased.
18 The licensee shall make reports to the Comptroller
19 annually or at such other time as the Comptroller may
20 require, on forms furnished by the Comptroller. The licensee
21 shall file the annual report with the Comptroller within 75
22 days after the end of the licensee's fiscal year. The
23 Comptroller shall for good cause shown grant an extension for
24 the filing of the annual report upon the written request of
25 the licensee. Such extension shall not exceed 60 days. If a
26 licensee fails to submit an annual report to the Comptroller
27 within the time specified in this Section, the Comptroller
28 shall impose upon the licensee a penalty of $5 for each and
29 every day the licensee remains delinquent in submitting the
30 annual report. Every application shall be accompanied by a
31 check or money order in the amount of $25 and every report
32 shall be accompanied by a check or money order in the amount
33 of $10 payable to: Comptroller, State of Illinois.
34 The licensee shall make all required books and records
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1 pertaining to trust funds, insurance policies, or
2 tax-deferred annuities available to the Comptroller for
3 examination. The Comptroller, or a person designated by the
4 Comptroller who is trained to perform such examinations, may
5 at any time investigate the books, records and accounts of
6 the licensee with respect to trust funds, insurance policies,
7 or tax-deferred annuities and for that purpose may require
8 the attendance of and examine under oath all persons whose
9 testimony he may require. The licensee shall pay a fee for
10 such examination in accordance with a schedule established by
11 the Comptroller. The fee shall not exceed the cost of such
12 examination. For pre-need contracts funded by trust
13 arrangements, the cost of an initial examination shall be
14 borne by the licensee if it has $10,000 or more in trust
15 funds, otherwise, by the Comptroller. The charge made by the
16 Comptroller for an examination shall be based upon the total
17 amount of trust funds held by the licensee at the end of the
18 calendar or fiscal year for which the report is required by
19 this Act and shall be in accordance with the following
20 schedule:
21 Less than $10,000..................................no charge;
22 $10,000 or more but less than $50,000....................$10;
23 $50,000 or more but less than $100,000...................$40;
24 $100,000 or more but less than $250,000..................$80;
25 $250,000 or more........................................$100.
26 The Comptroller may order additional audits or
27 examinations as he or she may deem necessary or advisable to
28 ensure the safety and stability of the trust funds and to
29 ensure compliance with this Act. These additional audits or
30 examinations shall only be made after good cause is
31 established by the Comptroller in the written order. The
32 grounds for ordering these additional audits or examinations
33 may include, but shall not be limited to:
34 (1) material and unverified changes or fluctuations
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1 in trust balances or insurance or annuity policy amounts;
2 (2) the licensee changing trustees more than twice
3 in any 12-month period;
4 (3) any withdrawals or attempted withdrawals from
5 the trusts, insurance policies, or annuity contracts in
6 violation of this Act; or
7 (4) failure to maintain or produce documentation
8 required by this Act for deposits into trust accounts,
9 trust investment activities, or life insurance or annuity
10 policies.
11 Prior to ordering an additional audit or examination, the
12 Comptroller shall request the licensee to respond and comment
13 upon the factors identified by the Comptroller as warranting
14 the subsequent examination or audit. The licensee shall have
15 30 days to provide a response to the Comptroller. If the
16 Comptroller decides to proceed with the additional
17 examination or audit, the licensee shall bear the full cost
18 of that examination or audit, up to a maximum of $7,500. The
19 Comptroller may elect to pay for the examination or audit and
20 receive reimbursement from the licensee. Payment of the
21 costs of the examination or audit by a licensee shall be a
22 condition of receiving, maintaining, or renewing a license
23 under this Act. All moneys received by the Comptroller for
24 examination or audit fees shall be maintained in a separate
25 account to be known as the Comptroller's Administrative Fund.
26 This Fund, subject to appropriation by the General Assembly,
27 may be utilized by the Comptroller for enforcing this Act and
28 other purposes that may be authorized by law.
29 For pre-need contracts funded by life insurance or a
30 tax-deferred annuity, the cost of an examination shall be
31 borne by the licensee if it has received $10,000 or more in
32 premiums during the preceding calendar year. The fee schedule
33 for such examination shall be established in rules
34 promulgated by the Comptroller. In the event such
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1 investigation or other information received by the
2 Comptroller discloses a substantial violation of the
3 requirements of this Act, the Comptroller shall revoke the
4 license of such person upon a hearing as provided in this
5 Act. Such licensee may terminate all further responsibility
6 for compliance with the requirements of this Act by
7 voluntarily surrendering the license to the Comptroller, or
8 in the event of its loss, furnishing the Comptroller with a
9 sworn statement to that effect, which states the licensee's
10 intention to discontinue acceptance of funds received under
11 pre-need contracts. Such license or statement must be
12 accompanied by an affidavit that said licensee has lawfully
13 expended or refunded all funds received under pre-need
14 contracts, and that the licensee will accept no additional
15 sales proceeds. The Comptroller shall immediately cancel or
16 revoke said license.
17 (Source: P.A. 88-477; 89-615, eff. 8-9-96.)
18 (225 ILCS 45/3a) (from Ch. 111 1/2, par. 73.103a)
19 Sec. 3a. Denial, suspension, or revocation of license.
20 (a) The Comptroller may refuse to issue or may suspend
21 or revoke a license on any of the following grounds:
22 (1) The applicant or licensee has made any
23 misrepresentations or false statements or concealed any
24 material fact.
25 (2) The applicant or licensee is insolvent.
26 (3) The applicant or licensee has been engaged in
27 business practices that work a fraud.
28 (4) The applicant or licensee has refused to give
29 pertinent data to the Comptroller.
30 (5) The applicant or licensee has failed to satisfy
31 any enforceable judgment or decree rendered by any court
32 of competent jurisdiction against the applicant.
33 (6) The applicant or licensee has conducted or is
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1 about to conduct business in a fraudulent manner.
2 (7) The trustee advisors or the trust agreement is
3 not satisfactory to the Comptroller.
4 (8) The fidelity bond is not satisfactory to the
5 Comptroller.
6 (9) As to any individual, the individual has
7 conducted or is about to conduct any business on behalf
8 of the applicant in a fraudulent manner; has been
9 convicted of any felony or misdemeanor, an essential
10 element of which is fraud; has had a judgment rendered
11 against him or her based on fraud in any civil
12 litigation; has failed to satisfy any enforceable
13 judgment or decree rendered against him or her by any
14 court of competent jurisdiction; or has been convicted of
15 any felony or any theft-related offense.
16 (10) The applicant or licensee, including any
17 member, officer, or director thereof if the applicant or
18 licensee is a firm, partnership, association or
19 corporation and any shareholder holding more than 10% of
20 the corporate stock, has violated any provision of this
21 Act or any regulation, decision, order, or finding made
22 by the Comptroller under this Act.
23 (11) The Comptroller finds any fact or condition
24 existing which, if it had existed at the time of the
25 original application for such license, would have
26 warranted the Comptroller in refusing the issuance of the
27 license.
28 (b) Before refusal to issue or renew and before
29 suspension or revocation of a license, the Comptroller shall
30 hold a hearing to determine whether the applicant or
31 licensee, hereinafter referred to as the respondent, is
32 entitled to hold such a license. At least 10 days prior to
33 the date set for such hearing, the Comptroller shall notify
34 the respondent in writing that on the date designated a
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1 hearing will be held to determine his eligibility for a
2 license and that he may appear in person or by counsel. Such
3 written notice may be served on the respondent personally, or
4 by registered or certified mail sent to the respondent's
5 business address as shown in his latest notification to the
6 Comptroller. At the hearing, both the respondent and the
7 complainant shall be accorded ample opportunity to present in
8 person or by counsel such statements, testimony, evidence and
9 argument as may be pertinent to the charges or to any defense
10 thereto. The Comptroller may reasonably continue such
11 hearing from time to time.
12 The Comptroller may subpoena any person or persons in
13 this State and take testimony orally, by deposition or by
14 exhibit, in the same manner and with the same fees and
15 mileage allowances as prescribed in judicial proceedings in
16 civil cases.
17 Any authorized agent of the Comptroller may administer
18 oaths to witnesses at any hearing which the Comptroller is
19 authorized to conduct.
20 (Source: P.A. 84-839.)
21 (225 ILCS 45/3a-5 new)
22 Section 3a-5. License requirements.
23 (a) Every license issued by the Comptroller shall state
24 the number of the license, the business name and address of
25 the licensee's principal place of business, each branch
26 location also operating under the license, and the licensee's
27 parent company, if any. The license shall be conspicuously
28 posted in each place of business operating under the license.
29 The Comptroller may issue such additional licenses as may be
30 necessary for licensee branch locations upon compliance with
31 the provisions of this Act governing an original issuance of
32 a license for each new license.
33 (b) Individual salespersons representing a licensee
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1 shall not be required to obtain licenses in their individual
2 capacities, but must acknowledge, by affidavit, that they
3 have been educated in the provisions of this Act and
4 understand the penalties for failure to comply. The licensee
5 shall retain copies of the affidavits of its sellers for its
6 records and shall make the affidavits available to the
7 Comptroller for examination upon request.
8 (c) The licensee shall be responsible for the activities
9 of any person representing the licensee in selling or
10 offering a pre-need contract for sale.
11 (d) Any person not selling on behalf of a licensee shall
12 obtain its own license.
13 (e) No license shall be transferable or assignable
14 without the express written consent of the Comptroller. A
15 transfer of more than 50% of the ownership of any business
16 licensed hereunder shall be deemed to be an attempted
17 assignment of the license originally issued to the licensee
18 for which consent of the Comptroller shall be required.
19 (f) Every license issued hereunder shall remain in force
20 until it has been suspended, surrendered, or revoked in
21 accordance with this Act. The Comptroller, upon the request
22 of an interested person or on his own motion, may issue new
23 licenses to a licensee whose license or licenses have been
24 revoked, if no factor or condition then exists which would
25 have warranted the Comptroller to originally refuse the
26 issuance of such license.
27 (225 ILCS 45/3e) (from Ch. 111 1/2, par. 73.103e)
28 Sec. 3e. Upon the revocation of, suspension of, or
29 refusal to renew any license, the licensee shall immediately
30 surrender the license or licenses and any branch office
31 licenses to the Comptroller. If the licensee fails to do so,
32 the Comptroller shall have the right to seize the same.
33 (Source: P.A. 84-839.)
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1 (225 ILCS 45/3f)
2 Sec. 3f. Revocation of license.
3 (a) The Comptroller, upon determination that grounds
4 exist for the revocation or suspension of a license issued
5 under this Act, may revoke or suspend the license issued to a
6 particular branch office location with respect to which the
7 grounds for revocation or suspension may occur or exist or
8 the Comptroller may revoke or suspend as many of the licenses
9 issued to the licensee as may be determined appropriate by
10 the Comptroller.
11 (b) Whenever a license is revoked by the Comptroller, he
12 or she shall apply to the Circuit Court of the county wherein
13 the licensee is located for a receiver to administer the
14 trust funds of the licensee or to maintain the life insurance
15 policies and tax-deferred annuities held by the licensee
16 under a pre-need contract.
17 (Source: P.A. 88-477.)
18 (225 ILCS 45/4) (from Ch. 111 1/2, par. 73.104)
19 Sec. 4. Withdrawal of funds; revocability of contract.
20 (a) The amount or amounts so deposited into trust, with
21 interest thereon, if any, shall not be withdrawn until the
22 death of the person or persons for whose funeral or burial
23 such funds were paid, unless sooner withdrawn and repaid to
24 the person who originally paid the money under or in
25 connection with the pre-need contract or to his or her legal
26 representative. The life insurance policies or tax-deferred
27 annuities shall not be surrendered until the death of the
28 person or persons for whose funeral or burial the policies or
29 annuities were purchased, unless sooner surrendered and
30 repaid to the owner of the policy purchased under or in
31 connection with the pre-need contract or to his or her legal
32 representative. If, however, the agreement or series of
33 agreements provides for forfeiture and retention of any or
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1 all payments as and for liquidated damages as provided in
2 Section 6, then the trustee may withdraw the deposits. In
3 addition, nothing in this Section (i) prohibits the change of
4 depositary by the trustee and the transfer of trust funds
5 from one depositary to another or (ii) prohibits a contract
6 purchaser who is or may become eligible for public assistance
7 under any applicable federal or State law or local ordinance
8 including, but not limited to, eligibility under 24 C.F.R.,
9 Part 913 relating to family insurance under federal Housing
10 and Urban Development Policy from irrevocably waiving, in
11 writing, and renouncing the right to cancel a pre-need
12 contract for funeral services in an amount prescribed by rule
13 of the Illinois Department of Public Aid. No guaranteed price
14 pre-need funeral contract may prohibit a purchaser from
15 making a contract irrevocable to the extent that federal law
16 or regulations require that such a contract be irrevocable
17 for purposes of the purchaser's eligibility for Supplemental
18 Security Income benefits, Medicaid, or another public
19 assistance program, as permitted under federal law.
20 (b) If for any reason a seller or provider who has
21 engaged in pre-need sales has refused, cannot, or does not
22 comply with the terms of the pre-need contract within a
23 reasonable time after he or she is required to do so, the
24 purchaser or his or her heirs or assigns or duly authorized
25 representative shall have the right to a refund of an amount
26 equal to the sales proceeds price paid for undelivered
27 merchandise or services plus otherwise earned undistributed
28 interest amounts held in trust attributable to the contract,
29 within 30 days of the filing of a sworn affidavit with the
30 trustee setting forth the existence of the contract and the
31 fact of breach. A copy of this affidavit shall be filed with
32 the Comptroller and the seller. In the event a seller is
33 prevented from performing by strike, shortage of materials,
34 civil disorder, natural disaster, or any like occurrence
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1 beyond the control of the seller or provider, the seller or
2 provider's time for performance shall be extended by the
3 length of the delay. Nothing in this Section shall relieve
4 the seller or provider from any liability for non-performance
5 of his or her obligations under the pre-need contract.
6 (c) At any time prior to the performance of a service or
7 delivery of merchandise under a pre-need contract After final
8 payment on a pre-need contract, any purchaser, its legal
9 representative, or all beneficiaries under the pre-need
10 contract may, upon signed written demand to a seller, demand
11 that the pre-need contract with the seller be terminated.
12 The seller shall, within 30 days, initiate a refund to the
13 purchaser, its legal representative, or all beneficiaries
14 under the pre-need contract in an amount as follows:
15 (1) 100% of the sales proceeds, including
16 undistributed interest earned thereon, if the purchaser,
17 its legal representative, or all beneficiaries demand
18 termination of the pre-need contract within 30 days of
19 the date of entry into the pre-need contract; or
20 (2) of the entire amount held in trust attributable
21 to undelivered merchandise and unperformed services,
22 including otherwise earned undistributed interest earned
23 thereon, if the purchaser, its legal representative, or
24 all beneficiaries demand termination of the pre-need
25 contract more than 30 days after the date of entry into
26 the pre-need contract; or
27 (3) the cash surrender value of a life insurance
28 policy or tax deferred annuity.
29 (d) If no funeral merchandise or services are provided
30 or if the funeral is conducted by another person, the seller
31 may keep no more than 10% of the payments made under the
32 pre-need contract or $300, whichever sum is less. The
33 remainder of the trust funds or insurance or annuity proceeds
34 shall be forwarded to the legal heirs of the deceased or as
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1 determined by probate action.
2 (d) The placement and retention of all or a portion of a
3 casket, combination casket-vault, urn, or outer burial
4 container comprised of materials which are designed to
5 withstand prolonged storage in the manner set forth in this
6 paragraph without adversely affecting the structural
7 integrity or aesthetic characteristics of such merchandise in
8 a specific burial space in which the person or persons for
9 whose funeral or burial the merchandise was intended has a
10 right of interment, or the placement of the merchandise in a
11 specific mausoleum crypt or lawn crypt in which such person
12 has a right of entombment, or the placement of the
13 merchandise in a specific niche in which such person has a
14 right of inurnment, or delivery to such person and retention
15 by such person until the time of need shall constitute actual
16 delivery to the person who originally paid the money under or
17 in connection with said agreement or series of agreements.
18 Actual delivery shall eliminate, from and after the date of
19 actual delivery, any requirement under this Act to place or
20 retain in trust any funds received for the sale of such
21 merchandise. The delivery, prior to the time of need, of any
22 funeral or burial merchandise in any manner other than
23 authorized by this Section shall not constitute actual
24 delivery and shall not eliminate any requirement under this
25 Act to place or retain in trust any funds received for the
26 sale of such merchandise.
27 (Source: P.A. 87-1091; 88-477.)
28 (225 ILCS 45/7.2)
29 Sec. 7.2. Investigation of unlawful practices. If it
30 appears to the Comptroller that a person has engaged in, is
31 engaging in, or is about to engage in any practice in
32 violation of declared to be unlawful by this Act, the
33 Comptroller may:
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1 (1) require that person to file on such terms as
2 the Comptroller prescribes a statement or report in
3 writing, under oath or otherwise, containing all
4 information the Comptroller may consider necessary to
5 ascertain whether a licensee is in compliance with this
6 Act, or whether an unlicensed person is engaging in
7 activities for which a license is required;
8 (2) examine under oath any person in connection
9 with the books and records pertaining to or having an
10 impact upon trust funds, insurance policies, or tax
11 deferred annuities required or allowed to be maintained
12 pursuant to this Act;
13 (3) examine any books and records of the licensee,
14 trustee, or investment advisor that the Comptroller may
15 consider necessary to ascertain compliance with this Act;
16 and
17 (4) require the production of a copy of any record,
18 book, document, account, or paper that is produced in
19 accordance with this Act and retain it in his or her
20 possession until the completion of all proceedings in
21 connection with which it is produced.
22 (Source: P.A. 89-615, eff. 8-9-96.)
23 (225 ILCS 45/8) (from Ch. 111 1/2, par. 73.108)
24 Sec. 8. Any person who intentionally violates any
25 provision of this Act is guilty of a Class 4 felony.
26 If any person intentionally violates this Act or fails or
27 refuses to comply with any order of the Comptroller or any
28 part of an order that has become final to the person and is
29 still in effect, the Comptroller may, after notice and
30 hearing at which it is determined that a violation of this
31 Act or the order has been committed, further order that the
32 person shall forfeit and pay to the State of Illinois a sum
33 not to exceed $10,000 $5,000 for each violation. This
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1 liability shall be enforced in an action brought in any court
2 of competent jurisdiction by the Comptroller in the name of
3 the People of the State of Illinois.
4 Any person that violates any provision of this Act or
5 fails to comply with an order of the Comptroller shall be
6 liable for a civil penalty not to exceed $10,000 for the
7 violation and an additional civil penalty of not to exceed
8 $1,000 for each day during which the violation continues. The
9 civil penalties provided for in this Section may be recovered
10 in a civil action. These penalties are in addition to any
11 penalties that may be issued under the Consumer Fraud and
12 Deceptive Business Practices Act for knowing violations of
13 this Act.
14 Any violation of this Act for which a fine may be
15 assessed shall be established by rules promulgated by the
16 Comptroller.
17 In addition to the other penalties and remedies provided
18 in this Act, the Comptroller may bring a civil action in the
19 county of residence of the licensee or any person accepting
20 trust funds to enjoin any violation or threatened violation
21 of this Act.
22 The powers vested in the Comptroller by this Section are
23 in addition to any and all other powers and remedies vested
24 in the Comptroller by law.
25 (Source: P.A. 88-477.)
26 (225 ILCS 45/8.1 new)
27 Sec. 8.1. Sales; liability of purchaser for shortage. In
28 the event of a sale or transfer of all or substantially all
29 of the assets of the licensee, the sale or transfer of the
30 controlling interest of the corporate stock of the licensee
31 if the licensee is a corporation, the sale or transfer of the
32 controlling interest of the partnership if the licensee is a
33 partnership, or the sale of the licensee pursuant to
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1 foreclosure proceedings, the purchaser is liable for any
2 shortages existing before or after the sale in the trust
3 funds required to be maintained in a trust pursuant to this
4 Act and shall honor all pre-need contracts and trusts entered
5 into by the licensee. Any shortages existing in the trust
6 funds constitute a prior lien in favor of the trust for the
7 total value of the shortages, and notice of that lien shall
8 be provided in all sales instruments.
9 In the event of a sale or transfer of all or
10 substantially all of the assets of the licensee, the sale or
11 transfer of the controlling interest of the corporate stock
12 of the licensee if the licensee is a corporation, or the sale
13 or transfer of the controlling interest of the partnership if
14 the licensee is a partnership, the licensee shall, at least
15 21 days prior to the sale or transfer, notify the
16 Comptroller, in writing, of the pending date of sale or
17 transfer so as to permit the Comptroller to audit the books
18 and records of the licensee. The audit must be commenced
19 within 10 business days of the receipt of the notification
20 and completed within the 21-day notification period unless
21 the Comptroller notifies the licensee during that period that
22 there is a basis for determining a deficiency which will
23 require additional time to finalize. The sale or transfer
24 may not be completed by the licensee unless and until:
25 (i) the Comptroller has completed the audit of the
26 licensee's books and records;
27 (ii) any delinquency existing in the trust funds has
28 been paid by the licensee, or arrangements satisfactory
29 to the Comptroller have been made by the licensee on the
30 sale or transfer for the payment of any delinquency; and
31 (iii) the Comptroller issues a license upon
32 application of the new owner, which license must be
33 applied for within 30 days of the anticipated date of the
34 sale or transfer, subject to the payment of any
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1 delinquencies, if any, as stated in item (ii).
2 For purposes of this Section, a person, firm,
3 corporation, partnership, or institution that acquires the
4 licensee through a real estate foreclosure shall be subject
5 to the provisions of this Section. The sale or transfer of
6 the controlling interest of a licensee to an immediate family
7 member is not subject to the license application process
8 required in item (iii) of this Section.
9 Section 32. The Illinois Public Aid Code is amended by
10 changing Section 12-4.11 as follows:
11 (305 ILCS 5/12-4.11) (from Ch. 23, par. 12-4.11)
12 Sec. 12-4.11. Grant amounts. The Department, with due
13 regard for and subject to budgetary limitations, shall
14 establish grant amounts for each of the programs, by
15 regulation. The grant amounts may vary by program, size of
16 assistance unit and geographic area.
17 Aid payments shall not be reduced except: (1) for changes
18 in the cost of items included in the grant amounts, or (2)
19 for changes in the expenses of the recipient, or (3) for
20 changes in the income or resources available to the
21 recipient, or (4) for changes in grants resulting from
22 adoption of a consolidated grant amount.
23 In fixing standards to govern payments or reimbursements
24 for funeral and burial expenses, the Department shall take
25 into account the services essential to a dignified, low-cost
26 funeral and burial, including reasonable amounts that may be
27 necessary for burial space and cemetery charges, and any
28 applicable taxes or other required governmental fees or
29 charges.
30 For the fiscal year beginning July 1, 2000, no payment
31 may be provided for funeral services in excess of $850 and no
32 payment may be provided for cemetery burial costs in excess
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1 of $425. For the fiscal year beginning July 1, 2001, and
2 thereafter, no payment may be provided for funeral services
3 in excess of $1,000 and no payment may be provided for
4 cemetery burial costs in excess of $500.
5 Nothing contained in this Section or in any other Section
6 of this Code shall be construed to prohibit the Illinois
7 Department (1) from consolidating existing standards on the
8 basis of any standards which are or were in effect on, or
9 subsequent to July 1, 1969, or (2) from employing any
10 consolidated standards in determining need for public aid and
11 the amount of money payment or grant for individual
12 recipients or recipient families.
13 (Source: P.A. 90-17, eff. 7-1-97; 90-326, eff. 8-8-97;
14 90-372, eff. 7-1-98; 90-655, eff. 7-30-98; 91-24, eff.
15 7-1-99.)
16 Section 35. The Cemetery Care Act is amended by changing
17 Sections 2a, 4, 8, 9, 10, 11, 11.1, 13, 15b, and 24 as
18 follows:
19 (760 ILCS 100/2a) (from Ch. 21, par. 64.2a)
20 Sec. 2a. Powers and duties of cemetery authorities;
21 cemetery property maintained by cemetery care funds.
22 (a) With respect to cemetery property maintained by
23 cemetery care funds, a cemetery authority is shall be
24 responsible for the performance of:
25 (1) (a) the care and maintenance of the cemetery
26 property it owns; and
27 (2) (b) the opening and closing of all graves,
28 crypts, or niches for human remains in any cemetery
29 property it owns.
30 (b) A cemetery authority owning, operating, controlling
31 or managing a privately operated cemetery shall provide
32 reasonable maintenance of the cemetery property and of the
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1 lots, graves, crypts, and columbariums in the cemetery.
2 Reasonable maintenance includes, but is not limited to:
3 (1) the laying of seed, sod, or other suitable
4 ground cover as soon as practicable following an
5 interment given the weather conditions, climate, season,
6 and the interment's proximity to ongoing burial activity;
7 (2) the cutting of the lawn throughout the cemetery
8 at reasonable intervals to prevent an overgrowth of grass
9 and weeds;
10 (3) the trimming of shrubs to prevent excessive
11 overgrowth;
12 (4) the trimming of trees to remove dead limbs;
13 (5) keeping in repair the drains, water lines,
14 roads, buildings, fences, and other structures; and
15 (6) keeping the cemetery premises free of trash and
16 debris.
17 Reasonable maintenance by the cemetery authority shall
18 not preclude the exercise of lawful rights by an owner of an
19 interment, inurnment, or entombment right, or the owner's
20 family and heirs, in accordance with the reasonable rules and
21 regulations of the cemetery or other agreement of the
22 cemetery authority.
23 (c) A cemetery authority owning, operating, controlling
24 or managing a privately operated cemetery shall conspicuously
25 post in each of its offices its rules, regulations, charges,
26 and prices of lots, plots or parts thereof.
27 (d) A cemetery authority owning, operating, controlling
28 or managing a privately operated cemetery shall, from time to
29 time as land in its cemetery may be required for burial
30 purposes, survey and subdivide those lands and make and file
31 in its office a map thereof delineating the lots or plots,
32 avenues, paths, alleys, and walks and their respective
33 designations. The map shall be open to public inspection.
34 The cemetery authority shall make available a true copy of
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1 the map upon written request and payment of reasonable
2 photocopy fees. Any unsold lots, plots or parts thereof, in
3 which there are not human remains, may be resurveyed and
4 altered in shape or size, and properly designated on such
5 map. Nothing contained in this subsection, however, shall
6 prevent the cemetery authority from enlarging an interment
7 right by selling to the owner thereof the excess space next
8 to such interment right and permitting interments therein,
9 provided reasonable access to such interment right and to
10 adjoining interment rights is not thereby eliminated.
11 (e) A cemetery authority owning, operating, controlling,
12 or managing a privately operated cemetery shall keep a record
13 of every interment, entombment, and inurnment in the
14 cemetery. The record shall include the deceased's name, age,
15 and date of burial, when these particulars can be
16 conveniently obtained, and the lot, plot, or section where
17 the human remains are interred, entombed, or inurned. The
18 record shall be open to public inspection. The cemetery
19 authority shall make available a true copy of the record upon
20 written request and payment of reasonable copy costs.
21 (f) A cemetery authority owning, operating, controlling,
22 or managing a privately operated cemetery shall provide
23 access to the cemetery under the cemetery authority's
24 reasonable rules and regulations.
25 (Source: P.A. 87-747.)
26 (760 ILCS 100/4) (from Ch. 21, par. 64.4)
27 Sec. 4. Care funds; deposits; investments. Whenever a
28 cemetery authority owning, operating, controlling or managing
29 a privately operated cemetery accepts care funds, either in
30 connection with the sale or giving away at an imputed value
31 of an interment right, entombment right or inurnment right,
32 or in pursuance of a contract, or whenever, as a condition
33 precedent to the purchase or acceptance of an interment
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1 right, entombment right or inurnment right, such cemetery
2 authority requires the establishment of a care fund or a
3 deposit in an already existing care fund, then such cemetery
4 authority shall execute and deliver to the person from whom
5 received an instrument in writing which shall specifically
6 state: (a) the nature and extent of the care to be furnished,
7 and (b) that such care shall be furnished only in so far as
8 the net income derived from the amount deposited in trust
9 will permit (the income from the amount so deposited, less
10 necessary expenditures of administering the trust, shall be
11 deemed the net income), and (c) that not less than the
12 following amounts will be set aside and deposited in trust:
13 1. For interment rights, $1 per square foot of the
14 space sold or 15% of the sales price or imputed value,
15 whichever is the greater, with a minimum of $25 for each
16 individual interment right.
17 2. For entombment rights, not less than 10% of the
18 sales price or imputed value with a minimum of $25 for
19 each individual entombment right.
20 3. For inurnment rights, not less than 10% of the
21 sales price or imputed value with a minimum of $15 for
22 each individual inurnment right.
23 4. For any transfer of interment rights, entombment
24 rights, or inurnment rights recorded in the records of
25 the cemetery authority, excepting only transfers between
26 members of the immediate family of the transferor, a
27 minimum of $25 for each such right transferred. For the
28 purposes of this paragraph "immediate family of the
29 transferor" means the spouse, parents, grandparents,
30 children, grandchildren, and siblings of the transferor.
31 5. Upon an interment, entombment, or inurnment in a
32 grave, crypt, or niche in which rights of interment,
33 entombment, or inurnment were originally acquired from a
34 cemetery authority prior to January 1, 1948, a minimum of
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1 $25 for each such right exercised.
2 6. For the special care of any lot, grave, crypt,
3 or niche or of a family mausoleum, memorial, marker, or
4 monument, the full amount received.
5 Such setting aside and deposit shall be made by such
6 cemetery authority not later than 30 days after the close of
7 the month in which the cemetery authority gave away for an
8 imputed value or received a the final payment on the purchase
9 price of interment rights, entombment rights, or inurnment
10 rights, or received a the final payment for the general or
11 special care of a lot, grave, crypt or niche or of a family
12 mausoleum, memorial, marker or monument. If a sale that would
13 require a deposit to the care fund is made on an installment
14 basis, the cemetery authority shall deposit to the care fund
15 each installment payment within 30 days of the close of the
16 month in which the cemetery authority received the payment
17 until the amount due the care fund has been deposited.
18 Deposits to the care funds; and such amounts shall be held by
19 the trustee of the care funds of such cemetery authority in
20 trust in perpetuity for the specific purposes stated in said
21 written instrument. For all care funds received by a cemetery
22 authority, except for care funds received by a cemetery
23 authority pursuant to a specific gift, grant, contribution,
24 payment, legacy, or contract that are subject to investment
25 restrictions more restrictive than the investment provisions
26 set forth in this Act, and except for care funds otherwise
27 subject to a trust agreement executed by a person or persons
28 responsible for transferring the specific gift, grant,
29 contribution, payment, or legacy to the cemetery authority
30 that contains investment restrictions more restrictive than
31 the investment provisions set forth in this Act, the cemetery
32 authority may, without the necessity of having to obtain
33 prior approval from any court in this State, designate a new
34 trustee in accordance with this Act and invest the care funds
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1 in accordance with this Section, notwithstanding any contrary
2 limitation contained in the trust agreement.
3 Any such cemetery authority engaged in selling or giving
4 away at an imputed value interment rights, entombment rights
5 or inurnment rights, in conjunction with the selling or
6 giving away at an imputed value any other merchandise or
7 services not covered by this Act, shall be prohibited from
8 increasing the sales price or imputed value of those items
9 not requiring a care fund deposit under this Act with the
10 purpose of allocating a lesser sales price or imputed value
11 to items that require a care fund deposit.
12 In the event any sale that would require a deposit to
13 such cemetery authority's care fund is made by a cemetery
14 authority on an installment basis, and the installment
15 contract is factored, discounted, or sold to a third party,
16 the cemetery authority shall deposit the amount due to the
17 care fund within 30 days after the close of the month in
18 which the installment contract was factored, discounted, or
19 sold. If, subsequent to such deposit, the purchaser defaults
20 on the contract such that no care fund deposit on that
21 contract would have been required, the cemetery authority may
22 apply the amount deposited as a credit against future
23 required deposits.
24 The trust authorized by this Section shall be a single
25 purpose trust fund. In the event of the seller's bankruptcy,
26 insolvency, or assignment for the benefit of creditors, or an
27 adverse judgment, the trust funds shall not be available to
28 any creditor as assets of the cemetery authority or to pay
29 any expenses of any bankruptcy or similar proceeding, but
30 shall be retained intact to provide for the future
31 maintenance of the cemetery. Except in an action by the
32 Comptroller to revoke a license issued pursuant to this Act
33 and for creation of a receivership as provided in this Act,
34 the trust shall not be subject to judgment, execution,
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1 garnishment, attachment, or other seizure by process in
2 bankruptcy or otherwise, nor to sale, pledge, mortgage, or
3 other alienation, and shall not be assignable except as
4 approved by the Comptroller. The changes made by this
5 amendatory Act of the 91st General Assembly are intended to
6 clarify existing law regarding the inability of licensees to
7 pledge the trust.
8 If, subsequent to a deposit of care funds required under
9 this Section, the purchaser defaults on the contract such
10 that no care fund deposits on that contract would have been
11 required, the cemetery authority may apply the amount
12 deposited as a credit against future required deposits.
13 (Source: P.A. 91-7, eff. 6-1-99.)
14 (760 ILCS 100/8) (from Ch. 21, par. 64.8)
15 Sec. 8. Every cemetery authority shall register with the
16 Comptroller upon forms furnished by him or her. Such
17 registration statement shall state whether the cemetery
18 authority claims that the cemetery owned, operated,
19 controlled, or managed by it is a fraternal cemetery,
20 municipal, State, or federal cemetery, or religious cemetery,
21 or a family burying ground, as the case may be, as defined in
22 Section 2 of this Act, and shall state the date of
23 incorporation if a corporation and whether incorporated under
24 general or private act of the legislature. Such registration
25 statement shall be accompanied by a fee of $5. Such fee shall
26 be paid to the Comptroller and no registration statement
27 shall be accepted by him without the payment of such fee.
28 Every cemetery authority that is not required to file an
29 annual report under this Act shall bear the responsibility of
30 informing the Comptroller whenever a change takes place
31 regarding status of cemetery, name of contact person, and
32 that person's address and telephone number.
33 Upon receipt of a registration statement, if a claim is
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1 made that a cemetery is a fraternal cemetery, municipal
2 cemetery, or religious cemetery, or a family burying ground,
3 as the case may be, as defined in Section 2 of this Act, and
4 the Comptroller shall determine that such cemetery is not a
5 fraternal cemetery, a municipal cemetery, or a religious
6 cemetery, or a family burying ground, as the case may be, as
7 defined in Section 2 of this Act, the Comptroller shall
8 notify the cemetery authority making the claim of such
9 determination; provided, however, that no such claim shall be
10 denied until the cemetery authority making such claim has had
11 at least 10 days' notice of a hearing thereon and an
12 opportunity to be heard. When any such claim is denied, the
13 Comptroller shall within 20 days thereafter prepare and keep
14 on file in his office the transcript of the evidence taken
15 and a written order or decision of denial of such claim and
16 shall send by United States mail a copy of such order or
17 decision of denial to the cemetery authority making such
18 claim within 5 days after the filing in his office of such
19 order, finding or decision. A review of any such order,
20 finding or decision may be had as provided in the
21 Administrative Review Law, as now or hereafter amended.
22 Where no claim is made that a cemetery is a fraternal
23 cemetery, municipal cemetery or religious cemetery or family
24 burying ground, as the case may be, as defined in Section 2
25 of this Act, the registration statement shall be accompanied
26 by a fidelity bond in the amount required by Section 9 of
27 this Act. Upon receipt of such application, statement and
28 bond, the Comptroller shall issue a license to accept the
29 care funds authorized by the provisions of Section 3 of this
30 Act to each cemetery authority owning, operating, controlling
31 or managing a privately operated cemetery. However, the
32 Comptroller shall issue a license without the filing of a
33 bond where the filing of a bond is excused by Section 18 of
34 this Act.
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1 The license issued by the Comptroller shall remain in
2 full force and effect until it is surrendered by the licensee
3 or revoked by the Comptroller as hereinafter provided.
4 (Source: P.A. 88-477.)
5 (760 ILCS 100/9) (from Ch. 21, par. 64.9)
6 Sec. 9. Application for license.
7 (a) Prior to or concurrent with the acceptance of care
8 funds authorized by Section 3 of this Act or the sale or
9 transfer of the controlling interest of a licensed cemetery
10 authority, a cemetery authority owning, operating,
11 controlling, or managing a privately operated cemetery shall
12 make application to the Comptroller for a license to hold the
13 funds. Whenever a cemetery authority owning, operating,
14 controlling or managing a privately operated cemetery is
15 newly organized and such cemetery authority desires to be
16 licensed to accept the care funds authorized by Section 3 of
17 this Act, or whenever there is a sale or transfer of the
18 controlling interest of a licensed cemetery authority, it
19 shall make application for such license.
20 In the case of a sale or transfer of the controlling
21 interest of the cemetery authority, the prior license shall
22 remain in effect until the Comptroller issues a new license
23 to the newly-controlled cemetery authority as provided in
24 Section 15b. Upon issuance of the new license, the prior
25 license shall be deemed surrendered if the licensee has
26 agreed to the sale and transfer and has consented to the
27 surrender of the license. A sale or transfer of the
28 controlling interest of a cemetery authority to an immediate
29 family member is not considered a transfer of the controlling
30 interest for purposes of this Section.
31 (b) Applications for license shall be filed with the
32 Comptroller. Applications shall be in writing under oath,
33 signed by the applicant, and in the form furnished by the
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1 Comptroller. The form furnished by the Comptroller shall
2 enable a cemetery authority to apply for license of multiple
3 cemetery locations within a single license application. A
4 check or money order in the amount of $25 per license seeking
5 to be issued under the application, payable to: Comptroller,
6 State of Illinois, shall be included. Each application shall
7 contain the following:
8 (1) the full name and address (both of residence
9 and of place of business) of the applicant, if an
10 individual; of every member, if the applicant is a
11 partnership or association; of every officer, manager, or
12 director, if the applicant is a corporation, and of any
13 party owning 10% or more of the cemetery authority, and
14 the full name and address of the parent company, if any;
15 (2) a detailed statement of the applicant's assets
16 and liabilities;
17 (2.1) the name, address, and legal boundaries of
18 each cemetery for which the care funds shall be entrusted
19 and at which books, accounts, and records shall be
20 available for examination by the Comptroller as required
21 by Section 13 of this Act;
22 (3) as to the name of each individual person listed
23 under (1) above, a detailed statement of each person's
24 business experience for the 10 years immediately
25 preceding the application; the present and previous
26 connection, if any, of each person with any other
27 cemetery or cemetery authority; whether each person has
28 ever been convicted of any a felony or has ever been
29 convicted of any misdemeanor of which an essential
30 element is fraud or has been involved in any civil
31 litigation in which a judgment has been entered against
32 him or her based on fraud; whether each person is
33 currently a defendant in any lawsuit in which the
34 complaint against the person is based upon fraud; whether
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1 such person has failed to satisfy any enforceable
2 judgment entered by a court of competent jurisdiction in
3 any civil proceedings against such individual; and
4 (4) the total amount in trust and now available
5 from sales of lots, graves, crypts or niches where part
6 of the sale price has been placed in trust; the amount of
7 money placed in the care funds of each applicant; the
8 amount set aside in care funds from the sale of lots,
9 graves, crypts and niches for the general care of the
10 cemetery and the amount available for that purpose; the
11 amount received in trust by special agreement for special
12 care and the amount available for that purpose; the
13 amount of principal applicable to trust funds received by
14 the applicant; and.
15 (5) any other information that the Comptroller may
16 reasonably require in order to determine the
17 qualifications of the applicant to be licensed under this
18 Act.
19 Such information shall be furnished whether the care
20 funds are held by the applicant as trustee or by an
21 independent trustee. If the funds are not held by the
22 applicant, the name of the independent trustee holding them
23 is also to be furnished by the applicant.
24 (c) Applications for license shall also be accompanied
25 by a fidelity bond issued by a bonding company or insurance
26 company authorized to do business in this State or by an
27 irrevocable, unconditional letter of credit issued by a bank
28 or trust company authorized to do business in the State of
29 Illinois, as approved by the State Comptroller, where such
30 care funds exceed the sum of $15,000. Such bond or letter of
31 credit shall run to the Comptroller and his or her successor
32 for the benefit of the care funds held by such cemetery
33 authority or by the trustee of the care funds of such
34 cemetery authority. Such bonds or letters of credit shall be
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1 in an amount equal to 1/10 of such care funds. However, such
2 bond or letter of credit shall not be in an amount less than
3 $1,000; the first $15,000 of such care funds shall not be
4 considered in computing the amount of such bond or letter of
5 credit. No application shall be accepted by the Comptroller
6 unless accompanied by such bond or letter of credit.
7 Applications for license by newly organized cemetery
8 authorities after January 1, 1960 shall also be accompanied
9 by evidence of a minimum care fund deposit in an amount to be
10 determined as follows: if the number of inhabitants, either
11 in the county in which the cemetery is to be located or in
12 the area included within a 10 mile radius from the cemetery
13 if the number of inhabitants therein is greater, is 25,000 or
14 less the deposit shall be $7,500; if the number of
15 inhabitants is 25,001 to 50,000, the deposit shall be
16 $10,000; if the number of inhabitants is 50,001 to 125,000,
17 the deposit shall be $15,000; if the number of inhabitants is
18 over 125,000, the deposit shall be $25,000.
19 After an amount equal to and in addition to the required
20 minimum care fund deposit has been deposited in trust, the
21 cemetery authority may withhold 50% of all future care funds
22 until it has recovered the amount of the minimum care fund
23 deposit.
24 (d) (Blank). The applicant shall have a permanent
25 address and any license issued pursuant to the application is
26 valid only at the address or at any new address approved by
27 the Comptroller.
28 (e) All bonds and bonding deposits made by any cemetery
29 authority may be returned to the cemetery authority or
30 cancelled as to care funds invested with an investment
31 company.
32 (Source: P.A. 89-615, eff. 8-9-96; 90-655, eff. 7-30-98.)
33 (760 ILCS 100/10) (from Ch. 21, par. 64.10)
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1 Sec. 10. Upon receipt of such application for license,
2 the Comptroller shall issue a license to the applicant unless
3 the Comptroller determines that:
4 (a) The applicant has made any misrepresentations or
5 false statements or has concealed any essential or material
6 fact, or
7 (b) The applicant is insolvent; or
8 (c) The applicant is or has been using practices in the
9 conducting of the cemetery business that work or tend to work
10 a fraud; or
11 (d) The applicant has refused to furnish or give
12 pertinent data to the Comptroller; or
13 (e) The applicant has failed to notify the Comptroller
14 with respect to any material facts required in the
15 application for license under the provisions of this Act; or
16 (f) The applicant has failed to satisfy any enforceable
17 judgment entered by the circuit court in any civil
18 proceedings against such applicant; or
19 (g) The applicant has conducted or is about to conduct
20 its business in a fraudulent manner; or
21 (h) The applicant or any As to the name of any
22 individual listed in the license application, such individual
23 has conducted or is about to conduct any business on behalf
24 of the applicant in a fraudulent manner; or has been
25 convicted of a felony or any misdemeanor of which an
26 essential element is fraud; or has been involved in any civil
27 litigation in which a judgment has been entered against him
28 or her based on fraud; or has failed to satisfy any
29 enforceable judgment entered by the circuit court in any
30 civil proceedings against such individual; or has been
31 convicted of any felony; or has been convicted of any
32 theft-related offense; or has failed to comply with the
33 requirements of this Act; or has demonstrated a pattern of
34 failing to open or close any graves, crypts, or niches for
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1 human remains in the cemetery within a reasonable time frame;
2 or has demonstrated a pattern of placing human remains in a
3 final resting place other than that required under an
4 agreement with a consumer; or has demonstrated a pattern of
5 improperly failing to honor a contract with a consumer; or
6 (i) The applicant has ever had a license involving
7 cemeteries or funeral homes revoked, suspended, or refused to
8 be issued in Illinois or elsewhere.
9 If the Comptroller so determines, then he or she shall
10 conduct a hearing to determine whether to deny the
11 application. However, no application shall be denied unless
12 the applicant has had at least 10 days' notice of a hearing
13 on the application and an opportunity to be heard thereon. If
14 the application is denied, the Comptroller shall within 20
15 days thereafter prepare and keep on file in his or her office
16 the transcript of the evidence taken and a written order of
17 denial thereof, which shall contain his or her findings with
18 respect thereto and the reasons supporting the denial, and
19 shall send by United States mail a copy of the written order
20 of denial to the applicant at the address set forth in the
21 application, within 5 days after the filing of such order. A
22 review of such decision may be had as provided in Section 20
23 of this Act.
24 The license issued by the Comptroller shall remain in
25 full force and effect until it is surrendered by the licensee
26 or revoked by the Comptroller as hereinafter provided.
27 (Source: P.A. 88-477.)
28 (760 ILCS 100/11) (from Ch. 21, par. 64.11)
29 Sec. 11. Issuance and display of license. A license
30 issued under this Act authorizes the cemetery authority to
31 accept care funds for the cemetery identified in the license.
32 If a license application seeks licensure to accept care funds
33 on behalf of more than one cemetery location, the
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1 Comptroller, upon approval of the license application, shall
2 issue to the cemetery authority a separate license for each
3 cemetery location indicated on the application. Each license
4 issued by the Comptroller under this Act is independent of
5 any other license that may be issued to a cemetery authority
6 under a single license application.
7 Every license issued by the Comptroller shall state the
8 number of the license and the address at which the business
9 is to be conducted. Such license shall be kept conspicuously
10 posted in the place of business of the licensee and shall not
11 be transferable or assignable.
12 No more than one place of business shall be maintained
13 under the same license, but the Comptroller may issue more
14 than one license to the same licensee upon compliance with
15 the provisions of this Act governing an original issuance of
16 a license, for each new license.
17 Whenever a licensee shall wish to change the name as
18 originally set forth in his license, he shall give written
19 notice thereof to the Comptroller together with the reasons
20 for the change and if the change is approved by the
21 Comptroller he shall issue a new license.
22 A license issued by the Comptroller shall remain in full
23 force and effect until it is surrendered by the licensee or
24 suspended or revoked by the Comptroller as provided in this
25 Act.
26 (Source: P.A. 78-592.)
27 (760 ILCS 100/11.1)
28 Sec. 11.1. Investigation of unlawful practices. If it
29 appears to the Comptroller that a person has engaged in, is
30 engaging in, or is about to engage in any practice declared
31 to be unlawful by this Act, the Comptroller may:
32 (1) require that person to file on such terms as
33 the Comptroller prescribes a statement or report in
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1 writing, under oath or otherwise, containing all
2 information the Comptroller may consider necessary to
3 ascertain whether a privately operated cemetery authority
4 licensee is in compliance with this Act, or whether an
5 unlicensed person is engaging in activities for which a
6 license is required;
7 (2) examine under oath any person in connection
8 with the books and records pertaining to or having an
9 impact upon the trust funds required to be maintained
10 pursuant to this Act;
11 (2.1) examine under oath any person in connection
12 with the performance of duties required to be performed
13 under this Act;
14 (3) examine any books and records of the privately
15 operated cemetery authority, licensee, trustee, or
16 investment advisor that the Comptroller may consider
17 necessary to ascertain compliance with this Act; and
18 (4) require the production of a copy of any record,
19 book, document, account, or paper that is produced in
20 accordance with this Act and retain it in his or her
21 possession until the completion of all proceedings in
22 connection with which it is produced.
23 (Source: P.A. 89-615, eff. 8-9-96.)
24 (760 ILCS 100/13) (from Ch. 21, par. 64.13)
25 Sec. 13. Books, accounts, and records. Every licensee
26 and the trustee of the care funds of every licensee shall be
27 a resident of this State and shall keep in this State and use
28 in its business such books, accounts and records as will
29 enable the Comptroller to determine whether such licensee or
30 trustee is complying with the provisions of this Act and with
31 the rules, regulations and directions made by the Comptroller
32 hereunder. The licensee shall update books, accounts, and
33 records no less often than monthly. The licensee shall keep
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1 the books, accounts, and records at the location identified
2 in the license issued by the Comptroller or as otherwise
3 agreed by the Comptroller in writing. The books, accounts,
4 and records shall be accessible for review upon demand of the
5 Comptroller.
6 (Source: P.A. 78-592.)
7 (760 ILCS 100/15b)
8 Sec. 15b. Sales; liability of purchaser for shortage.
9 In the case of a sale of any privately operated cemetery
10 or any part thereof or of any related personal property by a
11 cemetery authority to a purchaser or pursuant to foreclosure
12 proceedings, except the sale of burial rights, services, or
13 merchandise to a person for his or her personal or family
14 burial or interment, the purchaser is liable for any
15 shortages existing before or after the sale in the care funds
16 required to be maintained in a trust pursuant to this Act and
17 shall honor all instruments issued under Section 4 for that
18 cemetery. Any shortages existing in the care funds constitute
19 a prior lien in favor of the trust for the total value of the
20 shortages, and notice of such lien shall be provided in all
21 sales instruments.
22 Prior to or concurrent with the sale of any portion of
23 cemetery land in which no human remains have been interred,
24 the licensee shall deposit $1 per square foot of the cemetery
25 land to be sold that is suitable for human interment into the
26 cemetery authority's care fund authorized under this Act.
27 The Comptroller may waive or lessen the amount of the
28 required deposit when the licensee has made arrangements
29 satisfactory to the Comptroller.
30 In the event of a sale or transfer of all or
31 substantially all of the assets of the cemetery authority, a
32 sale or transfer of any cemetery land, including any portion
33 of cemetery land in which no human remains have been
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1 interred, the sale or transfer of the controlling interest of
2 the corporate stock of the cemetery authority if the cemetery
3 authority is a corporation, or the sale or transfer of the
4 controlling of the partnership if the cemetery authority is a
5 partnership, the cemetery authority shall, at least 21 days
6 prior to the sale or transfer, notify the Comptroller, in
7 writing, of the pending date of sale or transfer so as to
8 permit the Comptroller to audit the books and records of the
9 cemetery authority. The audit must be commenced within 10 5
10 business days of the receipt of the notification and
11 completed within the 21 day notification period unless the
12 Comptroller notifies the cemetery authority during that
13 period that there is a basis for determining a deficiency
14 which will require additional time to finalize. The sale or
15 transfer may not be completed by the cemetery authority
16 unless and until:
17 (a) The Comptroller has completed the audit of the
18 cemetery authority's books and records;
19 (b) Any delinquency existing in the care funds has
20 been paid by the cemetery authority, or arrangements
21 satisfactory to the Comptroller have been made by the
22 cemetery authority on the sale or transfer for the
23 payment of any delinquency;
24 (c) The Comptroller issues a new cemetery care
25 license upon application of the newly controlled
26 corporation or partnership, which license must be applied
27 for within 30 days of the anticipated date of the sale or
28 transfer, subject to the payment of any delinquencies, if
29 any, as stated in item (b) above.
30 For purposes of this Section, a person, firm,
31 corporation, partnership, or institution that acquires the
32 cemetery through a real estate foreclosure shall be subject
33 to the provisions of this Section. The sale or transfer of
34 the controlling interest of a cemetery authority to an
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1 immediate family member is not subject to the license
2 application process required in item (c) of this Section.
3 (Source: P.A. 90-623, eff. 7-10-98.)
4 (760 ILCS 100/24) (from Ch. 21, par. 64.24)
5 Sec. 24. Penalties; civil action.
6 (a) Whoever intentionally violates any provision of this
7 Act except the provisions of Section 23 and subsections (b),
8 (c), (d), and (f) of Section 2a shall be guilty of a Class 4
9 felony, and each day such provisions are violated shall
10 constitute a separate offense.
11 (b) If any person intentionally violates this Act or
12 fails or refuses to comply with any order of the Comptroller
13 or any part of an order that has become final to such person
14 and is still in effect, the Comptroller may, after notice and
15 hearing at which it is determined that a violation of this
16 Act or such order has been committed, further order that such
17 person shall forfeit and pay to the State of Illinois a sum
18 not to exceed $10,000 $5,000 for each violation. Such
19 liability shall be enforced in an action brought in any court
20 of competent jurisdiction by the Comptroller in the name of
21 the People of the State of Illinois.
22 (c) In addition to the other penalties and remedies
23 provided in this Act, the Comptroller may bring a civil
24 action in the county of residence of the licensee or any
25 person accepting care funds to enjoin any violation or
26 threatened violation of this Act.
27 (d) Any person that violates any provision of this Act
28 or fails to comply with an order of the Comptroller shall be
29 liable for a civil penalty of not to exceed $10,000 for the
30 violation and an additional civil penalty not to exceed
31 $1,000 for each day during which the violation continues. The
32 civil penalties provided for in this subsection may be
33 recovered in a civil action and are in addition to any
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1 penalties that may be issued under the Consumer Fraud and
2 Deceptive Practices Act for knowing violations of this Act.
3 (e) The powers vested in the Comptroller by this Section
4 are additional to any and all other powers and remedies
5 vested in the Comptroller by law.
6 (Source: P.A. 86-1359.)
7 Section 40. The Cemetery Protection Act is amended by
8 changing Section 1 as follows:
9 (765 ILCS 835/1) (from Ch. 21, par. 15)
10 Sec. 1. (a) Any person who acts without proper legal
11 authority and who willfully and knowingly destroys or damages
12 the remains of a deceased human being or who desecrates human
13 remains is guilty of a Class 3 felony.
14 (a-5) Any person who acts without proper legal authority
15 and who willfully and knowingly removes any portion of the
16 remains of a deceased human being from a burial ground where
17 skeletal remains are buried or from a grave, crypt, vault,
18 mausoleum, or other repository of human remains is guilty of
19 a Class 4 felony.
20 (b) Any person who acts without proper legal authority
21 and who willfully and knowingly:
22 (1) obliterates, vandalizes, or desecrates a burial
23 ground where skeletal remains are buried or a grave,
24 crypt, vault, mausoleum, or other repository of human
25 remains;
26 (2) obliterates, vandalizes, or desecrates a park
27 or other area clearly designated to preserve and
28 perpetuate the memory of a deceased person or group of
29 persons;
30 (3) obliterates, vandalizes, or desecrates plants,
31 trees, shrubs, or flowers located upon or around a
32 repository for human remains or within a human graveyard
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1 or cemetery; or
2 (4) obliterates, vandalizes, or desecrates a fence,
3 rail, curb, or other structure of a similar nature
4 intended for the protection or for the ornamentation of
5 any tomb, monument, gravestone, or other structure of
6 like character;
7 is guilty of a Class A misdemeanor if the amount of the
8 damage is less than $500, a Class 4 felony if the amount of
9 the damage is at least $500 and less than $10,000, a Class 3
10 felony if the amount of the damage is at least $10,000 and
11 less than $100,000, or a Class 2 felony if the damage is
12 $100,000 or more and shall provide restitution to the
13 cemetery authority or property owner for the amount of any
14 damage caused.
15 (b-5) Any person who acts without proper legal authority
16 and who willfully and knowingly defaces, vandalizes, injures,
17 or removes a gravestone or other memorial, monument, or
18 marker commemorating a deceased person or group of persons,
19 whether located within or outside of a recognized cemetery,
20 memorial park, or battlefield is guilty of a Class 4 felony
21 for damaging at least one but no more than 4 gravestones, a
22 Class 3 felony for damaging at least 5 but no more than 10
23 gravestones, or a Class 2 felony for damaging more than 10
24 gravestones and shall provide restitution to the cemetery
25 authority or property owner for the amount of any damage
26 caused.
27 (b-7) Any person who acts without proper legal authority
28 and who willfully and knowingly removes with the intent to
29 resell a gravestone or other memorial, monument, or marker
30 commemorating a deceased person or group of persons, whether
31 located within or outside a recognized cemetery, memorial
32 park, or battlefield, is guilty of a Class 2 felony.
33 (c) The provisions of this Section shall not apply to
34 the removal or unavoidable breakage or injury by a cemetery
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1 authority of anything placed in or upon any portion of its
2 cemetery in violation of any of the rules and regulations of
3 the cemetery authority, nor to the removal of anything placed
4 in the cemetery by or with the consent of the cemetery
5 authority that in the judgment of the cemetery authority has
6 become wrecked, unsightly, or dilapidated.
7 (d) If an unemancipated minor is found guilty of
8 violating any of the provisions of subsection (b) of this
9 Section and is unable to provide restitution to the cemetery
10 authority or property owner, the parents or legal guardians
11 of that minor shall provide restitution to the cemetery
12 authority or property owner for the amount of any damage
13 caused, up to the total amount allowed under the Parental
14 Responsibility Law.
15 (e) Any person who shall hunt, shoot or discharge any
16 gun, pistol or other missile, within the limits of any
17 cemetery, or shall cause any shot or missile to be discharged
18 into or over any portion thereof, or shall violate any of the
19 rules made and established by the board of directors of such
20 cemetery, for the protection or government thereof, is guilty
21 of a Class C misdemeanor.
22 (f) Any person who knowingly enters or knowingly remains
23 upon the premises of a public or private cemetery without
24 authorization during hours that the cemetery is posted as
25 closed to the public is guilty of a Class A misdemeanor.
26 (g) All fines when recovered, shall be paid over by the
27 court or officer receiving the same to the cemetery
28 association and be applied, as far as possible in repairing
29 the injury, if any, caused by such offense. Provided,
30 nothing contained in this Act shall deprive such cemetery
31 association, or the owner of any lot or monument from
32 maintaining an action for the recovery of damages caused by
33 any injury caused by a violation of the provisions of this
34 Act, or of the rules established by the board of directors of
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1 such cemetery association. Nothing in this Section shall be
2 construed to prohibit the discharge of firearms loaded with
3 blank ammunition as part of any funeral, any memorial
4 observance or any other patriotic or military ceremony.
5 (Source: P.A. 89-36, eff. 1-1-96.)
6 Section 45. The Illinois Pre-Need Cemetery Sales Act is
7 amended by changing Sections 1, 4, 5, 6, 7, 8, 8a, 9, 12, 14,
8 15, 16, 18, 19, 20, 22, and 23, and by adding Section 27.1,
9 as follows:
10 (815 ILCS 390/1) (from Ch. 21, par. 201)
11 Sec. 1. Purpose. It is the purpose of this Act to
12 assure adequate protection for those who contract through
13 pre-need contracts for the purchase of certain cemetery
14 merchandise and cemetery services and undeveloped interment,
15 entombment or inurnment space, when the seller may delay
16 delivery or performance more than 120 days following initial
17 payment on the account.
18 (Source: P.A. 85-805.)
19 (815 ILCS 390/4) (from Ch. 21, par. 204)
20 Sec. 4. Definitions. As used in this Act, the following
21 terms shall have the meaning specified:
22 (a) A. "Pre-need sales contract" or "Pre-need sales"
23 means any agreement or contract or series or combination of
24 agreements or contracts which have for a purpose the sale of
25 cemetery merchandise, cemetery services or undeveloped
26 interment, entombment or inurnment spaces where the terms of
27 such sale require payment or payments to be made at a
28 currently determinable time and where the merchandise,
29 services or completed spaces are to be provided more than 120
30 days following the initial payment on the account.
31 (b) B. "Delivery" occurs when:
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1 (1) Physical possession of the merchandise is
2 transferred or the easement for burial rights in a
3 completed space is executed, delivered and transferred to
4 the buyer; or
5 (2) Following authorization by a purchaser under a
6 pre-need sales contract, title to the merchandise has
7 been transferred to the buyer and the merchandise has
8 been paid for and is in the possession of the seller who
9 has placed it, until needed, at the site of its ultimate
10 use; except that burial of any item at the site of its
11 ultimate use shall not constitute delivery for purposes
12 of this Act; or
13 (3) (A) Following authorization by a purchaser
14 under a pre-need sales contract, the merchandise has been
15 permanently identified with the name of the buyer or the
16 beneficiary and delivered to a licensed and bonded
17 warehouse and both title to the merchandise and a
18 warehouse receipt have been delivered to the purchaser or
19 beneficiary and a copy of the warehouse receipt has been
20 delivered to the licensee for retention in its files;
21 except that in the case of outer burial containers, the
22 use of a licensed and bonded warehouse as set forth in
23 this paragraph shall not constitute delivery for purposes
24 of this Act. Nothing herein shall prevent a seller from
25 perfecting a security interest in accordance with the
26 Uniform Commercial Code on any merchandise covered under
27 this Act.
28 (B) All warehouse facilities to which sellers
29 deliver merchandise pursuant to this Act shall:
30 (i) be either located in the State of Illinois
31 or qualify as a foreign warehouse facility as
32 defined herein;
33 (ii) submit to the Comptroller not less than
34 annually, by March 1 of each year, a report of all
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1 cemetery merchandise stored by each licensee under
2 this Act which is in storage on the date of the
3 report;
4 (iii) permit the Comptroller or his designee
5 at any time to examine stored merchandise and to
6 examine any documents pertaining thereto;
7 (iv) submit evidence satisfactory to the
8 Comptroller that all merchandise stored by said
9 warehouse for licensees under this Act is insured
10 for casualty or other loss normally assumed by a
11 bailee for hire;
12 (v) demonstrate to the Comptroller that the
13 warehouse has procured and is maintaining a
14 performance bond in the form, content and amount
15 sufficient to unconditionally guarantee to the
16 purchaser or beneficiary the prompt shipment of the
17 cemetery merchandise.
18 (C) "Cemetery merchandise" means items of personal
19 property normally sold by a cemetery authority not covered
20 under the Illinois Funeral or Burial Funds Act, including but
21 not limited to:
22 (1) memorials,
23 (2) markers,
24 (3) monuments,
25 (4) foundations, and
26 (5) outer burial containers.
27 (D) "Undeveloped interment, entombment or inurnment
28 spaces" or "undeveloped spaces" means any space to be used
29 for the reception of human remains that is not completely and
30 totally constructed at the time of initial payment therefor
31 in a:
32 (1) lawn crypt,
33 (2) mausoleum,
34 (3) garden crypt,
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1 (4) columbarium, or
2 (5) cemetery section.
3 (E) "Cemetery services" means those services customarily
4 performed by cemetery or crematory personnel in connection
5 with the interment, entombment, inurnment or cremation of a
6 dead human body.
7 (F) "Cemetery section" means a grouping of spaces
8 intended to be developed simultaneously for the purpose of
9 interring human remains.
10 (G) "Columbarium" means an arrangement of niches that
11 may be an entire building, a complete room, a series of
12 special indoor alcoves, a bank along a corridor or part of an
13 outdoor garden setting that is constructed of permanent
14 material such as bronze, marble, brick, stone or concrete for
15 the inurnment of human remains.
16 (H) "Lawn crypt" means a permanent underground crypt
17 usually constructed of reinforced concrete or similar
18 material installed in multiple units for the interment of
19 human remains.
20 (I) "Mausoleum" or "garden crypt" means a grouping of
21 spaces constructed of reinforced concrete or similar material
22 constructed or assembled above the ground for entombing human
23 remains.
24 (J) "Memorials, markers and monuments" means the object
25 usually comprised of a permanent material such as granite or
26 bronze used to identify and memorialize the deceased.
27 (K) "Foundations" means those items used to affix or
28 support a memorial or monument to the ground in connection
29 with the installation of a memorial, marker or monument.
30 (L) "Person" means an individual, corporation,
31 partnership, joint venture, business trust, voluntary
32 organization or any other form of entity.
33 (M) "Seller" means any person selling or offering for
34 sale cemetery merchandise, cemetery services or undeveloped
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1 interment, entombment, or inurnment spaces in accordance with
2 a pre-need sales contract on a pre-need basis.
3 (N) "Religious cemetery" means a cemetery owned,
4 operated, controlled or managed by any recognized church,
5 religious society, association or denomination or by any
6 cemetery authority or any corporation administering, or
7 through which is administered, the temporalities of any
8 recognized church, religious society, association or
9 denomination.
10 (O) "Municipal cemetery" means a cemetery owned,
11 operated, controlled or managed by any city, village,
12 incorporated town, township, county or other municipal
13 corporation, political subdivision, or instrumentality
14 thereof authorized by law to own, operate or manage a
15 cemetery.
16 (O-1) "Outer burial container" means a container made of
17 concrete, steel, wood, fiberglass, or similar material, used
18 solely at the interment site, and designed and used
19 exclusively to surround or enclose a separate casket and to
20 support the earth above such casket, commonly known as a
21 burial vault, grave box, or grave liner, but not including a
22 lawn crypt.
23 (P) "Sales price" or "sales proceeds" means the gross
24 amount paid by a purchaser on a pre-need sales contract for
25 cemetery merchandise, cemetery services or undeveloped
26 interment, entombment or inurnment spaces including care
27 funds contributions required for entrustment under the,
28 excluding sales taxes, credit life insurance premiums,
29 finance charges and Cemetery Care Act contributions.
30 (Q) (Blank).
31 (R) "Provider" means a person who is responsible for
32 performing cemetery services or furnishing cemetery
33 merchandise, interment spaces, entombment spaces, or
34 inurnment spaces under a pre-need sales contract.
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1 (S) "Purchase price" means sales proceeds.
2 (T) "Purchaser" or "buyer" means the person who
3 originally paid the money under or in connection with a
4 pre-need sales contract.
5 (U) "Parent company" means a corporation that has a
6 controlling interest in another corporation.
7 (W) "Foreign warehouse facility" means a warehouse
8 facility now or hereafter located in any state or territory
9 of the United States, including the District of Columbia,
10 other than the State of Illinois.
11 A foreign warehouse facility shall be deemed to have
12 appointed the Comptroller to be its true and lawful attorney
13 upon whom may be served all legal process in any action or
14 proceeding against it relating to or growing out of this Act,
15 and the acceptance of the delivery of stored merchandise
16 under this Act shall be signification of its agreement that
17 any such process against it which is so served, shall be of
18 the same legal force and validity as though served upon it
19 personally.
20 Service of such process shall be made by delivering to
21 and leaving with the Comptroller, or any agent having charge
22 of the Comptroller's Department of Cemetery and Burial
23 Trusts, a copy of such process and such service shall be
24 sufficient service upon such foreign warehouse facility if
25 notice of such service and a copy of the process are, within
26 10 days thereafter, sent by registered mail by the plaintiff
27 to the foreign warehouse facility at its principal office and
28 the plaintiff's affidavit of compliance herewith is appended
29 to the summons. The Comptroller shall keep a record of all
30 process served upon him under this Section and shall record
31 therein the time of such service.
32 (Source: P.A. 91-7, eff. 1-1-2000; 91-357, eff. 7-29-99;
33 revised 8-30-99.)
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1 (815 ILCS 390/5) (from Ch. 21, par. 205)
2 Sec. 5. It is unlawful for any seller person directly or
3 indirectly doing business within this State through an agent
4 or otherwise to engage in pre-need sales without a license
5 issued by the Comptroller.
6 (Source: P.A. 84-239.)
7 (815 ILCS 390/6) (from Ch. 21, par. 206)
8 Sec. 6. License application.
9 (a) An application for a license shall be made in
10 writing to the Comptroller on forms prescribed by him or her,
11 signed by the applicant under oath verified by a notary
12 public appointed and commissioned under the Illinois Notary
13 Public Act, and shall be accompanied by a non-returnable $25
14 application fee. The Comptroller may prescribe abbreviated
15 application forms for persons holding a license under the
16 Cemetery Care Act. Applications (except abbreviated
17 applications) must include at least the following
18 information:
19 (1) The full name and address, both residence and
20 business, of the applicant if the applicant is an
21 individual; of every member if applicant is a
22 partnership; of every member of the Board of Directors if
23 applicant is an association; and of every officer,
24 manager, director and shareholder holding more than 10%
25 5% of the corporate stock if applicant is a corporation;
26 (2) A detailed statement of applicant's assets and
27 liabilities;
28 (2.1) The name and address of the applicant's
29 principal place of business at which the books, accounts,
30 and records are available for examination by the
31 Comptroller as required by this Act;
32 (2.2) The name and address of the applicant's
33 branch locations at which pre-need sales will be
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1 conducted and which will operate under the same license
2 number as the applicant's principal place of business;
3 (3) For each individual listed under (1) above, a
4 detailed statement of the individual's business
5 experience for the 10 years immediately preceding the
6 application; any present or prior connection between the
7 individual and any other person engaged in pre-need
8 sales; any felony or misdemeanor convictions for which
9 fraud was an essential element; any charges or complaints
10 lodged against the individual for which fraud was an
11 essential element and which resulted in civil or criminal
12 litigation; any failure of the individual to satisfy an
13 enforceable judgment entered against him or her based
14 upon fraud; and any other information requested by the
15 Comptroller relating to the past business practices of
16 the individual. Since the information required by this
17 paragraph may be confidential or contain proprietary
18 information, this information shall not be available to
19 other licensees or the general public and shall be used
20 only for the lawful purposes of the Comptroller in
21 enforcing this Act;
22 (4) The name of the trustee and, if applicable, the
23 names of the advisors to the trustee, including a copy of
24 the proposed trust agreement under which the trust funds
25 are to be held as required by this Act;
26 (5) Where applicable, the name of the corporate
27 surety company providing the performance bond for the
28 construction of undeveloped spaces and a copy of the
29 bond; and
30 (6) Such other information as the Comptroller may
31 reasonably require in order to determine the
32 qualification of the applicant to be licensed under this
33 Act.
34 (b) Applications for license shall be accompanied by a
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1 fidelity bond executed by the applicant and a security
2 company authorized to do business in this State in such
3 amount, not exceeding $10,000, as the Comptroller may
4 require. The Comptroller may require additional bond from
5 time to time in amounts equal to one-tenth of such trust
6 funds but not to exceed $100,000, which bond shall run to the
7 Comptroller for the use and benefit of the beneficiaries of
8 such trust funds. Such licensee may by written permit of the
9 Comptroller be authorized to operate without additional bond,
10 except such fidelity bond as may be required by the
11 Comptroller for the protection of the licensee against loss
12 by default by any of its employees engaged in the handling of
13 trust funds.
14 (c) Any application not acted upon within 90 days may be
15 deemed denied.
16 (Source: P.A. 88-477.)
17 (815 ILCS 390/7) (from Ch. 21, par. 207)
18 Sec. 7. The Comptroller may refuse to issue or may
19 suspend or revoke a license on any of the following grounds:
20 (a) The applicant or licensee has made any
21 misrepresentations or false statements or concealed any
22 material fact;
23 (b) The applicant or licensee is insolvent;
24 (c) The applicant or licensee has been engaged in
25 business practices that work a fraud;
26 (d) The applicant or licensee has refused to give
27 pertinent data to the Comptroller;
28 (e) The applicant or licensee has failed to satisfy any
29 enforceable judgment or decree rendered by any court of
30 competent jurisdiction against the applicant;
31 (f) The applicant or licensee has conducted or is about
32 to conduct business in a fraudulent manner;
33 (g) The trustee advisors or the trust agreement is not
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1 satisfactory to the Comptroller;
2 (h) The pre-construction performance bond, if
3 applicable, is not satisfactory to the Comptroller;
4 (i) The fidelity bond is not satisfactory to the
5 Comptroller;
6 (j) As to any individual listed, that such individual
7 has conducted or is about to conduct any business on behalf
8 of the applicant in a fraudulent manner,; has been convicted
9 of any felony or misdemeanor an essential element of which is
10 fraud, has had a judgment rendered against him or her based
11 on fraud in any civil litigation, or has failed to satisfy
12 any enforceable judgment or decree rendered against him by
13 any court of competent jurisdiction, or has been convicted of
14 any felony or any theft-related offense;
15 (k) The applicant or licensee has failed to make the
16 annual report required by this Act or to comply with a final
17 order, decision, or finding of the Comptroller made pursuant
18 to this Act;
19 (l) The applicant or licensee, including any member,
20 officer, or director thereof if the applicant or licensee is
21 a firm, partnership, association, or corporation and any
22 shareholder holding more than 10% of the corporate stock, has
23 violated any provision of this Act or any regulation or order
24 made by the Comptroller under this Act; or
25 (m) The Comptroller finds any fact or condition existing
26 which, if it had existed at the time of the original
27 application for such license would have warranted the
28 Comptroller in refusing the issuance of the license.
29 (Source: P.A. 85-842.)
30 (815 ILCS 390/8) (from Ch. 21, par. 208)
31 Sec. 8. (a) Every license issued by the Comptroller
32 shall state the number of the license, the business name and
33 address of the licensee's principal place of business, each
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1 branch location also operating under the license, and the
2 licensee's parent company, if any. licensee at which the
3 business is to be conducted, and The license shall be
4 conspicuously posted in each the place of business operating
5 under the license. No more than one place of business shall
6 be maintained under the same license, but The Comptroller
7 may issue additional licenses as may be necessary for license
8 branch locations more than one license to a licensee upon
9 compliance with the provisions of this Act governing an
10 original issuance of a license for each new license.
11 (b) Individual salespersons representing employed by a
12 licensee shall not be required to obtain licenses in their
13 individual capacities but must acknowledge, by affidavit,
14 that they have been educated in the provisions of this Act
15 and must understand the penalties for failure to comply. The
16 licensee must retain copies of the affidavits of its
17 salespersons for its records and must make the affidavits
18 available to the Comptroller for examination upon request.
19 (c) The licensee shall be responsible for the activities
20 of any person representing the licensee in selling or
21 offering a pre-need contract for sale all individuals or
22 sales organizations selling under contract with, as agents or
23 on behalf of the licensee.
24 (d) Any sales company or other person not selling on
25 behalf of a licensee shall be required to obtain his or her
26 its own license.
27 (e) Any person engaged in pre-need sales, as defined
28 herein, prior to the effective date of this Act may continue
29 operations until the application for license under this Act
30 is denied; provided that such person shall make application
31 for a license within 60 days of the date that application
32 forms are made available by the Comptroller.
33 (f) No license shall be transferable or assignable
34 without the express written consent of the Comptroller. A
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1 transfer of more than 50% of the ownership of any business
2 licensed hereunder shall be deemed to be an attempted
3 assignment of the license originally issued to the licensee
4 for which consent of the Comptroller shall be required.
5 (g) Every license issued hereunder shall remain in force
6 until the same has been suspended, surrendered or revoked in
7 accordance with this Act, but the Comptroller, upon the
8 request of an interested person or on his own motion, may
9 issue new licenses to a licensee whose license or licenses
10 have been revoked, if no factor or condition then exists
11 which would have warranted the Comptroller in refusing
12 originally the issuance of such license.
13 (Source: P.A. 84-239.)
14 (815 ILCS 390/8a)
15 Sec. 8a. Investigation of unlawful practices. If it
16 appears to the Comptroller that a person has engaged in, is
17 engaging in, or is about to engage in any practice in
18 violation of declared to be unlawful by this Act, the
19 Comptroller may:
20 (1) require that person to file on such terms as
21 the Comptroller prescribes a statement or report in
22 writing, under oath or otherwise, containing all
23 information the Comptroller may consider necessary to
24 ascertain whether a licensee is in compliance with this
25 Act, or whether an unlicensed person is engaging in
26 activities for which a license is required;
27 (2) examine under oath any person in connection
28 with the books and records pertaining to or having an
29 impact upon the trust funds required to be maintained
30 pursuant to this Act;
31 (3) examine any books and records of the licensee,
32 trustee, or investment advisor that the Comptroller may
33 consider necessary to ascertain compliance with this Act;
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1 and
2 (4) require the production of a copy of any record,
3 book, document, account, or paper that is produced in
4 accordance with this Act and retain it in his or her
5 possession until the completion of all proceedings in
6 connection with which it is produced.
7 (Source: P.A. 89-615, eff. 8-9-96.)
8 (815 ILCS 390/9) (from Ch. 21, par. 209)
9 Sec. 9. The Comptroller may, upon his own motion
10 investigate the actions of any person providing, selling, or
11 offering pre-need sales contracts or of any applicant or any
12 person or persons holding or claiming to hold a license under
13 this Act. The Comptroller shall make such an investigation
14 on receipt of the verified written complaint of any person
15 setting forth facts which, if proved, would constitute
16 grounds for refusal, suspension, or revocation of a license
17 with respect to which grounds for revocation may occur or
18 exist, or if he shall find that such grounds for revocation
19 are of general application to all offices or to more than one
20 office operated by such licensee, he may revoke all of the
21 licenses issued to such licensee or such number of licensees
22 to which grounds apply, as the case may be. Before refusing
23 to issue, and before suspension or revocation of a license,
24 the Comptroller shall hold a hearing to determine whether the
25 applicant or licensee, hereafter called the respondent, is
26 entitled to hold such a license. At least 10 days prior to
27 the date set for such hearing, the Comptroller shall notify
28 the respondent in writing that on the date designated a
29 hearing will be held to determine his eligibility for a
30 license and that he may appear in person or by counsel.
31 Such written notice may be served on the respondent
32 personally, or by registered or certified mail sent to the
33 respondent's business address as shown in his latest
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1 notification to the Comptroller and shall include sufficient
2 information to inform the respondent of the general nature of
3 the charge. At the hearing, both the respondent and the
4 complainant shall be accorded ample opportunity to present in
5 person or by counsel such statements, testimony, evidence and
6 argument as may be pertinent to the charges or to any defense
7 thereto. The Comptroller may reasonably continue such
8 hearing from time to time.
9 The Comptroller may subpoena any person or persons in
10 this State and take testimony orally, by deposition or by
11 exhibit, in the same manner and with the same fees and
12 mileage as prescribed in judicial proceedings in civil cases.
13 Any authorized agent of the Comptroller may administer
14 oaths to witnesses at any hearing which the Comptroller is
15 authorized to conduct.
16 The Comptroller, at his expense, shall provide a
17 certified shorthand reporter to take down the testimony and
18 preserve a record of all proceedings at the hearing of any
19 case involving the refusal to issue a license, the suspension
20 or revocation of a license, the imposition of a monetary
21 penalty, or the referral of a case for criminal prosecution.
22 The record of any such proceeding shall consist of the notice
23 of hearing, complaint, all other documents in the nature of
24 pleadings and written motions filed in the proceedings, the
25 transcript of testimony and the report and orders of the
26 Comptroller. Copies of the transcript of such record may be
27 purchased from the certified shorthand reporter who prepared
28 the record or from the Comptroller.
29 (Source: P.A. 84-239.)
30 (815 ILCS 390/12) (from Ch. 21, par. 212)
31 Sec. 12. License revocation or suspension.
32 (a) The Comptroller may, upon determination that grounds
33 exist for the revocation or suspension of a license issued
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1 under this Act, revoke or suspend the license issued to a
2 particular branch office location with respect to which the
3 grounds for revocation or suspension may occur or exist, or
4 as many of the licenses issued to the licensee as may be
5 determined appropriate by the Comptroller.
6 (b) Upon the revocation or suspension of any license,
7 the licensee shall immediately surrender the license or
8 licenses and any branch office licenses to the Comptroller.
9 If the licensee fails to do so, the Comptroller has the right
10 to seize the license or licenses same.
11 (Source: P.A. 84-239.)
12 (815 ILCS 390/14) (from Ch. 21, par. 214)
13 Sec. 14. Contract required.
14 (a) It is unlawful for any person seller doing business
15 within this State to accept sales proceeds, either directly
16 or indirectly, by any means, unless the seller enters into a
17 pre-need sales contract with the purchaser which meets the
18 following requirements:
19 (1) A written sales contract shall be executed in
20 at least 12 point type in duplicate for each pre-need
21 sale made by a licensee, and a signed copy given to the
22 purchaser. Each completed contract shall be numbered and
23 shall contain the name and address of the purchaser, the
24 principal office and all branch locations of the
25 licensee, the parent company, and the provider seller,
26 the name of the person, if known, who is to receive the
27 cemetery merchandise, cemetery services or the completed
28 interment, entombment or inurnment spaces under the
29 contract and specifically identify such merchandise,
30 services or spaces to be provided and the price of the
31 merchandise, services, or space or spaces.
32 (2) In addition, such contracts must contain a
33 provision in distinguishing typeface as follows:
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1 "Notwithstanding anything in this contract to the
2 contrary, you are afforded certain specific rights of
3 cancellation and refund under Sections 18 and 19 of the
4 Illinois Pre-Need Cemetery Sales Act, enacted by the 84th
5 General Assembly of the State of Illinois".
6 (3) All pre-need sales contracts shall be sold on a
7 guaranteed price basis. At the time of performance of the
8 service or delivery of the merchandise, the seller shall
9 be prohibited from assessing the purchaser or his heirs
10 or assigns or duly authorized representative any
11 additional charges for the specific merchandise and
12 services listed on the pre-need sales contract.
13 (4) Each contract shall clearly disclose that the
14 price of the merchandise or services is guaranteed and
15 shall contain the following statement in 12 point bold
16 type:
17 "THIS CONTRACT GUARANTEES THE BENEFICIARY THE
18 SPECIFIC GOODS, AND SERVICES, INTERMENT SPACES,
19 ENTOMBMENT SPACES, AND INURNMENT SPACES CONTRACTED FOR.
20 NO ADDITIONAL CHARGES MAY BE REQUIRED. FOR DESIGNATED
21 GOODS, AND SERVICES, AND SPACES. ADDITIONAL CHARGES MAY
22 BE INCURRED FOR UNEXPECTED EXPENSES."
23 (5) The pre-need sales contract shall provide that
24 if the particular cemetery services, cemetery
25 merchandise, or spaces specified in the pre-need contract
26 are unavailable at the time of delivery, the seller shall
27 be required to furnish services, merchandise, and spaces
28 similar in style and at least equal in quality of
29 material and workmanship.
30 (6) The pre-need contract shall also disclose any
31 specific penalties to be incurred by the purchaser as a
32 result of failure to make payments; and penalties to be
33 incurred or moneys or refunds to be received as a result
34 of cancellation of the contract.
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1 (7) The pre-need contract shall disclose the nature
2 of the relationship between the provider and the seller.
3 (8) Each pre-need contract that authorizes the
4 delivery of cemetery merchandise to a licensed and bonded
5 warehouse shall provide that prior to or upon delivery of
6 the merchandise to the warehouse (i) the merchandise
7 shall be permanently identified with the name of the
8 buyer; and (ii) the title to the merchandise and a
9 warehouse receipt shall be delivered to the purchaser or
10 beneficiary. The pre-need contract shall contain the
11 following statement in 12 point bold type:
12 "THIS CONTRACT AUTHORIZES THE DELIVERY OF MERCHANDISE TO
13 A LICENSED AND BONDED WAREHOUSE FOR STORAGE OF THE
14 MERCHANDISE UNTIL THE MERCHANDISE IS NEEDED BY THE
15 BENEFICIARY. DELIVERY OF THE MERCHANDISE IN THIS MANNER
16 MAY PRECLUDE REFUND OF SALE PROCEEDS THAT ARE
17 ATTRIBUTABLE TO THE DELIVERED MERCHANDISE."
18 The purchaser shall initial the statement at the
19 time of entry into the pre-need contract.
20 (9) Each pre-need contract that authorizes the
21 placement of cemetery merchandise at the site of its
22 ultimate use prior to the time that the merchandise is
23 needed by the beneficiary shall contain the following
24 statement in 12 point bold type:
25 "THIS CONTRACT AUTHORIZES THE PLACEMENT OF MERCHANDISE AT
26 THE SITE OF ITS ULTIMATE USE PRIOR TO THE TIME THAT THE
27 MERCHANDISE IS NEEDED BY THE BENEFICIARY. DELIVERY OF THE
28 MERCHANDISE IN THIS MANNER MAY PRECLUDE REFUND OF SALE
29 PROCEEDS THAT ARE ATTRIBUTABLE TO THE DELIVERED
30 MERCHANDISE."
31 The purchaser shall initial the statement at the
32 time of entry into the pre-need contract.
33 (b) Every pre-need sales contract must be in writing.,
34 and no pre-need sales contract form may be used unless it has
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1 previously been filed with the Comptroller. The Comptroller
2 shall review all pre-need sales contract forms and, upon
3 written notification to the seller, shall prohibit the use of
4 contract forms that do not meet the requirements of this Act.
5 Any use or attempted use of any oral pre-need sales contract
6 or any written pre-need sales contract in a form not filed
7 with the Comptroller or in a form that does not meet the
8 requirements of this Act shall be deemed a violation of this
9 Act and is voidable by the purchaser without penalty. The
10 Comptroller may by rule develop a model pre-need sales
11 contract form that meets the requirements of this Act.
12 (c) To the extent the Rule is applicable, every pre-need
13 sales contract is subject to the Federal Trade Commission
14 Rule concerning the Cooling-Off Period for Door-to-Door Sales
15 (16 CFR Part 429).
16 (d) No pre-need sales contract may be entered into in
17 this State unless there is a provider for the cemetery
18 merchandise, cemetery services, and undeveloped interment,
19 inurnment, and entombment spaces being sold. If the seller
20 is not the provider, then the seller must have a binding
21 agreement with a provider, and the identity of the provider
22 and the nature of the agreement between the seller and the
23 provider must be disclosed in the pre-need sales contract at
24 the time of sale and before the receipt of any sale proceeds.
25 The failure to disclose the identity of the provider, the
26 nature of the agreement between the seller and the provider,
27 or any changes thereto to the purchaser and beneficiary, or
28 the failure to make the disclosures required by this Section
29 constitutes an intentional violation of this Act.
30 (e) No pre-need contract may be entered into in this
31 State unless it is accompanied by a funding mechanism
32 permitted under this Act and unless the seller is licensed by
33 the Comptroller as provided in this Act. Nothing in this Act
34 is intended to relieve providers or sellers of pre-need
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1 contracts from being licensed under any other Act required
2 for their profession or business or from being subject to the
3 rules promulgated to regulate their profession or business,
4 including rules on solicitation and advertisement.
5 (f) No pre-need contract may be entered into in this
6 State unless the seller explains to the purchaser the terms
7 of the pre-need contract prior to the purchaser's signing.
8 (g) The State Comptroller shall develop a booklet for
9 consumers in plain English describing the scope, application,
10 and consumer protections of this Act. After the booklet is
11 developed, no pre-need contract may be sold in this State
12 unless the seller distributes to the purchaser prior to the
13 sale a booklet developed or approved for use by the State
14 Comptroller.
15 (Source: P.A. 91-7, eff. 1-1-2000.)
16 (815 ILCS 390/15) (from Ch. 21, par. 215)
17 Sec. 15. (a) Whenever a seller receives sales proceeds
18 anything of value under a pre-need sales contract, the person
19 receiving such value shall deposit 50% of the sales all
20 proceeds received into one or more trust funds maintained in
21 accordance with pursuant to this Section, except that, in the
22 case of proceeds received for the purchase of outer burial
23 containers, 85% of the sales proceeds shall be deposited into
24 one or more trust funds. Such deposits shall be made until
25 the amount deposited in trust equals 50% of the sales price
26 of the cemetery merchandise, cemetery services and
27 undeveloped spaces included in such contract, except that, in
28 the case of deposits for outer burial containers, deposits
29 shall be made until the amount deposited in trust equals 85%
30 of the sales price. In the event an installment contract is
31 factored, discounted or sold to a third party, the seller
32 shall deposit an amount equal to 50% of the sales price of
33 the installment contract, except that, for the portion of the
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1 contract attributable to the sale of outer burial containers,
2 the seller shall deposit an amount equal to 85% of the sales
3 price. Proceeds required to be deposited in trust which are
4 attributable to cemetery merchandise and cemetery services
5 shall be held in a "Cemetery Merchandise Trust Fund".
6 Proceeds required to be deposited in trust which are
7 attributable to the sale of undeveloped interment, entombment
8 or inurnment spaces shall be held in a "Pre-construction
9 Trust Fund". If merchandise is delivered for storage in a
10 bonded warehouse, as authorized herein, and payment of
11 transportation or other charges totaling more than $20 will
12 be required in order to secure delivery to the site of
13 ultimate use, upon such delivery to the warehouse the seller
14 shall deposit to the trust fund the full amount of the actual
15 or estimated transportation charge. Transportation charges
16 which have been prepaid by the seller shall not be deposited
17 to trust funds maintained pursuant to this Section. As used
18 in this Section, "all proceeds" means the entire amount paid
19 by a purchaser in connection with a pre-need sales contract,
20 including finance charges and Cemetery Care Act
21 contributions, but excluding sales taxes and credit life
22 insurance premiums.
23 (b) All trust deposits required by this Act shall be
24 made within 30 days following the end of the month of
25 receipt.
26 (c) A trust established under this Act must be
27 maintained:
28 (1) in a trust account established in a bank,
29 savings and loan association or credit union authorized
30 to do business in Illinois where such accounts are
31 insured by an agency of the federal government;
32 (2) in a trust company authorized to do business in
33 Illinois; or
34 (3) in an investment company authorized to do
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1 business in Illinois insured by the Securities Brokers
2 Insurance Corporation.
3 (d) Funds deposited in the trust account shall be
4 identified in the records of the seller by the name of the
5 purchaser. Nothing shall prevent the trustee from commingling
6 the deposits in any such trust fund for purposes of the
7 management thereof and the investment of funds therein as
8 provided in the "Common Trust Fund Act", approved June 24,
9 1949, as amended. In addition, multiple trust funds
10 maintained pursuant to this Act may be commingled or
11 commingled with other funeral or burial related trust funds,
12 provided that all record keeping requirements imposed by or
13 pursuant to law are met.
14 (e) In lieu of a pre-construction trust fund, a seller
15 of undeveloped interment, entombment or inurnment spaces may
16 obtain and file with the Comptroller a performance bond in an
17 amount at least equal to 50% of the sales price of the
18 undeveloped spaces or the estimated cost of completing
19 construction, whichever is greater. The bond shall be
20 conditioned on the satisfactory construction and completion
21 of the undeveloped spaces as required in Section 19 of this
22 Act.
23 Each bond obtained under this Section shall have as
24 surety thereon a corporate surety company incorporated under
25 the laws of the United States, or a State, the District of
26 Columbia or a territory or possession of the United States.
27 Each such corporate surety company must be authorized to
28 provide performance bonds as required by this Section, have
29 paid-up capital of at least $250,000 in cash or its
30 equivalent and be able to carry out its contracts. Each
31 pre-need seller must provide to the Comptroller, for each
32 corporate surety company such seller utilizes, a statement of
33 assets and liabilities of the corporate surety company sworn
34 to by the president and secretary of the corporation by
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1 January 1 of each year.
2 The Comptroller shall prohibit pre-need sellers from
3 doing new business with a corporate surety company if the
4 company is insolvent or is in violation of this Section. In
5 addition the Comptroller may direct a pre-need seller to
6 reinstate a pre-construction trust fund upon the
7 Comptroller's determination that the corporate surety company
8 no longer is sufficient security.
9 All performance bonds issued pursuant to this Section
10 must be irrevocable during the statutory term for completing
11 construction specified in Section 19 of this Act, unless
12 terminated sooner by the completion of construction.
13 (f) Whenever any pre-need contract shall be entered into
14 and include 1) items of cemetery merchandise and cemetery
15 services, and 2) rights to interment, inurnment or entombment
16 in completed spaces without allocation of the gross sale
17 price among the items sold, the application of payments
18 received under the contract shall be allocated, first to the
19 right to interment, inurnment or entombment, second to items
20 of cemetery merchandise and cemetery services, unless some
21 other allocation is clearly provided in the contract.
22 (g) Any person engaging in pre-need sales who enters
23 into a combination sale which involves the sale of items
24 covered by a trust or performance bond requirement and any
25 item not covered by any entrustment or bond requirement,
26 shall be prohibited from increasing the gross sales price of
27 those items not requiring entrustment with the purpose of
28 allocating a lesser gross sales price to items which require
29 a trust deposit or a performance bond.
30 (Source: P.A. 91-7; eff. 1-1-2000.)
31 (815 ILCS 390/16) (from Ch. 21, par. 216)
32 Sec. 16. Trust funds; disbursements.
33 (a) A trustee shall make no disbursements from the trust
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1 fund except as provided in this Act.
2 (b) A trustee shall, with respect to the investment of
3 such trust funds, exercise the judgment and care under the
4 circumstances then prevailing which persons of prudence,
5 discretion and intelligence exercise in the management of
6 their own affairs, not in regard to speculation, but in
7 regard to the permanent disposition of their funds,
8 considering the probable income as well as the probable
9 safety of their capital.
10 The seller shall act as trustee of all amounts received
11 for cemetery merchandise, services, or undeveloped spaces
12 until those amounts have been deposited into the trust fund.
13 The seller may continue to be the trustee of up to $500,000
14 that has been deposited into the trust fund, but the seller
15 must retain an independent trustee for any amount of trust
16 funds in excess of $500,000. A seller holding trust funds in
17 excess of $500,000 on the effective date of this amendatory
18 Act of 1996 shall have 36 months to retain an independent
19 trustee for the amounts over $500,000; any other seller must
20 retain an independent trustee for its trust funds in excess
21 of $500,000 as soon as may be practical. The Comptroller
22 shall have the right to disqualify the trustee upon the same
23 grounds as for refusing to grant or revoking a license
24 hereunder. Upon notice to the Comptroller, the seller may
25 change the trustee of the trust fund.
26 (c) The trustee may rely upon certifications and
27 affidavits made to it under the provisions of this Act, and
28 shall not be liable to any person for such reliance.
29 (d) A trustee shall be allowed to withdraw from the
30 trust funds maintained pursuant to this Act, payable solely
31 from the income earned on such trust funds, a reasonable fee
32 for all usual and customary services for the operation of the
33 trust fund, including, but not limited to trustee fees,
34 investment advisor fees, allocation fees, annual audit fees
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1 and other similar fees. The maximum amount allowed to be
2 withdrawn for these fees each year shall be the lesser of 3%
3 of the balance of the trust calculated on an annual basis or
4 the amount of annual income generated therefrom.
5 (e) The trust shall be a single-purpose trust fund. In
6 the event of the seller's bankruptcy, insolvency or
7 assignment for the benefit of creditors, or an adverse
8 judgment, the trust funds shall not be available to any
9 creditor as assets of the seller or to pay any expenses of
10 any bankruptcy or similar proceeding, but shall be
11 distributed to the purchasers or managed for their benefit by
12 the trustee holding the funds. Except in an action by the
13 Comptroller to revoke a license issued pursuant to this Act
14 and for creation of a receivership as provided in this Act,
15 the trust shall not be subject to judgment, execution,
16 garnishment, attachment, or other seizure by process in
17 bankruptcy or otherwise, nor to sale, pledge, mortgage, or
18 other alienation, and shall not be assignable except as
19 approved by the Comptroller. The changes made by this
20 amendatory Act of the 91st General Assembly are intended to
21 clarify existing law regarding the inability of licensees to
22 pledge the trust.
23 (f) Because it is not known at the time of deposit or at
24 the time that income is earned on the trust account to whom
25 the principal and the accumulated earnings will be
26 distributed, for purposes of determining the Illinois Income
27 Tax due on these trust funds, the principal and any accrued
28 earnings or losses relating to each individual account shall
29 be held in suspense until the final determination is made as
30 to whom the account shall be paid.
31 (Source: P.A. 91-7, eff. 6-1-99.)
32 (815 ILCS 390/18) (from Ch. 21, par. 218)
33 Sec. 18. Remedies.
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1 (a) If for any reason a seller who has engaged in
2 pre-need sales has refused, cannot or does not comply with
3 the terms of the pre-need sales contract within a reasonable
4 time after he is required to do so, the purchaser or his
5 heirs or assigns or duly authorized representative shall have
6 the right to a refund of an amount equal to the sales price
7 paid for undelivered merchandise, services or spaces plus
8 undistributed interest amounts held in trust attributable to
9 such contract, within 30 days of the filing of a sworn
10 affidavit with the trustee setting forth the existence of the
11 contract and the fact of breach. A copy of this affidavit
12 shall be filed with the Comptroller and the seller. In the
13 event a seller is prevented from performing by strike,
14 shortage of materials, civil disorder, natural disaster or
15 any like occurrence beyond the control of the seller, the
16 seller's time for performance shall be extended by the length
17 of such delay. Nothing in this Section shall relieve any
18 person the seller from any liability for non-performance of
19 his obligations under the pre-need sales contract.
20 (b) If the purchaser defaults in making payments, the
21 seller shall have the right to cancel the contract and
22 withdraw from the trust fund the entire balance to the credit
23 of the defaulting purchaser's account as liquidating damages.
24 In such event, the trustee shall deliver said balance to the
25 seller upon its certification, and upon receiving said
26 certification the trustee may rely thereon and shall not be
27 liable to anyone for such reliance.
28 (c) At any time prior to the performance of a service or
29 delivery of merchandise under a pre-need contract, any
30 purchaser, its legal representative, or all beneficiaries
31 under the contract After final payment on a pre-need
32 contract, any beneficiary may upon written demand of a
33 seller, demand that the pre-need contract with such seller be
34 terminated. The seller shall, within 30 days, initiate a
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1 refund to such purchaser, its legal representative, or all
2 beneficiaries under the pre-need contract in an amount as
3 follows:
4 (1) 100% of the sales proceeds, including
5 undistributed interest earned thereon, if the purchaser,
6 its legal representative, or all beneficiaries demand
7 termination of the pre-need contract within 30 days after
8 the date of entry into the pre-need contract;
9 (2) beneficiary of The entire amount held in trust
10 attributable to undelivered cemetery merchandise and
11 underperformed cemetery services, including undistributed
12 interest earned thereon, if the purchaser, its legal
13 representative, or all beneficiaries demand termination
14 of the pre-need contract more than 30 days after the date
15 of entry into the pre-need contract. Where more than one
16 beneficiary is included in a pre-need contract, a seller
17 need not honor a demand for cancellation under this
18 paragraph unless all beneficiaries assent and their
19 signatures are included in written demand for refund.
20 (Source: P.A. 85-805.)
21 (815 ILCS 390/19) (from Ch. 21, par. 219)
22 Sec. 19. Construction or development of spaces.
23 (a) The construction or development of undeveloped
24 interment, entombment or inurnment spaces shall be commenced
25 on that phase, section or sections of undeveloped ground or
26 section of lawn crypts, mausoleums, garden crypts,
27 columbariums or cemetery spaces in which sales are made
28 within 3 years of the date of the first such sale. The
29 seller shall give written notice to the Comptroller no later
30 than 30 days after the first sale. Such notice shall include
31 a description of the project. Once commenced, construction
32 or development shall be pursued diligently to completion.
33 The construction must be completed within 6 years of the
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1 first sale. If construction or development is not commenced
2 or completed within the times specified herein, any purchaser
3 may surrender and cancel the contract and upon cancellation
4 shall be entitled to a refund of the actual amounts paid
5 toward the purchase price plus interest attributable to such
6 amount earned while in trust; provided however that any delay
7 caused by strike, shortage of materials, civil disorder,
8 natural disaster or any like occurrence beyond the control of
9 the seller shall extend the time of such commencement and
10 completion by the length of such delay.
11 (b) At any time within 12 months of a purchaser's
12 entering into a pre-need contract for undeveloped interment,
13 entombment or inurnment spaces, a purchaser may surrender and
14 cancel his or her contract and upon cancellation shall be
15 entitled to a refund of the sales proceeds paid towards the
16 undeveloped interment, entombment, or inurnment spaces the
17 actual amounts paid toward the purchase price plus interest
18 attributable to such amount earned while in trust.
19 Notwithstanding the foregoing, the cancellation and refund
20 rights specified in this paragraph shall terminate as of the
21 date the seller commences construction or development of the
22 phase, section or sections of undeveloped spaces in which
23 sales are made. After the rights of cancellation and refund
24 specified herein have terminated, if a purchaser defaults in
25 making payments under the pre-need contract, the seller shall
26 have the right to cancel the contract and withdraw from the
27 trust fund the entire balance to the credit of the defaulting
28 purchaser's account as liquidated damages. In such event,
29 the trustee shall deliver said balance to the seller upon its
30 certification, and upon receiving said certification the
31 trustee may rely thereon and shall not be liable to anyone
32 for such reliance.
33 (c) During the construction or development of interment,
34 entombment or inurnment spaces, upon the sworn certification
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1 by the seller and the contractor to the trustee, the trustee
2 shall disburse from the trust fund the amount equivalent to
3 the cost of performed labor or delivered materials as
4 certified. Said certification shall be substantially in the
5 following form:
6 We, the undersigned, being respectively the Seller and
7 Contractor, do hereby certify that the Contractor has
8 performed labor or delivered materials or both to (address of
9 property) .........., in connection with a contract to
10 .........., and that as of this date the value of the labor
11 performed and materials delivered is $.......
12 We do further certify that in connection with such
13 contract there remains labor to be performed, and materials
14 to be delivered, of the value of $........
15 This Certificate is signed (insert date).
16 ............ ............
17 Seller Contractor
18 A person who executes and delivers a completion
19 certificate with actual knowledge of a falsity contained
20 therein shall be considered in violation of this Act and
21 subject to the penalties contained herein.
22 (d) Except as otherwise authorized by this Section,
23 every seller of undeveloped spaces shall provide facilities
24 for temporary interment, entombment or inurnment for
25 purchasers or beneficiaries of contracts who die prior to
26 completion of the space. Such temporary facilities shall be
27 constructed of permanent materials, and, insofar as
28 practical, be landscaped and groomed to the extent customary
29 in the cemetery industry in that community. The heirs,
30 assigns, or personal representative of a purchaser or
31 beneficiary shall not be required to accept temporary
32 underground interment spaces where the undeveloped space
33 contracted for was an above ground entombment or inurnment
34 space. In the event that temporary facilities as described
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1 in this paragraph are not made available, upon the death of a
2 purchaser or beneficiary, the heirs, assigns, or personal
3 representative is entitled to a refund of the entire sales
4 price paid plus undistributed interest attributable to such
5 amount while in trust.
6 (e) If the seller delivers a completed space acceptable
7 to the heirs, assigns or personal representative of a
8 purchaser or beneficiary, other than the temporary facilities
9 specified herein, in lieu of the undeveloped space purchased,
10 the seller shall provide the trustee with a delivery
11 certificate and all sums deposited under the pre-need sales
12 contract, including the undistributed income, shall be paid
13 to the seller.
14 (f) Upon completion of the phase, section or sections of
15 the project as certified to the trustee by the seller and the
16 contractor and delivery of the completed interment,
17 entombment, or inurnment space to the purchaser, the trust
18 fund requirements set forth herein shall terminate and all
19 funds held in the preconstruction trust fund attributable to
20 the completed phase, section or sections, including interest
21 accrued thereon, shall be returned to the seller.
22 (g) This Section shall not apply to the sale of
23 undeveloped spaces if there has been any such sale in the
24 same phase, section or sections of the project prior to the
25 effective date of this Act.
26 (Source: P.A. 91-357, eff. 7-29-99.)
27 (815 ILCS 390/20) (from Ch. 21, par. 220)
28 Sec. 20. Records.
29 (a) Each licensee must keep accurate accounts, books and
30 records in this State at the principal place of business
31 identified in the licensee's license application or as
32 otherwise approved by the Comptroller in writing of all
33 transactions, copies of agreements, dates and amounts of
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1 payments made or received, the names and addresses of the
2 contracting parties, the names and addresses of persons for
3 whose benefit funds are received, if known, and the names of
4 the trust depositories. Additionally, for a period not to
5 exceed 6 months after the performance of all terms in a
6 pre-need sales contract, the licensee shall maintain copies
7 of each pre-need contract at the licensee branch location
8 where the contract was entered.
9 (b) Each licensee must maintain such records for a
10 period of 3 years after the licensee shall have fulfilled his
11 or her obligation under the pre-need contract or 3 years
12 after any stored merchandise shall have been provided to the
13 purchaser or beneficiary, whichever is later.
14 (c) Each licensee shall submit reports to the
15 Comptroller annually, under oath, on forms furnished by the
16 Comptroller. The annual report shall contain, but shall not
17 be limited to, the following:
18 (1) An accounting of the principal deposit and
19 additions of principal during the fiscal year.
20 (2) An accounting of any withdrawal of principal or
21 earnings.
22 (3) An accounting at the end of each fiscal year,
23 of the total amount of principal and earnings held.
24 (d) The annual report shall be filed by the licensee
25 with the Comptroller within 75 days after the end of the
26 licensee's fiscal year. An extension of up to 60 days may be
27 granted by the Comptroller, upon a showing of need by the
28 licensee. Any other reports shall be in the form furnished
29 or specified by the Comptroller. If a licensee fails to
30 submit an annual report to the Comptroller within the time
31 specified in this Section, the Comptroller shall impose upon
32 the licensee a penalty of $5 for each and every day the
33 licensee remains delinquent in submitting the annual report.
34 Each report shall be accompanied by a check or money order in
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1 the amount of $10 payable to: Comptroller, State of
2 Illinois.
3 (e) On and after the effective date of this amendatory
4 Act of the 91st General Assembly, a licensee may report all
5 required information concerning the sale of outer burial
6 containers on the licensee's annual report required to be
7 filed under this Act and shall not be required to report that
8 information under the Illinois Funeral or Burial Funds Act,
9 as long as the information is reported under this Act.
10 (Source: P.A. 91-7, eff. 1-1-2000.)
11 (815 ILCS 390/22) (from Ch. 21, par. 222)
12 Sec. 22. Cemetery Consumer Protection Fund.
13 (a) Every seller engaging in pre-need sales shall pay to
14 the Comptroller $5 for each said contract entered into, to be
15 paid into a special income earning fund hereby created in the
16 State Treasury, known as the Cemetery Consumer Protection
17 Fund. The above said fees shall be remitted to the
18 Comptroller semi-annually within 30 days after the end of
19 June and December for all contracts that have been entered in
20 such 6 month period.
21 (b) All monies paid into the fund together with all
22 accumulated undistributed income thereon shall be held as a
23 special fund in the State Treasury. The fund shall be used
24 solely for the purpose of providing restitution to consumers
25 who have suffered pecuniary loss arising out of pre-need
26 sales.
27 (c) The fund shall be applied only to restitution or
28 completion of the project or delivery of the merchandise or
29 services, where such has been ordered by the Circuit Court in
30 a lawsuit brought under this Act by the Attorney General of
31 the State of Illinois on behalf of the Comptroller and in
32 which it has been determined by the Court that the obligation
33 is non-collectible from the judgment debtor. Restitution
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1 shall not exceed the amount of the sales price paid plus
2 interest at the statutory rate. The fund shall not be used
3 for the payment of any attorney or other fees.
4 (d) Whenever restitution is paid by the fund, the fund
5 shall be subrogated to the amount of such restitution, and
6 the Comptroller shall request the Attorney General to engage
7 in all reasonable post judgment collection steps to collect
8 said restitution from the judgment debtor and reimburse the
9 fund.
10 (e) The fund shall not be applied toward any restitution
11 for losses in any lawsuit initiated by the Attorney General
12 or Comptroller or with respect to any claim made on pre-need
13 sales which occurred prior to the effective date of this Act.
14 (f) The fund may not be allocated for any purpose other
15 than that specified in this Act.
16 (g) Notwithstanding any other provision of this Section,
17 the payment of restitution from the fund shall be a matter of
18 grace and not of right and no purchaser shall have any vested
19 rights in the fund as a beneficiary or otherwise. Prior to
20 seeking restitution from the fund, a purchaser or beneficiary
21 seeking payment of restitution shall apply for restitution on
22 a form provided by the Comptroller. The form shall include
23 any information the Comptroller may reasonably require in
24 order for the Court to determine that restitution or
25 completion of the project or delivery of merchandise or
26 service is appropriate.
27 (h) Annually, the status of the fund shall be reviewed
28 by the Comptroller, and if he determines that the fund
29 together with all accumulated income earned thereon, equals
30 or exceeds $10,000,000 and that the total number of
31 outstanding claims filed against the fund is less than 10% of
32 the fund's current balance, then payments to the fund shall
33 be suspended until such time as the fund's balance drops
34 below $10,000,000 or the total number of outstanding claims
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1 filed against the fund is more than 10% of the fund's current
2 balance, but on such suspension, the fund shall not be
3 considered inactive.
4 (Source: P.A. 84-239.)
5 (815 ILCS 390/23) (from Ch. 21, par. 223)
6 Sec. 23. Violations and penalties.
7 (a) Any person intentionally violating any provision of
8 this Act is guilty of a Class 4 felony.
9 (b) If any person violates this Act or fails or refuses
10 to comply with any order of the Comptroller or any part
11 thereof which to such person has become final and is still in
12 effect, the Comptroller may, after notice and hearing at
13 which it is determined that a violation of this Act or such
14 order has been committed, further order that such person
15 shall forfeit and pay to the State of Illinois a sum not to
16 exceed $10,000 $5,000 for each violation. Such liability
17 shall be enforced in an action brought in any court of
18 competent jurisdiction by the Comptroller in the name of the
19 people of the State of Illinois.
20 (c) Whenever a license is revoked by the Comptroller, or
21 the Comptroller determines that any person is engaged in
22 pre-need sales without a license, he shall apply to the
23 circuit court of the county where such person is located for
24 a receiver to administer the business of such person.
25 (d) Whenever a licensee fails or refuses to make a
26 required report or whenever it appears to the Comptroller
27 from any report or examination that such licensee has
28 committed a violation of law or that the trust funds have not
29 been administered properly or that it is unsafe or
30 inexpedient for such licensee or the trustee of the trust
31 funds of such licensee to continue to administer such funds
32 or that any officer of such licensee or of the trustee of the
33 trust funds of such licensee has abused his trust or has been
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1 guilty of misconduct or breach of trust in his official
2 position injurious to such licensee or that such licensee has
3 suffered as to its trust funds a serious loss by larceny,
4 embezzlement, burglary, repudiation or otherwise, the
5 Comptroller shall, by order, direct the discontinuance of
6 such illegal, unsafe or unauthorized practices and shall
7 direct strict conformity with the requirements of the law and
8 safety and security in its transactions and may apply to the
9 circuit court of the county where such licensee is located to
10 prevent any disbursements or expenditures by such licensee
11 until the trust funds are in such condition that it would not
12 be jeopardized thereby and the Comptroller shall communicate
13 the facts to the Attorney General of the State of Illinois
14 who shall thereupon institute such proceedings against the
15 licensee or its trustee or the officers of either or both as
16 the nature of the case may require.
17 (e) In addition to the other penalties and remedies
18 provided in this Act, the Comptroller may bring a civil
19 action in the county of residence of the licensee or any
20 person engaging in pre-need sales, to enjoin any violation or
21 threatened violation of this Act.
22 (e-5) Any person that violates any provision of this Act
23 or fails to comply with an order of the Comptroller is liable
24 for a civil penalty of not to exceed $10,000 for the
25 violation and an additional civil penalty of not to exceed
26 $1,000 for each day during which the violation continues.
27 These penalties are in addition to any penalties that may be
28 issued under the Consumer Fraud and Deceptive Business
29 Practices Act for knowing violations of this Act. The civil
30 penalties provided for in this subsection may be recovered in
31 a civil action.
32 (f) The powers vested in the Comptroller by this Section
33 are additional to any and all other powers and remedies
34 vested in the Comptroller by law, and nothing herein
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1 contained shall be construed as requiring that the
2 Comptroller shall employ the powers conferred herein instead
3 of or as a condition precedent to the exercise of any other
4 power or remedy vested in the Comptroller.
5 (Source: P.A. 88-477.)
6 (815 ILCS 390/27.1 new)
7 Sec. 27.1. Sales; liability of purchaser for shortage.
8 In the event of a sale or transfer of all or substantially
9 all of the assets of the licensee, the sale or transfer of
10 the controlling interest of the corporate stock of the
11 licensee if the licensee is a corporation, the sale or
12 transfer of the controlling interest of the partnership if
13 the licensee is a partnership, or sale pursuant to
14 foreclosure proceedings, the purchaser is liable for any
15 shortages existing before or after the sale in the trust
16 funds required to be maintained in a trust under this Act and
17 shall honor all pre-need contracts and trusts entered into by
18 the licensee. Any shortages existing in the trust funds
19 constitute a prior lien in favor of the trust for the total
20 value of the shortages, and notice of that lien must be
21 provided in all sales instruments.
22 In the event of a sale or transfer of all or
23 substantially all of the assets of the licensee, the sale or
24 transfer of the controlling interest of the corporate stock
25 of the licensee if the licensee is a corporation, or the sale
26 or transfer of the controlling interest of the partnership if
27 the licensee is a partnership, the licensee shall, at least
28 21 days prior to the sale or transfer, notify the
29 Comptroller, in writing, of the pending date of sale or
30 transfer so as to permit the Comptroller to audit the books
31 and records of the licensee. The audit must be commenced
32 within 10 business days after the receipt of the notification
33 and completed within the 21-day notification period unless
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1 the Comptroller notifies the licensee during that period that
2 there is a basis for determining a deficiency which will
3 require additional time to finalize. The sale or transfer
4 may not be completed by the licensee unless and until:
5 (i) the Comptroller has completed the audit of the
6 licensee's books and records;
7 (ii) any delinquency existing in the trust funds has
8 been paid by the licensee, or arrangements satisfactory
9 to the Comptroller have been made by the licensee on the
10 sale or transfer for the payment of any delinquency;
11 (iii) the Comptroller issues a license upon
12 application of the new owner, which license must be
13 applied for within 30 days after the anticipated date of
14 the sale or transfer, subject to the payment of any
15 delinquencies, if any, as stated in item (ii).
16 For purposes of this Section, a person, firm,
17 corporation, partnership, or institution that acquires the
18 licensee through a real estate foreclosure is subject to the
19 provisions of this Section. The sale or transfer of the
20 controlling interest of a licensee to an immediate family
21 member is not subject to the license application process
22 required in item (iii) of this Section.
23 Section 50. Severability. If any provision of this Act or
24 its application to any person or circumstance is held
25 invalid, the invalidity of that provision or application does
26 not affect other provisions or applications of this Act that
27 can be given effect without the invalid provision or
28 application.
29 Section 99. Effective date. This Act takes effect
30 January 1, 2001.
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