SB1402ham004 96TH GENERAL ASSEMBLY

Rep. Monique D. Davis

Filed: 5/5/2010

09600SB1402ham004 LRB096 08920 ASK 41273 a

AMENDMENT TO SENATE BILL 1402

AMENDMENT NO. ______. Amend Senate Bill 1402, AS AMENDED, by replacing everything after the enacting clause with the following:

"Section 5. The Cemetery Oversight Act is amended by changing Sections 5-20, 15-5, 15-15, and 75-55 and by adding Sections 15-20 and 15-30 as follows:

(225 ILCS 411/5-20)

(Section scheduled to be repealed on January 1, 2021)

Sec. 5-20. Exemptions.

(a) Notwithstanding any provision of law to the contrary, this Act does not apply to (1) any cemetery authority operating as a family burying ground, (2) any cemetery authority that has not engaged in an interment, inurnment, or entombment of human remains within the last 10 years and does not accept or maintain care funds, or (3) any cemetery authority that is less than 2 acres and does not accept or maintain care funds. For purposes of determining the applicability of this subsection, the number of interments, inurnments, and entombments shall be aggregated for each calendar year. A cemetery authority claiming a full exemption shall apply for exempt status as provided for in Section 10-20 Article 10 of this Act. A cemetery authority that performs activities that would disqualify it from a full exemption is required to apply for licensure within one year following the date on which its activities would disqualify it for a full exemption. A cemetery authority that previously qualified for and maintained a full exemption that fails to timely apply for licensure shall be deemed to have engaged in unlicensed practice and shall be subject to discipline in accordance with Article 25 of this Act.

(b) A Notwithstanding any provision of law to the contrary, a cemetery authority that does not qualify for a full exemption and that is operating as a cemetery authority (i) that engages in 25 or fewer interments, inurnments, or entombments of human remains for each of the preceding 2 calendar years and does not accept or maintain care funds, (ii) operates that is operating as a public cemetery, or (iii) operates that is operating as a religious cemetery is exempt from this Act, but is required to comply with Section 10-23, subsections (a), (b), (b-5), (c), and (d) of Section 20-5, Sections 20-5(a), 20-5(b), 20-5(b-5), 20-5(c), 20-5(d), 20-6, 20-8, 20-10, 20-11, 20-12, 20-30, 25-3, and 25-120, and Article 35 of this Act.

A cemetery authority that (i) does not qualify for a full exemption, (ii) operates as a public cemetery or religious cemetery, and (iii) holds care funds shall also comply with subsections (a), (b), (c), and (d) of Section 15-5, subsections (c-5) and (f) of Section 15-15, and Sections 15-20, 15-25, and 15-30 of this Act.

Cemetery authorities claiming a partial exemption shall apply for the partial exemption as provided in Section 10-20 Article 10 of this Act. A cemetery authority that changes to a status that would disqualify it from a partial exemption is required to apply for licensure within one year following the date on which it changes its status. A cemetery authority that maintains a partial exemption that fails to timely apply for licensure shall be deemed to have engaged in unlicensed practice and shall be subject to discipline in accordance with Article 25 of this Act.

(c) Nothing in this Act applies to the City of Chicago in its exercise of its powers under the O'Hare Modernization Act or limits the authority of the City of Chicago to acquire property or otherwise exercise its powers under the O'Hare Modernization Act, or requires the City of Chicago, or any person acting on behalf of the City of Chicago, to comply with the licensing, regulation, investigation, or mediation requirements of this Act in exercising its powers under the O'Hare Modernization Act.

(Source: P.A. 96-863, eff. 3-1-10.)

(225 ILCS 411/15-5)

(Section scheduled to be repealed on January 1, 2021)

Sec. 15-5. Gifts and contributions; trust funds.

(a) A licensed cemetery authority is hereby authorized and empowered to accept any gift, grant, contribution, payment, legacy, or pursuant to contract, any sum of money, funds, securities, or property of any kind, or the income or avails thereof, and to establish a trust fund to hold the same in perpetuity for the care of its cemetery, or for the care of any lot, grave, crypt, or niche in its cemetery, or for the special care of any lot, grave, crypt, or niche or of any family mausoleum or memorial, marker, or monument in its cemetery.

(a-5) For licensed cemetery authorities accepting care funds, not Not less than the following amounts will be set aside and deposited in trust:

(1) For interment rights, $1 per square foot of the space sold or 15% of the sales price or imputed value, whichever is the greater, with a minimum of $25 for each individual interment right.

(2) For entombment rights, not less than 10% of the sales price or imputed value with a minimum of $25 for each individual entombment right.

(3) For inurnment rights, not less than 10% of the sales price or imputed value with a minimum of $15 for each individual inurnment right.

(4) For any transfer of interment rights, entombment rights, or inurnment rights recorded in the records of the cemetery authority, a minimum of $25 for each such right transferred. This does not apply to transfers between a transferor and his or her spouse, parents, grandparents, children, grandchildren, or siblings.

(5) For Upon an interment, entombment, or inurnment in a grave, crypt, or niche in which rights of interment, entombment, or inurnment were originally acquired from a cemetery authority prior to January 1, 1948, a minimum of $25 for each such right exercised.

(6) For an interment, entombment, or inurnment in a grave, crypt, or niche in which the rights of interment, entombment, or inurnment were originally acquired from a cemetery authority prior to the creation of the cemetery's care fund, a minimum of $25 for each such right exercised on or after the date of the creation of the cemetery's care fund.

(7) For the special care of any lot, grave, crypt, or niche or of a family mausoleum, memorial, marker, or monument, the full amount received.

(b) The cemetery authority shall act as trustee of all amounts received for care unless and until they have been deposited with a corporate fiduciary as defined in Section 1-5.05 of the Corporate Fiduciary Act. A licensed cemetery authority may continue to be the trustee of care funds that have been deposited into its trust fund up to an amount as set by rule, but the licensed cemetery authority must retain an independent trustee for any amount of care funds held in trust in excess of that amount. All trust deposits shall be made within 30 days after receipt.

(c) No gift, grant, legacy, payment, or other contribution shall be invalid by reason of any indefiniteness or uncertainty as to the beneficiary designated in the instrument creating the gift, grant, legacy, payment, or other contribution. If any gift, grant, legacy, payment, or other contribution consists of non-income producing property, then the cemetery authority accepting it is authorized and empowered to sell such property and to invest the funds obtained in accordance with subsection (d) of this Section.

(d) The care funds authorized by this Section and provided for in this Article shall be held intact and, unless otherwise restricted by the terms of the gift, grant, legacy, contribution, payment, contract, or other payment, as to investments made after June 11, 1951, the trustee of the care funds of the cemetery authority, in acquiring, investing, reinvesting, exchanging, retaining, selling, and managing property for any such trust, shall act in accordance with the duties for trustees set forth in the Illinois Trusts and Trustees Act. Within the limitations of the foregoing standard, the trustee of the care funds of the cemetery authority is authorized to acquire and retain every kind of property, real, personal, or mixed, and every kind of investment, including specifically, but without limiting the generality of the foregoing, bonds, debentures and other corporate obligations, preferred or common stocks and real estate mortgages, which persons of prudence, discretion, and intelligence acquire or retain for their own account. Within the limitations of the foregoing standard, the trustee is authorized to retain property properly acquired, without limitation as to time and without regard to its suitability for original purchase. The care funds authorized by this Section may be commingled with other trust funds received by such cemetery authority for the care of its cemetery or for the care or special care of any lot, grave, crypt, niche, private mausoleum, memorial, marker, or monument in its cemetery, whether received by gift, grant, legacy, contribution, payment, contract, or other conveyance made to such cemetery authority. Such care funds may be invested with common trust funds as provided in the Common Trust Fund Act. The net income only from the investment of such care funds shall be allocated and used for the purposes specified in the transaction by which the principal was established in the proportion that each contribution bears to the entire sum invested.

(Source: P.A. 96-863, eff. 3-1-10.)

(225 ILCS 411/15-15)

(Section scheduled to be repealed on January 1, 2021)

Sec. 15-15. Care funds; deposits; investments.

(a) Whenever a cemetery authority accepts care funds, either in connection with the sale or giving away at an imputed value of an interment right, entombment right, or inurnment right, or in pursuance of a contract, or whenever, as a condition precedent to the purchase or acceptance of an interment right, entombment right, or inurnment right, such cemetery authority shall establish a care fund or deposit the funds in an already existing care fund.

(b) The cemetery authority shall execute and deliver to the person from whom it received the care funds an instrument in writing that shall specifically state: (i) the nature and extent of the care to be furnished and (ii) that such care shall be furnished only in so far as net income derived from the amount deposited in trust will permit (the income from the amount so deposited, less necessary expenditures of administering the trust, shall be deemed the net income).

(c) The setting-aside and deposit of care funds shall be made by such cemetery authority no later than 30 days after the close of the month in which the cemetery authority gave away for an imputed value or received the final payment on the purchase price of interment rights, entombment rights, or inurnment rights, or received the final payment for the general or special care of a lot, grave, crypt, or niche or of a family mausoleum, memorial, marker, or monument, and such amounts shall be held by the trustee of the care funds of such cemetery authority in trust and in perpetuity for the specific purposes stated in the written instrument described in subsection (b).

(c-5) For all care funds received by a cemetery authority, except for care funds received by a cemetery authority pursuant to a specific gift, grant, contribution, payment, legacy, or contract that are subject to investment restrictions more restrictive than the investment provisions set forth in this Act, and except for care funds otherwise subject to a trust agreement executed by a person or persons responsible for transferring the specific gift, grant, contribution, payment, or legacy to the cemetery authority that contains investment restrictions more restrictive than the investment provisions set forth in this Act, the cemetery authority may, without the necessity of having to obtain prior approval from any court in this State, designate a new trustee in accordance with this Act and invest the care funds in accordance with this Section, notwithstanding any contrary limitation contained in the trust agreement.

(d) Any cemetery authority engaged in selling or giving away at an imputed value interment rights, entombment rights, or inurnment rights, in conjunction with the selling or giving away at an imputed value any other merchandise or services not covered by this Act, shall be prohibited from increasing the sales price or imputed value of those items not requiring a care fund deposit under this Act with the purpose of allocating a lesser sales price or imputed value to items that require a care fund deposit.

(e) If any sale that requires a deposit to a cemetery authority's care fund is made by a cemetery authority on an installment basis, and the installment contract is factored, discounted, or sold to a third party, then the cemetery authority shall deposit the amount due to the care fund within 30 days after the close of the month in which the installment contract was factored, discounted, or sold. If, subsequent to such deposit, the purchaser defaults on the contract such that no care fund deposit on that contract would have been required, then the cemetery authority may apply the amount deposited as a credit against future required deposits.

(f) The trust authorized by this Section shall be a single purpose trust fund. In the event of the cemetery authority's bankruptcy, insolvency, or assignment for the benefit of creditors, or an adverse judgment, the trust funds shall not be available to any creditor as assets of the cemetery authority or to pay any expenses of any bankruptcy or similar proceeding, but shall be retained intact to provide for the future maintenance of the cemetery. Except in an action by the Department to revoke a license issued pursuant to this Act and for creation of a receivership as provided in this Act, the trust shall not be subject to judgment, execution, garnishment, attachment, or other seizure by process in bankruptcy or otherwise, nor to sale, pledge, mortgage, or other alienation, and shall not be assignable except as approved by the Department.

(Source: P.A. 96-863, eff. 3-1-10.)

(225 ILCS 411/15-20 new)

(Section scheduled to be repealed on January 1, 2021)

Sec. 15-20. Use of care funds by a public cemetery. When the State of Illinois or any county, city, village, incorporated town, township, multi-township, public cemetery district, or other municipal or political subdivision or instrumentality thereof in Illinois takes over a cemetery or cemetery authority, the care fund and care fund expenditures continue to be subject to the provisions of this Act, and the new public cemetery must continue to use the care fund exclusively for the care and maintenance of the cemetery in accordance with this Act.

(225 ILCS 411/15-30 new)

(Section scheduled to be repealed on January 1, 2021)

Sec. 15-30. Promises of perpetual care.

(a) Except as provided in subsection (b) of this Section, no cemetery authority shall advertise, represent, guarantee, promise, or enter into a contract to furnish any of the following types of care for a cemetery, lot, grave, crypt, niche, family mausoleum, memorial, marker, or monument:

(1) perpetual care,

(2) permanent care,

(3) perpetual or permanent maintenance,

(4) care forever,

(5) continuous care,

(6) eternal care,

(7) everlasting care,

(8) care for any number of years, or

(9) any similar or equivalent care.

(b) A cemetery authority may advertise, represent, guarantee, promise, or enter a contract to furnish care as described in items (1) through (9) of subsection (a) if:

(1) the care is furnished solely from the net income derived from funds held in trust as provided in Article 15 of this Act; or

(2) the contract provides that the principal of the amount paid under the contract shall be used to furnish the care and specifies the type of care and the number of years for which it is to be given.

(225 ILCS 411/75-55)

(Section scheduled to be repealed on January 1, 2021)

Sec. 75-55. Transition.

(a) Within 60 days after the effective date of this Act, the Comptroller shall provide the Department copies of records in the Comptroller's possession pertaining to the Cemetery Care Act and the Crematory Regulation Act that are necessary for the Department's immediate responsibilities under this Act. All other records pertaining to the Cemetery Care Act and the Crematory Regulation Act shall be transferred to the Department by March 1, 2012. In the case of records that pertain both to the administration of the Cemetery Care Act or the Crematory Regulation Act and to a function retained by the Comptroller, the Comptroller, in consultation with the Department, shall determine, within 60 days after the repeal of the Cemetery Care Act, whether the records shall be transferred, copied, or left with the Comptroller; until this determination has been made the transfer shall not occur.

(b) A person licensed under one of the Acts listed in subsection (a) of this Section or regulated under the Cemetery Association Act shall continue to comply with the provisions of those Acts until such time as the person is licensed under this Act or those Acts are repealed or the amendatory changes made by this amendatory Act of the 96th General Assembly take effect, as the case may be, whichever is earlier.

(c) To support the costs that may be associated with implementing and maintaining a licensure and regulatory process for the licensure and regulation of cemetery authorities, cemetery managers, customer service employees, and cemetery workers, all cemetery authorities that do not qualify for not maintaining a full exemption or partial exemption shall pay the following to the Department:

(1) by the first day of fifth full calendar month after the effective date of this amendatory Act of the 96th General Assembly, a one-time fee of $20 for each cemetery authority license to the Department plus a fee of $5 per interment, inurnment, or entombment performed between and including the first day of the first full calendar month after the effective date of this amendatory Act and the last day of the third full calendar month after the effective date of this amendatory Act of the 96th General Assembly; and

(2) by the first day of eighth full calendar month after the effective date of this amendatory Act of the 96th General Assembly, a fee of $5 per interment, inurnment, or entombment performed between and including the first day of the fourth full calendar month after the effective date of this amendatory Act and the last day of the sixth full calendar month after the effective date of this amendatory Act of the 96th General Assembly; and

(3) by July 1 of each year, beginning on July 1, 2012, a fee of $2 per interment, inurnment, or entombment performed during the preceding calendar year an additional charge of $1 per burial unit per year within the cemetery.

The Department may establish forms for the collection of the fee established under this subsection (c) and shall deposit such fee into the Cemetery Oversight Licensing and Disciplinary Fund. The Department may begin to collect the aforementioned fee after the effective date of this Act. In addition, the Department may establish rules for the collection process, which may include, but shall not be limited to, dates, forms, enforcement, or other procedures necessary for the effective collection, deposit, and overall process regarding this Section.

(d) Any cemetery authority that fails to pay to the Department the required fee or submits the incorrect amount shall be subject to the penalties provided for in Section 25-110 of this Act.

(e) Except as otherwise specifically provided, all fees, fines, penalties, or other moneys received or collected pursuant to this Act shall be deposited in the Cemetery Oversight Licensing and Disciplinary Fund.

(f) All proportionate funds held in the Comptroller's Administrative Fund related to unexpended moneys collected under the Cemetery Care Act and the Crematory Regulation Act shall be transferred to the Cemetery Oversight Licensing and Disciplinary Fund within 60 days after the effective date of the repeal of the Cemetery Care Act.

(g) Personnel employed by the Comptroller on February 29, 2012, to perform the duties pertaining to the administration of the Cemetery Care Act and the Crematory Regulation Act, are transferred to the Department on March 1, 2012.

The rights of State employees, the State, and its agencies under the Comptroller Merit Employment Code and applicable collective bargaining agreements and retirement plans are not affected under this Act, except that all positions transferred to the Department shall be subject to the Personnel Code effective March 1, 2012.

All transferred employees who are members of collective bargaining units shall retain their seniority, continuous service, salary, and accrued benefits. During the pendency of the existing collective bargaining agreement, the rights provided for under that agreement shall not be abridged.

The Department shall continue to honor during their pendency all bargaining agreements in effect at the time of the transfer and to recognize all collective bargaining representatives for the employees who perform or will perform functions transferred by this Act. For all purposes with respect to the management of the existing agreement and the negotiation and management of any successor agreements, the Department shall be deemed the employer of employees who perform or will perform functions transferred to the Department by this Act.

(Source: P.A. 96-863, eff. 3-1-10.)

Section 10. The Crematory Regulation Act is amended by changing Sections 11 and 13 as follows:

(410 ILCS 18/11)

(Text of Section before amendment by P.A. 96-863)

(Section scheduled to be repealed on January 1, 2021)

Sec. 11. Grounds for refusal of license or suspension or revocation of license.

(a) In this Section, "applicant" means a person who has applied for a license under this Act.

(b) The Comptroller may refuse to issue a license under this Act, or may suspend or revoke a license issued under this Act, on any of the following grounds:

(1) The applicant or licensee has made any misrepresentation or false statement or concealed any material fact in connection with a license application or licensure under this Act.

(2) The applicant or licensee has been engaged in business practices that work a fraud.

(3) The applicant or licensee has refused to give information required under this Act to be disclosed to the Comptroller.

(4) The applicant or licensee has conducted or is about to conduct cremation business in a fraudulent manner.

(5) As to any individual listed in the license application as required under Section 10, that individual has conducted or is about to conduct any cremation business on behalf of the applicant in a fraudulent manner or has been convicted of any felony or misdemeanor an essential element of which is fraud.

(6) The applicant or licensee has failed to make the annual report required by this Act or to comply with a final order, decision, or finding of the Comptroller made under this Act.

(7) The applicant or licensee, including any member, officer, or director of the applicant or licensee if the applicant or licensee is a firm, partnership, association, or corporation and including any shareholder holding more than 25% of the corporate stock of the applicant or licensee, has violated any provision of this Act or any regulation or order made by the Comptroller under this Act.

(8) The Comptroller finds any fact or condition existing that, if it had existed at the time of the original application for a license under this Act, would have warranted the Comptroller in refusing the issuance of the license.

(Source: P.A. 92-675, eff. 7-1-03.)

(Text of Section after amendment by P.A. 96-863)

(Section scheduled to be repealed on January 1, 2021)

Sec. 11. Grounds for denial or discipline.

(a) In this Section, "applicant" means a person who has applied for a license under this Act including those persons whose names are listed on a license application in Section 10 of this Act.

(b) The Department may refuse to issue a license, place on probation, reprimand, or take other disciplinary action that the Department may deem appropriate, including imposing fines not to exceed $10,000 for each violation, with regard to any license under this Act, or may suspend or revoke a license issued under this Act, on any of the following grounds:

(1) The applicant or licensee has made any misrepresentation or false statement or concealed any material fact in furnishing information to the Department.

(2) The applicant or licensee has been engaged in business practices that work a fraud.

(3) The applicant or licensee has refused to give information required under this Act to be disclosed to the Department or failing, within 30 days, to provide information in response to a written request made by the Department.

(4) Engaging in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public.

(5) As to any individual listed in the license application as required under Section 10, that individual has conducted or is about to conduct any cremation business on behalf of the applicant in a fraudulent manner or has been convicted of any felony or misdemeanor an essential element of which is fraud.

(6) The applicant or licensee has failed to make the annual report required by this Act or to comply with a final order, decision, or finding of the Department made under this Act.

(7) The applicant or licensee, including any member, officer, or director of the applicant or licensee if the applicant or licensee is a firm, partnership, association, or corporation and including any shareholder holding more than 25% of the corporate stock of the applicant or licensee, has violated any provision of this Act or any regulation or order made by the Department under this Act.

(8) The Department finds any fact or condition existing that, if it had existed at the time of the original application for a license under this Act, would have warranted the Department Comptroller in refusing the issuance of the license.

(9) Any violation of this Act or of the rules adopted under this Act.

(10) Incompetence.

(11) Gross malpractice.

(12) Discipline by another state, District of Columbia, territory, or foreign nation, if at least one of the grounds for the discipline is the same or substantially equivalent to those set forth in this Section.

(13) Directly or indirectly giving to or receiving from any person, firm, corporation, partnership, or association any fee, commission, rebate, or other form of compensation for professional services not actually or personally rendered.

(14) A finding by the Department that the licensee, after having its license placed on probationary status, has violated the terms of probation.

(15) Willfully making or filing false records or reports, including, but not limited to, false records filed with State agencies or departments.

(16) Gross, willful, or continued overcharging for professional services, including filing false statements for collection of fees for which services are not rendered.

(17) Practicing under a false or, except as provided by law, an assumed name.

(18) Cheating on or attempting to subvert this Act's licensing application process.

(Source: P.A. 96-863, eff. 3-1-12.)

(410 ILCS 18/13)

(Text of Section before amendment by P.A. 96-863)

(Section scheduled to be repealed on January 1, 2021)

Sec. 13. License; display; transfer; duration.

(a) Every license issued under this Act must state the number of the license, the business name and address of the licensee's principal place of business, and the licensee's parent company, if any. The license must be conspicuously posted in the place of business operating under the license.

(b) No license is transferable or assignable without the express written consent of the Comptroller. A transfer of more than 50% of the ownership of any business licensed under this Act shall be deemed to be an attempted assignment of the license originally issued to the licensee for whom consent of the Comptroller is required.

(c) Every license issued under this Act shall remain in force until it has been surrendered, suspended, or revoked in accordance with this Act. Upon the request of an interested person or on the Comptroller's own motion, the Comptroller may issue a new license to a licensee whose license has been revoked under this Act if no factor or condition then exists which would have warranted the Comptroller in originally refusing the issuance of the license.

(Source: P.A. 92-675, eff. 7-1-03.)

(Text of Section after amendment by P.A. 96-863)

(Section scheduled to be repealed on January 1, 2021)

Sec. 13. License; display; transfer; duration.

(a) Every license issued under this Act must state the number of the license, the business name and address of the licensee's principal place of business, and the licensee's parent company, if any. The license must be conspicuously posted in the place of business operating under the license.

(b) After initial licensure, if any person comes to obtain at least 51% 25% of the ownership over the licensed crematory authority, then the crematory authority shall have to apply for a new license and receive licensure in the required time as set out by rule.

(c) Every license issued under this Act shall remain in force until it has been surrendered, suspended, or revoked in accordance with this Act. Upon the request of an interested person or on the Department's own motion, the Department may issue a new license to a licensee whose license has been revoked under this Act if no factor or condition then exists which would have warranted the Department in originally refusing the issuance of the license.

(Source: P.A. 96-863, eff. 3-1-12.)

Section 20. The Cemetery Protection Act is amended by changing Section .01 as follows:

(765 ILCS 835/.01) (from Ch. 21, par. 14.01)

Sec. .01. For the purposes of this Act, the term:

"Cemetery authority" means an individual or legal entity that owns or controls cemetery lands or property as further defined in the Cemetery Oversight Act.

"Cemetery manager" means an individual who is engaged in, or holding himself or herself out as engaged in, those activities involved in or incidental to supervising the following: the maintenance, operation, development, or improvement of a cemetery licensed under this Act; the interment of human remains; or the care, preservation, and embellishment of cemetery property. This definition also includes, without limitation, an individual that is an independent contractor or individuals employed or contracted by an independent contractor who is engaged in, or holding himself or herself out as engaged in, those activities involved in or incidental to supervising the following: the maintenance, operation, development, or improvement of a cemetery licensed under this Act; the interment of human remains; or the care, preservation, and embellishment of cemetery property.

"Community mausoleum" means a mausoleum owned and operated by a cemetery authority that contains multiple entombment rights sold to the public.

(Source: P.A. 96-863, eff. 3-1-10.)

Section 95. No acceleration or delay. Where this Act makes changes in a statute that is represented in this Act by text that is not yet or no longer in effect (for example, a Section represented by multiple versions), the use of that text does not accelerate or delay the taking effect of (i) the changes made by this Act or (ii) provisions derived from any other Public Act.

Section 99. Effective date. This Act takes effect upon becoming law.".