SB1471ham002 96TH GENERAL ASSEMBLY

Rep. Michael J. Madigan

Filed: 10/27/2009

09600SB1471ham002 LRB096 06292 AMC 30451 a

AMENDMENT TO SENATE BILL 1471

AMENDMENT NO. ______. Amend Senate Bill 1471, AS AMENDED, by replacing everything after the enacting clause with the following:

"Article 5.

General Provisions

Section 5-1. Short title. This Act may be cited as the Cemetery Oversight Act.

Section 5-5. Findings and purpose. The citizens of Illinois have a compelling interest in the expectation that their loved ones will be treated with the same dignity and respect in death as they are entitled to be treated in life. The laws of the State should provide adequate protection in upholding the sanctity of the handling and disposition of human remains and the preservation of final resting places, but without unduly restricting family, ethnic, cultural, and religious traditions. The purpose of this Act is to ensure that the deceased be accorded equal treatment and respect for human dignity without reference to ethnic origins, cultural backgrounds, or religious affiliations.

Section 5-10. Declaration of public policy. The practice of cemetery operation in the State of Illinois is hereby declared to affect the public health, safety, and well-being of its citizens and to be subject to regulation and control in the public interest. It is further declared that cemetery operation, as defined in this Act, should merit the confidence of the public and that only qualified persons shall be authorized to own, operate, manage, or otherwise control a cemetery in the State of Illinois. This Act shall be liberally construed to best carry out this purpose.

Section 5-15. Definitions. In this Act:

"Address of record" means the designated address recorded by the Department in the applicant's or licensee's application file or license file. It is the duty of the applicant or licensee to inform the Department of any change of address within 14 days either through the Department's website or by contacting the Department's licensure maintenance unit. The address of record for a cemetery authority shall be the permanent street address of the cemetery.

"Applicant" means a person applying for licensure under this Act as a cemetery authority, cemetery manager, or customer service employee. Any applicant or any person who holds himself or herself out as an applicant is considered a licensee for purposes of enforcement, investigation, hearings, and the Illinois Administrative Procedure Act.

"Burial permit" means a permit for the disposition of a dead human body that is filed with the Illinois Department of Public Health.

"Care" means the maintenance of a cemetery and of the lots, graves, crypts, niches, family mausoleums, memorials, and markers therein, including: (i) the cutting and trimming of lawn, shrubs, and trees at reasonable intervals; (ii) keeping in repair the drains, water lines, roads, buildings, fences, and other structures, in keeping with a well-maintained cemetery as provided for in Section 20-5 of this Act and otherwise as required by rule; (iii) maintenance of machinery, tools, and equipment for such care; (iv) compensation of employees, any discretionary payment of insurance premiums, and any reasonable payments for employees' pension and other benefits plans; and (v) the payment of expenses necessary for such purposes and for maintaining necessary records of lot ownership, transfers, and burials.

"Care funds", as distinguished from receipts from annual charges or gifts for current or annual care, means any realty or personalty impressed with a trust by the terms of any gift, grant, contribution, payment, legacy, or pursuant to contract, accepted by any cemetery authority or by any trustee, licensee, agent, or custodian for the same, under Article 15 of this Act, and any income accumulated therefrom, where legally so directed by the terms of the transaction by which the principal was established.

"Cemetery" means any land or structure in this State dedicated to and used, or intended to be used, for the interment, inurnment, or entombment of human remains.

"Cemetery association" means an association of 6 or more persons, and their successors in trust, who have received articles of organization from the Secretary of State to operate a cemetery; the articles of organization shall be in perpetuity and in trust for the use and benefit of all persons who may acquire burial lots in a cemetery.

"Cemetery authority" means any individual or legal entity that owns or controls cemetery lands or property.

"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 individual 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.

"Cemetery operation" means to engage or attempt to engage in the interment, inurnment, or entombment of human remains or to engage in or attempt to engage in the care of a cemetery.

"Cemetery Oversight Database" means a database certified by the Department as effective in tracking the interment, entombment, or inurnment of human remains.

"Certificate of organization" means the document received by a cemetery association from the Secretary of State that indicates that the cemetery association shall be deemed fully organized as a body corporate under the name adopted and in its corporate name may sue and be sued.

"Comptroller" means the Comptroller of the State of Illinois.

"Consumer" means a person, or the persons given priority for the disposition of an individual's remains under the Disposition of Remains Act, who purchases or is considering purchasing cemetery, burial, or cremation products or services from a cemetery authority or crematory authority, whether for themselves or for another.

"Customer service employee" means a cemetery employee who has direct contact with consumers and explains cemetery merchandise or services or negotiates, develops, or finalizes contracts with consumers. This definition includes, without limitation, an individual that is an independent contractor or an individual employed or contracted by an independent contractor who has direct contact with consumers and explains cemetery merchandise or services or negotiates, develops, or finalizes contracts with consumers. This definition does not include a cemetery employee, an individual that is an independent contractor, or an individual employed or contracted by an independent contractor who merely provides a printed cemetery list to a consumer, processes payment from a consumer, or performs sales functions related solely to incidental merchandise like flowers, souvenirs, or other similar items.

"Department" means the Department of Financial and Professional Regulation.

"Employee" means a person who works for a cemetery authority where the cemetery authority has the right to control what work is performed and the details of how the work is performed regardless of whether federal or State payroll taxes are withheld. This definition also includes, without limitation, an individual who is an independent contractor, or an individual employed or contracted by an independent contractor.

"Entombment right" means the right to place individual human remains or individual cremated human remains in a specific mausoleum crypt or lawn crypt selected by a consumer for use as a final resting place.

"Family burying ground" means a cemetery in which no lots are sold to the public and in which interments are restricted to the immediate family or a group of individuals related to each other by blood or marriage.

"Full exemption" means an exemption granted to a cemetery authority pursuant to subsection (a) of Section 5-20.

"Funeral director" means a funeral director as defined by the Funeral Directors and Embalmers Licensing Code.

"Grave" means a space of ground in a cemetery used or intended to be used for burial.

"Green burial or cremation disposition" means burial or cremation practices that reduce the greenhouse gas emissions, waste, and toxic chemicals ordinarily created in burial or cremation or, in the case of greenhouse gas emissions, mitigate or offset emissions. Such practices include standards for burial or cremation certified by the Green Burial Council or any other organization or method that the Department may name by rule.

"Immediate family" means the designated agent of a person or the persons given priority for the disposition of a person's remains under the Disposition of Remains Act.

"Imputed value" means the retail price of comparable rights within the same or similar area of the cemetery.

"Independent contractor" means a person who works for a cemetery authority where the cemetery authority has the right to control or direct only the result of the work and not the means and methods of accomplishing the result.

"Individual" means a natural person.

"Interment right" means the right to place individual human remains or cremated human remains in a specific underground location selected by a consumer for use as a final resting place.

"Inurnment right" means the right to place individual cremated human remains in a specific niche selected by the consumer for use as a final resting place.

"Investment Company Act of 1940" means Title 15 of the United States Code, Sections 80a-1 to 80a-64, inclusive, as amended.

"Investment company" means any issuer (a) whose securities are purchasable only with care funds or trust funds, or both; (b) that is an open and diversified management company as defined in and registered under the Investment Company Act of 1940; and (c) that has entered into an agreement with the Department containing such provisions as the Department by regulation requires for the proper administration of this Act.

"Lawn crypt" means a permanent underground crypt usually constructed of reinforced concrete or similar material installed in multiple units for the entombment of human remains.

"Licensee" means a person licensed under this Act as a cemetery authority, cemetery manager, or customer service employee. Anyone who holds himself or herself out as a licensee or who is accused of unlicensed practice is considered a licensee for purposes of enforcement, investigation, hearings, and the Illinois Administrative Procedure Act. This definition does not include a registered cemetery employee.

"Mausoleum crypt" means a space in a mausoleum used or intended to be used, above or under ground, to entomb human remains.

"Niche" means a space in a columbarium used, or intended to be used, for inurnment of cremated human remains.

"Partial exemption" means an exemption granted to a cemetery authority pursuant to subsection (b) of Section 5-20.

"Permanent parcel identification number" means a unique and permanent number assigned to a grave, plot, crypt, or niche that enables the Department to ascertain the precise location of a decedent's remains.

"Person" means any individual, firm, partnership, association, corporation, limited liability company, trustee, government or political subdivision, or other entity.

"Registered cemetery employee card" means a card issued by the Department to an individual who has applied to the Department for licensure as a registered cemetery employee and meets the requirements for employment by a licensed cemetery authority.

"Secretary" means the Secretary of Financial and Professional Regulation.

"Term burial" means a right of interment sold to a consumer in which the cemetery authority retains the right to disinter and relocate the remains, subject to the provisions of subsection (d) of Section 35-15 of this Act.

"Trustee" means any person authorized to hold funds under this Act.

"Unique personal identifier" means the permanent parcel identification number in addition to the term of burial in years; the numbered level or depth in the grave, plot, crypt, or niche; and the year of death.

Section 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 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 the calendar 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) Notwithstanding any provision of law to the contrary, a cemetery authority that does not qualify for a full exemption that is operating as a cemetery authority 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 is exempt from this Act, but is required to comply with the investigation and mediation procedure established by Section 25-3 of this Act. Cemetery authorities claiming a partial exemption shall apply for the partial exemption as provided in 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 the calendar 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.

Section 5-25. Powers of the Department. Subject to the provisions of this Act, the Department may exercise the following powers:

(1) Authorize examinations to ascertain the qualifications and fitness of applicants for licensing as a licensed cemetery manager or as a customer service employee and pass upon the qualifications of applicants for licensure.

(2) Examine and audit a licensed cemetery authority's records from any year, care funds from any year, or any other aspects of cemetery operation as the Department deems appropriate.

(3) Investigate any and all cemetery-related activity.

(4) Conduct hearings on proceedings to refuse to issue or renew licenses or to revoke, suspend, place on probation, reprimand, or otherwise discipline a license under this Act or take other non-disciplinary action.

(5) Adopt rules required for the administration of this Act.

(6) Prescribe forms to be issued for the administration and enforcement of this Act.

(7) Maintain rosters of the names and addresses of all licensees and all persons whose licenses have been suspended, revoked, denied renewal, or otherwise disciplined within the previous calendar year. These rosters shall be available upon written request and payment of the required fee as established by rule.

Article 10.

Licensing and Registration Provisions

Section 10-5. Restrictions and limitations. No person shall, without a valid license issued by the Department, (i) hold himself or herself out in any manner to the public as a licensed cemetery authority, licensed cemetery manager, or customer service employee; (ii) attach the title "licensed cemetery authority", "licensed cemetery manager", or "licensed customer service employee" to his or her name; (iii) render or offer to render services constituting the practice of cemetery operation; or (iv) accept care funds within the meaning of this Act or otherwise hold funds for care and maintenance unless such person is holding and managing funds on behalf of a cemetery authority and is authorized to conduct a trust business under the Corporate Fiduciary Act or the federal National Bank Act.

Section 10-10. Current licensees. A person acting as a cemetery authority that is licensed on the effective date of this Act under the Cemetery Care Act or Cemetery Association Act need not comply with the licensure requirement in this Article until the Department takes action on the person's application for a cemetery authority license. The application for a cemetery authority license must be submitted to the Department within 9 months after the effective date of this Act. If the person fails to submit the application within 9 months after the effective date of this Act, the person shall be considered to be engaged in unlicensed practice and shall be subject to discipline in accordance with Article 25 of this Act.

Section 10-15. Persons formerly unregulated.

(a) A person acting as a cemetery authority, cemetery manager, or customer service employee who, prior to the effective date of this Act, was not required to obtain licensure need not comply with the licensure requirement in this Article until the Department takes action on the person's application for a license. The application for a cemetery authority, cemetery manager, or customer service employee license must be submitted to the Department within 6 months after the effective date of this Act. If the person fails to submit the application within 6 months after the effective date of this Act, the person shall be considered to be engaged in unlicensed practice and shall be subject to discipline in accordance with Article 25 of this Act.

(b) Persons who are cemetery employees on the effective date of this Act must comply with the registration and Employee's Statement requirements in Section 10-22 of this Act.

(c) Persons who become cemetery employees after the effective date of this Act must comply with the registration and Employee's Statement requirements in Section 10-22 of this Act.

Section 10-20. Application for original license or exemption.

(a) Applications for original licensure as a cemetery authority, cemetery manager, or customer service employee authorized by this Act, or application for exemption from licensure as a cemetery authority, shall be made to the Department on forms prescribed by the Department, which shall include the applicant's Social Security number or FEIN number, or both, and shall be accompanied by the required fee as set by rule. If a cemetery authority seeks to practice at more than one location, it shall meet all licensure requirements at each location as required by this Act and by rule, including submission of application and fee. A person licensed as a cemetery manager or customer service employee need not register as an employee of the cemetery authority.

(b) If the application for licensure as a cemetery authority does not claim a full exemption or partial exemption, then the cemetery authority license application shall be accompanied by a fidelity bond or letter of credit in the amount required by rule. If care funds of a cemetery authority are held by any entity authorized to do a trust business under the Corporate Fiduciary Act or held by an investment company, then the Department may waive the requirement of a bond or letter of credit as established by rule. If the Department finds at any time that the bond or letter of credit is insecure or exhausted or otherwise doubtful, then an additional bond or letter of credit in like amount to be approved by the Department shall be filed by the cemetery authority applicant or licensee within 30 days after written demand is served upon the applicant or licensee by the Department. If the cemetery authority application does not claim a full exemption or partial exemption, then the license application shall be accompanied by a surety bond or letter of credit in a principal amount to be determined by rule. The surety bond or letter of credit shall run to the Secretary and shall be for the benefit of any consumer of such cemetery authority for any liability incurred by the cemetery authority related to the rendering of any of the services referred to in this Act. The procedure by which claims on the surety bond or letter of credit are made and paid shall be determined by rule. The fidelity bond or the surety bond shall be issued by a bonding company authorized to do business in this State. The letter of credit shall be issued by a financial institution authorized to do business in this State. Maintaining the bonds or letters of credit required under this subsection is a continuing obligation for licensure. A bonding company may terminate a bond or a financial institution may terminate a letter of credit and avoid further liability by filing a 60-day notice of termination with the Department and at the same time sending the same notice to the cemetery authority.

(c) After initial licensure, if any person comes to obtain at least 25% of the ownership over the licensed cemetery authority, then the cemetery authority shall have to apply for a new license and receive licensure in the required time as set by rule. The current license remains in effect until the Department takes action on the application for a new license.

(d) All applications shall contain the information that, in the judgment of the Department, will enable the Department to pass on the qualifications of the applicant for an exemption from licensure or for a license to practice as a cemetery authority, cemetery manager, or customer service employee as set by rule.

Section 10-21. Qualifications for licensure.

(a) An applicant is qualified for licensure as a cemetery authority if the applicant meets all of the following qualifications:

(1) The applicant is of good moral character, including compliance with the Code of Professional Conduct and Ethics as provided for by rule, and has not committed any act or offense in any jurisdiction that would constitute the basis for discipline under this Act. In determining good moral character, the Department may take into consideration conviction of any crime under the laws of any jurisdiction. If the applicant is a corporation, limited liability company, partnership, or other entity permitted by law, then each principal, owner, member, officer, and shareholder holding 25% or more of corporate stock is to be of good moral character. Good moral character is a continuing requirement of licensure.

(2) The applicant provides evidence satisfactory to the Department that the applicant has sufficient financial resources to operate a cemetery as established by rule. Maintaining sufficient financial resources is a continuing requirement for licensure.

(3) The applicant has complied with all other requirements of this Act and rules adopted for the implementation of this Act.

(b) The cemetery manager and customer service employees of a licensed cemetery authority shall apply for licensure as a cemetery manager or customer service employee on forms prescribed by the Department and pay the required fee. A person is qualified for licensure as a cemetery manager or customer service employee if he or she meets all of the following requirements:

(1) Is at least 18 years of age.

(2) Is of good moral character, including compliance with the Code of Professional Conduct and Ethics as provided for by rule. Good moral character is a continuing requirement of licensure. In determining good moral character, the Department may take into consideration conviction of any crime under the laws of any jurisdiction.

(3) Submits proof of successful completion of a high school education or its equivalent as established by rule.

(4) Submits his or her fingerprints in accordance with subsection (c) of this Section.

(5) Has not committed a violation of this Act or any rules adopted under this Act that, in the opinion of the Department, renders the applicant unqualified to be a cemetery manager.

(6) Successfully passes the examination authorized by the Department for cemetery manager or customer service employee, whichever is applicable.

(7) Has complied with all other requirements of this Act and rules adopted for the implementation of this Act.

(8) In the case of a customer service employee, can be reasonably expected to treat consumers professionally, fairly, and ethically.

(c) Each applicant for a cemetery manager or customer service employee license shall have his or her fingerprints submitted to the Department of State Police in an electronic format that complies with the form and manner for requesting and furnishing criminal history record information that is prescribed by the Department of State Police. These fingerprints shall be checked against the Department of State Police and Federal Bureau of Investigation criminal history record databases. The Department of State Police shall charge applicants a fee for conducting the criminal history records check, which shall be deposited in the State Police Services Fund and shall not exceed the actual cost of the records check. The Department of State Police shall furnish, pursuant to positive identification, records of Illinois convictions to the Department. The Department may require applicants to pay a separate fingerprinting fee, either to the Department or directly to a designated fingerprint vendor. The Department, in its discretion, may allow an applicant who does not have reasonable access to a designated fingerprint vendor to provide his or her fingerprints in an alternative manner. The Department, in its discretion, may also use other procedures in performing or obtaining criminal background checks of applicants. Instead of submitting his or her fingerprints, an individual may submit proof that is satisfactory to the Department that an equivalent security clearance has been conducted.

Section 10-22. Employee registration.

(a) All employees shall apply for registration as a registered cemetery employee on forms prescribed by the Department, meet all requirements contained in this Section, and pay the required fee.

The holder of a cemetery authority license issued under this Act may employ or contract with employees who are not licensed cemetery managers or customer service employees, in the conduct of the licensee's business under the following circumstances:

(1) No individual that fails to obtain a registered cemetery employee card may be employed by or contracted to do work for a cemetery authority under this Section.

(2) No individual may be employed by or contracted to do work for a cemetery authority or manager under this Section until he or she has executed and furnished to the cemetery authority, on forms furnished by the Department, a verified statement to be known as "Employee's Statement" setting forth all of the following:

(i) The individual's full name, age, and residence address.

(ii) The individual's work history for the 5 years immediately before the date of the execution of the statement, the place where the business or occupation was engaged in, and the names of employers, if any.

(iii) That the individual has not had licensure as a cemetery authority, cemetery manager, or customer service employee denied, revoked, or suspended under this Act within one year before the date the individual's application for registration as a registered cemetery employee is received by the Department.

(iv) Any declaration of incompetence by a court of competent jurisdiction that has not been restored.

(v) Any other information as may be required by any rule of the Department to show the good character, competency, and integrity of the individual executing the statement.

(3) The Department shall issue a registered cemetery employee card, in a form the Department prescribes, to an individual who applies within 90 days after receipt of an application.

(4) Notwithstanding the other provisions of this subsection, a cemetery authority may employ or contract with an individual without a registered cemetery employee card if the individual applies for a registered cemetery employee card on the first day of his or her employment.

(4.5) Notwithstanding the other provisions of this subsection, a cemetery authority may continue to employ or contract with an individual under its employ on the effective date of this Act if the individual applies for a registered cemetery employee card within 10 days after the effective date of this Act.

(5) The holder of a registered cemetery employee card shall carry the card at all times while engaged in the performance of the duties of his or her employment or contract. Expiration and requirements for renewal of registered cemetery employee cards shall be established by rule of the Department. Possession of a registered cemetery employee card does not in any way imply that the holder of the card is employed or contracted by a cemetery authority unless the registered cemetery employee card is accompanied by the employee identification card required by subsection (f) of this Section.

(b) Each cemetery authority shall maintain a record of each employee that is accessible to the Department. The record shall contain the following information:

(1) A photograph taken within 10 days of the date that the employee begins employment with the cemetery authority. The photograph shall be replaced with a current photograph no later than 4 calendar years after the date of employment and every 4 years thereafter. The photo may consist of the employee's driver's license.

(2) The Employee's Statement specified in subsection (b) of this Section.

(3) A copy of the employee's registered cemetery employee card.

(4) All correspondence or documents relating to the character and integrity of the employee received by the cemetery authority from any former employer, cemetery association, government agency, or law enforcement agency.

(5) The Department may, by rule, prescribe further record requirements.

(c) Every cemetery authority shall furnish an employee identification card to each employee. This employee identification card shall contain a recent photograph of the employee, the employee's name, the name and cemetery authority license number of the cemetery authority, the employee's physical description, the signature of an authorized individual on behalf of the cemetery authority, the signature of that employee, the date of issuance, and an employee identification card number.

(d) No cemetery authority may issue an employee identification card to any individual who is not employed by the cemetery authority in accordance with this Section or falsely state or represent that a person is or has been in his or her employ.

(e) Every cemetery authority shall confiscate the employee identification card of any employee whose employment is terminated.

Section 10-25. Examination; failure or refusal to take the examination.

(a) The Department shall authorize examinations of cemetery manager and customer service employee applicants at such times and places as it may determine. The examinations shall fairly test an applicant's qualifications to practice as cemetery manager or customer service employee, whatever the case may be, and knowledge of the theory and practice of cemetery operation and management or cemetery customer service, whichever is applicable. The examination shall further test the extent to which the applicant understands and appreciates that the final disposal of a deceased human body should be attended with appropriate observance and understanding, having due regard and respect for the reverent care of the human body and for those bereaved and for the overall spiritual dignity of an individual.

(b) Applicants for examinations shall pay, either to the Department or to the designated testing service, a fee covering the cost of providing the examination. Failure to appear for the examination on the scheduled date at the time and place specified after the application for examination has been received and acknowledged by the Department or the designated testing service shall result in forfeiture of the examination fee.

(c) If the applicant neglects, fails, or refuses to take an examination or fails to pass an examination for a license under this Act within one year after filing an application, then the application shall be denied. However, the applicant may thereafter submit a new application accompanied by the required fee. The applicant shall meet the requirements in force at the time of making the new application.

(d) The Department may employ consultants for the purpose of preparing and conducting examinations.

(e) The Department shall have the authority to adopt or recognize, in part or in whole, examinations prepared, administered, or graded by other organizations in the cemetery industry that are determined appropriate to measure the qualifications of an applicant for licensure.

Section 10-30. Continuing education. The Department shall adopt rules for continuing education of cemetery managers and customer service employees. The requirements of this Section apply to any person seeking renewal or restoration under Section 10-40 of this Act.

Section 10-40. Expiration and renewal of license. The expiration date, renewal period, and other requirements for each license or registration shall be set by rule.

Section 10-45. Transfer or sale, preservation of license, liability for shortage.

(a) In the case of a sale of any cemetery or any part thereof or of any related personal property by a cemetery authority to a purchaser or pursuant to foreclosure proceedings, except the sale of burial rights, services, or merchandise to a person for his or her personal or family burial or interment, the purchaser is liable for any shortages existing before or after the sale in the care funds required to be maintained in a trust pursuant to this Act and shall honor all instruments issued under Article 15 of this Act for that cemetery. Any shortages existing in the care funds constitute a prior lien in favor of the trust for the total value of the shortages and notice of such lien shall be provided in all sales instruments.

(b) In the event of a sale or transfer of all or substantially all of the assets of the cemetery authority, the sale or transfer of the controlling interest of the corporate stock of the cemetery authority, if the cemetery authority is a corporation, or the sale or transfer of the controlling interest of the partnership, if the cemetery authority is a partnership, or the sale or transfer of the controlling membership, if the cemetery authority is a limited liability company, the cemetery authority shall, at least 30 days prior to the sale or transfer, notify the Department, in writing, of the pending date of sale or transfer so as to permit the Department to audit the books and records of the cemetery authority. The audit must be commenced within 10 business days of the receipt of the notification and completed within the 30-day notification period unless the Department notifies the cemetery authority during that period that there is a basis for determining a deficiency that will require additional time to finalize. The sale or transfer may not be completed by the cemetery authority unless and until:

(1) the Department has completed the audit of the cemetery authority's books and records;

(2) any delinquency existing in the care funds has been paid by the cemetery authority or arrangements satisfactory to the Department have been made by the cemetery authority on the sale or transfer for the payment of any delinquency; and

(3) the Department issues a new cemetery authority license upon application of the newly controlled corporation or partnership, which license must be applied for at least 30 days prior to the anticipated date of the sale or transfer, subject to the payment of any delinquencies, if any, as stated in item (2) of this subsection (b).

(c) In the event of a sale or transfer of any cemetery land, including any portion of cemetery land in which no human remains have been interred, a licensee shall, at least 45 days prior to the sale or transfer, notify the Department, in writing, of the pending sale or transfer. The cemetery authority shall submit a current survey of the land within 30 days after the transfer or sale.

(d) For purposes of this Section, a person who acquires the cemetery through a real estate foreclosure shall be subject to the provisions of this Section pertaining to the purchaser, including licensure.

Section 10-50. Dissolution. Where any licensed cemetery authority or any trustee thereof has accepted care funds within the meaning of this Act, and dissolution is sought by such cemetery authority in any manner, by resolution of such cemetery authority, or the trustees thereof, notice shall be given to the Department of such intention to dissolve and proper disposition shall be made of the care funds so held for the general benefit of such lot owners by or for the benefit of such cemetery authority, as provided by law, or in accordance with the trust provisions of any gift, grant, contribution, payment, legacy, or pursuant to any contract whereby such funds were created. The Department, represented by the Attorney General, may apply to the circuit court for the appointment of a receiver, trustee, successor in trust, or for directions of such court as to the proper disposition to be made of such care funds, to the end that the uses and purposes for which such trust or care funds were created may be accomplished, and for proper continued operation of the cemetery.

Section 10-55. Fees.

(a) Except as provided in subsection (b) of this Section, the fees for the administration and enforcement of this Act, including, but not limited to, original licensure, renewal, and restoration fees, shall be set by the Department by rule. The fees shall not be refundable.

(b) Applicants for examination shall be required to pay, either to the Department or the designated testing service, a fee covering the cost of providing the examination.

(c) All fees and other moneys collected under this Act shall be deposited in the Cemetery Oversight Licensing and Disciplinary Fund.

Section 10-60. Returned checks; fines. Any person who delivers a check or other payment to the Department that is returned to the Department unpaid by the financial institution upon which it is drawn shall pay to the Department, in addition to the amount already owed to the Department, a fine of $50. The fines imposed by this Section are in addition to any other discipline provided under this Act for unlicensed practice or practice on a non-renewed license. The Department shall notify the person that payment of fees and fines shall be paid to the Department by certified check or money order within 30 calendar days of the notification. If, after the expiration of 30 days from the date of the notification, the person has failed to submit the necessary remittance, the Department shall automatically terminate the license or deny the application, without hearing.

If, after termination or denial, the person seeks a license, then he or she shall apply to the Department for restoration or issuance of the license and pay all fees and fines due to the Department. The Department may establish a fee for the processing of an application for restoration of a license to pay all expenses of processing this application. The Secretary may waive the fines due under this Section in individual cases where the Secretary finds that the fines would be unreasonable or unnecessarily burdensome.

Article 15.

Trust Funds

Section 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. 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, excepting only transfers between members of the immediate family of the transferor, a minimum of $25 for each such right transferred.

(5) 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 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 until they have been deposited with a corporate fiduciary as defined in Section 1-5.05 of the Corporate Fiduciary Act. 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.

Section 15-10. Restrictions on loans, gifts, and investments.

(a) No loan; investment; purchase of insurance on the life of any trustee, cemetery owner, or employee; purchase of any real estate; or any other transaction using care funds by any trustee, licensee, cemetery manager, or any other cemetery employee shall be made to or for the benefit of any person, officer, director, trustee, or party owning or having any interest in any licensee, or to any firm, corporation, trade association or partnership in which any officer, director, trustee, or party has any interest, is a member of, or serves as an officer or director. A violation of this Section shall constitute the intentional and improper withdrawal of trust funds under Section 25-105 of this Act.

(b) No loan or investment in any unproductive real estate or real estate outside of this State or in permanent improvements of the cemetery or any of its facilities shall be made, unless specifically authorized by the instrument whereby the principal fund was created. No commission or brokerage fee for the purchase or sale of any property shall be paid in excess of that usual and customary at the time and in the locality where such purchase or sale is made, and all such commissions and brokerage fees shall be fully reported in the next annual statement of such cemetery authority or trustee.

(c) The prohibitions provided for in this Section apply to and include the spouse of and immediate family living with the officer, member, director, trustee, party owning any portion of such cemetery authority, or licensee under this Act.

Section 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 in perpetuity for the specific purposes stated in the written instrument described in subsection (b). 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.

Section 15-25. Funds purpose and exemptions. The trust funds authorized by this Article, and the income therefrom, and any funds received under a contract to furnish care of a burial space for a definite number of years, shall be held for the general benefit of the lot owners and are exempt from taxation. The trust funds authorized by the provisions of this Article, and the income therefrom, are exempt from the operation of all laws of mortmain and the laws against perpetuities and accumulations.

Section 15-40. Trust examinations and audits.

(a) The Department shall examine at least annually every licensee who holds $250,000 or more in its care funds. For that purpose, the Department shall have free access to the office and places of business and to such records of all licensees and of all trustees of the care funds of all licensees as shall relate to the acceptance, use, and investment of care funds. The Department may require the attendance of and examine under oath all persons whose testimony may be required relative to such business. In such cases the Department, or any qualified representative of the Department whom the Department may designate, may administer oaths to all such persons called as witnesses, and the Department, or any such qualified representative of the Department, may conduct such examinations. The cost of an initial examination shall be determined by rule.

(b) The Department may order additional audits or examinations as it may deem necessary or advisable to ensure the safety and stability of the trust funds and to ensure compliance with this Act. These additional audits or examinations shall only be made after good cause is established by the Department in the written order. The grounds for ordering these additional audits or examinations may include, but shall not be limited to:

(1) material and unverified changes or fluctuations in trust balances;

(2) the licensee changing trustees more than twice in any 12-month period;

(3) any withdrawals or attempted withdrawals from the trusts in violation of this Act; or

(4) failure to maintain or produce documentation required by this Act.

(c) Prior to ordering an additional audit or examination, the Department shall request the licensee to respond and comment upon the factors identified by the Department as warranting the subsequent examination or audit. The licensee shall have 30 days to provide a response to the Department. If the Department decides to proceed with the additional examination or audit, the licensee shall bear the full cost of that examination or audit, as provided for by rule. The Department may elect to pay for the examination or audit and receive reimbursement from the licensee. Payment of the costs of the examination or audit by a licensee shall be a condition of receiving or maintaining a license under this Act. All moneys received by the Department for examination or audit fees shall be deposited into the Cemetery Oversight Licensing and Disciplinary Fund.

Article 20.

Business Practice Provisions

Section 20-5. Maintenance and records.

(a) A cemetery authority shall provide reasonable maintenance of the cemetery property and of all lots, graves, crypts, and columbariums in the cemetery based on the type and size of the cemetery, topographic limitations, and contractual commitments with consumers. Subject to the provision of this subsection (a), reasonable maintenance includes:

(1) the laying of seed, sod, or other suitable ground cover as soon as practical following an interment given the weather conditions, climate, and season and the interment's proximity to ongoing burial activity;

(2) the cutting of lawn throughout the cemetery at reasonable intervals to prevent an overgrowth of grass and weeds given the weather conditions, climate, and season;

(3) the trimming of shrubs to prevent excessive overgrowth;

(4) the trimming of trees to remove dead limbs;

(5) keeping in repair the drains, water lines, roads, buildings, fences, and other structures; and

(6) keeping the cemetery premises free of trash and debris.

Reasonable maintenance by the cemetery authority shall not preclude the exercise of lawful rights by the owner of an interment, inurnment, or entombment right, or by the decedent's immediate family or other heirs, in accordance with reasonable rules and regulations of the cemetery or other agreement of the cemetery authority. In the case of a cemetery dedicated as a nature preserve under the Illinois Natural Areas Preservation Act, reasonable maintenance by the cemetery authority shall be in accordance with the rules and master plan governing the dedicated nature preserve.

(a-5) The Department shall adopt rules to provide greater detail as to what constitutes the reasonable maintenance required under this Section. The rules shall differentiate between cemeteries based on, among other things, the size and financial strength of the cemeteries. The rules shall also provide a reasonable opportunity for a cemetery to cure any violation of the reasonable maintenance standard in a timely manner given the weather conditions, climate, and season before the Department initiates formal proceedings.

(b) A cemetery authority, before commencing cemetery operations or within 6 months after the effective date of this Act, shall cause an overall map of its cemetery property, delineating all lots or plots, blocks, sections, avenues, walks, alleys, and paths and their respective designations, to be filed at its on-site office, or if it does not maintain an on-site office, at its principal place of business, and recorded in the recorder's office of the county where the cemetery land is situated. The map must have attached an index that indicates the name of the owner of each lot or plot and, if applicable, the name of the person interred, entombed, or inurned in each lot or plot. A licensed cemetery manager's certificate acknowledging, accepting, and adopting the map shall also be included on the map. If the Department has reasonable suspicion to believe that one or more violations of this Act have occurred or are occurring, the Department may order that the cemetery authority obtain a cemetery plat and that it be filed at its on-site office, or if it does not maintain an on-site office, at its principal place of business, and recorded in the recorder's office of the county where the cemetery land is situated. In exercising this discretion, the Department shall consider whether the cemetery authority would experience an undue hardship as a result of obtaining the plat. The cemetery plat shall be surveyed by and prepared under the direct supervision of an Illinois professional land surveyor licensed pursuant to the Illinois Professional Land Surveyor Act of 1989 and shall delineate, describe, and set forth all lots or plots, blocks, sections, avenues, walks, alleys, and paths and their respective designations. The plat must have attached an index that indicates the name of the owner of each lot or plot and, if applicable, the name of the person interred, entombed, or inurned in each lot or plot. A licensed cemetery manager's certificate acknowledging, accepting, and adopting the plat shall also be included on the plat.

(c) The cemetery authority shall open the cemetery map or plat to public inspection. The cemetery authority shall make available a copy of the overall cemetery map or plat upon written request and shall, if practical, provide a copy of a segment of the cemetery plat where interment rights are located upon the payment of reasonable photocopy fees. Any unsold lots, plots, or parts thereof, in which there are not human remains, may be resurveyed and altered in shape or size and properly designated on the cemetery map or plat. However, sold lots, plots, or parts thereof in which there are human remains may not be renumbered or renamed. Nothing contained in this subsection, however, shall prevent the cemetery authority from enlarging an interment right by selling to its owner the excess space next to the interment right and permitting interments therein, provided reasonable access to the interment right and to adjoining interment rights is not thereby eliminated.

(d) A cemetery authority shall keep a record of every interment, entombment, and inurnment completed after the effective date of this Act. The record shall include the deceased's name, age, date of burial, and permanent parcel identification number identifying where the human remains are interred, entombed, or inurned. The record shall also include the unique personal identifier as may be further defined by rule, which is the permanent parcel identification number in addition to the term of burial in years; the numbered level or depth in the grave, plot, crypt, or niche; and the year of death.

(e) A cemetery authority shall file in a timely manner, as provided for by rule, with the Department the cemetery plat required by subsection (b) and any updates or corrections to the cemetery plat or records.

(f) A cemetery authority shall make available for inspection and, upon reasonable request and the payment of a reasonable copying fee, provide a copy of its rules and regulations and its current prices of interment, inurnment, or entombment rights.

(g) A cemetery authority shall provide access to the cemetery under the cemetery authority's reasonable rules and regulations.

(h) A cemetery authority shall be responsible for the proper opening and closing of all graves, crypts, or niches for human remains in any cemetery property it owns.

(i) Any corporate or other business organization trustee of the care funds of every licensed cemetery authority shall be located in or a resident of this State. The licensed cemetery authority and the trustee of care funds shall keep in this State and use in its business such books, accounts, and records as will enable the Department to determine whether such licensee or trustee is complying with the provisions of this Act and with the rules, regulations, and directions made by the Department under this Act. The licensed cemetery authority shall keep the books, accounts, and records at the location identified in the license issued by the Department or as otherwise agreed by the Department in writing. The books, accounts, and records shall be accessible for review upon demand of the Department.

Section 20-6. Cemetery Oversight Database.

(a) Within 72 hours after an interment, entombment, or inurnment of human remains, the cemetery manager shall cause a record of the interment, entombment, or inurnment to be entered into the Cemetery Oversight Database. The requirement of this subsection (a) also applies in any instance in which human remains are relocated.

(b) Within 9 months after the effective date of this Act, the Department shall certify a database as the Cemetery Oversight Database. Upon certifying the database, the Department shall:

(1) provide reasonable notice to all licensed cemetery authorities identifying the database; and

(2) immediately upon certification, require each licensed cemetery authority to use the Cemetery Oversight Database as a means of complying with subsection (a).

(c) In certifying the Cemetery Oversight Database, the Department shall ensure that the database:

(1) provides real-time access through an Internet connection or, if real-time access through an Internet connection becomes unavailable due to technical problems with the Cemetery Oversight Database incurred by the database provider, through alternative mechanisms, including, but not limited to, telephone;

(2) is accessible to the Department and to licensed cemetery managers in order to ensure compliance with this Act and in order to provide any other information that the Department deems necessary;

(3) requires licensees to input whatever information required by the Department;

(4) maintains a real-time copy of the required reporting information that is available to the Department at all times and is the property of the Department; and

(5) contains safeguards to ensure that all information contained in the Cemetery Oversight Database is secure.

(d) A licensee may rely on the information contained in the Cemetery Oversight Database as accurate and is not subject to any administrative penalty or liability as a result of relying on inaccurate information contained in the database.

(e) The Cemetery Oversight Database provider shall indemnify licensees against all claims and actions arising from illegal, willful, or wanton acts on the part of the Database provider.

Section 20-8. Vehicle traffic control. A cemetery authority shall make every effort to ensure that funeral processions enter and exit the cemetery grounds with minimal disruption to vehicle traffic on the streets and roadways surrounding the cemetery. The cemetery authority and funeral directors arranging funeral processions to the cemetery are both under a duty to exercise their best efforts to help prevent multiple funeral processions from arriving at the cemetery simultaneously.

Section 20-10. Statement of services. At the time cemetery arrangements are made and prior to rendering the cemetery services, a licensed cemetery authority shall furnish a written statement, in a form to be determined by the Department, to be provided to the consumer, signed by both parties, that shall contain: (i) contact information, as set out in Section 20-11, and the date on which the arrangements were made; (ii) the price of the service selected and the services and merchandise included for that price; (iii) a clear disclosure that the person or persons making the arrangement may decline and receive credit for any service or merchandise that is not desired or specified by the original interment right owner and is not required by law or by the cemetery authority's rules and regulations; (iv) the supplemental items of service and merchandise requested and the price of each item; (v) the terms or method of payment agreed upon; and (vi) a statement as to any monetary advances made on behalf of the family. The cemetery authority shall maintain a copy of such written statement of services in its permanent records.

Section 20-11. Contact information in statement of services. All licensed cemetery authorities shall include in the statement of services described in Section 20-10 the name, address, and telephone number of the cemetery authority. Upon written request to a cemetery authority by a consumer, the cemetery authority shall provide: (1) the cemetery authority's registered agent, if any; (2) the cemetery authority's proprietor, if the cemetery authority is an individual; (3) every partner, if the cemetery authority is a partnership; (4) the president, secretary, executive and senior vice presidents, directors, and individuals owning 25% or more of the corporate stock, if the cemetery authority is a corporation; and (5) the manager, if the cemetery authority is a limited liability company.

Section 20-12. Method of payment; receipt. No licensed cemetery authority shall require payment for any goods, services, or easement by cash only. Each cemetery authority subject to this Section shall permit payment by at least one other option, including, but not limited to, personal check, cashier's check, money order, or credit or debit card. In addition to the statement of services for the sale of cemetery goods, services, or easements, the cemetery authority shall provide a receipt to the consumer upon payment in part or full, whatever the case may be.

Section 20-15. Interment or inurnment in cemetery. After the effective date of this Act, for interments and inurnments at cemeteries, the cemetery authority shall place on the outer burial container, cremation inurnment container, or other container or on the inside of a crypt or niche a tag or permanent identifying marker listing the name of the decedent, the date of birth, and the date of death. The materials and the location of the tag or marker may be more specifically described by rule. No cemetery authority shall interfere with a licensed funeral director or his or her designated agent observing the final burial or disposition of a body for which the funeral director has a contract for services related to that deceased individual. No funeral director or his or her designated agent shall interfere with a licensed cemetery authority or its designated agent's rendering of burial or other disposition services for a body for which the cemetery authority has a contract for goods, services, or property related to that deceased individual.

Section 20-20. Display of license. Every cemetery authority, cemetery manager, and customer service employee license issued by the Department shall state the number of the license and the address at which the business is to be conducted. Such license shall be kept conspicuously posted in the place of business of the licensee and shall not be transferable or assignable.

Section 20-25. Annual report. Each licensed cemetery authority shall annually, on or before April 15, file a report with the Department giving such information as the Department may reasonably require concerning the business and operations during the preceding calendar year as provided for by rule. The report must be received by the Department on or before April 15, unless such date is extended for reasonable cause up to 90 days by the Department. The report shall be made under oath and in a form prescribed by the Department. The Department may fine each licensee an amount as determine by rule for each day beyond April 15 the report is filed.

Section 20-30. Signage. Cemetery authorities shall conspicuously post signs in English and Spanish in the cemetery office, in a form provided by the Department, that contain the Department's consumer hotline number, information on how to file a complaint, and whatever other information that the Department deems appropriate.

Article 22.

Cemetery Associations

Section 22-1. Cemetery association requirements. The requirements of this Article apply to those entities formed as and acting as cemetery associations that act as a cemetery and are otherwise exempt from this Act pursuant to Section 5-20 of this Act. A cemetery association offering or providing services as a cemetery that is exempt pursuant to Section 5-20 of this Act shall remain subject to the provisions of this Article and its requirements, mandates, and discipline in accordance with the provisions of this Act. Any cemetery association not exempt in accordance with Section 5-20 of this Act shall obtain a license from the Department in accordance with the provisions of this Act and shall remain subject to all provisions of this Act.

Section 22-2. Cemetery association formation.

(a) Any 6 or more persons may organize a cemetery association, to be owned, managed, and controlled in the manner provided in this Article.

(b) Whenever 6 or more persons shall present to the Secretary of State a petition setting forth that they desire to organize a cemetery association under this Act, which shall specify the county in which the cemetery association will be located and the name and style of the cemetery association, the Secretary of State shall issue to such persons and their successors in trust, a certificate of organization, which shall be in perpetuity and in trust for the use and benefit of all persons who may acquire burial lots in the cemetery.

Section 22-3. Certificate of organization. Any person who has received a certificate of organization from the Secretary of State must record the certificate of organization with the recorder's office of the county in which the cemetery is situated, and when so recorded, the association shall be deemed fully organized as a body corporate under the name adopted and in its corporate name may sue and be sued. Whenever two-thirds of the trustees of the cemetery association approve a resolution to change the name of the cemetery association, a copy of such resolution and approval thereof duly certified by the President and Secretary of the association shall be filed with the Department and upon approval thereof shall be filed in the Office of the Secretary of State. Whenever two-thirds of the trustees of a cemetery association approve a resolution to dissolve the association, a copy of such resolution and approval of the trustees of the cemetery association duly certified by the President and Secretary shall be submitted to the Department, and if approved by the Department, a copy of such resolution and approval of the Department shall be duly filed by the Department in the Office of the Secretary of State. If the association has care funds as defined in this Act, the Department shall not approve the dissolution of any cemetery association unless proper disposition has been made of such care funds, as provided by law, and in accordance with this Act. Upon the filing of the resolution of either change of name or dissolution of such cemetery association in the Office of the Secretary of State, such change of name or dissolution of such cemetery association shall be complete. The Department shall so notify the trustees of such cemetery association. Thereupon the trustees shall cause a copy of such resolution of either change of name or dissolution to be recorded in the recorder's office of the county where the cemetery is situated.

Section 22-4. Cemetery association composition; board of trustees. A cemetery association meeting the requirements set forth in Section 22-3 of this Act shall proceed to elect from their own number a board of trustees for the association. The board shall consist of not less than 6 and not more than 10 members. The trustees, once elected, shall immediately organize by electing from their own membership a president, vice president, and treasurer, and shall also elect a secretary, who may or may not be a member of the board of trustees. The officers shall hold their respective offices for and during the period of one year, and until their successors are duly elected and qualified. Trustees, once elected, shall divide themselves by lot into 2 classes, the first of which shall hold their offices for a period of 3 years, and the second of which shall hold their offices for a period of 6 years. Thereafter the term of office of the trustees shall be 6 years. Upon the expiration of the term of office of any of the trustees, or the resignation or death or removal from the State of Illinois of any trustees, or their removal from office as provided in this Act, the remaining trustees shall fill the vacancy by electing a person residing in the county where the cemetery is located for a new 6-year term or, if no one can be nominated, the President of the cemetery association shall notify the Department of such vacancy or vacancies in writing. Thereafter the Department shall fill the vacancy or vacancies by appointing a suitable person or persons as trustees. In making such appointments, the Department shall exercise its power such that at least two-thirds of the trustees shall be selected from suitable persons residing within 15 miles of the cemetery, or some part thereof, and the other appointees may be suitable persons interested in said cemetery association through family interments or otherwise who are citizens of the State of Illinois.

Section 22-5. Right to acquire land. Any cemetery association shall have the right to acquire the necessary amount of land for the use of the cemetery association. Land may be acquired by purchase or by gift, and the association is authorized to receive by gift or legacy any property, either real, personal, or mixed, which may be donated to the association to hold and keep inviolate any such property for the uses of the cemetery association. A cemetery association may receive and administer endowments for the care and oversight of such cemetery or any part thereof. All cemetery associations shall be subject to and shall comply with the provisions of the other Articles of this Act unless otherwise exempted by the provisions of this Act.

Section 22-6. Plat; plots; recordation. All cemetery associations may divide and lay out into lots any real estate that it may acquire. When such division takes place, the lots shall be of suitable size for burial lots. A plat of any land that is laid out into lots as provided in this Section shall be surveyed by a licensed Illinois professional land surveyor and recorded by the cemetery association in the recorder's office of the county in which the cemetery association is located. The cemetery association shall have the right to sell to any person or persons a lot or lots in the cemetery for burial purposes only, and to convey to such person or persons a lot by a proper deed of conveyance. A person or persons purchasing a lot or lots shall have the right to use the same for burial purposes as limited by the reasonable rules of the cemetery association; but no cemetery association shall make or enforce any rule prohibiting the erection of any monument or headstone on any lot or lots as may be prescribed or provided by the United States or the State of Illinois for a soldier, sailor, or marine having served and been honorably discharged from the Army or Navy or Air Force of the United States or the State of Illinois according to the established and written rules and regulations of the cemetery.

Section 22-7. Funds; loans. The treasurer of a cemetery association may from time to time loan money that the association may have that is not needed for the immediate use of the association by taking proper security for the loan, and the loan and the security for the loan shall, before the loan becomes effective, be approved by the board of trustees of the cemetery association.

Section 22-8. Officer trustee compensation; salary. No officer or trustee of a cemetery association shall receive any compensation of any kind for any services rendered by him or her on behalf of the association, except that officers and trustees may be reimbursed for reasonable expenses, and the secretary and treasurer of the association may receive such salary as may be fixed by the board of trustees.

Section 22-9. Payment of earnings or dividends. No earnings or dividends shall be declared or paid to any officer or other person from the funds of a cemetery association. Such earnings and dividends shall be kept inviolate and be used only for purposes of the association and the care, preservation, and ornamentation of the cemetery.

Section 22-10. Annual reports. The board of trustees for any cemetery association that is exempt in accordance with the provisions of this Act and subject to the provisions of this Article shall annually prepare and file with the Department the report required to be filed by a licensee under Section 20-25. The Department shall examine such report to determine whether the association has fully complied with the requirements of this Act. If a cemetery association fails to submit an annual report to the Department within the time specified in Section 20-25, the Department shall impose upon the cemetery association a fine as provided for by rule for each and every day the cemetery licensee remains delinquent in submitting the report. Any fine established pursuant to this Section shall be paid within 60 days after the effective date of the order imposing the fine unless such time is extended, the fine is reduced, or the fine is otherwise waived. The order shall constitute a judgment and may be filed and execution had thereon in the same manner as any judgment from any court of record.

Section 22-11. Fees; fines. Except as otherwise provided in this Act, the fees for the administration and enforcement of this Article shall be set by rule of the Department. The fees shall be nonrefundable.

Section 22-12. Deposit of fees and fines. All of the fees, fines, or other moneys collected by the Department from cemetery associations under this Article shall be deposited into the Cemetery Oversight Licensing and Disciplinary Fund.

Section 22-13. Injunctive relief.

(a) If any cemetery association otherwise exempted under the provisions of this Act violates any of the provisions of this Article, the Department, any interested party, any person injured thereby, the Attorney General of the State of Illinois, or the State's Attorney in the county in which the offense occurs may petition to the circuit court of the county in which the violation or some part thereof occurred or of the county where the association has its principal place of business for an order enjoining the violation or for an order enforcing compliance with this Act. Upon the filing of a verified petition in court, the court may issue a temporary restraining order, without notice or bond, and may preliminarily and permanently enjoin the violation. If it is established that the person has violated or is violating the injunction, the court may punish the offender for contempt of court. Proceedings under this Section shall be in addition to, and not in lieu of, all other remedies and penalties provided by this Article.

(b) For misconduct in office any trustee of a cemetery association may be removed from office by a court of competent jurisdiction. Any trustee of an association who converts any funds of an association to his or her own use or to a use other than that intended shall be guilty of embezzlement as provided by State law.

(c) All cemetery associations shall remain subject to the duties, obligations, and requirements of this Act unless otherwise exempted by this Act. Those cemetery associations exempted under this Act shall comply with the provisions of this Article.

Section 22-14. Rules; bond requirement.

(a) The board of trustees of the cemetery association may make any and all rules and regulations for the management of the association not inconsistent with this Article or this Act.

(b) The trustees of any cemetery association exempted under the provisions of this Act shall obtain and maintain a bond or letter of credit on behalf of the cemetery association in those amounts as required for a licensee under this Act.

(c) Each cemetery association exempted under the provisions of this Act shall maintain in force a surety bond, issued by an insurance company authorized to transact fidelity and surety business in the State of Illinois, or a letter of credit, issued by a financial institution authorized to do business in the State of Illinois. The bond or letter of credit shall be for the benefit of any individual who obtains a judgment from a court of competent jurisdiction based on the failure of the cemetery association to fulfill the terms of any contractual agreement entered into between the association and any person. No action on the bond or letter of credit shall be commenced more than one year after a judgment has been obtained against the cemetery association from a court of competent jurisdiction. The bond or letter of credit shall be in the form and amount as is required from a licensee under this Act. The bond or letter of credit shall be continuous in form, unless terminated by the insurance company or financial institution respectively. An insurance company may terminate a bond or a financial institution may terminate a letter of credit and avoid further liability by filing a 60-day notice of termination with the Department and at the same time sending the same notice to the cemetery association. The requirement to maintain a bond or letter of credit by the cemetery association shall be a continuing requirement while operating a cemetery by the cemetery association.

(d) All members of the board of trustees of a cemetery association which fails to maintain the bond or letter of credit as required in this section shall remain jointly and severally liable for damages and each shall be guilty of a Class A misdemeanor for the first offense and a Class 4 felony for second and subsequent offenses.

Section 22-15. Conveyance of property. Any cemetery association organized under this Act may convey any property that it may hold within a city, village, incorporated town, county not under township organization, or town, to the city, village, incorporated town, county, or town within which this property is located and may convey any property that it may hold within one mile of any city, village, or incorporated town to such city, village, or incorporated town. If the city, village, incorporated town, county, or town accepts the conveyance, then such property shall thereafter be under the control, management, maintenance, and ownership of the city, village, incorporated town, county, or town.

Section 22-16. Grants. Any cemetery association organized under this Article shall be authorized to obtain a grant or grants of federal funds from the United States Government, or from any proper agency thereof, for the construction of a memorial gateway and entrance on property of a cemetery association that is maintained as a national cemetery. Any cemetery association organized under this Act shall be authorized to convey in fee simple to the United States Government, or to any proper agency thereof, such portion of property of such cemetery as is now or may hereafter be maintained as a national cemetery.

Section 22-17. Taxable property. The property, both real and personal, of any cemetery association organized under this Act shall be forever exempt from taxation for any and all purposes.

Section 22-18. Additional property. A cemetery association organized under this Act that has acquired or may hereafter acquire land by purchase, deed, will, or otherwise, and has platted, mapped, and used the land for cemetery purposes, may, when necessary, acquire additional land adjoining or abutting the cemetery.

Section 22-21. Administrative rules. The Department shall have authority to promulgate and implement administrative rules relating to all Sections under this Article. The rules may include, but shall not be limited to, rules in those areas relating to forms, fees, requirements, notices, discipline, and any other rule necessary to properly implement the intent of this Article.

Article 25.

Administration and Enforcement

Section 25-1. Denial of license or exemption from licensure. If the Department determines that an application for licensure or exemption from licensure should be denied pursuant to Section 25-10, then the applicant shall be sent a notice of intent to deny license or exemption from licensure and the applicant shall be given the opportunity to request, within 20 days of the notice, a hearing on the denial. If the applicant requests a hearing, then the Secretary shall schedule a hearing within 30 days after the request for a hearing, unless otherwise agreed to by the parties. The Secretary shall have the authority to appoint an attorney duly licensed to practice law in the State of Illinois to serve as the hearing officer. The hearing officer shall have full authority to conduct the hearing. The hearing shall be held at the time and place designated by the Secretary. The Secretary shall have the authority to prescribe rules for the administration of this Section.

Section 25-3. Exemption, investigation, mediation. All cemetery authorities maintaining a partial exemption must submit to the following investigation and mediation procedure by the Department in the event of a consumer complaint:

(a) Complaints to cemetery:

(1) the cemetery authority shall make every effort to first resolve a consumer complaint; and

(2) if the complaint is not resolved, then the cemetery authority shall advise the consumer of his or her right to seek investigation and mediation by the Department.

(b) Complaints to the Department:

(1) if the Department receives a complaint, the Department shall make an initial determination as to whether the complaint has a reasonable basis and pertains to this Act;

(2) if the Department determines that the complaint has a reasonable basis and pertains to this Act, it shall inform the cemetery authority of the complaint and give it 30 days to tender a response;

(3) upon receiving the cemetery authority's response, or after the 30 days provided in subsection (2) of this subsection, whichever comes first, the Department shall attempt to resolve the complaint telephonically with the parties involved;

(4) if the complaint still is not resolved, then the Department shall conduct an investigation and mediate the complaint as provided for by rule;

(5) if the Department conducts an on-site investigation and face-to-face mediation with the parties, then it may charge the cemetery authority a single investigation and mediation fee, which fee shall be set by rule and shall be calculated on an hourly basis; and

(6) if all attempts to resolve the consumer complaint as provided for in paragraphs (1) through (5) fail, then the cemetery authority may be subject to proceedings for penalties and discipline under this Article when it is determined by the Department that the cemetery authority may have engaged in any of the following: (i) gross malpractice; (ii) dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public; (iii) gross, willful, or continued overcharging for services; (iv) incompetence; (v) unjustified failure to honor its contracts; or (vi) failure to adequately maintain its premises. The Department may issue a citation or institute disciplinary action and cause the matter to be prosecuted and may thereafter issue and enforce its final order as provided in this Act.

Section 25-5. Citations.

(a) The Department may adopt rules to permit the issuance of citations for non-frivolous complaints. The citation shall be issued to the licensee and shall contain the licensee's name and address, the licensee's license number, a brief factual statement, the Sections of the law allegedly violated, and the penalty imposed. The citation must clearly state that the licensee may choose, in lieu of accepting the citation, to request a hearing. If the licensee does not dispute the matter in the citation with the Department within 30 days after the citation is served, then the citation shall become a final order and shall constitute discipline. The penalty shall be a fine or other conditions as established by rule.

(b) The Department shall adopt rules designating violations for which a citation may be issued. Such rules shall designate as citation violations those violations for which there is no substantial threat to the public health, safety, and welfare. Citations shall not be utilized if there was any significant consumer harm resulting from the violation.

(c) A citation must be issued within 6 months after the reporting of a violation that is the basis for the citation.

(d) Service of a citation may be made by personal service or certified mail to the licensee at the licensee's address of record.

Section 25-10. Grounds for disciplinary action.

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

(1) Material misstatement in furnishing information to the Department.

(2) Violations of this Act or of the rules promulgated under this Act.

(3) Conviction of, or entry of a plea of guilty or nolo contendere to, any crime within the last 5 years that is a Class X felony or is a felony involving fraud and dishonesty under the laws of the United States or any state or territory thereof.

(4) Making any misrepresentation for the purpose of obtaining licensure or violating any provision of this Act or the rules promulgated under this Act.

(5) Professional incompetence.

(6) Gross malpractice.

(7) Aiding or assisting another person in violating any provision of this Act or rules promulgated under this Act.

(8) Failing, within 10 days, to provide information in response to a written request made by the Department.

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

(10) Inability to practice with reasonable judgment, skill, or safety as a result of habitual or excessive use of alcohol, narcotics, stimulants, or any other chemical agent or drug.

(11) 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.

(12) 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.

(13) A finding by the Department that the licensee, after having his or her license placed on probationary status, has violated the terms of probation.

(14) Willfully making or filing false records or reports in his or her practice, including, but not limited to, false records filed with any governmental agency or department.

(15) Inability to practice the profession with reasonable judgment, skill, or safety.

(16) Failure to file an annual report or to maintain in effect the required bond or to comply with an order, decision, or finding of the Department made pursuant to this Act.

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

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

(19) Fraud or misrepresentation in applying for, or procuring, a license under this Act or in connection with applying for renewal of a license under this Act.

(20) Cheating on or attempting to subvert the licensing examination administered under this Act.

(21) Unjustified failure to honor its contracts.

(22) Negligent supervision of a cemetery manager or employee.

(23) A pattern of practice or other behavior which demonstrates incapacity or incompetence to practice under this Act.

(24) Allowing an independent contractor that is not licensed or registered under this Act to perform the following services: openings and closings of vaults and graves, stone settings, inurnments, interments, entombments, and all other work that is performed by one or more cemetery employees on the effective date of this Act, including, but not limited to, the preparation of foundations for memorials and routine cemetery maintenance. For purposes of this subsection, "routine cemetery maintenance" includes those activities described in subsections (1), (2), (3), and (6) of Section 20-5(a) of this Act.

(b) No action may be taken under this Act against a person licensed under this Act unless the action is commenced within 5 years after the occurrence of the alleged violations. A continuing violation shall be deemed to have occurred on the date when the circumstances last existed that give rise to the alleged violation.

Section 25-13. Independent contractors.

(a) Notwithstanding any provision of this Act to the contrary, a cemetery authority may allow an independent contractor to perform services to address an immediate threat to public health or public safety, or to make repairs to cemetery property that are immediately needed to protect against further loss of or damage to cemetery property.

(b) Notwithstanding any provision of this Act to the contrary, a vault company may deliver and close the specific vaults that it has sold or contracted under the direct supervision of the cemetery manager, and a monument dealer may set the specific memorials it has sold or contracted under the direct supervision of the cemetery manager.

(c) Notwithstanding any provision of this Act to the contrary, a cemetery authority may hire an independent contractor for a specific project as long as the skills and expertise necessary for the specific project fall outside the cemetery employees' skills and expertise.

Section 25-14. Mandatory reports.

(a) If a cemetery authority receives a consumer complaint that is not resolved to the satisfaction of the consumer within 60 days of the complaint, the cemetery authority shall advise the consumer of the right to seek investigation by the Department and shall report the consumer complaint to the Department within the next 30 days. Cemetery authorities shall report to the Department within 30 days after the settlement of any liability insurance claim or cause of action, or final judgment in any cause of action, that alleges negligence, fraud, theft, misrepresentation, misappropriation, or breach of contract.

(b) The State's Attorney of each county shall report to the Department all instances in which an individual licensed as a cemetery manager or customer service employee or registered as a cemetery employee, or any individual listed on a licensed cemetery authority's application under this Act, is convicted or otherwise found guilty of the commission of any felony. The report shall be submitted to the Department within 60 days after conviction or finding of guilty.

Section 25-15. Cease and desist.

(a) The Secretary may issue an order to cease and desist to any licensee or other person doing business without the required license when, in the opinion of the Secretary, the licensee or other person is violating or is about to violate any provision of this Act or any rule or requirement imposed in writing by the Department.

(b) The Secretary may issue an order to cease and desist prior to a hearing and such order shall be in full force and effect until a final administrative order is entered.

(c) The Secretary shall serve notice of his or her action, designated as an order to cease and desist made pursuant to this Section, including a statement of the reasons for the action, either personally or by certified mail, return receipt requested. Service by certified mail shall be deemed completed when the notice is deposited in the United States mail and sent to the address of record or, in the case of unlicensed activity, the address known to the Department.

(d) Within 15 days after service of the order to cease and desist, the licensee or other person may request, in writing, a hearing.

(e) The Secretary shall schedule a hearing within 30 days after the request for a hearing unless otherwise agreed to by the parties.

(f) The Secretary shall have the authority to prescribe rules for the administration of this Section.

(g) If, after hearing, it is determined that the Secretary has the authority to issue the order to cease and desist, he or she may issue such orders as may be reasonably necessary to correct, eliminate, or remedy such conduct.

(h) The powers vested in the Secretary by this Section are additional to any and all other powers and remedies vested in the Secretary by law and nothing in this Section shall be construed as requiring that the Secretary shall employ the power conferred in this Section instead of or as a condition precedent to the exercise of any other power or remedy vested in the Secretary.

(i) The cost for the administrative hearing shall be set by rule.

Section 25-25. Investigations, notice, hearings.

(a) The Department may at any time investigate the actions of any applicant or of any person or persons rendering or offering to render services as a cemetery authority, cemetery manager, or customer service employee of or any person holding or claiming to hold a license as a licensed cemetery authority, cemetery manager, or customer service employee. If it appears to the Department that a person has engaged in, is engaging in, or is about to engage in any practice declared to be unlawful by this Act, then the Department may: (1) require that person to file on such terms as the Department prescribes a statement or report in writing, under oath or otherwise, containing all information the Department may consider necessary to ascertain whether a licensee is in compliance with this Act, or whether an unlicensed person is engaging in activities for which a license is required; (2) examine under oath any individual in connection with the books and records pertaining to or having an impact upon the operation of a cemetery or trust funds required to be maintained pursuant to this Act; (3) examine any books and records of the licensee, trustee, or investment advisor that the Department may consider necessary to ascertain compliance with this Act; and (4) require the production of a copy of any record, book, document, account, or paper that is produced in accordance with this Act and retain it in his or her possession until the completion of all proceedings in connection with which it is produced.

(b) The Secretary may, after 10 days notice by certified mail with return receipt requested to the licensee at the address of record or to the last known address of any other person stating the contemplated action and in general the grounds therefor, fine such licensee an amount not exceeding $10,000 per violation or revoke, suspend, refuse to renew, place on probation, or reprimand any license issued under this Act if he or she finds that:

(1) the licensee has failed to comply with any provision of this Act or any order, decision, finding, rule, regulation, or direction of the Secretary lawfully made pursuant to the authority of this Act; or

(2) any fact or condition exists which, if it had existed at the time of the original application for the license, clearly would have warranted the Secretary in refusing to issue the license.

(c) The Secretary may fine, revoke, suspend, refuse to renew, place on probation, reprimand, or take any other disciplinary action as to the particular license with respect to which grounds for the fine, revocation, suspension, refuse to renew, probation, or reprimand, or other disciplinary action occur or exist, but if the Secretary finds that grounds for revocation are of general application to all offices or to more than one office of the licensee, the Secretary shall fine, revoke, suspend, refuse to renew, place on probation, reprimand, or otherwise discipline every license to which such grounds apply.

(d) In every case in which a license is revoked, suspended, placed on probation, reprimanded, or otherwise disciplined, the Secretary shall serve the licensee with notice of his or her action, including a statement of the reasons for his or her actions, either personally or by certified mail, return receipt requested. Service by certified mail shall be deemed completed when the notice is deposited in the United States mail and sent to the address of record.

(e) An order assessing a fine, an order revoking, suspending, placing on probation, or reprimanding a license or, an order denying renewal of a license shall take effect upon service of the order unless the licensee requests, in writing, within 20 days after the date of service, a hearing. In the event a hearing is requested, an order issued under this Section shall be stayed until a final administrative order is entered.

(f) If the licensee requests a hearing, then the Secretary shall schedule a hearing within 30 days after the request for a hearing unless otherwise agreed to by the parties. The Secretary shall have the authority to appoint an attorney duly licensed to practice law in the State of Illinois to serve as the hearing officer in any disciplinary action with regard to a license. The hearing officer shall have full authority to conduct the hearing.

(g) The hearing shall be held at the time and place designated by the Secretary.

(h) The Secretary shall have the authority to prescribe rules for the administration of this Section.

(i) The cost for the administrative hearing shall be set by rule.

(j) Fines imposed and any costs assessed shall be paid within 60 days.

Section 25-30. Consent order. At any point in any investigation or disciplinary proceeding provided for in this Act, both parties may agree to a negotiated consent order. The consent order shall be final upon signature of the Secretary.

Section 25-35. Record of proceedings; transcript. The Department, at its expense, shall preserve a record of all proceedings at the formal hearing of any case. Any notice, all documents in the nature of pleadings, written motions filed in the proceedings, the transcripts of testimony, and orders of the Department shall be in the record of the proceeding.

Section 25-40. Subpoenas; depositions; oaths.

(a) The Department has the power to subpoena documents, books, records, or other materials and to bring before it any individual and to take testimony either orally or by deposition, or both, with the same fees and mileage and in the same manner as prescribed in civil cases in the courts of this State.

(b) The Secretary and the designated hearing officer have the power to administer oaths to witnesses at any hearing that the Department is authorized to conduct and any other oaths authorized in any Act administered by the Department.

(c) Every individual having taken an oath or affirmation in any proceeding or matter wherein an oath is required by this Act, who shall swear willfully, corruptly, and falsely in a matter material to the issue or point in question, or shall suborn any other individual to swear as aforesaid, shall be guilty of perjury or subornation of perjury, as the case may be and shall be punished as provided by State law relative to perjury and subornation of perjury.

Section 25-45. Compelling testimony. Any circuit court, upon application of the Department or designated hearing officer may enter an order requiring the attendance of witnesses and their testimony, and the production of documents, papers, files, books, and records in connection with any hearing or investigation. The court may compel obedience to its order by proceedings for contempt.

Section 25-50. Findings and recommendations.

(a) At the conclusion of the hearing, the hearing officer shall present to the Secretary a written report of its findings of fact, conclusions of law, and recommendations. The report shall contain a finding whether the accused person violated this Act or its rules or failed to comply with the conditions required in this Act or its rules. The hearing officer shall specify the nature of any violations or failure to comply and shall make his or her recommendations to the Secretary. In making recommendations for any disciplinary actions, the hearing officer may take into consideration all facts and circumstances bearing upon the reasonableness of the conduct of the accused and the potential for future harm to the public, including, but not limited to, previous discipline of the accused by the Department, intent, degree of harm to the public and likelihood of harm in the future, any restitution made by the accused, and whether the incident or incidents contained in the complaint appear to be isolated or represent a continuing pattern of conduct. In making its recommendations for discipline, the hearing officer shall endeavor to ensure that the severity of the discipline recommended is reasonably related to the severity of the violation.

(b) The report of findings of fact, conclusions of law, and recommendation of the hearing officer shall be the basis for the Department's final order refusing to issue, restore, or renew a license, or otherwise disciplining a licensee. If the Secretary disagrees with the recommendations of the hearing officer, the Secretary may issue an order in contravention of the hearing officer's recommendations. The finding is not admissible in evidence against the person in a criminal prosecution brought for a violation of this Act, but the hearing and finding are not a bar to a criminal prosecution brought for a violation of this Act.

Section 25-55. Rehearing. At the conclusion of the hearing, a copy of the hearing officer's report shall be served upon the applicant, licensee, or unlicensed person by the Department, either personally or as provided in this Act. Within 20 days after service, the applicant or licensee may present to the Department a motion in writing for a rehearing, which shall specify the particular grounds for rehearing. The Department may respond to the motion for rehearing within 20 days after its service on the Department. If no motion for rehearing is filed, then upon the expiration of the time specified for filing such a motion, or if a motion for rehearing is denied, then upon denial, the Secretary may enter a final order in accordance with recommendations of the hearing officer except as provided in Section 25-60 of this Act. If the applicant, licensee, or unlicensed person orders from the reporting service and pays for a transcript of the record within the time for filing a motion for rehearing, the 20-day period within which a motion may be filed shall commence upon the delivery of the transcript to the applicant or licensee.

Section 25-60. Secretary; rehearing. Whenever the Secretary believes that substantial justice has not been done in the revocation, suspension, or refusal to issue, restore, or renew a license, or other discipline of an applicant or licensee, he or she may order a rehearing by the same or other hearing officers.

Section 25-65. Order or certified copy; prima facie proof. An order or certified copy thereof, over the seal of the Department and purporting to be signed by the Secretary, is prima facie proof that:

(1) the signature is the genuine signature of the Secretary;

(2) the Secretary is duly appointed and qualified; and

(3) the hearing officer is qualified to act.

Section 25-70. Receivership. In the event a cemetery authority license is suspended or revoked or where an unlicensed person has conducted activities requiring cemetery authority licensure under this Act, the Department, through the Attorney General, may petition the circuit courts of this State for appointment of a receiver to administer the care funds of such licensee or unlicensed person or to operate the cemetery.

(a) The court shall appoint a receiver if the court determines that a receivership is necessary or advisable:

(1) to ensure the orderly and proper conduct of a licensee's professional business and affairs during or in the aftermath of the administrative proceeding to revoke or suspend the cemetery authority's license;

(2) for the protection of the public's interest and rights in the business, premises, or activities of the person sought to be placed in receivership;

(3) upon a showing of actual or constructive abandonment of premises or business licensed or which was not but should have been licensed under this Act;

(4) upon a showing of serious and repeated violations of this Act demonstrating an inability or unwillingness of a licensee to comply with the requirements of this Act;

(5) to prevent loss, wasting, dissipation, theft, or conversion of assets that should be marshaled and held available for the honoring of obligations under this Act; or

(6) upon proof of other grounds that the court deems good and sufficient for instituting receivership action concerning the respondent sought to be placed in receivership.

(b) A receivership under this Section may be temporary, or for the winding up and dissolution of the business, as the Department may request and the court determines to be necessary or advisable in the circumstances. Venue of receivership proceedings may be, at the Department's election, in Cook County or the county where the subject of the receivership is located. The appointed receiver shall be the Department or such person as the Department may nominate and the court shall approve.

(c) The Department may adopt rules for the implementation of this Section.

Section 25-75. Abandoned or neglected cemeteries; clean-up. The Department of Natural Resources may develop and administer a program for the purpose of cleaning up abandoned or neglected cemeteries located in Illinois. Administration of this program may include the Department of Natural Resources' issuance of grants for that purpose to units of local government, school districts, and not-for-profit associations as determined by rule. If an abandoned or neglected cemetery has been dedicated as an Illinois nature preserve under the Illinois Natural Areas Preservation Act, any action to cause the clean-up of the cemetery under the provisions of this Section shall be consistent with the rules and master plan governing the dedicated nature preserve.

Section 25-80. Surrender of license. Upon the revocation or suspension of a license under this Act, the licensee shall immediately surrender his or her license to the Department. If the licensee fails to do so, the Department has the right to seize the license.

Section 25-85. Inactive status.

(a) Any licensed manager or customer service employee or registered cemetery employee who notifies the Department in writing on forms prescribed by the Department as determined by rule, may elect to place his or her license on an inactive status and shall, subject to rules of the Department, be excused from payment of renewal fees until he or she notifies the Department in writing of his or her desire to resume active status. Any licensed manager or registered cemetery employee requesting restoration from inactive status shall pay the current renewal fee and meet requirements as provided by rule. Any licensee whose license is in inactive status shall not practice in the State of Illinois.

(b) A cemetery authority license may only go on inactive status by following the provisions for dissolution set forth in Section 10-50 or transfer in Section 10-45.

Section 25-90. Restoration of license from discipline. At any time after the successful completion of a term of indefinite probation, suspension, or revocation of a license, the Department may restore the license to the licensee, unless after an investigation and a hearing the Secretary determines that restoration is not in the public interest.

Section 25-95. Administrative review; venue.

(a) All final administrative decisions of the Department are subject to judicial review under the Administrative Review Law and its rules. The term "administrative decision" is defined as in Section 3-101 of the Code of Civil Procedure.

(b) Proceedings for judicial review shall be commenced in the circuit court of the county in which the party applying for review resides, but if the party is not a resident of Illinois, the venue shall be in Sangamon County.

Section 25-100. Certifications of record; costs. The Department shall not be required to certify any record to the court, to file an answer in court, or to otherwise appear in any court in a judicial review proceeding unless and until the Department has received from the plaintiff payment of the costs of furnishing and certifying the record, which costs shall be determined by the Department. Failure on the part of the plaintiff to file the receipt in court is grounds for dismissal of the action.

Section 25-105. Violations. Any person who is found to have violated any provision of this Act or any applicant for licensure who files with the Department the fingerprints of an individual other than himself or herself is guilty of a Class A misdemeanor. Upon conviction of a second or subsequent offense the violator shall be guilty of a Class 4 felony. However, whoever intentionally fails to deposit the required amounts into a trust provided for in this Act or intentionally and improperly withdraws or uses trust funds for his or her own benefit shall be guilty of a Class 4 felony and each day such provisions are violated shall constitute a separate offense.

Section 25-110. Civil action and civil penalties. In addition to the other penalties and remedies provided in this Act, the Department may bring a civil action in the county in which the cemetery is located against a licensee or any other person to enjoin any violation or threatened violation of this Act. In addition to any other penalty provided by law, any person who violates this Act shall forfeit and pay a civil penalty to the Department in an amount not to exceed $10,000 for each violation as determined by the Department. The civil penalty shall be assessed by the Department in accordance with the provisions of this Act. Any civil penalty shall be paid within 60 days after the effective date of the order imposing the civil penalty. The order shall constitute a judgment and may be filed and execution had thereon in the same manner as any judgment from any court of record. All moneys collected under this Section shall be deposited into the Cemetery Oversight Licensing and Disciplinary Fund.

Section 25-115. Illinois Administrative Procedure Act; application. The Illinois Administrative Procedure Act is expressly adopted and incorporated in this Act as if all of the provisions of that Act were included in this Act, except that the provision of paragraph (d) of Section 10-65 of the Illinois Administrative Procedure Act, which provides that at hearings the licensee has the right to show compliance with all lawful requirements for retention or continuation or renewal of the license, is specifically excluded. For the purpose of this Act, the notice required under Section 10-25 of the Illinois Administrative Procedure Act is considered sufficient when mailed to the address of record.

Section 25-120. Whistleblower protection.

(a) "Retaliatory action" means the reprimand, discharge, suspension, demotion, denial of promotion or transfer, or change in the terms and conditions of employment of any cemetery manager or registered cemetery employee that is taken in retaliation for a cemetery manager's or registered cemetery employee's involvement in protected activity, as set forth in this Section.

(b) A cemetery authority shall not take any retaliatory action against a cemetery manager or registered cemetery employee because the cemetery manager or registered cemetery employee does any of the following:

(1) Discloses or threatens to disclose to a supervisor or to a public body an activity, policy, or practice of a cemetery manager or the cemetery authority that the cemetery manager or cemetery employee reasonably believes is in violation of a law, rule, or regulation.

(2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of a law, rule, or regulation by a cemetery manager or cemetery authority.

(3) Assists or participates in a proceeding to enforce the provisions of this Act.

(c) A violation of this Section may be established only upon a finding that (i) the cemetery manager or registered cemetery employee engaged in conduct described in subsection (b) of this Section and (ii) that this conduct was a contributing factor in the retaliatory action alleged by the cemetery manager or registered cemetery employee. It is not a violation, however, if it is demonstrated by clear and convincing evidence that the cemetery manager or cemetery authority would have taken the same unfavorable personnel action in the absence of that conduct.

(d) The cemetery manager or registered cemetery employee may be awarded all remedies necessary to make the cemetery manager or registered cemetery employee whole and to prevent future violations of this Section. Remedies imposed by the court may include, but are not limited to, all of the following:

(1) reinstatement of the employee to either the same position held before the retaliatory action or to an equivalent position;

(2) two times the amount of back pay;

(3) interest on the back pay;

(4) the reinstatement of full fringe benefits and seniority rights; and

(5) the payment of reasonable costs and attorneys' fees.

(e) Nothing in this Section shall be deemed to diminish the rights, privileges, or remedies of a cemetery manager or registered cemetery employee under any other federal or State law, rule, or regulation or under any employment contract.

Section 25-125. Cemetery Oversight Board. The Cemetery Oversight Board is created and shall consist of the Secretary, who shall serve as its chairperson, and 6 members appointed by the Secretary. Appointments shall be made within 90 days after the effective date of this Act. Two members shall represent the segment of the cemetery industry that does not maintain a partial exemption or full exemption, one member shall represent the segment of the cemetery industry that maintains a partial exemption, 2 members shall be consumers as defined in this Act, and one member shall represent the general public. No member shall be a licensed professional from a non-cemetery segment of the death care industry. Board members shall serve 5-year terms and until their successors are appointed and qualified. The membership of the Board should reasonably reflect representation from the geographic areas in this State. No member shall be reappointed to the Board for a term that would cause his or her continuous service on the Board to be longer than 10 successive years. Appointments to fill vacancies shall be made in the same manner as original appointments, for the unexpired portion of the vacated term. Four members of the Board shall constitute a quorum. A quorum is required for Board decisions. The Secretary may remove any member of the Board for misconduct, incompetence, neglect of duty, or for reasons prescribed by law for removal of State officials. The Secretary may remove a member of the Board who does not attend 2 consecutive meetings. The Department may, at any time, seek the expert advice and knowledge of the Board on any matter relating to the administration or enforcement of this Act. The Secretary shall consider the recommendations of the Board in the development of proposed rules under this Act and for establishing guidelines and examinations as may be required under this Act. Notice of any proposed rulemaking under this Act shall be transmitted to the Board and the Department shall review the response of the Board and any recommendations made therein.

Article 35.

Consumer Bill of Rights

Section 35-5. Penalties. Cemetery authorities shall respect the rights of consumers of cemetery products and services as put forth in this Article. Failure to abide by the cemetery duties listed in this Article or to comply with a request by a consumer based on a consumer's privileges under this Article may activate the mediation, citation, or disciplinary processes in Article 25 of this Act.

Section 35-10. Consumer privileges.

(a) The record required under this Section shall be open to public inspection consistent with State and federal law. The cemetery authority shall make available, consistent with State and federal law, a true copy of the record upon written request and payment of reasonable copy costs. At the time of the interment, entombment, or inurnment, the cemetery authority shall provide the record of the deceased's name and date of burial to the person who would have authority to dispose of the decedent's remains under the Disposition of Remains Act.

(b) Consumers have the right to purchase merchandise or services directly from the cemetery authority when available or through a third-party vendor of the consumer's choice without incurring a penalty or additional charge by the cemetery authority; provided, however, that consumers do not have the right to purchase types of merchandise that would violate applicable law or the cemetery authority's rules and regulations

(c) Consumers have the right to complain to the cemetery authority or to the Department regarding cemetery-related products and services as well as issues with customer service, maintenance, or other cemetery activities. Complaints may be brought by a consumer or the consumer's agent appointed for that purpose.

Section 35-15. Cemetery duties.

(a) Prices for all cemetery-related products offered for sale by the cemetery authority must be disclosed to the consumer in writing on a standardized price list. Memorialization pricing may be disclosed in price ranges. The price list shall include the effective dates of the prices. The price list shall include not only the range of interment, inurnment, and entombment rights, and the cost of extending the term of any term burial, but also any related merchandise or services offered by the cemetery authority. Charges for installation of markers, monuments, and vaults in cemeteries must be the same without regard to where the item is purchased.

(b) A contract for the interment, inurnment, or entombment of human remains must be signed by both parties: the consumer and the cemetery authority or its representative. Before a contract is signed, the prices for the purchased services and merchandise must be disclosed on the contract and in plain language. If a contract is for a term burial, the term must be in bold print and discussed with the consumer. Any contract for the sale of a burial plot, when designated, must disclose the exact location of the burial plot based on the survey of the cemetery plat on file with the Department.

(c) A cemetery authority that has the legal right to extend a term burial shall, prior to disinterment, provide the family or other authorized agent under the Disposition of Remains Act the opportunity to extend the term of a term burial for the cost as stated on the cemetery authority's current price list. Regardless of whether the family or other authorized agent chooses to extend the term burial, the cemetery authority shall, prior to disinterment, provide notice to the family or other authorized agent under the Disposition of Remains Act of the cemetery authority's intention to disinter the remains and to inter different human remains in that space.

(d) If any rules or regulations, including the operational or maintenance requirements, of a cemetery change after the date a contract is signed for the purchase of cemetery-related or funeral-related products or services, the cemetery may not require the consumer, purchaser, or such individual's relative or representative to purchase any merchandise or service not included in the original contract or in the rules and regulations in existence when the contract was entered unless the purchase is reasonable and not overly burdensome on the consumer or required to make the cemetery authority compliant with applicable law.

(e) No cemetery authority or its agent may engage in deceptive or unfair practices. The cemetery authority and its agents may not misrepresent legal or cemetery requirements.

(f) The cemetery authority shall notify the consumer of the existence of green burial and crematory disposition options if the cemetery authority offers green disposition services or products. The Department may promulgate rules regarding green burial certification, green cremation products and methods, and consumer education.

(g) The contractual requirements contained in this Section only apply to contracts executed after the effective date of this Act.

Article 75.

Administrative Provisions

Section 75-5. Conflict of interest. No investigator may hold an active license issued pursuant to this Act, nor may an investigator have a financial interest in a business licensed under this Act. Any individual licensed under this Act who is employed by the Department shall surrender his or her license to the Department for the duration of that employment. The licensee shall be exempt from all renewal fees while employed.

Section 75-15. Civil Administrative Code. The Department shall exercise the powers and duties prescribed by the Civil Administrative Code of Illinois and shall exercise all other powers and duties set forth in this Act.

Section 75-20. Rules. The Department may promulgate rules for the administration and enforcement of this Act. The rules shall include standards for licensure, professional conduct, and discipline.

Section 75-25. Home rule. The regulation and licensing as provided for in this Act are exclusive powers and functions of the State. A home rule unit may not regulate or license cemetery authorities, cemetery managers, customer service employees, registered cemetery employees, or any activities relating to the operation of a cemetery. This Section is a denial and limitation of home rule powers and functions under subsection (h) of Section 6 of Article VII of the Illinois Constitution.

Section 75-35. Roster. The Department shall, upon request and payment of the required fee, provide a list of the names and business addresses of all licensees under this Act.

Section 75-45. Fees. The Department shall by rule provide for fees for the administration and enforcement of this Act, and those fees are nonrefundable. All of the fees and fines collected under this Act shall be deposited into the Cemetery Oversight Licensing and Disciplinary Fund and be appropriated to the Department for the ordinary and contingent expenses of the Department in the administration and enforcement of this Act.

Section 75-50. Burial permits. Notwithstanding any law to the contrary, a cemetery authority shall ensure that every burial permit applicable to that cemetery authority contains the decedent's permanent parcel identification number or other information as provided by rule regarding the location of the interment, entombment, or inurnment of the deceased that would enable the Department to determine the precise location of the decedent.

Section 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 July 1, 2011. 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) Within 120 days after the effective date of this Act, the Auditor General shall tender to the Governor, the General Assembly, and the Department a report based on an audit of the Office of the Comptroller and any other State agency. The audit report shall contain detailed findings of the following:

(1) the financial status and solvency of each trust account overseen by the Comptroller that is related to the care and disposition of human remains;

(2) the annual fiscal appropriation necessary to administer this Act and all other acts pertaining to the care and disposition of human remains;

(3) recommendations for adequate staffing levels and types of staff, including an organizational chart and job descriptions;

(4) recommendations for effective implementation, administration, and enforcement of this Act and all other acts pertaining to the care and disposition of human remains;

(5) recommendations as to meeting the needs of cemetery authorities that bury persons of limited means and the amount of charges to consumers and payments to providers that are reasonable under those circumstances;

(6) any other information or recommendations that will assist the Department in carrying out the intent and purpose of this Act;

(7) any other information that the Department requests, provided, however, that the Department shall tender such requests to the Auditor General no later than 30 days after the effective date of this Act.

(c) 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.

(d) 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 registered cemetery employees, all cemetery authorities not maintaining a full exemption or partial exemption shall pay an annual fee of $20 to the Department plus 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 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.

(e) 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.

(f) 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.

(g) 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.

(h) Personnel employed by the Comptroller on June 30, 2011, to perform the duties pertaining to the administration of the Cemetery Care Act and the Crematory Regulation Act, are transferred to the Department on July 1, 2011.

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 July 1, 2011.

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.

Article 90.

Amendatory Provisions and Repeals

Section 90-1. The Regulatory Sunset Act is amended by adding Section 8.31 as follows:

(5 ILCS 80/8.31 new)

Sec. 8.31. Acts repealed on January 1, 2021. The following Acts are repealed on January 1, 2021:

The Crematory Regulation Act.

The Cemetery Oversight Act.

Section 90-5. The Human Skeletal Remains Protection Act is amended by changing Section 1 as follows:

(20 ILCS 3440/1) (from Ch. 127, par. 2661)

Sec. 1. Definitions. For the purposes of this Act:

(a) "Human skeletal remains" include the bones and decomposed fleshy parts of a deceased human body.

(b) "Unregistered graves" are any graves or locations where a human body has been buried or deposited; is over 100 years old; and is not in a cemetery under the authority of the Illinois Department of Financial and Professional Regulation pursuant to the Cemetery Oversight Act registered with the State Comptroller under the Cemetery Care Act.

(c) "Grave artifacts" are any item of human manufacture or use that is associated with the human skeletal remains in an unregistered grave.

(d) "Grave markers" are any tomb, monument, stone, ornament, mound, or other item of human manufacture that is associated with an unregistered grave.

(e) "Person" means any natural individual, firm, trust, estate, partnership, association, joint stock company, joint venture, corporation or a receiver, trustee, guardian or other representatives appointed by order of any court, the Federal and State governments, including State Universities created by statute or any city, town, county or other political subdivision of this State.

(f) "Disturb" includes excavating, removing, exposing, defacing, mutilating, destroying, molesting, or desecrating in any way human skeletal remains, unregistered graves, and grave markers.

(Source: P.A. 86-151.)

Section 90-10. The State Finance Act is amended by adding Sections 5.755 and 5.756 as follows:

(30 ILCS 105/5.755 new)

Sec. 5.755. The Cemetery Oversight Licensing and Disciplinary Fund.

(30 ILCS 105/5.756 new)

Sec. 5.756. The Pre-need Funeral Consumer Protection Fund.

Section 90-15. The Illinois Funeral or Burial Funds Act is amended by changing Sections 1, 1a-1, 1b, 2, 3, 4, 4a, 5, and 8.1 and by adding Section 1a-2 as follows:

(225 ILCS 45/1) (from Ch. 111 1/2, par. 73.101)

Sec. 1. Payment under pre-need contract. Except as otherwise provided in this Section, all sales proceeds paid to any person, partnership, association or corporation with respect to merchandise or services covered by this Act, upon any agreement or contract, or any series or combination of agreements or contracts, which has for a purpose the furnishing or performance of funeral services, or the furnishing or delivery of any personal property, merchandise, or services of any nature in connection with the final disposition of a dead human body, including, but not limited to, outer burial containers, urns, combination casket-vault units, caskets and clothing, for future use at a time determinable by the death of the person or persons whose body or bodies are to be so disposed of, shall be held to be trust funds, and shall be placed in trust in accordance with Sections 1b and 2, or shall be used to purchase life insurance or annuities in accordance with Section 2a. The person, partnership, association or corporation receiving said payments under a pre-need contract is hereby declared to be a trustee thereof until deposits of funds are made in accordance with Section 1b or 2a of this Act. Persons holding less than $500,000 in trust funds may continue to act as the trustee after the funds are deposited in accordance with subsection (d) of Section 1b.

Nothing in this Act shall be construed to prohibit the inclusion of outer burial containers in sales contracts under the Illinois Pre-Need Cemetery Sales Act.

(Source: P.A. 91-7, eff. 1-1-2000.)

(225 ILCS 45/1a-1)

Sec. 1a-1. Pre-need contracts.

(a) It shall be unlawful for any seller doing business within this State to accept sales proceeds from a purchaser, either directly or indirectly by any means, unless the seller enters into a pre-need contract with the purchaser which meets the following requirements:

(1) It states the name and address of the principal office of the seller and the parent company of the seller, if any.

(1.5) If funded by a trust, it clearly identifies the trustee's name and address and the primary state or federal regulator of the trustee as a corporate fiduciary.

(1.7) If funded by life insurance, it clearly identifies the life insurance provider and the primary regulator of the life insurance provider.

(2) It clearly identifies the provider's name and address, the purchaser, and the beneficiary, if other than the purchaser.

(2.5) If the provider has branch locations, the contract gives the purchaser the opportunity to identify the branch at which the funeral will be provided.

(3) It contains a complete description of the funeral merchandise and services to be provided and the price of the merchandise and services, and it clearly discloses whether the price of the merchandise and services is guaranteed or not guaranteed as to price.

(A) Each guaranteed price contract shall contain the following statement in 12 point bold type:

THIS CONTRACT GUARANTEES THE BENEFICIARY THE SPECIFIC GOODS AND SERVICES CONTRACTED FOR. NO ADDITIONAL CHARGES MAY BE REQUIRED. FOR DESIGNATED GOODS AND SERVICES, ADDITIONAL CHARGES MAY BE INCURRED FOR UNEXPECTED EXPENSES INCLUDING, BUT NOT LIMITED TO, CASH ADVANCES, SHIPPING OF REMAINS FROM A DISTANT PLACE, OR DESIGNATED HONORARIA ORDERED OR DIRECTED BY SURVIVORS.

(B) Except as provided in subparagraph (C) of this paragraph (3), each non-guaranteed price contract shall contain the following statement in 12 point bold type:

THIS CONTRACT DOES NOT GUARANTEE THE PRICE THE BENEFICIARY WILL PAY FOR ANY SPECIFIC GOODS OR SERVICES. ANY FUNDS PAID UNDER THIS CONTRACT ARE ONLY A DEPOSIT TO BE APPLIED TOWARD THE FINAL PRICE OF THE GOODS OR SERVICES CONTRACTED FOR. ADDITIONAL CHARGES MAY BE REQUIRED.

(C) If a non-guaranteed price contract may subsequently become guaranteed, the contract shall clearly disclose the nature of the guarantee and the time, occurrence, or event upon which the contract shall become a guaranteed price contract.

(4) It provides that if the particular supplies and services specified in the pre-need contract are unavailable at the time of delivery, the provider shall be required to furnish supplies and services similar in style and at least equal in quality of material and workmanship.

(5) It discloses any penalties or restrictions, including but not limited to geographic restrictions or the inability of the provider to perform, on the delivery of merchandise, services, or pre-need contract guarantees.

(6) Regardless of the method of funding the pre-need contract, the following must be disclosed:

(A) Whether the pre-need contract is to be funded by a trust, life insurance, or an annuity;

(B) The nature of the relationship among the person funding the pre-need contract, the provider, and the seller; and

(C) The impact on the pre-need contract of (i) any changes in the funding arrangement including but not limited to changes in the assignment, beneficiary designation, or use of the funds; (ii) any specific penalties to be incurred by the contract purchaser as a result of failure to make payments; (iii) penalties to be incurred or moneys or refunds to be received as a result of cancellations; and (iv) all relevant information concerning what occurs and whether any entitlements or obligations arise if there is a difference between the proceeds of the particular funding arrangement and the amount actually needed to pay for the funeral at-need.

(D) The method of changing the provider.

(b) All pre-need contracts are subject to the Federal Trade Commission Rule concerning the Cooling-Off Period for Door-to-Door Sales (16 CFR Part 429).

(c) No pre-need contract shall be sold in this State unless there is a provider for the services and personal property being sold. If the seller is not a provider, then the seller must have a binding agreement with a provider, and the identity of the provider and the nature of the agreement between the seller and the provider shall be disclosed in the pre-need contract at the time of the sale and before the receipt of any sales proceeds. The failure to disclose the identity of the provider, the nature of the agreement between the seller and the provider, or any changes thereto to the purchaser and beneficiary, or the failure to make the disclosures required in subdivision (a)(1), constitutes an intentional violation of this Act.

(d) All pre-need contracts must be in writing in at least 11 point type, numbered, and executed in duplicate. A signed copy of the pre-need contract must be provided to the purchaser at the time of entry into the pre-need contract. The Comptroller may by rule develop a model pre-need contract form that which meets the requirements of this Act.

(e) The State Comptroller shall by rule develop a booklet for consumers in plain English describing the scope, application, and consumer protections of this Act. After the adoption of these rules, no pre-need contract shall be sold in this State unless (i) the seller distributes to the purchaser prior to the sale a booklet promulgated or approved for use by the State Comptroller; (ii) the seller explains to the purchaser the terms of the pre-need contract prior to the purchaser signing; and (iii) the purchaser initials a statement in the contract confirming that the seller has explained the terms of the contract prior to the purchaser signing.

(f) All sales proceeds received in connection with a pre-need contract shall be deposited into a trust account as provided in Section 1b and Section 2 of this Act, or shall be used to purchase a life insurance policy or tax-deferred annuity as provided in Section 2a of this Act.

(g) No pre-need contract shall be sold in this State unless it is accompanied by a funding mechanism permitted under this Act, and unless the seller is licensed by the Comptroller as provided in Section 3 of this Act. Nothing in this Act is intended to relieve sellers of pre-need contracts from being licensed under any other Act required for their profession or business, and being subject to the rules promulgated to regulate their profession or business, including rules on solicitation and advertisement.

(Source: P.A. 92-419, eff. 1-1-02.)

(225 ILCS 45/1a-2 new)

Sec. 1a-2. Pre-Need Funeral Consumer Protection Fund.

(a) Each licensee shall pay a fee of $5 out of the funds received for each pre-need contract sold and shall forward this sum to the Comptroller semi-annually within 30 days of the end of June and December. Fees collected under this Section shall be deposited into the Pre-need Funeral Consumer Protection Fund, which is hereby created as a special fund in the State treasury. Moneys in the Fund may be expended for the purposes specified in subsection (b) and to purchase insurance to cover losses guaranteed by the Fund.

(b) In the event that the purchaser is unable to receive the benefits of his or her pre-need contract or to receive the funds due by reason of cancellation of the contract, the purchaser may apply to the Comptroller on a form prescribed by the Comptroller for restitution from the Pre-need Funeral Consumer Protection Fund. Upon a finding by the Comptroller that the benefits or return of payment is not available to the purchaser, the Comptroller may cause restitution to be paid to the purchaser from the Pre-need Funeral Consumer Protection Fund.

(c) In all such cases where a purchaser is paid restitution from the Fund, the Comptroller shall be subrogated to that purchaser's claims against the licensee for all amounts paid from the Fund. If the licensee's liability for default is subsequently proven, any award made by a court of law shall be made payable to the Pre-need Funeral Consumer Protection Fund up to the amount paid to the purchaser from the Fund and the Comptroller shall request that the Attorney General engage in all reasonable post-judgment collection steps to collect such claims from the judgment debtor and reimburse the Fund.

(d) The Fund shall not be applied toward any restitution for losses in any lawsuit initiated by the Attorney General or Comptroller or with respect to any claim made on a pre-need contract that occurred prior to the effective date of this amendatory Act of the 96th General Assembly.

(e) Notwithstanding any other provision of this Section, the payment of restitution from the Fund shall be a matter of grace and not of right and no purchaser shall have any vested right in the Fund as a beneficiary or otherwise.

(f) The Fund may not be allocated for any purpose other than that specified in this Act.

(225 ILCS 45/1b) (from Ch. 111 1/2, par. 73.101b)

Sec. 1b. (a) Whenever a seller receives sales proceeds under a pre-need contract that the purchaser elects to fund by a trust agreement, the seller may retain an initial amount equal to 5% of the purchase price of the services, personal property or merchandise, or 15% of the purchase price of outer burial containers. Thereafter, a seller shall deposit into trust the amounts specified in this Section so that no later than upon the final payment on the contract, the trust shall equal or exceed 95% of the purchase price of all services, personal property, or merchandise, except for outer burial containers, and 85% of the purchase price of outer burial containers.

(b) In the event that sales proceeds to be deposited into a trust are received pursuant to a cash sale or an a retail installment contract, the seller may retain the initial percentage authorized by subsection (a) of this Section and any finance charge paid by the purchaser, and thereafter shall deposit into the trust the entire balance of sales proceeds received.

(c) In the event that the deposits into a trust required by this Section do not, after final payment by the consumer, result in the trust containing at least 95% of the purchase sales price of all services, personal property or merchandise, except for outer burial containers and 85% of the purchase price of outer burial containers, the seller shall make an additional deposit into the trust in an amount sufficient to meet these percentages.

(d) The trustee may not be the seller or provider of funeral services or merchandise unless the seller holds sales of less than $500,000 in trust, and deposits funds for which the seller is acting as trustee in (1) withdrawable accounts of State chartered or federally chartered savings and loan associations insured by the Federal Deposit Insurance Corporation; (2) deposits or certificates of deposits in State or federal banks insured by the Federal Deposit Insurance Corporation; or (3) share accounts or share certificate accounts in a State or federal credit union, the accounts of which are insured as required by the Illinois Credit Union Act or the Federal Credit Union Act, as applicable.

(Source: P.A. 88-477.)

(225 ILCS 45/2) (from Ch. 111 1/2, par. 73.102)

Sec. 2. (a) If a purchaser selects a trust arrangement to fund the pre-need contract, all trust deposits as determined by Section 1b shall be made within 30 days of receipt.

(b) A trust established under this Act must be maintained with a corporate fiduciary as defined in Section 1-5.05 of the Corporate Fiduciary Act. :

(1) in a trust account established in a bank, savings and loan association, savings bank, or credit union authorized to do business in Illinois in which accounts are insured by an agency of the federal government; or

(2) in a trust company authorized to do business in Illinois.

(c) Trust agreements and amendments to the trust agreements used to fund a pre-need contract shall be filed with the Comptroller.

(d) (Blank).

(e) A seller or provider shall furnish to the trustee and depositary the name of each payor and the amount of payment on each such account for which deposit is being so made. Nothing shall prevent the trustee or a seller or provider acting as a trustee in accordance with this Act from commingling the deposits in any such trust fund for purposes of its management and the investment of its funds as provided in the Common Trust Fund Act. In addition, multiple trust funds maintained under this Act may be commingled or commingled with other funeral or burial related trust funds if all record keeping requirements imposed by law are met.

(f) (Blank). Trust funds may be maintained in a financial institution described in subsection (b) which is located in a state adjoining this State where: (1) the financial institution is located within 50 miles of the border of this State, (2) its accounts are federally insured, and (3) it has registered with the Illinois Secretary of State for purposes of service of process.

(g) Upon no less than 30 days prior notice to the Comptroller, the seller may change the trustee of the fund. Failure to provide the Comptroller with timely prior notice is an intentional violation of this Act.

(h) A trustee shall at least annually furnish to each purchaser a statement containing: (1) the receipts, disbursements, and inventory of the trust, including an explanation of any fees or expenses charged by the trustee under Section 5 of this Act or otherwise, (2) an explanation of the purchaser's right to a refund, if any, under this Act, and (3) identifying the primary regulator of the trust as a corporate fiduciary under state or federal law.

(Source: P.A. 92-419, eff. 1-1-02.)

(225 ILCS 45/3) (from Ch. 111 1/2, par. 73.103)

Sec. 3. Licensing.

(a) No person, firm, partnership, association or corporation may act as seller without first securing from the State Comptroller a license to so act. Application for such license shall be in writing, signed by the applicant and duly verified on forms furnished by the Comptroller. Each application shall contain at least the following:

(1) The full name and address (both residence and place of business) of the applicant, and every member, officer and director thereof if the applicant is a firm, partnership, association, or corporation, and of every shareholder holding more than 10% of the corporate stock if the applicant is a corporation.;

(2) A statement of the applicant's assets and liabilities;

(3) The name and address of the applicant's principal place of business at which the books, accounts, and records shall be available for examination by the Comptroller as required by this Act;

(4) The names and addresses of the applicant's branch locations at which pre-need sales shall be conducted and which shall operate under the same license number as the applicant's principal place of business;

(5) For each individual listed under item (1) above, a detailed statement of the individual's business experience for the 10 years immediately preceding the application; any present or prior connection between the individual and any other person engaged in pre-need sales; any felony or misdemeanor convictions for which fraud was an essential element; any charges or complaints lodged against the individual for which fraud was an essential element and which resulted in civil or criminal litigation; any failure of the individual to satisfy an enforceable judgment entered against him based upon fraud; and any other information requested by the Comptroller relating to past business practices of the individual. Since the information required by this item (5) may be confidential or contain proprietary information, this information shall not be available to other licensees or the general public and shall be used only for the lawful purposes of the Comptroller in enforcing this Act;

(6) The name of the trustee and, if applicable, the names of the advisors to the trustee, including a copy of the proposed trust agreement under which the trust funds are to be held as required by this Act; and

(7) Such other information as the Comptroller may reasonably require in order to determine the qualification of the applicant to be licensed under this Act.

(b) Applications for license shall be accompanied by a fidelity bond executed by the applicant and a surety company authorized to do business in this State or an irrevocable, unconditional letter of credit issued by a bank, credit union, or trust company authorized to do business in the State of Illinois, as approved by the State Comptroller, in such amount not exceeding $10,000 as the Comptroller may require. If, after notice and an opportunity to be heard, it has been determined that a licensee has violated this Act within the past 5 calendar years, or if a licensee does not retain a corporate fiduciary, as defined in the Corporate Fiduciary Act, to manage the funds in trust pursuant to this Act, the Comptroller may require an additional bond or letter of credit from the licensee from time to time in amounts equal to one-tenth of such trust funds, which bond or letter of credit shall run to the Comptroller for the use and benefit of the beneficiaries of such trust funds.

The licensee shall keep accurate accounts, books and records in this State, at the principal place of business identified in the licensee's license application or as otherwise approved by the Comptroller in writing, of all transactions, copies of all pre-need contracts, trust agreements, and other agreements, dates and amounts of payments made and accepted thereon, the names and addresses of the contracting parties, the persons for whose benefit such funds are accepted, and the names of the depositaries of such funds. Each licensee shall maintain the documentation for a period of 3 years after the licensee has fulfilled his obligations under the pre-need contract. Additionally, for a period not to exceed 6 months after the performance of all terms in a pre-need sales contract, the licensee shall maintain copies of the contract at the licensee branch location where the contract was entered or at some other location agreed to by the Comptroller in writing. If an insurance policy or tax-deferred annuity is used to fund the pre-need contract, the licensee under this Act shall keep and maintain accurate accounts, books, and records in this State, at the principal place of business identified in the licensee's application or as otherwise approved by the Comptroller in writing, of all insurance policies and tax-deferred annuities used to fund the pre-need contract, the name and address of insured, annuitant, and initial beneficiary, and the name and address of the insurance company issuing the policy or annuity. If a life insurance policy or tax-deferred annuity is used to fund a pre-need contract, the licensee shall notify the insurance company of the name of each pre-need contract purchaser and the amount of each payment when the pre-need contract, insurance policy or annuity is purchased.

The licensee shall make reports to the Comptroller annually or at such other time as the Comptroller may require, on forms furnished by the Comptroller. The licensee shall file the annual report with the Comptroller within 75 days after the end of the licensee's fiscal year. The Comptroller shall for good cause shown grant an extension for the filing of the annual report upon the written request of the licensee. Such extension shall not exceed 60 days. If a licensee fails to submit an annual report to the Comptroller within the time specified in this Section, the Comptroller shall impose upon the licensee a penalty of $5 for each and every day the licensee remains delinquent in submitting the annual report. The Comptroller may abate all or part of the $5 daily penalty for good cause shown. Every application shall be accompanied by a check or money order in the amount of $25 and every report shall be accompanied by a check or money order in the amount of $10 payable to: Comptroller, State of Illinois.

The licensee shall make all required books and records pertaining to trust funds, insurance policies, or tax-deferred annuities available to the Comptroller for examination. The Comptroller, or a person designated by the Comptroller who is trained to perform such examinations, may at any time investigate the books, records and accounts of the licensee with respect to trust funds, insurance policies, or tax-deferred annuities and for that purpose may require the attendance of and examine under oath all persons whose testimony he may require. The licensee shall pay a fee for such examination in accordance with a schedule established by the Comptroller. The fee shall not exceed the cost of such examination. For pre-need contracts funded by trust arrangements, the cost of an initial examination shall be borne by the licensee if it has $10,000 or more in trust funds, otherwise, by the Comptroller. The charge made by the Comptroller for an examination shall be based upon the total amount of trust funds held by the licensee at the end of the calendar or fiscal year for which the report is required by this Act and shall be in accordance with the following schedule:

Less than $10,000.................................no charge; $10,000 or more but less than $50,000...................$10; $50,000 or more but less than $100,000..................$40; $100,000 or more but less than $250,000.................$80; $250,000 or more........................................$100.

The Comptroller may order additional audits or examinations as he or she may deem necessary or advisable to ensure the safety and stability of the trust funds and to ensure compliance with this Act. These additional audits or examinations shall only be made after good cause is established by the Comptroller in the written order. The grounds for ordering these additional audits or examinations may include, but shall not be limited to:

(1) material and unverified changes or fluctuations in trust balances or insurance or annuity policy amounts;

(2) the licensee changing trustees more than twice in any 12-month period;

(3) any withdrawals or attempted withdrawals from the trusts, insurance policies, or annuity contracts in violation of this Act; or

(4) failure to maintain or produce documentation required by this Act for deposits into trust accounts, trust investment activities, or life insurance or annuity policies.

The Prior to ordering an additional audit or examination, the Comptroller shall request the licensee to respond and comment upon the factors identified by the Comptroller as warranting the subsequent examination or audit. The licensee shall have 30 days to provide a response to the Comptroller. If the Comptroller decides to proceed with the additional examination or audit, the licensee shall bear the full cost of that examination or audit, up to a maximum of $20,000 $7,500. The Comptroller may elect to pay for the examination or audit and receive reimbursement from the licensee. Payment of the costs of the examination or audit by a licensee shall be a condition of receiving, maintaining, or renewing a license under this Act. All moneys received by the Comptroller for examination or audit fees shall be maintained in a separate account to be known as the Comptroller's Administrative Fund. This Fund, subject to appropriation by the General Assembly, may be utilized by the Comptroller for enforcing this Act and other purposes that may be authorized by law.

For pre-need contracts funded by life insurance or a tax-deferred annuity, the cost of an examination shall be borne by the licensee if it has received $10,000 or more in premiums during the preceding calendar year. The fee schedule for such examination shall be established in rules promulgated by the Comptroller. In the event such investigation or other information received by the Comptroller discloses a substantial violation of the requirements of this Act, the Comptroller shall revoke the license of such person upon a hearing as provided in this Act. Such licensee may terminate all further responsibility for compliance with the requirements of this Act by voluntarily surrendering the license to the Comptroller, or in the event of its loss, furnishing the Comptroller with a sworn statement to that effect, which states the licensee's intention to discontinue acceptance of funds received under pre-need contracts. Such license or statement must be accompanied by an affidavit that said licensee has lawfully expended or refunded all funds received under pre-need contracts, and that the licensee will accept no additional sales proceeds. The Comptroller shall immediately cancel or revoke said license.

(Source: P.A. 92-419, eff. 1-1-02.)

(225 ILCS 45/4) (from Ch. 111 1/2, par. 73.104)

Sec. 4. Withdrawal of funds; revocability of contract.

(a) Except as otherwise provided in this Act, monies in a trust established under Section 2 The amount or amounts so deposited into trust, with interest thereon, if any, shall not be withdrawn until after the death of the beneficiary person or persons for whose funeral or burial such funds were paid, unless sooner withdrawn and refunded to the purchaser as provided in this Section repaid to the person who originally paid the money under or in connection with the pre-need contract or to his or her legal representative. The life insurance policies or tax-deferred annuities shall not be surrendered until the death of the beneficiary person or persons for whose funeral or burial the policies or annuities were purchased, unless sooner surrendered and repaid to the owner of the policy purchased under or in connection with the pre-need contract or to his or her legal representative. If, however, the agreement or series of agreements provides for forfeiture and retention of any or all payments as and for liquidated damages as provided in Section 6, then the trustee may withdraw the deposits. In addition, nothing in this Section (i) prohibits the change of depositary by the trustee and the transfer of trust funds from one depositary to another or (ii) prohibits a contract purchaser who is or may become eligible for public assistance under any applicable federal or State law or local ordinance including, but not limited to, eligibility under 24 C.F.R., Part 913 relating to family insurance under federal Housing and Urban Development Policy from irrevocably waiving, in writing, and renouncing the right to cancel a pre-need contract for funeral services in an amount prescribed by rule of the Department of Healthcare and Family Services. No guaranteed price pre-need funeral contract may prohibit a purchaser from making a contract irrevocable to the extent that federal law or regulations require that such a contract be irrevocable for purposes of the purchaser's eligibility for Supplemental Security Income benefits, Medicaid, or another public assistance program, as permitted under federal law.

(b) If for any reason a seller or provider who has engaged in pre-need sales has refused, cannot, or does not comply with the terms of the pre-need contract within a reasonable time after he or she is required to do so, the purchaser or his or her heirs or assigns or duly authorized representative shall have the right to a refund of an amount equal to the sales price paid for undelivered merchandise or services plus any otherwise earned undistributed interest amounts held in trust attributable to the contract, within 30 days of the filing of a sworn affidavit with the trustee setting forth the existence of the contract and the fact of breach. A copy of this affidavit shall be filed with the Comptroller and the seller. In the event a seller is prevented from performing by strike, shortage of materials, civil disorder, natural disaster, or any like occurrence beyond the control of the seller or provider, the seller or provider's time for performance shall be extended by the length of the delay. Nothing in this Section shall relieve the seller or provider from any liability for non-performance of his or her obligations under the pre-need contract.

(c) After final payment on a pre-need contract, any purchaser may, prior to the death of the beneficiary and upon written demand to a seller, demand that the pre-need contract with the seller be terminated. The seller shall, within 30 days, initiate a refund to the purchaser of the entire amount held in trust attributable to undelivered merchandise and unperformed services plus any amounts held in trust attributable to the contract , including otherwise earned undistributed interest earned thereon or the cash surrender value of a life insurance policy or tax-deferred annuity.

(c-5) If, after the death of the beneficiary, no funeral merchandise or services are provided or if the funeral is conducted by another provider person, the seller may keep no more than 10% of the payments made under the pre-need contract or $300, whichever sum is less. The remainder of the trust funds or insurance or annuity proceeds shall be forwarded to the legal heirs of the deceased beneficiary or as determined by probate action.

(d) The placement and retention of all or a portion of a casket, combination casket-vault, urn, or outer burial container comprised of materials which are designed to withstand prolonged storage in the manner set forth in this paragraph without adversely affecting the structural integrity or aesthetic characteristics of such merchandise in a specific burial space in which the person or persons for whose funeral or burial the merchandise was intended has a right of interment, or the placement of the merchandise in a specific mausoleum crypt or lawn crypt in which such person has a right of entombment, or the placement of the merchandise in a specific niche in which such person has a right of inurnment, or delivery to such person and retention by such person until the time of need shall constitute actual delivery to the person who originally paid the money under or in connection with said agreement or series of agreements. Actual delivery shall eliminate, from and after the date of actual delivery, any requirement under this Act to place or retain in trust any funds received for the sale of such merchandise. The delivery, prior to the time of need, of any funeral or burial merchandise in any manner other than authorized by this Section shall not constitute actual delivery and shall not eliminate any requirement under this Act to place or retain in trust any funds received for the sale of such merchandise.

(Source: P.A. 95-331, eff. 8-21-07.)

(225 ILCS 45/4a)

Sec. 4a. Investment of funds.

(a) A trustee has a duty to invest and manage the trust assets pursuant to the Prudent Investor Rule under the Trusts and Trustees Act shall, with respect to the investment of trust funds, exercise the judgment and care under the circumstances then prevailing that persons of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital.

(b) The trust shall be a single-purpose trust fund. In the event of the seller'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 seller or to pay any expenses of any bankruptcy or similar proceeding, but shall be distributed to the purchasers or managed for their benefit by the trustee holding the funds. Except in an action by the Comptroller 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 Comptroller. The changes made by Public this amendatory Act 91-7 of the 91st General Assembly are intended to clarify existing law regarding the inability of licensees to pledge the trust.

(c) Because it is not known at the time of deposit or at the time that income is earned on the trust account to whom the principal and the accumulated earnings will be distributed for the purpose of determining the Illinois income tax due on these trust funds, the principal and any accrued earnings or losses related to each individual account shall be held in suspense until the final determination is made as to whom the account shall be paid. The beneficiary's estate shall not be responsible for any funeral and burial purchases listed in a pre-need contract if the pre-need contract is entered into on a guaranteed price basis.

If a pre-need contract is not a guaranteed price contract, then to the extent the proceeds of a non-guaranteed price pre-need contract cover the funeral and burial expenses for the beneficiary, no claim may be made against the estate of the beneficiary. A claim may be made against the beneficiary's estate if the charges for the funeral services and merchandise at the time of use exceed the amount of the amount in trust plus the percentage of the sale proceeds initially retained by the seller or the face value of the life insurance policy or tax-deferred annuity.

(d) Trust funds shall not be invested by the trustee in life insurance policies or tax-deferred annuities unless the following requirements are met:

(1) The company issuing the life insurance policies or tax-deferred annuities is licensed by the Illinois Department of Insurance and the insurance producer or annuity seller is licensed to do business in the State of Illinois;

(2) Prior to the investment, the purchaser approves, in writing, the investment in life insurance policies or tax-deferred annuities;

(3) Prior to the investment, the purchaser is notified by the seller in writing about the disclosures required for all pre-need contracts under Section 1a-1 of this Act, and the purchase of life insurance or a tax-deferred annuity is subject to the requirements of Section 2a of this Act;

(4) Prior to the investment, the trustee informs the Comptroller that trust funds shall be removed from the trust account to purchase life insurance or a tax-deferred annuity upon the written consent of the purchaser;

(5) The purchaser retains the right to refund provided for in this Act, unless the pre-need contract is sold on an irrevocable basis as provided in Section 4 of this Act; and

(6) Notice must be given in writing that the cash surrender value of a life insurance policy may be less than the amount provided for by the refund provisions of the trust account.

(Source: P.A. 91-7, eff. 6-1-99.)

(225 ILCS 45/5) (from Ch. 111 1/2, par. 73.105)

Sec. 5. This Act shall not be construed to prohibit the trustee and trustee's depositary from being reimbursed and receiving from such funds their reasonable compensation and expenses in the custody and administration of such funds pursuant to the Trusts and Trustees Act provided that the combined expenses and compensation shall not exceed 25% of the earnings of the fund so deposited under each of the agreements or series of agreements calculated on an annual basis and paid at any time during that year.

(Source: P.A. 86-509.)

(225 ILCS 45/8.1)

Sec. 8.1. Sales; liability of purchaser for shortage. In the event of a sale or transfer of all or substantially all of the assets of the licensee, the sale or transfer of the controlling interest of the corporate stock of the licensee if the licensee is a corporation, the sale or transfer of the controlling interest of the partnership if the licensee is a partnership, or the sale of the licensee pursuant to foreclosure proceedings, the purchaser is liable for any shortages existing before or after the sale in the trust funds required to be maintained in a trust pursuant to this Act and shall honor all pre-need contracts and trusts entered into by the licensee. Any shortages existing in the trust funds constitute a prior lien in favor of the trust for the total value of the shortages, and notice of that lien shall be provided in all sales instruments.

In the event of a sale or transfer of all or substantially all of the assets of the licensee, the sale or transfer of the controlling interest of the corporate stock of the licensee if the licensee is a corporation, or the sale or transfer of the controlling interest of the partnership if the licensee is a partnership, the licensee shall, at least 21 days prior to the sale or transfer, notify the Comptroller, in writing, of the pending date of sale or transfer so as to permit the Comptroller to audit the books and records of the licensee. The audit must be commenced within 10 business days of the receipt of the notification and completed within the 21-day notification period unless the Comptroller notifies the licensee during that period that there is a basis for determining a deficiency which will require additional time to finalize. Failure to provide timely notice to the Comptroller under this Section shall be an intentional violation of this Act. The sale or transfer may not be completed by the licensee unless and until:

(i) the Comptroller has completed the audit of the licensee's books and records;

(ii) any delinquency existing in the trust funds has been paid by the licensee, or arrangements satisfactory to the Comptroller have been made by the licensee on the sale or transfer for the payment of any delinquency; and

(iii) the Comptroller issues a license upon application of the new owner, which license must be applied for within 21 30 days of the anticipated date of the sale or transfer, subject to the payment of any delinquencies, if any, as stated in item (ii).

For purposes of this Section, a person, firm, corporation, partnership, or institution that acquires the licensee through a real estate foreclosure shall be subject to the provisions of this Section.

(Source: P.A. 92-419, eff. 1-1-02.)

Section 90-25. The Crematory Regulation Act is amended by changing Sections 5, 10, 11, 11.5, 13, 20, 22, 25, 40, 55, 60, 62, 62.5, 62.10, 62.15, 62.20, 65, 80, and 100 and by adding Sections 7, 85, 87, 88, 89, 90, 91, 92, 93, 94, 95, 105, 115, 120, 125, 130, 140, 150, 160, and 170, and by repealing Section 12 as follows:

(410 ILCS 18/5)

Sec. 5. Definitions. As used in this Act:

"Address of record" means the designated address recorded by the Department in the applicant's or licensee's application file or license file. It is the duty of the applicant or licensee to inform the Department of any change of address within 14 days, and such changes must be made either through the Department's website or by contacting the Department's licensure maintenance unit. The address of record shall be the permanent street address of the crematory.

"Alternative container" means a receptacle, other than a casket, in which human remains are transported to the crematory and placed in the cremation chamber for cremation. An alternative container shall be (i) composed of readily combustible materials suitable for cremation, (ii) able to be closed in order to provide a complete covering for the human remains, (iii) resistant to leakage or spillage, (iv) rigid enough for handling with ease, and (v) able to provide protection for the health, safety, and personal integrity of crematory personnel.

"Authorizing agent" means a person legally entitled to order the cremation and final disposition of specific human remains.

"Body parts" means limbs or other portions of the anatomy that are removed from a person or human remains for medical purposes during treatment, surgery, biopsy, autopsy, or medical research; or human bodies or any portion of bodies that have been donated to science for medical research purposes.

"Burial transit permit" means a permit for disposition of a dead human body as required by Illinois law.

"Casket" means a rigid container that is designed for the encasement of human remains, is usually constructed of wood, metal, or like material and ornamented and lined with fabric, and may or may not be combustible.

"Change of ownership" means a transfer of more than 50% of the stock or assets of a crematory authority.

"Comptroller" means the Comptroller of the State of Illinois.

"Cremated remains" means all human remains recovered after the completion of the cremation, which may possibly include the residue of any foreign matter including casket material, bridgework, or eyeglasses, that was cremated with the human remains.

"Cremation" means the technical process, using heat and flame, that reduces human remains to bone fragments. The reduction takes place through heat and evaporation. Cremation shall include the processing, and may include the pulverization, of the bone fragments.

"Cremation chamber" means the enclosed space within which the cremation takes place.

"Cremation interment container" means a rigid outer container that, subject to a cemetery's rules and regulations, is composed of concrete, steel, fiberglass, or some similar material in which an urn is placed prior to being interred in the ground, and which is designed to withstand prolonged exposure to the elements and to support the earth above the urn.

"Cremation room" means the room in which the cremation chamber is located.

"Crematory" means the building or portion of a building that houses the cremation room and the holding facility.

"Crematory authority" means the legal entity which is licensed by the Department Comptroller to operate a crematory and to perform cremations.

"Department" means the Illinois Department of Financial and Professional Regulation Illinois Department of Public Health.

"Final disposition" means the burial, cremation, or other disposition of a dead human body or parts of a dead human body.

"Funeral director" means a person known by the title of "funeral director", "funeral director and embalmer", or other similar words or titles, licensed by the State to practice funeral directing or funeral directing and embalming.

"Funeral establishment" means a building or separate portion of a building having a specific street address and location and devoted to activities relating to the shelter, care, custody, and preparation of a deceased human body and may contain facilities for funeral or wake services.

"Holding facility" means an area that (i) is designated for the retention of human remains prior to cremation, (ii) complies with all applicable public health law, (iii) preserves the health and safety of the crematory authority personnel, and (iv) is secure from access by anyone other than authorized persons. A holding facility may be located in a cremation room.

"Human remains" means the body of a deceased person, including any form of body prosthesis that has been permanently attached or implanted in the body.

"Licensee" means an entity licensed under this Act. An entity that holds itself as a licensee or that is accused of unlicensed practice is considered a licensee for purposes of enforcement, investigation, hearings, and the Illinois Administrative Procedure Act.

"Niche" means a compartment or cubicle for the memorialization and permanent placement of an urn containing cremated remains.

"Person" means any person, partnership, association, corporation, limited liability company, or other entity, and in the case of any such business organization, its officers, partners, members, or shareholders possessing 25% or more of ownership of the entity.

"Processing" means the reduction of identifiable bone fragments after the completion of the cremation process to unidentifiable bone fragments by manual or mechanical means.

"Pulverization" means the reduction of identifiable bone fragments after the completion of the cremation process to granulated particles by manual or mechanical means.

"Scattering area" means an area which may be designated by a cemetery and located on dedicated cemetery property where cremated remains, which have been removed from their container, can be mixed with, or placed on top of, the soil or ground cover.

"Secretary" means the Secretary of Financial and Professional Regulation.

"Temporary container" means a receptacle for cremated remains, usually composed of cardboard, plastic or similar material, that can be closed in a manner that prevents the leakage or spillage of the cremated remains or the entrance of foreign material, and is a single container of sufficient size to hold the cremated remains until an urn is acquired or the cremated remains are scattered.

"Urn" means a receptacle designed to encase the cremated remains.

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

(410 ILCS 18/7 new)

Sec. 7. Powers and duties of the Department. Subject to the provisions of this Act, the Department may exercise any of the following powers and duties:

(1) Authorize standards to ascertain the qualifications and fitness of applicants for licensing as licensed crematory authorities and pass upon the qualifications of applicants for licensure.

(2) Examine and audit a licensed crematory authority's records, crematory, or any other aspects of crematory operation as the Department deems appropriate.

(3) Investigate any and all unlicensed activity.

(4) Conduct hearings on proceedings to refuse to issue or renew licenses, or, to revoke, suspend, place on probation, reprimand, or otherwise discipline licensees, and to refuse to issue or renew licenses or to revoke, suspend, place on probation, reprimand or otherwise discipline licensees.

(5) Formulate rules required for the administration of this Act.

(6) Maintain rosters of the names and addresses of all licensees, and all entities whose licenses have been suspended, revoked, denied renewal, or otherwise disciplined. These rosters shall be available upon written request and payment of the required fee as established by rule.

(410 ILCS 18/10)

Sec. 10. Establishment of crematory and licensing of crematory authority.

(a) Any person doing business in this State, or any cemetery, funeral establishment, corporation, partnership, joint venture, voluntary organization or any other entity, may erect, maintain, and operate a crematory in this State and provide the necessary appliances and facilities for the cremation of human remains in accordance with this Act.

(b) A crematory shall be subject to all local, State, and federal health and environmental protection requirements and shall obtain all necessary licenses and permits from the Department of Financial and Professional Regulation, the Department of Public Health, the federal Department of Health and Human Services, and the Illinois and federal Environmental Protection Agencies, or such other appropriate local, State, or federal agencies.

(c) A crematory may be constructed on or adjacent to any cemetery, on or adjacent to any funeral establishment, or at any other location consistent with local zoning regulations.

(d) An application for licensure as a crematory authority shall be in writing on forms furnished by the Department Comptroller. Applications shall be accompanied by a reasonable fee determined by rule of $50 and shall contain all of the following:

(1) The full name and address, both residence and business, of the applicant if the applicant is an individual; the full name and address of every member if the applicant is a partnership; the full name and address of every member of the board of directors if the applicant is an association; and the name and address of every officer, director, and shareholder holding more than 25% of the corporate stock if the applicant is a corporation.

(2) The address and location of the crematory.

(3) A description of the type of structure and equipment to be used in the operation of the crematory, including the operating permit number issued to the cremation device by the Illinois Environmental Protection Agency.

(3.5) Attestation by the owner that cremation services shall be by a person trained in accordance with the requirements of Section 22 of this Act.

(3.10) A copy of the certification or certifications issued by the certification program to the person or persons who will operate the cremation device.

(4) Any further information that the Department Comptroller reasonably may require as established by rule.

(e) Each crematory authority shall file an annual report with the Department Comptroller, accompanied with a reasonable $25 fee determined by rule, providing (i) an affidavit signed by the owner of the crematory authority that at the time of the report the cremation device was in proper operating condition, (ii) the total number of all cremations performed at the crematory during the past year, (iii) attestation by the licensee that all applicable permits and certifications are valid, and (iv) either (A) any changes required in the information provided under subsection (d) or (B) an indication that no changes have occurred, and (v) any other information that the Department may require as established by rule. The annual report shall be filed by a crematory authority on or before March 15 of each calendar year, in the Office of the Comptroller. If the fiscal year of a crematory authority is other than on a calendar year basis, then the crematory authority shall file the report required by this Section within 75 days after the end of its fiscal year. The Comptroller shall, for good cause shown, grant an extension for the filing of the annual report upon the written request of the crematory authority. An extension shall not exceed 60 days. If the fiscal year of a crematory authority is other than on a calendar year basis, then the crematory authority shall file the report required by this Section within 75 days after the end of its fiscal year. If a crematory authority fails to submit an annual report to the Department Comptroller within the time specified in this Section, the Department Comptroller shall impose upon the crematory authority a penalty as provided for by rule of $5 for each and every day the crematory authority remains delinquent in submitting the annual report. The Department Comptroller may abate all or part of the $5 daily penalty for good cause shown.

(f) All records required to be maintained under this Act, including but not limited to those relating to the license and annual report of the crematory authority required to be filed under this Section, shall be subject to inspection by the Comptroller upon reasonable notice.

(g) The Department Comptroller may inspect crematory records at the crematory authority's place of business to review the licensee's compliance with this Act. The inspection must include verification that:

(1) the crematory authority has complied with record-keeping requirements of this Act;

(2) a crematory device operator's certification of training is conspicuously displayed at the crematory;

(3) the cremation device has a current operating permit issued by the Illinois Environmental Protection Agency and the permit is conspicuously displayed in the crematory;

(4) the crematory authority is in compliance with local zoning requirements; and

(5) the crematory authority license issued by the Department Comptroller is conspicuously displayed at the crematory.

(6) other details as determined by rule.

(h) The Department Comptroller shall issue licenses under this Act to the crematories that are registered with the Comptroller as of March 15, 2010 July 1, 2003 without requiring the previously registered crematories to complete license applications.

(Source: P.A. 92-419, eff. 1-1-02; 92-675, eff. 7-1-03.)

(410 ILCS 18/11)

Sec. 11. Grounds for denial or discipline 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 including those persons whose names are listed on a license application in Section 10 of this Act.

(b) The Department Comptroller may refuse to issue or renew 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 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 furnishing information to the Department 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 Department or failing, within 30 days, to provide information in response to a written request made by the Department Comptroller.

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

(8) The Department 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.

(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. 92-675, eff. 7-1-03.)

(410 ILCS 18/11.5)

Sec. 11.5. License revocation or suspension; surrender of license.

(a) (Blank). Upon determining that grounds exist for the revocation or suspension of a license issued under this Act, the Comptroller, if appropriate, may revoke or suspend the license issued to the licensee.

(b) Upon the revocation or suspension of a license issued under this Act, the licensee must immediately surrender the license to the Department Comptroller. If the licensee fails to do so, the Department Comptroller may seize the license.

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

(410 ILCS 18/13)

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 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. 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 Department's Comptroller's own motion, the Department 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 Department Comptroller in originally refusing the issuance of the license.

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

(410 ILCS 18/20)

Sec. 20. Authorization to cremate.

(a) A crematory authority shall not cremate human remains until it has received all of the following:

(1) A cremation authorization form signed by an authorizing agent. The cremation authorization form shall be provided by the crematory authority and shall contain, at a minimum, the following information:

(A) The identity of the human remains and the time and date of death.

(B) The name of the funeral director and or funeral establishment, if applicable, that obtained the cremation authorization.

(C) Notification as to whether the death occurred from a disease declared by the Department of Health to be infectious, contagious, communicable, or dangerous to the public health.

(D) The name of the authorizing agent and the relationship between the authorizing agent and the decedent.

(E) A representation that the authorizing agent does in fact have the right to authorize the cremation of the decedent, and that the authorizing agent is not aware of any living person who has a superior priority right to that of the authorizing agent, as set forth in Section 15. In the event there is another living person who has a superior priority right to that of the authorizing agent, the form shall contain a representation that the authorizing agent has made all reasonable efforts to contact that person, has been unable to do so, and has no reason to believe that the person would object to the cremation of the decedent.

(F) Authorization for the crematory authority to cremate the human remains.

(G) A representation that the human remains do not contain a pacemaker or any other material or implant that may be potentially hazardous or cause damage to the cremation chamber or the person performing the cremation.

(H) The name of the person authorized to receive the cremated remains from the crematory authority.

(I) The manner in which final disposition of the cremated remains is to take place, if known. If the cremation authorization form does not specify final disposition in a grave, crypt, niche, or scattering area, then the form may indicate that the cremated remains will be held by the crematory authority for 30 days before they are released, unless they are picked up from the crematory authority prior to that time, in person, by the authorizing agent. At the end of the 30 days the crematory authority may return the cremated remains to the authorizing agent if no final disposition arrangements are made; or at the end of 60 days the crematory authority may dispose of the cremated remains in accordance with subsection (d) of Section 40.

(J) A listing of any items of value to be delivered to the crematory authority along with the human remains, and instructions as to how the items should be handled.

(K) A specific statement as to whether the authorizing agent has made arrangements for any type of viewing of the decedent before cremation, or for a service with the decedent present before cremation in connection with the cremation, and if so, the date and time of the viewing or service and whether the crematory authority is authorized to proceed with the cremation upon receipt of the human remains.

(L) The signature of the authorizing agent, attesting to the accuracy of all representations contained on the cremation authorization form, except as set forth in paragraph (M) of this subsection.

(M) If a cremation authorization form is being executed on a pre-need basis, the cremation authorization form shall contain the disclosure required by subsection (b) of Section 140 65.

(N) The cremation authorization form, other than pre-need cremation forms, shall also be signed by a funeral director or other representative of the funeral establishment that obtained the cremation authorization. That individual shall merely execute the cremation authorization form as a witness and shall not be responsible for any of the representations made by the authorizing agent, unless the individual has actual knowledge to the contrary. The information requested by items (A), (B), (C) and (G) of this subsection, however, shall be considered to be representations of the authorizing agent. In addition, the funeral director or funeral establishment shall warrant to the crematory that the human remains delivered to the crematory authority are the human remains identified on the cremation authorization form.

(2) A completed and executed burial transit permit indicating that the human remains are to be cremated.

(3) Any other documentation required by this State.

(b) If an authorizing agent is not available to execute a cremation authorization form in person, that person may delegate that authority to another person in writing, or by sending the crematory authority a facsimile transmission that contains the name, address, and relationship of the sender to the decedent and the name and address of the individual to whom authority is delegated. Upon receipt of the written document, or facsimile transmission, telegram, or other electronic telecommunications transmission which specifies the individual to whom authority has been delegated, the crematory authority shall allow this individual to serve as the authorizing agent and to execute the cremation authorization form. The crematory authority shall be entitled to rely upon the cremation authorization form without liability.

(c) An authorizing agent who signs a cremation authorization form shall be deemed to warrant the truthfulness of any facts set forth on the cremation authorization form, including that person's authority to order the cremation; except for the information required by items (C) and (G) of paragraph (1) of subsection (a) of this Section, unless the authorizing agent has actual knowledge to the contrary. An authorizing agent signing a cremation authorization form shall be personally and individually liable for all damages occasioned by and resulting from authorizing the cremation.

(d) A crematory authority shall have authority to cremate human remains upon the receipt of a cremation authorization form signed by an authorizing agent. There shall be no liability for a crematory authority that cremates human remains according to an authorization, or that releases or disposes of the cremated remains according to an authorization, except for a crematory authority's gross negligence, provided that the crematory authority performs its functions in compliance with this Act.

(e) After an authorizing agent has executed a cremation authorization form, the authorizing agent may revoke the authorization and instruct the crematory authority to cancel the cremation and to release or deliver the human remains to another crematory authority or funeral establishment. The instructions shall be provided to the crematory authority in writing. A crematory authority shall honor any instructions given to it by an authorizing agent under this Section if it receives the instructions prior to beginning the cremation of the human remains.

(Source: P.A. 87-1187.)

(410 ILCS 18/22)

Sec. 22. Performance of cremation service; training. A person may not perform a cremation service in this State unless he or she has completed training in performing cremation services and received certification by a program recognized by the Department Comptroller. The crematory authority must conspicuously display the certification at the crematory authority's place of business. Any new employee shall have a reasonable time period, as determined by rule not to exceed one year, to attend a recognized training program. In the interim, the new employee may perform a cremation service if he or she has received training from another person who has received certification by a program recognized by the Department and is under the supervision of the trained person Comptroller. For purposes of this Act, the Department may Comptroller shall recognize any training program that provides training in the operation of a cremation device, in the maintenance of a clean facility, and in the proper handling of human remains. The Department may Comptroller shall recognize any course that is conducted by a death care trade association in Illinois or the United States or by a manufacturer of a cremation unit that is consistent with the standards provided in this Act or as otherwise determined by rule.

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

(410 ILCS 18/25)

Sec. 25. Recordkeeping.

(a) The crematory authority shall furnish to the person who delivers human remains to the crematory authority a receipt signed at the time of delivery by both the crematory authority and the person who delivers the human remains, showing the date and time of the delivery, the type of casket or alternative container that was delivered, the name of the person from whom the human remains were received and the name of the funeral establishment or other entity with whom the person is affiliated, the name of the person who received the human remains on behalf of the crematory authority, and the name of the decedent. The crematory shall retain a copy of this receipt in its permanent records.

(b) Upon its release of cremated remains, the crematory authority shall furnish to the person who receives the cremated remains from the crematory authority a receipt signed by both the crematory authority and the person who receives the cremated remains, showing the date and time of the release, the name of the person to whom the cremated remains were released and the name of the funeral establishment, cemetery, or other entity with whom the person is affiliated, the name of the person who released the cremated remains on behalf of the crematory authority, and the name of the decedent. The crematory shall retain a copy of this receipt in its permanent records.

(c) A crematory authority shall maintain at its place of business a permanent record of each cremation that took place at its facility which shall contain the name of the decedent, the date of the cremation, and the final disposition of the cremated remains.

(d) The crematory authority shall maintain a record of all cremated remains disposed of by the crematory authority in accordance with subsection (d) of Section 40.

(e) Upon completion of the cremation, the crematory authority shall file the burial transit permit as required by the Illinois Vital Records Act and rules adopted under that Act and the Illinois Counties Code law, and transmit a photocopy of the burial transit permit along with the cremated remains to whoever receives the cremated remains from the authorizing agent unless the cremated remains are to be interred, entombed, inurned, or placed in a scattering area, in which case the crematory authority shall retain a copy of the burial transit permit and shall send the permit, along with the cremated remains, to the cemetery, which shall file the permit with the designated agency after the interment, entombment, inurnment, or scattering has taken place.

(f) All cemeteries shall maintain a record of all cremated remains that are disposed of on their property, provided that the cremated remains were properly transferred to the cemetery and the cemetery issued a receipt acknowledging the transfer of the cremated remains.

(Source: P.A. 87-1187.)

(410 ILCS 18/40)

Sec. 40. Disposition of cremated remains.

(a) The authorizing agent shall be responsible for the final disposition of the cremated remains.

(b) Cremated remains may be disposed of by placing them in a grave, crypt, or niche, by scattering them in a scattering area as defined in this Act, or in any manner whatever on the private property of a consenting owner.

(c) Upon the completion of the cremation process, and except as provided for in item (I) (J) of paragraph (1) of subsection (a) of Section 20, if the crematory authority has not been instructed to arrange for the interment, entombment, inurnment, or scattering of the cremated remains, the crematory authority shall deliver the cremated remains to the individual specified on the cremation authorization form, or if no individual is specified then to the authorizing agent. The delivery may be made in person or by registered mail. Upon receipt of the cremated remains, the individual receiving them may transport them in any manner in this State without a permit, and may dispose of them in accordance with this Section. After delivery, the crematory authority shall be discharged from any legal obligation or liability concerning the cremated remains.

(d) If, after a period of 60 days from the date of the cremation, the authorizing agent or the agent's designee has not instructed the crematory authority to arrange for the final disposition of the cremated remains or claimed the cremated remains, the crematory authority may dispose of the cremated remains in any manner permitted by this Section. The crematory authority, however, shall keep a permanent record identifying the site of final disposition. The authorizing agent shall be responsible for reimbursing the crematory authority for all reasonable expenses incurred in disposing of the cremated remains. Upon disposing of the cremated remains, the crematory authority shall be discharged from any legal obligation or liability concerning the cremated remains. Any person who was in possession of cremated remains prior to the effective date of this Act may dispose of them in accordance with this Section.

(e) Except with the express written permission of the authorizing agent, no person shall:

(1) Dispose of cremated remains in a manner or in a location so that the cremated remains are commingled with those of another person. This prohibition shall not apply to the scattering of cremated remains at sea, by air, or in an area located in a dedicated cemetery and used exclusively for those purposes.

(2) Place cremated remains of more than one person in the same temporary container or urn.

(Source: P.A. 87-1187.)

(410 ILCS 18/55)

Sec. 55. Penalties. Violations of this Act shall be punishable as follows:

(1) Performing a cremation without receipt of a cremation authorization form signed by an authorizing agent shall be a Class 4 felony.

(2) Signing a cremation authorization form with the actual knowledge that the form contains false or incorrect information shall be a Class 4 felony.

(3) A Violation of any cremation procedure set forth in Section 35 shall be a Class 4 felony.

(4) Holding oneself out to the public as a crematory authority, or the operation of a building or structure within this State as a crematory, without being licensed under this Act, shall be a Class A misdemeanor.

(4.5) Performance of a cremation service by a person who has not completed a training program as defined in Section 22 of this Act shall be a Class A misdemeanor.

(4.10) Any person who intentionally violates a provision of this Act or a final order of the Department Comptroller is liable for a civil penalty not to exceed $5,000 per violation.

(4.15) Any person who knowingly acts without proper legal authority and who willfully and knowingly destroys or damages the remains of a deceased human being or who desecrates human remains is guilty of a Class 3 felony.

(5) A violation of any other provision of this Act shall be a Class B misdemeanor.

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

(410 ILCS 18/60)

Sec. 60. Failure to file annual report. Whenever a crematory authority refuses or neglects to file its annual report in violation of Section 10 of this Act, or fails to otherwise comply with the requirements of this Act, the Department shall impose a penalty as provided for by rule for each and every day the licensee remains delinquent in submitting the annual report. Such report shall be made under oath and shall be in a form determined by the Department. Comptroller may commence an administrative proceeding as authorized by this Act or may communicate the facts to the Attorney General of the State of Illinois who shall thereupon institute such proceedings against the crematory authority or its officers as the nature of the case may require.

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

(410 ILCS 18/62)

Sec. 62. Injunctive action; cease and desist order Investigation of unlawful practices.

(a) If any person violates the provisions of this Act, the Secretary, in the name of the People of the State of Illinois, through the Attorney General or the State's Attorney of the county in which the violation is alleged to have occurred, may petition for an order enjoining the violation or for an order enforcing compliance with this Act. Upon the filing of a verified petition, the court with appropriate jurisdiction may issue a temporary restraining order, without notice or bond, and may preliminarily and permanently enjoin the violation. If it is established that the person has violated or is violating the injunction, the court may punish the offender for contempt of court. Proceedings under this Section are in addition to, and not in lieu of, all other remedies and penalties provided by this Act.

(b) Whenever, in the opinion of the Department, a person violates any provision of this Act, the Department may issue a rule to show cause why an order to cease and desist should not be entered against that person. The rule shall clearly set forth the grounds relied upon by the Department and shall allow at least 7 days from the date of the rule to file an answer satisfactory to the Department. Failure to answer to the satisfaction of the Department shall cause an order to cease and desist to be issued. If the Comptroller has good cause to believe that a person has engaged in, is engaging in, or is about to engage in any practice in violation of this Act, the Comptroller may do any one or more of the following:

(1) Require that person to file, on terms the Comptroller prescribes, a statement or report in writing, under oath or otherwise, containing all information that the Comptroller considers necessary to ascertain whether a licensee is in compliance with this Act, or whether an unlicensed person is engaging in activities for which a license is required under this Act.

(2) Examine under oath any person in connection with the books and records required to be maintained under this Act.

(3) Examine any books and records of a licensee that the Comptroller considers necessary to ascertain compliance with this Act.

(4) Require the production of a copy of any record, book, document, account, or paper that is produced in accordance with this Act and retain it in the Comptroller's possession until the completion of all proceedings in connection with which it is produced.

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

(410 ILCS 18/62.5)

Sec. 62.5. Service of notice. Service by the Department Comptroller of any notice requiring a person to file a statement or report under this Act shall be made: (1) personally by delivery of a duly executed copy of the notice to the person to be served or, if that person is not a natural person, in the manner provided in the Civil Practice Law when a complaint is filed; or (2) by mailing by certified mail a duly executed copy of the notice to the person at his or her address of record to be served at his or her last known abode or principal place of business within this State.

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

(410 ILCS 18/62.10)

Sec. 62.10. Investigations; notice and hearing Investigation of actions; hearing. The Department may at any time investigate the actions of any applicant or of any person, persons, or entity rendering or offering to render cremation services or any person or entity holding or claiming to hold a license as a licensed crematory. The Department shall, before revoking, suspending, placing on probation, reprimanding, or taking any other disciplinary action under Section 11 of this Act, at least 30 days before the date set for the hearing, (i) notify the accused in writing of the charges made and the time and place for the hearing on the charges, (ii) direct the accused applicant or licensee to file a written answer to the charges with the Department under oath within 20 days after the service on him or her of the notice, and (iii) inform the accused that, if he or she fails to answer, default will be taken against him or her or that his or her license may be suspended, revoked, placed on probationary status, or other disciplinary action taken with regard to the license, including limiting the scope, nature, or extent of his or her practice, as the Department may consider proper.

At the time and place fixed in the notice, the Department shall proceed to hear the charges and the parties or their counsel shall be accorded ample opportunity to present any pertinent statements, testimony, evidence, and arguments. The Secretary shall have the authority to appoint an attorney duly licensed to practice law in the State of Illinois to serve as the hearing officer in any disciplinary action with regard to a license. The hearing officer shall have full authority to conduct the hearing. The Department may continue the hearing from time to time. In case the person, after receiving the notice, fails to file an answer, his or her license may, in the discretion of the Department, be suspended, revoked, placed on probationary status, or the Department may take whatever disciplinary action considered proper, including limiting the scope, nature, or extent of the person's practice or the imposition of a fine, without a hearing, if the act or acts charged constitute sufficient grounds for that action under this Act. The written notice may be served by personal delivery or by certified mail to the address specified by the accused in his or her last notification with the Department.

(a) The Comptroller shall make an investigation upon discovering facts that, if proved, would constitute grounds for refusal, suspension, or revocation of a license under this Act.

(b) Before refusing to issue, and before suspending or revoking, a license under this Act, the Comptroller shall hold a hearing to determine whether the applicant for a license or the licensee ("the respondent") is entitled to hold such a license. At least 10 days before the date set for the hearing, the Comptroller shall notify the respondent in writing that (i) on the designated date a hearing will be held to determine the respondent's eligibility for a license and (ii) the respondent may appear in person or by counsel. The written notice may be served on the respondent personally, or by registered or certified mail sent to the respondent's business address as shown in the respondent's latest notification to the Comptroller. The notice must include sufficient information to inform the respondent of the general nature of the reason for the Comptroller's action.

(c) At the hearing, both the respondent and the complainant shall be accorded ample opportunity to present in person or by counsel such statements, testimony, evidence, and argument as may be pertinent to the charge or to any defense to the charge. The Comptroller may reasonably continue the hearing from time to time. The Comptroller may subpoena any person or persons in this State and take testimony orally, by deposition, or by exhibit, in the same manner and with the same fees and mileage as prescribed in judicial proceedings in civil cases. Any authorized agent of the Comptroller may administer oaths to witnesses at any hearing that the Comptroller is authorized to conduct.

(d) The Comptroller, at the Comptroller's expense, shall provide a certified shorthand reporter to take down the testimony and preserve a record of every proceeding at the hearing of any case involving the refusal to issue a license under this Act, the suspension or revocation of such a license, the imposition of a monetary penalty, or the referral of a case for criminal prosecution. The record of any such proceeding shall consist of the notice of hearing, the complaint, all other documents in the nature of pleadings and written motions filed in the proceeding, the transcript of testimony, and the report and orders of the Comptroller. Copies of the transcript of the record may be purchased from the certified shorthand reporter who prepared the record or from the Comptroller.

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

(410 ILCS 18/62.15)

Sec. 62.15. Compelling testimony Court order. Any circuit court, upon application of the Department or designated hearing officer may enter an order requiring the attendance of witnesses and their testimony, and the production of documents, papers, files, books, and records in connection with any hearing or investigation. The court may compel obedience to its order by proceedings for contempt. Upon the application of the Comptroller or of the applicant or licensee against whom proceedings under Section 62.10 are pending, any circuit court may enter an order requiring witnesses to attend and testify and requiring the production of documents, papers, files, books, and records in connection with any hearing in any proceeding under that Section. Failure to obey such a court order may result in contempt proceedings.

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

(410 ILCS 18/62.20)

Sec. 62.20. Administrative review; venue; certification of record; costs Judicial review.

(a) All final administrative decisions of the Department are subject to judicial review under the Administrative Review Law and its rules. The term "administrative decision" is defined as in Section 3-101 of the Code of Civil Procedure.

(b) Proceedings for judicial review shall be commenced in the circuit court of the county in which the party applying for review resides, but if the party is not a resident of Illinois, the venue shall be in Sangamon County.

(c) The Department shall not be required to certify any record of the court, file an answer in court, or to otherwise appear in any court in a judicial review proceeding unless and until the Department has received from the plaintiff payment of the costs of furnishing and certifying the record, which costs shall be determined by the Department. Failure on the part of the plaintiff to make such payment to the Department is grounds for dismissal of the action. Any person affected by a final administrative decision of the Comptroller under this Act may have the decision reviewed judicially by the circuit court of the county where the person resides or, in the case of a corporation, where the corporation's registered office is located. If the plaintiff in the judicial review proceeding is not a resident of this State, venue shall be in Sangamon County. The provisions of the Administrative Review Law and any rules adopted under it govern all proceedings for the judicial review of final administrative decisions of the Comptroller under this Act. The term "administrative decision" is defined as in the Administrative Review Law.

(b) The Comptroller is not required to certify the record of the proceeding unless the plaintiff in the review proceeding has purchased a copy of the transcript from the certified shorthand reporter who prepared the record or from the Comptroller. Exhibits shall be certified without cost.

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

(410 ILCS 18/65)

Sec. 65. Pre-need cremation arrangements.

(a) Any person, or anyone who has legal authority to act on behalf of a person, on a pre-need basis, may authorize his or her own cremation and the final disposition of his or her cremated remains by executing, as the authorizing agent, a cremation authorization form on a pre-need basis. A copy of this form shall be provided to the person. Any person shall have the right to transfer or cancel this authorization at any time prior to death by destroying the executed cremation authorization form and providing written notice to the crematory authority.

(b) Any cremation authorization form that is being executed by an individual as his or her own authorizing agent on a pre-need basis shall contain the following disclosure, which shall be completed by the authorizing agent:

"( ) I do not wish to allow any of my survivors the option of cancelling my cremation and selecting alternative arrangements, regardless of whether my survivors deem a change to be appropriate.

( ) I wish to allow only the survivors whom I have designated below the option of cancelling my cremation and selecting alternative arrangements, if they deem a change to be appropriate:............"

(c) Except as provided in subsection (b) of this Section, at the time of the death of a person who has executed, as the authorizing agent, a cremation authorization form on a pre-need basis, any person in possession of an executed form and any person charged with making arrangements for the final disposition of the decedent who has knowledge of the existence of an executed form, shall use their best efforts to ensure that the decedent is cremated and that the final disposition of the cremated remains is in accordance with the instructions contained on the cremation authorization form. If a crematory authority (i) is in possession of a completed cremation authorization form that was executed on a pre-need basis, (ii) is in possession of the designated human remains, and (iii) has received payment for the cremation of the human remains and the final disposition of the cremated remains or is otherwise assured of payment, then the crematory authority shall be required to cremate the human remains and dispose of the cremated remains according to the instructions contained on the cremation authorization form, and may do so without any liability.

(d) (e) Any pre-need contract sold by, or pre-need arrangements made with, a cemetery, funeral establishment, crematory authority, or any other party that includes a cremation shall specify the final disposition of the cremated remains, in accordance with Section 40. In the event that no different or inconsistent instructions are provided to the crematory authority by the authorizing agent at the time of death, the crematory authority shall be authorized to release or dispose of the cremated remains as indicated in the pre-need agreement. Upon compliance with the terms of the pre-need agreement, the crematory authority shall be discharged from any legal obligation concerning the cremated remains. The pre-need agreement shall be kept as a permanent record by the crematory authority.

(e) (f) This Section shall not apply to any cremation authorization form or pre-need contract executed prior to the effective date of this Act. Any cemetery, funeral establishment, crematory authority, or other party, however, with the written approval of the authorizing agent or person who executed the pre-need contract, may designate that the cremation authorization form or pre-need contract shall be subject to this Act.

(Source: P.A. 87-1187.)

(410 ILCS 18/80)

Sec. 80. Record of proceedings; transcript Home Rule. The Department, at its expense, shall preserve a record of all proceedings at the formal hearing of any case. Any notice of hearing, complaint, all other documents in the nature of pleadings, written motions filed in the proceedings, the transcripts of testimony, the report of the hearing officer, and orders of the Department shall be in the record of the proceeding. The Department shall furnish a transcript of such record to any person interested in such hearing upon payment of the fee required under Section 2105-115 of the Department of Professional Regulation Law. The regulation of crematories and crematory authorities as set forth in this Act is an exclusive power and function of the State. A home rule unit may not regulate crematories or crematory authorities. This Section is a denial and limitation of home rule powers and functions under subsection (h) of Section 6 of Article VII of the Illinois Constitution.

(Source: P.A. 91-357, eff. 7-29-99.)

(410 ILCS 18/85 new)

Sec. 85. Subpoenas; depositions; oaths. The Department has the power to subpoena documents, books, records or other materials and to bring before it any person and to take testimony either orally or by deposition, or both, with the same fees and mileage and in the same manner as prescribed in civil cases in the courts of this State. The Secretary, the designated hearing officer, or any qualified person the Department may designate has the power to administer oaths to witnesses at any hearing that the Department is authorized to conduct, and any other oaths authorized in any Act administered by the Department.

Every person having taken an oath or affirmation in any proceeding or matter wherein an oath is required by this Act, who shall swear willfully, corruptly and falsely in a matter material to the issue or point in question, or shall suborn any other person to swear as aforesaid, shall be guilty of perjury or subornation of perjury, as the case may be and shall be punished as provided by State law relative to perjury and subornation of perjury.

(410 ILCS 18/87 new)

Sec. 87. Findings and recommendations. At the conclusion of the hearing, the hearing officer shall present to the Secretary a written report of its findings of fact, conclusions of law, and recommendations. The report shall contain a finding whether or not the accused person violated this Act or its rules or failed to comply with the conditions required in this Act or its rules. The hearing officer shall specify the nature of any violations or failure to comply and shall make recommendations to the Secretary. In making recommendations for any disciplinary actions, the hearing officer may take into consideration all facts and circumstances bearing upon the reasonableness of the conduct of the accused and the potential for future harm to the public, including but not limited to, previous discipline of the accused by the Department, intent, degree of harm to the public and likelihood of harm in the future, any restitution made by the accused, and whether the incident or incidents contained in the complaint appear to be isolated or represent a continuing pattern of conduct. In making its recommendations for discipline, the hearing officer shall endeavor to ensure that the severity of the discipline recommended is reasonably related to the severity of the violation. The report of findings of fact, conclusions of law, and recommendation of the hearing officer shall be the basis for the Department's order refusing to issue, restore, renew, place on probation, fine, suspend, revoke a license, or otherwise disciplining a licensee. If the Secretary disagrees with the recommendations of the hearing officer, the Secretary may issue an order in contravention of the hearing officer's recommendations. The finding is not admissible in evidence against the person in a criminal prosecution brought for a violation of this Act, but the hearing and finding are not a bar to a criminal prosecution brought for a violation of this Act.

(410 ILCS 18/88 new)

Sec. 88. Rehearing. At the conclusion of the hearing, a copy of the hearing officer's report shall be served upon the applicant or licensee by the Department, either personally or as provided in this Act. Within 20 days after service, the applicant or licensee may present to the Department a motion in writing for a rehearing, which shall specify the particular grounds for rehearing. The Department may respond to the motion for rehearing within 20 days after its service on the Department. If no motion for rehearing is filed, then upon the expiration of the time specified for filing such a motion, or if a motion for rehearing is denied, then upon denial, the Secretary may enter an order in accordance with recommendations of the hearing officer except as provided in Section 89 of this Act.

If the applicant or licensee orders from the reporting service and pays for a transcript of the record within the time for filing a motion for rehearing, the 20-day period within which a motion may be filed shall commence upon the delivery of the transcript to the applicant or licensee.

(410 ILCS 18/89 new)

Sec. 89. Secretary; rehearing. Whenever the Secretary believes that substantial justice has not been done in the revocation, suspension, or refusal to issue, restore, or renew a license, or other discipline of an applicant or licensee, he or she may order a rehearing by the same or other hearing officers.

(410 ILCS 18/90 new)

Sec. 90. Order or certified copy; prima facie proof. An order or certified copy thereof, over the seal of the Department and purporting to be signed by the Secretary, is prima facie proof that:

(a) the signature is the genuine signature of the Secretary;

(b) the Secretary is duly appointed and qualified; and

(c) the hearing officer is qualified to act.

(410 ILCS 18/91 new)

Sec. 91. Civil action and civil penalties. In addition to the other penalties and remedies provided in this Act, the Department may bring a civil action in the county of residence of the licensee or any other person to enjoin any violation or threatened violation of this Act. In addition to any other penalty provided by law, any person who violates this Act shall forfeit and pay a civil penalty to the Department in an amount not to exceed $10,000 for each violation as determined by the Department. The civil penalty shall be assessed by the Department in accordance with the provisions of this Act.

Any civil penalty shall be paid within 60 days after the effective date of the order imposing the civil penalty. The order shall constitute a judgment and may be filed and execution had thereon in the same manner as any judgment from any court of record. All moneys collected under this Section shall be deposited into the Cemetery Oversight Licensing and Disciplinary Fund.

(410 ILCS 18/92 new)

Sec. 92. Consent order. At any point in any investigation or disciplinary proceedings as provided in this Act, both parties may agree to a negotiated consent order. The consent order shall be final upon signature of the Secretary.

(410 ILCS 18/93 new)

Sec. 93. Illinois Administrative Procedure Act; application. The Illinois Administrative Procedure Act is expressly adopted and incorporated in this Act as if all of the provisions of that Act were included in this Act, except that the provision of paragraph (d) of Section 10-65 of the Illinois Administrative Procedure Act, which provides that at hearings the licensee has the right to show compliance with all lawful requirements for retention or continuation or renewal of the license, is specifically excluded. For the purpose of this Act, the notice required under Section 10-25 of the Illinois Administrative Procedure Act is considered sufficient when mailed to the address of record.

(410 ILCS 18/94 new)

Sec. 94. Summary suspension of a license. The Secretary may summarily suspend a license of a licensed crematory without a hearing, simultaneously with the institution of proceedings for a hearing provided for in this Act, if the Secretary finds that evidence in the Secretary's possession indicates that the licensee's continued practice would constitute an imminent danger to the public. In the event that the Secretary summarily suspends the license of a licensed crematory without a hearing, a hearing must be commenced within 30 days after the suspension has occurred and concluded as expeditiously as practical. In the event of a summary suspension, the county coroner or medical examiner responsible for the area where the crematory is located shall make arrangements to dispose of any bodies in the suspended licensee's possession after consulting with the authorizing agents for those bodies.

(410 ILCS 18/95 new)

Sec. 95. Home Rule. The regulation of crematories and crematory authorities as set forth in this Act is an exclusive power and function of the State. A home rule unit may not regulate crematories or crematory authorities. This Section is a denial and limitation of home rule powers and functions under subsection (h) of Section 6 of Article VII of the Illinois Constitution.

Section 90-30. The Vital Records Act is amended by changing Sections 11 and 18.5 as follows:

(410 ILCS 535/11) (from Ch. 111 1/2, par. 73-11)

Sec. 11. Information required on forms.

(a) The form of certificates, reports, and other returns required by this Act or by regulations adopted under this Act shall include as a minimum the items recommended by the federal agency responsible for national vital statistics, subject to approval of and modification by the Department. All forms shall be prescribed and furnished by the State Registrar of Vital Records.

(b) On and after the effective date of this amendatory Act of 1983, all forms used to collect information under this Act which request information concerning the race or ethnicity of an individual by providing spaces for the designation of that individual as "white" or "black", or the semantic equivalent thereof, shall provide an additional space for a designation as "Hispanic".

(c) Effective November 1, 1990, the social security numbers of the mother and father shall be collected at the time of the birth of the child. These numbers shall not be recorded on the certificate of live birth. The numbers may be used only for those purposes allowed by Federal law.

(d) The social security number of a person who has died shall be entered on the death certificate; however, failure to enter the social security number of the person who has died on the death certificate does not invalidate the death certificate.

(e) If the place of disposition of a dead human body or cremated remains is in a cemetery, the burial permit shall include the place of disposition. The place of disposition shall include the lot, block, section, and plot or niche where the dead human body or cremated remains are located. This subsection does not apply to cremated remains scattered in a cemetery.

(Source: P.A. 90-18, eff. 7-1-97.)

(410 ILCS 535/18.5)

Sec. 18.5. Electronic reporting system for death registrations. The State Registrar shall may facilitate death registration by implementing an electronic reporting system. The system may be used to transfer information to individuals and institutions responsible for completing and filing certificates and related reports for deaths that occur in the State. The system shall be capable of storing and retrieving accurate and timely data and statistics for those persons and agencies responsible for vital records registration and administration. Upon establishment of such an electronic reporting system, but not later than January 1, 2011, the county clerk in the county in which a death occurred or the county clerk of the county where a decedent last resided, as indicated on the decedent's death certificate, shall be authorized to issue certifications of death records from such system, and the State Registrar shall cause the electronic reporting system to provide for such capability. The Department of Financial and Professional Regulation shall have access to the system to enhance its enforcement of the Cemetery Oversight Act.

(Source: P.A. 96-327, eff. 8-11-09.)

Section 90-33. The Eminent Domain Act is amended by changing Section 15-5-40 as follows:

(735 ILCS 30/15-5-40)

Sec. 15-5-40. Eminent domain powers in ILCS Chapters 705 through 820. The following provisions of law may include express grants of the power to acquire property by condemnation or eminent domain:

(765 ILCS 230/2); Coast and Geodetic Survey Act; United States of America; for carrying out coast and geodetic surveys.

(765 ILCS 505/1); Mining Act of 1874; mine owners and operators; for roads, railroads, and ditches.

(805 ILCS 25/2); Corporation Canal Construction Act; general corporations; for levees, canals, or tunnels for agricultural, mining, or sanitary purposes.

(805 ILCS 30/7); Gas Company Property Act; consolidating gas companies; for acquisition of stock of dissenting stockholder.

(805 ILCS 120/9); Merger of Not For Profit Corporations Act; merging or consolidating corporations; for acquisition of interest of objecting member or owner.

(805 ILCS 320/16 through 320/20); Cemetery Association Act; cemetery associations; for cemetery purposes.

(Source: P.A. 94-1055, eff. 1-1-07.)

Section 90-35. The Crime Victims Compensation Act is amended by changing Section 2 as follows:

(740 ILCS 45/2) (from Ch. 70, par. 72)

Sec. 2. Definitions. As used in this Act, unless the context otherwise requires:

(a) "Applicant" means any person who applies for compensation under this Act or any person the Court of Claims finds is entitled to compensation, including the guardian of a minor or of a person under legal disability. It includes any person who was a dependent of a deceased victim of a crime of violence for his or her support at the time of the death of that victim.

(b) "Court of Claims" means the Court of Claims created by the Court of Claims Act.

(c) "Crime of violence" means and includes any offense defined in Sections 9-1, 9-2, 9-3, 10-1, 10-2, 11-11, 11-19.2, 11-20.1, 12-1, 12-2, 12-3, 12-3.2, 12-3.3, 12-4, 12-4.1, 12-4.2, 12-4.3, 12-5, 12-7.1, 12-7.3, 12-7.4, 12-13, 12-14, 12-14.1, 12-15, 12-16, 12-20.5, 12-30, 20-1 or 20-1.1 of the Criminal Code of 1961, Sections 1(a) and 1(a-5) of the Cemetery Protection Act, driving under the influence of intoxicating liquor or narcotic drugs as defined in Section 11-501 of the Illinois Vehicle Code, and a violation of Section 11-401 of the Illinois Vehicle Code, provided the victim was a pedestrian or was operating a vehicle moved solely by human power or a mobility device at the time of contact; so long as the offense did not occur during a civil riot, insurrection or rebellion. "Crime of violence" does not include any other offense or accident involving a motor vehicle except those vehicle offenses specifically provided for in this paragraph. "Crime of violence" does include all of the offenses specifically provided for in this paragraph that occur within this State but are subject to federal jurisdiction and crimes involving terrorism as defined in 18 U.S.C. 2331.

(d) "Victim" means (1) a person killed or injured in this State as a result of a crime of violence perpetrated or attempted against him or her, (2) the parent of a person killed or injured in this State as a result of a crime of violence perpetrated or attempted against the person, (3) a person killed or injured in this State while attempting to assist a person against whom a crime of violence is being perpetrated or attempted, if that attempt of assistance would be expected of a reasonable person man under the circumstances, (4) a person killed or injured in this State while assisting a law enforcement official apprehend a person who has perpetrated a crime of violence or prevent the perpetration of any such crime if that assistance was in response to the express request of the law enforcement official, (5) a person who personally witnessed a violent crime, (5.1) solely for the purpose of compensating for pecuniary loss incurred for psychological treatment of a mental or emotional condition caused or aggravated by the crime, any other person under the age of 18 who is the brother, sister, half brother, half sister, child, or stepchild of a person killed or injured in this State as a result of a crime of violence, or (6) an Illinois resident who is a victim of a "crime of violence" as defined in this Act except, if the crime occurred outside this State, the resident has the same rights under this Act as if the crime had occurred in this State upon a showing that the state, territory, country, or political subdivision of a country in which the crime occurred does not have a compensation of victims of crimes law for which that Illinois resident is eligible, (7) a deceased person whose body is dismembered as the result of a crime of violence, or (8) solely for the purpose of compensating for pecuniary loss incurred for psychological treatment of a mental or emotional condition caused or aggravated by the crime, any parent, spouse, or child under the age of 18 of a deceased person whose body is dismembered or whose remains are desecrated as the result of a crime of violence.

(e) "Dependent" means a relative of a deceased victim who was wholly or partially dependent upon the victim's income at the time of his or her death and shall include the child of a victim born after his or her death.

(f) "Relative" means a spouse, parent, grandparent, stepfather, stepmother, child, grandchild, brother, brother-in-law, sister, sister-in-law, half brother, half sister, spouse's parent, nephew, niece, uncle or aunt.

(g) "Child" means an unmarried son or daughter who is under 18 years of age and includes a stepchild, an adopted child or a child born out of wedlock.

(h) "Pecuniary loss" means, in the case of injury, appropriate medical expenses and hospital expenses including expenses of medical examinations, rehabilitation, medically required nursing care expenses, appropriate psychiatric care or psychiatric counseling expenses, expenses for care or counseling by a licensed clinical psychologist, licensed clinical social worker, or licensed clinical professional counselor and expenses for treatment by Christian Science practitioners and nursing care appropriate thereto; transportation expenses to and from medical and treatment facilities; prosthetic appliances, eyeglasses, and hearing aids necessary or damaged as a result of the crime; replacement costs for clothing and bedding used as evidence; costs associated with temporary lodging or relocation necessary as a result of the crime, including, but not limited to, the first month's rent and security deposit of the dwelling that the claimant relocated to and other reasonable relocation expenses incurred as a result of the violent crime; locks or windows necessary or damaged as a result of the crime; the purchase, lease, or rental of equipment necessary to create usability of and accessibility to the victim's real and personal property, or the real and personal property which is used by the victim, necessary as a result of the crime; the costs of appropriate crime scene clean-up; replacement services loss, to a maximum of $1000 per month; dependents replacement services loss, to a maximum of $1000 per month; loss of tuition paid to attend grammar school or high school when the victim had been enrolled as a student prior to the injury, or college or graduate school when the victim had been enrolled as a day or night student prior to the injury when the victim becomes unable to continue attendance at school as a result of the crime of violence perpetrated against him or her; loss of earnings, loss of future earnings because of disability resulting from the injury, and, in addition, in the case of death, expenses for funeral, burial, and travel and transport for survivors of homicide victims to secure bodies of deceased victims and to transport bodies for burial all of which may not exceed a maximum of $5,000 and loss of support of the dependents of the victim; in the case of dismemberment or desecration of a body, expenses for funeral and burial, all of which may not exceed a maximum of $5,000. Loss of future earnings shall be reduced by any income from substitute work actually performed by the victim or by income he or she would have earned in available appropriate substitute work he or she was capable of performing but unreasonably failed to undertake. Loss of earnings, loss of future earnings and loss of support shall be determined on the basis of the victim's average net monthly earnings for the 6 months immediately preceding the date of the injury or on $1000 per month, whichever is less. If a divorced or legally separated applicant is claiming loss of support for a minor child of the deceased, the amount of support for each child shall be based either on the amount of support pursuant to the judgment prior to the date of the deceased victim's injury or death, or, if the subject of pending litigation filed by or on behalf of the divorced or legally separated applicant prior to the injury or death, on the result of that litigation. Real and personal property includes, but is not limited to, vehicles, houses, apartments, town houses, or condominiums. Pecuniary loss does not include pain and suffering or property loss or damage.

(i) "Replacement services loss" means expenses reasonably incurred in obtaining ordinary and necessary services in lieu of those the injured person would have performed, not for income, but for the benefit of himself or herself or his or her family, if he or she had not been injured.

(j) "Dependents replacement services loss" means loss reasonably incurred by dependents or private legal guardians of minor dependents after a victim's death in obtaining ordinary and necessary services in lieu of those the victim would have performed, not for income, but for their benefit, if he or she had not been fatally injured.

(k) "Survivor" means immediate family including a parent, step-father, step-mother, child, brother, sister, or spouse.

(Source: P.A. 96-267, eff. 8-11-09.)

Section 90-40. The Burial Lot Perpetual Trust Act is amended by changing Section 2 as follows:

(760 ILCS 90/2) (from Ch. 21, par. 32)

Sec. 2. Every company or association incorporated for cemetery purposes under any general or special law of the State of Illinois may receive, by gift, legacy, or otherwise, moneys or real or personal property, or the income or avails of such moneys or property, in trust, in perpetuity, for the improvement, maintenance, ornamentation, repair, care and preservation of any burial lot or grave, vault, tomb, or other such structures, in any cemetery owned or controlled by such cemetery company or association, upon such terms and in such manner as may be provided by the terms of such gift, legacy or other conveyance of such moneys or property in trust and assented to by such company or association, and subject to the rules and regulations of such company or association, and every such company or association owning or controlling any such cemetery may make contracts with the owner or owners or legal representatives of any lot, grave, vault, tomb, or other such structure in such cemetery, for the improvement, maintenance, ornamentation, care, preservation and repair of any such lot, grave, vault, tomb, or other such structure in such cemetery owned or controlled by such cemetery company or association. If the cemetery is a privately owned cemetery, as defined in Section 2 of the Cemetery Care Act, or a licensed cemetery authority under the Cemetery Oversight Act, or if the burial lot or grave, vault, tomb, or other such structures are in a privately owned cemetery, as defined in Section 2 of the Cemetery Care Act, or a licensed cemetery authority under the Cemetery Oversight Act, then such company or association shall also comply with the provisions of the Cemetery Care Act or Cemetery Oversight Act, whichever is applicable. Where the cemetery is a privately operated cemetery, as defined in section 2 of the Cemetery Care Act, approved July 21, 1947, as amended, or where the burial lot or grave, vault, tomb, or other such structures are in a privately operated cemetery, as defined in section 2 of that Act, then such company or association shall also comply with the provisions of the Cemetery Care Act.

(Source: P.A. 83-388.)

Section 90-45. The Cemetery Perpetual Trust Authorization Act is amended by changing Section 2 as follows:

(760 ILCS 95/2) (from Ch. 21, par. 64)

Sec. 2. Any incorporated cemetery association incorporated not for pecuniary profit, may if it elects to do so, receive and hold money, funds and property in perpetual trust pursuant to the provisions of this act. Such election shall be evidenced by a by-law or resolution adopted by the board of directors, or board of trustees of the incorporated cemetery association. Any person is authorized to give, donate or bequeath any sum of money or any funds, securities, or property of any kind to the cemetery association, in perpetual trust, for the maintenance, care, repair, upkeep or ornamentation of the cemetery, or any lot or lots, or grave or graves in the cemetery, specified in the instrument making the gift, donation or legacy. The cemetery association may receive and hold in perpetual trust, any such money, funds, securities and property so given, donated or bequeathed to it, and may convert the property, funds and securities into money and shall invest and keep invested the proceeds thereof and the money so given, donated and bequeathed, in safe and secure income bearing investments, including investments in income producing real estate, provided the purchase price of the real estate shall not exceed the fair market value thereof on the date of its purchase as such value is determined by the board of directors or board of trustees of the association. The principal of the trust fund shall be kept intact and the income arising therefrom shall be perpetually applied for the uses and purposes specified in the instrument making the gift, donation or legacy and for no other purpose.

The by-laws of the cemetery association shall provide for a permanent committee to manage and control the trust funds so given, donated and bequeathed to it. The members of the committee shall be appointed by the board of directors, or board of trustees of the cemetery association from among the members of the board of directors or board of trustees. The committee shall choose a chairman, a secretary and a treasurer from among the members, and shall have the management and control of the trust funds of the cemetery association so given, donated and bequeathed in trust, under the supervision of the board of directors or board of trustees. The treasurer of the committee shall execute a bond to the People of the State of Illinois for the use of the cemetery association, in a penal sum of not less than double the amount of the trust funds coming into his possession as treasurer, conditioned for the faithful performance of his duties and the faithful accounting for all money or funds which by virtue of his treasurership come into his possession, and be in such form and with such securities as may be prescribed and approved by the board of directors, or board of trustees, and shall be approved by such board of directors, or board of trustees, and filed with the secretary of the cemetery association.

The treasurer of the committee shall have the custody of all money, funds and property received in trust by the cemetery association and shall invest the same in accordance with the directions of the committee as approved by the board of directors or board of trustees of the cemetery association, and shall receive and have the custody of all of the income arising from such investments and as the income is received by him, he shall pay it to the treasurer of the cemetery association, and he shall keep permanent books of record of all such trust funds and of all receipts arising therefrom and disbursements thereof, and shall annually make a written report to the board of directors or board of trustees of the cemetery association, under oath, showing receipts and disbursements, including a statement showing the amount and principal of trust funds on hand and how invested, which report shall be audited by the board of directors, or board of trustees, and if found correct, shall be approved, and filed with the secretary of the cemetery association.

The secretary of the committee shall keep, in a book provided for such purpose, a permanent record of the proceedings of the committee, signed by the president and attested by the secretary, and shall also keep a permanent record of the several trust funds, the amounts thereof, and for what uses and purposes, respectively, and he shall annually, at the time the treasurer makes his report, make a written report under oath, to the board of directors or board of trustees, stating therein substantially the same matter required to be reported by the treasurer of the committee, which report, if found to be correct, shall be approved, and filed with the secretary of the association.

The treasurer shall execute a bond to the People of the State of Illinois, in a penal sum of not less than double the amount of money or funds coming into his possession as such treasurer, conditioned for the faithful performance of his duties and the faithful accounting of all money or funds which by virtue of his office come into his possession and be in such form and with such securities as may be prescribed and approved by the board of directors, or board of trustees, and shall be approved by such board of directors or board of trustees and filed with the secretary of the cemetery association.

The trust funds, gifts and legacies mentioned in this section and the income arising therefrom shall be exempt from taxation and from the operation of all laws of mortmain, and the laws against perpetuities and accumulations.

No loan; investment; purchase of insurance on the life of any trustee or employee; purchase of any real estate; or any other transaction using care funds by any trustee, director, or committee member shall be made to or for the benefit of any person, officer, trustee, or party having any interest, or to any firm, corporation, trade association, or partnership in which any officer, director, trustee, or party has any interest, is a member of, or serves as an officer or director. A violation of this Section shall constitute the intentional and improper withdrawal of trust funds.

No loan or investment in any unproductive real estate or real estate outside of this State or in permanent improvements of the cemetery or any of its facilities shall be made, unless specifically authorized by the instrument whereby the principal fund was created. No commission or brokerage fee for the purchase or sale of any property shall be paid in excess of that usual and customary at the time and in the locality where such purchase or sale is made, and all such commissions and brokerage fees shall be fully reported in the next annual report filed by such cemetery association or trustee.

If the cemetery is a privately owned cemetery, as defined in Section 2 of the Cemetery Care Act, or a licensed cemetery authority under the Cemetery Oversight Act, or if the burial lot or grave, vault, tomb, or other such structures are in a privately owned cemetery, as defined in Section 2 of the Cemetery Care Act, or a licensed cemetery authority under the Cemetery Oversight Act, then such company or association shall also comply with the provisions of the Cemetery Care Act or Cemetery Oversight Act, whichever is applicable. Where the cemetery is a privately operated cemetery, as defined in section 2 of the Cemetery Care Act, approved July 21, 1947, as amended, or where the lot or lots or grave or graves are in a privately operated cemetery, as defined in section 2 of that Act, then such cemetery association or such committee, shall also comply with the provisions of the Cemetery Care Act.

(Source: P.A. 95-331, eff. 8-21-07.)

Section 90-50. The Cemetery Protection Act is amended by changing Sections .01, 1 and 8 as follows:

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

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

"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.

"Cemetery authority" is defined as in Section 2 of the "Cemetery Care Act", approved July 21, 1947, as now and hereafter amended.

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

(Source: P.A. 94-44, eff. 6-17-05.)

(765 ILCS 835/1) (from Ch. 21, par. 15)

Sec. 1. (a) Any person who acts without proper legal authority and who willfully and knowingly destroys or damages the remains of a deceased human being or who desecrates human remains is guilty of a Class 3 felony.

(a-5) Any person who acts without proper legal authority and who willfully and knowingly removes any portion of the remains of a deceased human being from a burial ground where skeletal remains are buried or from a grave, crypt, vault, mausoleum, or other repository of human remains is guilty of a Class 4 felony.

(b) Any person who acts without proper legal authority and who willfully and knowingly:

(1) obliterates, vandalizes, or desecrates a burial ground where skeletal remains are buried or a grave, crypt, vault, mausoleum, or other repository of human remains;

(2) obliterates, vandalizes, or desecrates a park or other area clearly designated to preserve and perpetuate the memory of a deceased person or group of persons;

(3) obliterates, vandalizes, or desecrates plants, trees, shrubs, or flowers located upon or around a repository for human remains or within a human graveyard or cemetery; or

(4) obliterates, vandalizes, or desecrates a fence, rail, curb, or other structure of a similar nature intended for the protection or for the ornamentation of any tomb, monument, gravestone, or other structure of like character;

is guilty of a Class A misdemeanor if the amount of the damage is less than $500, a Class 4 felony if the amount of the damage is at least $500 and less than $10,000, a Class 3 felony if the amount of the damage is at least $10,000 and less than $100,000, or a Class 2 felony if the damage is $100,000 or more and shall provide restitution to the cemetery authority or property owner for the amount of any damage caused.

(b-5) Any person who acts without proper legal authority and who willfully and knowingly defaces, vandalizes, injures, or removes a gravestone or other memorial, monument, or marker commemorating a deceased person or group of persons, whether located within or outside of a recognized cemetery, memorial park, or battlefield is guilty of a Class 4 felony for damaging at least one but no more than 4 gravestones, a Class 3 felony for damaging at least 5 but no more than 10 gravestones, or a Class 2 felony for damaging more than 10 gravestones and shall provide restitution to the cemetery authority or property owner for the amount of any damage caused.

(b-7) Any person who acts without proper legal authority and who willfully and knowingly removes with the intent to resell a gravestone or other memorial, monument, or marker commemorating a deceased person or group of persons, whether located within or outside a recognized cemetery, memorial park, or battlefield, is guilty of a Class 2 felony.

(c) The provisions of this Section shall not apply to the removal or unavoidable breakage or injury by a cemetery authority of anything placed in or upon any portion of its cemetery in violation of any of the rules and regulations of the cemetery authority, nor to the removal of anything placed in the cemetery by or with the consent of the cemetery authority that in the judgment of the cemetery authority has become wrecked, unsightly, or dilapidated.

(d) If an unemancipated minor is found guilty of violating any of the provisions of subsection (b) of this Section and is unable to provide restitution to the cemetery authority or property owner, the parents or legal guardians of that minor shall provide restitution to the cemetery authority or property owner for the amount of any damage caused, up to the total amount allowed under the Parental Responsibility Law.

(d-5) Any person who commits any of the following:

(1) any unauthorized, non-related third party or person who enters any sheds, crematories, or employee areas;

(2) any non-cemetery personnel who solicits cemetery mourners or funeral directors on the grounds or in the offices or chapels of a cemetery before, during, or after a burial;

(3) any person who harasses or threatens any employee of a cemetery on cemetery grounds; or

(4) any unauthorized person who removes, destroys, or disturbs any cemetery devices or property placed for safety of visitors and cemetery employees; is guilty of a Class A misdemeanor for the first offense and of a Class 4 felony for a second or subsequent offense.

(e) Any person who shall hunt, shoot or discharge any gun, pistol or other missile, within the limits of any cemetery, or shall cause any shot or missile to be discharged into or over any portion thereof, or shall violate any of the rules made and established by the board of directors of such cemetery, for the protection or government thereof, is guilty of a Class C misdemeanor.

(f) Any person who knowingly enters or knowingly remains upon the premises of a public or private cemetery without authorization during hours that the cemetery is posted as closed to the public is guilty of a Class A misdemeanor.

(g) All fines when recovered, shall be paid over by the court or officer receiving the same to the cemetery authority and be applied, as far as possible in repairing the injury, if any, caused by such offense. Provided, nothing contained in this Act shall deprive such cemetery authority or the owner of any interment, entombment, or inurnment inurement right or monument from maintaining an action for the recovery of damages caused by any injury caused by a violation of the provisions of this Act, or of the rules established by the board of directors of such cemetery authority. Nothing in this Section shall be construed to prohibit the discharge of firearms loaded with blank ammunition as part of any funeral, any memorial observance or any other patriotic or military ceremony.

(Source: P.A. 94-44, eff. 6-17-05; 94-608, eff. 8-16-05; 95-331, eff. 8-21-07.)

(765 ILCS 835/8) (from Ch. 21, par. 21.1)

Sec. 8. If the cemetery is a privately owned cemetery, as defined in Section 2 of the Cemetery Care Act, or a licensed cemetery authority under the Cemetery Oversight Act, or if the burial lot or grave, vault, tomb, or other such structures are in a privately owned cemetery, as defined in Section 2 of the Cemetery Care Act, or a licensed cemetery authority under the Cemetery Oversight Act, then such company or association shall also comply with the provisions of the Cemetery Care Act or Cemetery Oversight Act, whichever is applicable. Furthermore, no cemetery authority company or other legal entity may deny burial space to any person because of race, creed, marital status, sex, national origin, sexual orientation, or color. A cemetery company or other entity operating any cemetery may designate parts of cemeteries or burial grounds for the specific use of persons whose religious code requires isolation. Religious institution cemeteries may limit burials to members of the religious institution and their families. Where the cemetery is a privately operated cemetery, as defined in Section 2 of the Cemetery Care Act, enacted by the Sixty-fifth General Assembly or where the interment, entombment rights in a community mausoleum or lawn crypt section, or inurnment rights in a community columbarium, vault or vaults, tomb or tombs, or other such structures in the cemetery or graveyard are in a privately operated cemetery, as defined in Section 2 of that Act, then such board of directors or managing officers of such cemetery, society or cemetery authority, or the trustees of any public graveyard or the cemetery society or cemetery association, shall also comply with the provisions of the Cemetery Care Act, enacted by the Sixty-fifth General Assembly.

(Source: P.A. 94-44, eff. 6-17-05.)

Section 90-55. The Illinois Pre-Need Cemetery Sales Act is amended by changing Sections 4, 6, 14, 15, and 16 as follows:

(815 ILCS 390/4) (from Ch. 21, par. 204)

Sec. 4. Definitions. As used in this Act, the following terms shall have the meaning specified:

(A) "Pre-need sales contract" or "Pre-need sales" means any agreement or contract or series or combination of agreements or contracts which have for a purpose the sale of cemetery merchandise, cemetery services or undeveloped interment, entombment or inurnment spaces where the terms of such sale require payment or payments to be made at a currently determinable time and where the merchandise, services or completed spaces are to be provided more than 120 days following the initial payment on the account. An agreement or contract for a memorial, marker, or monument shall not be deemed a "pre-need sales contract" or a "pre-need sale" if the memorial, marker, or monument is delivered within 180 days following initial payment on the account and work thereon commences a reasonably short time after initial payment on the account.

(B) "Delivery" occurs when:

(1) Physical possession of the merchandise is transferred or the easement for burial rights in a completed space is executed, delivered and transferred to the buyer; or

(2) Following authorization by a purchaser under a pre-need sales contract, title to the merchandise has been transferred to the buyer and the merchandise has been paid for and is in the possession of the seller who has placed it, until needed, at the site of its ultimate use; or

(3) Following authorization by a purchaser under a pre-need sales contract, the merchandise has been permanently identified with the name of the buyer or the beneficiary and delivered to a licensed and bonded warehouse and both title to the merchandise and a warehouse receipt have been delivered to the purchaser or beneficiary and a copy of the warehouse receipt has been delivered to the licensee for retention in its files; except that in the case of outer burial containers, the use of a licensed and bonded warehouse as set forth in this paragraph shall not constitute delivery for purposes of this Act. Nothing herein shall prevent a seller from perfecting a security interest in accordance with the Uniform Commercial Code on any merchandise covered under this Act.

All warehouse facilities to which sellers deliver merchandise pursuant to this Act shall:

(i) be either located in the State of Illinois or qualify as a foreign warehouse facility as defined herein;

(ii) submit to the Comptroller not less than annually, by March 1 of each year, a report of all cemetery merchandise stored by each licensee under this Act which is in storage on the date of the report;

(iii) permit the Comptroller or his designee at any time to examine stored merchandise and to examine any documents pertaining thereto;

(iv) submit evidence satisfactory to the Comptroller that all merchandise stored by said warehouse for licensees under this Act is insured for casualty or other loss normally assumed by a bailee for hire;

(v) demonstrate to the Comptroller that the warehouse has procured and is maintaining a performance bond in the form, content and amount sufficient to unconditionally guarantee to the purchaser or beneficiary the prompt shipment of the cemetery merchandise.

(C) "Cemetery merchandise" means items of personal property normally sold by a cemetery authority not covered under the Illinois Funeral or Burial Funds Act, including but not limited to:

(1) memorials,

(2) markers,

(3) monuments,

(4) foundations, and

(5) outer burial containers.

(D) "Undeveloped interment, entombment or inurnment spaces" or "undeveloped spaces" means any space to be used for the reception of human remains that is not completely and totally constructed at the time of initial payment therefor in a:

(1) lawn crypt,

(2) mausoleum,

(3) garden crypt,

(4) columbarium, or

(5) cemetery section.

(E) "Cemetery services" means those services customarily performed by cemetery or crematory personnel in connection with the interment, entombment, inurnment or cremation of a dead human body.

(F) "Cemetery section" means a grouping of spaces intended to be developed simultaneously for the purpose of interring human remains.

(G) "Columbarium" means an arrangement of niches that may be an entire building, a complete room, a series of special indoor alcoves, a bank along a corridor or part of an outdoor garden setting that is constructed of permanent material such as bronze, marble, brick, stone or concrete for the inurnment of human remains.

(H) "Lawn crypt" means a permanent underground crypt usually constructed of reinforced concrete or similar material installed in multiple units for the entombment of human remains.

(I) "Mausoleum" or "garden crypt" means a grouping of spaces constructed of reinforced concrete or similar material constructed or assembled above the ground for entombing human remains.

(J) "Memorials, markers and monuments" means the object usually comprised of a permanent material such as granite or bronze used to identify and memorialize the deceased.

(K) "Foundations" means those items used to affix or support a memorial or monument to the ground in connection with the installation of a memorial, marker or monument.

(L) "Person" means an individual, corporation, partnership, joint venture, business trust, voluntary organization or any other form of entity.

(M) "Seller" means any person selling or offering for sale cemetery merchandise, cemetery services or undeveloped interment, entombment, or inurnment spaces in accordance with a pre-need sales contract.

(N) "Religious cemetery" means a cemetery owned, operated, controlled or managed by any recognized church, religious society, association or denomination or by any cemetery authority or any corporation administering, or through which is administered, the temporalities of any recognized church, religious society, association or denomination.

(O) "Municipal cemetery" means a cemetery owned, operated, controlled or managed by any city, village, incorporated town, township, county or other municipal corporation, political subdivision, or instrumentality thereof authorized by law to own, operate or manage a cemetery. "Municipal cemetery" also includes a cemetery placed in receivership pursuant to this Act while such cemetery is in receivership.

(O-1) "Outer burial container" means a container made of concrete, steel, wood, fiberglass, or similar material, used solely at the interment site, and designed and used exclusively to surround or enclose a separate casket and to support the earth above such casket, commonly known as a burial vault, grave box, or grave liner, but not including a lawn crypt.

(P) "Sales price" means the gross amount paid by a purchaser on a pre-need sales contract for cemetery merchandise, cemetery services or undeveloped interment, entombment or inurnment spaces, excluding sales taxes, credit life insurance premiums, finance charges and Cemetery Care Act contributions.

(Q) (Blank).

(R) "Provider" means a person who is responsible for performing cemetery services or furnishing cemetery merchandise, interment spaces, entombment spaces, or inurnment spaces under a pre-need sales contract.

(S) "Purchaser" or "buyer" means the person who originally paid the money under or in connection with a pre-need sales contract.

(T) "Parent company" means a corporation owning more than 12 cemeteries or funeral homes in more than one state.

(U) "Foreign warehouse facility" means a warehouse facility now or hereafter located in any state or territory of the United States, including the District of Columbia, other than the State of Illinois.

A foreign warehouse facility shall be deemed to have appointed the Comptroller to be its true and lawful attorney upon whom may be served all legal process in any action or proceeding against it relating to or growing out of this Act, and the acceptance of the delivery of stored merchandise under this Act shall be signification of its agreement that any such process against it which is so served, shall be of the same legal force and validity as though served upon it personally.

Service of such process shall be made by delivering to and leaving with the Comptroller, or any agent having charge of the Comptroller's Department of Cemetery and Burial Trusts, a copy of such process and such service shall be sufficient service upon such foreign warehouse facility if notice of such service and a copy of the process are, within 10 days thereafter, sent by registered mail by the plaintiff to the foreign warehouse facility at its principal office and the plaintiff's affidavit of compliance herewith is appended to the summons. The Comptroller shall keep a record of all process served upon him under this Section and shall record therein the time of such service.

(Source: P.A. 91-7, eff. 1-1-00; 91-357, eff. 7-29-99; 92-16, eff. 6-28-01; 92-419, eff. 1-1-02.)

(815 ILCS 390/6) (from Ch. 21, par. 206)

Sec. 6. License application.

(a) An application for a license shall be made in writing to the Comptroller on forms prescribed by him or her, signed by the applicant under oath verified by a notary public, and accompanied by a non-returnable $25 application fee. The Comptroller may prescribe abbreviated application forms for persons holding a license under the Cemetery Oversight Care Act. Applications (except abbreviated applications) must include at least the following information:

(1) The full name and address, both residence and business, of the applicant if the applicant is an individual; of every member if applicant is a partnership; of every member of the Board of Directors if applicant is an association; and of every officer, director and shareholder holding more than 10% of the corporate stock if applicant is a corporation;

(2) A detailed statement of applicant's assets and liabilities;

(2.1) The name and address of the applicant's principal place of business at which the books, accounts, and records are available for examination by the Comptroller as required by this Act;

(2.2) The name and address of the applicant's branch locations at which pre-need sales will be conducted and which will operate under the same license number as the applicant's principal place of business;

(3) For each individual listed under (1) above, a detailed statement of the individual's business experience for the 10 years immediately preceding the application; any present or prior connection between the individual and any other person engaged in pre-need sales; any felony or misdemeanor convictions for which fraud was an essential element; any charges or complaints lodged against the individual for which fraud was an essential element and which resulted in civil or criminal litigation; any failure of the individual to satisfy an enforceable judgment entered against him or her based upon fraud; and any other information requested by the Comptroller relating to the past business practices of the individual. Since the information required by this paragraph may be confidential or contain proprietary information, this information shall not be available to other licensees or the general public and shall be used only for the lawful purposes of the Comptroller in enforcing this Act;

(4) The name of the trustee and, if applicable, the names of the advisors to the trustee, including a copy of the proposed trust agreement under which the trust funds are to be held as required by this Act;

(5) Where applicable, the name of the corporate surety company providing the performance bond for the construction of undeveloped spaces and a copy of the bond; and

(6) Such other information as the Comptroller may reasonably require in order to determine the qualification of the applicant to be licensed under this Act.

(b) Applications for license shall be accompanied by a fidelity bond executed by the applicant and a security company authorized to do business in this State in such amount, not exceeding $10,000, as the Comptroller may require. The Comptroller may require additional bond from time to time in amounts equal to one-tenth of such trust funds but not to exceed $100,000, which bond shall run to the Comptroller for the use and benefit of the beneficiaries of such trust funds. Such licensee may by written permit of the Comptroller be authorized to operate without additional bond, except such fidelity bond as may be required by the Comptroller for the protection of the licensee against loss by default by any of its employees engaged in the handling of trust funds.

(c) Any application not acted upon within 90 days may be deemed denied.

(Source: P.A. 92-419, eff. 1-1-02.)

(815 ILCS 390/14) (from Ch. 21, par. 214)

Sec. 14. Contract required.

(a) It is unlawful for any person doing business within this State to accept sales proceeds, either directly or indirectly, by any means unless the seller enters into a pre-need sales contract with the purchaser which meets the following requirements:

(1) A written sales contract shall be executed in at least 11 point type in duplicate for each pre-need sale made by a licensee, and a signed copy given to the purchaser. Each completed contract shall be numbered and shall contain: (i) the name and address of the purchaser, the principal office of the licensee, and the parent company of the licensee; (ii) the name of the person, if known, who is to receive the cemetery merchandise, cemetery services or the completed interment, entombment or inurnment spaces under the contract; and (iii) specific identification of such merchandise, services or spaces to be provided, if a specific space or spaces are contracted for, and the price of the merchandise, services, or space or spaces.

(2) In addition, such contracts must contain a provision in distinguishing typeface as follows:

"Notwithstanding anything in this contract to the contrary, you are afforded certain specific rights of cancellation and refund under the Illinois Pre-Need Cemetery Sales Act, enacted by the 84th General Assembly of the State of Illinois".

(3) All pre-need sales contracts shall be sold on a guaranteed price basis. At the time of performance of the service or delivery of the merchandise, the seller shall be prohibited from assessing the purchaser or his heirs or assigns or duly authorized representative any additional charges for the specific merchandise and services listed on the pre-need sales contract.

(4) Each contract shall clearly disclose that the price of the merchandise or services is guaranteed and shall contain the following statement in 12 point bold type:

"THIS CONTRACT GUARANTEES THE BENEFICIARY THE SPECIFIC GOODS, SERVICES, INTERMENT SPACES, ENTOMBMENT SPACES, AND INURNMENT SPACES CONTRACTED FOR. NO ADDITIONAL CHARGES MAY BE REQUIRED FOR DESIGNATED GOODS, SERVICES, AND SPACES. ADDITIONAL CHARGES MAY BE INCURRED FOR UNEXPECTED EXPENSES."

(5) The pre-need sales contract shall provide that if the particular cemetery services, cemetery merchandise, or spaces specified in the pre-need contract are unavailable at the time of delivery, the seller shall be required to furnish services, merchandise, and spaces similar in style and at least equal in quality of material and workmanship.

(6) The pre-need contract shall also disclose any specific penalties to be incurred by the purchaser as a result of failure to make payments; and penalties to be incurred or moneys or refunds to be received as a result of cancellation of the contract.

(7) The pre-need contract shall disclose the nature of the relationship between the provider and the seller.

(8) Each pre-need contract that authorizes the delivery of cemetery merchandise to a licensed and bonded warehouse shall provide that prior to or upon delivery of the merchandise to the warehouse the title to the merchandise and a warehouse receipt shall be delivered to the purchaser or beneficiary. The pre-need contract shall contain the following statement in 12 point bold type:

"THIS CONTRACT AUTHORIZES THE DELIVERY OF MERCHANDISE TO A LICENSED AND BONDED WAREHOUSE FOR STORAGE OF THE MERCHANDISE UNTIL THE MERCHANDISE IS NEEDED BY THE BENEFICIARY. DELIVERY OF THE MERCHANDISE IN THIS MANNER MAY PRECLUDE REFUND OF SALE PROCEEDS THAT ARE ATTRIBUTABLE TO THE DELIVERED MERCHANDISE."

The purchaser shall initial the statement at the time of entry into the pre-need contract.

(9) Each pre-need contract that authorizes the placement of cemetery merchandise at the site of its ultimate use prior to the time that the merchandise is needed by the beneficiary shall contain the following statement in 12 point bold type:

"THIS CONTRACT AUTHORIZES THE PLACEMENT OF MERCHANDISE AT THE SITE OF ITS ULTIMATE USE PRIOR TO THE TIME THAT THE MERCHANDISE IS NEEDED BY THE BENEFICIARY. DELIVERY OF THE MERCHANDISE IN THIS MANNER MAY PRECLUDE REFUND OF SALE PROCEEDS THAT ARE ATTRIBUTABLE TO THE DELIVERED MERCHANDISE."

The purchaser shall initial the statement at the time of entry into the pre-need contract.

(10) Each pre-need contract that is funded by a trust shall clearly identify the trustee's name and address and the primary state or federal regulator of the trustee as a corporate fiduciary.

(b) Every pre-need sales contract must be in writing. The Comptroller may by rule develop a model pre-need sales contract form that meets the requirements of this Act.

(c) To the extent the Rule is applicable, every pre-need sales contract is subject to the Federal Trade Commission Rule concerning the Cooling-Off Period for Door-to-Door Sales (16 CFR Part 429).

(d) No pre-need sales contract may be entered into in this State unless there is a provider for the cemetery merchandise, cemetery services, and undeveloped interment, inurnment, and entombment spaces being sold. If the seller is not the provider, then the seller must have a binding agreement with a provider, and the identity of the provider and the nature of the agreement between the seller and the provider must be disclosed in the pre-need sales contract at the time of sale and before the receipt of any sale proceeds. The failure to disclose the identity of the provider, the nature of the agreement between the seller and the provider, or any changes thereto to the purchaser and beneficiary, or the failure to make the disclosures required by this Section constitutes an intentional violation of this Act.

(e) No pre-need contract may be entered into in this State unless it is accompanied by a funding mechanism permitted under this Act and unless the seller is licensed by the Comptroller as provided in this Act. Nothing in this Act is intended to relieve providers or sellers of pre-need contracts from being licensed under any other Act required for their profession or business or from being subject to the rules promulgated to regulate their profession or business, including rules on solicitation and advertisement.

(f) No pre-need contract may be entered into in this State unless the seller explains to the purchaser the terms of the pre-need contract prior to the purchaser signing and the purchaser initials a statement in the contract confirming that the seller has explained the terms of the contract prior to the purchaser signing.

(g) The State Comptroller shall develop a booklet for consumers in plain English describing the scope, application, and consumer protections of this Act. After the booklet is developed, no pre-need contract may be sold in this State unless the seller distributes to the purchaser prior to the sale a booklet developed or approved for use by the State Comptroller.

(Source: P.A. 91-7, eff. 1-1-00; 92-419, eff. 1-1-02.)

(815 ILCS 390/15) (from Ch. 21, par. 215)

Sec. 15. (a) Whenever a seller receives anything of value under a pre-need sales contract, the person receiving such value shall deposit 50% of all proceeds received into one or more trust funds maintained pursuant to this Section, except that, in the case of proceeds received for the purchase of outer burial containers, 85% of the proceeds shall be deposited into one or more trust funds. Such deposits shall be made until the amount deposited in trust equals 50% of the sales price of the cemetery merchandise, cemetery services and undeveloped spaces included in such contract, except that, in the case of deposits for outer burial containers, deposits shall be made until the amount deposited in trust equals 85% of the sales price. In the event an installment contract is factored, discounted or sold to a third party, the seller shall deposit an amount equal to 50% of the sales price of the installment contract, except that, for the portion of the contract attributable to the sale of outer burial containers, the seller shall deposit an amount equal to 85% of the sales price. Proceeds required to be deposited in trust which are attributable to cemetery merchandise and cemetery services shall be held in a "Cemetery Merchandise Trust Fund". Proceeds required to be deposited in trust which are attributable to the sale of undeveloped interment, entombment or inurnment spaces shall be held in a "Pre-construction Trust Fund". If merchandise is delivered for storage in a bonded warehouse, as authorized herein, and payment of transportation or other charges totaling more than $20 will be required in order to secure delivery to the site of ultimate use, upon such delivery to the warehouse the seller shall deposit to the trust fund the full amount of the actual or estimated transportation charge. Transportation charges which have been prepaid by the seller shall not be deposited to trust funds maintained pursuant to this Section. As used in this Section, "all proceeds" means the entire amount paid by a purchaser in connection with a pre-need sales contract, including finance charges and Cemetery Care Act contributions, but excluding sales taxes and credit life insurance premiums.

(b) The seller shall act as trustee of all amounts received for cemetery merchandise, services, or undeveloped spaces until those amounts have been deposited into the trust fund. All trust deposits required by this Act shall be made within 30 days following the end of the month of receipt. The seller must retain a corporate fiduciary as an independent trustee for any amount of trust funds. Upon 30 days' prior written notice from the seller to the Comptroller, the seller may change the trustee of the trust fund. Failure to provide the Comptroller with timely prior notice is an intentional violation of this Act.

(c) A trust established under this Act must be maintained with a corporate fiduciary as defined in Section 1-5.05 of the Corporate Fiduciary Act. :

(1) in a trust account established in a bank, savings and loan association or credit union authorized to do business in Illinois where such accounts are insured by an agency of the federal government;

(2) in a trust company authorized to do business in Illinois; or

(3) in an investment company authorized to do business in Illinois insured by the Securities Brokers Insurance Corporation.

(d) Funds deposited in the trust account shall be identified in the records of the seller by the name of the purchaser. Nothing shall prevent the trustee from commingling the deposits in any such trust fund for purposes of the management thereof and the investment of funds therein as provided in the "Common Trust Fund Act", approved June 24, 1949, as amended. In addition, multiple trust funds maintained pursuant to this Act may be commingled or commingled with other funeral or burial related trust funds, provided that all record keeping requirements imposed by or pursuant to law are met.

(e) In lieu of a pre-construction trust fund, a seller of undeveloped interment, entombment or inurnment spaces may obtain and file with the Comptroller a performance bond in an amount at least equal to 50% of the sales price of the undeveloped spaces or the estimated cost of completing construction, whichever is greater. The bond shall be conditioned on the satisfactory construction and completion of the undeveloped spaces as required in Section 19 of this Act.

Each bond obtained under this Section shall have as surety thereon a corporate surety company incorporated under the laws of the United States, or a State, the District of Columbia or a territory or possession of the United States. Each such corporate surety company must be authorized to provide performance bonds as required by this Section, have paid-up capital of at least $250,000 in cash or its equivalent and be able to carry out its contracts. Each pre-need seller must provide to the Comptroller, for each corporate surety company such seller utilizes, a statement of assets and liabilities of the corporate surety company sworn to by the president and secretary of the corporation by January 1 of each year.

The Comptroller shall prohibit pre-need sellers from doing new business with a corporate surety company if the company is insolvent or is in violation of this Section. In addition the Comptroller may direct a pre-need seller to reinstate a pre-construction trust fund upon the Comptroller's determination that the corporate surety company no longer is sufficient security.

All performance bonds issued pursuant to this Section must be irrevocable during the statutory term for completing construction specified in Section 19 of this Act, unless terminated sooner by the completion of construction.

(f) Whenever any pre-need contract shall be entered into and include 1) items of cemetery merchandise and cemetery services, and 2) rights to interment, inurnment or entombment in completed spaces without allocation of the gross sale price among the items sold, the application of payments received under the contract shall be allocated, first to the right to interment, inurnment or entombment, second to items of cemetery merchandise and cemetery services, unless some other allocation is clearly provided in the contract.

(g) Any person engaging in pre-need sales who enters into a combination sale which involves the sale of items covered by a trust or performance bond requirement and any item not covered by any entrustment or bond requirement, shall be prohibited from increasing the gross sales price of those items not requiring entrustment with the purpose of allocating a lesser gross sales price to items which require a trust deposit or a performance bond.

(Source: P.A. 91-7; eff. 1-1-2000.)

(815 ILCS 390/16) (from Ch. 21, par. 216)

Sec. 16. Trust funds; disbursements.

(a) A trustee shall make no disbursements from the trust fund except as provided in this Act.

(b) A trustee has a duty to invest and manage the trust assets pursuant to the Prudent Investor Rule under the Trusts and Trustees Act. Whenever the seller changes trustees pursuant to this Act, the trustee must provide written notice of the change in trustees to the Comptroller no less than 28 days prior to the effective date of such a change in trustee. The trustee has an ongoing duty to provide the Comptroller with a current and true copy of the trust agreement under which the trust funds are held pursuant to this Act. shall, with respect to the investment of such trust funds, exercise the judgment and care under the circumstances then prevailing which persons of prudence, discretion and intelligence exercise in the management of their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital.

The seller shall act as trustee of all amounts received for cemetery merchandise, services, or undeveloped spaces until those amounts have been deposited into the trust fund. The seller may continue to be the trustee of up to $500,000 that has been deposited into the trust fund, but the seller must retain an independent trustee for any amount of trust funds in excess of $500,000. A seller holding trust funds in excess of $500,000 must retain an independent trustee for its trust funds in excess of $500,000 as soon as may be practical. The Comptroller shall have the right to disqualify the trustee upon the same grounds as for refusing to grant or revoking a license hereunder. Upon notice to the Comptroller, the seller may change the trustee of the trust fund.

(c) The trustee may rely upon certifications and affidavits made to it under the provisions of this Act, and shall not be liable to any person for such reliance.

(d) A trustee shall be allowed to withdraw from the trust funds maintained pursuant to this Act, payable solely from the income earned on such trust funds, a reasonable fee pursuant to the Trusts and Trustees Act for all usual and customary services for the operation of the trust fund, including, but not limited to trustee fees, investment advisor fees, allocation fees, annual audit fees and other similar fees. The maximum amount allowed to be withdrawn for these fees each year shall be the lesser of 3% of the balance of the trust calculated on an annual basis or the amount of annual income generated therefrom.

(e) The trust shall be a single-purpose trust fund. In the event of the seller'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 seller or to pay any expenses of any bankruptcy or similar proceeding, but shall be distributed to the purchasers or managed for their benefit by the trustee holding the funds. Except in an action by the Comptroller 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 Comptroller. The changes made by this amendatory Act of the 91st General Assembly are intended to clarify existing law regarding the inability of licensees to pledge the trust.

(f) Because it is not known at the time of deposit or at the time that income is earned on the trust account to whom the principal and the accumulated earnings will be distributed, for purposes of determining the Illinois Income Tax due on these trust funds, the principal and any accrued earnings or losses relating to each individual account shall be held in suspense until the final determination is made as to whom the account shall be paid.

(g) A trustee shall at least annually furnish to each purchaser a statement identifying: (1) the receipts, disbursements, and inventory of the trust, including an explanation of any fees or expenses charged by the trustee under paragraph (d) of this Section or otherwise, (2) an explanation of the purchaser's right to a refund, if any, under this Act, and (3) the primary regulator of the trust as a corporate fiduciary under state or federal law.

(Source: P.A. 91-7, eff. 6-1-99; 92-419, eff. 1-1-02.)

Section 90-57. The Consumer Fraud and Deceptive Business Practices Act is amended by changing Section 2Z as follows:

(815 ILCS 505/2Z) (from Ch. 121 1/2, par. 262Z)

Sec. 2Z. Violations of other Acts. Any person who knowingly violates the Automotive Repair Act, the Automotive Collision Repair Act, the Home Repair and Remodeling Act, the Dance Studio Act, the Physical Fitness Services Act, the Hearing Instrument Consumer Protection Act, the Illinois Union Label Act, the Job Referral and Job Listing Services Consumer Protection Act, the Travel Promotion Consumer Protection Act, the Credit Services Organizations Act, the Automatic Telephone Dialers Act, the Pay-Per-Call Services Consumer Protection Act, the Telephone Solicitations Act, the Illinois Funeral or Burial Funds Act, the Cemetery Oversight Act, the Cemetery Care Act, the Safe and Hygienic Bed Act, the Pre-Need Cemetery Sales Act, the High Risk Home Loan Act, the Payday Loan Reform Act, the Mortgage Rescue Fraud Act, subsection (a) or (b) of Section 3-10 of the Cigarette Tax Act, the Payday Loan Reform Act, subsection (a) or (b) of Section 3-10 of the Cigarette Use Tax Act, the Electronic Mail Act, the Internet Caller Identification Act, paragraph (6) of subsection (k) of Section 6-305 of the Illinois Vehicle Code, Section 18d-115, 18d-120, 18d-125, 18d-135, or 18d-150 of the Illinois Vehicle Code, Article 3 of the Residential Real Property Disclosure Act, the Automatic Contract Renewal Act, or the Personal Information Protection Act commits an unlawful practice within the meaning of this Act.

(Source: P.A. 94-13, eff. 12-6-05; 94-36, eff. 1-1-06; 94-280, eff. 1-1-06; 94-292, eff. 1-1-06; 94-822, eff. 1-1-07; 95-413, eff. 1-1-08; 95-562, eff. 7-1-08; 95-876, eff. 8-21-08.)

Section 90-60. The Burial Rights Act is amended by changing Sections 1 and 2.3 as follows:

(820 ILCS 135/1) (from Ch. 21, par. 101)

Sec. 1. (a) Every contract, agreement or understanding between a cemetery authority and a cemetery workers' association which totally prohibits burials of human remains on Sundays or legal holidays shall be deemed to be void as against public policy and wholly unenforceable.

(b) Nothing in this Section shall prohibit a cemetery authority and a cemetery workers' association from entering into a contract, agreement or understanding which limits Sunday or holiday burials of human remains to decedents who were members of religious sects whose tenets or beliefs require burials within a specified period of time and whose deaths occurred at such times as to necessitate Sunday or holiday burials. Such contract, agreement or understanding may provide that a funeral director notify the cemetery authority within a reasonable time when a Sunday or holiday burial is necessitated by reason of the decedent's religious tenets or beliefs.

(c) It shall be unlawful for any person to restrain, prohibit or interfere with the burial of a decedent whose time of death and religious tenets or beliefs necessitate burial on a Sunday or legal holiday.

(d) A violation of this Section is a Class A misdemeanor.

(e) For the purposes of this Act, "cemetery authority" shall have the meaning ascribed to it in Section 2 of the Cemetery Oversight Care Act; and "cemetery workers' association" means an organization of workers who are employed by cemetery authorities to perform the task of burying human remains or transporting remains to cemeteries or other places of interment, and who join together for collective bargaining purposes or to negotiate terms and conditions of employment.

(Source: P.A. 83-384.)

(820 ILCS 135/2.3)

Sec. 2.3. Sections of cemeteries. No provision of any law of this State may be construed to prohibit a cemetery authority from reserving, in a cemetery not owned by a religious organization or institution, a section of interment rights, entombment rights, or inurnment rights for sale exclusively to persons of a particular religion, unless membership in the religion is restricted on account of race, color, or national origin. As used in this Section, "interment rights", "entombment rights", and "inurnment rights" have the meanings ascribed to those terms in the Cemetery Oversight Care Act.

(Source: P.A. 88-659.)

(760 ILCS 100/Act rep.)

Section 90-90. The Cemetery Care Act is repealed.

(805 ILCS 320/16 rep.)

(805 ILCS 320/16.5 rep.)

(805 ILCS 320/17 rep.)

(805 ILCS 320/18 rep.)

(805 ILCS 320/19 rep.)

(805 ILCS 320/20 rep.)

Section 90-92. The Cemetery Association Act is amended by repealing Sections 16, 16.5, 17, 18, 19, and 20.

(805 ILCS 320/Act rep.)

Section 90-95. The Cemetery Association Act is repealed.

Article 91.

Additional Amendatory Provisions

Section 91-5. The Funeral Directors and Embalmers Licensing Code is amended by changing Sections 1-10, 15-50, 15-60, and 15-75 and adding Article 12 as follows:

(225 ILCS 41/1-10)

(Section scheduled to be repealed on January 1, 2013)

Sec. 1-10. Definitions. As used in this Code:

"Applicant" means any person making application for a license or certificate of registration.

"Board" means the Funeral Directors and Embalmers Licensing and disciplinary Board.

"Customer service employee" means a funeral home employee who has direct contact with consumers and explains merchandise or services or negotiates, develops, or finalizes contracts with consumers. This definition includes, without limitation, an individual that is an independent contractor or an individual employed or contracted by an independent contractor who has direct contact with consumers and explains merchandise or services or negotiates, develops, or finalizes contracts with consumers.

"Department" means the Department of Professional Regulation.

"Director" means the Director of Professional Regulation.

"Funeral director and embalmer" means a person who is licensed and qualified to practice funeral directing and to prepare, disinfect and preserve dead human bodies by the injection or external application of antiseptics, disinfectants or preservative fluids and materials and to use derma surgery or plastic art for the restoring of mutilated features. It further means a person who restores the remains of a person for the purpose of funeralization whose organs or bone or tissue has been donated for anatomical purposes.

"Funeral director and embalmer intern" means a person licensed by the State who is qualified to render assistance to a funeral director and embalmer in carrying out the practice of funeral directing and embalming under the supervision of the funeral director and embalmer.

"Embalming" means the process of sanitizing and chemically treating a deceased human body in order to reduce the presence and growth of microorganisms, to retard organic decomposition, to render the remains safe to handle while retaining naturalness of tissue, and to restore an acceptable physical appearance for funeral viewing purposes.

"Funeral director" means a person, known by the title of "funeral director" or other similar words or titles, licensed by the State who practices funeral directing.

"Funeral establishment", "funeral chapel", "funeral home", or "mortuary" means a building or separate portion of a building having a specific street address or location and devoted to activities relating to the shelter, care, custody and preparation of a deceased human body and which may contain facilities for funeral or wake services.

"Owner" means the individual, partnership, corporation, association, trust, estate, or agent thereof, or other person or combination of persons who owns a funeral establishment or funeral business.

"Person" means any individual, partnership, association, firm, corporation, trust or estate, or other entity.

(Source: P.A. 93-268, eff. 1-1-04.)

(225 ILCS 41/Art. 12 heading new)

ARTICLE 12. CUSTOMER SERVICE EMPLOYEES

(225 ILCS 41/12-5 new)

Sec. 12-5. License requirement. Customer service employees employed by a funeral establishment, funeral chapel, funeral home, or mortuary must apply for licensure as a customer service employee on forms prescribed by the Department and pay the fee established by rule. It is unlawful for any person to act as a customer service employee without a customer service employee license issued by the Department.

A person acting as a customer service employee who, prior to the effective date of this amendatory Act of the 96th General Assembly, was not required to obtain licensure need not comply with the licensure requirement in this Article until the Department takes action on the person's application for a license. The application for a customer service employee license must be submitted to the Department within 6 months after the effective date of this amendatory Act of the 96th General Assembly. If the person fails to submit the application within 6 months after the effective date of this amendatory Act of the 96th General Assembly, then the person shall be considered to be engaged in unlicensed practice and shall be subject to discipline under this Act.

(225 ILCS 41/12-10 new)

Sec. 12-10. Qualifications for licensure.

(a) A person is qualified for licensure as a customer service employee if he or she meets all of the following requirements:

(1) Is at least 18 years of age.

(2) Is of good moral character, including compliance with the Code of Professional Conduct and Ethics as provided for by rule. Good moral character is a continuing requirement of licensure. In determining good moral character, the Department may take into consideration conviction of any crime under the laws of any jurisdiction.

(3) Submits proof of successful completion of a high school education or its equivalent as established by rule.

(4) Submits his or her fingerprints in accordance with subsection (b) of this Section.

(5) Has not committed a violation of this Act or any rules adopted under this Act that, in the opinion of the Department, renders the applicant unqualified to be a customer service employee.

(6) Successfully passes the examination authorized by the Department for customer service employees.

(7) Has complied with all other requirements of this Act and rules established for the implementation of this Act.

(8) Can be reasonably expected to treat consumers professionally, fairly, and ethically.

(b) Each applicant for a customer service employee license shall have his or her fingerprints submitted to the Department of State Police in an electronic format that complies with the form and manner for requesting and furnishing criminal history record information that is prescribed by the Department of State Police. These fingerprints shall be checked against the Department of State Police and Federal Bureau of Investigation criminal history record databases. The Department of State Police shall charge applicants a fee for conducting the criminal history records check, which shall be deposited in the State Police Services Fund and shall not exceed the actual cost of the records check. The Department of State Police shall furnish, pursuant to positive identification, records of Illinois convictions to the Department. The Department may require applicants to pay a separate fingerprinting fee, either to the Department or directly to a designated fingerprint vendor. The Department, in its discretion, may allow an applicant who does not have reasonable access to a designated fingerprint vendor to provide his or her fingerprints in an alternative manner. The Department, in its discretion, may also use other procedures in performing or obtaining criminal background checks of applicants. Instead of submitting his or her fingerprints, an individual may submit proof that is satisfactory to the Department that an equivalent security clearance has been conducted.

(225 ILCS 41/12-15 new)

Sec. 12-15. Examination; failure or refusal to take the examination.

(a) The Department shall authorize examinations of customer service employee applicants at such times and places as it may determine. The examinations shall fairly test an applicant's qualifications to practice as customer service employee and knowledge of the theory and practice of funeral home customer service. The examination shall further test the extent to which the applicant understands and appreciates that the final disposal of a deceased human body should be attended with appropriate observance and understanding, having due regard and respect for the reverent care of the human body and for those bereaved and for the overall spiritual dignity of an individual.

(b) Applicants for examinations shall pay, either to the Department or to the designated testing service, a fee covering the cost of providing the examination. Failure to appear for the examination on the scheduled date at the time and place specified after the application for examination has been received and acknowledged by the Department or the designated testing service shall result in forfeiture of the examination fee.

(c) If the applicant neglects, fails, or refuses to take an examination or fails to pass an examination for a license under this Act within one year after filing an application, then the application shall be denied. However, the applicant may thereafter submit a new application accompanied by the required fee. The applicant shall meet the requirements in force at the time of making the new application.

(d) The Department may employ consultants for the purpose of preparing and conducting examinations.

(e) The Department shall have the authority to adopt or recognize, in part or in whole, examinations prepared, administered, or graded by other organizations in the cemetery industry that are determined appropriate to measure the qualifications of an applicant for licensure.

(225 ILCS 41/12-20 new)

Sec. 12-20. Continuing education. The Department shall promulgate rules of continuing education for cemetery managers and customer service employees. The requirements of this Section apply to any person seeking renewal or restoration under this Code.

(225 ILCS 41/15-50)

(Section scheduled to be repealed on January 1, 2013)

Sec. 15-50. Practice by corporation, partnership, or association. No corporation, partnership or association of individuals, as such, shall be issued a license as a licensed funeral director and embalmer or licensed funeral director, nor shall any corporation, partnership, firm or association of individuals, or any individual connected therewith, publicly advertise any corporation, partnership or association of individuals as being licensed funeral directors and embalmers or licensed funeral directors. Nevertheless, nothing in this Act shall restrict funeral director licensees or funeral director and embalmer licensees from forming professional service corporations under the Professional Service Corporation Act or from having these corporations registered for the practice of funeral directing.

No funeral director licensee or funeral director and embalmer licensee, and no partnership or association of those licensees, formed since July 1, 1935, shall engage in the practice of funeral directing and embalming or funeral directing under a trade name or partnership or firm name unless in the use and advertising of the trade name, partnership or firm name there is published in connection with the advertising the name of the owner or owners as the owner or owners.

(Source: P.A. 87-966.)

(225 ILCS 41/15-60)

(Section scheduled to be repealed on January 1, 2013)

Sec. 15-60. Determination of life. Every funeral director licensee or funeral director and embalmer licensee under this Code before proceeding to prepare or embalm a human body to cremate or bury shall determine that life is extinct by ascertaining that:

(a) pulsation has entirely ceased in the radial or other arteries; and

(b) heart or respiratory sounds are not audible with the use of a stethoscope or with the ear applied directly over the heart.

(Source: P.A. 87-966.)

(225 ILCS 41/15-75)

(Section scheduled to be repealed on January 1, 2013)

Sec. 15-75. Violations; grounds for discipline; penalties.

(a) Each of the following acts is a Class A misdemeanor for the first offense, and a Class 4 felony for each subsequent offense. These penalties shall also apply to unlicensed owners of funeral homes.

(1) Practicing the profession of funeral directing and embalming or funeral directing, or attempting to practice the profession of funeral directing and embalming or funeral directing without a license as a licensed funeral director and embalmer or funeral director or acting as a customer service employee without a license as a customer service employee issued by the Department.

(2) Serving as an intern under a licensed funeral director and embalmer or attempting to serve as an intern under a licensed funeral director and embalmer without a license as a licensed funeral director and embalmer intern.

(3) Obtaining or attempting to obtain a license, practice or business, or any other thing of value, by fraud or misrepresentation.

(4) Permitting any person in one's employ, under one's control or in or under one's service to serve as a funeral director and embalmer, funeral director, or funeral director and embalmer intern when the person does not have the appropriate license.

(5) Failing to display a license as required by this Code.

(6) Giving false information or making a false oath or affidavit required by this Code.

(b) Each of the following acts or actions is a violation of this Code for which the Department may refuse to issue or renew, or may suspend or revoke any license or may take any disciplinary action as the Department may deem proper including fines not to exceed $1,000 for each violation.

(1) Obtaining or attempting to obtain a license by fraud or misrepresentation.

(2) Conviction in this State or another state of any crime that is a felony or misdemeanor under the laws of this State or conviction of a felony or misdemeanor in a federal court.

(3) Violation of the laws of this State relating to the funeral, burial or disposal of deceased human bodies or of the rules and regulations of the Department, or the Department of Public Health.

(4) Directly or indirectly paying or causing to be paid any sum of money or other valuable consideration for the securing of business or for obtaining authority to dispose of any deceased human body.

(5) Incompetence or untrustworthiness in the practice of funeral directing and embalming or funeral directing.

(6) False or misleading advertising as a funeral director and embalmer or funeral director, or advertising or using the name of a person other than the holder of a license in connection with any service being rendered in the practice of funeral directing and embalming or funeral directing. Nothing in this paragraph shall prevent including the name of any owner, officer or corporate director of a funeral business who is not a licensee in any advertisement used by a funeral home with which the individual is affiliated if the advertisement specifies the individual's affiliation with the funeral home.

(7) Engaging in, promoting, selling, or issuing burial contracts, burial certificates, or burial insurance policies in connection with the profession as a funeral director and embalmer, funeral director, or funeral director and embalmer intern in violation of any laws of the State of Illinois.

(8) Refusing, without cause, to surrender the custody of a deceased human body upon the proper request of the person or persons lawfully entitled to the custody of the body.

(9) Taking undue advantage of a client or clients as to amount to the perpetration of fraud.

(10) Engaging in funeral directing and embalming or funeral directing without a license.

(11) Encouraging, requesting, or suggesting by a licensee or some person working on his behalf and with his consent for compensation that a person utilize the services of a certain funeral director and embalmer, funeral director, or funeral establishment unless that information has been expressly requested by the person. This does not prohibit general advertising or pre-need solicitation.

(12) Making or causing to be made any false or misleading statements about the laws concerning the disposal of human remains, including, but not limited to, the need to embalm, the need for a casket for cremation or the need for an outer burial container.

(13) Continued practice by a person having an infectious or contagious disease.

(14) Embalming or attempting to embalm a deceased human body without express prior authorization of the person responsible for making the funeral arrangements for the body. This does not apply to cases where embalming is directed by local authorities who have jurisdiction or when embalming is required by State or local law.

(15) Making a false statement on a Certificate of Death where the person making the statement knew or should have known that the statement was false.

(16) Soliciting human bodies after death or while death is imminent.

(17) Performing any act or practice that is a violation of this Code, the rules for the administration of this Code, or any federal, State or local laws, rules, or regulations governing the practice of funeral directing or embalming.

(18) Performing any act or practice that is a violation of Section 2 of the Consumer Fraud and Deceptive Business Practices Act.

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

(20) Taking possession of a dead human body without having first obtained express permission from next of kin or a public agency legally authorized to direct, control or permit the removal of deceased human bodies.

(21) Advertising in a false or misleading manner or advertising using the name of an unlicensed person in connection with any service being rendered in the practice of funeral directing or funeral directing and embalming. The use of any name of an unlicensed or unregistered person in an advertisement so as to imply that the person will perform services is considered misleading advertising. Nothing in this paragraph shall prevent including the name of any owner, officer or corporate director of a funeral home, who is not a licensee, in any advertisement used by a funeral home with which the individual is affiliated, if the advertisement specifies the individual's affiliation with the funeral home.

(22) Directly or indirectly receiving compensation for any professional services not actually performed.

(23) Failing to account for or remit any monies, documents, or personal property that belongs to others that comes into a licensee's possession.

(24) Treating any person differently to his detriment because of race, color, creed, gender, religion, or national origin.

(25) Knowingly making any false statements, oral or otherwise, of a character likely to influence, persuade or induce others in the course of performing professional services or activities.

(26) Knowingly making or filing false records or reports in the practice of funeral directing and embalming.

(27) Failing to acquire continuing education required under this Code.

(28) Failing to comply with any of the following required activities:

(A) When reasonably possible, a funeral director licensee or funeral director and embalmer licensee or anyone acting on his or her behalf shall obtain the express authorization of the person or persons responsible for making the funeral arrangements for a deceased human body prior to removing a body from the place of death or any place it may be or embalming or attempting to embalm a deceased human body, unless required by State or local law. This requirement is waived whenever removal or embalming is directed by local authorities who have jurisdiction. If the responsibility for the handling of the remains lawfully falls under the jurisdiction of a public agency, then the regulations of the public agency shall prevail.

(B) A licensee shall clearly mark the price of any casket offered for sale or the price of any service using the casket on or in the casket if the casket is displayed at the funeral establishment. If the casket is displayed at any other location, regardless of whether the licensee is in control of that location, the casket shall be clearly marked and the registrant shall use books, catalogues, brochures, or other printed display aids to show the price of each casket or service.

(C) At the time funeral arrangements are made and prior to rendering the funeral services, a licensee shall furnish a written statement to be retained by the person or persons making the funeral arrangements, signed by both parties, that shall contain: (i) the name, address and telephone number of the funeral establishment and the date on which the arrangements were made; (ii) the price of the service selected and the services and merchandise included for that price; (iii) a clear disclosure that the person or persons making the arrangement may decline and receive credit for any service or merchandise not desired and not required by law or the funeral director or the funeral director and embalmer; (iv) the supplemental items of service and merchandise requested and the price of each item; (v) the terms or method of payment agreed upon; and (vi) a statement as to any monetary advances made by the registrant on behalf of the family.

(29) A finding by the Department that the license, after having his or her license placed on probationary status or subjected to conditions or restrictions, violated the terms of the probation or failed to comply with such terms or conditions.

(30) Violation of any final administrative action of the Director.

(31) Being named as a perpetrator in an indicated report by the Department of Children and Family Services pursuant to the Abused and Neglected Child Reporting Act and, upon proof by clear and convincing evidence, being found to have caused a child to be an abused child or neglected child as defined in the Abused and Neglected Child Reporting Act.

(c) The Department may refuse to issue or renew, or may suspend, the license of any person who fails to file a return, to pay the tax, penalty or interest shown in a filed return, or to pay any final assessment of tax, penalty or interest as required by any tax Act administered by the Illinois Department of Revenue, until the time as the requirements of the tax Act are satisfied.

(Source: P.A. 93-268, eff. 1-1-04.)

Article 900.

Severability

Section 900-5. Severability. This Act is declared to be severable, and should any word, phrase, sentence, provision or Section hereof be hereafter declared unconstitutional or otherwise invalid, the remainder of this Act shall not thereby be affected, but shall remain valid and in full force and effect for all intents and purposes.

Article 999.

Effective date

Section 999-5. Effective date. This Act takes effect January 1, 2010, except that Section 90-25 takes effect March 15, 2010 Sections, 90-90 and 90-95 take effect July 1, 2011, and Sections 90-33, 90-57, 90-92, and 999-5 take effect upon becoming law.".