Full Text of SB0675 97th General Assembly
SB0675enr 97TH GENERAL ASSEMBLY |
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| 1 | | AN ACT concerning regulation.
| 2 | | Be it enacted by the People of the State of Illinois, | 3 | | represented in the General Assembly:
| 4 | | Section 5. The Illinois Funeral or Burial Funds Act is | 5 | | amended by changing Sections 2, 3, and 3a-5 as follows:
| 6 | | (225 ILCS 45/2) (from Ch. 111 1/2, par. 73.102)
| 7 | | Sec. 2.
(a) If a purchaser selects a trust arrangement to | 8 | | fund the
pre-need contract, all trust deposits as determined by | 9 | | Section 1b shall be made
within 30 days of receipt.
| 10 | | (b) A trust established under this Act must be maintained | 11 | | with a corporate fiduciary as defined in Section 1-5.05 of the | 12 | | Corporate Fiduciary Act or with a foreign corporate fiduciary | 13 | | recognized by Article IV of the Corporate Fiduciary Act .
| 14 | | (c) Trust agreements and amendments to the trust agreements | 15 | | used to
fund a pre-need contract shall be filed with the | 16 | | Comptroller.
| 17 | | (d) (Blank).
| 18 | | (e) A seller or provider shall furnish to the trustee and | 19 | | depositary the
name of each payor and the amount of payment on | 20 | | each such account for which
deposit is being so made. Nothing | 21 | | shall prevent the trustee from commingling the
deposits in any | 22 | | such trust fund for purposes of its management and the
| 23 | | investment of its funds as provided in the Common Trust Fund |
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| 1 | | Act. In addition,
multiple trust funds maintained under this | 2 | | Act may be commingled or commingled
with other funeral or | 3 | | burial related trust funds if all record keeping
requirements | 4 | | imposed by law are met.
| 5 | | (f) (Blank).
| 6 | | (g) Upon no less than 30 days prior notice to the | 7 | | Comptroller, the seller may change
the trustee of
the fund. | 8 | | Failure to provide the Comptroller with timely prior notice is | 9 | | an intentional violation of this Act. | 10 | | (h) A trustee shall at least annually furnish to each | 11 | | purchaser a statement containing: (1) the receipts, | 12 | | disbursements, and inventory of the trust, including an | 13 | | explanation of any fees or expenses charged by the trustee | 14 | | under Section 5 of this Act or otherwise, (2) an explanation of | 15 | | the purchaser's right to a refund, if any, under this Act, and | 16 | | (3) identifying the primary regulator of the trust as a | 17 | | corporate fiduciary under state or federal law.
| 18 | | (Source: P.A. 96-879, eff. 2-2-10.)
| 19 | | (225 ILCS 45/3) (from Ch. 111 1/2, par. 73.103)
| 20 | | Sec. 3. Licensing.
| 21 | | (a) No person, firm, partnership, association or | 22 | | corporation may act as
seller without first securing from the | 23 | | State Comptroller a
license to
so act. Application for such | 24 | | license shall be in writing, signed by the
applicant and duly | 25 | | verified on forms furnished by the Comptroller. Each
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| 1 | | application shall contain at least the following:
| 2 | | (1) The full name and
address (both residence and place | 3 | | of business) of the applicant, and
every member, officer | 4 | | and director thereof if the applicant is a firm,
| 5 | | partnership, association, or corporation, and of every | 6 | | shareholder
holding
more than 10% of the corporate stock if | 7 | | the applicant is a corporation;
| 8 | | (2) A statement of the applicant's
assets and | 9 | | liabilities;
| 10 | | (3) The name and address of the applicant's principal
| 11 | | place of business at which the books, accounts, and
records | 12 | | shall be available for examination by the
Comptroller as | 13 | | required by this Act;
| 14 | | (4) The names and addresses of the applicant's branch
| 15 | | locations at which pre-need sales shall be conducted and
| 16 | | which shall operate under the same license number as the
| 17 | | applicant's principal place of business;
| 18 | | (5) For each individual listed under item (1) above, a
| 19 | | detailed statement of the individual's business
experience | 20 | | for the 10 years immediately preceding the
application; any | 21 | | present or prior connection between the
individual and any | 22 | | other person engaged in pre-need
sales; any felony or | 23 | | misdemeanor convictions for which
fraud was an essential | 24 | | element; any charges or
complaints lodged against the | 25 | | individual for which fraud
was an essential element and | 26 | | which resulted in civil or
criminal litigation; any failure |
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| 1 | | of the individual to
satisfy an enforceable judgment | 2 | | entered against him
based upon fraud; and any other | 3 | | information requested by
the Comptroller relating to past | 4 | | business practices of
the individual. Since the | 5 | | information required by this
item (5) may be confidential | 6 | | or contain proprietary
information, this information shall | 7 | | not be available to
other licensees or the general public | 8 | | and shall be used
only for the lawful purposes of the | 9 | | Comptroller in
enforcing this Act;
| 10 | | (6) The name of the trustee and, if applicable, the
| 11 | | names of the advisors to the trustee, including a copy
of | 12 | | the proposed trust agreement under which the trust
funds | 13 | | are to be held as required by this Act; and
| 14 | | (7) Such other information as the Comptroller may
| 15 | | reasonably require in order to determine the
qualification | 16 | | of the applicant to be licensed under this
Act.
| 17 | | (b) Applications for
license shall be accompanied
by a | 18 | | fidelity bond executed by the applicant and a surety company
| 19 | | authorized to do business in this State or an irrevocable, | 20 | | unconditional
letter of credit issued by a bank, credit union, | 21 | | or trust company authorized to
do business in the State of | 22 | | Illinois, as approved by the State Comptroller, in
such amount | 23 | | not exceeding $10,000 as the Comptroller may require. If, after
| 24 | | notice and an opportunity to be heard, it
has been determined | 25 | | that a licensee has violated this Act within the past 5
| 26 | | calendar years, the Comptroller may require an additional bond |
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| 1 | | or letter of credit
from the licensee from time to time in | 2 | | amounts equal to one-tenth of such trust
funds, which bond or | 3 | | letter of credit shall run to the Comptroller for the use
and | 4 | | benefit of the beneficiaries of such trust funds.
| 5 | | The licensee shall keep accurate accounts, books and | 6 | | records in this State,
at the principal place of business | 7 | | identified in the
licensee's license application or as | 8 | | otherwise approved by
the Comptroller in writing,
of
all | 9 | | transactions, copies of all pre-need contracts, trust | 10 | | agreements, and other
agreements, dates and amounts of payments | 11 | | made and accepted thereon, the names
and addresses of the | 12 | | contracting parties, the persons for whose benefit such
funds | 13 | | are accepted, and the names of the depositaries of such funds.
| 14 | | Each licensee shall maintain the documentation for a period
of | 15 | | 3 years after the licensee has fulfilled his obligations
under | 16 | | the pre-need contract. Additionally, for a period
not to exceed | 17 | | 6 months after the performance of all terms
in a pre-need sales | 18 | | contract, the licensee shall maintain
copies of the contract at | 19 | | the licensee branch location
where the contract was entered or | 20 | | at some other location agreed to by the
Comptroller in writing.
| 21 | | If an
insurance policy or tax-deferred annuity is used to fund | 22 | | the pre-need contract,
the licensee under this Act shall keep | 23 | | and maintain accurate accounts, books,
and records in this | 24 | | State, at the principal place of business identified in
the
| 25 | | licensee's application or as otherwise approved by the
| 26 | | Comptroller in writing,
of all insurance policies and |
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| 1 | | tax-deferred annuities
used to fund the pre-need contract, the | 2 | | name and address of insured, annuitant,
and initial | 3 | | beneficiary, and the name and address of the insurance company
| 4 | | issuing the policy or annuity. If a life insurance policy or | 5 | | tax-deferred
annuity is used to fund a pre-need contract, the | 6 | | licensee shall notify the
insurance company of the name of each | 7 | | pre-need contract purchaser and the
amount of each payment when | 8 | | the pre-need contract, insurance policy or annuity
is | 9 | | purchased.
| 10 | | The licensee shall make reports to the Comptroller annually | 11 | | or at such other
time as the Comptroller may require, on forms | 12 | | furnished by the Comptroller. The
licensee shall file the | 13 | | annual report with the Comptroller within 75 days after
the end | 14 | | of the licensee's fiscal year. The Comptroller shall for good | 15 | | cause
shown grant an extension for the filing of the annual | 16 | | report upon the written
request of the licensee. Such extension | 17 | | shall not exceed 60 days. If a
licensee fails to submit an | 18 | | annual report to the Comptroller within the time
specified in | 19 | | this Section, the Comptroller shall impose upon the licensee a
| 20 | | penalty of $5 per day for the first 15 days past due, $10 per | 21 | | day for 16 through 30 days past due, $15 per day for 31 through | 22 | | 45 days past due, and $20 per day for the 46th day and every day | 23 | | thereafter for each and every day the licensee remains | 24 | | delinquent in
submitting the annual report. The Comptroller may | 25 | | abate all or part of the
$5 daily penalty for good cause shown. | 26 | | Every application shall be
accompanied by a check
or money |
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| 1 | | order in the amount of $25 and every report shall be | 2 | | accompanied by a
check or money order in the amount of $10 | 3 | | payable to: Comptroller, State of
Illinois.
| 4 | | The licensee shall make all required books and records | 5 | | pertaining to trust
funds, insurance policies, or tax-deferred | 6 | | annuities available to the
Comptroller for examination. The | 7 | | Comptroller, or a person designated by the
Comptroller who is | 8 | | trained to perform such examinations, may at any time
| 9 | | investigate the books, records and accounts of the licensee | 10 | | with respect to
trust funds, insurance policies, or | 11 | | tax-deferred annuities and for that purpose
may require the | 12 | | attendance of and examine under oath all persons whose
| 13 | | testimony he may require. The licensee shall pay a fee for such | 14 | | examination in
accordance with a schedule established by the | 15 | | Comptroller. The fee shall not
exceed the cost of such | 16 | | examination. For pre-need contracts funded by trust
| 17 | | arrangements, the cost of an initial examination shall be borne | 18 | | by the
licensee if it
has $10,000 or more in trust funds, | 19 | | otherwise, by the Comptroller. The charge
made by the | 20 | | Comptroller for an examination shall be based upon the total | 21 | | amount
of trust funds held by the licensee at the end of the | 22 | | calendar or fiscal year
for which the report is required by | 23 | | this Act and shall be in accordance with
the following | 24 | | schedule:
| 25 | | Less than $10,000 .................................no charge;
| 26 | | $10,000 or more but less than $50,000 ...................$10;
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| 1 | | $50,000 or more but less than $100,000 ..................$40;
| 2 | | $100,000 or more but less than $250,000 .................$80;
| 3 | | $250,000 or more ........................................$100.
| 4 | | The Comptroller may order additional audits or | 5 | | examinations as he or she
may deem necessary or advisable to | 6 | | ensure the safety and stability of the trust
funds and to | 7 | | ensure compliance with this Act. These additional audits or
| 8 | | examinations shall only be made after good cause is established | 9 | | by the
Comptroller in the written order. The grounds for | 10 | | ordering these additional
audits or examinations may include, | 11 | | but shall not be limited to:
| 12 | | (1) material and unverified changes or fluctuations in | 13 | | trust balances or
insurance or annuity policy amounts;
| 14 | | (2) the licensee changing trustees more than twice in | 15 | | any 12-month
period;
| 16 | | (3) any withdrawals or attempted withdrawals from the | 17 | | trusts, insurance
policies, or annuity contracts in | 18 | | violation of this Act; or
| 19 | | (4) failure to maintain or produce documentation | 20 | | required by this Act for
deposits into trust accounts, | 21 | | trust investment activities, or life insurance or
annuity | 22 | | policies.
| 23 | | The
licensee shall bear the full cost of that examination | 24 | | or audit, up to a maximum
of $20,000. The
Comptroller may elect | 25 | | to pay for the examination or audit and receive
reimbursement | 26 | | from the licensee. Payment of the costs of the examination or
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| 1 | | audit by a licensee shall be a condition of receiving, | 2 | | maintaining, or renewing
a license
under this Act. All moneys | 3 | | received by the Comptroller for examination or
audit fees shall | 4 | | be maintained in a separate account to be known as the
| 5 | | Comptroller's Administrative
Fund. This
Fund, subject to | 6 | | appropriation by the General Assembly, may
be utilized by the | 7 | | Comptroller for
enforcing this Act and other purposes that may | 8 | | be authorized by law.
| 9 | | For pre-need contracts funded by life insurance or a | 10 | | tax-deferred annuity,
the cost of an examination shall be borne | 11 | | by the licensee. The fee
schedule for such examination shall be | 12 | | established in rules promulgated by the
Comptroller. In the | 13 | | event such investigation or other information received by
the | 14 | | Comptroller discloses a substantial violation of the | 15 | | requirements of this
Act, the Comptroller shall revoke the | 16 | | license of such person upon a hearing as
provided in this Act. | 17 | | Such licensee may terminate all further responsibility
for | 18 | | compliance with the requirements of this Act by voluntarily | 19 | | surrendering
the license to the Comptroller, or in the event of | 20 | | its loss, furnishing the
Comptroller with a sworn statement to | 21 | | that effect, which states the licensee's
intention to | 22 | | discontinue acceptance of funds received under pre-need | 23 | | contracts.
Such license or statement must be accompanied by an | 24 | | affidavit that said
licensee has lawfully expended or refunded | 25 | | all funds received under pre-need
contracts, and that the | 26 | | licensee will accept no additional sales proceeds. The
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| 1 | | Comptroller shall immediately cancel or revoke said license.
| 2 | | (Source: P.A. 96-879, eff. 2-2-10.)
| 3 | | (225 ILCS 45/3a-5)
| 4 | | Sec. 3a-5. License requirements.
| 5 | | (a) Every license issued by the Comptroller shall state
the | 6 | | number of the license, the business name and address of
the | 7 | | licensee's principal place of business, each branch
location | 8 | | also operating under the license, and the
licensee's parent | 9 | | company, if any. The license shall be
conspicuously posted in | 10 | | each place of business operating
under the license. The | 11 | | Comptroller may issue such
additional licenses as may be | 12 | | necessary for licensee branch
locations upon compliance with | 13 | | the provisions of this Act
governing an original issuance of a | 14 | | license for each new
license.
| 15 | | (b) Individual salespersons representing a licensee
shall | 16 | | not be required to obtain licenses in their
individual | 17 | | capacities, but must acknowledge, by affidavit,
that they have | 18 | | been provided with a copy of and have read
this Act. The | 19 | | licensee shall retain copies of the affidavits
of its sellers | 20 | | for its records and shall make the affidavits
available to the | 21 | | Comptroller for examination upon request.
| 22 | | (c) The licensee shall be responsible for the activities
of | 23 | | any person representing the licensee in selling or
offering a | 24 | | pre-need contract for sale.
| 25 | | (d) Any person not selling on behalf of a licensee shall
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| 1 | | obtain its own license.
| 2 | | (e) No license shall be transferable or assignable
without | 3 | | the express written consent of the Comptroller. A
transfer of | 4 | | more than 50% of the ownership of any business
licensed | 5 | | hereunder shall be deemed to be an attempted
assignment of the | 6 | | license originally issued to the licensee
for which consent of | 7 | | the Comptroller shall be required.
| 8 | | (f) Every license issued hereunder shall be renewed every 5 | 9 | | years for a renewal fee of $100. The renewal fee shall be | 10 | | deposited into the Comptroller's Administrative Fund remain in | 11 | | force
until it has been suspended, surrendered, or revoked in
| 12 | | accordance with this Act . The Comptroller, upon the request
of | 13 | | an interested person or on his own motion, may issue new
| 14 | | licenses to a licensee whose license or licenses have been
| 15 | | revoked, if no factor or condition then exists which would
have | 16 | | warranted the Comptroller to originally refuse the
issuance of | 17 | | such license.
| 18 | | (Source: P.A. 92-419, eff. 1-1-02 .)
| 19 | | Section 10. The Cemetery Oversight Act is amended by | 20 | | changing Sections 15-15, 15-40, and 75-55 as follows: | 21 | | (225 ILCS 411/15-15) | 22 | | (Section scheduled to be repealed on January 1, 2021)
| 23 | | Sec. 15-15. Care funds; deposits; investments. | 24 | | (a) Whenever a cemetery authority accepts care funds, |
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| 1 | | either in connection with the sale or giving away at an imputed | 2 | | value of an interment right, entombment right, or inurnment | 3 | | right, or in pursuance of a contract, or whenever, as a | 4 | | condition precedent to the purchase or acceptance of an | 5 | | interment right, entombment right, or inurnment right, such | 6 | | cemetery authority shall establish a care fund or deposit the | 7 | | funds in an already existing care fund. | 8 | | (b) The cemetery authority shall execute and deliver to the | 9 | | person from whom it received the care funds an instrument in | 10 | | writing that shall specifically state: (i) the nature and | 11 | | extent of the care to be furnished and (ii) that such care | 12 | | shall be furnished only in so far as net income derived from | 13 | | the amount deposited in trust will permit (the income from the | 14 | | amount so deposited, less necessary expenditures of | 15 | | administering the trust, shall be deemed the net income). | 16 | | (c) The setting-aside and deposit of care funds shall be | 17 | | made by such cemetery authority no later than 30 days after the | 18 | | close of the month in which the cemetery authority gave away | 19 | | for an imputed value or received the final payment on the | 20 | | purchase price of interment rights, entombment rights, or | 21 | | inurnment rights, or received the final payment for the general | 22 | | or special care of a lot, grave, crypt, or niche or of a family | 23 | | mausoleum, memorial, marker, or monument, and such amounts | 24 | | shall be held by the trustee of the care funds of such cemetery | 25 | | authority in trust and in perpetuity for the specific purposes | 26 | | stated in the written instrument described in subsection (b). |
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| 1 | | For all care funds received by a cemetery authority, except for | 2 | | care funds received by a cemetery authority pursuant to a | 3 | | specific gift, grant, contribution, payment, legacy, or | 4 | | contract that are subject to investment restrictions more | 5 | | restrictive than the investment provisions set forth in this | 6 | | Act, and except for care funds otherwise subject to a trust | 7 | | agreement executed by a person or persons responsible for | 8 | | transferring the specific gift, grant, contribution, payment, | 9 | | or legacy to the cemetery authority that contains investment | 10 | | restrictions more restrictive than the investment provisions | 11 | | set forth in this Act, the cemetery authority may, without the | 12 | | necessity of having to obtain prior approval from any court in | 13 | | this State, designate a new trustee in accordance with this Act | 14 | | and invest the care funds in accordance with this Section, | 15 | | notwithstanding any contrary limitation contained in the trust | 16 | | agreement. | 17 | | (d) Any cemetery authority engaged in selling or giving | 18 | | away at an imputed value interment rights, entombment rights, | 19 | | or inurnment rights, in conjunction with the selling or giving | 20 | | away at an imputed value any other merchandise or services not | 21 | | covered by this Act, shall be prohibited from increasing the | 22 | | sales price or imputed value of those items not requiring a | 23 | | care fund deposit under this Act with the purpose of allocating | 24 | | a lesser sales price or imputed value to items that require a | 25 | | care fund deposit. | 26 | | (e) If any sale that requires a deposit to a cemetery |
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| 1 | | authority's care fund is made by a cemetery authority on an | 2 | | installment basis, and the installment contract is factored, | 3 | | discounted, or sold to a third party, then the cemetery | 4 | | authority shall deposit the amount due to the care fund within | 5 | | 30 days after the close of the month in which the installment | 6 | | contract was factored, discounted, or sold. If, subsequent to | 7 | | such deposit, the purchaser defaults on the contract such that | 8 | | no care fund deposit on that contract would have been required, | 9 | | then the cemetery authority may apply the amount deposited as a | 10 | | credit against future required deposits. | 11 | | (f) The trust authorized by this Section shall be a single | 12 | | purpose trust fund. In the event of the cemetery authority's | 13 | | bankruptcy, insolvency, or assignment for the benefit of | 14 | | creditors, or an adverse judgment, the trust funds shall not be | 15 | | available to any creditor as assets of the cemetery authority | 16 | | or to pay any expenses of any bankruptcy or similar proceeding, | 17 | | but shall be retained intact to provide for the future | 18 | | maintenance of the cemetery. Except in an action by the | 19 | | Department to revoke a license issued pursuant to this Act and | 20 | | for creation of a receivership as provided in this Act, the | 21 | | trust shall not be subject to judgment, execution, garnishment, | 22 | | attachment, or other seizure by process in bankruptcy or | 23 | | otherwise, nor to sale, pledge, mortgage, or other alienation, | 24 | | and shall not be assignable except as approved by the | 25 | | Comptroller Department .
| 26 | | (Source: P.A. 96-863, eff. 3-1-10.) |
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| 1 | | (225 ILCS 411/15-40) | 2 | | (Section scheduled to be repealed on January 1, 2021)
| 3 | | Sec. 15-40. Trust examinations and audits. | 4 | | (a) The Comptroller Department shall examine at least | 5 | | annually every licensee who holds $250,000 or more in its care | 6 | | funds. For that purpose, the Comptroller Department shall have | 7 | | free access to the office and places of business and to such | 8 | | records of all licensees and of all trustees of the care funds | 9 | | of all licensees as shall relate to the acceptance, use, and | 10 | | investment of care funds. The Comptroller Department may | 11 | | require the attendance of and examine under oath all persons | 12 | | whose testimony may be required relative to such business. In | 13 | | such cases the Comptroller Department , or any qualified | 14 | | representative of the Comptroller Department whom the | 15 | | Comptroller Department may designate, may administer oaths to | 16 | | all such persons called as witnesses, and the Comptroller | 17 | | Department , or any such qualified representative of the | 18 | | Comptroller Department , may conduct such examinations. The | 19 | | cost of an initial examination shall be determined by rule. | 20 | | (b) The Comptroller Department may order additional audits | 21 | | or examinations as it may deem necessary or advisable to ensure | 22 | | the safety and stability of the trust funds and to ensure | 23 | | compliance with this Act. These additional audits or | 24 | | examinations shall only be made after good cause is established | 25 | | by the Comptroller Department in the written order. The grounds |
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| 1 | | for ordering these additional audits or examinations may | 2 | | include, but shall not be limited to:
| 3 | | (1) material and unverified changes or fluctuations in | 4 | | trust balances; | 5 | | (2) the licensee changing trustees more than twice in | 6 | | any 12-month period; | 7 | | (3) any withdrawals or attempted withdrawals from the | 8 | | trusts in violation of this Act; or | 9 | | (4) failure to maintain or produce documentation | 10 | | required by this Act.
| 11 | | (Source: P.A. 96-863, eff. 3-1-10.) | 12 | | (225 ILCS 411/75-55) | 13 | | (Section scheduled to be repealed on January 1, 2021)
| 14 | | Sec. 75-55. Transition.
| 15 | | (a) Within 60 days after the effective date of this Act, | 16 | | the Comptroller shall provide the Department copies of records | 17 | | in the Comptroller's possession pertaining to the Cemetery Care | 18 | | Act and the Crematory Regulation Act that are necessary for the | 19 | | Department's immediate responsibilities under this Act. All | 20 | | other records pertaining to the Cemetery Care Act with the | 21 | | exception of records pertaining to care funds and the Crematory | 22 | | Regulation Act shall be transferred to the Department by March | 23 | | 1, 2012. In the case of records that pertain both to the | 24 | | administration of the Cemetery Care Act or the Crematory | 25 | | Regulation Act and to a function retained by the Comptroller, |
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| 1 | | the Comptroller, in consultation with the Department, shall | 2 | | determine, within 60 days after the repeal of the Cemetery Care | 3 | | Act, whether the records shall be transferred, copied, or left | 4 | | with the Comptroller; until this determination has been made | 5 | | the transfer shall not occur . | 6 | | (b) (Blank). A person licensed under one of the Acts listed | 7 | | in subsection (a) of this Section or regulated under the | 8 | | Cemetery Association Act shall continue to comply with the | 9 | | provisions of those Acts until such time as the person is | 10 | | licensed under this Act or those Acts are repealed or the | 11 | | amendatory changes made by this amendatory Act of the 96th | 12 | | General Assembly take effect, as the case may be, whichever is | 13 | | earlier. | 14 | | (c) To support the costs that may be associated with | 15 | | implementing and maintaining a licensure and regulatory | 16 | | process for the licensure and regulation of cemetery | 17 | | authorities, cemetery managers, customer service employees, | 18 | | and cemetery workers, all cemetery authorities not maintaining | 19 | | a full exemption or partial exemption shall pay a one-time fee | 20 | | of $20 to the Department plus an additional charge of $1 per | 21 | | burial unit per year within the cemetery. The Department may | 22 | | establish forms for the collection of the fee established under | 23 | | this subsection and shall deposit such fee into the Cemetery | 24 | | Oversight Licensing and Disciplinary Fund. The Department may | 25 | | begin to collect the aforementioned fee after the effective | 26 | | date of this Act. In addition, the Department may establish |
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| 1 | | rules for the collection process, which may include, but shall | 2 | | not be limited to, dates, forms, enforcement, or other | 3 | | procedures necessary for the effective collection, deposit, | 4 | | and
overall process regarding this Section. | 5 | | (d) Any cemetery authority that fails to pay to the | 6 | | Department the required fee or submits the incorrect amount | 7 | | shall be subject to the penalties provided for in Section | 8 | | 25-110 of this Act. | 9 | | (e) Except as otherwise specifically provided, all fees, | 10 | | fines, penalties, or other moneys received or collected | 11 | | pursuant to this Act shall be deposited in the Cemetery | 12 | | Oversight Licensing and Disciplinary Fund. | 13 | | (f) (Blank). All proportionate funds held in the | 14 | | Comptroller's Administrative Fund related to unexpended moneys | 15 | | collected under the Cemetery Care Act and the Crematory | 16 | | Regulation Act shall be transferred to the Cemetery Oversight | 17 | | Licensing and Disciplinary Fund within 60 days after the | 18 | | effective date of the repeal of the Cemetery Care Act. | 19 | | (g) (Blank). Personnel employed by the Comptroller on | 20 | | February 29, 2012, to perform the duties pertaining to the | 21 | | administration of the Cemetery Care Act and the Crematory | 22 | | Regulation Act, are transferred to the Department on March 1, | 23 | | 2012. | 24 | | The rights of State employees, the State, and its agencies | 25 | | under the Comptroller Merit Employment Code and applicable | 26 | | collective bargaining agreements and retirement plans are not |
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| 1 | | affected under this Act, except that all positions transferred | 2 | | to the Department shall be subject to the Personnel Code | 3 | | effective March 1, 2012. | 4 | | All transferred employees who are members of collective | 5 | | bargaining units shall retain their seniority, continuous | 6 | | service, salary, and accrued benefits. During the pendency of | 7 | | the existing collective bargaining agreement, the rights | 8 | | provided for under that agreement shall not be abridged. | 9 | | The Department shall continue to honor during their | 10 | | pendency all bargaining agreements in effect at the time of the | 11 | | transfer and to recognize all collective bargaining | 12 | | representatives for the employees who perform or will perform | 13 | | functions transferred by this Act. For all purposes with | 14 | | respect to the management of the existing agreement and the | 15 | | negotiation and management of any successor agreements, the | 16 | | Department shall be deemed the employer of employees who | 17 | | perform or will perform functions transferred to the Department | 18 | | by this Act.
| 19 | | (Source: P.A. 96-863, eff. 3-1-10.) | 20 | | Section 15. The Illinois Pre-Need Cemetery Sales Act is | 21 | | amended by changing Sections 6, 8, 15, and 20 as follows:
| 22 | | (815 ILCS 390/6) (from Ch. 21, par. 206)
| 23 | | Sec. 6. License application.
| 24 | | (a) An application for a license shall be made in writing |
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| 1 | | to
the Comptroller on forms prescribed by him or her, signed by | 2 | | the applicant
under oath verified by a notary public,
and | 3 | | accompanied
by a non-returnable $125 $25 application fee , $100 | 4 | | of which shall be deposited into the Comptroller's | 5 | | Administrative Fund . The Comptroller may prescribe
abbreviated | 6 | | application forms for persons holding a license under the | 7 | | Cemetery
Care Act. Applications (except abbreviated | 8 | | applications) must include at least
the following information:
| 9 | | (1) The full name and address, both residence and | 10 | | business, of the
applicant if the applicant is an | 11 | | individual; of every member if applicant is
a partnership; | 12 | | of every member of the Board of Directors if applicant is | 13 | | an
association; and of every officer, director and | 14 | | shareholder
holding more
than 10% of the corporate stock if | 15 | | applicant is a corporation;
| 16 | | (2) A detailed statement of applicant's assets and | 17 | | liabilities;
| 18 | | (2.1) The name and address of the applicant's
principal | 19 | | place of business at which the books,
accounts, and records | 20 | | are available for examination
by the Comptroller as | 21 | | required by this Act;
| 22 | | (2.2) The name and address of the applicant's branch
| 23 | | locations at which pre-need sales will be conducted and
| 24 | | which will operate under the same license number as the
| 25 | | applicant's principal place of business;
| 26 | | (3) For each individual listed under (1) above, a |
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| 1 | | detailed statement of
the individual's business experience | 2 | | for the 10 years immediately preceding
the application; any | 3 | | present or prior connection between the individual and
any | 4 | | other person engaged in pre-need sales; any felony or | 5 | | misdemeanor
convictions for which fraud was an essential | 6 | | element; any charges or
complaints lodged against the | 7 | | individual for which fraud was an essential
element and | 8 | | which resulted in civil or criminal litigation; any failure | 9 | | of
the individual to satisfy an enforceable judgment | 10 | | entered against him or
her based
upon fraud;
and any other | 11 | | information requested by the Comptroller relating
to the | 12 | | past business practices of the individual. Since the | 13 | | information
required by this paragraph may be confidential | 14 | | or contain proprietary
information, this information shall | 15 | | not be available to other licensees or
the general public | 16 | | and shall be used only for the lawful purposes of the
| 17 | | Comptroller in enforcing this Act;
| 18 | | (4) The name of the trustee and, if applicable, the | 19 | | names of the
advisors to the trustee, including a copy of | 20 | | the proposed trust agreement
under which the trust funds | 21 | | are to be held as required by this Act;
| 22 | | (5) Where applicable, the name of the corporate surety | 23 | | company
providing the performance bond for the | 24 | | construction of undeveloped spaces
and a copy of the bond; | 25 | | and
| 26 | | (6) Such other information as the Comptroller may |
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| 1 | | reasonably require in
order to determine the qualification | 2 | | of the applicant to be licensed under this
Act.
| 3 | | (b) Applications for license shall be accompanied by a | 4 | | fidelity bond
executed by the applicant and a security company | 5 | | authorized to do business
in this State in such amount, not | 6 | | exceeding $10,000, as the Comptroller may
require. The | 7 | | Comptroller may require additional bond from time to time in
| 8 | | amounts equal to one-tenth of such trust funds but not to | 9 | | exceed $100,000,
which bond shall run to the Comptroller for | 10 | | the use and benefit of the
beneficiaries of such trust funds. | 11 | | Such licensee may by written permit of
the Comptroller be | 12 | | authorized to operate without additional bond, except
such | 13 | | fidelity bond as may be required by the Comptroller for the | 14 | | protection
of the licensee against loss by default by any of | 15 | | its employees engaged in
the handling of trust funds.
| 16 | | (c) Any application not acted upon within 90 days may be | 17 | | deemed denied.
| 18 | | (Source: P.A. 92-419, eff. 1-1-02.)
| 19 | | (815 ILCS 390/8) (from Ch. 21, par. 208)
| 20 | | Sec. 8.
(a) Every license issued by the Comptroller shall | 21 | | state the
number of the license, the business name and address | 22 | | of the licensee's
principal place of business, each branch | 23 | | location also operating under the
license, and the licensee's | 24 | | parent company, if any. The license shall be
conspicuously | 25 | | posted in
each place of business operating under the license. |
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| 1 | | The Comptroller may issue
additional licenses as may be | 2 | | necessary for license branch locations upon compliance with the | 3 | | provisions of this Act
governing an original issuance of a | 4 | | license for each new license.
| 5 | | (b) Individual salespersons representing a licensee
shall | 6 | | not be required
to obtain licenses in their individual | 7 | | capacities
but must acknowledge, by affidavit, that they have
| 8 | | been provided a copy of and have read this Act. The licensee | 9 | | must
retain copies of the affidavits of its salespersons for | 10 | | its
records and must make the affidavits available to the
| 11 | | Comptroller for examination upon request.
| 12 | | (c) The licensee shall be responsible for the activities of | 13 | | any person
representing the licensee in selling or offering a | 14 | | pre-need contract for sale.
| 15 | | (d) Any person not selling on behalf of a
licensee
shall be | 16 | | required to obtain his or her own license.
| 17 | | (e) Any person engaged in pre-need sales, as defined | 18 | | herein, prior to
the effective date of this Act may continue | 19 | | operations until the application
for license under this Act is | 20 | | denied; provided that such person shall make
application for a | 21 | | license within 60 days of the date that application forms
are | 22 | | made available by the Comptroller.
| 23 | | (f) No license shall be transferable or assignable without | 24 | | the express
written consent of the Comptroller. A transfer of | 25 | | more than 50% of the
ownership of any business licensed | 26 | | hereunder shall be deemed to be an attempted
assignment of the |
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| 1 | | license originally issued to the licensee for which consent
of | 2 | | the Comptroller shall be required.
| 3 | | (g) Every license issued hereunder shall be renewed every 5 | 4 | | years for a fee of $100. The renewal fee shall be deposited | 5 | | into the Comptroller's Administrative Fund. The remain in force | 6 | | until the same
has been suspended, surrendered or revoked in | 7 | | accordance with this Act,
but the Comptroller, upon the request | 8 | | of an interested person or on his
own motion, may issue new | 9 | | licenses to a licensee whose license or licenses
have been | 10 | | revoked, if no factor or condition then exists which would have
| 11 | | warranted the Comptroller in refusing originally the issuance | 12 | | of such license.
| 13 | | (Source: P.A. 92-419, eff. 1-1-02.)
| 14 | | (815 ILCS 390/15) (from Ch. 21, par. 215)
| 15 | | Sec. 15.
(a) Whenever a seller receives anything of value | 16 | | under a
pre-need sales contract, the person receiving such | 17 | | value shall deposit 50%
of all proceeds received into one or | 18 | | more trust funds maintained pursuant
to this Section, except | 19 | | that, in the case of proceeds received for the
purchase of | 20 | | outer burial containers, 85% of the proceeds shall be deposited
| 21 | | into one or more trust funds. Such deposits shall be made until | 22 | | the amount
deposited in
trust equals 50% of the sales price of | 23 | | the cemetery merchandise, cemetery
services and undeveloped | 24 | | spaces included in such contract, except that, in
the case of | 25 | | deposits for outer burial containers, deposits shall be made |
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| 1 | | until
the amount deposited in trust equals 85% of the sales | 2 | | price. In the event
an
installment contract is factored, | 3 | | discounted or sold to a third party, the
seller shall deposit | 4 | | an amount equal to 50% of the sales price of the
installment | 5 | | contract, except that, for the portion of the contract
| 6 | | attributable to the sale of outer burial containers, the seller | 7 | | shall deposit
an amount equal to 85% of the sales price. | 8 | | Proceeds required to be deposited
in trust which
are
| 9 | | attributable to cemetery merchandise and cemetery services | 10 | | shall be held
in a "Cemetery Merchandise Trust Fund". Proceeds | 11 | | required to be deposited
in trust which are attributable to the | 12 | | sale of undeveloped interment,
entombment or inurnment spaces | 13 | | shall be held in a "Pre-construction Trust
Fund". If | 14 | | merchandise is delivered for storage in a bonded warehouse, as
| 15 | | authorized herein, and payment of transportation or other | 16 | | charges totaling
more than $20 will be required in order to | 17 | | secure delivery to the site of
ultimate use, upon such delivery | 18 | | to the warehouse the seller shall deposit
to the trust fund the | 19 | | full amount of the actual or estimated transportation
charge. | 20 | | Transportation charges which have been prepaid by the seller
| 21 | | shall not be deposited to trust funds maintained pursuant to | 22 | | this Section.
As used in this Section, "all proceeds" means the | 23 | | entire amount paid by a
purchaser in connection with a pre-need | 24 | | sales contract, including finance
charges and Cemetery Care Act | 25 | | contributions, but excluding sales taxes
and credit life | 26 | | insurance premiums.
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| 1 | | (b) The seller shall act as trustee of all amounts received | 2 | | for cemetery merchandise, services, or undeveloped spaces | 3 | | until those amounts have been deposited into the trust fund. | 4 | | All trust deposits required by this Act shall be made within 30 | 5 | | days
following the end of the month of receipt. The seller must | 6 | | retain a corporate fiduciary as an independent trustee for any | 7 | | amount of trust funds. Upon 30 days' prior written notice from | 8 | | the seller to the Comptroller, the seller may change the | 9 | | trustee of the trust fund. Failure to provide the Comptroller | 10 | | with timely prior notice is an intentional violation of this | 11 | | Act.
| 12 | | (c) A trust established under this Act must be maintained | 13 | | with a corporate fiduciary as defined in Section 1-5.05 of the | 14 | | Corporate Fiduciary Act or with a foreign corporate fiduciary | 15 | | recognized by Article IV of the Corporate Fiduciary Act .
| 16 | | (d) Funds deposited in the trust account shall be | 17 | | identified in the records
of the seller by the name of the | 18 | | purchaser. Nothing shall prevent the trustee
from commingling | 19 | | the deposits in any such trust fund for purposes of the
| 20 | | management thereof and the investment of funds therein as | 21 | | provided in the
"Common Trust Fund Act", approved June 24, | 22 | | 1949, as amended. In addition,
multiple trust funds maintained | 23 | | pursuant to this Act may be commingled or
commingled with other | 24 | | funeral or burial related trust funds, provided that
all record | 25 | | keeping requirements imposed by or pursuant to law are met.
| 26 | | (e) In lieu of a pre-construction trust fund, a seller of |
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| 1 | | undeveloped
interment, entombment or inurnment spaces may | 2 | | obtain and file with the
Comptroller a performance bond in an | 3 | | amount at least equal to 50% of the
sales price of the | 4 | | undeveloped spaces or the estimated cost of completing
| 5 | | construction, whichever is greater. The bond shall be | 6 | | conditioned on the
satisfactory construction and completion of | 7 | | the undeveloped spaces as
required in Section 19 of this Act.
| 8 | | Each bond obtained under this Section shall have as surety | 9 | | thereon a
corporate surety company incorporated under the laws | 10 | | of the United States,
or a State, the District of Columbia or a | 11 | | territory or possession of the
United States. Each such | 12 | | corporate surety company must be authorized to
provide | 13 | | performance bonds as required by this Section, have paid-up
| 14 | | capital of at least $250,000 in cash or its equivalent and be | 15 | | able to carry
out its contracts. Each pre-need seller must | 16 | | provide to the Comptroller,
for each corporate surety company | 17 | | such
seller utilizes, a statement of assets and liabilities of | 18 | | the corporate
surety company sworn to by the president and | 19 | | secretary
of the corporation by January 1 of each year.
| 20 | | The Comptroller shall prohibit pre-need sellers from doing | 21 | | new business
with a corporate surety company if the company is | 22 | | insolvent or is in
violation of this Section. In addition the | 23 | | Comptroller may direct a
pre-need seller to reinstate a | 24 | | pre-construction trust fund upon the
Comptroller's | 25 | | determination that the corporate surety company no longer is
| 26 | | sufficient security.
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| 1 | | All performance bonds issued pursuant to this Section must | 2 | | be irrevocable
during the statutory term for completing | 3 | | construction specified in Section
19 of this Act, unless | 4 | | terminated sooner by the completion of construction.
| 5 | | (f) Whenever any pre-need contract shall be entered into | 6 | | and include 1)
items of cemetery merchandise and cemetery | 7 | | services, and 2) rights to
interment, inurnment or entombment | 8 | | in completed spaces without allocation
of the gross sale price | 9 | | among the items sold, the application of payments
received | 10 | | under the contract shall be allocated, first to the right to
| 11 | | interment, inurnment or entombment, second to items of cemetery | 12 | | merchandise
and cemetery services, unless some other | 13 | | allocation is clearly provided
in the contract.
| 14 | | (g) Any person engaging in pre-need sales who enters into a | 15 | | combination
sale which involves the sale of items covered by a | 16 | | trust or performance
bond requirement and any item not covered | 17 | | by any entrustment or bond
requirement, shall be prohibited | 18 | | from increasing the gross sales price of
those items not | 19 | | requiring entrustment with the purpose of allocating a
lesser | 20 | | gross sales price to items which require a trust deposit or a
| 21 | | performance bond.
| 22 | | (Source: P.A. 96-879, eff. 2-2-10.)
| 23 | | (815 ILCS 390/20) (from Ch. 21, par. 220)
| 24 | | Sec. 20. Records.
| 25 | | (a) Each licensee must keep accurate accounts, books and
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| 1 | | records in this State
at the principal place of business | 2 | | identified in the
licensee's license application or as | 3 | | otherwise approved by
the Comptroller in writing
of all | 4 | | transactions, copies of agreements, dates and
amounts of | 5 | | payments made or received, the names and addresses of the
| 6 | | contracting parties, the names and addresses of persons for | 7 | | whose benefit
funds are received, if known, and the names of | 8 | | the trust depositories.
Additionally, for a period not to | 9 | | exceed 6 months after
the performance of all terms in a | 10 | | pre-need sales contract,
the licensee shall maintain copies of | 11 | | each pre-need
contract at the licensee branch location where | 12 | | the contract
was entered or at some other location agreed to by | 13 | | the Comptroller in
writing.
| 14 | | (b) Each licensee must maintain such records for a period | 15 | | of 3
years
after the licensee shall have fulfilled his or her | 16 | | obligation
under the pre-need
contract or 3 years after any | 17 | | stored merchandise shall have been provided
to the purchaser or | 18 | | beneficiary, whichever is later.
| 19 | | (c) Each licensee shall submit reports to the Comptroller
| 20 | | annually,
under oath, on forms furnished by the Comptroller. | 21 | | The annual report
shall
contain, but shall not be limited to, | 22 | | the following:
| 23 | | (1) An accounting of the principal deposit and | 24 | | additions of principal
during the fiscal year.
| 25 | | (2) An accounting of any withdrawal of principal or | 26 | | earnings.
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| 1 | | (3) An accounting at the end of each fiscal year, of | 2 | | the total amount of
principal and earnings held.
| 3 | | (d) The annual report shall be filed by the licensee with | 4 | | the
Comptroller within 75 days after the end of the licensee's | 5 | | fiscal year. An
extension of up to 60 days may be granted by | 6 | | the Comptroller, upon a
showing of need by the licensee. Any | 7 | | other reports shall be in
the form
furnished or specified by | 8 | | the Comptroller. If a licensee fails to submit an
annual report | 9 | | to the Comptroller within the time specified in this Section, | 10 | | the
Comptroller shall impose upon the licensee a penalty of $5 | 11 | | per day for the first 15 days past due, $10 per day for 16 | 12 | | through 30 days past due, $15 per day for 31 through 45 days | 13 | | past due, and $20 per day for the 46th day and every day | 14 | | thereafter for
each and every
day the licensee remains | 15 | | delinquent in submitting the annual report. The
Comptroller may | 16 | | abate all or part of the $5 daily penalty for good cause
shown. | 17 | | Each
report shall be accompanied by a check or money order in | 18 | | the
amount of $10
payable to: Comptroller, State of Illinois.
| 19 | | (e) On and after the effective date of this amendatory Act | 20 | | of the 91st
General Assembly, a licensee may
report all | 21 | | required information concerning the sale of outer burial | 22 | | containers
on the licensee's annual report required to be filed | 23 | | under this Act and
shall
not be required to report that | 24 | | information under the Illinois Funeral or
Burial
Funds Act, as | 25 | | long as the information is reported under this Act.
| 26 | | (Source: P.A. 91-7, eff. 1-1-00; 92-419, eff. 1-1-02.)
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| 1 | | Section 99. Effective date. This Act takes effect upon | 2 | | becoming law. |
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