Regulates human and pet cemeteries

EXPLANATION-Matter enclosed in bold-faced brackets [thus] in this bill is not enacted
and is intended to be omitted in the law.
SECOND REGULAR SESSION
SENATE BILL NO. 1108
103RD GENERAL ASSEMBLY
INTRODUCED BY SENATOR ROBERTS.
4776S.01I KRISTINA MARTIN, Secretary
AN ACT
To repeal sections 214.270 and 214.389, RSMo, and to enact in lieu thereof three new sections
relating to cemeteries.
Be it enacted by the General Assembly of the State of Missouri, as follows:
Section A. Sections 214.270 and 214.389, RSMo, are 1
repealed and three new sections enacted in lieu thereof, to be 2
known as sections 214.270, 214.272, and 214.389, to read as 3
follows:4
214.270. As used in sections 214.270 to 214.410, the 1
following terms mean: 2
(1) "Agent" or "authorized agent", any person 3
empowered by the cemetery operator to represent the operator 4
in dealing with the general public, including owners of the 5
burial space in the cemetery; 6
(2) "Burial merchandise", a monument, marker, 7
memorial, tombstone, headstone, urn, outer burial container, 8
or similar article [which] that may contain specific 9
lettering, shape, color, or design as specified by the 10
purchaser; 11
(3) "Burial space", one or more than one plot, grave, 12
mausoleum, crypt, lawn, surface lawn crypt, niche, or space 13
used or intended for the interment of the human dead; 14
(4) "Cemetery", property restricted in use for the 15
interment of the human dead by formal dedication or 16
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reservation by deed but shall not include any of the 17
foregoing held or operated by the state or federal 18
government or any political subdivision thereof, any 19
incorporated city or town, any county, or any religious 20
organization, cemetery association, or fraternal society 21
holding the same for sale solely to members and their 22
immediate families; 23
(5) "Cemetery association", any number of persons who 24
shall have associated themselves by articles of agreement in 25
writing as a not-for-profit association or organization, 26
whether incorporated or unincorporated, formed for the 27
purpose of ownership, preservation, care, maintenance, 28
adornment, and administration of a cemetery. Cemetery 29
associations shall be governed by a board of directors. 30
Directors shall serve without compensation; 31
(6) "Cemetery operator" or "operator", any person who 32
owns, controls, operates, or manages a cemetery; 33
(7) "Cemetery prearranged contract", any contract with 34
a cemetery or cemetery operator for burial merchandise or 35
burial services covered by sections 214.270 to 214.410 36
[which] that is entered into before the death of the 37
individual for whom the burial merchandise or burial 38
services are intended; 39
(8) "Cemetery service" or "burial service", those 40
services performed by a cemetery owner or operator licensed 41
as an endowed care or nonendowed cemetery including setting 42
a monument or marker, setting a tent, excavating a grave, 43
interment, entombment, inurnment, setting a vault, or other 44
related services within the cemetery; 45
(9) "Columbarium", a building or structure for the 46
inurnment of cremated human remains; 47
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(10) "Community mausoleum", a mausoleum containing a 48
substantial area of enclosed space and having either a 49
heating, ventilating, or air conditioning system; 50
(11) "Department", department of commerce and 51
insurance; 52
(12) "Developed acreage", the area [which] that has 53
been platted into grave spaces and has been developed with 54
roads, paths, features, or ornamentations and in which 55
burials can be made; 56
(13) "Director", director of the division of 57
professional registration; 58
(14) "Division", division of professional registration; 59
(15) "Endowed care", the maintenance, repair, and care 60
of all burial space subject to the endowment within a 61
cemetery, including any improvements made for the benefit of 62
such burial space. Endowed care shall include the general 63
overhead expenses needed to accomplish such maintenance, 64
repair, care, and improvements. Endowed care shall include 65
the terms perpetual care, permanent care, continual care, 66
eternal care, care of duration, or any like term; 67
(16) "Endowed care cemetery", a cemetery, or a section 68
of a cemetery, [which] that represents itself as offering 69
endowed care and [which] that complies with the provisions 70
of sections 214.270 to 214.410; 71
(17) "Endowed care fund", "endowed care trust", or 72
"trust", any cash or cash equivalent, to include any income 73
therefrom, impressed with a trust by the terms of any gift, 74
grant, contribution, payment, devise, or bequest to an 75
endowed care cemetery, or its endowed care trust, or funds 76
to be delivered to an endowed care cemetery's trust received 77
pursuant to a contract and accepted by any endowed care 78
cemetery operator or [his] the operator's agent. This 79
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definition includes the terms endowed care funds, 80
maintenance funds, memorial care funds, perpetual care 81
funds, or any like term; 82
(18) "Escrow account", an account established in lieu 83
of an endowed care fund as provided under section 214.330 or 84
an account used to hold deposits under section 214.387; 85
(19) "Escrow agent", an attorney, title company, 86
certified public accountant, or other person authorized by 87
the division to exercise escrow powers under the laws of 88
this state; 89
(20) "Escrow agreement", an agreement subject to 90
approval by the office between an escrow agent and a 91
cemetery operator or its agent or related party with common 92
ownership[,] to receive and administer payments under 93
cemetery prearranged contracts sold by the cemetery operator; 94
(21) "Family burial ground", a cemetery in which no 95
burial space is sold to the public and in which interments 96
are restricted to persons related by blood or marriage; 97
(22) "Fraternal cemetery", a cemetery owned, operated, 98
controlled, or managed by any fraternal organization or 99
auxiliary organizations thereof, in which the sale of burial 100
space is restricted solely to its members and their 101
immediate families; 102
(23) "Garden mausoleum", a mausoleum without a 103
substantial area of enclosed space and having its crypt and 104
niche fronts open to the atmosphere. Ventilation of the 105
crypts by forced air or otherwise does not constitute a 106
garden mausoleum as a community mausoleum; 107
(24) "Government cemetery", or "municipal cemetery", a 108
cemetery owned, operated, controlled, or managed by the 109
federal government, the state, or a political subdivision of 110
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the state, including a county or municipality or 111
instrumentality thereof; 112
(25) "Grave" or "plot", a place of ground in a 113
cemetery, used or intended to be used for burial of human 114
remains; 115
(26) "Human and pet cemetery", a tract of real estate 116
separate from a cemetery in which both human remains and the 117
remains of creatures other than human may be interred and 118
memorialized at the discretion of the lot holder and subject 119
to the rules of the human and pet cemetery. Burial space in 120
a human and pet cemetery shall have the same meaning as 121
defined in this section but be applicable to pets as well as 122
human dead; 123
(27) "Human remains", the body of a deceased person in 124
any state of decomposition, as well as cremated remains; 125
[(27)] (28) "Inurnment", placing an urn containing 126
cremated remains in a burial space; 127
[(28)] (29) "Lawn crypt", a burial vault or other 128
permanent container for a casket [which] that is permanently 129
installed below ground prior to the time of the actual 130
interment. A lawn crypt may permit single or multiple 131
interments in a grave space; 132
[(29)] (30) "Mausoleum", a structure or building for 133
the entombment of human remains in crypts; 134
[(30)] (31) "Niche", a space in a columbarium used or 135
intended to be used for inurnment of cremated remains; 136
[(31)] (32) "Nonendowed care cemetery", or "nonendowed 137
cemetery", a cemetery or a section of a cemetery for which 138
no endowed care trust fund has been established in 139
accordance with sections 214.270 to 214.410; 140
[(32)] (33) "Office", the office of endowed care 141
cemeteries within the division of professional registration; 142
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[(33)] (34) "Owner of burial space", a person to whom 143
the cemetery operator or [his] the operator's authorized 144
agent has transferred the right of use of burial space; 145
[(34)] (35) "Person", an individual, corporation, 146
partnership, joint venture, association, trust, or any other 147
legal entity; 148
[(35)] (36) "Registry", the list of cemeteries 149
maintained in the division office for public review. The 150
division may charge a fee for copies of the registry; 151
[(36)] (37) "Religious cemetery", a cemetery owned, 152
operated, controlled, or managed by any church, convention 153
of churches, religious order, or affiliated auxiliary 154
thereof in which the sale of burial space is restricted 155
solely to its members and their immediate families; 156
[(37)] (38) "Surface lawn crypt", a sealed burial 157
chamber whose lid protrudes above the land surface; 158
[(38)] (39) "Total acreage", the entire tract [which] 159
that is dedicated to or reserved for cemetery purposes; 160
[(39)] (40) "Trustee of an endowed care fund", the 161
separate legal entity qualified under section 214.330 162
appointed as trustee of an endowed care fund. 163
214.272. A human and pet cemetery shall be treated as 1
a cemetery under sections 214.270 to 214.410 for purposes of 2
licensing and endowed care. 3
214.389. 1. The division may direct a trustee, 1
financial institution, or escrow agent to suspend 2
distribution from an endowed care trust fund or escrow 3
account if the cemetery operator does not have a current and 4
active cemetery operator license, has failed to file an 5
annual report, or if, after an audit or examination, the 6
division determines there is a deficiency in an endowed care 7
trust fund or escrow account maintained under section 8
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214.330 and the cemetery operator has failed to file a 9
corrective action plan detailing how the deficiency shall be 10
remedied. For purposes of this section, a deficiency shall 11
only be deemed to exist if, after an audit or examination, 12
the division determines a cemetery operator has failed to 13
deposit the total aggregate of funds required to be 14
deposited in trust or an escrow account pursuant to section 15
214.320 or subsection 1 of section 214.335, or has received 16
disbursements from the trust or escrow account in excess of 17
what is permitted under section 214.330. No deficiency 18
shall be deemed to be created by fluctuations in the value 19
of investments held in trust or escrow. 20
2. The division shall provide written notification to 21
the cemetery operator and the trustee, financial 22
institution, or escrow agent within fourteen days of 23
discovering a potential violation as described in this 24
section. Upon receipt of written notification from the 25
division, the cemetery operator shall have sixty days to 26
cure any alleged violations or deficiencies cited in the 27
notification without a suspension of distribution. If, 28
after the sixty-day time period, the division [feels] finds 29
the cemetery operator has not cured the alleged violations 30
or deficiencies cited in the notification, the division may 31
send a notice of suspension to the cemetery operator that 32
the division is ordering a suspension of distribution as 33
described in this section. In the event of a suspension of 34
distribution, the amount of any distribution suspended shall 35
become principal, with credit against the deficiency, unless 36
the cemetery operator files an appeal with a court of 37
competent jurisdiction or with the administrative hearing 38
commission, as provided herein. In the event of an appeal, 39
a cemetery operator may request the court or administrative 40
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hearing commission stay the suspension of distribution after 41
a showing of necessity and good cause or authorize payment 42
from the endowed care trust fund or escrow account for 43
necessary expenses from any amount subject to distribution. 44
3. Upon receipt of an order from the division 45
suspending distribution pursuant to this section, a trustee, 46
financial institution, or escrow agent shall immediately 47
suspend distribution as required by the order. A trustee, 48
financial institution, or escrow agent shall be exempt from 49
liability for failure to distribute funds as ordered by the 50
division. 51
4. A cemetery operator may appeal an order suspending 52
distribution pursuant to this section to the administrative 53
hearing commission. The administrative hearing commission 54
shall receive notice of such appeal within thirty days from 55
the date the notice of suspension was mailed by certified 56
mail. Failure of a person whose license was suspended to 57
notify the administrative hearing commission of his or her 58
intent to appeal waives all rights to appeal the 59
suspension. Upon notice of such person's intent to appeal, 60
a hearing shall be held before the administrative hearing 61
commission pursuant to chapter 621. 62
5. A cemetery operator may apply for reinstatement of 63
distributions upon demonstration that the deficiencies or 64
other problems have been cured or that the operator has 65
otherwise come into compliance. 66
6. The division may promulgate rules to implement the 67
provisions of this section. Any rule or portion of a rule, 68
as that term is defined in section 536.010, that is created 69
under the authority delegated in this section shall become 70
effective only if it complies with and is subject to all of 71
the provisions of chapter 536 and, if applicable, section 72
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536.028. This section and chapter 536 are nonseverable and 73
if any of the powers vested with the general assembly 74
pursuant to chapter 536 to review, to delay the effective 75
date, or to disapprove and annul a rule are subsequently 76
held unconstitutional, then the grant of rulemaking 77
authority and any rule proposed or adopted after August 28, 78
2010, shall be invalid and void. 79
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