[ Search ] [ Legislation ]
[ Home ] [ Back ] [ Bottom ]
| [ Introduced ] | [ Engrossed ] |
91_HB3988ham001
LRB9112160STsbam01
1 AMENDMENT TO HOUSE BILL 3988
2 AMENDMENT NO. . Amend House Bill 3988 by replacing
3 everything after the enacting clause with the following:
4 "Section 5. The State Comptroller Act is amended by
5 adding Sections 22.3 and 22.4 as follows:
6 (15 ILCS 405/22.3 new)
7 Sec. 22.3. Cemetery Preservation Advisory Board. The
8 Comptroller shall appoint a 5-member Cemetery Preservation
9 Advisory Board. The Board shall serve in an advisory capacity
10 to the Comptroller for the purpose of recommending the
11 distribution of funds from the Cemetery Preservation Fund.
12 Members of the Board shall serve a term as determined by the
13 Comptroller. Members shall serve without compensation but
14 may be reimbursed for their reasonable expenses incurred in
15 the performance of their duties.
16 (15 ILCS 405/22.4 new)
17 Sec. 22.4. Cemetery Preservation Fund.
18 (a) The Cemetery Preservation Fund is created as a
19 special fund in the State Treasury.
20 (b) Beginning on January 1, 2001, all fees and penalties
21 for the payment of registration, licensure, annual reporting,
-2- LRB9112160STsbam01
1 and penalties paid to the State Comptroller pursuant to
2 Sections 8, 9, and 12 of the Cemetery Care Act shall be
3 deposited into the Cemetery Preservation Fund. The
4 Comptroller may accept monetary gifts or grants from any
5 nongovernmental source for deposit into the Cemetery
6 Preservation Fund.
7 (c) The State Comptroller shall determine payments from
8 the Cemetery Preservation Fund. All payments from the
9 Cemetery Preservation Fund shall be used by the Comptroller
10 to clean up or restore abandoned and neglected cemeteries in
11 Illinois including grants to units of local governments,
12 school districts, and not-for-profit associations.
13 (d) Grant payments provided for the cleanup of cemeteries
14 owned by units of municipal, county, or township government
15 shall not exceed 50% of the projected cost to clean up the
16 cemetery. The Comptroller may adopt rules and regulations in
17 administering this subsection.
18 (e) Expenditures from the Cemetery Preservation Fund are
19 subject to appropriation.
20 Section 10. The State Finance Act is amended by adding
21 Section 5.541 as follows:
22 (30 ILCS 105/5.541 new)
23 Sec. 5.541. The Cemetery Preservation Fund.
24 Section 15. The Grave and Cemetery Restoration Act is
25 amended by changing Section 1 as follows:
26 (55 ILCS 70/1) (from Ch. 21, par. 61)
27 Sec. 1. Care by county.
28 (a) The county board of any county may appropriate funds
29 from the county treasury to be used for the purpose of
30 putting any old, neglected graves and cemeteries in the
-3- LRB9112160STsbam01
1 county in a cleaner and more respectable condition.
2 (b) A county that has within its territory an abandoned
3 cemetery may enter the cemetery grounds and cause the grounds
4 to be cleared and made orderly. Provided, in no event shall a
5 county enter an abandoned cemetery under this subsection if
6 the owner of the property or the legally responsible cemetery
7 authority provides written notification to the county, prior
8 to the county's entry (1) demonstrating the ownership or
9 authority to control or manage the cemetery and (2) declining
10 the county authorization to enter the property. In making a
11 cemetery orderly under this Section, the county may take
12 necessary measures to correct dangerous conditions that exist
13 in regard to markers, memorials, or other cemetery artifacts
14 but may not permanently remove those items from their
15 location on the cemetery grounds.
16 (c) For the purposes of this Section:
17 "Abandoned cemetery" means an area of land containing
18 more than 6 places of interment for which, after diligent
19 search, no owner of the land or currently functioning
20 cemetery authority can be found and (1) at which no
21 interments have taken place in at least 3 years; or (2) for
22 which there has been inadequate maintenance for at least 6
23 months.
24 "Diligent search" includes, but is not limited to,
25 publication of a notice in a newspaper of local circulation
26 not more than 45 but at least 30 days prior to a county's
27 entry and cleanup of cemetery grounds. The notice shall
28 provide (1) notice of the county's intended entry and cleanup
29 of the cemetery; (2) the name, if known, and geographic
30 location of the cemetery; (3) the right of the cemetery
31 authority or owner of the property to deny entry to the
32 county upon written notice to the county; and (4) the date or
33 dates of the intended cleanup.
34 "Inadequate maintenance" includes, but is not limited to,
-4- LRB9112160STsbam01
1 the failure to cut the lawn throughout a cemetery to prevent
2 an overgrowth of grass and weeds; the failure to trim shrubs
3 to prevent excessive overgrowth; the failure to trim trees so
4 as to remove dead limbs; the failure to keep in repair the
5 drains, water lines, roads, buildings, fences, and other
6 structures of the cemetery premises; or the failure to keep
7 the cemetery premises free of trash and debris.
8 (Source: P.A. 86-696.)
9 Section 20. The Township Code is amended by changing
10 Section 130-5 as follows:
11 (60 ILCS 1/130-5)
12 Sec. 130-5. Cemeteries; permitted activities.
13 (a) A township may establish and maintain cemeteries
14 within and without its territory, may acquire lands for
15 cemeteries by condemnation or otherwise, may lay out lots of
16 convenient size for families, and may sell lots for a family
17 burying ground or to individuals for burial purposes.
18 Associations duly incorporated under the laws of this State
19 for cemetery purposes shall have the same power and authority
20 to purchase lands and sell lots for burial purposes as are
21 conferred upon townships under this Article.
22 (b) A township that has within its territory an
23 abandoned cemetery may enter the cemetery grounds and cause
24 the grounds to be cleared and made orderly. Provided, in no
25 event shall a township enter an abandoned cemetery under this
26 subsection if the owner of the property or the legally
27 responsible cemetery authority provides written notification
28 to the township, prior to the township's entry (1)
29 demonstrating the ownership or authority to control or manage
30 the cemetery and (2) declining the township authorization to
31 enter the property. In making a cemetery orderly under this
32 Section, the township may take necessary measures to correct
-5- LRB9112160STsbam01
1 dangerous conditions that exist in regard to markers,
2 memorials, or other cemetery artifacts but may not
3 permanently remove those items from their location on the
4 cemetery grounds.
5 (c) In this Section:
6 "Abandoned cemetery" means an area of land containing
7 "more than 6 places of interment for which, after diligent
8 search, no owner of the land or currently functioning
9 cemetery authority can be found and (1) at which no
10 interments have taken place in at least 3 years; or (2) for
11 which there has been inadequate maintenance for at least 6
12 months.
13 "Diligent search" includes, but is not limited to,
14 publication of a notice in a newspaper of local circulation
15 not more than 45 but at least 30 days prior to a township's
16 entry and cleanup of cemetery grounds. The notice shall
17 provide (1) notice of the township's intended entry and
18 cleanup of the cemetery; (2) the name, if known, and
19 geographic location of the cemetery; (3) the right of the
20 cemetery authority or owner of the property to deny entry to
21 the township upon written notice to the township; and (4) the
22 date or dates of the intended cleanup.
23 "Inadequate maintenance" includes, but is not limited to,
24 the failure to cut the lawn throughout a cemetery to prevent
25 an overgrowth of grass and weeds; the failure to trim shrubs
26 to prevent excessive overgrowth; the failure to trim trees so
27 as to remove dead limbs; the failure to keep in repair the
28 drains, water lines, roads, buildings, fences, and other
29 structures of the cemetery premises; or the failure to keep
30 the cemetery premises free of trash and debris.
31 (Source: Laws 1963, p. 824; P.A. 88-62.)
32 Section 25. The Illinois Municipal Code is amended by
33 changing Section 11-49-1 as follows:
-6- LRB9112160STsbam01
1 (65 ILCS 5/11-49-1) (from Ch. 24, par. 11-49-1)
2 Sec. 11-49-1. Cemeteries; permitted activities.
3 (a) The corporate authorities of each municipality may
4 establish and regulate cemeteries within or without the
5 municipal limits; may acquire lands therefor, by purchase or
6 otherwise; may cause cemeteries to be removed; and may
7 prohibit their establishment within one mile of the municipal
8 limits.
9 (b) The corporate authorities also may enter into
10 contracts to purchase existing cemeteries, or lands for
11 cemetery purposes, on deferred installments to be paid solely
12 from the proceeds of sale of cemetery lots. Every such
13 contract shall empower the purchasing municipality, in its
14 own name, to execute and deliver deeds to purchasers of
15 cemetery lots for burial purposes.
16 (c) The corporate authorities of each municipality that
17 has within its territory an abandoned cemetery may enter the
18 cemetery grounds and cause the grounds to be cleared and made
19 orderly. Provided, in no event shall the corporate
20 authorities of a municipality enter an abandoned cemetery
21 under this subsection if the owner of the property or the
22 legally responsible cemetery authority provides written
23 notification to the corporate authorities, prior to the the
24 corporate authorities' entry (1) demonstrating the ownership
25 or authority to control or manage the cemetery and (2)
26 declining the corporate authority authorization to enter the
27 property. In making a cemetery orderly under this Section,
28 the corporate authorities of a municipality may take
29 necessary measures to correct dangerous conditions that exist
30 in regard to markers, memorials, or other cemetery artifacts
31 but may not permanently remove those items from their
32 location on the cemetery grounds.
33 (d) In this Section:
34 "Abandoned cemetery" means an area of land containing
-7- LRB9112160STsbam01
1 more than 6 places of interment for which, after diligent
2 search, no owner of the land or currently functioning
3 cemetery authority can be found and (1) at which no
4 interments have taken place in at least 3 years; or (2) for
5 which there has been inadequate maintenance for at least 6
6 months.
7 "Diligent search" includes, but is not limited to,
8 publication of a notice in a newspaper of local circulation
9 not more than 45 but at least 30 days prior to entry and
10 cleanup of cemetery grounds by the corporate authorities of a
11 municipality. The notice shall provide (1) notice of the
12 corporate authorities' intended entry and cleanup of the
13 cemetery; (2) the name, if known, and geographic location of
14 the cemetery; (3) the right of the cemetery authority or
15 owner of the property to deny entry to the corporate
16 authorities upon written notice to the those authorities; and
17 (4) the date or dates of the intended cleanup.
18 "Inadequate maintenance" includes, but is not limited to,
19 the failure to cut the lawn throughout a cemetery to prevent
20 an overgrowth of grass and weeds; the failure to trim shrubs
21 to prevent excessive overgrowth; the failure to trim trees so
22 as to remove dead limbs; the failure to keep in repair the
23 drains, water lines, roads, buildings, fences, and other
24 structures of the cemetery premises; or the failure to keep
25 the cemetery premises free of trash and debris.
26 (Source: Laws 1961, p. 576.)
27 Section 30. The Illinois Funeral or Burial Funds Act is
28 amended by changing Sections 1a, 1a-1, 2, 2a, 3, 3a, 3e, 3f,
29 4, 7.2, and 8 and by adding Sections 3a-5 and 8.1 as follows:
30 (225 ILCS 45/1a) (from Ch. 111 1/2, par. 73.101a)
31 Sec. 1a. For the purposes of this Act, the following
32 terms shall have the meanings specified, unless the context
-8- LRB9112160STsbam01
1 clearly requires another meaning:
2 "Beneficiary" means the person specified in the pre-need
3 contract upon whose death funeral services or merchandise
4 shall be provided or delivered.
5 "Licensee" means a seller of a pre-need contract who has
6 been licensed by the Comptroller under this Act.
7 "Outer burial container" means any container made of
8 concrete, steel, wood, fiberglass or similar material, used
9 solely at the interment site, and designed and used
10 exclusively to surround or enclose a separate casket and to
11 support the earth above such casket, commonly known as a
12 burial vault, grave box or grave liner, but not including a
13 lawn crypt as defined in the Illinois Pre-need Cemetery Sales
14 Act.
15 "Parent company" means a corporation that has a
16 controlling interest in another corporation.
17 "Person" means any person, partnership, association,
18 corporation, or other entity.
19 "Pre-need contract" means any agreement or contract, or
20 any series or combination of agreements or contracts, whether
21 funded by trust deposits or life insurance policies or
22 annuities, which has for a purpose the furnishing or
23 performance of funeral services or the furnishing or delivery
24 of any personal property, merchandise, or services of any
25 nature in connection with the final disposition of a dead
26 human body. Nothing in this Act is intended to regulate the
27 content of a life insurance policy or a tax-deferred annuity.
28 "Provider" means a person who is obligated for furnishing
29 or performing funeral services or the furnishing or delivery
30 of any personal property, merchandise, or services of any
31 nature in connection with the final disposition of a dead
32 human body.
33 "Purchaser" means the person who originally paid the
34 money under or in connection with a pre-need contract.
-9- LRB9112160STsbam01
1 "Sales proceeds" means the entire amount paid to a
2 seller, exclusive of sales taxes paid by the seller, finance
3 charges paid by the purchaser, and credit life, accident or
4 disability insurance premiums, upon any agreement or
5 contract, or series or combination of agreements or
6 contracts, for the purpose of performing funeral services or
7 furnishing personal property, merchandise, or services of any
8 nature in connection with the final disposition of a dead
9 human body, including, but not limited to, the retail price
10 paid for such services and personal property and merchandise.
11 "Purchase price" means the sales proceeds less finance
12 charges on retail installment contracts.
13 "Seller" means the person who sells or offers to sell the
14 pre-need contract to a purchaser, whether funded by a trust
15 agreement, life insurance policy, or tax-deferred annuity.
16 "Trustee" means a person authorized to hold funds under
17 this Act.
18 (Source: P.A. 88-477.)
19 (225 ILCS 45/1a-1)
20 Sec. 1a-1. Pre-need contracts.
21 (a) It shall be unlawful for any seller doing business
22 within this State to accept sales proceeds from a purchaser,
23 either directly or indirectly by any means, unless the seller
24 enters into a pre-need contract with the purchaser which
25 meets the following requirements:
26 (1) It states the name and address of the principal
27 office of the seller provider, all branch locations, and
28 the parent company of the seller, if any or clearly
29 discloses that the provider will be selected by the
30 purchaser or the purchaser's survivor or legal
31 representative at a later date, except that no contract
32 shall contain any provision restricting the right of the
33 contract purchaser during his or her lifetime in making
-10- LRB9112160STsbam01
1 his or her own selection of a provider.
2 (2) It clearly identifies the provider's seller's
3 name and address, the purchaser, and the beneficiary, if
4 other than the purchaser, and the provider, if different
5 than the seller or discloses that the provider will be
6 selected at a later date.
7 (3) It contains a complete description of the
8 funeral merchandise and services to be provided and the
9 price of the merchandise and services, and it clearly
10 discloses whether the price of the merchandise and
11 services is guaranteed or not guaranteed as to price.
12 (A) Each guaranteed price contract shall
13 contain the following statement in 12 point bold
14 type:
15 THIS CONTRACT GUARANTEES THE BENEFICIARY THE
16 SPECIFIC GOODS AND SERVICES CONTRACTED FOR. NO
17 ADDITIONAL CHARGES MAY BE REQUIRED. FOR DESIGNATED
18 GOODS AND SERVICES, ADDITIONAL CHARGES MAY BE
19 INCURRED FOR UNEXPECTED EXPENSES INCLUDING, BUT NOT
20 LIMITED TO, CASH ADVANCES, SHIPPING OF REMAINS FROM
21 A DISTANT PLACE, OR DESIGNATED HONORARIA ORDERED OR
22 DIRECTED BY SURVIVORS.
23 (B) Each non-guaranteed price contract shall
24 contain the following statement in 12 point bold
25 type:
26 THIS CONTRACT DOES NOT GUARANTEE THE PRICE THE
27 BENEFICIARY WILL PAY FOR ANY SPECIFIC GOODS OR
28 SERVICES. ANY FUNDS PAID UNDER THIS CONTRACT ARE
29 ONLY A DEPOSIT TO BE APPLIED TOWARD THE FINAL PRICE
30 OF THE GOODS OR SERVICES CONTRACTED FOR. ADDITIONAL
31 CHARGES MAY BE REQUIRED.
32 (4) It provides that if the particular supplies and
33 services specified in the pre-need contract are
34 unavailable at the time of delivery, the provider shall
-11- LRB9112160STsbam01
1 be required to furnish supplies and services similar in
2 style and at least equal in quality of material and
3 workmanship.
4 (5) It discloses any penalties or restrictions,
5 including but not limited to geographic restrictions or
6 the inability of the provider, if selected, to perform,
7 on the delivery of merchandise, services, or pre-need
8 contract guarantees.
9 (6) Regardless of the method of funding the
10 pre-need contract, the following must be disclosed:
11 (A) Whether the pre-need contract is to be
12 funded by a trust, life insurance, or an annuity;
13 (B) The nature of the relationship among the
14 person entity funding the pre-need contract, the
15 provider, if selected, and the seller; and
16 (C) The impact on the pre-need contract of (i)
17 any changes in the funding arrangement including but
18 not limited to changes in the assignment,
19 beneficiary designation, or use of the funds; (ii)
20 any specific penalties to be incurred by the
21 contract purchaser as a result of failure to make
22 payments; (iii) penalties to be incurred or moneys
23 or refunds to be received as a result of
24 cancellations; and (iv) all relevant information
25 concerning what occurs and whether any entitlements
26 or obligations arise if there is a difference
27 between the proceeds of the particular funding
28 arrangement and the amount actually needed to pay
29 for the funeral at-need.; and
30 (D) The method of changing or selecting the
31 designation of the provider.
32 (b) All pre-need contracts are subject to the Federal
33 Trade Commission Rule concerning the Cooling-Off Period for
34 Door-to-Door Sales (16 CFR Part 429).
-12- LRB9112160STsbam01
1 (c) No pre-need contract shall be sold in this State
2 unless there is a provider for the services and personal
3 property being sold, or unless disclosure has been made by
4 the seller as provided in subdivision (a)(1). If the seller
5 is not a provider and a provider has been selected, then the
6 seller must have a binding agreement with a provider, and the
7 identity of the provider and the nature of the agreement
8 between the seller and the provider shall be disclosed in the
9 pre-need contract at the time of the sale and before the
10 receipt of any sales proceeds. Any subsequent change made in
11 the identity of the provider shall be approved in writing by
12 the purchaser and beneficiary within 30 days after it occurs.
13 The failure to disclose the identity of the provider, the
14 nature of the agreement between the seller and the provider,
15 or any changes thereto to the purchaser and beneficiary, or
16 the failure to make the disclosures required in subdivision
17 (a)(1), constitutes an intentional violation of this Act.
18 (d) All pre-need contracts must be in writing in at
19 least 12 point type, numbered, and executed in duplicate and
20 no pre-need contract form shall be used without prior filing
21 with the Comptroller. A signed copy of the pre-need contract
22 must be provided to the purchaser at the time of entry. The
23 Comptroller shall review all pre-need contract forms and
24 shall prohibit the use of contract forms which do not meet
25 the requirements of this Act upon written notification to the
26 seller. Any use or attempted use of any oral pre-need
27 contract or any written pre-need contract in a form not filed
28 with the Comptroller or in a form which does not meet the
29 requirements of this Act shall be deemed a violation of this
30 Act and is voidable by the purchaser without penalty. Life
31 insurance policies, tax-deferred annuities, endorsements,
32 riders, or applications for life insurance or tax-deferred
33 annuities are not subject to filing with the Comptroller.
34 The Comptroller may by rule develop a model pre-need contract
-13- LRB9112160STsbam01
1 form which meets the requirements of this Act.
2 (e) The State Comptroller shall by rule develop a
3 booklet for consumers in plain English describing the scope,
4 application, and consumer protections of this Act. After the
5 adoption of these rules, no pre-need contract shall be sold
6 in this State unless the seller (i) distributes to the
7 purchaser prior to the sale a booklet promulgated or approved
8 for use by the State Comptroller and (ii) explains to the
9 purchaser the terms of the pre-need contract prior to the
10 purchaser's signing.
11 (f) All sales proceeds received in connection with a
12 pre-need contract shall be deposited into a trust account as
13 provided in Section 1b and Section 2 of this Act, or shall be
14 used to purchase a life insurance policy or tax-deferred
15 annuity as provided in Section 2a of this Act.
16 (g) No pre-need contract shall be sold in this State
17 unless it is accompanied by a funding mechanism permitted
18 under this Act, and unless the seller is licensed by the
19 Comptroller as provided in Section 3 of this Act. Nothing in
20 this Act is intended to relieve sellers of pre-need contracts
21 from being licensed under any other Act required for their
22 profession or business, and being subject to the rules
23 promulgated to regulate their profession or business,
24 including rules on solicitation and advertisement.
25 (Source: P.A. 90-47, eff. 1-1-98.)
26 (225 ILCS 45/2) (from Ch. 111 1/2, par. 73.102)
27 Sec. 2. (a) If a purchaser selects a trust arrangement
28 to fund the pre-need contract, all trust deposits as
29 determined by Section 1b shall be made within 30 days of
30 receipt.
31 (b) A trust established under this Act must be
32 maintained:
33 (1) in a trust account established in a bank,
-14- LRB9112160STsbam01
1 savings and loan association, savings bank, or credit
2 union authorized to do business in Illinois in which
3 accounts are insured by an agency of the federal
4 government; or
5 (2) in a trust company authorized to do business in
6 Illinois.
7 (c) Trust agreements and amendments to the trust
8 agreements used to fund a pre-need contract shall be filed
9 with the Comptroller prior to their use.
10 (d) Trust agreements shall follow the format of the
11 standard Funeral Trust Agreements approved by the Comptroller
12 for guaranteed or non-guaranteed price funeral plans.
13 (e) A seller or provider shall furnish to the trustee
14 and depositary the name of each payor and the amount of
15 payment on each such account for which deposit is being so
16 made. Nothing shall prevent the trustee or a seller or
17 provider acting as a trustee in accordance with this Act from
18 commingling the deposits in any such trust fund for purposes
19 of its management and the investment of its funds as provided
20 in the Common Trust Fund Act. In addition, multiple trust
21 funds maintained under this Act may be commingled or
22 commingled with other funeral or burial related trust funds
23 if all record keeping requirements imposed by law are met.
24 (f) Trust funds may be maintained in a financial
25 institution described in subsection (b) which is located in a
26 state adjoining this State where: (1) the financial
27 institution is located within 50 miles of the border of this
28 State, (2) its accounts are federally insured, and (3) it has
29 registered with the Illinois Secretary of State for purposes
30 of service of process.
31 (g) Upon notice to the Comptroller, the seller may
32 change the trustee of the fund.
33 (Source: P.A. 88-477.)
-15- LRB9112160STsbam01
1 (225 ILCS 45/2a)
2 Sec. 2a. Purchase of insurance or annuity.
3 (a) If a purchaser selects the purchase of a life
4 insurance policy or tax-deferred annuity contract to fund the
5 pre-need contract, the application and collected premium
6 shall be mailed within 30 days of signing the pre-need
7 contract.
8 (b) If life insurance or an annuity is used to fund a
9 pre-need contract, the seller or provider shall not be named
10 as the owner or beneficiary of the policy or annuity. No
11 person whose only insurable interest in the insured is the
12 receipt of proceeds from the policy or in naming who shall
13 receive the proceeds nor any trust acting on behalf of such
14 person or seller or provider shall be named as owner or
15 beneficiary of the policy or annuity.
16 (c) Nothing shall prohibit the purchaser from
17 irrevocably assigning ownership of the policy or annuity used
18 to fund a guaranteed price pre-need contract to a person or
19 trust for the purpose of obtaining favorable consideration
20 for Medicaid, Supplemental Security Income, or another public
21 assistance program, as permitted under federal law, except
22 that neither the seller nor the contract provider shall be
23 named the owner of the policy or annuity.
24 (d) If a life insurance policy or annuity contract is
25 used to fund a pre-need contract, except for guaranteed price
26 contracts permitted in Section 4(a) of this Act, the pre-need
27 contract must be revocable, and the assignment provision in
28 the pre-need contract must contain the following disclosure
29 in 12 point bold type:
30 THIS ASSIGNMENT MAY BE REVOKED BY THE ASSIGNOR OR
31 ASSIGNOR'S SUCCESSOR OR, IF THE ASSIGNOR IS ALSO THE INSURED
32 AND DECEASED, BY THE REPRESENTATIVE OF THE INSURED'S ESTATE
33 BEFORE THE RENDERING TO THE CEMETERY SERVICES OR GOODS OR
34 FUNERAL SERVICES OR GOODS. IF THE ASSIGNMENT IS REVOKED, THE
-16- LRB9112160STsbam01
1 DEATH BENEFIT UNDER THE LIFE INSURANCE POLICY OR ANNUITY
2 CONTRACT SHALL BE PAID IN ACCORDANCE WITH THE BENEFICIARY
3 DESIGNATION UNDER THE INSURANCE POLICY OR ANNUITY CONTRACT.
4 (e) Sales proceeds shall not be used to purchase life
5 insurance policies or tax-deferred annuities unless the
6 company issuing the life insurance policies or tax-deferred
7 annuities is licensed with the Illinois Department of
8 Insurance, and the insurance producer or annuity seller is
9 licensed to do business in the State of Illinois.
10 (f) The seller or provider must give notice in writing
11 that the cash surrender value of a life insurance policy may
12 be less than the amount provided for by the refund provisions
13 of the trust.
14 (Source: P.A. 88-477.)
15 (225 ILCS 45/3) (from Ch. 111 1/2, par. 73.103)
16 Sec. 3. Licensing.
17 (a) No person, firm, partnership, association or
18 corporation may act as seller without first securing from the
19 State Comptroller a license to so act. Application for such
20 license shall be in writing, signed by the applicant and duly
21 verified on forms furnished by the Comptroller. Each
22 application shall contain at least the following:
23 (1) The full name and address (both residence and
24 place of business) of the applicant, and every member,
25 officer and director thereof if the applicant is a firm,
26 partnership, association, or corporation, and of every
27 shareholder holding more than 10% of the corporate stock
28 if the applicant is a corporation. Any license issued
29 pursuant to the application shall be valid only at the
30 address stated in the application for such applicant or
31 at such new address as may be approved by the
32 Comptroller;
33 (2) A statement of the applicant's assets and
-17- LRB9112160STsbam01
1 liabilities approximate net worth;
2 (3) The name and address of the applicant's
3 principal place of business at which the books, accounts,
4 and records shall be available for examination by the
5 Comptroller as required by this Act;
6 (4) The names and addresses of the applicant's
7 branch locations at which pre-need sales shall be
8 conducted and which shall operate under the same license
9 number as the applicant's principal place of business;
10 (5) For each individual listed under item (1) above,
11 a detailed statement of the individual's business
12 experience for the 10 years immediately preceding the
13 application; any present or prior connection between the
14 individual and any other person engaged in pre-need
15 sales; any felony or misdemeanor convictions for which
16 fraud was an essential element; any charges or complaints
17 lodged against the individual for which fraud was an
18 essential element and which resulted in civil or criminal
19 litigation; any failure of the individual to satisfy an
20 enforceable judgment entered against him based upon
21 fraud; and any other information requested by the
22 Comptroller relating to past business practices of the
23 individual. Since the information required by this item
24 (5) may be confidential or contain proprietary
25 information, this information shall not be available to
26 other licensees or the general public and shall be used
27 only for the lawful purposes of the Comptroller in
28 enforcing this Act;
29 (6) The name of the trustee and, if applicable, the
30 names of the advisors to the trustee, including a copy of
31 the proposed trust agreement under which the trust funds
32 are to be held as required by this Act; and
33 (7) Such other information as the Comptroller may
34 reasonably require in order to determine the
-18- LRB9112160STsbam01
1 qualification of the applicant to be licensed under this
2 Act. and (3)
3 (b) Applications for license shall be accompanied by a
4 fidelity bond executed by the applicant and a surety company
5 authorized to do business in this State or an irrevocable,
6 unconditional letter of credit issued by a bank, credit
7 union, or trust company authorized to do business in the
8 State of Illinois, as approved by the State Comptroller, in
9 such amount not exceeding $10,000 as the Comptroller may
10 require. Individual salespersons employed by a licensee
11 shall not be required to obtain licenses in their individual
12 capacities. Upon receipt of such application and bond or
13 letter of credit the Comptroller shall issue a license unless
14 he or she shall determine that the applicant has made false
15 statements or representations in such application, or is
16 insolvent, or has conducted or is about to conduct his
17 business in a fraudulent manner, or is not duly authorized to
18 transact business in this State. Such license shall be kept
19 conspicuously posted in the place of business of the
20 licensee. If, after notice and an opportunity to be heard, it
21 has been determined that a licensee has violated this Act
22 within the past 5 calendar years, or if a licensee does not
23 retain a corporate fiduciary, as defined in the Corporate
24 Fiduciary Act, to manage the funds in trust pursuant to this
25 Act, the Comptroller may require an additional bond or letter
26 of credit from the licensee from time to time in amounts
27 equal to one-tenth of such trust funds, which bond or letter
28 of credit shall run to the Comptroller for the use and
29 benefit of the beneficiaries of such trust funds.
30 The licensee shall keep accurate accounts, books and
31 records in this State, at the principal place of business
32 identified in the licensee's license application or as
33 otherwise approved by the Comptroller in writing, of all
34 transactions, copies of all pre-need contracts, trust
-19- LRB9112160STsbam01
1 agreements, and other agreements, dates and amounts of
2 payments made and accepted thereon, the names and addresses
3 of the contracting parties, the persons for whose benefit
4 such funds are accepted, and the names of the depositaries of
5 such funds. Each licensee shall maintain the documentation
6 for a period of 3 years after the licensee has fulfilled his
7 obligations under the pre-need contract. Additionally, for a
8 period not to exceed 6 months after the performance of all
9 terms in a pre-need sales contract, the licensee shall
10 maintain copies of the contract at the licensee branch
11 location where the contract was entered. If an insurance
12 policy or tax-deferred annuity is used to fund the pre-need
13 contract, the licensee under this Act shall keep and maintain
14 accurate accounts, books, and records in this State, at the
15 principal place of business identified in the licensee's
16 application or as otherwise approved by the Comptroller in
17 writing, of all insurance policies and tax-deferred annuities
18 used to fund the pre-need contract, the name and address of
19 insured, annuitant, and initial beneficiary, and the name and
20 address of the insurance company issuing the policy or
21 annuity. If a life insurance policy or tax-deferred annuity
22 is used to fund a pre-need contract, the licensee shall
23 notify the insurance company of the name of each pre-need
24 contract purchaser and the amount of each payment when the
25 pre-need contract, insurance policy or annuity is purchased.
26 The licensee shall make reports to the Comptroller
27 annually or at such other time as the Comptroller may
28 require, on forms furnished by the Comptroller. The licensee
29 shall file the annual report with the Comptroller within 75
30 days after the end of the licensee's fiscal year. The
31 Comptroller shall for good cause shown grant an extension for
32 the filing of the annual report upon the written request of
33 the licensee. Such extension shall not exceed 60 days. If a
34 licensee fails to submit an annual report to the Comptroller
-20- LRB9112160STsbam01
1 within the time specified in this Section, the Comptroller
2 shall impose upon the licensee a penalty of $5 for each and
3 every day the licensee remains delinquent in submitting the
4 annual report. Every application shall be accompanied by a
5 check or money order in the amount of $25 and every report
6 shall be accompanied by a check or money order in the amount
7 of $10 payable to: Comptroller, State of Illinois.
8 The licensee shall make all required books and records
9 pertaining to trust funds, insurance policies, or
10 tax-deferred annuities available to the Comptroller for
11 examination. The Comptroller, or a person designated by the
12 Comptroller who is trained to perform such examinations, may
13 at any time investigate the books, records and accounts of
14 the licensee with respect to trust funds, insurance policies,
15 or tax-deferred annuities and for that purpose may require
16 the attendance of and examine under oath all persons whose
17 testimony he may require. The licensee shall pay a fee for
18 such examination in accordance with a schedule established by
19 the Comptroller. The fee shall not exceed the cost of such
20 examination. For pre-need contracts funded by trust
21 arrangements, the cost of an initial examination shall be
22 borne by the licensee if it has $10,000 or more in trust
23 funds, otherwise, by the Comptroller. The charge made by the
24 Comptroller for an examination shall be based upon the total
25 amount of trust funds held by the licensee at the end of the
26 calendar or fiscal year for which the report is required by
27 this Act and shall be in accordance with the following
28 schedule:
29 Less than $10,000..................................no charge;
30 $10,000 or more but less than $50,000....................$10;
31 $50,000 or more but less than $100,000...................$40;
32 $100,000 or more but less than $250,000..................$80;
33 $250,000 or more........................................$100.
34 The Comptroller may order additional audits or
-21- LRB9112160STsbam01
1 examinations as he or she may deem necessary or advisable to
2 ensure the safety and stability of the trust funds and to
3 ensure compliance with this Act. These additional audits or
4 examinations shall only be made after good cause is
5 established by the Comptroller in the written order. The
6 grounds for ordering these additional audits or examinations
7 may include, but shall not be limited to:
8 (1) material and unverified changes or fluctuations
9 in trust balances or insurance or annuity policy amounts;
10 (2) the licensee changing trustees more than twice
11 in any 12-month period;
12 (3) any withdrawals or attempted withdrawals from
13 the trusts, insurance policies, or annuity contracts in
14 violation of this Act; or
15 (4) failure to maintain or produce documentation
16 required by this Act for deposits into trust accounts,
17 trust investment activities, or life insurance or annuity
18 policies.
19 Prior to ordering an additional audit or examination, the
20 Comptroller shall request the licensee to respond and comment
21 upon the factors identified by the Comptroller as warranting
22 the subsequent examination or audit. The licensee shall have
23 30 days to provide a response to the Comptroller. If the
24 Comptroller decides to proceed with the additional
25 examination or audit, the licensee shall bear the full cost
26 of that examination or audit, up to a maximum of $7,500. The
27 Comptroller may elect to pay for the examination or audit and
28 receive reimbursement from the licensee. Payment of the
29 costs of the examination or audit by a licensee shall be a
30 condition of receiving, maintaining, or renewing a license
31 under this Act. All moneys received by the Comptroller for
32 examination or audit fees shall be maintained in a separate
33 account to be known as the Comptroller's Administrative Fund.
34 This Fund, subject to appropriation by the General Assembly,
-22- LRB9112160STsbam01
1 may be utilized by the Comptroller for enforcing this Act and
2 other purposes that may be authorized by law.
3 For pre-need contracts funded by life insurance or a
4 tax-deferred annuity, the cost of an examination shall be
5 borne by the licensee if it has received $10,000 or more in
6 premiums during the preceding calendar year. The fee schedule
7 for such examination shall be established in rules
8 promulgated by the Comptroller. In the event such
9 investigation or other information received by the
10 Comptroller discloses a substantial violation of the
11 requirements of this Act, the Comptroller shall revoke the
12 license of such person upon a hearing as provided in this
13 Act. Such licensee may terminate all further responsibility
14 for compliance with the requirements of this Act by
15 voluntarily surrendering the license to the Comptroller, or
16 in the event of its loss, furnishing the Comptroller with a
17 sworn statement to that effect, which states the licensee's
18 intention to discontinue acceptance of funds received under
19 pre-need contracts. Such license or statement must be
20 accompanied by an affidavit that said licensee has lawfully
21 expended or refunded all funds received under pre-need
22 contracts, and that the licensee will accept no additional
23 sales proceeds. The Comptroller shall immediately cancel or
24 revoke said license.
25 (Source: P.A. 88-477; 89-615, eff. 8-9-96.)
26 (225 ILCS 45/3a) (from Ch. 111 1/2, par. 73.103a)
27 Sec. 3a. Denial, suspension, or revocation of license.
28 (a) The Comptroller may refuse to issue or may suspend
29 or revoke a license on any of the following grounds:
30 (1) The applicant or licensee has made any
31 misrepresentations or false statements or concealed any
32 material fact.
33 (2) The applicant or licensee is insolvent.
-23- LRB9112160STsbam01
1 (3) The applicant or licensee has been engaged in
2 business practices that work a fraud.
3 (4) The applicant or licensee has refused to give
4 pertinent data to the Comptroller.
5 (5) The applicant or licensee has failed to satisfy
6 any enforceable judgment or decree rendered by any court
7 of competent jurisdiction against the applicant.
8 (6) The applicant or licensee has conducted or is
9 about to conduct business in a fraudulent manner.
10 (7) The trustee advisors or the trust agreement is
11 not satisfactory to the Comptroller.
12 (8) The fidelity bond is not satisfactory to the
13 Comptroller.
14 (9) As to any individual, the individual has
15 conducted or is about to conduct any business on behalf
16 of the applicant in a fraudulent manner; has been
17 convicted of any felony or misdemeanor, an essential
18 element of which is fraud; has had a judgment rendered
19 against him or her based on fraud in any civil
20 litigation; has failed to satisfy any enforceable
21 judgment or decree rendered against him or her by any
22 court of competent jurisdiction; or has been convicted of
23 any felony or any theft-related offense.
24 (10) The applicant or licensee, including any
25 member, officer, or director thereof if the applicant or
26 licensee is a firm, partnership, association or
27 corporation and any shareholder holding more than 10% of
28 the corporate stock, has violated any provision of this
29 Act or any regulation, decision, order, or finding made
30 by the Comptroller under this Act.
31 (11) The Comptroller finds any fact or condition
32 existing which, if it had existed at the time of the
33 original application for such license, would have
34 warranted the Comptroller in refusing the issuance of the
-24- LRB9112160STsbam01
1 license.
2 (b) Before refusal to issue or renew and before
3 suspension or revocation of a license, the Comptroller shall
4 hold a hearing to determine whether the applicant or
5 licensee, hereinafter referred to as the respondent, is
6 entitled to hold such a license. At least 10 days prior to
7 the date set for such hearing, the Comptroller shall notify
8 the respondent in writing that on the date designated a
9 hearing will be held to determine his eligibility for a
10 license and that he may appear in person or by counsel. Such
11 written notice may be served on the respondent personally, or
12 by registered or certified mail sent to the respondent's
13 business address as shown in his latest notification to the
14 Comptroller. At the hearing, both the respondent and the
15 complainant shall be accorded ample opportunity to present in
16 person or by counsel such statements, testimony, evidence and
17 argument as may be pertinent to the charges or to any defense
18 thereto. The Comptroller may reasonably continue such
19 hearing from time to time.
20 The Comptroller may subpoena any person or persons in
21 this State and take testimony orally, by deposition or by
22 exhibit, in the same manner and with the same fees and
23 mileage allowances as prescribed in judicial proceedings in
24 civil cases.
25 Any authorized agent of the Comptroller may administer
26 oaths to witnesses at any hearing which the Comptroller is
27 authorized to conduct.
28 (Source: P.A. 84-839.)
29 (225 ILCS 45/3a-5 new)
30 Section 3a-5. License requirements.
31 (a) Every license issued by the Comptroller shall state
32 the number of the license, the business name and address of
33 the licensee's principal place of business, each branch
-25- LRB9112160STsbam01
1 location also operating under the license, and the licensee's
2 parent company, if any. The license shall be conspicuously
3 posted in each place of business operating under the license.
4 The Comptroller may issue such additional licenses as may be
5 necessary for licensee branch locations upon compliance with
6 the provisions of this Act governing an original issuance of
7 a license for each new license.
8 (b) Individual salespersons representing a licensee
9 shall not be required to obtain licenses in their individual
10 capacities, but must acknowledge, by affidavit, that they
11 have been educated in the provisions of this Act and
12 understand the penalties for failure to comply. The licensee
13 shall retain copies of the affidavits of its sellers for its
14 records and shall make the affidavits available to the
15 Comptroller for examination upon request.
16 (c) The licensee shall be responsible for the activities
17 of any person representing the licensee in selling or
18 offering a pre-need contract for sale.
19 (d) Any person not selling on behalf of a licensee shall
20 obtain its own license.
21 (e) No license shall be transferable or assignable
22 without the express written consent of the Comptroller. A
23 transfer of more than 50% of the ownership of any business
24 licensed hereunder shall be deemed to be an attempted
25 assignment of the license originally issued to the licensee
26 for which consent of the Comptroller shall be required.
27 (f) Every license issued hereunder shall remain in force
28 until it has been suspended, surrendered, or revoked in
29 accordance with this Act. The Comptroller, upon the request
30 of an interested person or on his own motion, may issue new
31 licenses to a licensee whose license or licenses have been
32 revoked, if no factor or condition then exists which would
33 have warranted the Comptroller to originally refuse the
34 issuance of such license.
-26- LRB9112160STsbam01
1 (225 ILCS 45/3e) (from Ch. 111 1/2, par. 73.103e)
2 Sec. 3e. Upon the revocation of, suspension of, or
3 refusal to renew any license, the licensee shall immediately
4 surrender the license or licenses and any branch office
5 licenses to the Comptroller. If the licensee fails to do so,
6 the Comptroller shall have the right to seize the same.
7 (Source: P.A. 84-839.)
8 (225 ILCS 45/3f)
9 Sec. 3f. Revocation of license.
10 (a) The Comptroller, upon determination that grounds
11 exist for the revocation or suspension of a license issued
12 under this Act, may revoke or suspend the license issued to a
13 particular branch office location with respect to which the
14 grounds for revocation or suspension may occur or exist or
15 the Comptroller may revoke or suspend as many of the licenses
16 issued to the licensee as may be determined appropriate by
17 the Comptroller.
18 (b) Whenever a license is revoked by the Comptroller, he
19 or she shall apply to the Circuit Court of the county wherein
20 the licensee is located for a receiver to administer the
21 trust funds of the licensee or to maintain the life insurance
22 policies and tax-deferred annuities held by the licensee
23 under a pre-need contract.
24 (Source: P.A. 88-477.)
25 (225 ILCS 45/4) (from Ch. 111 1/2, par. 73.104)
26 Sec. 4. Withdrawal of funds; revocability of contract.
27 (a) The amount or amounts so deposited into trust, with
28 interest thereon, if any, shall not be withdrawn until the
29 death of the person or persons for whose funeral or burial
30 such funds were paid, unless sooner withdrawn and repaid to
31 the person who originally paid the money under or in
32 connection with the pre-need contract or to his or her legal
-27- LRB9112160STsbam01
1 representative. The life insurance policies or tax-deferred
2 annuities shall not be surrendered until the death of the
3 person or persons for whose funeral or burial the policies or
4 annuities were purchased, unless sooner surrendered and
5 repaid to the owner of the policy purchased under or in
6 connection with the pre-need contract or to his or her legal
7 representative. If, however, the agreement or series of
8 agreements provides for forfeiture and retention of any or
9 all payments as and for liquidated damages as provided in
10 Section 6, then the trustee may withdraw the deposits. In
11 addition, nothing in this Section (i) prohibits the change of
12 depositary by the trustee and the transfer of trust funds
13 from one depositary to another or (ii) prohibits a contract
14 purchaser who is or may become eligible for public assistance
15 under any applicable federal or State law or local ordinance
16 including, but not limited to, eligibility under 24 C.F.R.,
17 Part 913 relating to family insurance under federal Housing
18 and Urban Development Policy from irrevocably waiving, in
19 writing, and renouncing the right to cancel a pre-need
20 contract for funeral services in an amount prescribed by rule
21 of the Illinois Department of Public Aid. No guaranteed price
22 pre-need funeral contract may prohibit a purchaser from
23 making a contract irrevocable to the extent that federal law
24 or regulations require that such a contract be irrevocable
25 for purposes of the purchaser's eligibility for Supplemental
26 Security Income benefits, Medicaid, or another public
27 assistance program, as permitted under federal law.
28 (b) If for any reason a seller or provider who has
29 engaged in pre-need sales has refused, cannot, or does not
30 comply with the terms of the pre-need contract within a
31 reasonable time after he or she is required to do so, the
32 purchaser or his or her heirs or assigns or duly authorized
33 representative shall have the right to a refund of an amount
34 equal to the sales proceeds price paid for undelivered
-28- LRB9112160STsbam01
1 merchandise or services plus otherwise earned undistributed
2 interest amounts held in trust attributable to the contract,
3 within 30 days of the filing of a sworn affidavit with the
4 trustee setting forth the existence of the contract and the
5 fact of breach. A copy of this affidavit shall be filed with
6 the Comptroller and the seller. In the event a seller is
7 prevented from performing by strike, shortage of materials,
8 civil disorder, natural disaster, or any like occurrence
9 beyond the control of the seller or provider, the seller or
10 provider's time for performance shall be extended by the
11 length of the delay. Nothing in this Section shall relieve
12 the seller or provider from any liability for non-performance
13 of his or her obligations under the pre-need contract.
14 (c) At any time prior to the performance of a service or
15 delivery of merchandise under a pre-need contract After final
16 payment on a pre-need contract, any purchaser, its legal
17 representative, or all beneficiaries under the pre-need
18 contract may, upon signed written demand to a seller, demand
19 that the pre-need contract with the seller be terminated.
20 The seller shall, within 30 days, initiate a refund to the
21 purchaser, its legal representative, or all beneficiaries
22 under the pre-need contract in an amount as follows:
23 (1) 100% of the sales proceeds, including
24 undistributed interest earned thereon, if the purchaser,
25 its legal representative, or all beneficiaries demand
26 termination of the pre-need contract within 30 days of
27 the date of entry into the pre-need contract; or
28 (2) of the entire amount held in trust attributable
29 to undelivered merchandise and unperformed services,
30 including otherwise earned undistributed interest earned
31 thereon, if the purchaser, its legal representative, or
32 all beneficiaries demand termination of the pre-need
33 contract more than 30 days after the date of entry into
34 the pre-need contract; or
-29- LRB9112160STsbam01
1 (3) the cash surrender value of a life insurance
2 policy or tax deferred annuity.
3 (d) If no funeral merchandise or services are provided
4 or if the funeral is conducted by another person, the seller
5 may keep no more than 10% of the payments made under the
6 pre-need contract or $300, whichever sum is less. The
7 remainder of the trust funds or insurance or annuity proceeds
8 shall be forwarded to the legal heirs of the deceased or as
9 determined by probate action.
10 (d) The placement and retention of all or a portion of a
11 casket, combination casket-vault, urn, or outer burial
12 container comprised of materials which are designed to
13 withstand prolonged storage in the manner set forth in this
14 paragraph without adversely affecting the structural
15 integrity or aesthetic characteristics of such merchandise in
16 a specific burial space in which the person or persons for
17 whose funeral or burial the merchandise was intended has a
18 right of interment, or the placement of the merchandise in a
19 specific mausoleum crypt or lawn crypt in which such person
20 has a right of entombment, or the placement of the
21 merchandise in a specific niche in which such person has a
22 right of inurnment, or delivery to such person and retention
23 by such person until the time of need shall constitute actual
24 delivery to the person who originally paid the money under or
25 in connection with said agreement or series of agreements.
26 Actual delivery shall eliminate, from and after the date of
27 actual delivery, any requirement under this Act to place or
28 retain in trust any funds received for the sale of such
29 merchandise. The delivery, prior to the time of need, of any
30 funeral or burial merchandise in any manner other than
31 authorized by this Section shall not constitute actual
32 delivery and shall not eliminate any requirement under this
33 Act to place or retain in trust any funds received for the
34 sale of such merchandise.
-30- LRB9112160STsbam01
1 (Source: P.A. 87-1091; 88-477.)
2 (225 ILCS 45/7.2)
3 Sec. 7.2. Investigation of unlawful practices. If it
4 appears to the Comptroller that a person has engaged in, is
5 engaging in, or is about to engage in any practice in
6 violation of declared to be unlawful by this Act, the
7 Comptroller may:
8 (1) require that person to file on such terms as
9 the Comptroller prescribes a statement or report in
10 writing, under oath or otherwise, containing all
11 information the Comptroller may consider necessary to
12 ascertain whether a licensee is in compliance with this
13 Act, or whether an unlicensed person is engaging in
14 activities for which a license is required;
15 (2) examine under oath any person in connection
16 with the books and records pertaining to or having an
17 impact upon trust funds, insurance policies, or tax
18 deferred annuities required or allowed to be maintained
19 pursuant to this Act;
20 (3) examine any books and records of the licensee,
21 trustee, or investment advisor that the Comptroller may
22 consider necessary to ascertain compliance with this Act;
23 and
24 (4) require the production of a copy of any record,
25 book, document, account, or paper that is produced in
26 accordance with this Act and retain it in his or her
27 possession until the completion of all proceedings in
28 connection with which it is produced.
29 (Source: P.A. 89-615, eff. 8-9-96.)
30 (225 ILCS 45/8) (from Ch. 111 1/2, par. 73.108)
31 Sec. 8. Any person who intentionally violates any
32 provision of this Act is guilty of a Class 4 felony.
-31- LRB9112160STsbam01
1 If any person intentionally violates this Act or fails or
2 refuses to comply with any order of the Comptroller or any
3 part of an order that has become final to the person and is
4 still in effect, the Comptroller may, after notice and
5 hearing at which it is determined that a violation of this
6 Act or the order has been committed, further order that the
7 person shall forfeit and pay to the State of Illinois a sum
8 not to exceed $10,000 $5,000 for each violation. This
9 liability shall be enforced in an action brought in any court
10 of competent jurisdiction by the Comptroller in the name of
11 the People of the State of Illinois.
12 Any person that violates any provision of this Act or
13 fails to comply with an order of the Comptroller shall be
14 liable for a civil penalty not to exceed $10,000 for the
15 violation and an additional civil penalty of not to exceed
16 $1,000 for each day during which the violation continues. The
17 civil penalties provided for in this Section may be recovered
18 in a civil action. These penalties are in addition to any
19 penalties that may be issued under the Consumer Fraud and
20 Deceptive Business Practices Act for knowing violations of
21 this Act.
22 Any violation of this Act for which a fine may be
23 assessed shall be established by rules promulgated by the
24 Comptroller.
25 In addition to the other penalties and remedies provided
26 in this Act, the Comptroller may bring a civil action in the
27 county of residence of the licensee or any person accepting
28 trust funds to enjoin any violation or threatened violation
29 of this Act.
30 The powers vested in the Comptroller by this Section are
31 in addition to any and all other powers and remedies vested
32 in the Comptroller by law.
33 (Source: P.A. 88-477.)
-32- LRB9112160STsbam01
1 (225 ILCS 45/8.1 new)
2 Sec. 8.1. Sales; liability of purchaser for shortage. In
3 the event of a sale or transfer of all or substantially all
4 of the assets of the licensee, the sale or transfer of the
5 controlling interest of the corporate stock of the licensee
6 if the licensee is a corporation, the sale or transfer of the
7 controlling interest of the partnership if the licensee is a
8 partnership, or the sale of the licensee pursuant to
9 foreclosure proceedings, the purchaser is liable for any
10 shortages existing before or after the sale in the trust
11 funds required to be maintained in a trust pursuant to this
12 Act and shall honor all pre-need contracts and trusts entered
13 into by the licensee. Any shortages existing in the trust
14 funds constitute a prior lien in favor of the trust for the
15 total value of the shortages, and notice of that lien shall
16 be provided in all sales instruments.
17 In the event of a sale or transfer of all or
18 substantially all of the assets of the licensee, the sale or
19 transfer of the controlling interest of the corporate stock
20 of the licensee if the licensee is a corporation, or the sale
21 or transfer of the controlling interest of the partnership if
22 the licensee is a partnership, the licensee shall, at least
23 21 days prior to the sale or transfer, notify the
24 Comptroller, in writing, of the pending date of sale or
25 transfer so as to permit the Comptroller to audit the books
26 and records of the licensee. The audit must be commenced
27 within 10 business days of the receipt of the notification
28 and completed within the 21-day notification period unless
29 the Comptroller notifies the licensee during that period that
30 there is a basis for determining a deficiency which will
31 require additional time to finalize. The sale or transfer
32 may not be completed by the licensee unless and until:
33 (i) the Comptroller has completed the audit of the
34 licensee's books and records;
-33- LRB9112160STsbam01
1 (ii) any delinquency existing in the trust funds has
2 been paid by the licensee, or arrangements satisfactory
3 to the Comptroller have been made by the licensee on the
4 sale or transfer for the payment of any delinquency; and
5 (iii) the Comptroller issues a license upon
6 application of the new owner, which license must be
7 applied for within 30 days of the anticipated date of the
8 sale or transfer, subject to the payment of any
9 delinquencies, if any, as stated in item (ii).
10 For purposes of this Section, a person, firm,
11 corporation, partnership, or institution that acquires the
12 licensee through a real estate foreclosure shall be subject
13 to the provisions of this Section. The sale or transfer of
14 the controlling interest of a licensee to an immediate family
15 member is not subject to the license application process
16 required in item (iii) of this Section.
17 Section 32. The Illinois Public Aid Code is amended by
18 changing Section 12-4.11 as follows:
19 (305 ILCS 5/12-4.11) (from Ch. 23, par. 12-4.11)
20 Sec. 12-4.11. Grant amounts. The Department, with due
21 regard for and subject to budgetary limitations, shall
22 establish grant amounts for each of the programs, by
23 regulation. The grant amounts may vary by program, size of
24 assistance unit and geographic area.
25 Aid payments shall not be reduced except: (1) for changes
26 in the cost of items included in the grant amounts, or (2)
27 for changes in the expenses of the recipient, or (3) for
28 changes in the income or resources available to the
29 recipient, or (4) for changes in grants resulting from
30 adoption of a consolidated grant amount.
31 In fixing standards to govern payments or reimbursements
32 for funeral and burial expenses, the Department shall take
-34- LRB9112160STsbam01
1 into account the services essential to a dignified, low-cost
2 funeral and burial, including reasonable amounts that may be
3 necessary for burial space and cemetery charges, and any
4 applicable taxes or other required governmental fees or
5 charges.
6 For the fiscal year beginning July 1, 2000, no payment
7 may be provided for funeral services in excess of $850 and no
8 payment may be provided for cemetery burial costs in excess
9 of $425. For the fiscal year beginning July 1, 2001, and
10 thereafter, no payment may be provided for funeral services
11 in excess of $1,000 and no payment may be provided for
12 cemetery burial costs in excess of $500.
13 Nothing contained in this Section or in any other Section
14 of this Code shall be construed to prohibit the Illinois
15 Department (1) from consolidating existing standards on the
16 basis of any standards which are or were in effect on, or
17 subsequent to July 1, 1969, or (2) from employing any
18 consolidated standards in determining need for public aid and
19 the amount of money payment or grant for individual
20 recipients or recipient families.
21 (Source: P.A. 90-17, eff. 7-1-97; 90-326, eff. 8-8-97;
22 90-372, eff. 7-1-98; 90-655, eff. 7-30-98; 91-24, eff.
23 7-1-99.)
24 Section 35. The Cemetery Care Act is amended by changing
25 Sections 2a, 4, 8, 9, 10, 11, 11.1, 13, 15b, and 24 as
26 follows:
27 (760 ILCS 100/2a) (from Ch. 21, par. 64.2a)
28 Sec. 2a. Powers and duties of cemetery authorities;
29 cemetery property maintained by cemetery care funds.
30 (a) With respect to cemetery property maintained by
31 cemetery care funds, a cemetery authority is shall be
32 responsible for the performance of:
-35- LRB9112160STsbam01
1 (1) (a) the care and maintenance of the cemetery
2 property it owns; and
3 (2) (b) the opening and closing of all graves,
4 crypts, or niches for human remains in any cemetery
5 property it owns.
6 (b) A cemetery authority owning, operating, controlling
7 or managing a privately operated cemetery shall provide
8 reasonable maintenance of the cemetery property and of the
9 lots, graves, crypts, and columbariums in the cemetery.
10 Reasonable maintenance includes, but is not limited to:
11 (1) the laying of seed, sod, or other suitable
12 ground cover as soon as practicable following an
13 interment given the weather conditions, climate, season,
14 and the interment's proximity to ongoing burial activity;
15 (2) the cutting of the lawn throughout the cemetery
16 at reasonable intervals to prevent an overgrowth of grass
17 and weeds;
18 (3) the trimming of shrubs to prevent excessive
19 overgrowth;
20 (4) the trimming of trees to remove dead limbs;
21 (5) keeping in repair the drains, water lines,
22 roads, buildings, fences, and other structures; and
23 (6) keeping the cemetery premises free of trash and
24 debris.
25 Reasonable maintenance by the cemetery authority shall
26 not preclude the exercise of lawful rights by an owner of an
27 interment, inurnment, or entombment right, or the owner's
28 family and heirs, in accordance with the reasonable rules and
29 regulations of the cemetery or other agreement of the
30 cemetery authority.
31 (c) A cemetery authority owning, operating, controlling
32 or managing a privately operated cemetery shall conspicuously
33 post in each of its offices its rules, regulations, charges,
34 and prices of lots, plots or parts thereof.
-36- LRB9112160STsbam01
1 (d) A cemetery authority owning, operating, controlling
2 or managing a privately operated cemetery shall, from time to
3 time as land in its cemetery may be required for burial
4 purposes, survey and subdivide those lands and make and file
5 in its office a map thereof delineating the lots or plots,
6 avenues, paths, alleys, and walks and their respective
7 designations. The map shall be open to public inspection.
8 The cemetery authority shall make available a true copy of
9 the map upon written request and payment of reasonable
10 photocopy fees. Any unsold lots, plots or parts thereof, in
11 which there are not human remains, may be resurveyed and
12 altered in shape or size, and properly designated on such
13 map. Nothing contained in this subsection, however, shall
14 prevent the cemetery authority from enlarging an interment
15 right by selling to the owner thereof the excess space next
16 to such interment right and permitting interments therein,
17 provided reasonable access to such interment right and to
18 adjoining interment rights is not thereby eliminated.
19 (e) A cemetery authority owning, operating, controlling,
20 or managing a privately operated cemetery shall keep a record
21 of every interment, entombment, and inurnment in the
22 cemetery. The record shall include the deceased's name, age,
23 and date of burial, when these particulars can be
24 conveniently obtained, and the lot, plot, or section where
25 the human remains are interred, entombed, or inurned. The
26 record shall be open to public inspection. The cemetery
27 authority shall make available a true copy of the record upon
28 written request and payment of reasonable copy costs.
29 (f) A cemetery authority owning, operating, controlling,
30 or managing a privately operated cemetery shall provide
31 access to the cemetery under the cemetery authority's
32 reasonable rules and regulations.
33 (Source: P.A. 87-747.)
-37- LRB9112160STsbam01
1 (760 ILCS 100/4) (from Ch. 21, par. 64.4)
2 Sec. 4. Care funds; deposits; investments. Whenever a
3 cemetery authority owning, operating, controlling or managing
4 a privately operated cemetery accepts care funds, either in
5 connection with the sale or giving away at an imputed value
6 of an interment right, entombment right or inurnment right,
7 or in pursuance of a contract, or whenever, as a condition
8 precedent to the purchase or acceptance of an interment
9 right, entombment right or inurnment right, such cemetery
10 authority requires the establishment of a care fund or a
11 deposit in an already existing care fund, then such cemetery
12 authority shall execute and deliver to the person from whom
13 received an instrument in writing which shall specifically
14 state: (a) the nature and extent of the care to be furnished,
15 and (b) that such care shall be furnished only in so far as
16 the net income derived from the amount deposited in trust
17 will permit (the income from the amount so deposited, less
18 necessary expenditures of administering the trust, shall be
19 deemed the net income), and (c) that not less than the
20 following amounts will be set aside and deposited in trust:
21 1. For interment rights, $1 per square foot of the
22 space sold or 15% of the sales price or imputed value,
23 whichever is the greater, with a minimum of $25 for each
24 individual interment right.
25 2. For entombment rights, not less than 10% of the
26 sales price or imputed value with a minimum of $25 for
27 each individual entombment right.
28 3. For inurnment rights, not less than 10% of the
29 sales price or imputed value with a minimum of $15 for
30 each individual inurnment right.
31 4. For any transfer of interment rights, entombment
32 rights, or inurnment rights recorded in the records of
33 the cemetery authority, excepting only transfers between
34 members of the immediate family of the transferor, a
-38- LRB9112160STsbam01
1 minimum of $25 for each such right transferred. For the
2 purposes of this paragraph "immediate family of the
3 transferor" means the spouse, parents, grandparents,
4 children, grandchildren, and siblings of the transferor.
5 5. Upon an interment, entombment, or inurnment in a
6 grave, crypt, or niche in which rights of interment,
7 entombment, or inurnment were originally acquired from a
8 cemetery authority prior to January 1, 1948, a minimum of
9 $25 for each such right exercised.
10 6. For the special care of any lot, grave, crypt,
11 or niche or of a family mausoleum, memorial, marker, or
12 monument, the full amount received.
13 Such setting aside and deposit shall be made by such
14 cemetery authority not later than 30 days after the close of
15 the month in which the cemetery authority gave away for an
16 imputed value or received a the final payment on the purchase
17 price of interment rights, entombment rights, or inurnment
18 rights, or received a the final payment for the general or
19 special care of a lot, grave, crypt or niche or of a family
20 mausoleum, memorial, marker or monument. If a sale that would
21 require a deposit to the care fund is made on an installment
22 basis, the cemetery authority shall deposit to the care fund
23 each installment payment within 30 days of the close of the
24 month in which the cemetery authority received the payment
25 until the amount due the care fund has been deposited.
26 Deposits to the care funds; and such amounts shall be held by
27 the trustee of the care funds of such cemetery authority in
28 trust in perpetuity for the specific purposes stated in said
29 written instrument. For all care funds received by a cemetery
30 authority, except for care funds received by a cemetery
31 authority pursuant to a specific gift, grant, contribution,
32 payment, legacy, or contract that are subject to investment
33 restrictions more restrictive than the investment provisions
34 set forth in this Act, and except for care funds otherwise
-39- LRB9112160STsbam01
1 subject to a trust agreement executed by a person or persons
2 responsible for transferring the specific gift, grant,
3 contribution, payment, or legacy to the cemetery authority
4 that contains investment restrictions more restrictive than
5 the investment provisions set forth in this Act, the cemetery
6 authority may, without the necessity of having to obtain
7 prior approval from any court in this State, designate a new
8 trustee in accordance with this Act and invest the care funds
9 in accordance with this Section, notwithstanding any contrary
10 limitation contained in the trust agreement.
11 Any such cemetery authority engaged in selling or giving
12 away at an imputed value interment rights, entombment rights
13 or inurnment rights, in conjunction with the selling or
14 giving away at an imputed value any other merchandise or
15 services not covered by this Act, shall be prohibited from
16 increasing the sales price or imputed value of those items
17 not requiring a care fund deposit under this Act with the
18 purpose of allocating a lesser sales price or imputed value
19 to items that require a care fund deposit.
20 In the event any sale that would require a deposit to
21 such cemetery authority's care fund is made by a cemetery
22 authority on an installment basis, and the installment
23 contract is factored, discounted, or sold to a third party,
24 the cemetery authority shall deposit the amount due to the
25 care fund within 30 days after the close of the month in
26 which the installment contract was factored, discounted, or
27 sold. If, subsequent to such deposit, the purchaser defaults
28 on the contract such that no care fund deposit on that
29 contract would have been required, the cemetery authority may
30 apply the amount deposited as a credit against future
31 required deposits.
32 The trust authorized by this Section shall be a single
33 purpose trust fund. In the event of the seller's bankruptcy,
34 insolvency, or assignment for the benefit of creditors, or an
-40- LRB9112160STsbam01
1 adverse judgment, the trust funds shall not be available to
2 any creditor as assets of the cemetery authority or to pay
3 any expenses of any bankruptcy or similar proceeding, but
4 shall be retained intact to provide for the future
5 maintenance of the cemetery. Except in an action by the
6 Comptroller to revoke a license issued pursuant to this Act
7 and for creation of a receivership as provided in this Act,
8 the trust shall not be subject to judgment, execution,
9 garnishment, attachment, or other seizure by process in
10 bankruptcy or otherwise, nor to sale, pledge, mortgage, or
11 other alienation, and shall not be assignable except as
12 approved by the Comptroller. The changes made by this
13 amendatory Act of the 91st General Assembly are intended to
14 clarify existing law regarding the inability of licensees to
15 pledge the trust.
16 If, subsequent to a deposit of care funds required under
17 this Section, the purchaser defaults on the contract such
18 that no care fund deposits on that contract would have been
19 required, the cemetery authority may apply the amount
20 deposited as a credit against future required deposits.
21 (Source: P.A. 91-7, eff. 6-1-99.)
22 (760 ILCS 100/8) (from Ch. 21, par. 64.8)
23 Sec. 8. Every cemetery authority shall register with the
24 Comptroller upon forms furnished by him or her. Such
25 registration statement shall state whether the cemetery
26 authority claims that the cemetery owned, operated,
27 controlled, or managed by it is a fraternal cemetery,
28 municipal, State, or federal cemetery, or religious cemetery,
29 or a family burying ground, as the case may be, as defined in
30 Section 2 of this Act, and shall state the date of
31 incorporation if a corporation and whether incorporated under
32 general or private act of the legislature. Such registration
33 statement shall be accompanied by a fee of $5. Such fee shall
-41- LRB9112160STsbam01
1 be paid to the Comptroller and no registration statement
2 shall be accepted by him without the payment of such fee.
3 Every cemetery authority that is not required to file an
4 annual report under this Act shall bear the responsibility of
5 informing the Comptroller whenever a change takes place
6 regarding status of cemetery, name of contact person, and
7 that person's address and telephone number.
8 Upon receipt of a registration statement, if a claim is
9 made that a cemetery is a fraternal cemetery, municipal
10 cemetery, or religious cemetery, or a family burying ground,
11 as the case may be, as defined in Section 2 of this Act, and
12 the Comptroller shall determine that such cemetery is not a
13 fraternal cemetery, a municipal cemetery, or a religious
14 cemetery, or a family burying ground, as the case may be, as
15 defined in Section 2 of this Act, the Comptroller shall
16 notify the cemetery authority making the claim of such
17 determination; provided, however, that no such claim shall be
18 denied until the cemetery authority making such claim has had
19 at least 10 days' notice of a hearing thereon and an
20 opportunity to be heard. When any such claim is denied, the
21 Comptroller shall within 20 days thereafter prepare and keep
22 on file in his office the transcript of the evidence taken
23 and a written order or decision of denial of such claim and
24 shall send by United States mail a copy of such order or
25 decision of denial to the cemetery authority making such
26 claim within 5 days after the filing in his office of such
27 order, finding or decision. A review of any such order,
28 finding or decision may be had as provided in the
29 Administrative Review Law, as now or hereafter amended.
30 Where no claim is made that a cemetery is a fraternal
31 cemetery, municipal cemetery or religious cemetery or family
32 burying ground, as the case may be, as defined in Section 2
33 of this Act, the registration statement shall be accompanied
34 by a fidelity bond in the amount required by Section 9 of
-42- LRB9112160STsbam01
1 this Act. Upon receipt of such application, statement and
2 bond, the Comptroller shall issue a license to accept the
3 care funds authorized by the provisions of Section 3 of this
4 Act to each cemetery authority owning, operating, controlling
5 or managing a privately operated cemetery. However, the
6 Comptroller shall issue a license without the filing of a
7 bond where the filing of a bond is excused by Section 18 of
8 this Act.
9 The license issued by the Comptroller shall remain in
10 full force and effect until it is surrendered by the licensee
11 or revoked by the Comptroller as hereinafter provided.
12 (Source: P.A. 88-477.)
13 (760 ILCS 100/9) (from Ch. 21, par. 64.9)
14 Sec. 9. Application for license.
15 (a) Prior to or concurrent with the acceptance of care
16 funds authorized by Section 3 of this Act or the sale or
17 transfer of the controlling interest of a licensed cemetery
18 authority, a cemetery authority owning, operating,
19 controlling, or managing a privately operated cemetery shall
20 make application to the Comptroller for a license to hold the
21 funds. Whenever a cemetery authority owning, operating,
22 controlling or managing a privately operated cemetery is
23 newly organized and such cemetery authority desires to be
24 licensed to accept the care funds authorized by Section 3 of
25 this Act, or whenever there is a sale or transfer of the
26 controlling interest of a licensed cemetery authority, it
27 shall make application for such license.
28 In the case of a sale or transfer of the controlling
29 interest of the cemetery authority, the prior license shall
30 remain in effect until the Comptroller issues a new license
31 to the newly-controlled cemetery authority as provided in
32 Section 15b. Upon issuance of the new license, the prior
33 license shall be deemed surrendered if the licensee has
-43- LRB9112160STsbam01
1 agreed to the sale and transfer and has consented to the
2 surrender of the license. A sale or transfer of the
3 controlling interest of a cemetery authority to an immediate
4 family member is not considered a transfer of the controlling
5 interest for purposes of this Section.
6 (b) Applications for license shall be filed with the
7 Comptroller. Applications shall be in writing under oath,
8 signed by the applicant, and in the form furnished by the
9 Comptroller. The form furnished by the Comptroller shall
10 enable a cemetery authority to apply for license of multiple
11 cemetery locations within a single license application. A
12 check or money order in the amount of $25 per license seeking
13 to be issued under the application, payable to: Comptroller,
14 State of Illinois, shall be included. Each application shall
15 contain the following:
16 (1) the full name and address (both of residence
17 and of place of business) of the applicant, if an
18 individual; of every member, if the applicant is a
19 partnership or association; of every officer, manager, or
20 director, if the applicant is a corporation, and of any
21 party owning 10% or more of the cemetery authority, and
22 the full name and address of the parent company, if any;
23 (2) a detailed statement of the applicant's assets
24 and liabilities;
25 (2.1) The name, address, and legal boundaries of
26 each cemetery for which the care funds shall be entrusted
27 and at which books, accounts, and records shall be
28 available for examination by the Comptroller as required
29 by Section 13 of this Act;
30 (3) as to the name of each individual person listed
31 under (1) above, a detailed statement of each person's
32 business experience for the 10 years immediately
33 preceding the application; the present and previous
34 connection, if any, of each person with any other
-44- LRB9112160STsbam01
1 cemetery or cemetery authority; whether each person has
2 ever been convicted of any a felony or has ever been
3 convicted of any misdemeanor of which an essential
4 element is fraud or has been involved in any civil
5 litigation in which a judgment has been entered against
6 him or her based on fraud; whether each person is
7 currently a defendant in any lawsuit in which the
8 complaint against the person is based upon fraud; whether
9 such person has failed to satisfy any enforceable
10 judgment entered by a court of competent jurisdiction in
11 any civil proceedings against such individual; and
12 (4) the total amount in trust and now available
13 from sales of lots, graves, crypts or niches where part
14 of the sale price has been placed in trust; the amount of
15 money placed in the care funds of each applicant; the
16 amount set aside in care funds from the sale of lots,
17 graves, crypts and niches for the general care of the
18 cemetery and the amount available for that purpose; the
19 amount received in trust by special agreement for special
20 care and the amount available for that purpose; the
21 amount of principal applicable to trust funds received by
22 the applicant; and.
23 (5) Any other information that the Comptroller may
24 reasonably require in order to determine the
25 qualifications of the applicant to be licensed under this
26 Act.
27 Such information shall be furnished whether the care
28 funds are held by the applicant as trustee or by an
29 independent trustee. If the funds are not held by the
30 applicant, the name of the independent trustee holding them
31 is also to be furnished by the applicant.
32 (c) Applications for license shall also be accompanied
33 by a fidelity bond issued by a bonding company or insurance
34 company authorized to do business in this State or by an
-45- LRB9112160STsbam01
1 irrevocable, unconditional letter of credit issued by a bank
2 or trust company authorized to do business in the State of
3 Illinois, as approved by the State Comptroller, where such
4 care funds exceed the sum of $15,000. Such bond or letter of
5 credit shall run to the Comptroller and his or her successor
6 for the benefit of the care funds held by such cemetery
7 authority or by the trustee of the care funds of such
8 cemetery authority. Such bonds or letters of credit shall be
9 in an amount equal to 1/10 of such care funds. However, such
10 bond or letter of credit shall not be in an amount less than
11 $1,000; the first $15,000 of such care funds shall not be
12 considered in computing the amount of such bond or letter of
13 credit. No application shall be accepted by the Comptroller
14 unless accompanied by such bond or letter of credit.
15 Applications for license by newly organized cemetery
16 authorities after January 1, 1960 shall also be accompanied
17 by evidence of a minimum care fund deposit in an amount to be
18 determined as follows: if the number of inhabitants, either
19 in the county in which the cemetery is to be located or in
20 the area included within a 10 mile radius from the cemetery
21 if the number of inhabitants therein is greater, is 25,000 or
22 less the deposit shall be $7,500; if the number of
23 inhabitants is 25,001 to 50,000, the deposit shall be
24 $10,000; if the number of inhabitants is 50,001 to 125,000,
25 the deposit shall be $15,000; if the number of inhabitants is
26 over 125,000, the deposit shall be $25,000.
27 After an amount equal to and in addition to the required
28 minimum care fund deposit has been deposited in trust, the
29 cemetery authority may withhold 50% of all future care funds
30 until it has recovered the amount of the minimum care fund
31 deposit.
32 (d) (Blank). The applicant shall have a permanent
33 address and any license issued pursuant to the application is
34 valid only at the address or at any new address approved by
-46- LRB9112160STsbam01
1 the Comptroller.
2 (e) All bonds and bonding deposits made by any cemetery
3 authority may be returned to the cemetery authority or
4 cancelled as to care funds invested with an investment
5 company.
6 (Source: P.A. 89-615, eff. 8-9-96; 90-655, eff. 7-30-98.)
7 (760 ILCS 100/10) (from Ch. 21, par. 64.10)
8 Sec. 10. Upon receipt of such application for license,
9 the Comptroller shall issue a license to the applicant unless
10 the Comptroller determines that:
11 (a) The applicant has made any misrepresentations or
12 false statements or has concealed any essential or material
13 fact, or
14 (b) The applicant is insolvent; or
15 (c) The applicant is or has been using practices in the
16 conducting of the cemetery business that work or tend to work
17 a fraud; or
18 (d) The applicant has refused to furnish or give
19 pertinent data to the Comptroller; or
20 (e) The applicant has failed to notify the Comptroller
21 with respect to any material facts required in the
22 application for license under the provisions of this Act; or
23 (f) The applicant has failed to satisfy any enforceable
24 judgment entered by the circuit court in any civil
25 proceedings against such applicant; or
26 (g) The applicant has conducted or is about to conduct
27 its business in a fraudulent manner; or
28 (h) The applicant or any As to the name of any
29 individual listed in the license application, such individual
30 has conducted or is about to conduct any business on behalf
31 of the applicant in a fraudulent manner; or has been
32 convicted of a felony or any misdemeanor of which an
33 essential element is fraud; or has been involved in any civil
-47- LRB9112160STsbam01
1 litigation in which a judgment has been entered against him
2 or her based on fraud; or has failed to satisfy any
3 enforceable judgment entered by the circuit court in any
4 civil proceedings against such individual; or has been
5 convicted of any felony; or has been convicted of any
6 theft-related offense; or has failed to comply with the
7 requirements of this Act; or has demonstrated a pattern of
8 failing to open or close any graves, crypts, or niches for
9 human remains in the cemetery within a reasonable time frame;
10 or has demonstrated a pattern of placing human remains in a
11 final resting place other than that required under an
12 agreement with a consumer; or has demonstrated a pattern of
13 improperly failing to honor a contract with a consumer; or
14 (i) The applicant has ever had a license involving
15 cemeteries or funeral homes revoked, suspended, or refused to
16 be issued in Illinois or elsewhere.
17 If the Comptroller so determines, then he or she shall
18 conduct a hearing to determine whether to deny the
19 application. However, no application shall be denied unless
20 the applicant has had at least 10 days' notice of a hearing
21 on the application and an opportunity to be heard thereon. If
22 the application is denied, the Comptroller shall within 20
23 days thereafter prepare and keep on file in his or her office
24 the transcript of the evidence taken and a written order of
25 denial thereof, which shall contain his or her findings with
26 respect thereto and the reasons supporting the denial, and
27 shall send by United States mail a copy of the written order
28 of denial to the applicant at the address set forth in the
29 application, within 5 days after the filing of such order. A
30 review of such decision may be had as provided in Section 20
31 of this Act.
32 The license issued by the Comptroller shall remain in
33 full force and effect until it is surrendered by the licensee
34 or revoked by the Comptroller as hereinafter provided.
-48- LRB9112160STsbam01
1 (Source: P.A. 88-477.)
2 (760 ILCS 100/11) (from Ch. 21, par. 64.11)
3 Sec. 11. Issuance and display of license. A license
4 issued under this Act authorizes the cemetery authority to
5 accept care funds for the cemetery identified in the license.
6 If a license application seeks licensure to accept care funds
7 on behalf of more than one cemetery location, the
8 Comptroller, upon approval of the license application, shall
9 issue to the cemetery authority a separate license for each
10 cemetery location indicated on the application. Each license
11 issued by the Comptroller under this Act is independent of
12 any other license that may be issued to a cemetery authority
13 under a single license application.
14 Every license issued by the Comptroller shall state the
15 number of the license and the address at which the business
16 is to be conducted. Such license shall be kept conspicuously
17 posted in the place of business of the licensee and shall not
18 be transferable or assignable.
19 No more than one place of business shall be maintained
20 under the same license, but the Comptroller may issue more
21 than one license to the same licensee upon compliance with
22 the provisions of this Act governing an original issuance of
23 a license, for each new license.
24 Whenever a licensee shall wish to change the name as
25 originally set forth in his license, he shall give written
26 notice thereof to the Comptroller together with the reasons
27 for the change and if the change is approved by the
28 Comptroller he shall issue a new license.
29 A license issued by the Comptroller shall remain in full
30 force and effect until it is surrendered by the licensee or
31 suspended or revoked by the Comptroller as provided in this
32 Act.
33 (Source: P.A. 78-592.)
-49- LRB9112160STsbam01
1 (760 ILCS 100/11.1)
2 Sec. 11.1. Investigation of unlawful practices. If it
3 appears to the Comptroller that a person has engaged in, is
4 engaging in, or is about to engage in any practice declared
5 to be unlawful by this Act, the Comptroller may:
6 (1) require that person to file on such terms as
7 the Comptroller prescribes a statement or report in
8 writing, under oath or otherwise, containing all
9 information the Comptroller may consider necessary to
10 ascertain whether a privately operated cemetery authority
11 licensee is in compliance with this Act, or whether an
12 unlicensed person is engaging in activities for which a
13 license is required;
14 (2) examine under oath any person in connection
15 with the books and records pertaining to or having an
16 impact upon the trust funds required to be maintained
17 pursuant to this Act;
18 (2.1) examine under oath any person in connection
19 with the performance of duties required to be performed
20 under this Act;
21 (3) examine any books and records of the privately
22 operated cemetery authority, licensee, trustee, or
23 investment advisor that the Comptroller may consider
24 necessary to ascertain compliance with this Act; and
25 (4) require the production of a copy of any record,
26 book, document, account, or paper that is produced in
27 accordance with this Act and retain it in his or her
28 possession until the completion of all proceedings in
29 connection with which it is produced.
30 (Source: P.A. 89-615, eff. 8-9-96.)
31 (760 ILCS 100/13) (from Ch. 21, par. 64.13)
32 Sec. 13. Books, accounts, and records. Every licensee
33 and the trustee of the care funds of every licensee shall be
-50- LRB9112160STsbam01
1 a resident of this State and shall keep in this State and use
2 in its business such books, accounts and records as will
3 enable the Comptroller to determine whether such licensee or
4 trustee is complying with the provisions of this Act and with
5 the rules, regulations and directions made by the Comptroller
6 hereunder. The licensee shall update books, accounts, and
7 records no less often than monthly. The licensee shall keep
8 the books, accounts, and records at the location identified
9 in the license issued by the Comptroller or as otherwise
10 agreed by the Comptroller in writing. The books, accounts,
11 and records shall be accessible for review upon demand of the
12 Comptroller.
13 (Source: P.A. 78-592.)
14 (760 ILCS 100/15b)
15 Sec. 15b. Sales; liability of purchaser for shortage.
16 In the case of a sale of any privately operated cemetery
17 or any part thereof or of any related personal property by a
18 cemetery authority to a purchaser or pursuant to foreclosure
19 proceedings, except the sale of burial rights, services, or
20 merchandise to a person for his or her personal or family
21 burial or interment, the purchaser is liable for any
22 shortages existing before or after the sale in the care funds
23 required to be maintained in a trust pursuant to this Act and
24 shall honor all instruments issued under Section 4 for that
25 cemetery. Any shortages existing in the care funds constitute
26 a prior lien in favor of the trust for the total value of the
27 shortages, and notice of such lien shall be provided in all
28 sales instruments.
29 Prior to or concurrent with the sale of any portion of
30 cemetery land in which no human remains have been interred,
31 the licensee shall deposit $1 per square foot of the cemetery
32 land to be sold that is suitable for human interment into the
33 cemetery authority's care fund authorized under this Act.
-51- LRB9112160STsbam01
1 The Comptroller may waive or lessen the amount of the
2 required deposit when the licensee has made arrangements
3 satisfactory to the Comptroller.
4 In the event of a sale or transfer of all or
5 substantially all of the assets of the cemetery authority, a
6 sale or transfer of any cemetery land, including any portion
7 of cemetery land in which no human remains have been
8 interred, the sale or transfer of the controlling interest of
9 the corporate stock of the cemetery authority if the cemetery
10 authority is a corporation, or the sale or transfer of the
11 controlling of the partnership if the cemetery authority is a
12 partnership, the cemetery authority shall, at least 21 days
13 prior to the sale or transfer, notify the Comptroller, in
14 writing, of the pending date of sale or transfer so as to
15 permit the Comptroller to audit the books and records of the
16 cemetery authority. The audit must be commenced within 10 5
17 business days of the receipt of the notification and
18 completed within the 21 day notification period unless the
19 Comptroller notifies the cemetery authority during that
20 period that there is a basis for determining a deficiency
21 which will require additional time to finalize. The sale or
22 transfer may not be completed by the cemetery authority
23 unless and until:
24 (a) The Comptroller has completed the audit of the
25 cemetery authority's books and records;
26 (b) Any delinquency existing in the care funds has
27 been paid by the cemetery authority, or arrangements
28 satisfactory to the Comptroller have been made by the
29 cemetery authority on the sale or transfer for the
30 payment of any delinquency;
31 (c) The Comptroller issues a new cemetery care
32 license upon application of the newly controlled
33 corporation or partnership, which license must be applied
34 for within 30 days of the anticipated date of the sale or
-52- LRB9112160STsbam01
1 transfer, subject to the payment of any delinquencies, if
2 any, as stated in item (b) above.
3 For purposes of this Section, a person, firm,
4 corporation, partnership, or institution that acquires the
5 cemetery through a real estate foreclosure shall be subject
6 to the provisions of this Section. The sale or transfer of
7 the controlling interest of a cemetery authority to an
8 immediate family member is not subject to the license
9 application process required in item (c) of this Section.
10 (Source: P.A. 90-623, eff. 7-10-98.)
11 (760 ILCS 100/24) (from Ch. 21, par. 64.24)
12 Sec. 24. Penalties; civil action.
13 (a) Whoever intentionally violates any provision of this
14 Act except the provisions of Section 23 and subsections (b),
15 (c), (d), and (f) of Section 2a shall be guilty of a Class 4
16 felony, and each day such provisions are violated shall
17 constitute a separate offense.
18 (b) If any person intentionally violates this Act or
19 fails or refuses to comply with any order of the Comptroller
20 or any part of an order that has become final to such person
21 and is still in effect, the Comptroller may, after notice and
22 hearing at which it is determined that a violation of this
23 Act or such order has been committed, further order that such
24 person shall forfeit and pay to the State of Illinois a sum
25 not to exceed $10,000 $5,000 for each violation. Such
26 liability shall be enforced in an action brought in any court
27 of competent jurisdiction by the Comptroller in the name of
28 the People of the State of Illinois.
29 (c) In addition to the other penalties and remedies
30 provided in this Act, the Comptroller may bring a civil
31 action in the county of residence of the licensee or any
32 person accepting care funds to enjoin any violation or
33 threatened violation of this Act.
-53- LRB9112160STsbam01
1 (d) Any person that violates any provision of this Act
2 or fails to comply with an order of the Comptroller shall be
3 liable for a civil penalty of not to exceed $10,000 for the
4 violation and an additional civil penalty not to exceed
5 $1,000 for each day during which the violation continues. The
6 civil penalties provided for in this subsection may be
7 recovered in a civil action and are in addition to any
8 penalties that may be issued under the Consumer Fraud and
9 Deceptive Practices Act for knowing violations of this Act.
10 (e) The powers vested in the Comptroller by this Section
11 are additional to any and all other powers and remedies
12 vested in the Comptroller by law.
13 (Source: P.A. 86-1359.)
14 Section 40. The Cemetery Protection Act is amended by
15 changing Section 1 as follows:
16 (765 ILCS 835/1) (from Ch. 21, par. 15)
17 Sec. 1. (a) Any person who acts without proper legal
18 authority and who willfully and knowingly destroys or damages
19 the remains of a deceased human being or who desecrates human
20 remains is guilty of a Class 3 felony.
21 (a-5) Any person who acts without proper legal authority
22 and who willfully and knowingly removes any portion of the
23 remains of a deceased human being from a burial ground where
24 skeletal remains are buried or from a grave, crypt, vault,
25 mausoleum, or other repository of human remains is guilty of
26 a Class 4 felony.
27 (b) Any person who acts without proper legal authority
28 and who willfully and knowingly:
29 (1) obliterates, vandalizes, or desecrates a burial
30 ground where skeletal remains are buried or a grave,
31 crypt, vault, mausoleum, or other repository of human
32 remains;
-54- LRB9112160STsbam01
1 (2) obliterates, vandalizes, or desecrates a park
2 or other area clearly designated to preserve and
3 perpetuate the memory of a deceased person or group of
4 persons;
5 (3) obliterates, vandalizes, or desecrates plants,
6 trees, shrubs, or flowers located upon or around a
7 repository for human remains or within a human graveyard
8 or cemetery; or
9 (4) obliterates, vandalizes, or desecrates a fence,
10 rail, curb, or other structure of a similar nature
11 intended for the protection or for the ornamentation of
12 any tomb, monument, gravestone, or other structure of
13 like character;
14 is guilty of a Class A misdemeanor if the amount of the
15 damage is less than $500, a Class 4 felony if the amount of
16 the damage is at least $500 and less than $10,000, a Class 3
17 felony if the amount of the damage is at least $10,000 and
18 less than $100,000, or a Class 2 felony if the damage is
19 $100,000 or more and shall provide restitution to the
20 cemetery authority or property owner for the amount of any
21 damage caused.
22 (b-5) Any person who acts without proper legal authority
23 and who willfully and knowingly defaces, vandalizes, injures,
24 or removes a gravestone or other memorial, monument, or
25 marker commemorating a deceased person or group of persons,
26 whether located within or outside of a recognized cemetery,
27 memorial park, or battlefield is guilty of a Class 4 felony
28 for damaging at least one but no more than 4 gravestones, a
29 Class 3 felony for damaging at least 5 but no more than 10
30 gravestones, or a Class 2 felony for damaging more than 10
31 gravestones and shall provide restitution to the cemetery
32 authority or property owner for the amount of any damage
33 caused.
34 (b-7) Any person who acts without proper legal authority
-55- LRB9112160STsbam01
1 and who willfully and knowingly removes with the intent to
2 resell a gravestone or other memorial, monument, or marker
3 commemorating a deceased person or group of persons, whether
4 located within or outside a recognized cemetery, memorial
5 park, or battlefield, is guilty of a Class 2 felony.
6 (c) The provisions of this Section shall not apply to
7 the removal or unavoidable breakage or injury by a cemetery
8 authority of anything placed in or upon any portion of its
9 cemetery in violation of any of the rules and regulations of
10 the cemetery authority, nor to the removal of anything placed
11 in the cemetery by or with the consent of the cemetery
12 authority that in the judgment of the cemetery authority has
13 become wrecked, unsightly, or dilapidated.
14 (d) If an unemancipated minor is found guilty of
15 violating any of the provisions of subsection (b) of this
16 Section and is unable to provide restitution to the cemetery
17 authority or property owner, the parents or legal guardians
18 of that minor shall provide restitution to the cemetery
19 authority or property owner for the amount of any damage
20 caused, up to the total amount allowed under the Parental
21 Responsibility Law.
22 (e) Any person who shall hunt, shoot or discharge any
23 gun, pistol or other missile, within the limits of any
24 cemetery, or shall cause any shot or missile to be discharged
25 into or over any portion thereof, or shall violate any of the
26 rules made and established by the board of directors of such
27 cemetery, for the protection or government thereof, is guilty
28 of a Class C misdemeanor.
29 (f) Any person who knowingly enters or knowingly remains
30 upon the premises of a public or private cemetery without
31 authorization during hours that the cemetery is posted as
32 closed to the public is guilty of a Class A misdemeanor.
33 (g) All fines when recovered, shall be paid over by the
34 court or officer receiving the same to the cemetery
-56- LRB9112160STsbam01
1 association and be applied, as far as possible in repairing
2 the injury, if any, caused by such offense. Provided,
3 nothing contained in this Act shall deprive such cemetery
4 association, or the owner of any lot or monument from
5 maintaining an action for the recovery of damages caused by
6 any injury caused by a violation of the provisions of this
7 Act, or of the rules established by the board of directors of
8 such cemetery association. Nothing in this Section shall be
9 construed to prohibit the discharge of firearms loaded with
10 blank ammunition as part of any funeral, any memorial
11 observance or any other patriotic or military ceremony.
12 (Source: P.A. 89-36, eff. 1-1-96.)
13 Section 45. The Illinois Pre-Need Cemetery Sales Act is
14 amended by changing Sections 1, 4, 5, 6, 7, 8, 8a, 9, 12, 14,
15 15, 16, 18, 19, 20, 22, and 23, and by adding Section 27.1,
16 as follows:
17 (815 ILCS 390/1) (from Ch. 21, par. 201)
18 Sec. 1. Purpose. It is the purpose of this Act to
19 assure adequate protection for those who contract through
20 pre-need contracts for the purchase of certain cemetery
21 merchandise and cemetery services and undeveloped interment,
22 entombment or inurnment space, when the seller may delay
23 delivery or performance more than 120 days following initial
24 payment on the account.
25 (Source: P.A. 85-805.)
26 (815 ILCS 390/4) (from Ch. 21, par. 204)
27 Sec. 4. Definitions. As used in this Act, the following
28 terms shall have the meaning specified:
29 (a) A. "Pre-need sales contract" or "Pre-need sales"
30 means any agreement or contract or series or combination of
31 agreements or contracts which have for a purpose the sale of
-57- LRB9112160STsbam01
1 cemetery merchandise, cemetery services or undeveloped
2 interment, entombment or inurnment spaces where the terms of
3 such sale require payment or payments to be made at a
4 currently determinable time and where the merchandise,
5 services or completed spaces are to be provided more than 120
6 days following the initial payment on the account.
7 (b) B. "Delivery" occurs when:
8 (1) Physical possession of the merchandise is
9 transferred or the easement for burial rights in a
10 completed space is executed, delivered and transferred to
11 the buyer; or
12 (2) Following authorization by a purchaser under a
13 pre-need sales contract, title to the merchandise has
14 been transferred to the buyer and the merchandise has
15 been paid for and is in the possession of the seller who
16 has placed it, until needed, at the site of its ultimate
17 use; except that burial of any item at the site of its
18 ultimate use shall not constitute delivery for purposes
19 of this Act; or
20 (3) (A) Following authorization by a purchaser
21 under a pre-need sales contract, the merchandise has been
22 permanently identified with the name of the buyer or the
23 beneficiary and delivered to a licensed and bonded
24 warehouse and both title to the merchandise and a
25 warehouse receipt have been delivered to the purchaser or
26 beneficiary and a copy of the warehouse receipt has been
27 delivered to the licensee for retention in its files;
28 except that in the case of outer burial containers, the
29 use of a licensed and bonded warehouse as set forth in
30 this paragraph shall not constitute delivery for purposes
31 of this Act. Nothing herein shall prevent a seller from
32 perfecting a security interest in accordance with the
33 Uniform Commercial Code on any merchandise covered under
34 this Act.
-58- LRB9112160STsbam01
1 (B) All warehouse facilities to which sellers
2 deliver merchandise pursuant to this Act shall:
3 (i) be either located in the State of Illinois
4 or qualify as a foreign warehouse facility as
5 defined herein;
6 (ii) submit to the Comptroller not less than
7 annually, by March 1 of each year, a report of all
8 cemetery merchandise stored by each licensee under
9 this Act which is in storage on the date of the
10 report;
11 (iii) permit the Comptroller or his designee
12 at any time to examine stored merchandise and to
13 examine any documents pertaining thereto;
14 (iv) submit evidence satisfactory to the
15 Comptroller that all merchandise stored by said
16 warehouse for licensees under this Act is insured
17 for casualty or other loss normally assumed by a
18 bailee for hire;
19 (v) demonstrate to the Comptroller that the
20 warehouse has procured and is maintaining a
21 performance bond in the form, content and amount
22 sufficient to unconditionally guarantee to the
23 purchaser or beneficiary the prompt shipment of the
24 cemetery merchandise.
25 (C) "Cemetery merchandise" means items of personal
26 property normally sold by a cemetery authority not covered
27 under the Illinois Funeral or Burial Funds Act, including but
28 not limited to:
29 (1) memorials,
30 (2) markers,
31 (3) monuments,
32 (4) foundations, and
33 (5) outer burial containers.
34 (D) "Undeveloped interment, entombment or inurnment
-59- LRB9112160STsbam01
1 spaces" or "undeveloped spaces" means any space to be used
2 for the reception of human remains that is not completely and
3 totally constructed at the time of initial payment therefor
4 in a:
5 (1) lawn crypt,
6 (2) mausoleum,
7 (3) garden crypt,
8 (4) columbarium, or
9 (5) cemetery section.
10 (E) "Cemetery services" means those services customarily
11 performed by cemetery or crematory personnel in connection
12 with the interment, entombment, inurnment or cremation of a
13 dead human body.
14 (F) "Cemetery section" means a grouping of spaces
15 intended to be developed simultaneously for the purpose of
16 interring human remains.
17 (G) "Columbarium" means an arrangement of niches that
18 may be an entire building, a complete room, a series of
19 special indoor alcoves, a bank along a corridor or part of an
20 outdoor garden setting that is constructed of permanent
21 material such as bronze, marble, brick, stone or concrete for
22 the inurnment of human remains.
23 (H) "Lawn crypt" means a permanent underground crypt
24 usually constructed of reinforced concrete or similar
25 material installed in multiple units for the interment of
26 human remains.
27 (I) "Mausoleum" or "garden crypt" means a grouping of
28 spaces constructed of reinforced concrete or similar material
29 constructed or assembled above the ground for entombing human
30 remains.
31 (J) "Memorials, markers and monuments" means the object
32 usually comprised of a permanent material such as granite or
33 bronze used to identify and memorialize the deceased.
34 (K) "Foundations" means those items used to affix or
-60- LRB9112160STsbam01
1 support a memorial or monument to the ground in connection
2 with the installation of a memorial, marker or monument.
3 (L) "Person" means an individual, corporation,
4 partnership, joint venture, business trust, voluntary
5 organization or any other form of entity.
6 (M) "Seller" means any person selling or offering for
7 sale cemetery merchandise, cemetery services or undeveloped
8 interment, entombment, or inurnment spaces in accordance with
9 a pre-need sales contract on a pre-need basis.
10 (N) "Religious cemetery" means a cemetery owned,
11 operated, controlled or managed by any recognized church,
12 religious society, association or denomination or by any
13 cemetery authority or any corporation administering, or
14 through which is administered, the temporalities of any
15 recognized church, religious society, association or
16 denomination.
17 (O) "Municipal cemetery" means a cemetery owned,
18 operated, controlled or managed by any city, village,
19 incorporated town, township, county or other municipal
20 corporation, political subdivision, or instrumentality
21 thereof authorized by law to own, operate or manage a
22 cemetery.
23 (O-1) "Outer burial container" means a container made of
24 concrete, steel, wood, fiberglass, or similar material, used
25 solely at the interment site, and designed and used
26 exclusively to surround or enclose a separate casket and to
27 support the earth above such casket, commonly known as a
28 burial vault, grave box, or grave liner, but not including a
29 lawn crypt.
30 (P) "Sales price" or "sales proceeds" means the gross
31 amount paid by a purchaser on a pre-need sales contract for
32 cemetery merchandise, cemetery services or undeveloped
33 interment, entombment or inurnment spaces including care
34 funds contributions required for entrustment under the,
-61- LRB9112160STsbam01
1 excluding sales taxes, credit life insurance premiums,
2 finance charges and Cemetery Care Act contributions.
3 (Q) (Blank).
4 (R) "Provider" means a person who is responsible for
5 performing cemetery services or furnishing cemetery
6 merchandise, interment spaces, entombment spaces, or
7 inurnment spaces under a pre-need sales contract.
8 (S) "Purchase price" means sales proceeds.
9 (T) "Purchaser" or "buyer" means the person who
10 originally paid the money under or in connection with a
11 pre-need sales contract.
12 (U) "Parent company" means a corporation that has a
13 controlling interest in another corporation.
14 (W) "Foreign warehouse facility" means a warehouse
15 facility now or hereafter located in any state or territory
16 of the United States, including the District of Columbia,
17 other than the State of Illinois.
18 A foreign warehouse facility shall be deemed to have
19 appointed the Comptroller to be its true and lawful attorney
20 upon whom may be served all legal process in any action or
21 proceeding against it relating to or growing out of this Act,
22 and the acceptance of the delivery of stored merchandise
23 under this Act shall be signification of its agreement that
24 any such process against it which is so served, shall be of
25 the same legal force and validity as though served upon it
26 personally.
27 Service of such process shall be made by delivering to
28 and leaving with the Comptroller, or any agent having charge
29 of the Comptroller's Department of Cemetery and Burial
30 Trusts, a copy of such process and such service shall be
31 sufficient service upon such foreign warehouse facility if
32 notice of such service and a copy of the process are, within
33 10 days thereafter, sent by registered mail by the plaintiff
34 to the foreign warehouse facility at its principal office and
-62- LRB9112160STsbam01
1 the plaintiff's affidavit of compliance herewith is appended
2 to the summons. The Comptroller shall keep a record of all
3 process served upon him under this Section and shall record
4 therein the time of such service.
5 (Source: P.A. 91-7, eff. 1-1-2000; 91-357, eff. 7-29-99;
6 revised 8-30-99.)
7 (815 ILCS 390/5) (from Ch. 21, par. 205)
8 Sec. 5. It is unlawful for any seller person directly or
9 indirectly doing business within this State through an agent
10 or otherwise to engage in pre-need sales without a license
11 issued by the Comptroller.
12 (Source: P.A. 84-239.)
13 (815 ILCS 390/6) (from Ch. 21, par. 206)
14 Sec. 6. License application.
15 (a) An application for a license shall be made in
16 writing to the Comptroller on forms prescribed by him or her,
17 signed by the applicant under oath verified by a notary
18 public appointed and commissioned under the Illinois Notary
19 Public Act, and shall be accompanied by a non-returnable $25
20 application fee. The Comptroller may prescribe abbreviated
21 application forms for persons holding a license under the
22 Cemetery Care Act. Applications (except abbreviated
23 applications) must include at least the following
24 information:
25 (1) The full name and address, both residence and
26 business, of the applicant if the applicant is an
27 individual; of every member if applicant is a
28 partnership; of every member of the Board of Directors if
29 applicant is an association; and of every officer,
30 manager, director and shareholder holding more than 10%
31 5% of the corporate stock if applicant is a corporation;
32 (2) A detailed statement of applicant's assets and
-63- LRB9112160STsbam01
1 liabilities;
2 (2.1) The name and address of the applicant's
3 principal place of business at which the books, accounts,
4 and records are available for examination by the
5 Comptroller as required by this Act;
6 (2.2) The name and address of the applicant's
7 branch locations at which pre-need sales will be
8 conducted and which will operate under the same license
9 number as the applicant's principal place of business;
10 (3) For each individual listed under (1) above, a
11 detailed statement of the individual's business
12 experience for the 10 years immediately preceding the
13 application; any present or prior connection between the
14 individual and any other person engaged in pre-need
15 sales; any felony or misdemeanor convictions for which
16 fraud was an essential element; any charges or complaints
17 lodged against the individual for which fraud was an
18 essential element and which resulted in civil or criminal
19 litigation; any failure of the individual to satisfy an
20 enforceable judgment entered against him or her based
21 upon fraud; and any other information requested by the
22 Comptroller relating to the past business practices of
23 the individual. Since the information required by this
24 paragraph may be confidential or contain proprietary
25 information, this information shall not be available to
26 other licensees or the general public and shall be used
27 only for the lawful purposes of the Comptroller in
28 enforcing this Act;
29 (4) The name of the trustee and, if applicable, the
30 names of the advisors to the trustee, including a copy of
31 the proposed trust agreement under which the trust funds
32 are to be held as required by this Act;
33 (5) Where applicable, the name of the corporate
34 surety company providing the performance bond for the
-64- LRB9112160STsbam01
1 construction of undeveloped spaces and a copy of the
2 bond; and
3 (6) Such other information as the Comptroller may
4 reasonably require in order to determine the
5 qualification of the applicant to be licensed under this
6 Act.
7 (b) Applications for license shall be accompanied by a
8 fidelity bond executed by the applicant and a security
9 company authorized to do business in this State in such
10 amount, not exceeding $10,000, as the Comptroller may
11 require. The Comptroller may require additional bond from
12 time to time in amounts equal to one-tenth of such trust
13 funds but not to exceed $100,000, which bond shall run to the
14 Comptroller for the use and benefit of the beneficiaries of
15 such trust funds. Such licensee may by written permit of the
16 Comptroller be authorized to operate without additional bond,
17 except such fidelity bond as may be required by the
18 Comptroller for the protection of the licensee against loss
19 by default by any of its employees engaged in the handling of
20 trust funds.
21 (c) Any application not acted upon within 90 days may be
22 deemed denied.
23 (Source: P.A. 88-477.)
24 (815 ILCS 390/7) (from Ch. 21, par. 207)
25 Sec. 7. The Comptroller may refuse to issue or may
26 suspend or revoke a license on any of the following grounds:
27 (a) The applicant or licensee has made any
28 misrepresentations or false statements or concealed any
29 material fact;
30 (b) The applicant or licensee is insolvent;
31 (c) The applicant or licensee has been engaged in
32 business practices that work a fraud;
33 (d) The applicant or licensee has refused to give
-65- LRB9112160STsbam01
1 pertinent data to the Comptroller;
2 (e) The applicant or licensee has failed to satisfy any
3 enforceable judgment or decree rendered by any court of
4 competent jurisdiction against the applicant;
5 (f) The applicant or licensee has conducted or is about
6 to conduct business in a fraudulent manner;
7 (g) The trustee advisors or the trust agreement is not
8 satisfactory to the Comptroller;
9 (h) The pre-construction performance bond, if
10 applicable, is not satisfactory to the Comptroller;
11 (i) The fidelity bond is not satisfactory to the
12 Comptroller;
13 (j) As to any individual listed, that such individual
14 has conducted or is about to conduct any business on behalf
15 of the applicant in a fraudulent manner,; has been convicted
16 of any felony or misdemeanor an essential element of which is
17 fraud, has had a judgment rendered against him or her based
18 on fraud in any civil litigation, or has failed to satisfy
19 any enforceable judgment or decree rendered against him by
20 any court of competent jurisdiction, or has been convicted of
21 any felony or any theft-related offense;
22 (k) The applicant or licensee has failed to make the
23 annual report required by this Act or to comply with a final
24 order, decision, or finding of the Comptroller made pursuant
25 to this Act;
26 (l) The applicant or licensee, including any member,
27 officer, or director thereof if the applicant or licensee is
28 a firm, partnership, association, or corporation and any
29 shareholder holding more than 10% of the corporate stock, has
30 violated any provision of this Act or any regulation or order
31 made by the Comptroller under this Act; or
32 (m) The Comptroller finds any fact or condition existing
33 which, if it had existed at the time of the original
34 application for such license would have warranted the
-66- LRB9112160STsbam01
1 Comptroller in refusing the issuance of the license.
2 (Source: P.A. 85-842.)
3 (815 ILCS 390/8) (from Ch. 21, par. 208)
4 Sec. 8. (a) Every license issued by the Comptroller
5 shall state the number of the license, the business name and
6 address of the licensee's principal place of business, each
7 branch location also operating under the license, and the
8 licensee's parent company, if any. licensee at which the
9 business is to be conducted, and The license shall be
10 conspicuously posted in each the place of business operating
11 under the license. No more than one place of business shall
12 be maintained under the same license, but The Comptroller
13 may issue additional licenses as may be necessary for license
14 branch locations more than one license to a licensee upon
15 compliance with the provisions of this Act governing an
16 original issuance of a license for each new license.
17 (b) Individual salespersons representing employed by a
18 licensee shall not be required to obtain licenses in their
19 individual capacities but must acknowledge, by affidavit,
20 that they have been educated in the provisions of this Act
21 and must understand the penalties for failure to comply. The
22 licensee must retain copies of the affidavits of its
23 salespersons for its records and must make the affidavits
24 available to the Comptroller for examination upon request.
25 (c) The licensee shall be responsible for the activities
26 of any person representing the licensee in selling or
27 offering a pre-need contract for sale all individuals or
28 sales organizations selling under contract with, as agents or
29 on behalf of the licensee.
30 (d) Any sales company or other person not selling on
31 behalf of a licensee shall be required to obtain his or her
32 its own license.
33 (e) Any person engaged in pre-need sales, as defined
-67- LRB9112160STsbam01
1 herein, prior to the effective date of this Act may continue
2 operations until the application for license under this Act
3 is denied; provided that such person shall make application
4 for a license within 60 days of the date that application
5 forms are made available by the Comptroller.
6 (f) No license shall be transferable or assignable
7 without the express written consent of the Comptroller. A
8 transfer of more than 50% of the ownership of any business
9 licensed hereunder shall be deemed to be an attempted
10 assignment of the license originally issued to the licensee
11 for which consent of the Comptroller shall be required.
12 (g) Every license issued hereunder shall remain in force
13 until the same has been suspended, surrendered or revoked in
14 accordance with this Act, but the Comptroller, upon the
15 request of an interested person or on his own motion, may
16 issue new licenses to a licensee whose license or licenses
17 have been revoked, if no factor or condition then exists
18 which would have warranted the Comptroller in refusing
19 originally the issuance of such license.
20 (Source: P.A. 84-239.)
21 (815 ILCS 390/8a)
22 Sec. 8a. Investigation of unlawful practices. If it
23 appears to the Comptroller that a person has engaged in, is
24 engaging in, or is about to engage in any practice in
25 violation of declared to be unlawful by this Act, the
26 Comptroller may:
27 (1) require that person to file on such terms as
28 the Comptroller prescribes a statement or report in
29 writing, under oath or otherwise, containing all
30 information the Comptroller may consider necessary to
31 ascertain whether a licensee is in compliance with this
32 Act, or whether an unlicensed person is engaging in
33 activities for which a license is required;
-68- LRB9112160STsbam01
1 (2) examine under oath any person in connection
2 with the books and records pertaining to or having an
3 impact upon the trust funds required to be maintained
4 pursuant to this Act;
5 (3) examine any books and records of the licensee,
6 trustee, or investment advisor that the Comptroller may
7 consider necessary to ascertain compliance with this Act;
8 and
9 (4) require the production of a copy of any record,
10 book, document, account, or paper that is produced in
11 accordance with this Act and retain it in his or her
12 possession until the completion of all proceedings in
13 connection with which it is produced.
14 (Source: P.A. 89-615, eff. 8-9-96.)
15 (815 ILCS 390/9) (from Ch. 21, par. 209)
16 Sec. 9. The Comptroller may, upon his own motion
17 investigate the actions of any person providing, selling, or
18 offering pre-need sales contracts or of any applicant or any
19 person or persons holding or claiming to hold a license under
20 this Act. The Comptroller shall make such an investigation
21 on receipt of the verified written complaint of any person
22 setting forth facts which, if proved, would constitute
23 grounds for refusal, suspension, or revocation of a license
24 with respect to which grounds for revocation may occur or
25 exist, or if he shall find that such grounds for revocation
26 are of general application to all offices or to more than one
27 office operated by such licensee, he may revoke all of the
28 licenses issued to such licensee or such number of licensees
29 to which grounds apply, as the case may be. Before refusing
30 to issue, and before suspension or revocation of a license,
31 the Comptroller shall hold a hearing to determine whether the
32 applicant or licensee, hereafter called the respondent, is
33 entitled to hold such a license. At least 10 days prior to
-69- LRB9112160STsbam01
1 the date set for such hearing, the Comptroller shall notify
2 the respondent in writing that on the date designated a
3 hearing will be held to determine his eligibility for a
4 license and that he may appear in person or by counsel.
5 Such written notice may be served on the respondent
6 personally, or by registered or certified mail sent to the
7 respondent's business address as shown in his latest
8 notification to the Comptroller and shall include sufficient
9 information to inform the respondent of the general nature of
10 the charge. At the hearing, both the respondent and the
11 complainant shall be accorded ample opportunity to present in
12 person or by counsel such statements, testimony, evidence and
13 argument as may be pertinent to the charges or to any defense
14 thereto. The Comptroller may reasonably continue such
15 hearing from time to time.
16 The Comptroller may subpoena any person or persons in
17 this State and take testimony orally, by deposition or by
18 exhibit, in the same manner and with the same fees and
19 mileage as prescribed in judicial proceedings in civil cases.
20 Any authorized agent of the Comptroller may administer
21 oaths to witnesses at any hearing which the Comptroller is
22 authorized to conduct.
23 The Comptroller, at his expense, shall provide a
24 certified shorthand reporter to take down the testimony and
25 preserve a record of all proceedings at the hearing of any
26 case involving the refusal to issue a license, the suspension
27 or revocation of a license, the imposition of a monetary
28 penalty, or the referral of a case for criminal prosecution.
29 The record of any such proceeding shall consist of the notice
30 of hearing, complaint, all other documents in the nature of
31 pleadings and written motions filed in the proceedings, the
32 transcript of testimony and the report and orders of the
33 Comptroller. Copies of the transcript of such record may be
34 purchased from the certified shorthand reporter who prepared
-70- LRB9112160STsbam01
1 the record or from the Comptroller.
2 (Source: P.A. 84-239.)
3 (815 ILCS 390/12) (from Ch. 21, par. 212)
4 Sec. 12. License revocation or suspension.
5 (a) The Comptroller may, upon determination that grounds
6 exist for the revocation or suspension of a license issued
7 under this Act, revoke or suspend the license issued to a
8 particular branch office location with respect to which the
9 grounds for revocation or suspension may occur or exist, or
10 as many of the licenses issued to the licensee as may be
11 determined appropriate by the Comptroller.
12 (b) Upon the revocation or suspension of any license,
13 the licensee shall immediately surrender the license or
14 licenses and any branch office licenses to the Comptroller.
15 If the licensee fails to do so, the Comptroller has the right
16 to seize the license or licenses same.
17 (Source: P.A. 84-239.)
18 (815 ILCS 390/14) (from Ch. 21, par. 214)
19 Sec. 14. Contract required.
20 (a) It is unlawful for any person seller doing business
21 within this State to accept sales proceeds, either directly
22 or indirectly, by any means, unless the seller enters into a
23 pre-need sales contract with the purchaser which meets the
24 following requirements:
25 (1) A written sales contract shall be executed in
26 at least 12 point type in duplicate for each pre-need
27 sale made by a licensee, and a signed copy given to the
28 purchaser. Each completed contract shall be numbered and
29 shall contain the name and address of the purchaser, the
30 principal office and all branch locations of the
31 licensee, the parent company, and the provider seller,
32 the name of the person, if known, who is to receive the
-71- LRB9112160STsbam01
1 cemetery merchandise, cemetery services or the completed
2 interment, entombment or inurnment spaces under the
3 contract and specifically identify such merchandise,
4 services or spaces to be provided and the price of the
5 merchandise, services, or space or spaces.
6 (2) In addition, such contracts must contain a
7 provision in distinguishing typeface as follows:
8 "Notwithstanding anything in this contract to the
9 contrary, you are afforded certain specific rights of
10 cancellation and refund under Sections 18 and 19 of the
11 Illinois Pre-Need Cemetery Sales Act, enacted by the 84th
12 General Assembly of the State of Illinois".
13 (3) All pre-need sales contracts shall be sold on a
14 guaranteed price basis. At the time of performance of the
15 service or delivery of the merchandise, the seller shall
16 be prohibited from assessing the purchaser or his heirs
17 or assigns or duly authorized representative any
18 additional charges for the specific merchandise and
19 services listed on the pre-need sales contract.
20 (4) Each contract shall clearly disclose that the
21 price of the merchandise or services is guaranteed and
22 shall contain the following statement in 12 point bold
23 type:
24 "THIS CONTRACT GUARANTEES THE BENEFICIARY THE
25 SPECIFIC GOODS, AND SERVICES, INTERMENT SPACES,
26 ENTOMBMENT SPACES, AND INURNMENT SPACES CONTRACTED FOR.
27 NO ADDITIONAL CHARGES MAY BE REQUIRED. FOR DESIGNATED
28 GOODS, AND SERVICES, AND SPACES. ADDITIONAL CHARGES MAY
29 BE INCURRED FOR UNEXPECTED EXPENSES."
30 (5) The pre-need sales contract shall provide that
31 if the particular cemetery services, cemetery
32 merchandise, or spaces specified in the pre-need contract
33 are unavailable at the time of delivery, the seller shall
34 be required to furnish services, merchandise, and spaces
-72- LRB9112160STsbam01
1 similar in style and at least equal in quality of
2 material and workmanship.
3 (6) The pre-need contract shall also disclose any
4 specific penalties to be incurred by the purchaser as a
5 result of failure to make payments; and penalties to be
6 incurred or moneys or refunds to be received as a result
7 of cancellation of the contract.
8 (7) The pre-need contract shall disclose the nature
9 of the relationship between the provider and the seller.
10 (8) Each pre-need contract that authorizes the
11 delivery of cemetery merchandise to a licensed and bonded
12 warehouse shall provide that prior to or upon delivery of
13 the merchandise to the warehouse (i) the merchandise
14 shall be permanently identified with the name of the
15 buyer; and (ii) the title to the merchandise and a
16 warehouse receipt shall be delivered to the purchaser or
17 beneficiary. The pre-need contact shall contain the
18 following statement in 12 point bold type:
19 "THIS CONTRACT AUTHORIZES THE DELIVERY OF MERCHANDISE TO
20 A LICENSED AND BONDED WAREHOUSE FOR STORAGE OF THE
21 MERCHANDISE UNTIL THE MERCHANDISE IS NEEDED BY THE
22 BENEFICIARY. DELIVERY OF THE MERCHANDISE IN THIS MANNER
23 MAY PRECLUDE REFUND OF SALE PROCEEDS THAT ARE
24 ATTRIBUTABLE TO THE DELIVERED MERCHANDISE."
25 The purchaser shall initial the statement at the
26 time of entry into the pre-need contract.
27 (9) Each pre-need contract that authorizes the
28 placement of cemetery merchandise at the site of its
29 ultimate use prior to the time that the merchandise is
30 needed by the beneficiary shall contain the following
31 statement in 12 point bold type:
32 "THIS CONTRACT AUTHORIZES THE PLACEMENT OF MERCHANDISE AT
33 THE SITE OF ITS ULTIMATE USE PRIOR TO THE TIME THAT THE
34 MERCHANDISE IS NEEDED BY THE BENEFICIARY. DELIVERY OF THE
-73- LRB9112160STsbam01
1 MERCHANDISE IN THIS MANNER MAY PRECLUDE REFUND OF SALE
2 PROCEEDS THAT ARE ATTRIBUTABLE TO THE DELIVERED
3 MERCHANDISE."
4 The purchaser shall initial the statement at the
5 time of entry into the pre-need contract.
6 (b) Every pre-need sales contract must be in writing.,
7 and no pre-need sales contract form may be used unless it has
8 previously been filed with the Comptroller. The Comptroller
9 shall review all pre-need sales contract forms and, upon
10 written notification to the seller, shall prohibit the use of
11 contract forms that do not meet the requirements of this Act.
12 Any use or attempted use of any oral pre-need sales contract
13 or any written pre-need sales contract in a form not filed
14 with the Comptroller or in a form that does not meet the
15 requirements of this Act shall be deemed a violation of this
16 Act and is voidable by the purchaser without penalty. The
17 Comptroller may by rule develop a model pre-need sales
18 contract form that meets the requirements of this Act.
19 (c) To the extent the Rule is applicable, every pre-need
20 sales contract is subject to the Federal Trade Commission
21 Rule concerning the Cooling-Off Period for Door-to-Door Sales
22 (16 CFR Part 429).
23 (d) No pre-need sales contract may be entered into in
24 this State unless there is a provider for the cemetery
25 merchandise, cemetery services, and undeveloped interment,
26 inurnment, and entombment spaces being sold. If the seller
27 is not the provider, then the seller must have a binding
28 agreement with a provider, and the identity of the provider
29 and the nature of the agreement between the seller and the
30 provider must be disclosed in the pre-need sales contract at
31 the time of sale and before the receipt of any sale proceeds.
32 The failure to disclose the identity of the provider, the
33 nature of the agreement between the seller and the provider,
34 or any changes thereto to the purchaser and beneficiary, or
-74- LRB9112160STsbam01
1 the failure to make the disclosures required by this Section
2 constitutes an intentional violation of this Act.
3 (e) No pre-need contract may be entered into in this
4 State unless it is accompanied by a funding mechanism
5 permitted under this Act and unless the seller is licensed by
6 the Comptroller as provided in this Act. Nothing in this Act
7 is intended to relieve providers or sellers of pre-need
8 contracts from being licensed under any other Act required
9 for their profession or business or from being subject to the
10 rules promulgated to regulate their profession or business,
11 including rules on solicitation and advertisement.
12 (f) No pre-need contract may be entered into in this
13 State unless the seller explains to the purchaser the terms
14 of the pre-need contact prior to the purchaser's signing.
15 (g) The State Comptroller shall develop a booklet for
16 consumers in plain English describing the scope, application,
17 and consumer protections of this Act. After the booklet is
18 developed, no pre-need contract may be sold in this State
19 unless the seller distributes to the purchaser prior to the
20 sale a booklet developed or approved for use by the State
21 Comptroller.
22 (Source: P.A. 91-7, eff. 1-1-2000.)
23 (815 ILCS 390/15) (from Ch. 21, par. 215)
24 Sec. 15. (a) Whenever a seller receives sales proceeds
25 anything of value under a pre-need sales contract, the person
26 receiving such value shall deposit 50% of the sales all
27 proceeds received into one or more trust funds maintained in
28 accordance with pursuant to this Section, except that, in the
29 case of proceeds received for the purchase of outer burial
30 containers, 85% of the sales proceeds shall be deposited into
31 one or more trust funds. Such deposits shall be made until
32 the amount deposited in trust equals 50% of the sales price
33 of the cemetery merchandise, cemetery services and
-75- LRB9112160STsbam01
1 undeveloped spaces included in such contract, except that, in
2 the case of deposits for outer burial containers, deposits
3 shall be made until the amount deposited in trust equals 85%
4 of the sales price. In the event an installment contract is
5 factored, discounted or sold to a third party, the seller
6 shall deposit an amount equal to 50% of the sales price of
7 the installment contract, except that, for the portion of the
8 contract attributable to the sale of outer burial containers,
9 the seller shall deposit an amount equal to 85% of the sales
10 price. Proceeds required to be deposited in trust which are
11 attributable to cemetery merchandise and cemetery services
12 shall be held in a "Cemetery Merchandise Trust Fund".
13 Proceeds required to be deposited in trust which are
14 attributable to the sale of undeveloped interment, entombment
15 or inurnment spaces shall be held in a "Pre-construction
16 Trust Fund". If merchandise is delivered for storage in a
17 bonded warehouse, as authorized herein, and payment of
18 transportation or other charges totaling more than $20 will
19 be required in order to secure delivery to the site of
20 ultimate use, upon such delivery to the warehouse the seller
21 shall deposit to the trust fund the full amount of the actual
22 or estimated transportation charge. Transportation charges
23 which have been prepaid by the seller shall not be deposited
24 to trust funds maintained pursuant to this Section. As used
25 in this Section, "all proceeds" means the entire amount paid
26 by a purchaser in connection with a pre-need sales contract,
27 including finance charges and Cemetery Care Act
28 contributions, but excluding sales taxes and credit life
29 insurance premiums.
30 (b) All trust deposits required by this Act shall be
31 made within 30 days following the end of the month of
32 receipt.
33 (c) A trust established under this Act must be
34 maintained:
-76- LRB9112160STsbam01
1 (1) in a trust account established in a bank,
2 savings and loan association or credit union authorized
3 to do business in Illinois where such accounts are
4 insured by an agency of the federal government;
5 (2) in a trust company authorized to do business in
6 Illinois; or
7 (3) in an investment company authorized to do
8 business in Illinois insured by the Securities Brokers
9 Insurance Corporation.
10 (d) Funds deposited in the trust account shall be
11 identified in the records of the seller by the name of the
12 purchaser. Nothing shall prevent the trustee from commingling
13 the deposits in any such trust fund for purposes of the
14 management thereof and the investment of funds therein as
15 provided in the "Common Trust Fund Act", approved June 24,
16 1949, as amended. In addition, multiple trust funds
17 maintained pursuant to this Act may be commingled or
18 commingled with other funeral or burial related trust funds,
19 provided that all record keeping requirements imposed by or
20 pursuant to law are met.
21 (e) In lieu of a pre-construction trust fund, a seller
22 of undeveloped interment, entombment or inurnment spaces may
23 obtain and file with the Comptroller a performance bond in an
24 amount at least equal to 50% of the sales price of the
25 undeveloped spaces or the estimated cost of completing
26 construction, whichever is greater. The bond shall be
27 conditioned on the satisfactory construction and completion
28 of the undeveloped spaces as required in Section 19 of this
29 Act.
30 Each bond obtained under this Section shall have as
31 surety thereon a corporate surety company incorporated under
32 the laws of the United States, or a State, the District of
33 Columbia or a territory or possession of the United States.
34 Each such corporate surety company must be authorized to
-77- LRB9112160STsbam01
1 provide performance bonds as required by this Section, have
2 paid-up capital of at least $250,000 in cash or its
3 equivalent and be able to carry out its contracts. Each
4 pre-need seller must provide to the Comptroller, for each
5 corporate surety company such seller utilizes, a statement of
6 assets and liabilities of the corporate surety company sworn
7 to by the president and secretary of the corporation by
8 January 1 of each year.
9 The Comptroller shall prohibit pre-need sellers from
10 doing new business with a corporate surety company if the
11 company is insolvent or is in violation of this Section. In
12 addition the Comptroller may direct a pre-need seller to
13 reinstate a pre-construction trust fund upon the
14 Comptroller's determination that the corporate surety company
15 no longer is sufficient security.
16 All performance bonds issued pursuant to this Section
17 must be irrevocable during the statutory term for completing
18 construction specified in Section 19 of this Act, unless
19 terminated sooner by the completion of construction.
20 (f) Whenever any pre-need contract shall be entered into
21 and include 1) items of cemetery merchandise and cemetery
22 services, and 2) rights to interment, inurnment or entombment
23 in completed spaces without allocation of the gross sale
24 price among the items sold, the application of payments
25 received under the contract shall be allocated, first to the
26 right to interment, inurnment or entombment, second to items
27 of cemetery merchandise and cemetery services, unless some
28 other allocation is clearly provided in the contract.
29 (g) Any person engaging in pre-need sales who enters
30 into a combination sale which involves the sale of items
31 covered by a trust or performance bond requirement and any
32 item not covered by any entrustment or bond requirement,
33 shall be prohibited from increasing the gross sales price of
34 those items not requiring entrustment with the purpose of
-78- LRB9112160STsbam01
1 allocating a lesser gross sales price to items which require
2 a trust deposit or a performance bond.
3 (Source: P.A. 91-7; eff. 1-1-2000.)
4 (815 ILCS 390/16) (from Ch. 21, par. 216)
5 Sec. 16. Trust funds; disbursements.
6 (a) A trustee shall make no disbursements from the trust
7 fund except as provided in this Act.
8 (b) A trustee shall, with respect to the investment of
9 such trust funds, exercise the judgment and care under the
10 circumstances then prevailing which persons of prudence,
11 discretion and intelligence exercise in the management of
12 their own affairs, not in regard to speculation, but in
13 regard to the permanent disposition of their funds,
14 considering the probable income as well as the probable
15 safety of their capital.
16 The seller shall act as trustee of all amounts received
17 for cemetery merchandise, services, or undeveloped spaces
18 until those amounts have been deposited into the trust fund.
19 The seller may continue to be the trustee of up to $500,000
20 that has been deposited into the trust fund, but the seller
21 must retain an independent trustee for any amount of trust
22 funds in excess of $500,000. A seller holding trust funds in
23 excess of $500,000 on the effective date of this amendatory
24 Act of 1996 shall have 36 months to retain an independent
25 trustee for the amounts over $500,000; any other seller must
26 retain an independent trustee for its trust funds in excess
27 of $500,000 as soon as may be practical. The Comptroller
28 shall have the right to disqualify the trustee upon the same
29 grounds as for refusing to grant or revoking a license
30 hereunder. Upon notice to the Comptroller, the seller may
31 change the trustee of the trust fund.
32 (c) The trustee may rely upon certifications and
33 affidavits made to it under the provisions of this Act, and
-79- LRB9112160STsbam01
1 shall not be liable to any person for such reliance.
2 (d) A trustee shall be allowed to withdraw from the
3 trust funds maintained pursuant to this Act, payable solely
4 from the income earned on such trust funds, a reasonable fee
5 for all usual and customary services for the operation of the
6 trust fund, including, but not limited to trustee fees,
7 investment advisor fees, allocation fees, annual audit fees
8 and other similar fees. The maximum amount allowed to be
9 withdrawn for these fees each year shall be the lesser of 3%
10 of the balance of the trust calculated on an annual basis or
11 the amount of annual income generated therefrom.
12 (e) The trust shall be a single-purpose trust fund. In
13 the event of the seller's bankruptcy, insolvency or
14 assignment for the benefit of creditors, or an adverse
15 judgment, the trust funds shall not be available to any
16 creditor as assets of the seller or to pay any expenses of
17 any bankruptcy or similar proceeding, but shall be
18 distributed to the purchasers or managed for their benefit by
19 the trustee holding the funds. Except in an action by the
20 Comptroller to revoke a license issued pursuant to this Act
21 and for creation of a receivership as provided in this Act,
22 the trust shall not be subject to judgment, execution,
23 garnishment, attachment, or other seizure by process in
24 bankruptcy or otherwise, nor to sale, pledge, mortgage, or
25 other alienation, and shall not be assignable except as
26 approved by the Comptroller. The changes made by this
27 amendatory Act of the 91st General Assembly are intended to
28 clarify existing law regarding the inability of licensees to
29 pledge the trust.
30 (f) Because it is not known at the time of deposit or at
31 the time that income is earned on the trust account to whom
32 the principal and the accumulated earnings will be
33 distributed, for purposes of determining the Illinois Income
34 Tax due on these trust funds, the principal and any accrued
-80- LRB9112160STsbam01
1 earnings or losses relating to each individual account shall
2 be held in suspense until the final determination is made as
3 to whom the account shall be paid.
4 (Source: P.A. 91-7, eff. 6-1-99.)
5 (815 ILCS 390/18) (from Ch. 21, par. 218)
6 Sec. 18. Remedies.
7 (a) If for any reason a seller who has engaged in
8 pre-need sales has refused, cannot or does not comply with
9 the terms of the pre-need sales contract within a reasonable
10 time after he is required to do so, the purchaser or his
11 heirs or assigns or duly authorized representative shall have
12 the right to a refund of an amount equal to the sales price
13 paid for undelivered merchandise, services or spaces plus
14 undistributed interest amounts held in trust attributable to
15 such contract, within 30 days of the filing of a sworn
16 affidavit with the trustee setting forth the existence of the
17 contract and the fact of breach. A copy of this affidavit
18 shall be filed with the Comptroller and the seller. In the
19 event a seller is prevented from performing by strike,
20 shortage of materials, civil disorder, natural disaster or
21 any like occurrence beyond the control of the seller, the
22 seller's time for performance shall be extended by the length
23 of such delay. Nothing in this Section shall relieve any
24 person the seller from any liability for non-performance of
25 his obligations under the pre-need sales contract.
26 (b) If the purchaser defaults in making payments, the
27 seller shall have the right to cancel the contract and
28 withdraw from the trust fund the entire balance to the credit
29 of the defaulting purchaser's account as liquidating damages.
30 In such event, the trustee shall deliver said balance to the
31 seller upon its certification, and upon receiving said
32 certification the trustee may rely thereon and shall not be
33 liable to anyone for such reliance.
-81- LRB9112160STsbam01
1 (c) At any time prior to the performance of a service or
2 delivery of merchandise under a pre-need contract, any
3 purchaser, its legal representative, or all beneficiaries
4 under the contract After final payment on a pre-need
5 contract, any beneficiary may upon written demand of a
6 seller, demand that the pre-need contract with such seller be
7 terminated. The seller shall, within 30 days, initiate a
8 refund to such purchaser, its legal representative, or all
9 beneficiaries under the pre-need contract in an amount as
10 follows:
11 (1) 100% of the sales proceeds, including
12 undistributed interest earned thereon, if the purchaser,
13 its legal representative, or all beneficiaries demand
14 termination of the pre-need contract within 30 days after
15 the date of entry into the pre-need contract;
16 (2) beneficiary of The entire amount held in trust
17 attributable to undelivered cemetery merchandise and
18 underperformed cemetery services, including undistributed
19 interest earned thereon, if the purchaser, its legal
20 representative, or all beneficiaries demand termination
21 of the pre-need contract more than 30 days after the date
22 of entry into the pre-need contract. Where more than one
23 beneficiary is included in a pre-need contract, a seller
24 need not honor a demand for cancellation under this
25 paragraph unless all beneficiaries assent and their
26 signatures are included in written demand for refund.
27 (Source: P.A. 85-805.)
28 (815 ILCS 390/19) (from Ch. 21, par. 219)
29 Sec. 19. Construction or development of spaces.
30 (a) The construction or development of undeveloped
31 interment, entombment or inurnment spaces shall be commenced
32 on that phase, section or sections of undeveloped ground or
33 section of lawn crypts, mausoleums, garden crypts,
-82- LRB9112160STsbam01
1 columbariums or cemetery spaces in which sales are made
2 within 3 years of the date of the first such sale. The
3 seller shall give written notice to the Comptroller no later
4 than 30 days after the first sale. Such notice shall include
5 a description of the project. Once commenced, construction
6 or development shall be pursued diligently to completion.
7 The construction must be completed within 6 years of the
8 first sale. If construction or development is not commenced
9 or completed within the times specified herein, any purchaser
10 may surrender and cancel the contract and upon cancellation
11 shall be entitled to a refund of the actual amounts paid
12 toward the purchase price plus interest attributable to such
13 amount earned while in trust; provided however that any delay
14 caused by strike, shortage of materials, civil disorder,
15 natural disaster or any like occurrence beyond the control of
16 the seller shall extend the time of such commencement and
17 completion by the length of such delay.
18 (b) At any time within 12 months of a purchaser's
19 entering into a pre-need contract for undeveloped interment,
20 entombment or inurnment spaces, a purchaser may surrender and
21 cancel his or her contract and upon cancellation shall be
22 entitled to a refund of the sales proceeds paid towards the
23 undeveloped interment, entombment, or inurnment spaces the
24 actual amounts paid toward the purchase price plus interest
25 attributable to such amount earned while in trust.
26 Notwithstanding the foregoing, the cancellation and refund
27 rights specified in this paragraph shall terminate as of the
28 date the seller commences construction or development of the
29 phase, section or sections of undeveloped spaces in which
30 sales are made. After the rights of cancellation and refund
31 specified herein have terminated, if a purchaser defaults in
32 making payments under the pre-need contract, the seller shall
33 have the right to cancel the contract and withdraw from the
34 trust fund the entire balance to the credit of the defaulting
-83- LRB9112160STsbam01
1 purchaser's account as liquidated damages. In such event,
2 the trustee shall deliver said balance to the seller upon its
3 certification, and upon receiving said certification the
4 trustee may rely thereon and shall not be liable to anyone
5 for such reliance.
6 (c) During the construction or development of interment,
7 entombment or inurnment spaces, upon the sworn certification
8 by the seller and the contractor to the trustee, the trustee
9 shall disburse from the trust fund the amount equivalent to
10 the cost of performed labor or delivered materials as
11 certified. Said certification shall be substantially in the
12 following form:
13 We, the undersigned, being respectively the Seller and
14 Contractor, do hereby certify that the Contractor has
15 performed labor or delivered materials or both to (address of
16 property) .........., in connection with a contract to
17 .........., and that as of this date the value of the labor
18 performed and materials delivered is $.......
19 We do further certify that in connection with such
20 contract there remains labor to be performed, and materials
21 to be delivered, of the value of $........
22 This Certificate is signed (insert date).
23 ............ ............
24 Seller Contractor
25 A person who executes and delivers a completion
26 certificate with actual knowledge of a falsity contained
27 therein shall be considered in violation of this Act and
28 subject to the penalties contained herein.
29 (d) Except as otherwise authorized by this Section,
30 every seller of undeveloped spaces shall provide facilities
31 for temporary interment, entombment or inurnment for
32 purchasers or beneficiaries of contracts who die prior to
33 completion of the space. Such temporary facilities shall be
34 constructed of permanent materials, and, insofar as
-84- LRB9112160STsbam01
1 practical, be landscaped and groomed to the extent customary
2 in the cemetery industry in that community. The heirs,
3 assigns, or personal representative of a purchaser or
4 beneficiary shall not be required to accept temporary
5 underground interment spaces where the undeveloped space
6 contracted for was an above ground entombment or inurnment
7 space. In the event that temporary facilities as described
8 in this paragraph are not made available, upon the death of a
9 purchaser or beneficiary, the heirs, assigns, or personal
10 representative is entitled to a refund of the entire sales
11 price paid plus undistributed interest attributable to such
12 amount while in trust.
13 (e) If the seller delivers a completed space acceptable
14 to the heirs, assigns or personal representative of a
15 purchaser or beneficiary, other than the temporary facilities
16 specified herein, in lieu of the undeveloped space purchased,
17 the seller shall provide the trustee with a delivery
18 certificate and all sums deposited under the pre-need sales
19 contract, including the undistributed income, shall be paid
20 to the seller.
21 (f) Upon completion of the phase, section or sections of
22 the project as certified to the trustee by the seller and the
23 contractor and delivery of the completed interment,
24 entombment, or inurnment space to the purchaser, the trust
25 fund requirements set forth herein shall terminate and all
26 funds held in the preconstruction trust fund attributable to
27 the completed phase, section or sections, including interest
28 accrued thereon, shall be returned to the seller.
29 (g) This Section shall not apply to the sale of
30 undeveloped spaces if there has been any such sale in the
31 same phase, section or sections of the project prior to the
32 effective date of this Act.
33 (Source: P.A. 91-357, eff. 7-29-99.)
-85- LRB9112160STsbam01
1 (815 ILCS 390/20) (from Ch. 21, par. 220)
2 Sec. 20. Records.
3 (a) Each licensee must keep accurate accounts, books and
4 records in this State at the principal place of business
5 identified in the licensee's license application or as
6 otherwise approved by the Comptroller in writing of all
7 transactions, copies of agreements, dates and amounts of
8 payments made or received, the names and addresses of the
9 contracting parties, the names and addresses of persons for
10 whose benefit funds are received, if known, and the names of
11 the trust depositories. Additionally, for a period not to
12 exceed 6 months after the performance of all terms in a
13 pre-need sales contract, the licensee shall maintain copies
14 of each pre-need contract at the licensee branch location
15 where the contract was entered.
16 (b) Each licensee must maintain such records for a
17 period of 3 years after the licensee shall have fulfilled his
18 or her obligation under the pre-need contract or 3 years
19 after any stored merchandise shall have been provided to the
20 purchaser or beneficiary, whichever is later.
21 (c) Each licensee shall submit reports to the
22 Comptroller annually, under oath, on forms furnished by the
23 Comptroller. The annual report shall contain, but shall not
24 be limited to, the following:
25 (1) An accounting of the principal deposit and
26 additions of principal during the fiscal year.
27 (2) An accounting of any withdrawal of principal or
28 earnings.
29 (3) An accounting at the end of each fiscal year,
30 of the total amount of principal and earnings held.
31 (d) The annual report shall be filed by the licensee
32 with the Comptroller within 75 days after the end of the
33 licensee's fiscal year. An extension of up to 60 days may be
34 granted by the Comptroller, upon a showing of need by the
-86- LRB9112160STsbam01
1 licensee. Any other reports shall be in the form furnished
2 or specified by the Comptroller. If a licensee fails to
3 submit an annual report to the Comptroller within the time
4 specified in this Section, the Comptroller shall impose upon
5 the licensee a penalty of $5 for each and every day the
6 licensee remains delinquent in submitting the annual report.
7 Each report shall be accompanied by a check or money order in
8 the amount of $10 payable to: Comptroller, State of
9 Illinois.
10 (e) On and after the effective date of this amendatory
11 Act of the 91st General Assembly, a licensee may report all
12 required information concerning the sale of outer burial
13 containers on the licensee's annual report required to be
14 filed under this Act and shall not be required to report that
15 information under the Illinois Funeral or Burial Funds Act,
16 as long as the information is reported under this Act.
17 (Source: P.A. 91-7, eff. 1-1-2000.)
18 (815 ILCS 390/22) (from Ch. 21, par. 222)
19 Sec. 22. Cemetery Consumer Protection Fund.
20 (a) Every seller engaging in pre-need sales shall pay to
21 the Comptroller $5 for each said contract entered into, to be
22 paid into a special income earning fund hereby created in the
23 State Treasury, known as the Cemetery Consumer Protection
24 Fund. The above said fees shall be remitted to the
25 Comptroller semi-annually within 30 days after the end of
26 June and December for all contracts that have been entered in
27 such 6 month period.
28 (b) All monies paid into the fund together with all
29 accumulated undistributed income thereon shall be held as a
30 special fund in the State Treasury. The fund shall be used
31 solely for the purpose of providing restitution to consumers
32 who have suffered pecuniary loss arising out of pre-need
33 sales.
-87- LRB9112160STsbam01
1 (c) The fund shall be applied only to restitution or
2 completion of the project or delivery of the merchandise or
3 services, where such has been ordered by the Circuit Court in
4 a lawsuit brought under this Act by the Attorney General of
5 the State of Illinois on behalf of the Comptroller and in
6 which it has been determined by the Court that the obligation
7 is non-collectible from the judgment debtor. Restitution
8 shall not exceed the amount of the sales price paid plus
9 interest at the statutory rate. The fund shall not be used
10 for the payment of any attorney or other fees.
11 (d) Whenever restitution is paid by the fund, the fund
12 shall be subrogated to the amount of such restitution, and
13 the Comptroller shall request the Attorney General to engage
14 in all reasonable post judgment collection steps to collect
15 said restitution from the judgment debtor and reimburse the
16 fund.
17 (e) The fund shall not be applied toward any restitution
18 for losses in any lawsuit initiated by the Attorney General
19 or Comptroller or with respect to any claim made on pre-need
20 sales which occurred prior to the effective date of this Act.
21 (f) The fund may not be allocated for any purpose other
22 than that specified in this Act.
23 (g) Notwithstanding any other provision of this Section,
24 the payment of restitution from the fund shall be a matter of
25 grace and not of right and no purchaser shall have any vested
26 rights in the fund as a beneficiary or otherwise. Prior to
27 seeking restitution from the fund, a purchaser or beneficiary
28 seeking payment of restitution shall apply for restitution on
29 a form provided by the Comptroller. The form shall include
30 any information the Comptroller may reasonably require in
31 order for the Court to determine that restitution or
32 completion of the project or delivery of merchandise or
33 service is appropriate.
34 (h) Annually, the status of the fund shall be reviewed
-88- LRB9112160STsbam01
1 by the Comptroller, and if he determines that the fund
2 together with all accumulated income earned thereon, equals
3 or exceeds $10,000,000 and that the total number of
4 outstanding claims filed against the fund is less than 10% of
5 the fund's current balance, then payments to the fund shall
6 be suspended until such time as the fund's balance drops
7 below $10,000,000 or the total number of outstanding claims
8 filed against the fund is more than 10% of the fund's current
9 balance, but on such suspension, the fund shall not be
10 considered inactive.
11 (Source: P.A. 84-239.)
12 (815 ILCS 390/23) (from Ch. 21, par. 223)
13 Sec. 23. Violations and penalties.
14 (a) Any person intentionally violating any provision of
15 this Act is guilty of a Class 4 felony.
16 (b) If any person violates this Act or fails or refuses
17 to comply with any order of the Comptroller or any part
18 thereof which to such person has become final and is still in
19 effect, the Comptroller may, after notice and hearing at
20 which it is determined that a violation of this Act or such
21 order has been committed, further order that such person
22 shall forfeit and pay to the State of Illinois a sum not to
23 exceed $10,000 $5,000 for each violation. Such liability
24 shall be enforced in an action brought in any court of
25 competent jurisdiction by the Comptroller in the name of the
26 people of the State of Illinois.
27 (c) Whenever a license is revoked by the Comptroller, or
28 the Comptroller determines that any person is engaged in
29 pre-need sales without a license, he shall apply to the
30 circuit court of the county where such person is located for
31 a receiver to administer the business of such person.
32 (d) Whenever a licensee fails or refuses to make a
33 required report or whenever it appears to the Comptroller
-89- LRB9112160STsbam01
1 from any report or examination that such licensee has
2 committed a violation of law or that the trust funds have not
3 been administered properly or that it is unsafe or
4 inexpedient for such licensee or the trustee of the trust
5 funds of such licensee to continue to administer such funds
6 or that any officer of such licensee or of the trustee of the
7 trust funds of such licensee has abused his trust or has been
8 guilty of misconduct or breach of trust in his official
9 position injurious to such licensee or that such licensee has
10 suffered as to its trust funds a serious loss by larceny,
11 embezzlement, burglary, repudiation or otherwise, the
12 Comptroller shall, by order, direct the discontinuance of
13 such illegal, unsafe or unauthorized practices and shall
14 direct strict conformity with the requirements of the law and
15 safety and security in its transactions and may apply to the
16 circuit court of the county where such licensee is located to
17 prevent any disbursements or expenditures by such licensee
18 until the trust funds are in such condition that it would not
19 be jeopardized thereby and the Comptroller shall communicate
20 the facts to the Attorney General of the State of Illinois
21 who shall thereupon institute such proceedings against the
22 licensee or its trustee or the officers of either or both as
23 the nature of the case may require.
24 (e) In addition to the other penalties and remedies
25 provided in this Act, the Comptroller may bring a civil
26 action in the county of residence of the licensee or any
27 person engaging in pre-need sales, to enjoin any violation or
28 threatened violation of this Act.
29 (e-5) Any person that violates any provision of this Act
30 or fails to comply with an order of the Comptroller is liable
31 for a civil penalty of not to exceed $10,000 for the
32 violation and an additional civil penalty of not to exceed
33 $1,000 for each day during which the violation continues.
34 These penalties are in addition to any penalties that may be
-90- LRB9112160STsbam01
1 issued under the Consumer Fraud and Deceptive Business
2 Practices Act for knowing violations of this Act. The civil
3 penalties provided for in this subsection may be recovered in
4 a civil action.
5 (f) The powers vested in the Comptroller by this Section
6 are additional to any and all other powers and remedies
7 vested in the Comptroller by law, and nothing herein
8 contained shall be construed as requiring that the
9 Comptroller shall employ the powers conferred herein instead
10 of or as a condition precedent to the exercise of any other
11 power or remedy vested in the Comptroller.
12 (Source: P.A. 88-477.)
13 (815 ILCS 390/27.1 new)
14 Sec. 27.1. Sales; liability of purchaser for shortage.
15 In the event of a sale or transfer of all or substantially
16 all of the assets of the licensee, the sale or transfer of
17 the controlling interest of the corporate stock of the
18 licensee if the licensee is a corporation, the sale or
19 transfer of the controlling interest of the partnership if
20 the licensee is a partnership, or sale pursuant to
21 foreclosure proceedings, the purchaser is liable for any
22 shortages existing before or after the sale in the trust
23 funds required to be maintained in a trust under this Act and
24 shall honor all pre-need contracts and trusts entered into by
25 the licensee. Any shortages existing in the trust funds
26 constitute a prior lien in favor of the trust for the total
27 value of the shortages, and notice of that lien must be
28 provided in all sales instruments.
29 In the event of a sale or transfer of all or
30 substantially all of the assets of the licensee, the sale or
31 transfer of the controlling interest of the corporate stock
32 of the licensee if the licensee is a corporation, or the sale
33 or transfer of the controlling interest of the partnership if
-91- LRB9112160STsbam01
1 the licensee is a partnership, the licensee shall, at least
2 21 days prior to the sale or transfer, notify the
3 Comptroller, in writing, of the pending date of sale or
4 transfer so as to permit the Comptroller to audit the books
5 and records of the licensee. The audit must be commenced
6 within 10 business days after the receipt of the notification
7 and completed within the 21-day notification period unless
8 the Comptroller notifies the licensee during that period that
9 there is a basis for determining a deficiency which will
10 require additional time to finalize. The sale or transfer
11 may not be completed by the licensee unless and until:
12 (i) the Comptroller has completed the audit of the
13 licensee's books and records;
14 (ii) any delinquency existing in the trust funds has
15 been paid by the licensee, or arrangements satisfactory
16 to the Comptroller have been made by the licensee on the
17 sale or transfer for the payment of any delinquency;
18 (iii) the Comptroller issues a license upon
19 application of the new owner, which license must be
20 applied for within 30 days after the anticipated date of
21 the sale or transfer, subject to the payment of any
22 delinquencies, if any, as stated in item (ii).
23 For purposes of this Section, a person, firm,
24 corporation, partnership, or institution that acquires the
25 licensee through a real estate foreclosure is subject to the
26 provisions of this Section. The sale or transfer of the
27 controlling interest of a licensee to an immediate family
28 member is not subject to the license application process
29 required in item (iii) of this Section.
30 Section 50. Severability. If any provision of this Act or
31 its application to any person or circumstance is held
32 invalid, the invalidity of that provision or application does
33 not affect other provisions or applications of this Act that
-92- LRB9112160STsbam01
1 can be given effect without the invalid provision or
2 application.
3 Section 99. Effective date. This Act takes effect
4 January 1, 2001.".