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91_HB3988
LRB9112160STsb
1 AN ACT to amend certain Acts in relation to cemeteries
2 and burial services.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The State Comptroller Act is amended by adding
6 Sections 22.3 and 22.4 as follows:
7 (15 ILCS 405/22.3 new)
8 Sec. 22.3. Cemetery Preservation Advisory Board. The
9 Comptroller shall appoint a 5-member Cemetery Preservation
10 Advisory Board. The Board shall serve in an advisory capacity
11 to the Comptroller for the purpose of recommending the
12 distribution of funds from the Cemetery Preservation Fund.
13 Members of the Board shall serve a term as determined by the
14 Comptroller. Members shall serve without compensation but
15 may be reimbursed for their reasonable expenses incurred in
16 the performance of their duties.
17 (15 ILCS 405/22.4 new)
18 Sec. 22.4. Cemetery Preservation Fund.
19 (a) The Cemetery Preservation Fund is created as a
20 special fund in the State Treasury.
21 (b) Beginning on January 1, 2001, all fees and penalties
22 for the payment of registration, licensure, annual reporting,
23 and penalties paid to the State Comptroller pursuant to
24 Sections 8, 9, and 12 of the Cemetery Care Act shall be
25 deposited into the Cemetery Preservation Fund.
26 (c) The State Comptroller shall determine payments from
27 the Cemetery Preservation Fund. All payments from the
28 Cemetery Preservation Fund shall be used by the Comptroller
29 to clean up or restore abandoned and neglected cemeteries in
30 Illinois including grants to units of local governments,
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1 school districts, and not-for-profit associations.
2 (d) Grant payments provided for the cleanup of cemeteries
3 owned by units of municipal, county, or township government
4 shall not exceed 50% of the projected cost to clean up the
5 cemetery. The Comptroller may adopt rules and regulations in
6 administering this subsection.
7 (e) Expenditures from the Cemetery Preservation Fund are
8 subject to appropriation.
9 Section 10. The State Finance Act is amended by adding
10 Section 5.541 as follows:
11 (30 ILCS 105/5.541 new)
12 Sec. 5.541. The Cemetery Preservation Fund.
13 Section 15. The Grave and Cemetery Restoration Act is
14 amended by changing Section 1 as follows:
15 (55 ILCS 70/1) (from Ch. 21, par. 61)
16 Sec. 1. Care by county.
17 (a) The county board of any county may appropriate funds
18 from the county treasury to be used for the purpose of
19 putting any old, neglected graves and cemeteries in the
20 county in a cleaner and more respectable condition.
21 (b) A county that has within its territory an abandoned
22 cemetery may, upon 30 days publication of notice in a
23 newspaper of local circulation, enter the cemetery grounds
24 and cause the grounds to be cleared and kept orderly.
25 (c) For the purposes of this Section:
26 "Abandoned cemetery" means an area of land containing
27 more than 6 places of interment not under the control or
28 management of any currently functioning cemetery authority at
29 which no interments have taken place in at least 2 years or
30 for which there has been inadequate maintenance for at least
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1 6 months.
2 "Inadequate maintenance" includes, but is not limited to,
3 the failure to cut the lawn throughout a cemetery to prevent
4 an overgrowth of grass and weeds; the failure to trim shrubs
5 to prevent excessive overgrowth; the failure to trim trees so
6 as to remove dead limbs; the failure to keep in repair the
7 drains, water lines, roads, buildings, fences, and other
8 structures of the cemetery premises; or the failure to keep
9 the cemetery premises free of trash and debris.
10 (Source: P.A. 86-696.)
11 Section 20. The Township Code is amended by changing
12 Section 130-5 as follows:
13 (60 ILCS 1/130-5)
14 Sec. 130-5. Cemeteries; permitted activities.
15 (a) A township may establish and maintain cemeteries
16 within and without its territory, may acquire lands for
17 cemeteries by condemnation or otherwise, may lay out lots of
18 convenient size for families, and may sell lots for a family
19 burying ground or to individuals for burial purposes.
20 Associations duly incorporated under the laws of this State
21 for cemetery purposes shall have the same power and authority
22 to purchase lands and sell lots for burial purposes as are
23 conferred upon townships under this Article.
24 (b) A township that has within its territory an
25 abandoned cemetery may, upon 30 days publication of notice in
26 a newspaper of local circulation, enter the cemetery grounds
27 and cause the grounds to be cleared and kept orderly.
28 (c) In this Section:
29 "Abandoned cemetery" means an area of land containing
30 more than 6 places of interment not under the control or
31 management of any currently functioning cemetery authority at
32 which no interments have taken place in at least 2 years or
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1 for which there has been inadequate maintenance for at least
2 6 months.
3 "Inadequate maintenance" includes, but is not limited to,
4 the failure to cut the lawn throughout a cemetery to prevent
5 an overgrowth of grass and weeds; the failure to trim shrubs
6 to prevent excessive overgrowth; the failure to trim trees so
7 as to remove dead limbs; the failure to keep in repair the
8 drains, water lines, roads, buildings, fences, and other
9 structures of the cemetery premises; or the failure to keep
10 the cemetery premises free of trash and debris.
11 (Source: Laws 1963, p. 824; P.A. 88-62.)
12 Section 25. The Illinois Municipal Code is amended by
13 changing Section 11-49-1 as follows:
14 (65 ILCS 5/11-49-1) (from Ch. 24, par. 11-49-1)
15 Sec. 11-49-1. Cemeteries; permitted activities.
16 (a) The corporate authorities of each municipality may
17 establish and regulate cemeteries within or without the
18 municipal limits; may acquire lands therefor, by purchase or
19 otherwise; may cause cemeteries to be removed; and may
20 prohibit their establishment within one mile of the municipal
21 limits.
22 (b) The corporate authorities also may enter into
23 contracts to purchase existing cemeteries, or lands for
24 cemetery purposes, on deferred installments to be paid solely
25 from the proceeds of sale of cemetery lots. Every such
26 contract shall empower the purchasing municipality, in its
27 own name, to execute and deliver deeds to purchasers of
28 cemetery lots for burial purposes.
29 (c) The corporate authorities of each municipality that
30 has within its territory an abandoned cemetery may, upon 30
31 days publication of notice in a newspaper of local
32 circulation, enter the cemetery grounds and cause the grounds
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1 to be cleared and kept orderly.
2 (d) In this Section:
3 "Abandoned cemetery" means an area of land containing
4 more than 6 places of interment not under the control or
5 management of any currently functioning cemetery authority at
6 which no interments have taken place in at least 2 years or
7 for which there has been inadequate maintenance for at least
8 6 months.
9 "Inadequate maintenance" includes, but is not limited to,
10 the failure to cut the lawn throughout a cemetery to prevent
11 an overgrowth of grass and weeds; the failure to trim shrubs
12 to prevent excessive overgrowth; the failure to trim trees so
13 as to remove dead limbs; the failure to keep in repair the
14 drains, water lines, roads, buildings, fences, and other
15 structures of the cemetery premises; or the failure to keep
16 the cemetery premises free of trash and debris.
17 (Source: Laws 1961, p. 576.)
18 Section 30. The Illinois Funeral or Burial Funds Act is
19 amended by changing Sections 1a, 1a-1, 1b, 2, 2a, 3, 3a, 3e,
20 3f, 4, 4a, 7.2, and 8, and by adding Sections 3a-5 and 8.1,
21 as follows:
22 (225 ILCS 45/1a) (from Ch. 111 1/2, par. 73.101a)
23 Sec. 1a. For the purposes of this Act, the following
24 terms shall have the meanings specified, unless the context
25 clearly requires another meaning:
26 "Beneficiary" means the person specified in the pre-need
27 contract upon whose death funeral services or merchandise
28 shall be provided or delivered.
29 "Licensee" means a provider seller of a pre-need contract
30 who has been licensed by the Comptroller under this Act.
31 "Outer burial container" means any container made of
32 concrete, steel, wood, fiberglass or similar material, used
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1 solely at the interment site, and designed and used
2 exclusively to surround or enclose a separate casket and to
3 support the earth above such casket, commonly known as a
4 burial vault, grave box or grave liner, but not including a
5 lawn crypt as defined in the Illinois Pre-need Cemetery Sales
6 Act.
7 "Parent company" means a corporation that has a
8 controlling interest in another corporation.
9 "Person" means any person, partnership, association,
10 corporation, or other entity.
11 "Pre-need contract" means any agreement or contract, or
12 any series or combination of agreements or contracts, whether
13 funded by trust deposits or life insurance policies or
14 annuities, which has for a purpose the furnishing or
15 performance of funeral services or the furnishing or delivery
16 of any personal property, merchandise, or services of any
17 nature in connection with the final disposition of a dead
18 human body. Nothing in this Act is intended to regulate the
19 content of a life insurance policy or a tax-deferred annuity.
20 "Provider" means a person who is obligated for furnishing
21 or performing funeral services or the furnishing or delivery
22 of any personal property, merchandise, or services of any
23 nature in connection with the final disposition of a dead
24 human body.
25 "Purchaser" means the person who originally paid the
26 money under or in connection with a pre-need contract.
27 "Sales proceeds" means the entire amount paid to a
28 seller, exclusive of sales taxes paid by the seller, finance
29 charges paid by the purchaser, and credit life, accident or
30 disability insurance premiums, upon any agreement or
31 contract, or series or combination of agreements or
32 contracts, for the purpose of performing funeral services or
33 furnishing personal property, merchandise, or services of any
34 nature in connection with the final disposition of a dead
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1 human body, including, but not limited to, the retail price
2 paid for such services and personal property and merchandise.
3 "Purchase price" means the sales proceeds less finance
4 charges on retail installment contracts.
5 "Seller" means the provider's representative person who
6 sells or offers to sell the pre-need contract to a purchaser,
7 whether funded by a trust agreement, life insurance policy,
8 or tax-deferred annuity.
9 "Trustee" means a person authorized to hold funds under
10 this Act.
11 (Source: P.A. 88-477.)
12 (225 ILCS 45/1a-1)
13 Sec. 1a-1. Pre-need contracts.
14 (a) It shall be unlawful for any provider seller doing
15 business within this State to accept sales proceeds from a
16 purchaser, either directly or indirectly by any means, unless
17 the provider seller enters into a pre-need contract with the
18 purchaser which meets the following requirements:
19 (1) It states the name and address of the principal
20 office of the provider, all branch locations, and the
21 parent company of the provider, if any or clearly
22 discloses that the provider will be selected by the
23 purchaser or the purchaser's survivor or legal
24 representative at a later date, except that no contract
25 shall contain any provision restricting the right of the
26 contract purchaser during his or her lifetime in making
27 his or her own selection of a provider.
28 (2) It clearly identifies the seller's name and
29 address of the seller, the purchaser, and the
30 beneficiary, if other than the purchaser, and the
31 provider, if different than the seller or discloses that
32 the provider will be selected at a later date.
33 (3) It contains a complete description of the
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1 funeral merchandise and services to be provided and the
2 price of the merchandise and services, and it clearly
3 discloses whether the price of the merchandise and
4 services is guaranteed or not guaranteed as to price.
5 (A) Each guaranteed price contract shall
6 contain the following statement in 12 point bold
7 type:
8 THIS CONTRACT GUARANTEES THE BENEFICIARY THE
9 SPECIFIC GOODS AND SERVICES CONTRACTED FOR. NO
10 ADDITIONAL CHARGES MAY BE REQUIRED. FOR DESIGNATED
11 GOODS AND SERVICES, ADDITIONAL CHARGES MAY BE
12 INCURRED FOR UNEXPECTED EXPENSES INCLUDING, BUT NOT
13 LIMITED TO, CASH ADVANCES, SHIPPING OF REMAINS FROM
14 A DISTANT PLACE, OR DESIGNATED HONORARIA ORDERED OR
15 DIRECTED BY SURVIVORS.
16 (B) Each non-guaranteed price contract shall
17 contain the following statement in 12 point bold
18 type:
19 THIS CONTRACT DOES NOT GUARANTEE THE PRICE THE
20 BENEFICIARY WILL PAY FOR ANY SPECIFIC GOODS OR
21 SERVICES. ANY FUNDS PAID UNDER THIS CONTRACT ARE
22 ONLY A DEPOSIT TO BE APPLIED TOWARD THE FINAL PRICE
23 OF THE GOODS OR SERVICES CONTRACTED FOR. ADDITIONAL
24 CHARGES MAY BE REQUIRED.
25 (4) It provides that if the particular supplies and
26 services specified in the pre-need contract are
27 unavailable at the time of delivery, the provider shall
28 be required to furnish supplies and services similar in
29 style and at least equal in quality of material and
30 workmanship.
31 (5) (Blank). It discloses any penalties or
32 restrictions, including but not limited to geographic
33 restrictions or the inability of the provider, if
34 selected, to perform, on the delivery of merchandise,
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1 services, or pre-need contract guarantees.
2 (6) Regardless of the method of funding the
3 pre-need contract, the following must be disclosed:
4 (A) Whether the pre-need contract is to be
5 funded by a trust, life insurance, or an annuity;
6 (B) The nature of the relationship among the
7 person entity funding the pre-need contract, the
8 provider, if selected, and the seller; and
9 (C) The impact on the pre-need contract of (i)
10 any changes in the funding arrangement including but
11 not limited to changes in the assignment,
12 beneficiary designation, or use of the funds; (ii)
13 any specific penalties to be incurred by the
14 contract purchaser as a result of failure to make
15 payments; (iii) penalties to be incurred or moneys
16 or refunds to be received as a result of
17 cancellations; and (iv) all relevant information
18 concerning what occurs and whether any entitlements
19 or obligations arise if there is a difference
20 between the proceeds of the particular funding
21 arrangement and the amount actually needed to pay
22 for the funeral at-need.; and
23 (D) The method of changing or selecting the
24 designation of the provider.
25 (b) All pre-need contracts are subject to the Federal
26 Trade Commission Rule concerning the Cooling-Off Period for
27 Door-to-Door Sales (16 CFR Part 429).
28 (c) No pre-need contract shall be sold in this State
29 unless there is a provider for the services and personal
30 property being sold, or unless disclosure has been made by
31 the seller as provided in subdivision (a)(1). If the seller
32 is not a provider and a provider has been selected, then the
33 seller must have a binding agreement with a provider, and the
34 identity of the provider and the nature of the agreement
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1 between the seller and the provider shall be disclosed in the
2 pre-need contract at the time of the sale and before the
3 receipt of any sales proceeds. Any subsequent change made in
4 the identity of the provider shall be approved in writing by
5 the purchaser and beneficiary within 30 days after it occurs.
6 The failure to disclose the identity of the provider, the
7 nature of the agreement between the seller and the provider,
8 or any changes thereto to the purchaser and beneficiary, or
9 the failure to make the disclosures required in subdivision
10 (a)(1), constitutes an intentional violation of this Act.
11 (d) All pre-need contracts must be in writing in at
12 least 12 point type, numbered, and executed in duplicate and
13 no pre-need contract form shall be used without prior filing
14 with the Comptroller. A signed copy of the pre-need contract
15 must be provided to the purchaser at the time of entry. The
16 Comptroller shall review all pre-need contract forms and
17 shall prohibit the use of contract forms which do not meet
18 the requirements of this Act upon written notification to the
19 seller. Any use or attempted use of any oral pre-need
20 contract or any written pre-need contract in a form not filed
21 with the Comptroller or in a form which does not meet the
22 requirements of this Act shall be deemed a violation of this
23 Act and is voidable by the purchaser without penalty. Life
24 insurance policies, tax-deferred annuities, endorsements,
25 riders, or applications for life insurance or tax-deferred
26 annuities are not subject to filing with the Comptroller.
27 The Comptroller may by rule develop a model pre-need contract
28 form which meets the requirements of this Act.
29 (e) The State Comptroller shall by rule develop a
30 booklet for consumers in plain English describing the scope,
31 application, and consumer protections of this Act. After the
32 adoption of these rules, No pre-need contract shall be sold
33 in this State unless the provider or seller (i) distributes
34 to the purchaser prior to the sale a booklet promulgated or
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1 approved for use by the State Comptroller and (ii) explains
2 to the purchaser the terms of the pre-need contract prior to
3 the purchaser's signing.
4 (f) All sales proceeds received in connection with a
5 pre-need contract shall be deposited into a trust account as
6 provided in Section 1b and Section 2 of this Act, or shall be
7 used to purchase a life insurance policy or tax-deferred
8 annuity as provided in Section 2a of this Act.
9 (g) No pre-need contract shall be sold in this State
10 unless it is accompanied by a funding mechanism permitted
11 under this Act, and unless the provider seller is licensed by
12 the Comptroller as provided in Section 3 of this Act.
13 Nothing in this Act is intended to relieve providers or
14 sellers of pre-need contracts from being licensed under any
15 other Act required for their profession or business, and
16 being subject to the rules promulgated to regulate their
17 profession or business, including rules on solicitation and
18 advertisement.
19 (Source: P.A. 90-47, eff. 1-1-98.)
20 (225 ILCS 45/1b) (from Ch. 111 1/2, par. 73.101b)
21 Sec. 1b. (a) Whenever a provider seller receives sales
22 proceeds under a pre-need contract that the purchaser elects
23 to fund by a trust agreement, the provider seller may retain
24 an initial amount equal to 5% of the purchase price of the
25 services, personal property or merchandise, or 15% of the
26 purchase price of outer burial containers. Thereafter, the
27 provider a seller shall deposit into trust the amounts
28 specified in this Section so that no later than upon the
29 final payment on the contract, the trust shall equal or
30 exceed 95% of the purchase price of all services, personal
31 property, or merchandise, except for outer burial containers,
32 and 85% of the purchase price of outer burial containers.
33 (b) In the event that sales proceeds to be deposited
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1 into a trust are received pursuant to a cash sale or a retail
2 installment contract, the provider seller may retain the
3 initial percentage authorized by subsection (a) of this
4 Section and any finance charge paid by the purchaser, and
5 thereafter shall deposit into the trust the entire balance of
6 sales proceeds received.
7 (c) In the event that the deposits into a trust required
8 by this Section do not, after final payment by the consumer,
9 result in the trust containing at least 95% of the sales
10 price of all services, personal property or merchandise,
11 except for outer burial containers and 85% of the purchase
12 price of outer burial containers, the provider seller shall
13 make an additional deposit into the trust in an amount
14 sufficient to meet these percentages.
15 (d) The trustee may not be the seller or provider of
16 funeral services or merchandise unless the provider seller
17 holds sales of less than $500,000 in trust, and deposits
18 funds for which the provider seller is acting as trustee in
19 (1) withdrawable accounts of State chartered or federally
20 chartered savings and loan associations insured by the
21 Federal Deposit Insurance Corporation; (2) deposits or
22 certificates of deposits in State or federal banks insured by
23 the Federal Deposit Insurance Corporation; or (3) share
24 accounts or share certificate accounts in a State or federal
25 credit union, the accounts of which are insured as required
26 by the Illinois Credit Union Act or the Federal Credit Union
27 Act, as applicable.
28 (Source: P.A. 88-477.)
29 (225 ILCS 45/2) (from Ch. 111 1/2, par. 73.102)
30 Sec. 2. (a) If a purchaser selects a trust arrangement
31 to fund the pre-need contract, all trust deposits as
32 determined by Section 1b shall be made within 30 days of
33 receipt.
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1 (b) A trust established under this Act must be
2 maintained:
3 (1) in a trust account established in a bank,
4 savings and loan association, savings bank, or credit
5 union authorized to do business in Illinois in which
6 accounts are insured by an agency of the federal
7 government; or
8 (2) in a trust company authorized to do business in
9 Illinois.
10 (c) Trust agreements and amendments to the trust
11 agreements used to fund a pre-need contract shall be filed
12 with the Comptroller prior to their use.
13 (d) Trust agreements shall follow the format of the
14 standard Funeral Trust Agreements approved by the Comptroller
15 for guaranteed or non-guaranteed price funeral plans.
16 (e) A seller or provider shall furnish to the trustee
17 and depositary the name of each payor and the amount of
18 payment on each such account for which deposit is being so
19 made. Nothing shall prevent the trustee or a seller or
20 provider acting as a trustee in accordance with this Act from
21 commingling the deposits in any such trust fund for purposes
22 of its management and the investment of its funds as provided
23 in the Common Trust Fund Act. In addition, multiple trust
24 funds maintained under this Act may be commingled or
25 commingled with other funeral or burial related trust funds
26 if all record keeping requirements imposed by law are met.
27 (f) Trust funds may be maintained in a financial
28 institution described in subsection (b) which is located in a
29 state adjoining this State where: (1) the financial
30 institution is located within 50 miles of the border of this
31 State, (2) its accounts are federally insured, and (3) it has
32 registered with the Illinois Secretary of State for purposes
33 of service of process.
34 (g) Upon notice to the Comptroller, the provider seller
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1 may change the trustee of the fund.
2 (Source: P.A. 88-477.)
3 (225 ILCS 45/2a)
4 Sec. 2a. Purchase of insurance or annuity.
5 (a) If a purchaser selects the purchase of a life
6 insurance policy or tax-deferred annuity contract to fund the
7 pre-need contract, the application and collected premium
8 shall be mailed within 30 days of signing the pre-need
9 contract.
10 (b) If life insurance or an annuity is used to fund a
11 pre-need contract, the seller or provider shall not be named
12 as the owner or beneficiary of the policy or annuity. No
13 person whose only insurable interest in the insured is the
14 receipt of proceeds from the policy or in naming who shall
15 receive the proceeds nor any trust acting on behalf of such
16 person or seller or provider shall be named as owner or
17 beneficiary of the policy or annuity.
18 (c) Nothing shall prohibit the purchaser from
19 irrevocably assigning ownership of the policy or annuity used
20 to fund a guaranteed price pre-need contract to a person or
21 trust for the purpose of obtaining favorable consideration
22 for Medicaid, Supplemental Security Income, or another public
23 assistance program, as permitted under federal law, except
24 that neither the seller nor the contract provider shall be
25 named the owner of the policy or annuity.
26 (d) If a life insurance policy or annuity contract is
27 used to fund a pre-need contract, except for guaranteed price
28 contracts permitted in Section 4(a) of this Act, the pre-need
29 contract must be revocable, and the assignment provision in
30 the pre-need contract must contain the following disclosure
31 in 12 point bold type:
32 THIS ASSIGNMENT MAY BE REVOKED BY THE ASSIGNOR OR
33 ASSIGNOR'S SUCCESSOR OR, IF THE ASSIGNOR IS ALSO THE INSURED
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1 AND DECEASED, BY THE REPRESENTATIVE OF THE INSURED'S ESTATE
2 BEFORE THE RENDERING TO THE CEMETERY SERVICES OR GOODS OR
3 FUNERAL SERVICES OR GOODS. IF THE ASSIGNMENT IS REVOKED, THE
4 DEATH BENEFIT UNDER THE LIFE INSURANCE POLICY OR ANNUITY
5 CONTRACT SHALL BE PAID IN ACCORDANCE WITH THE BENEFICIARY
6 DESIGNATION UNDER THE INSURANCE POLICY OR ANNUITY CONTRACT.
7 (e) Sales proceeds shall not be used to purchase life
8 insurance policies or tax-deferred annuities unless the
9 company issuing the life insurance policies or tax-deferred
10 annuities is licensed with the Illinois Department of
11 Insurance, and the insurance producer or annuity seller is
12 licensed to do business in the State of Illinois.
13 (f) The seller or provider must give notice in writing
14 that the cash surrender value of a life insurance policy may
15 be less than the amount provided for by the refund provisions
16 of the trust.
17 (Source: P.A. 88-477.)
18 (225 ILCS 45/3) (from Ch. 111 1/2, par. 73.103)
19 Sec. 3. Licensing.
20 (a) No person, firm, partnership, association or
21 corporation may act as a provider seller without first
22 securing from the State Comptroller a license to so act.
23 Application for such license shall be in writing, signed by
24 the applicant and duly verified on forms furnished by the
25 Comptroller. Each application shall contain at least the
26 following:
27 (1) The full name and address (both residence and
28 place of business) of the applicant, and every member,
29 officer and director thereof if the applicant is a firm,
30 partnership, association, or corporation, and of every
31 shareholder holding more than 10% of the corporate stock
32 if the applicant is a corporation. Any license issued
33 pursuant to the application shall be valid only at the
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1 address stated in the application for such applicant or
2 at such new address as may be approved by the
3 Comptroller;
4 (2) A statement of the applicant's assets and
5 liabilities approximate net worth;
6 (3) The name and address of the applicant's
7 principal place of business at which the books, accounts,
8 and records shall be available for examination by the
9 Comptroller as required by this Act;
10 (4) The names and addresses of the applicant's
11 branch locations at which pre-need sales shall be
12 conducted and which shall operate under the same license
13 number as the applicant's principal place of business;
14 (5) For each individual listed under item (1) above,
15 a detailed statement of the individual's business
16 experience for the 10 years immediately preceding the
17 application; any present or prior connection between the
18 individual and any other person engaged in pre-need
19 sales; any felony or misdemeanor convictions for which
20 fraud was an essential element; any charges or complaints
21 lodged against the individual for which fraud was an
22 essential element and which resulted in civil or criminal
23 litigation; any failure of the individual to satisfy an
24 enforceable judgment entered against him based upon
25 fraud; and any other information requested by the
26 Comptroller relating to past business practices of the
27 individual. Since the information required by this item
28 (5) may be confidential or contain proprietary
29 information, this information shall not be available to
30 other licensees or the general public and shall be used
31 only for the lawful purposes of the Comptroller in
32 enforcing this Act;
33 (6) The name of the trustee and, if applicable, the
34 names of the advisors to the trustee, including a copy of
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1 the proposed trust agreement under which the trust funds
2 are to be held as required by this Act; and
3 (7) 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. and (3)
7 (b) Applications for license shall be accompanied by a
8 fidelity bond executed by the applicant and a surety company
9 authorized to do business in this State or an irrevocable,
10 unconditional letter of credit issued by a bank, credit
11 union, or trust company authorized to do business in the
12 State of Illinois, as approved by the State Comptroller, in
13 such amount not exceeding $10,000 as the Comptroller may
14 require. Individual salespersons employed by a licensee
15 shall not be required to obtain licenses in their individual
16 capacities. Upon receipt of such application and bond or
17 letter of credit the Comptroller shall issue a license unless
18 he or she shall determine that the applicant has made false
19 statements or representations in such application, or is
20 insolvent, or has conducted or is about to conduct his
21 business in a fraudulent manner, or is not duly authorized to
22 transact business in this State. Such license shall be kept
23 conspicuously posted in the place of business of the
24 licensee. If, after notice and an opportunity to be heard, it
25 has been determined that a licensee has violated this Act
26 within the past 5 calendar years, or if a licensee does not
27 retain a corporate fiduciary, as defined in the Corporate
28 Fiduciary Act, to manage the funds in trust pursuant to this
29 Act, the Comptroller may require an additional bond or letter
30 of credit from the licensee from time to time in amounts
31 equal to one-tenth of such trust funds, which bond or letter
32 of credit shall run to the Comptroller for the use and
33 benefit of the beneficiaries of such trust funds.
34 The licensee shall keep accurate accounts, books and
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1 records in this State, at the principal place of business
2 identified in the licensee's license application or as
3 otherwise approved by the Comptroller in writing, of all
4 transactions, copies of all pre-need contracts, trust
5 agreements, and other agreements, dates and amounts of
6 payments made and accepted thereon, the names and addresses
7 of the contracting parties, the persons for whose benefit
8 such funds are accepted, and the names of the depositaries of
9 such funds. Each licensee shall maintain the documentation
10 for a period of 3 years after the licensee has fulfilled his
11 obligations under the pre-need contract. Additionally, for a
12 period not to exceed 6 months after the performance of all
13 terms in a pre-need sales contract, the licensee shall
14 maintain copies of the contract at the licensee branch
15 location where the contract was entered. If an insurance
16 policy or tax-deferred annuity is used to fund the pre-need
17 contract, the licensee under this Act shall keep and maintain
18 accurate accounts, books, and records in this State, at the
19 principal place of business identified in the licensee's
20 application or as otherwise approved by the Comptroller in
21 writing, of all insurance policies and tax-deferred annuities
22 used to fund the pre-need contract, the name and address of
23 insured, annuitant, and initial beneficiary, and the name and
24 address of the insurance company issuing the policy or
25 annuity. If a life insurance policy or tax-deferred annuity
26 is used to fund a pre-need contract, the licensee shall
27 notify the insurance company of the name of each pre-need
28 contract purchaser and the amount of each payment when the
29 pre-need contract, insurance policy or annuity is purchased.
30 The licensee shall make reports to the Comptroller
31 annually or at such other time as the Comptroller may
32 require, on forms furnished by the Comptroller. The licensee
33 shall file the annual report with the Comptroller within 75
34 days after the end of the licensee's fiscal year. The
-19- LRB9112160STsb
1 Comptroller shall for good cause shown grant an extension for
2 the filing of the annual report upon the written request of
3 the licensee. Such extension shall not exceed 60 days. If a
4 licensee fails to submit an annual report to the Comptroller
5 within the time specified in this Section, the Comptroller
6 shall impose upon the licensee a penalty of $5 for each and
7 every day the licensee remains delinquent in submitting the
8 annual report. Every application shall be accompanied by a
9 check or money order in the amount of $25 and every report
10 shall be accompanied by a check or money order in the amount
11 of $10 payable to: Comptroller, State of Illinois.
12 The licensee shall make all required books and records
13 pertaining to trust funds, insurance policies, or
14 tax-deferred annuities available to the Comptroller for
15 examination. The Comptroller, or a person designated by the
16 Comptroller who is trained to perform such examinations, may
17 at any time investigate the books, records and accounts of
18 the licensee with respect to trust funds, insurance policies,
19 or tax-deferred annuities and for that purpose may require
20 the attendance of and examine under oath all persons whose
21 testimony he may require. The licensee shall pay a fee for
22 such examination in accordance with a schedule established by
23 the Comptroller. The fee shall not exceed the cost of such
24 examination. For pre-need contracts funded by trust
25 arrangements, the cost of an initial examination shall be
26 borne by the licensee if it has $10,000 or more in trust
27 funds, otherwise, by the Comptroller. The charge made by the
28 Comptroller for an examination shall be based upon the total
29 amount of trust funds held by the licensee at the end of the
30 calendar or fiscal year for which the report is required by
31 this Act and shall be in accordance with the following
32 schedule:
33 Less than $10,000..................................no charge;
34 $10,000 or more but less than $50,000....................$10;
-20- LRB9112160STsb
1 $50,000 or more but less than $100,000...................$40;
2 $100,000 or more but less than $250,000..................$80;
3 $250,000 or more........................................$100.
4 The Comptroller may order additional audits or
5 examinations as he or she may deem necessary or advisable to
6 ensure the safety and stability of the trust funds and to
7 ensure compliance with this Act. These additional audits or
8 examinations shall only be made after good cause is
9 established by the Comptroller in the written order. The
10 grounds for ordering these additional audits or examinations
11 may include, but shall not be limited to:
12 (1) material and unverified changes or fluctuations
13 in trust balances or insurance or annuity policy amounts;
14 (2) the licensee changing trustees more than twice
15 in any 12-month period;
16 (3) any withdrawals or attempted withdrawals from
17 the trusts, insurance policies, or annuity contracts in
18 violation of this Act; or
19 (4) failure to maintain or produce documentation
20 required by this Act for deposits into trust accounts,
21 trust investment activities, or life insurance or annuity
22 policies.
23 Prior to ordering an additional audit or examination, the
24 Comptroller shall request the licensee to respond and comment
25 upon the factors identified by the Comptroller as warranting
26 the subsequent examination or audit. The licensee shall have
27 30 days to provide a response to the Comptroller. If the
28 Comptroller decides to proceed with the additional
29 examination or audit, the licensee shall bear the full cost
30 of that examination or audit, up to a maximum of $7,500. The
31 Comptroller may elect to pay for the examination or audit and
32 receive reimbursement from the licensee. Payment of the
33 costs of the examination or audit by a licensee shall be a
34 condition of receiving, maintaining, or renewing a license
-21- LRB9112160STsb
1 under this Act. All moneys received by the Comptroller for
2 examination or audit fees shall be maintained in a separate
3 account to be known as the Comptroller's Administrative Fund.
4 This Fund, subject to appropriation by the General Assembly,
5 may be utilized by the Comptroller for enforcing this Act and
6 other purposes that may be authorized by law.
7 For pre-need contracts funded by life insurance or a
8 tax-deferred annuity, the cost of an examination shall be
9 borne by the licensee if it has received $10,000 or more in
10 premiums during the preceding calendar year. The fee schedule
11 for such examination shall be established in rules
12 promulgated by the Comptroller. In the event such
13 investigation or other information received by the
14 Comptroller discloses a substantial violation of the
15 requirements of this Act, the Comptroller shall revoke the
16 license of such person upon a hearing as provided in this
17 Act. Such licensee may terminate all further responsibility
18 for compliance with the requirements of this Act by
19 voluntarily surrendering the license to the Comptroller, or
20 in the event of its loss, furnishing the Comptroller with a
21 sworn statement to that effect, which states the licensee's
22 intention to discontinue acceptance of funds received under
23 pre-need contracts. Such license or statement must be
24 accompanied by an affidavit that said licensee has lawfully
25 expended or refunded all funds received under pre-need
26 contracts, and that the licensee will accept no additional
27 sales proceeds. The Comptroller shall immediately cancel or
28 revoke said license.
29 (Source: P.A. 88-477; 89-615, eff. 8-9-96.)
30 (225 ILCS 45/3a) (from Ch. 111 1/2, par. 73.103a)
31 Sec. 3a. Denial, suspension, or revocation of license.
32 (a) The Comptroller may refuse to issue or may suspend
33 or revoke a license on any of the following grounds:
-22- LRB9112160STsb
1 (1) The applicant or licensee has made any
2 misrepresentations or false statements or concealed any
3 material fact.
4 (2) The applicant or licensee is insolvent.
5 (3) The applicant or licensee has been engaged in
6 business practices that work a fraud.
7 (4) The applicant or licensee has refused to give
8 pertinent data to the Comptroller.
9 (5) The applicant or licensee has failed to satisfy
10 any enforceable judgment or decree rendered by any court
11 of competent jurisdiction against the applicant.
12 (6) The applicant or licensee has conducted or is
13 about to conduct business in a fraudulent manner.
14 (7) The trustee advisors or the trust agreement is
15 not satisfactory to the Comptroller.
16 (8) The fidelity bond is not satisfactory to the
17 Comptroller.
18 (9) As to any individual, the individual has
19 conducted or is about to conduct any business on behalf
20 of the applicant in a fraudulent manner; has been
21 convicted of any felony or misdemeanor, an essential
22 element of which is fraud; has had a judgment rendered
23 against him or her based on fraud in any civil
24 litigation; has failed to satisfy any enforceable
25 judgment or decree rendered against him or her by any
26 court of competent jurisdiction; or has been convicted of
27 any felony or any theft-related offense.
28 (10) The applicant or licensee, including any
29 member, officer, or director thereof if the applicant or
30 licensee is a firm, partnership, association or
31 corporation and any shareholder holding more than 10% of
32 the corporate stock, has violated any provision of this
33 Act or any regulation, decision, order, or finding made
34 by the Comptroller under this Act.
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1 (11) The Comptroller finds any fact or condition
2 existing which, if it had existed at the time of the
3 original application for such license, would have
4 warranted the Comptroller in refusing the issuance of the
5 license.
6 (b) Before refusal to issue or renew and before
7 suspension or revocation of a license, the Comptroller shall
8 hold a hearing to determine whether the applicant or
9 licensee, hereinafter referred to as the respondent, is
10 entitled to hold such a license. At least 10 days prior to
11 the date set for such hearing, the Comptroller shall notify
12 the respondent in writing that on the date designated a
13 hearing will be held to determine his eligibility for a
14 license and that he may appear in person or by counsel. Such
15 written notice may be served on the respondent personally, or
16 by registered or certified mail sent to the respondent's
17 business address as shown in his latest notification to the
18 Comptroller. At the hearing, both the respondent and the
19 complainant shall be accorded ample opportunity to present in
20 person or by counsel such statements, testimony, evidence and
21 argument as may be pertinent to the charges or to any defense
22 thereto. The Comptroller may reasonably continue such
23 hearing from time to time.
24 The Comptroller may subpoena any person or persons in
25 this State and take testimony orally, by deposition or by
26 exhibit, in the same manner and with the same fees and
27 mileage allowances as prescribed in judicial proceedings in
28 civil cases.
29 Any authorized agent of the Comptroller may administer
30 oaths to witnesses at any hearing which the Comptroller is
31 authorized to conduct.
32 (Source: P.A. 84-839.)
33 (225 ILCS 45/3a-5 new)
-24- LRB9112160STsb
1 Section 3a-5. License requirements.
2 (a) Every license issued by the Comptroller shall state
3 the number of the license, the business name and address of
4 the licensee's principal place of business, each branch
5 location also operating under the license, and the licensee's
6 parent company, if any. The license shall be conspicuously
7 posted in each place of business operating under the license.
8 The Comptroller may issue such additional licenses as may be
9 necessary for licensee branch locations upon compliance with
10 the provisions of this Act governing an original issuance of
11 a license for each new license.
12 (b) Individual salespersons representing a licensee
13 shall not be required to obtain licenses in their individual
14 capacities, but must acknowledge, by affidavit, that they
15 have been educated in the provisions of this Act and
16 understand the penalties for failure to comply. The licensee
17 shall retain copies of the affidavits of its sellers for its
18 records and shall make the affidavits available to the
19 Comptroller for examination upon request.
20 (c) The licensee shall be responsible for the activities
21 of any person representing the licensee in selling or
22 offering a pre-need contract for sale.
23 (d) Any person not selling on behalf of a licensee shall
24 obtain its own license.
25 (e) No license shall be transferable or assignable
26 without the express written consent of the Comptroller. A
27 transfer of more than 50% of the ownership of any business
28 licensed hereunder shall be deemed to be an attempted
29 assignment of the license originally issued to the licensee
30 for which consent of the Comptroller shall be required.
31 (f) Every license issued hereunder shall remain in force
32 until it has been suspended, surrendered, or revoked in
33 accordance with this Act. The Comptroller, upon the request
34 of an interested person or on his own motion, may issue new
-25- LRB9112160STsb
1 licenses to a licensee whose license or licenses have been
2 revoked, if no factor or condition then exists which would
3 have warranted the Comptroller to originally refuse the
4 issuance of such license.
5 (225 ILCS 45/3e) (from Ch. 111 1/2, par. 73.103e)
6 Sec. 3e. Upon the revocation of or refusal to renew any
7 license, the licensee shall immediately surrender the license
8 or licenses and any branch office licenses to the
9 Comptroller. If the licensee fails to do so, the Comptroller
10 shall have the right to seize the same.
11 (Source: P.A. 84-839.)
12 (225 ILCS 45/3f)
13 Sec. 3f. Revocation of license.
14 (a) The Comptroller, upon determination that grounds
15 exist for the revocation or suspension of a license issued
16 under this Act, may revoke or suspend the license issued to a
17 particular branch office location with respect to which the
18 grounds for revocation or suspension may occur or exist or
19 the Comptroller may revoke or suspend as many of the licenses
20 issued to the licensee as may be determined appropriate by
21 the Comptroller.
22 (b) Whenever a license is revoked by the Comptroller, he
23 or she shall apply to the Circuit Court of the county wherein
24 the licensee is located for a receiver to administer the
25 trust funds of the licensee or to maintain the life insurance
26 policies and tax-deferred annuities held by the licensee
27 under a pre-need contract.
28 (Source: P.A. 88-477.)
29 (225 ILCS 45/4) (from Ch. 111 1/2, par. 73.104)
30 Sec. 4. Withdrawal of funds; revocability of contract.
31 (a) The amount or amounts so deposited into trust, with
-26- LRB9112160STsb
1 interest thereon, if any, shall not be withdrawn until the
2 death of the person or persons for whose funeral or burial
3 such funds were paid, unless sooner withdrawn and repaid to
4 the person who originally paid the money under or in
5 connection with the pre-need contract or to his or her legal
6 representative. The life insurance policies or tax-deferred
7 annuities shall not be surrendered until the death of the
8 person or persons for whose funeral or burial the policies or
9 annuities were purchased, unless sooner surrendered and
10 repaid to the owner of the policy purchased under or in
11 connection with the pre-need contract or to his or her legal
12 representative. If, however, the agreement or series of
13 agreements provides for forfeiture and retention of any or
14 all payments as and for liquidated damages as provided in
15 Section 6, then the trustee may withdraw the deposits. In
16 addition, nothing in this Section (i) prohibits the change of
17 depositary by the trustee and the transfer of trust funds
18 from one depositary to another or (ii) prohibits a contract
19 purchaser who is or may become eligible for public assistance
20 under any applicable federal or State law or local ordinance
21 including, but not limited to, eligibility under 24 C.F.R.,
22 Part 913 relating to family insurance under federal Housing
23 and Urban Development Policy from irrevocably waiving, in
24 writing, and renouncing the right to cancel a pre-need
25 contract for funeral services in an amount prescribed by rule
26 of the Illinois Department of Public Aid. No guaranteed price
27 pre-need funeral contract may prohibit a purchaser from
28 making a contract irrevocable to the extent that federal law
29 or regulations require that such a contract be irrevocable
30 for purposes of the purchaser's eligibility for Supplemental
31 Security Income benefits, Medicaid, or another public
32 assistance program, as permitted under federal law.
33 (b) If for any reason a seller or provider who has
34 engaged in pre-need sales has refused, cannot, or does not
-27- LRB9112160STsb
1 comply with the terms of the pre-need contract within a
2 reasonable time after he or she is required to do so, the
3 purchaser or his or her heirs or assigns or duly authorized
4 representative shall have the right to a refund of an amount
5 equal to the sales proceeds price paid for undelivered
6 merchandise or services plus otherwise earned undistributed
7 interest amounts held in trust attributable to the contract,
8 within 30 days of the filing of a sworn affidavit with the
9 trustee setting forth the existence of the contract and the
10 fact of breach. A copy of this affidavit shall be filed with
11 the Comptroller and the provider seller. In the event a
12 provider seller is prevented from performing by strike,
13 shortage of materials, civil disorder, natural disaster, or
14 any like occurrence beyond the control of the seller or
15 provider, the seller or provider's time for performance shall
16 be extended by the length of the delay. Nothing in this
17 Section shall relieve the seller or provider from any
18 liability for non-performance of his or her obligations under
19 the pre-need contract.
20 (c) At any time prior to the performance of a service or
21 delivery of merchandise under a pre-need contract After final
22 payment on a pre-need contract, any purchaser, its legal
23 representative, or all beneficiaries under the pre-need
24 contract may, upon signed written demand to a provider
25 seller, demand that the pre-need contract with the provider
26 seller be terminated. The provider seller shall, within 30
27 days, initiate a refund to the purchaser, its legal
28 representative, or all beneficiaries under the pre-need
29 contract in an amount as follows:
30 (1) 100% of the sales proceeds, including
31 undistributed interest earned thereon, if the purchaser,
32 its legal representative, or all beneficiaries demand
33 termination of the pre-need contract within 30 days of
34 the date of entry into the pre-need contract;
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1 (2) 90% of the sales proceeds, including all
2 undistributed interest earned thereon, if the purchaser,
3 its legal representative, or all beneficiaries demand
4 termination of the pre-need contract after 30 days of the
5 date of entry into the pre-need contract; or
6 (3) the cash surrender value of a life insurance
7 policy or tax deferred annuity. of the entire amount held
8 in trust attributable to undelivered merchandise and
9 unperformed services, including otherwise earned
10 undistributed interest earned thereon or the cash
11 surrender value of a life insurance policy or
12 tax-deferred annuity.
13 If no funeral merchandise or services are provided or if
14 the funeral is conducted by another person, the seller may
15 keep no more than 10% of the payments made under the pre-need
16 contract or $300, whichever sum is less. The remainder of
17 the trust funds or insurance or annuity proceeds shall be
18 forwarded to the legal heirs of the deceased or as determined
19 by probate action.
20 (d) The placement and retention of all or a portion of a
21 casket, combination casket-vault, urn, or outer burial
22 container comprised of materials which are designed to
23 withstand prolonged storage in the manner set forth in this
24 paragraph without adversely affecting the structural
25 integrity or aesthetic characteristics of such merchandise in
26 a specific burial space in which the person or persons for
27 whose funeral or burial the merchandise was intended has a
28 right of interment, or the placement of the merchandise in a
29 specific mausoleum crypt or lawn crypt in which such person
30 has a right of entombment, or the placement of the
31 merchandise in a specific niche in which such person has a
32 right of inurnment, or delivery to such person and retention
33 by such person until the time of need shall constitute actual
34 delivery to the person who originally paid the money under or
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1 in connection with said agreement or series of agreements.
2 Actual delivery shall eliminate, from and after the date of
3 actual delivery, any requirement under this Act to place or
4 retain in trust any funds received for the sale of such
5 merchandise. The delivery, prior to the time of need, of any
6 funeral or burial merchandise in any manner other than
7 authorized by this Section shall not constitute actual
8 delivery and shall not eliminate any requirement under this
9 Act to place or retain in trust any funds received for the
10 sale of such merchandise.
11 (Source: P.A. 87-1091; 88-477.)
12 (225 ILCS 45/4a)
13 Sec. 4a. Investment of funds.
14 (a) A trustee shall, with respect to the investment of
15 trust funds, exercise the judgment and care under the
16 circumstances then prevailing that persons of prudence,
17 discretion, and intelligence exercise in the management of
18 their own affairs, not in regard to speculation, but in
19 regard to the permanent disposition of their funds,
20 considering the probable income as well as the probable
21 safety of their capital.
22 (b) The trust shall be a single-purpose trust fund. In
23 the event of the provider's seller's bankruptcy, insolvency
24 or assignment for the benefit of creditors, or an adverse
25 judgment, the trust funds shall not be available to any
26 creditor as assets of the provider seller or to pay any
27 expenses of any bankruptcy or similar proceeding, but shall
28 be distributed to the purchasers or managed for their benefit
29 by the trustee holding the funds. Except in an action by the
30 Comptroller to revoke a license issued pursuant to this Act
31 and for creation of a receivership as provided in this Act,
32 the trust shall not be subject to judgment, execution,
33 garnishment, attachment, or other seizure by process in
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1 bankruptcy or otherwise, nor to sale, pledge, mortgage, or
2 other alienation, and shall not be assignable except as
3 approved by the Comptroller. The changes made by this
4 amendatory Act of the 91st General Assembly are intended to
5 clarify existing law regarding the inability of licensees to
6 pledge the trust.
7 (c) Because it is not known at the time of deposit or at
8 the time that income is earned on the trust account to whom
9 the principal and the accumulated earnings will be
10 distributed for the purpose of determining the Illinois
11 income tax due on these trust funds, the principal and any
12 accrued earnings or losses related to each individual account
13 shall be held in suspense until the final determination is
14 made as to whom the account shall be paid. The beneficiary's
15 estate shall not be responsible for any funeral and burial
16 purchases listed in a pre-need contract if the pre-need
17 contract is entered into on a guaranteed price basis.
18 If a pre-need contract is not a guaranteed price
19 contract, then to the extent the proceeds of a non-guaranteed
20 price pre-need contract cover the funeral and burial expenses
21 for the beneficiary, no claim may be made against the estate
22 of the beneficiary. A claim may be made against the
23 beneficiary's estate if the charges for the funeral services
24 and merchandise at the time of use exceed the amount of the
25 amount in trust plus the percentage of the sale proceeds
26 initially retained by the provider seller or the face value
27 of the life insurance policy or tax-deferred annuity.
28 (d) Trust funds shall not be invested by the trustee in
29 life insurance policies or tax-deferred annuities unless the
30 following requirements are met:
31 (1) The company issuing the life insurance policies
32 or tax-deferred annuities is licensed by the Illinois
33 Department of Insurance and the insurance producer or
34 annuity seller is licensed to do business in the State of
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1 Illinois;
2 (2) Prior to the investment, the purchaser
3 approves, in writing, the investment in life insurance
4 policies or tax-deferred annuities;
5 (3) Prior to the investment, the purchaser is
6 notified by the seller in writing about the disclosures
7 required for all pre-need contracts under Section 1a-1 of
8 this Act, and the purchase of life insurance or a
9 tax-deferred annuity is subject to the requirements of
10 Section 2a of this Act;
11 (4) Prior to the investment, the trustee informs
12 the Comptroller that trust funds shall be removed from
13 the trust account to purchase life insurance or a
14 tax-deferred annuity upon the written consent of the
15 purchaser;
16 (5) The purchaser retains the right to refund
17 provided for in this Act, unless the pre-need contract is
18 sold on an irrevocable basis as provided in Section 4 of
19 this Act; and
20 (6) Notice must be given in writing that the cash
21 surrender value of a life insurance policy may be less
22 than the amount provided for by the refund provisions of
23 the trust account.
24 (Source: P.A. 91-7, eff. 6-1-99.)
25 (225 ILCS 45/7.2)
26 Sec. 7.2. Investigation of unlawful practices. If it
27 appears to the Comptroller that a person has engaged in, is
28 engaging in, or is about to engage in any practice in
29 violation of declared to be unlawful by this Act, the
30 Comptroller may:
31 (1) require that person to file on such terms as
32 the Comptroller prescribes a statement or report in
33 writing, under oath or otherwise, containing all
-32- LRB9112160STsb
1 information the Comptroller may consider necessary to
2 ascertain whether a licensee is in compliance with this
3 Act, or whether an unlicensed person is engaging in
4 activities for which a license is required;
5 (2) examine under oath any person in connection
6 with the books and records pertaining to or having an
7 impact upon trust funds, insurance policies, or tax
8 deferred annuities required or allowed to be maintained
9 pursuant to this Act;
10 (3) examine any books and records of the licensee,
11 trustee, or investment advisor that the Comptroller may
12 consider necessary to ascertain compliance with this Act;
13 and
14 (4) require the production of a copy of any record,
15 book, document, account, or paper that is produced in
16 accordance with this Act and retain it in his or her
17 possession until the completion of all proceedings in
18 connection with which it is produced.
19 (Source: P.A. 89-615, eff. 8-9-96.)
20 (225 ILCS 45/8) (from Ch. 111 1/2, par. 73.108)
21 Sec. 8. Any person who intentionally violates any
22 provision of this Act is guilty of a Class 4 felony.
23 If any person intentionally violates this Act or fails or
24 refuses to comply with any order of the Comptroller or any
25 part of an order that has become final to the person and is
26 still in effect, the Comptroller may, after notice and
27 hearing at which it is determined that a violation of this
28 Act or the order has been committed, further order that the
29 person shall forfeit and pay to the State of Illinois a sum
30 not to exceed $10,000 $5,000 for each violation. This
31 liability shall be enforced in an action brought in any court
32 of competent jurisdiction by the Comptroller in the name of
33 the People of the State of Illinois.
-33- LRB9112160STsb
1 Any person that violates any provision of this Act or
2 fails to comply with an order of the Comptroller shall be
3 liable for a civil penalty not to exceed $10,000 for the
4 violation and an additional civil penalty of not to exceed
5 $1,000 for each day during which the violation continues. The
6 civil penalties provided for in this Section may be recovered
7 in a civil action. These penalties are in addition to any
8 penalties that may be issued under the Consumer Fraud and
9 Deceptive Business Practices Act for knowing violations of
10 this Act.
11 Any violation of this Act for which a fine may be
12 assessed shall be established by rules promulgated by the
13 Comptroller.
14 In addition to the other penalties and remedies provided
15 in this Act, the Comptroller may bring a civil action in the
16 county of residence of the licensee or any person accepting
17 trust funds to enjoin any violation or threatened violation
18 of this Act.
19 The powers vested in the Comptroller by this Section are
20 in addition to any and all other powers and remedies vested
21 in the Comptroller by law.
22 (Source: P.A. 88-477.)
23 (225 ILCS 45/8.1 new)
24 Sec. 8.1. Sales; liability of purchaser for shortage. In
25 the event of a sale or transfer of all or substantially all
26 of the assets of the licensee, the sale or transfer of the
27 controlling interest of the corporate stock of the licensee
28 if the licensee is a corporation, the sale or transfer of the
29 controlling interest of the partnership if the licensee is a
30 partnership, or the sale of the licensee pursuant to
31 foreclosure proceedings, the purchaser is liable for any
32 shortages existing before or after the sale in the trust
33 funds required to be maintained in a trust pursuant to this
-34- LRB9112160STsb
1 Act and shall honor all pre-need contracts and trusts entered
2 into by the licensee. Any shortages existing in the trust
3 funds constitute a prior lien in favor of the trust for the
4 total value of the shortages, and notice of that lien shall
5 be provided in all sales instruments.
6 In the event of a sale or transfer of all or
7 substantially all of the assets of the licensee, the sale or
8 transfer of the controlling interest of the corporate stock
9 of the licensee if the licensee is a corporation, or the sale
10 or transfer of the controlling interest of the partnership if
11 the licensee is a partnership, the licensee shall, at least
12 21 days prior to the sale or transfer, notify the
13 Comptroller, in writing, of the pending date of sale or
14 transfer so as to permit the Comptroller to audit the books
15 and records of the licensee. The audit must be commenced
16 within 10 business days of the receipt of the notification
17 and completed within the 21-day notification period unless
18 the Comptroller notifies the licensee during that period that
19 there is a basis for determining a deficiency which will
20 require additional time to finalize. The sale or transfer
21 may not be completed by the licensee unless and until:
22 (i) the Comptroller has completed the audit of the
23 licensee's books and records;
24 (ii) any delinquency existing in the trust funds has
25 been paid by the licensee, or arrangements satisfactory
26 to the Comptroller have been made by the licensee on the
27 sale or transfer for the payment of any delinquency; and
28 (iii) the Comptroller issues a license upon
29 application of the new owner, which license must be
30 applied for within 30 days of the anticipated date of the
31 sale or transfer, subject to the payment of any
32 delinquencies, if any, as stated in item (ii).
33 For purposes of this Section, a person, firm,
34 corporation, partnership, or institution that acquires the
-35- LRB9112160STsb
1 licensee through a real estate foreclosure shall be subject
2 to the provisions of this Section. The sale or transfer of
3 the controlling interest of a licensee to an immediate family
4 member is not subject to the license application process
5 required in item (iii) of this Section.
6 Section 35. The Cemetery Care Act is amended by changing
7 Sections 2a, 4, 8, 9, 10, 11, 11.1, 13, 15b, and 24 as
8 follows:
9 (760 ILCS 100/2a) (from Ch. 21, par. 64.2a)
10 Sec. 2a. Powers and duties of cemetery authorities;
11 cemetery property maintained by cemetery care funds.
12 (a) With respect to cemetery property maintained by
13 cemetery care funds, a cemetery authority is shall be
14 responsible for the performance of:
15 (1) (a) the care and maintenance of the cemetery
16 property it owns; and
17 (2) (b) the opening and closing of all graves,
18 crypts, or niches for human remains in any cemetery
19 property it owns.
20 (b) A cemetery authority owning, operating, controlling
21 or managing a privately operated cemetery shall provide
22 reasonable maintenance of the cemetery and of the lots,
23 graves, crypts, niches, family mausoleums, memorials, and
24 markers in the cemetery. Reasonable maintenance includes,
25 but is not limited to:
26 (1) the laying of seed, sod, or other suitable
27 ground cover as soon as practicable following an
28 interment given the weather conditions, climate and
29 season;
30 (2) the cutting of the lawn throughout the cemetery
31 at reasonable intervals to prevent an overgrowth of grass
32 and weeds;
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1 (3) the trimming of shrubs to prevent excessive
2 overgrowth;
3 (4) the trimming of trees to remove dead limbs;
4 (5) keeping in repair the drains, water lines,
5 roads, buildings, fences, and other structures; and
6 (6) keeping the cemetery premises free of trash and
7 debris.
8 Reasonable maintenance by the cemetery authority shall
9 not preclude the exercise of lawful rights by an owner of an
10 interment, inurnment, or entombment right, or the owner's
11 family and heirs, in accordance with the reasonable rules and
12 regulations of the cemetery or other agreement of the
13 cemetery authority.
14 (c) A cemetery authority owning, operating, controlling
15 or managing a privately operated cemetery shall conspicuously
16 post in each of its offices its rules, regulations, charges,
17 and prices of lots, plots or parts thereof.
18 (d) A cemetery authority owning, operating, controlling
19 or managing a privately operated cemetery shall, from time to
20 time as land in its cemetery may be required for burial
21 purposes, survey and subdivide those lands and make and file
22 in its office a map thereof delineating the lots or plots,
23 avenues, paths, alleys, and walks and their respective
24 designations. The map shall be open to public inspection.
25 The cemetery authority shall make available a true copy of
26 the map upon written request and payment of reasonable
27 photocopy fees. Any unsold lots, plots or parts thereof, in
28 which there are not human remains, may be resurveyed and
29 altered in shape or size, and properly designated on such
30 map. Nothing contained in this subsection, however, shall
31 prevent the cemetery authority from enlarging a lot by
32 selling to the owner thereof the excess space next to such
33 lot and permitting interments therein, provided reasonable
34 access to such lot and to adjoining lots is not thereby
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1 eliminated.
2 (e) A cemetery authority owning, operating, controlling,
3 or managing a privately operated cemetery shall keep a record
4 of every interment, entombment, and inurnment in the
5 cemetery. The record shall include the deceased's name, age,
6 and date of burial, when these particulars can be
7 conveniently obtained, and the lot, plot, or section where
8 the human remains are interred, entombed, or inurned. The
9 record shall be open to public inspection. The cemetery
10 authority shall make available a true copy of the record upon
11 written request and payment of reasonable copy costs.
12 (f) A cemetery authority owning, operating, controlling,
13 or managing a privately operated cemetery shall provide
14 access to the cemetery under the cemetery authority's
15 reasonable rules and regulations.
16 (Source: P.A. 87-747.)
17 (760 ILCS 100/4) (from Ch. 21, par. 64.4)
18 Sec. 4. Care funds; deposits; investments. Whenever a
19 cemetery authority owning, operating, controlling or managing
20 a privately operated cemetery accepts care funds, either in
21 connection with the sale or giving away at an imputed value
22 of an interment right, entombment right or inurnment right,
23 or in pursuance of a contract, or whenever, as a condition
24 precedent to the purchase or acceptance of an interment
25 right, entombment right or inurnment right, such cemetery
26 authority requires the establishment of a care fund or a
27 deposit in an already existing care fund, then such cemetery
28 authority shall execute and deliver to the person from whom
29 received an instrument in writing which shall specifically
30 state: (a) the nature and extent of the care to be furnished,
31 and (b) that such care shall be furnished only in so far as
32 the net income derived from the amount deposited in trust
33 will permit (the income from the amount so deposited, less
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1 necessary expenditures of administering the trust, shall be
2 deemed the net income), and (c) that not less than the
3 following amounts will be set aside and deposited in trust:
4 1. For interment rights, $1 per square foot of the
5 space sold or 15% of the sales price or imputed value,
6 whichever is the greater, with a minimum of $25 for each
7 individual interment right.
8 2. For entombment rights, not less than 10% of the
9 sales price or imputed value with a minimum of $25 for
10 each individual entombment right.
11 3. For inurnment rights, not less than 10% of the
12 sales price or imputed value with a minimum of $15 for
13 each individual inurnment right.
14 4. For any transfer of interment rights, entombment
15 rights, or inurnment rights recorded in the records of
16 the cemetery authority, excepting only transfers between
17 members of the immediate family of the transferor, a
18 minimum of $25 for each such right transferred. For the
19 purposes of this paragraph "immediate family of the
20 transferor" means the spouse, parents, grandparents,
21 children, grandchildren, and siblings of the transferor.
22 5. Upon an interment, entombment, or inurnment in a
23 grave, crypt, or niche in which rights of interment,
24 entombment, or inurnment were originally acquired from a
25 cemetery authority prior to January 1, 1948, a minimum of
26 $25 for each such right exercised.
27 6. For the special care of any lot, grave, crypt,
28 or niche or of a family mausoleum, memorial, marker, or
29 monument, the full amount received.
30 Such setting aside and deposit shall be made by such
31 cemetery authority not later than 30 days after the close of
32 the month in which the cemetery authority gave away for an
33 imputed value or received a the final payment on the purchase
34 price of interment rights, entombment rights, or inurnment
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1 rights, or received a the final payment for the general or
2 special care of a lot, grave, crypt or niche or of a family
3 mausoleum, memorial, marker or monument. If a sale that would
4 require a deposit to the care fund is made on an installment
5 basis, the cemetery authority shall deposit to the care fund
6 each installment payment within 30 days of the close of the
7 month in which the cemetery authority received the payment
8 until the amount due the care fund has been deposited.
9 Deposits to the care funds; and such amounts shall be held by
10 the trustee of the care funds of such cemetery authority in
11 trust in perpetuity for the specific purposes stated in said
12 written instrument. For all care funds received by a cemetery
13 authority, except for care funds received by a cemetery
14 authority pursuant to a specific gift, grant, contribution,
15 payment, legacy, or contract that are subject to investment
16 restrictions more restrictive than the investment provisions
17 set forth in this Act, and except for care funds otherwise
18 subject to a trust agreement executed by a person or persons
19 responsible for transferring the specific gift, grant,
20 contribution, payment, or legacy to the cemetery authority
21 that contains investment restrictions more restrictive than
22 the investment provisions set forth in this Act, the cemetery
23 authority may, without the necessity of having to obtain
24 prior approval from any court in this State, designate a new
25 trustee in accordance with this Act and invest the care funds
26 in accordance with this Section, notwithstanding any contrary
27 limitation contained in the trust agreement.
28 Any such cemetery authority engaged in selling or giving
29 away at an imputed value interment rights, entombment rights
30 or inurnment rights, in conjunction with the selling or
31 giving away at an imputed value any other merchandise or
32 services not covered by this Act, shall be prohibited from
33 increasing the sales price or imputed value of those items
34 not requiring a care fund deposit under this Act with the
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1 purpose of allocating a lesser sales price or imputed value
2 to items that require a care fund deposit.
3 In the event any sale that would require a deposit to
4 such cemetery authority's care fund is made by a cemetery
5 authority on an installment basis, and the installment
6 contract is factored, discounted, or sold to a third party,
7 the cemetery authority shall deposit the amount due to the
8 care fund within 30 days after the close of the month in
9 which the installment contract was factored, discounted, or
10 sold. If, subsequent to such deposit, the purchaser defaults
11 on the contract such that no care fund deposit on that
12 contract would have been required, the cemetery authority may
13 apply the amount deposited as a credit against future
14 required deposits.
15 The trust authorized by this Section shall be a single
16 purpose trust fund. In the event of the seller's bankruptcy,
17 insolvency, or assignment for the benefit of creditors, or an
18 adverse judgment, the trust funds shall not be available to
19 any creditor as assets of the cemetery authority or to pay
20 any expenses of any bankruptcy or similar proceeding, but
21 shall be retained intact to provide for the future
22 maintenance of the cemetery. Except in an action by the
23 Comptroller to revoke a license issued pursuant to this Act
24 and for creation of a receivership as provided in this Act,
25 the trust shall not be subject to judgment, execution,
26 garnishment, attachment, or other seizure by process in
27 bankruptcy or otherwise, nor to sale, pledge, mortgage, or
28 other alienation, and shall not be assignable except as
29 approved by the Comptroller. The changes made by this
30 amendatory Act of the 91st General Assembly are intended to
31 clarify existing law regarding the inability of licensees to
32 pledge the trust.
33 If, subsequent to a deposit of care funds required under
34 this Section, the purchaser defaults on the contract such
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1 that no care fund deposits on that contract would have been
2 required, the cemetery authority may apply the amount
3 deposited as a credit against future required deposits.
4 (Source: P.A. 91-7, eff. 6-1-99.)
5 (760 ILCS 100/8) (from Ch. 21, par. 64.8)
6 Sec. 8. Every cemetery authority shall register with the
7 Comptroller upon forms furnished by him or her. Such
8 registration statement shall state whether the cemetery
9 authority claims that the cemetery owned, operated,
10 controlled, or managed by it is a fraternal cemetery,
11 municipal, State, or federal cemetery, or religious cemetery,
12 or a family burying ground, as the case may be, as defined in
13 Section 2 of this Act, and shall state the date of
14 incorporation if a corporation and whether incorporated under
15 general or private act of the legislature. Such registration
16 statement shall be accompanied by a fee of $5. Such fee shall
17 be paid to the Comptroller and no registration statement
18 shall be accepted by him without the payment of such fee.
19 Every cemetery authority that is not required to file an
20 annual report under this Act shall bear the responsibility of
21 informing the Comptroller whenever a change takes place
22 regarding status of cemetery, name of contact person, and
23 that person's address and telephone number.
24 Upon receipt of a registration statement, if a claim is
25 made that a cemetery is a fraternal cemetery, municipal
26 cemetery, or religious cemetery, or a family burying ground,
27 as the case may be, as defined in Section 2 of this Act, and
28 the Comptroller shall determine that such cemetery is not a
29 fraternal cemetery, a municipal cemetery, or a religious
30 cemetery, or a family burying ground, as the case may be, as
31 defined in Section 2 of this Act, the Comptroller shall
32 notify the cemetery authority making the claim of such
33 determination; provided, however, that no such claim shall be
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1 denied until the cemetery authority making such claim has had
2 at least 10 days' notice of a hearing thereon and an
3 opportunity to be heard. When any such claim is denied, the
4 Comptroller shall within 20 days thereafter prepare and keep
5 on file in his office the transcript of the evidence taken
6 and a written order or decision of denial of such claim and
7 shall send by United States mail a copy of such order or
8 decision of denial to the cemetery authority making such
9 claim within 5 days after the filing in his office of such
10 order, finding or decision. A review of any such order,
11 finding or decision may be had as provided in the
12 Administrative Review Law, as now or hereafter amended.
13 Where no claim is made that a cemetery is a fraternal
14 cemetery, municipal cemetery or religious cemetery or family
15 burying ground, as the case may be, as defined in Section 2
16 of this Act, the registration statement shall be accompanied
17 by a fidelity bond in the amount required by Section 9 of
18 this Act. Upon receipt of such application, statement and
19 bond, the Comptroller shall issue a license to accept the
20 care funds authorized by the provisions of Section 3 of this
21 Act to each cemetery authority owning, operating, controlling
22 or managing a privately operated cemetery. However, the
23 Comptroller shall issue a license without the filing of a
24 bond where the filing of a bond is excused by Section 18 of
25 this Act.
26 The license issued by the Comptroller shall remain in
27 full force and effect until it is surrendered by the licensee
28 or revoked by the Comptroller as hereinafter provided.
29 (Source: P.A. 88-477.)
30 (760 ILCS 100/9) (from Ch. 21, par. 64.9)
31 Sec. 9. Application for license.
32 (a) Prior to the acceptance of care funds authorized by
33 Section 3 of this Act or the sale or transfer of the
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1 controlling interest of a licensed cemetery authority, a
2 cemetery authority owning, operating, controlling, or
3 managing a privately operated cemetery shall make application
4 to the Comptroller for a license to hold the funds. Whenever
5 a cemetery authority owning, operating, controlling or
6 managing a privately operated cemetery is newly organized and
7 such cemetery authority desires to be licensed to accept the
8 care funds authorized by Section 3 of this Act, or whenever
9 there is a sale or transfer of the controlling interest of a
10 licensed cemetery authority, it shall make application for
11 such license.
12 In the case of a sale or transfer of the controlling
13 interest of the cemetery authority, the prior license shall
14 remain in effect until the Comptroller issues a new license
15 to the newly-controlled cemetery authority as provided in
16 Section 15b. Upon issuance of the new license, the prior
17 license shall be deemed surrendered if the licensee has
18 agreed to the sale and transfer and has consented to the
19 surrender of the license. A sale or transfer of the
20 controlling interest of a cemetery authority to an immediate
21 family member is not considered a transfer of the controlling
22 interest for purposes of this Section.
23 (b) Applications for license shall be filed with the
24 Comptroller. Applications shall be in writing under oath,
25 signed by the applicant, and in the form furnished by the
26 Comptroller. The form furnished by the Comptroller shall
27 enable a cemetery authority to apply for license of multiple
28 cemetery locations within a single license application. A
29 check or money order in the amount of $25 per license seeking
30 to be issued under the application, payable to: Comptroller,
31 State of Illinois, shall be included. Each application shall
32 contain the following:
33 (1) the full name and address (both of residence
34 and of place of business) of the applicant, if an
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1 individual; of every member, if the applicant is a
2 partnership or association; of every officer, manager, or
3 director, if the applicant is a corporation, and of any
4 party owning 10% or more of the cemetery authority, and
5 the full name and address of the parent company, if any;
6 (2) a detailed statement of the applicant's assets
7 and liabilities;
8 (2.1) The name, address, and legal boundaries of
9 each cemetery for which the care funds shall be entrusted
10 and at which books, accounts, and records shall be
11 available for examination by the Comptroller as required
12 by Section 13 of this Act;
13 (3) as to the name of each individual person listed
14 under (1) above, a detailed statement of each person's
15 business experience for the 10 years immediately
16 preceding the application; the present and previous
17 connection, if any, of each person with any other
18 cemetery or cemetery authority; whether each person has
19 ever been convicted of any a felony or has ever been
20 convicted of any misdemeanor of which an essential
21 element is fraud or has been involved in any civil
22 litigation in which a judgment has been entered against
23 him or her based on fraud; whether each person is
24 currently a defendant in any lawsuit in which the
25 complaint against the person is based upon fraud; whether
26 such person has failed to satisfy any enforceable
27 judgment entered by a court of competent jurisdiction in
28 any civil proceedings against such individual; and
29 (4) the total amount in trust and now available
30 from sales of lots, graves, crypts or niches where part
31 of the sale price has been placed in trust; the amount of
32 money placed in the care funds of each applicant; the
33 amount set aside in care funds from the sale of lots,
34 graves, crypts and niches for the general care of the
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1 cemetery and the amount available for that purpose; the
2 amount received in trust by special agreement for special
3 care and the amount available for that purpose; the
4 amount of principal applicable to trust funds received by
5 the applicant; and.
6 (5) Any other information that the Comptroller may
7 reasonably require in order to determine the
8 qualifications of the applicant to be licensed under this
9 Act.
10 Such information shall be furnished whether the care
11 funds are held by the applicant as trustee or by an
12 independent trustee. If the funds are not held by the
13 applicant, the name of the independent trustee holding them
14 is also to be furnished by the applicant.
15 (c) Applications for license shall also be accompanied
16 by a fidelity bond issued by a bonding company or insurance
17 company authorized to do business in this State or by an
18 irrevocable, unconditional letter of credit issued by a bank
19 or trust company authorized to do business in the State of
20 Illinois, as approved by the State Comptroller, where such
21 care funds exceed the sum of $15,000. Such bond or letter of
22 credit shall run to the Comptroller and his or her successor
23 for the benefit of the care funds held by such cemetery
24 authority or by the trustee of the care funds of such
25 cemetery authority. Such bonds or letters of credit shall be
26 in an amount equal to 1/10 of such care funds. However, such
27 bond or letter of credit shall not be in an amount less than
28 $1,000; the first $15,000 of such care funds shall not be
29 considered in computing the amount of such bond or letter of
30 credit. No application shall be accepted by the Comptroller
31 unless accompanied by such bond or letter of credit.
32 Applications for license by newly organized cemetery
33 authorities after January 1, 1960 shall also be accompanied
34 by evidence of a minimum care fund deposit in an amount to be
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1 determined as follows: if the number of inhabitants, either
2 in the county in which the cemetery is to be located or in
3 the area included within a 10 mile radius from the cemetery
4 if the number of inhabitants therein is greater, is 25,000 or
5 less the deposit shall be $7,500; if the number of
6 inhabitants is 25,001 to 50,000, the deposit shall be
7 $10,000; if the number of inhabitants is 50,001 to 125,000,
8 the deposit shall be $15,000; if the number of inhabitants is
9 over 125,000, the deposit shall be $25,000.
10 After an amount equal to and in addition to the required
11 minimum care fund deposit has been deposited in trust, the
12 cemetery authority may withhold 50% of all future care funds
13 until it has recovered the amount of the minimum care fund
14 deposit.
15 (d) (Blank). The applicant shall have a permanent
16 address and any license issued pursuant to the application is
17 valid only at the address or at any new address approved by
18 the Comptroller.
19 (e) All bonds and bonding deposits made by any cemetery
20 authority may be returned to the cemetery authority or
21 cancelled as to care funds invested with an investment
22 company.
23 (Source: P.A. 89-615, eff. 8-9-96; 90-655, eff. 7-30-98.)
24 (760 ILCS 100/10) (from Ch. 21, par. 64.10)
25 Sec. 10. Upon receipt of such application for license,
26 the Comptroller shall issue a license to the applicant unless
27 the Comptroller determines that:
28 (a) The applicant has made any misrepresentations or
29 false statements or has concealed any essential or material
30 fact, or
31 (b) The applicant is insolvent; or
32 (c) The applicant is or has been using practices in the
33 conducting of the cemetery business that work or tend to work
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1 a fraud; or
2 (d) The applicant has refused to furnish or give
3 pertinent data to the Comptroller; or
4 (e) The applicant has failed to notify the Comptroller
5 with respect to any material facts required in the
6 application for license under the provisions of this Act; or
7 (f) The applicant has failed to satisfy any enforceable
8 judgment entered by the circuit court in any civil
9 proceedings against such applicant; or
10 (g) The applicant has conducted or is about to conduct
11 its business in a fraudulent manner; or
12 (h) The applicant or any As to the name of any
13 individual listed in the license application, such individual
14 has conducted or is about to conduct any business on behalf
15 of the applicant in a fraudulent manner; or has been
16 convicted of a felony or any misdemeanor of which an
17 essential element is fraud; or has been involved in any civil
18 litigation in which a judgment has been entered against him
19 or her based on fraud; or has failed to satisfy any
20 enforceable judgment entered by the circuit court in any
21 civil proceedings against such individual; or has been
22 convicted of any felony; or has been convicted of any
23 theft-related offense; or has failed to comply with the
24 requirements of this Act; or has demonstrated a pattern of
25 failing to open or close any graves, crypts, or niches for
26 human remains in the cemetery within a reasonable time frame;
27 or has demonstrated a pattern of placing human remains in a
28 final resting place other than that required under an
29 agreement with a consumer; or has demonstrated a pattern of
30 improperly failing to honor a contract with a consumer; or
31 (i) The applicant has ever had a license involving
32 cemeteries or funeral homes revoked, suspended, or refused to
33 be issued in Illinois or elsewhere.
34 If the Comptroller so determines, then he or she shall
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1 conduct a hearing to determine whether to deny the
2 application. However, no application shall be denied unless
3 the applicant has had at least 10 days' notice of a hearing
4 on the application and an opportunity to be heard thereon. If
5 the application is denied, the Comptroller shall within 20
6 days thereafter prepare and keep on file in his or her office
7 the transcript of the evidence taken and a written order of
8 denial thereof, which shall contain his or her findings with
9 respect thereto and the reasons supporting the denial, and
10 shall send by United States mail a copy of the written order
11 of denial to the applicant at the address set forth in the
12 application, within 5 days after the filing of such order. A
13 review of such decision may be had as provided in Section 20
14 of this Act.
15 The license issued by the Comptroller shall remain in
16 full force and effect until it is surrendered by the licensee
17 or revoked by the Comptroller as hereinafter provided.
18 (Source: P.A. 88-477.)
19 (760 ILCS 100/11) (from Ch. 21, par. 64.11)
20 Sec. 11. Issuance and display of license. A license
21 issued under this Act authorizes the cemetery authority to
22 accept care funds for the cemetery identified in the license.
23 If a license application seeks licensure to accept care funds
24 on behalf of more than one cemetery location, the
25 Comptroller, upon approval of the license application, shall
26 issue to the cemetery authority a separate license for each
27 cemetery location indicated on the application. Each license
28 issued by the Comptroller under this Act is independent of
29 any other license that may be issued to a cemetery authority
30 under a single license application.
31 Every license issued by the Comptroller shall state the
32 number of the license and the address at which the business
33 is to be conducted. Such license shall be kept conspicuously
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1 posted in the place of business of the licensee and shall not
2 be transferable or assignable.
3 No more than one place of business shall be maintained
4 under the same license, but the Comptroller may issue more
5 than one license to the same licensee upon compliance with
6 the provisions of this Act governing an original issuance of
7 a license, for each new license.
8 Whenever a licensee shall wish to change the name as
9 originally set forth in his license, he shall give written
10 notice thereof to the Comptroller together with the reasons
11 for the change and if the change is approved by the
12 Comptroller he shall issue a new license.
13 A license issued by the Comptroller shall remain in full
14 force and effect until it is surrendered by the licensee or
15 suspended or revoked by the Comptroller as provided in this
16 Act.
17 (Source: P.A. 78-592.)
18 (760 ILCS 100/11.1)
19 Sec. 11.1. Investigation of unlawful practices. If it
20 appears to the Comptroller that a person has engaged in, is
21 engaging in, or is about to engage in any practice declared
22 to be unlawful by this Act, the Comptroller may:
23 (1) require that person to file on such terms as
24 the Comptroller prescribes a statement or report in
25 writing, under oath or otherwise, containing all
26 information the Comptroller may consider necessary to
27 ascertain whether a privately operated cemetery authority
28 licensee is in compliance with this Act, or whether an
29 unlicensed person is engaging in activities for which a
30 license is required;
31 (2) examine under oath any person in connection
32 with the books and records pertaining to or having an
33 impact upon the trust funds required to be maintained
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1 pursuant to this Act;
2 (2.1) examine under oath any person in connection
3 with the performance of duties required to be performed
4 under this Act;
5 (3) examine any books and records of the privately
6 operated cemetery authority, licensee, trustee, or
7 investment advisor that the Comptroller may consider
8 necessary to ascertain compliance with this Act; 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 (760 ILCS 100/13) (from Ch. 21, par. 64.13)
16 Sec. 13. Books, accounts, and records. Every licensee
17 and the trustee of the care funds of every licensee shall be
18 a resident of this State and shall keep in this State and use
19 in its business such books, accounts and records as will
20 enable the Comptroller to determine whether such licensee or
21 trustee is complying with the provisions of this Act and with
22 the rules, regulations and directions made by the Comptroller
23 hereunder. The licensee shall update books, accounts, and
24 records no less often than monthly. The licensee shall keep
25 the books, accounts, and records at the location identified
26 in the license issued by the Comptroller or as otherwise
27 agreed by the Comptroller in writing. The books, accounts,
28 and records shall be accessible for review upon demand of the
29 Comptroller.
30 (Source: P.A. 78-592.)
31 (760 ILCS 100/15b)
32 Sec. 15b. Sales; liability of purchaser for shortage.
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1 In the case of a sale of any privately operated cemetery
2 or any part thereof or of any related personal property by a
3 cemetery authority to a purchaser or pursuant to foreclosure
4 proceedings, except the sale of burial rights, services, or
5 merchandise to a person for his or her personal or family
6 burial or interment, the purchaser is liable for any
7 shortages existing before or after the sale in the care funds
8 required to be maintained in a trust pursuant to this Act and
9 shall honor all instruments issued under Section 4 for that
10 cemetery. Any shortages existing in the care funds constitute
11 a prior lien in favor of the trust for the total value of the
12 shortages, and notice of such lien shall be provided in all
13 sales instruments.
14 Prior to the sale of any portion of cemetery land in
15 which no human remains have been interred, the licensee shall
16 deposit $1 per square foot of the cemetery land that is
17 suitable for human interment into the cemetery authority's
18 care fund authorized under this Act.
19 In the event of a sale or transfer of all or
20 substantially all of the assets of the cemetery authority, a
21 sale or transfer of any cemetery land, including any portion
22 of cemetery land in which no human remains have been
23 interred, the sale or transfer of the controlling interest of
24 the corporate stock of the cemetery authority if the cemetery
25 authority is a corporation, or the sale or transfer of the
26 controlling of the partnership if the cemetery authority is a
27 partnership, the cemetery authority shall, at least 21 days
28 prior to the sale or transfer, notify the Comptroller, in
29 writing, of the pending date of sale or transfer so as to
30 permit the Comptroller to audit the books and records of the
31 cemetery authority. The audit must be commenced within 10 5
32 business days of the receipt of the notification and
33 completed within the 21 day notification period unless the
34 Comptroller notifies the cemetery authority during that
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1 period that there is a basis for determining a deficiency
2 which will require additional time to finalize. The sale or
3 transfer may not be completed by the cemetery authority
4 unless and until:
5 (a) The Comptroller has completed the audit of the
6 cemetery authority's books and records;
7 (b) Any delinquency existing in the care funds has
8 been paid by the cemetery authority, or arrangements
9 satisfactory to the Comptroller have been made by the
10 cemetery authority on the sale or transfer for the
11 payment of any delinquency;
12 (c) The Comptroller issues a new cemetery care
13 license upon application of the newly controlled
14 corporation or partnership, which license must be applied
15 for within 30 days of the anticipated date of the sale or
16 transfer, subject to the payment of any delinquencies, if
17 any, as stated in item (b) above.
18 For purposes of this Section, a person, firm,
19 corporation, partnership, or institution that acquires the
20 cemetery through a real estate foreclosure shall be subject
21 to the provisions of this Section. The sale or transfer of
22 the controlling interest of a cemetery authority to an
23 immediate family member is not subject to the license
24 application process required in item (c) of this Section.
25 (Source: P.A. 90-623, eff. 7-10-98.)
26 (760 ILCS 100/24) (from Ch. 21, par. 64.24)
27 Sec. 24. Penalties; civil action.
28 (a) Whoever intentionally violates any provision of this
29 Act except the provisions of Section 23 shall be guilty of a
30 Class 4 felony, and each day such provisions are violated
31 shall constitute a separate offense.
32 (b) If any person intentionally violates this Act or
33 fails or refuses to comply with any order of the Comptroller
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1 or any part of an order that has become final to such person
2 and is still in effect, the Comptroller may, after notice and
3 hearing at which it is determined that a violation of this
4 Act or such order has been committed, further order that such
5 person shall forfeit and pay to the State of Illinois a sum
6 not to exceed $10,000 $5,000 for each violation. Such
7 liability shall be enforced in an action brought in any court
8 of competent jurisdiction by the Comptroller in the name of
9 the People of the State of Illinois.
10 (c) In addition to the other penalties and remedies
11 provided in this Act, the Comptroller may bring a civil
12 action in the county of residence of the licensee or any
13 person accepting care funds to enjoin any violation or
14 threatened violation of this Act.
15 (d) Any person that violates any provision of this Act
16 or fails to comply with an order of the Comptroller shall be
17 liable for a civil penalty of not to exceed $10,000 for the
18 violation and an additional civil penalty not to exceed
19 $1,000 for each day during which the violation continues. The
20 civil penalties provided for in this subsection may be
21 recovered in a civil action and are in addition to any
22 penalties that may be issued under the Consumer Fraud and
23 Deceptive Practices Act for knowing violations of this Act.
24 (e) The powers vested in the Comptroller by this Section
25 are additional to any and all other powers and remedies
26 vested in the Comptroller by law.
27 (Source: P.A. 86-1359.)
28 Section 40. The Cemetery Protection Act is amended by
29 changing Section 1 as follows:
30 (765 ILCS 835/1) (from Ch. 21, par. 15)
31 Sec. 1. (a) Any person who acts without proper legal
32 authority and who willfully and knowingly destroys or damages
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1 the remains of a deceased human being or who desecrates human
2 remains is guilty of a Class 3 felony.
3 (a-5) Any person who acts without proper legal authority
4 and who willfully and knowingly removes any portion of the
5 remains of a deceased human being from a burial ground where
6 skeletal remains are buried or from a grave, crypt, vault,
7 mausoleum, or other repository of human remains is guilty of
8 a Class 4 felony.
9 (b) Any person who acts without proper legal authority
10 and who willfully and knowingly:
11 (1) obliterates, vandalizes, or desecrates a burial
12 ground where skeletal remains are buried or a grave,
13 crypt, vault, mausoleum, or other repository of human
14 remains;
15 (2) obliterates, vandalizes, or desecrates a park
16 or other area clearly designated to preserve and
17 perpetuate the memory of a deceased person or group of
18 persons;
19 (3) obliterates, vandalizes, or desecrates plants,
20 trees, shrubs, or flowers located upon or around a
21 repository for human remains or within a human graveyard
22 or cemetery; or
23 (4) obliterates, vandalizes, or desecrates a fence,
24 rail, curb, or other structure of a similar nature
25 intended for the protection or for the ornamentation of
26 any tomb, monument, gravestone, or other structure of
27 like character;
28 is guilty of a Class A misdemeanor if the amount of the
29 damage is less than $500, a Class 4 felony if the amount of
30 the damage is at least $500 and less than $10,000, a Class 3
31 felony if the amount of the damage is at least $10,000 and
32 less than $100,000, or a Class 2 felony if the damage is
33 $100,000 or more and shall provide restitution to the
34 cemetery authority or property owner for the amount of any
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1 damage caused.
2 (b-5) Any person who acts without proper legal authority
3 and who willfully and knowingly defaces, vandalizes, injures,
4 or removes a gravestone or other memorial, monument, or
5 marker commemorating a deceased person or group of persons,
6 whether located within or outside of a recognized cemetery,
7 memorial park, or battlefield is guilty of a Class 4 felony
8 for damaging at least one but no more than 4 gravestones, a
9 Class 3 felony for damaging at least 5 but no more than 10
10 gravestones, or a Class 2 felony for damaging more than 10
11 gravestones and shall provide restitution to the cemetery
12 authority or property owner for the amount of any damage
13 caused.
14 (b-7) Any person who acts without proper legal authority
15 and who willfully and knowingly removes with the intent to
16 resell a gravestone or other memorial, monument, or marker
17 commemorating a deceased person or group of persons, whether
18 located within or outside a recognized cemetery, memorial
19 park, or battlefield, is guilty of a Class 2 felony.
20 (c) The provisions of this Section shall not apply to
21 the removal or unavoidable breakage or injury by a cemetery
22 authority of anything placed in or upon any portion of its
23 cemetery in violation of any of the rules and regulations of
24 the cemetery authority, nor to the removal of anything placed
25 in the cemetery by or with the consent of the cemetery
26 authority that in the judgment of the cemetery authority has
27 become wrecked, unsightly, or dilapidated.
28 (d) If an unemancipated minor is found guilty of
29 violating any of the provisions of subsection (b) of this
30 Section and is unable to provide restitution to the cemetery
31 authority or property owner, the parents or legal guardians
32 of that minor shall provide restitution to the cemetery
33 authority or property owner for the amount of any damage
34 caused, up to the total amount allowed under the Parental
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1 Responsibility Law.
2 (e) Any person who shall hunt, shoot or discharge any
3 gun, pistol or other missile, within the limits of any
4 cemetery, or shall cause any shot or missile to be discharged
5 into or over any portion thereof, or shall violate any of the
6 rules made and established by the board of directors of such
7 cemetery, for the protection or government thereof, is guilty
8 of a Class C misdemeanor.
9 (f) Any person who knowingly enters or knowingly remains
10 upon the premises of a public or private cemetery without
11 authorization during hours that the cemetery is posted as
12 closed to the public is guilty of a Class A misdemeanor.
13 (g) All fines when recovered, shall be paid over by the
14 court or officer receiving the same to the cemetery
15 association and be applied, as far as possible in repairing
16 the injury, if any, caused by such offense. Provided,
17 nothing contained in this Act shall deprive such cemetery
18 association, or the owner of any lot or monument from
19 maintaining an action for the recovery of damages caused by
20 any injury caused by a violation of the provisions of this
21 Act, or of the rules established by the board of directors of
22 such cemetery association. Nothing in this Section shall be
23 construed to prohibit the discharge of firearms loaded with
24 blank ammunition as part of any funeral, any memorial
25 observance or any other patriotic or military ceremony.
26 (Source: P.A. 89-36, eff. 1-1-96.)
27 Section 45. The Illinois Pre-Need Cemetery Sales Act is
28 amended by changing Sections 1, 4, 5, 6, 7, 8, 8a, 9, 12, 14,
29 15, 16, 17, 18, 19, 20, 22, and 23, and by adding Section
30 27.1, as follows:
31 (815 ILCS 390/1) (from Ch. 21, par. 201)
32 Sec. 1. Purpose. It is the purpose of this Act to
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1 assure adequate protection for those who contract through
2 pre-need contracts for the purchase of certain cemetery
3 merchandise and cemetery services and undeveloped interment,
4 entombment or inurnment space, when the provider seller may
5 delay delivery or performance more than 120 days following
6 initial payment on the account.
7 (Source: P.A. 85-805.)
8 (815 ILCS 390/4) (from Ch. 21, par. 204)
9 Sec. 4. Definitions. As used in this Act, the following
10 terms shall have the meaning specified:
11 (A) A. "Pre-need sales contract" or "Pre-need sales"
12 means any agreement or contract or series or combination of
13 agreements or contracts which have for a purpose the sale of
14 cemetery merchandise, cemetery services or undeveloped
15 interment, entombment or inurnment spaces where the terms of
16 such sale require payment or payments to be made at a
17 currently determinable time and where the merchandise,
18 services or completed spaces are to be provided more than 120
19 days following the initial payment on the account.
20 (B) B. "Delivery" occurs when:
21 (1) the merchandise is paid for and title and
22 physical possession of the merchandise is transferred to
23 the buyer; or
24 (2) the easement for burial rights in a completed
25 space is executed, delivered and transferred to the
26 buyer.; or
27 (2) title to the merchandise has been transferred
28 to the buyer and the merchandise has been paid for and is
29 in the possession of the seller who has placed it, until
30 needed, at the site of its ultimate use; or
31 (3) (A) the merchandise has been permanently
32 identified with the name of the buyer or the beneficiary
33 and delivered to a licensed and bonded warehouse and both
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1 title to the merchandise and a warehouse receipt have
2 been delivered to the purchaser or beneficiary; except
3 that in the case of outer burial containers, the use of a
4 licensed and bonded warehouse as set forth in this
5 paragraph shall not constitute delivery for purposes of
6 this Act. Nothing herein shall prevent a seller from
7 perfecting a security interest in accordance with the
8 Uniform Commercial Code on any merchandise covered under
9 this Act.
10 (B) All warehouse facilities to which sellers
11 deliver merchandise pursuant to this Act shall:
12 (i) be either located in the State of Illinois
13 or qualify as a foreign warehouse facility as
14 defined herein;
15 (ii) submit to the Comptroller not less than
16 annually, by March 1 of each year, a report of all
17 cemetery merchandise stored by each licensee under
18 this Act which is in storage on the date of the
19 report;
20 (iii) permit the Comptroller or his designee
21 at any time to examine stored merchandise and to
22 examine any documents pertaining thereto;
23 (iv) submit evidence satisfactory to the
24 Comptroller that all merchandise stored by said
25 warehouse for licensees under this Act is insured
26 for casualty or other loss normally assumed by a
27 bailee for hire;
28 (v) demonstrate to the Comptroller that the
29 warehouse has procured and is maintaining a
30 performance bond in the form, content and amount
31 sufficient to unconditionally guarantee to the
32 purchaser or beneficiary the prompt shipment of the
33 cemetery merchandise.
34 (C) "Cemetery merchandise" means items of personal
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1 property normally sold by a cemetery authority not covered
2 under the Illinois Funeral or Burial Funds Act, including but
3 not limited to:
4 (1) memorials,
5 (2) markers,
6 (3) monuments,
7 (4) foundations, and
8 (5) outer burial containers.
9 (D) "Undeveloped interment, entombment or inurnment
10 spaces" or "undeveloped spaces" means any space to be used
11 for the reception of human remains that is not completely and
12 totally constructed at the time of initial payment therefor
13 in a:
14 (1) lawn crypt,
15 (2) mausoleum,
16 (3) garden crypt,
17 (4) columbarium, or
18 (5) cemetery section.
19 (E) "Cemetery services" means those services customarily
20 performed by cemetery or crematory personnel in connection
21 with the interment, entombment, inurnment or cremation of a
22 dead human body.
23 (F) "Cemetery section" means a grouping of spaces
24 intended to be developed simultaneously for the purpose of
25 interring human remains.
26 (G) "Columbarium" means an arrangement of niches that
27 may be an entire building, a complete room, a series of
28 special indoor alcoves, a bank along a corridor or part of an
29 outdoor garden setting that is constructed of permanent
30 material such as bronze, marble, brick, stone or concrete for
31 the inurnment of human remains.
32 (H) "Lawn crypt" means a permanent underground crypt
33 usually constructed of reinforced concrete or similar
34 material installed in multiple units for the interment of
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1 human remains.
2 (I) "Mausoleum" or "garden crypt" means a grouping of
3 spaces constructed of reinforced concrete or similar material
4 constructed or assembled above the ground for entombing human
5 remains.
6 (J) "Memorials, markers and monuments" means the object
7 usually comprised of a permanent material such as granite or
8 bronze used to identify and memorialize the deceased.
9 (K) "Foundations" means those items used to affix or
10 support a memorial or monument to the ground in connection
11 with the installation of a memorial, marker or monument.
12 (L) "Person" means an individual, corporation,
13 partnership, joint venture, business trust, voluntary
14 organization or any other form of entity.
15 (M) "Seller" means the provider's representative who
16 sells or offers any person selling or offering for sale
17 cemetery merchandise, cemetery services or undeveloped
18 interment, entombment, or inurnment spaces in accordance with
19 a pre-need sales contract on a pre-need basis.
20 (N) "Religious cemetery" means a cemetery owned,
21 operated, controlled or managed by any recognized church,
22 religious society, association or denomination or by any
23 cemetery authority or any corporation administering, or
24 through which is administered, the temporalities of any
25 recognized church, religious society, association or
26 denomination.
27 (O) "Municipal cemetery" means a cemetery owned,
28 operated, controlled or managed by any city, village,
29 incorporated town, township, county or other municipal
30 corporation, political subdivision, or instrumentality
31 thereof authorized by law to own, operate or manage a
32 cemetery.
33 (O-1) "Outer burial container" means a container made of
34 concrete, steel, wood, fiberglass, or similar material, used
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1 solely at the interment site, and designed and used
2 exclusively to surround or enclose a separate casket and to
3 support the earth above such casket, commonly known as a
4 burial vault, grave box, or grave liner, but not including a
5 lawn crypt.
6 (P) "Sales price" or "sales proceeds" means the gross
7 amount paid by a purchaser on a pre-need sales contract for
8 cemetery merchandise, cemetery services or undeveloped
9 interment, entombment or inurnment spaces including care
10 funds contributions required for entrustment under the,
11 excluding sales taxes, credit life insurance premiums,
12 finance charges and Cemetery Care Act contributions.
13 (Q) (Blank).
14 (R) "Provider" means a person who is responsible for
15 performing cemetery services or furnishing cemetery
16 merchandise, interment spaces, entombment spaces, or
17 inurnment spaces under a pre-need sales contract.
18 (S) "Purchase price" means sales proceeds.
19 (T) "Purchaser" or "buyer" means the person who
20 originally paid the money under or in connection with a
21 pre-need sales contract.
22 (U) "Parent company" means a corporation that has a
23 controlling interest in another corporation. "Foreign
24 warehouse facility" means a warehouse facility now or
25 hereafter located in any state or territory of the United
26 States, including the District of Columbia, other than the
27 State of Illinois.
28 A foreign warehouse facility shall be deemed to have
29 appointed the Comptroller to be its true and lawful attorney
30 upon whom may be served all legal process in any action or
31 proceeding against it relating to or growing out of this Act,
32 and the acceptance of the delivery of stored merchandise
33 under this Act shall be signification of its agreement that
34 any such process against it which is so served, shall be of
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1 the same legal force and validity as though served upon it
2 personally.
3 Service of such process shall be made by delivering to
4 and leaving with the Comptroller, or any agent having charge
5 of the Comptroller's Department of Cemetery and Burial
6 Trusts, a copy of such process and such service shall be
7 sufficient service upon such foreign warehouse facility if
8 notice of such service and a copy of the process are, within
9 10 days thereafter, sent by registered mail by the plaintiff
10 to the foreign warehouse facility at its principal office and
11 the plaintiff's affidavit of compliance herewith is appended
12 to the summons. The Comptroller shall keep a record of all
13 process served upon him under this Section and shall record
14 therein the time of such service.
15 (Source: P.A. 91-7, eff. 1-1-2000; 91-357, eff. 7-29-99;
16 revised 8-30-99.)
17 (815 ILCS 390/5) (from Ch. 21, par. 205)
18 Sec. 5. It is unlawful for any provider person directly
19 or indirectly doing business within this State through an
20 agent or otherwise to engage in pre-need sales without a
21 license issued by the Comptroller.
22 (Source: P.A. 84-239.)
23 (815 ILCS 390/6) (from Ch. 21, par. 206)
24 Sec. 6. License application.
25 (a) An application for a license shall be made in
26 writing to the Comptroller on forms prescribed by him or her,
27 signed by the applicant under oath verified by a notary
28 public appointed and commissioned under the Illinois Notary
29 Public Act, and shall be accompanied by a non-returnable $25
30 application fee. The Comptroller may prescribe abbreviated
31 application forms for persons holding a license under the
32 Cemetery Care Act. Applications (except abbreviated
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1 applications) must include at least the following
2 information:
3 (1) The full name and address, both residence and
4 business, of the applicant if the applicant is an
5 individual; of every member if applicant is a
6 partnership; of every member of the Board of Directors if
7 applicant is an association; and of every officer,
8 manager, director and shareholder holding more than 10%
9 5% of the corporate stock if applicant is a corporation;
10 (2) A detailed statement of applicant's assets and
11 liabilities;
12 (2.1) The name and address of the applicant's
13 principal place of business at which the books, accounts,
14 and records are available for examination by the
15 Comptroller as required by this Act;
16 (2.2) The name and address of the applicant's
17 branch locations at which pre-need sales will be
18 conducted and which will operate under the same license
19 number as the applicant's principal place of business;
20 (3) For each individual listed under (1) above, a
21 detailed statement of the individual's business
22 experience for the 10 years immediately preceding the
23 application; any present or prior connection between the
24 individual and any other person engaged in pre-need
25 sales; any felony or misdemeanor convictions for which
26 fraud was an essential element; any charges or complaints
27 lodged against the individual for which fraud was an
28 essential element and which resulted in civil or criminal
29 litigation; any failure of the individual to satisfy an
30 enforceable judgment entered against him or her based
31 upon fraud; and any other information requested by the
32 Comptroller relating to the past business practices of
33 the individual. Since the information required by this
34 paragraph may be confidential or contain proprietary
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1 information, this information shall not be available to
2 other licensees or the general public and shall be used
3 only for the lawful purposes of the Comptroller in
4 enforcing this Act;
5 (4) The name of the trustee and, if applicable, the
6 names of the advisors to the trustee, including a copy of
7 the proposed trust agreement under which the trust funds
8 are to be held as required by this Act;
9 (5) Where applicable, the name of the corporate
10 surety company providing the performance bond for the
11 construction of undeveloped spaces and a copy of the
12 bond; and
13 (6) Such other information as the Comptroller may
14 reasonably require in order to determine the
15 qualification of the applicant to be licensed under this
16 Act.
17 (b) Applications for license shall be accompanied by a
18 fidelity bond executed by the applicant and a security
19 company authorized to do business in this State in such
20 amount, not exceeding $10,000, as the Comptroller may
21 require. The Comptroller may require additional bond from
22 time to time in amounts equal to one-tenth of such trust
23 funds but not to exceed $100,000, which bond shall run to the
24 Comptroller for the use and benefit of the beneficiaries of
25 such trust funds. Such licensee may by written permit of the
26 Comptroller be authorized to operate without additional bond,
27 except such fidelity bond as may be required by the
28 Comptroller for the protection of the licensee against loss
29 by default by any of its employees engaged in the handling of
30 trust funds.
31 (c) Any application not acted upon within 90 days may be
32 deemed denied.
33 (Source: P.A. 88-477.)
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1 (815 ILCS 390/7) (from Ch. 21, par. 207)
2 Sec. 7. The Comptroller may refuse to issue or may
3 suspend or revoke a license on any of the following grounds:
4 (a) The applicant or licensee has made any
5 misrepresentations or false statements or concealed any
6 material fact;
7 (b) The applicant or licensee is insolvent;
8 (c) The applicant or licensee has been engaged in
9 business practices that work a fraud;
10 (d) The applicant or licensee has refused to give
11 pertinent data to the Comptroller;
12 (e) The applicant or licensee has failed to satisfy any
13 enforceable judgment or decree rendered by any court of
14 competent jurisdiction against the applicant;
15 (f) The applicant or licensee has conducted or is about
16 to conduct business in a fraudulent manner;
17 (g) The trustee advisors or the trust agreement is not
18 satisfactory to the Comptroller;
19 (h) The pre-construction performance bond, if
20 applicable, is not satisfactory to the Comptroller;
21 (i) The fidelity bond is not satisfactory to the
22 Comptroller;
23 (j) As to any individual listed, that such individual
24 has conducted or is about to conduct any business on behalf
25 of the applicant in a fraudulent manner,; has been convicted
26 of any felony or misdemeanor an essential element of which is
27 fraud, has had a judgment rendered against him or her based
28 on fraud in any civil litigation, or has failed to satisfy
29 any enforceable judgment or decree rendered against him by
30 any court of competent jurisdiction, or has been convicted of
31 any felony or any theft-related offense;
32 (k) The applicant or licensee has failed to make the
33 annual report required by this Act or to comply with a final
34 order, decision, or finding of the Comptroller made pursuant
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1 to this Act;
2 (l) The applicant or licensee, including any member,
3 officer, or director thereof if the applicant or licensee is
4 a firm, partnership, association, or corporation and any
5 shareholder holding more than 10% of the corporate stock, has
6 violated any provision of this Act or any regulation or order
7 made by the Comptroller under this Act; or
8 (m) The Comptroller finds any fact or condition existing
9 which, if it had existed at the time of the original
10 application for such license would have warranted the
11 Comptroller in refusing the issuance of the license.
12 (Source: P.A. 85-842.)
13 (815 ILCS 390/8) (from Ch. 21, par. 208)
14 Sec. 8. (a) Every license issued by the Comptroller
15 shall state the number of the license, the business name and
16 address of the licensee's principal place of business, each
17 branch location also operating under the license, and the
18 licensee's parent company, if any. licensee at which the
19 business is to be conducted, and The license shall be
20 conspicuously posted in each the place of business operating
21 under the license. No more than one place of business shall
22 be maintained under the same license, but The Comptroller
23 may issue additional licenses as may be necessary for license
24 branch locations more than one license to a licensee upon
25 compliance with the provisions of this Act governing an
26 original issuance of a license for each new license.
27 (b) Individual salespersons representing employed by a
28 licensee shall not be required to obtain licenses in their
29 individual capacities but must acknowledge, by affidavit,
30 that they have been educated in the provisions of this Act
31 and must understand the penalties for failure to comply. The
32 licensee must retain copies of the affidavits of its
33 salespersons for its records and must make the affidavits
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1 available to the Comptroller for examination upon request.
2 (c) The licensee shall be responsible for the activities
3 of any person representing the licensee in selling or
4 offering a pre-need contract for sale all individuals or
5 sales organizations selling under contract with, as agents or
6 on behalf of the licensee.
7 (d) Any sales company or other person not selling on
8 behalf of a licensee shall be required to obtain his or her
9 its own license.
10 (e) Any person engaged in pre-need sales, as defined
11 herein, prior to the effective date of this Act may continue
12 operations until the application for license under this Act
13 is denied; provided that such person shall make application
14 for a license within 60 days of the date that application
15 forms are made available by the Comptroller.
16 (f) No license shall be transferable or assignable
17 without the express written consent of the Comptroller. A
18 transfer of more than 50% of the ownership of any business
19 licensed hereunder shall be deemed to be an attempted
20 assignment of the license originally issued to the licensee
21 for which consent of the Comptroller shall be required.
22 (g) Every license issued hereunder shall remain in force
23 until the same has been suspended, surrendered or revoked in
24 accordance with this Act, but the Comptroller, upon the
25 request of an interested person or on his own motion, may
26 issue new licenses to a licensee whose license or licenses
27 have been revoked, if no factor or condition then exists
28 which would have warranted the Comptroller in refusing
29 originally the issuance of such license.
30 (Source: P.A. 84-239.)
31 (815 ILCS 390/8a)
32 Sec. 8a. Investigation of unlawful practices. If it
33 appears to the Comptroller that a person has engaged in, is
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1 engaging in, or is about to engage in any practice in
2 violation of declared to be unlawful by this Act, the
3 Comptroller may:
4 (1) require that person to file on such terms as
5 the Comptroller prescribes a statement or report in
6 writing, under oath or otherwise, containing all
7 information the Comptroller may consider necessary to
8 ascertain whether a licensee is in compliance with this
9 Act, or whether an unlicensed person is engaging in
10 activities for which a license is required;
11 (2) examine under oath any person in connection
12 with the books and records pertaining to or having an
13 impact upon the trust funds required to be maintained
14 pursuant to this Act;
15 (3) examine any books and records of the licensee,
16 trustee, or investment advisor that the Comptroller may
17 consider necessary to ascertain compliance with this Act;
18 and
19 (4) require the production of a copy of any record,
20 book, document, account, or paper that is produced in
21 accordance with this Act and retain it in his or her
22 possession until the completion of all proceedings in
23 connection with which it is produced.
24 (Source: P.A. 89-615, eff. 8-9-96.)
25 (815 ILCS 390/9) (from Ch. 21, par. 209)
26 Sec. 9. The Comptroller may, upon his own motion
27 investigate the actions of any person providing, selling, or
28 offering pre-need sales contracts or of any applicant or any
29 person or persons holding or claiming to hold a license under
30 this Act. The Comptroller shall make such an investigation
31 on receipt of the verified written complaint of any person
32 setting forth facts which, if proved, would constitute
33 grounds for refusal, suspension, or revocation of a license
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1 with respect to which grounds for revocation may occur or
2 exist, or if he shall find that such grounds for revocation
3 are of general application to all offices or to more than one
4 office operated by such licensee, he may revoke all of the
5 licenses issued to such licensee or such number of licensees
6 to which grounds apply, as the case may be. Before refusing
7 to issue, and before suspension or revocation of a license,
8 the Comptroller shall hold a hearing to determine whether the
9 applicant or licensee, hereafter called the respondent, is
10 entitled to hold such a license. At least 10 days prior to
11 the date set for such hearing, the Comptroller shall notify
12 the respondent in writing that on the date designated a
13 hearing will be held to determine his eligibility for a
14 license and that he may appear in person or by counsel.
15 Such written notice may be served on the respondent
16 personally, or by registered or certified mail sent to the
17 respondent's business address as shown in his latest
18 notification to the Comptroller and shall include sufficient
19 information to inform the respondent of the general nature of
20 the charge. At the hearing, both the respondent and the
21 complainant shall be accorded ample opportunity to present in
22 person or by counsel such statements, testimony, evidence and
23 argument as may be pertinent to the charges or to any defense
24 thereto. The Comptroller may reasonably continue such
25 hearing from time to time.
26 The Comptroller may subpoena any person or persons in
27 this State and take testimony orally, by deposition or by
28 exhibit, in the same manner and with the same fees and
29 mileage as prescribed in judicial proceedings in civil cases.
30 Any authorized agent of the Comptroller may administer
31 oaths to witnesses at any hearing which the Comptroller is
32 authorized to conduct.
33 The Comptroller, at his expense, shall provide a
34 certified shorthand reporter to take down the testimony and
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1 preserve a record of all proceedings at the hearing of any
2 case involving the refusal to issue a license, the suspension
3 or revocation of a license, the imposition of a monetary
4 penalty, or the referral of a case for criminal prosecution.
5 The record of any such proceeding shall consist of the notice
6 of hearing, complaint, all other documents in the nature of
7 pleadings and written motions filed in the proceedings, the
8 transcript of testimony and the report and orders of the
9 Comptroller. Copies of the transcript of such record may be
10 purchased from the certified shorthand reporter who prepared
11 the record or from the Comptroller.
12 (Source: P.A. 84-239.)
13 (815 ILCS 390/12) (from Ch. 21, par. 212)
14 Sec. 12. License revocation or suspension.
15 (a) The Comptroller may, upon determination that grounds
16 exist for the revocation or suspension of a license issued
17 under this Act, revoke or suspend the license issued to a
18 particular branch office location with respect to which the
19 grounds for revocation or suspension may occur or exist, or
20 as many of the licenses issued to the licensee as may be
21 determined appropriate by the Comptroller.
22 (b) Upon the revocation or suspension of any license,
23 the licensee shall immediately surrender the license or
24 licenses and any branch office licenses to the Comptroller.
25 If the licensee fails to do so, the Comptroller has the right
26 to seize the license or licenses same.
27 (Source: P.A. 84-239.)
28 (815 ILCS 390/14) (from Ch. 21, par. 214)
29 Sec. 14. Contract required.
30 (a) It is unlawful for any person seller doing business
31 within this State to accept sales proceeds, either directly
32 or indirectly, by any means, unless the provider seller
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1 enters into a pre-need sales contract with the purchaser
2 which meets the following requirements:
3 (1) A written sales contract shall be executed in
4 at least 12 point type in duplicate for each pre-need
5 sale made by a licensee, and a signed copy given to the
6 purchaser. Each completed contract shall be numbered and
7 shall contain the name and address of the purchaser, the
8 principal office and all branch locations of the
9 provider, the parent company, and the seller, the name of
10 the person, if known, who is to receive the cemetery
11 merchandise, cemetery services or the completed
12 interment, entombment or inurnment spaces under the
13 contract and specifically identify such merchandise,
14 services or spaces to be provided and the price of the
15 merchandise, services, or space or spaces.
16 (2) In addition, such contracts must contain a
17 provision in distinguishing typeface as follows:
18 "Notwithstanding anything in this contract to the
19 contrary, you are afforded certain specific rights of
20 cancellation and refund under Sections 18 and 19 of the
21 Illinois Pre-Need Cemetery Sales Act, enacted by the 84th
22 General Assembly of the State of Illinois".
23 (3) All pre-need sales contracts shall be sold on a
24 guaranteed price basis. At the time of performance of the
25 service or delivery of the merchandise, the provider
26 seller shall be prohibited from assessing the purchaser
27 or his heirs or assigns or duly authorized representative
28 any additional charges for the specific merchandise and
29 services listed on the pre-need sales contract.
30 (4) Each contract shall clearly disclose that the
31 price of the merchandise or services is guaranteed and
32 shall contain the following statement in 12 point bold
33 type:
34 "THIS CONTRACT GUARANTEES THE BENEFICIARY THE
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1 SPECIFIC GOODS, AND SERVICES, INTERMENT SPACES,
2 ENTOMBMENT SPACES, AND INURNMENT SPACES CONTRACTED FOR.
3 NO ADDITIONAL CHARGES MAY BE REQUIRED. FOR DESIGNATED
4 GOODS, AND SERVICES, AND SPACES. ADDITIONAL CHARGES MAY
5 BE INCURRED FOR UNEXPECTED EXPENSES."
6 (5) The pre-need sales contract shall provide that
7 if the particular cemetery services, cemetery
8 merchandise, or spaces specified in the pre-need contract
9 are unavailable at the time of delivery, the provider
10 shall be required to furnish services, merchandise, and
11 spaces similar in style and at least equal in quality of
12 material and workmanship.
13 (6) The pre-need contract shall also disclose any
14 specific penalties to be incurred by the purchaser as a
15 result of failure to make payments; and penalties to be
16 incurred or moneys or refunds to be received as a result
17 of cancellation of the contract.
18 (7) The pre-need contract shall disclose the nature
19 of the relationship between the provider and the seller.
20 (b) Every pre-need sales contract must be in writing.,
21 and no pre-need sales contract form may be used unless it has
22 previously been filed with the Comptroller. The Comptroller
23 shall review all pre-need sales contract forms and, upon
24 written notification to the seller, shall prohibit the use of
25 contract forms that do not meet the requirements of this Act.
26 Any use or attempted use of any oral pre-need sales contract
27 or any written pre-need sales contract in a form not filed
28 with the Comptroller or in a form that 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. The
31 Comptroller may by rule develop a model pre-need sales
32 contract form that meets the requirements of this Act.
33 (c) To the extent the Rule is applicable, every pre-need
34 sales contract is subject to the Federal Trade Commission
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1 Rule concerning the Cooling-Off Period for Door-to-Door Sales
2 (16 CFR Part 429).
3 (d) No pre-need sales contract may be entered into in
4 this State unless there is a provider for the cemetery
5 merchandise, cemetery services, and undeveloped interment,
6 inurnment, and entombment spaces being sold. If the seller
7 is not the provider, then the seller must have a binding
8 agreement with a provider, and the identity of the provider
9 and the nature of the agreement between the seller and the
10 provider must be disclosed in the pre-need sales contract at
11 the time of sale and before the receipt of any sale proceeds.
12 The failure to disclose the identity of the provider, the
13 nature of the agreement between the seller and the provider,
14 or any changes thereto to the purchaser and beneficiary, or
15 the failure to make the disclosures required by this Section
16 constitutes an intentional violation of this Act.
17 (e) No pre-need contract may be entered into in this
18 State unless it is accompanied by a funding mechanism
19 permitted under this Act and unless the provider is licensed
20 by the Comptroller as provided in this Act. Nothing in this
21 Act is intended to relieve providers or sellers of pre-need
22 contracts from being licensed under any other Act required
23 for their profession or business or from being subject to the
24 rules promulgated to regulate their profession or business,
25 including rules on solicitation and advertisement.
26 (f) No pre-need contract may be entered into in this
27 State unless the provider or seller explains to the purchaser
28 the terms of the pre-need contact prior to the purchaser's
29 signing.
30 (g) The State Comptroller shall develop a booklet for
31 consumers in plain English describing the scope, application,
32 and consumer protections of this Act. After the booklet is
33 developed, no pre-need contract may be sold in this State
34 unless the provider or seller distributes to the purchaser
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1 prior to the sale a booklet developed or approved for use by
2 the State Comptroller.
3 (Source: P.A. 91-7, eff. 1-1-2000.)
4 (815 ILCS 390/15) (from Ch. 21, par. 215)
5 Sec. 15. (a) Whenever a provider seller receives sales
6 proceeds anything of value under a pre-need sales contract,
7 the provider person receiving such value shall deposit 50% of
8 the sales all proceeds received into one or more trust funds
9 maintained in accordance with pursuant to this Section,
10 except that, in the case of proceeds received for the
11 purchase of outer burial containers, 85% of the sales
12 proceeds shall be deposited into one or more trust funds.
13 Such deposits shall be made until the amount deposited in
14 trust equals 50% of the sales price of the cemetery
15 merchandise, cemetery services and undeveloped spaces
16 included in such contract, except that, in the case of
17 deposits for outer burial containers, deposits shall be made
18 until the amount deposited in trust equals 85% of the sales
19 price. In the event an installment contract is factored,
20 discounted or sold to a third party, the seller shall deposit
21 an amount equal to 50% of the sales price of the installment
22 contract, except that, for the portion of the contract
23 attributable to the sale of outer burial containers, the
24 seller shall deposit an amount equal to 85% of the sales
25 price. Proceeds required to be deposited in trust which are
26 attributable to cemetery merchandise and cemetery services
27 shall be held in a "Cemetery Merchandise Trust Fund".
28 Proceeds required to be deposited in trust which are
29 attributable to the sale of undeveloped interment, entombment
30 or inurnment spaces shall be held in a "Pre-construction
31 Trust Fund". If merchandise is delivered for storage in a
32 bonded warehouse, as authorized herein, and payment of
33 transportation or other charges totaling more than $20 will
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1 be required in order to secure delivery to the site of
2 ultimate use, upon such delivery to the warehouse the seller
3 shall deposit to the trust fund the full amount of the actual
4 or estimated transportation charge. Transportation charges
5 which have been prepaid by the seller shall not be deposited
6 to trust funds maintained pursuant to this Section. As used
7 in this Section, "all proceeds" means the entire amount paid
8 by a purchaser in connection with a pre-need sales contract,
9 including finance charges and Cemetery Care Act
10 contributions, but excluding sales taxes and credit life
11 insurance premiums.
12 (b) All trust deposits required by this Act shall be
13 made within 30 days following the end of the month of
14 receipt.
15 (c) A trust established under this Act must be
16 maintained:
17 (1) in a trust account established in a bank,
18 savings and loan association or credit union authorized
19 to do business in Illinois where such accounts are
20 insured by an agency of the federal government;
21 (2) in a trust company authorized to do business in
22 Illinois; or
23 (3) in an investment company authorized to do
24 business in Illinois insured by the Securities Brokers
25 Insurance Corporation.
26 (d) Funds deposited in the trust account shall be
27 identified in the records of the provider seller by the name
28 of the purchaser. Nothing shall prevent the trustee from
29 commingling the deposits in any such trust fund for purposes
30 of the management thereof and the investment of funds therein
31 as provided in the "Common Trust Fund Act", approved June 24,
32 1949, as amended. In addition, multiple trust funds
33 maintained pursuant to this Act may be commingled or
34 commingled with other funeral or burial related trust funds,
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1 provided that all record keeping requirements imposed by or
2 pursuant to law are met.
3 (e) In lieu of a pre-construction trust fund, a provider
4 seller of undeveloped interment, entombment or inurnment
5 spaces may obtain and file with the Comptroller a performance
6 bond in an amount at least equal to 50% of the sales price of
7 the undeveloped spaces or the estimated cost of completing
8 construction, whichever is greater. The bond shall be
9 conditioned on the satisfactory construction and completion
10 of the undeveloped spaces as required in Section 19 of this
11 Act.
12 Each bond obtained under this Section shall have as
13 surety thereon a corporate surety company incorporated under
14 the laws of the United States, or a State, the District of
15 Columbia or a territory or possession of the United States.
16 Each such corporate surety company must be authorized to
17 provide performance bonds as required by this Section, have
18 paid-up capital of at least $250,000 in cash or its
19 equivalent and be able to carry out its contracts. Each
20 provider pre-need seller must provide to the Comptroller, for
21 each corporate surety company the provider such seller
22 utilizes, a statement of assets and liabilities of the
23 corporate surety company sworn to by the president and
24 secretary of the corporation by January 1 of each year.
25 The Comptroller shall prohibit providers pre-need sellers
26 from doing new business with a corporate surety company if
27 the company is insolvent or is in violation of this Section.
28 In addition the Comptroller may direct a provider pre-need
29 seller to reinstate a pre-construction trust fund upon the
30 Comptroller's determination that the corporate surety company
31 no longer is sufficient security.
32 All performance bonds issued pursuant to this Section
33 must be irrevocable during the statutory term for completing
34 construction specified in Section 19 of this Act, unless
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1 terminated sooner by the completion of construction.
2 (f) Whenever any pre-need contract shall be entered into
3 and include 1) items of cemetery merchandise and cemetery
4 services, and 2) rights to interment, inurnment or entombment
5 in completed spaces without allocation of the gross sale
6 price among the items sold, the application of payments
7 received under the contract shall be allocated, first to the
8 right to interment, inurnment or entombment, second to items
9 of cemetery merchandise and cemetery services, unless some
10 other allocation is clearly provided in the contract.
11 (g) Any person engaging in pre-need sales who enters
12 into a combination sale which involves the sale of items
13 covered by a trust or performance bond requirement and any
14 item not covered by any entrustment or bond requirement,
15 shall be prohibited from increasing the gross sales price of
16 those items not requiring entrustment with the purpose of
17 allocating a lesser gross sales price to items which require
18 a trust deposit or a performance bond.
19 (Source: P.A. 91-7; eff. 1-1-2000.)
20 (815 ILCS 390/16) (from Ch. 21, par. 216)
21 Sec. 16. Trust funds; disbursements.
22 (a) A trustee shall make no disbursements from the trust
23 fund except as provided in this Act.
24 (b) A trustee shall, with respect to the investment of
25 such trust funds, exercise the judgment and care under the
26 circumstances then prevailing which persons of prudence,
27 discretion and intelligence exercise in the management of
28 their own affairs, not in regard to speculation, but in
29 regard to the permanent disposition of their funds,
30 considering the probable income as well as the probable
31 safety of their capital.
32 The provider seller shall act as trustee of all amounts
33 received for cemetery merchandise, services, or undeveloped
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1 spaces until those amounts have been deposited into the trust
2 fund. The provider seller may continue to be the trustee of
3 up to $500,000 that has been deposited into the trust fund,
4 but the provider seller must retain an independent trustee
5 for any amount of trust funds in excess of $500,000. A
6 provider seller holding trust funds in excess of $500,000 on
7 the effective date of this amendatory Act of 1996 shall have
8 36 months to retain an independent trustee for the amounts
9 over $500,000; any other seller must retain an independent
10 trustee for its trust funds in excess of $500,000 as soon as
11 may be practical. The Comptroller shall have the right to
12 disqualify the trustee upon the same grounds as for refusing
13 to grant or revoking a license hereunder. Upon notice to the
14 Comptroller, the provider seller may change the trustee of
15 the trust fund.
16 (c) The trustee may rely upon certifications and
17 affidavits made to it under the provisions of this Act, and
18 shall not be liable to any person for such reliance.
19 (d) A trustee shall be allowed to withdraw from the
20 trust funds maintained pursuant to this Act, payable solely
21 from the income earned on such trust funds, a reasonable fee
22 for all usual and customary services for the operation of the
23 trust fund, including, but not limited to trustee fees,
24 investment advisor fees, allocation fees, annual audit fees
25 and other similar fees. The maximum amount allowed to be
26 withdrawn for these fees each year shall be the lesser of 3%
27 of the balance of the trust calculated on an annual basis or
28 the amount of annual income generated therefrom.
29 (e) The trust shall be a single-purpose trust fund. In
30 the event of the provider's seller's. bankruptcy, insolvency
31 or assignment for the benefit of creditors, or an adverse
32 judgment, the trust funds shall not be available to any
33 creditor as assets of the provider seller or to pay any
34 expenses of any bankruptcy or similar proceeding, but shall
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1 be distributed to the purchasers or managed for their benefit
2 by the trustee holding the funds. Except in an action by the
3 Comptroller to revoke a license issued pursuant to this Act
4 and for creation of a receivership as provided in this Act,
5 the trust shall not be subject to judgment, execution,
6 garnishment, attachment, or other seizure by process in
7 bankruptcy or otherwise, nor to sale, pledge, mortgage, or
8 other alienation, and shall not be assignable except as
9 approved by the Comptroller. The changes made by this
10 amendatory Act of the 91st General Assembly are intended to
11 clarify existing law regarding the inability of licensees to
12 pledge the trust.
13 (f) Because it is not known at the time of deposit or at
14 the time that income is earned on the trust account to whom
15 the principal and the accumulated earnings will be
16 distributed, for purposes of determining the Illinois Income
17 Tax due on these trust funds, the principal and any accrued
18 earnings or losses relating to each individual account shall
19 be held in suspense until the final determination is made as
20 to whom the account shall be paid.
21 (Source: P.A. 91-7, eff. 6-1-99.)
22 (815 ILCS 390/17) (from Ch. 21, par. 217)
23 Sec. 17. (a) The principal and undistributed income of
24 the trust created pursuant to Section 15 of this Act shall be
25 paid to the provider seller if:
26 (1) the provider seller certifies by sworn affidavit to
27 the trustee that the purchaser or the beneficiary named in
28 the pre-need contract has deceased and that provider seller
29 has fully delivered or installed all items included in the
30 pre-need contract and fully performed all pre-need cemetery
31 services he is required to perform under the pre-need
32 contract; or
33 (2) the provider seller certifies by sworn affidavit to
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1 the trustee that provider seller has made full delivery, as
2 defined herein.
3 (Source: P.A. 84-239.)
4 (815 ILCS 390/18) (from Ch. 21, par. 218)
5 Sec. 18. Remedies.
6 (a) If for any reason a provider seller who has engaged
7 in pre-need sales has refused, cannot or does not comply with
8 the terms of the pre-need sales contract within a reasonable
9 time after he is required to do so, the purchaser or his
10 heirs or assigns or duly authorized representative shall have
11 the right to a refund of an amount equal to the sales price
12 paid for undelivered merchandise, services or spaces plus
13 undistributed interest amounts held in trust attributable to
14 such contract, within 30 days of the filing of a sworn
15 affidavit with the trustee setting forth the existence of the
16 contract and the fact of breach. A copy of this affidavit
17 shall be filed with the Comptroller and the provider seller.
18 In the event a provider seller is prevented from performing
19 by strike, shortage of materials, civil disorder, natural
20 disaster or any like occurrence beyond the control of the
21 provider seller, the provider's seller's time for performance
22 shall be extended by the length of such delay. Nothing in
23 this Section shall relieve any person the seller from any
24 liability for non-performance of his obligations under the
25 pre-need sales contract.
26 (b) If the purchaser defaults in making payments, the
27 provider seller shall have the right to cancel the contract
28 and withdraw from the trust fund the entire balance to the
29 credit of the defaulting purchaser's account as liquidating
30 damages. In such event, the trustee shall deliver said
31 balance to the provider seller upon its certification, and
32 upon receiving said certification the trustee may rely
33 thereon and shall not be liable to anyone for such reliance.
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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 provider seller, demand that the pre-need contract with that
7 provider such seller be terminated. The provider seller
8 shall, within 30 days, initiate a refund to such purchaser,
9 its legal representative, or all beneficiaries under the
10 pre-need contract in an amount as 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) 90% of the sales proceeds, including all
17 undistributed interest earned thereon, if the purchaser,
18 its legal representative, or all beneficiaries demand
19 termination of the pre-need contract more than 30 days
20 after the date of entry into the pre-need contract.
21 (d) It is unlawful for any pre-need contract to provide
22 for forfeiture or retention of payments upon any such
23 agreement or series of agreements as and for liquidated
24 damages in excess of 25% of the payments made, or $300,
25 whichever sum is less. beneficiary of the entire amount held
26 in trust attributable to undelivered cemetery merchandise and
27 unperformed cemetery services, including undistributed
28 interest earned thereon. Where more than one beneficiary is
29 included in a pre-need contract, a seller need not honor a
30 demand for cancellation under this paragraph unless all
31 beneficiaries assent and their signatures are included in
32 written demand for refund.
33 (Source: P.A. 85-805.)
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1 (815 ILCS 390/19) (from Ch. 21, par. 219)
2 Sec. 19. Construction or development of spaces.
3 (a) The construction or development of undeveloped
4 interment, entombment or inurnment spaces shall be commenced
5 on that phase, section or sections of undeveloped ground or
6 section of lawn crypts, mausoleums, garden crypts,
7 columbariums or cemetery spaces in which sales are made
8 within 3 years of the date of the first such sale. The
9 provider seller shall give written notice to the Comptroller
10 no later than 30 days after the first sale. Such Notice
11 shall include a description of the project. Once commenced,
12 construction or development shall be pursued diligently to
13 completion. The construction must be completed within 6
14 years of the first sale. If construction or development is
15 not commenced or completed within the times specified herein,
16 any purchaser may surrender and cancel the contract and upon
17 cancellation shall be entitled to a refund of the actual
18 amounts paid toward the purchase price plus interest
19 attributable to such amount earned while in trust; provided
20 however that any delay caused by strike, shortage of
21 materials, civil disorder, natural disaster or any like
22 occurrence beyond the control of the seller shall extend the
23 time of such commencement and completion by the length of
24 such delay.
25 (b) At any time within 12 months of a purchaser's
26 entering into a pre-need contract for undeveloped interment,
27 entombment, or inurnment spaces, a purchaser may surrender
28 and cancel his or her contract and upon cancellation shall be
29 entitled to a refund of the sales proceeds paid towards the
30 undeveloped interment, entombment, or inurnment spaces the
31 actual amounts paid toward the purchase price plus interest
32 attributable to such amount earned while in trust.
33 Notwithstanding the foregoing, the cancellation and refund
34 rights specified in this paragraph shall terminate as of the
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1 date the provider seller commences construction or
2 development of the phase, section, or sections of undeveloped
3 spaces in which sales are made. After the rights of
4 cancellation and refund specified herein have terminated, if
5 a purchaser defaults in making payments under the pre-need
6 contract, the provider seller shall have the right to cancel
7 the contract and withdraw from the trust fund the entire
8 balance to the credit of the defaulting purchaser's account
9 as liquidated damages. In such event, the trustee shall
10 deliver said balance to the provider seller upon its
11 certification, and upon receiving said certification the
12 trustee may rely thereon and shall not be liable to anyone
13 for such reliance.
14 (c) During the construction or development of interment,
15 entombment, or inurnment spaces, upon the sworn certification
16 by the provider seller and the contractor to the trustee, the
17 trustee shall disburse from the trust fund the amount
18 equivalent to the cost of performed labor or delivered
19 materials as certified. Said certification shall be
20 substantially in the following form:
21 We, the undersigned, being respectively the Provider
22 Seller and Contractor, do hereby certify that the Contractor
23 has performed labor or delivered materials or both to
24 (address of property) .........., in connection with a
25 contract to .........., and that as of this date the value of
26 the labor performed and materials delivered is $.......
27 We do further certify that in connection with such
28 contract there remains labor to be performed, and materials
29 to be delivered, of the value of $........
30 This Certificate is signed (insert date).
31 ............ ............
32 Provider Seller Contractor
33 A person who executes and delivers a completion
34 certificate with actual knowledge of a falsity contained
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1 therein shall be considered in violation of this Act and
2 subject to the penalties contained herein.
3 (d) Except as otherwise authorized by this Section,
4 every provider seller of undeveloped spaces shall provide
5 facilities for temporary interment, entombment, or inurnment
6 for purchasers or beneficiaries of contracts who die prior to
7 completion of the space. Such temporary facilities shall be
8 constructed of permanent materials, and, insofar as
9 practical, be landscaped and groomed to the extent customary
10 in the cemetery industry in that community. The heirs,
11 assigns, or personal representative of a purchaser or
12 beneficiary shall not be required to accept temporary
13 underground interment spaces where the undeveloped space
14 contracted for was an above ground entombment or inurnment
15 space. In the event that temporary facilities as described
16 in this paragraph are not made available, upon the death of a
17 purchaser or beneficiary, the heirs, assigns, or personal
18 representative is entitled to a refund of the entire sales
19 price paid plus undistributed interest attributable to such
20 amount while in trust.
21 (e) If the provider seller delivers a completed space
22 acceptable to the heirs, assigns or personal representative
23 of a purchaser or beneficiary, other than the temporary
24 facilities specified herein, in lieu of the undeveloped space
25 purchased, the provider seller shall provide the trustee with
26 a delivery certificate and all sums deposited under the
27 pre-need sales contract, including the undistributed income,
28 shall be paid to the provider seller.
29 (f) Upon completion of the phase, section, or sections
30 of the project as certified to the trustee by the provider
31 seller and the contractor and delivery of the completed
32 interment, entombment, or inurnment space to the purchaser,
33 the trust fund requirements set forth herein shall terminate
34 and all funds held in the preconstruction trust fund
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1 attributable to the completed phase, section or sections,
2 including interest accrued thereon, shall be returned to the
3 provider seller.
4 (g) This Section shall not apply to the sale of
5 undeveloped spaces if there has been any such sale in the
6 same phase, section or sections of the project prior to the
7 effective date of this Act.
8 (Source: P.A. 91-357, eff. 7-29-99.)
9 (815 ILCS 390/20) (from Ch. 21, par. 220)
10 Sec. 20. Records.
11 (a) Each licensee must keep accurate accounts, books and
12 records in this State at the principal place of business
13 identified in the licensee's license application or as
14 otherwise approved by the Comptroller in writing of all
15 transactions, copies of agreements, dates and amounts of
16 payments made or received, the names and addresses of the
17 contracting parties, the names and addresses of persons for
18 whose benefit funds are received, if known, and the names of
19 the trust depositories. Additionally, for a period not to
20 exceed 6 months after the performance of all terms in a
21 pre-need sales contract, the licensee shall maintain copies
22 of each pre-need contract at the licensee branch location
23 where the contract was entered.
24 (b) Each licensee must maintain such records for a
25 period of 3 years after the licensee shall have fulfilled his
26 or her obligation under the pre-need contract or 3 years
27 after any stored merchandise shall have been provided to the
28 purchaser or beneficiary, whichever is later.
29 (c) Each licensee shall submit reports to the
30 Comptroller annually, under oath, on forms furnished by the
31 Comptroller. The annual report shall contain, but shall not
32 be limited to, the following:
33 (1) An accounting of the principal deposit and
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1 additions of principal during the fiscal year.
2 (2) An accounting of any withdrawal of principal or
3 earnings.
4 (3) An accounting at the end of each fiscal year,
5 of the total amount of principal and earnings held.
6 (d) The annual report shall be filed by the licensee
7 with the Comptroller within 75 days after the end of the
8 licensee's fiscal year. An extension of up to 60 days may be
9 granted by the Comptroller, upon a showing of need by the
10 licensee. Any other reports shall be in the form furnished
11 or specified by the Comptroller. If a licensee fails to
12 submit an annual report to the Comptroller within the time
13 specified in this Section, the Comptroller shall impose upon
14 the licensee a penalty of $5 for each and every day the
15 licensee remains delinquent in submitting the annual report.
16 Each report shall be accompanied by a check or money order in
17 the amount of $10 payable to: Comptroller, State of
18 Illinois.
19 (e) On and after the effective date of this amendatory
20 Act of the 91st General Assembly, a licensee may report all
21 required information concerning the sale of outer burial
22 containers on the licensee's annual report required to be
23 filed under this Act and shall not be required to report that
24 information under the Illinois Funeral or Burial Funds Act,
25 as long as the information is reported under this Act.
26 (Source: P.A. 91-7, eff. 1-1-2000.)
27 (815 ILCS 390/22) (from Ch. 21, par. 222)
28 Sec. 22. Cemetery Consumer Protection Fund.
29 (a) Every provider seller engaging in pre-need sales
30 shall pay to the Comptroller $5 for each said contract
31 entered into, to be paid into a special income earning fund
32 hereby created in the State Treasury, known as the Cemetery
33 Consumer Protection Fund. The above said fees shall be
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1 remitted to the Comptroller semi-annually within 30 days
2 after the end of June and December for all contracts that
3 have been entered in such 6 month period.
4 (b) All monies paid into the fund together with all
5 accumulated undistributed income thereon shall be held as a
6 special fund in the State Treasury. The fund shall be used
7 solely for the purpose of providing restitution to consumers
8 who have suffered pecuniary loss arising out of pre-need
9 sales.
10 (c) The fund shall be applied only to restitution or
11 completion of the project or delivery of the merchandise or
12 services, where such has been ordered by the Circuit Court in
13 a lawsuit brought under this Act by the Attorney General of
14 the State of Illinois on behalf of the Comptroller and in
15 which it has been determined by the Court that the obligation
16 is non-collectible from the judgment debtor. Restitution
17 shall not exceed the amount of the sales price paid plus
18 interest at the statutory rate. The fund shall not be used
19 for the payment of any attorney or other fees.
20 (d) Whenever restitution is paid by the fund, the fund
21 shall be subrogated to the amount of such restitution, and
22 the Comptroller shall request the Attorney General to engage
23 in all reasonable post judgment collection steps to collect
24 said restitution from the judgment debtor and reimburse the
25 fund.
26 (e) The fund shall not be applied toward any restitution
27 for losses in any lawsuit initiated by the Attorney General
28 or Comptroller or with respect to any claim made on pre-need
29 sales which occurred prior to the effective date of this Act.
30 (f) The fund may not be allocated for any purpose other
31 than that specified in this Act.
32 (g) Notwithstanding any other provision of this Section,
33 the payment of restitution from the fund shall be a matter of
34 grace and not of right and no purchaser shall have any vested
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1 rights in the fund as a beneficiary or otherwise. Prior to
2 seeking restitution from the fund, a purchaser or beneficiary
3 seeking payment of restitution shall apply for restitution on
4 a form provided by the Comptroller. The form shall include
5 any information the Comptroller may reasonably require in
6 order for the Court to determine that restitution or
7 completion of the project or delivery of merchandise or
8 service is appropriate.
9 (h) Annually, the status of the fund shall be reviewed
10 by the Comptroller, and if he determines that the fund
11 together with all accumulated income earned thereon, equals
12 or exceeds $10,000,000 and that the total number of
13 outstanding claims filed against the fund is less than 10% of
14 the fund's current balance, then payments to the fund shall
15 be suspended until such time as the fund's balance drops
16 below $10,000,000 or the total number of outstanding claims
17 filed against the fund is more than 10% of the fund's current
18 balance, but on such suspension, the fund shall not be
19 considered inactive.
20 (Source: P.A. 84-239.)
21 (815 ILCS 390/23) (from Ch. 21, par. 223)
22 Sec. 23. Violations and penalties.
23 (a) Any person intentionally violating any provision of
24 this Act is guilty of a Class 4 felony.
25 (b) If any person violates this Act or fails or refuses
26 to comply with any order of the Comptroller or any part
27 thereof which to such person has become final and is still in
28 effect, the Comptroller may, after notice and hearing at
29 which it is determined that a violation of this Act or such
30 order has been committed, further order that such person
31 shall forfeit and pay to the State of Illinois a sum not to
32 exceed $10,000 $5,000 for each violation. Such liability
33 shall be enforced in an action brought in any court of
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1 competent jurisdiction by the Comptroller in the name of the
2 people of the State of Illinois.
3 (c) Whenever a license is revoked by the Comptroller, or
4 the Comptroller determines that any person is engaged in
5 pre-need sales without a license, he shall apply to the
6 circuit court of the county where such person is located for
7 a receiver to administer the business of such person.
8 (d) Whenever a licensee fails or refuses to make a
9 required report or whenever it appears to the Comptroller
10 from any report or examination that such licensee has
11 committed a violation of law or that the trust funds have not
12 been administered properly or that it is unsafe or
13 inexpedient for such licensee or the trustee of the trust
14 funds of such licensee to continue to administer such funds
15 or that any officer of such licensee or of the trustee of the
16 trust funds of such licensee has abused his trust or has been
17 guilty of misconduct or breach of trust in his official
18 position injurious to such licensee or that such licensee has
19 suffered as to its trust funds a serious loss by larceny,
20 embezzlement, burglary, repudiation or otherwise, the
21 Comptroller shall, by order, direct the discontinuance of
22 such illegal, unsafe or unauthorized practices and shall
23 direct strict conformity with the requirements of the law and
24 safety and security in its transactions and may apply to the
25 circuit court of the county where such licensee is located to
26 prevent any disbursements or expenditures by such licensee
27 until the trust funds are in such condition that it would not
28 be jeopardized thereby and the Comptroller shall communicate
29 the facts to the Attorney General of the State of Illinois
30 who shall thereupon institute such proceedings against the
31 licensee or its trustee or the officers of either or both as
32 the nature of the case may require.
33 (e) In addition to the other penalties and remedies
34 provided in this Act, the Comptroller may bring a civil
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1 action in the county of residence of the licensee or any
2 person engaging in pre-need sales, to enjoin any violation or
3 threatened violation of this Act.
4 (e-5) Any person that violates any provision of this Act
5 or fails to comply with an order of the Comptroller is liable
6 for a civil penalty of not to exceed $10,000 for the
7 violation and an additional civil penalty of not to exceed
8 $1,000 for each day during which the violation continues.
9 These penalties are in addition to any penalties that may be
10 issued under the Consumer Fraud and Deceptive Business
11 Practices Act for knowing violations of this Act. The civil
12 penalties provided for in this subsection may be recovered in
13 a civil action.
14 (f) The powers vested in the Comptroller by this Section
15 are additional to any and all other powers and remedies
16 vested in the Comptroller by law, and nothing herein
17 contained shall be construed as requiring that the
18 Comptroller shall employ the powers conferred herein instead
19 of or as a condition precedent to the exercise of any other
20 power or remedy vested in the Comptroller.
21 (Source: P.A. 88-477.)
22 (815 ILCS 390/27.1 new)
23 Sec. 27.1. Sales; liability of purchaser for shortage.
24 In the event of a sale or transfer of all or substantially
25 all of the assets of the licensee, the sale or transfer of
26 the controlling interest of the corporate stock of the
27 licensee if the licensee is a corporation, the sale or
28 transfer of the controlling interest of the partnership if
29 the licensee is a partnership, or sale pursuant to
30 foreclosure proceedings, the purchaser is liable for any
31 shortages existing before or after the sale in the trust
32 funds required to be maintained in a trust under this Act and
33 shall honor all pre-need contracts and trusts entered into by
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1 the licensee. Any shortages existing in the trust funds
2 constitute a prior lien in favor of the trust for the total
3 value of the shortages, and notice of that lien must be
4 provided in all sales instruments.
5 In the event of a sale or transfer of all or
6 substantially all of the assets of the licensee, the sale or
7 transfer of the controlling interest of the corporate stock
8 of the licensee if the licensee is a corporation, or the sale
9 or transfer of the controlling interest of the partnership if
10 the licensee is a partnership, the licensee shall, at least
11 21 days prior to the sale or transfer, notify the
12 Comptroller, in writing, of the pending date of sale or
13 transfer so as to permit the Comptroller to audit the books
14 and records of the licensee. The audit must be commenced
15 within 10 business days after the receipt of the notification
16 and completed within the 21-day notification period unless
17 the Comptroller notifies the licensee during that period that
18 there is a basis for determining a deficiency which will
19 require additional time to finalize. The sale or transfer
20 may not be completed by the licensee unless and until:
21 (i) the Comptroller has completed the audit of the
22 licensee's books and records;
23 (ii) any delinquency existing in the trust funds has
24 been paid by the licensee, or arrangements satisfactory
25 to the Comptroller have been made by the licensee on the
26 sale or transfer for the payment of any delinquency;
27 (iii) the Comptroller issues a license upon
28 application of the new owner, which license must be
29 applied for within 30 days after the anticipated date of
30 the sale or transfer, subject to the payment of any
31 delinquencies, if any, as stated in item (ii).
32 For purposes of this Section, a person, firm,
33 corporation, partnership, or institution that acquires the
34 licensee through a real estate foreclosure is subject to the
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1 provisions of this Section. The sale or transfer of the
2 controlling interest of a licensee to an immediate family
3 member is not subject to the license application process
4 required in item (iii) of this Section.
5 Section 50. Severability. If any provision of this Act or
6 its application to any person or circumstance is held
7 invalid, the invalidity of that provision or application does
8 not affect other provisions or applications of this Act that
9 can be given effect without the invalid provision or
10 application.
11 Section 99. Effective date. This Act takes effect upon
12 becoming law.
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1 INDEX
2 Statutes amended in order of appearance
3 15 ILCS 405/22.3 new
4 15 ILCS 405/22.4 new
5 30 ILCS 105/5.541 new
6 55 ILCS 70/1 from Ch. 21, par. 61
7 60 ILCS 1/130-5
8 65 ILCS 5/11-49-1 from Ch. 24, par. 11-49-1
9 225 ILCS 45/1a from Ch. 111 1/2, par. 73.101a
10 225 ILCS 45/1a-1
11 225 ILCS 45/1b from Ch. 111 1/2, par. 73.101b
12 225 ILCS 45/2 from Ch. 111 1/2, par. 73.102
13 225 ILCS 45/2a
14 225 ILCS 45/3 from Ch. 111 1/2, par. 73.103
15 225 ILCS 45/3a from Ch. 111 1/2, par. 73.103a
16 225 ILCS 45/3a-5 new
17 225 ILCS 45/3e from Ch. 111 1/2, par. 73.103e
18 225 ILCS 45/3f
19 225 ILCS 45/4 from Ch. 111 1/2, par. 73.104
20 225 ILCS 45/4a
21 225 ILCS 45/7.2
22 225 ILCS 45/8 from Ch. 111 1/2, par. 73.108
23 225 ILCS 45/8.1 new
24 760 ILCS 100/2a from Ch. 21, par. 64.2a
25 760 ILCS 100/4 from Ch. 21, par. 64.4
26 760 ILCS 100/8 from Ch. 21, par. 64.8
27 760 ILCS 100/9 from Ch. 21, par. 64.9
28 760 ILCS 100/10 from Ch. 21, par. 64.10
29 760 ILCS 100/11 from Ch. 21, par. 64.11
30 760 ILCS 100/11.1
31 760 ILCS 100/13 from Ch. 21, par. 64.13
32 760 ILCS 100/15b
33 760 ILCS 100/24 from Ch. 21, par. 64.24
34 765 ILCS 835/1 from Ch. 21, par. 15
-94- LRB9112160STsb
1 815 ILCS 390/1 from Ch. 21, par. 201
2 815 ILCS 390/4 from Ch. 21, par. 204
3 815 ILCS 390/5 from Ch. 21, par. 205
4 815 ILCS 390/6 from Ch. 21, par. 206
5 815 ILCS 390/7 from Ch. 21, par. 207
6 815 ILCS 390/8 from Ch. 21, par. 208
7 815 ILCS 390/8a
8 815 ILCS 390/9 from Ch. 21, par. 209
9 815 ILCS 390/12 from Ch. 21, par. 212
10 815 ILCS 390/14 from Ch. 21, par. 214
11 815 ILCS 390/15 from Ch. 21, par. 215
12 815 ILCS 390/16 from Ch. 21, par. 216
13 815 ILCS 390/17 from Ch. 21, par. 217
14 815 ILCS 390/18 from Ch. 21, par. 218
15 815 ILCS 390/19 from Ch. 21, par. 219
16 815 ILCS 390/20 from Ch. 21, par. 220
17 815 ILCS 390/22 from Ch. 21, par. 222
18 815 ILCS 390/23 from Ch. 21, par. 223
19 815 ILCS 390/27.1 new