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92_HB2283
LRB9201944LDprA
1 AN ACT in relation to cemeteries.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 5. The Grave and Cemetery Restoration Act is
5 amended by changing Section 1 as follows:
6 (55 ILCS 70/1) (from Ch. 21, par. 61)
7 Sec. 1. Care by county.
8 (a) The county board of any county may appropriate funds
9 from the county treasury to be used for the purpose of
10 putting any old, neglected graves and cemeteries in the
11 county in a cleaner and more respectable condition.
12 (b) A county that has within its territory an abandoned
13 cemetery may enter the cemetery grounds and cause the grounds
14 to be cleared and made orderly. Provided, in no event shall a
15 county enter an abandoned cemetery under this subsection if
16 the owner of the property or the legally responsible cemetery
17 authority provides written notification to the county, prior
18 to the county's entry (1) demonstrating the ownership or
19 authority to control or manage the cemetery and (2) declining
20 the county authorization to enter the property. In making a
21 cemetery orderly under this Section, the county may take
22 necessary measures to correct dangerous conditions that exist
23 in regard to markers, memorials, or other cemetery artifacts
24 but may not permanently remove those items from their
25 location on the cemetery grounds. If an abandoned cemetery
26 is dedicated as an Illinois nature preserve under the
27 Illinois Natural Areas Preservation Act, any actions to cause
28 the grounds to be cleared and kept orderly shall be
29 consistent with the rules and master plan governing the
30 dedicated nature preserve.
31 (c) For the purposes of this Section:
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1 "Abandoned cemetery" means an area of land containing
2 more than 6 places of interment for which, after diligent
3 search, no owner of the land or currently functioning
4 cemetery authority objects to entry sought pursuant to this
5 Section, and (1) at which no interments have taken place in
6 at least 3 years; or (2) for which there has been inadequate
7 maintenance for at least 6 months.
8 "Diligent search" includes, but is not limited to,
9 publication of a notice in a newspaper of local circulation
10 not more than 45 but at least 30 days prior to a county's
11 entry and cleanup of cemetery grounds. The notice shall
12 provide (1) notice of the county's intended entry and cleanup
13 of the cemetery; (2) the name, if known, and geographic
14 location of the cemetery; (3) the right of the cemetery
15 authority or owner of the property to deny entry to the
16 county upon written notice to the county; and (4) the date or
17 dates of the intended cleanup.
18 "Inadequate maintenance" includes, but is not limited to,
19 the failure to cut the lawn throughout a cemetery to prevent
20 an overgrowth of grass and weeds; the failure to trim shrubs
21 to prevent excessive overgrowth; the failure to trim trees so
22 as to remove dead limbs; the failure to keep in repair the
23 drains, water lines, roads, buildings, fences, and other
24 structures of the cemetery premises; or the failure to keep
25 the cemetery premises free of trash and debris.
26 (Source: P.A. 86-696.)
27 Section 10. The Township Code is amended by changing
28 Section 130-5 as follows:
29 (60 ILCS 1/130-5)
30 Sec. 130-5. Cemeteries; permitted activities.
31 (a) A township may establish and maintain cemeteries
32 within and without its territory, may acquire lands for
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1 cemeteries by condemnation or otherwise, may lay out lots of
2 convenient size for families, and may sell lots for a family
3 burying ground or to individuals for burial purposes.
4 Associations duly incorporated under the laws of this State
5 for cemetery purposes shall have the same power and authority
6 to purchase lands and sell lots for burial purposes as are
7 conferred upon townships under this Article.
8 (b) A township that has within its territory an
9 abandoned cemetery may enter the cemetery grounds and cause
10 the grounds to be cleared and made orderly. Provided, in no
11 event shall a township enter an abandoned cemetery under this
12 subsection if the owner of the property or the legally
13 responsible cemetery authority provides written notification
14 to the township, prior to the township's entry (1)
15 demonstrating the ownership or authority to control or manage
16 the cemetery and (2) declining the township authorization to
17 enter the property. In making a cemetery orderly under this
18 Section, the township may take necessary measures to correct
19 dangerous conditions that exist in regard to markers,
20 memorials, or other cemetery artifacts but may not
21 permanently remove those items from their location on the
22 cemetery grounds. If an abandoned cemetery is dedicated as
23 an Illinois nature preserve under the Illinois Natural Areas
24 Preservation Act, any actions to cause the grounds to be
25 cleared and kept orderly shall be consistent with the rules
26 and master plan governing the dedicated nature preserve.
27 (c) In this Section:
28 "Abandoned cemetery" means an area of land containing
29 more than 6 places of interment for which, after diligent
30 search, no owner of the land or currently functioning
31 cemetery authority objects to entry sought pursuant to this
32 Section, and (1) at which no interments have taken place in
33 at least 3 years; or (2) for which there has been inadequate
34 maintenance for at least 6 months.
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1 "Diligent search" includes, but is not limited to,
2 publication of a notice in a newspaper of local circulation
3 not more than 45 but at least 30 days prior to a township's
4 entry and cleanup of cemetery grounds. The notice shall
5 provide (1) notice of the township's intended entry and
6 cleanup of the cemetery; (2) the name, if known, and
7 geographic location of the cemetery; (3) the right of the
8 cemetery authority or owner of the property to deny entry to
9 the township upon written notice to the township; and (4) the
10 date or dates of the intended cleanup.
11 "Inadequate maintenance" includes, but is not limited to,
12 the failure to cut the lawn throughout a cemetery to prevent
13 an overgrowth of grass and weeds; the failure to trim shrubs
14 to prevent excessive overgrowth; the failure to trim trees so
15 as to remove dead limbs; the failure to keep in repair the
16 drains, water lines, roads, buildings, fences, and other
17 structures of the cemetery premises; or the failure to keep
18 the cemetery premises free of trash and debris.
19 (Source: Laws 1963, p. 824; P.A. 88-62.)
20 Section 15. The Illinois Municipal Code is amended by
21 changing Section 11-49-1 as follows:
22 (65 ILCS 5/11-49-1) (from Ch. 24, par. 11-49-1)
23 Sec. 11-49-1. Cemeteries; permitted activities.
24 (a) The corporate authorities of each municipality may
25 establish and regulate cemeteries within or without the
26 municipal limits; may acquire lands therefor, by purchase or
27 otherwise; may cause cemeteries to be removed; and may
28 prohibit their establishment within one mile of the municipal
29 limits.
30 (b) The corporate authorities also may enter into
31 contracts to purchase existing cemeteries, or lands for
32 cemetery purposes, on deferred installments to be paid solely
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1 from the proceeds of sale of cemetery lots. Every such
2 contract shall empower the purchasing municipality, in its
3 own name, to execute and deliver deeds to purchasers of
4 cemetery lots for burial purposes.
5 (c) The corporate authorities of each municipality that
6 has within its territory an abandoned cemetery may enter the
7 cemetery grounds and cause the grounds to be cleared and made
8 orderly. Provided, in no event shall the corporate
9 authorities of a municipality enter an abandoned cemetery
10 under this subsection if the owner of the property or the
11 legally responsible cemetery authority provides written
12 notification to the corporate authorities, prior to the
13 corporate authorities' entry (1) demonstrating the ownership
14 or authority to control or manage the cemetery and (2)
15 declining the corporate authority authorization to enter the
16 property. In making a cemetery orderly under this Section,
17 the corporate authorities of a municipality may take
18 necessary measures to correct dangerous conditions that exist
19 in regard to markers, memorials, or other cemetery artifacts
20 but may not permanently remove those items from their
21 location on the cemetery grounds. If an abandoned cemetery
22 is dedicated as an Illinois nature preserve under the
23 Illinois Natural Areas Preservation Act, any actions to cause
24 the grounds to be cleared and kept orderly shall be
25 consistent with the rules and master plan governing the
26 dedicated nature preserve.
27 (d) In this Section:
28 "Abandoned cemetery" means an area of land containing
29 more than 6 places of interment for which, after diligent
30 search, no owner of the land or currently functioning
31 cemetery authority objects to entry sought pursuant to this
32 Section, and (1) at which no interments have taken place in
33 at least 3 years; or (2) for which there has been inadequate
34 maintenance for at least 6 months.
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1 "Diligent search" includes, but is not limited to,
2 publication of a notice in a newspaper of local circulation
3 not more than 45 but at least 30 days prior to entry and
4 cleanup of cemetery grounds by the corporate authorities of a
5 municipality. The notice shall provide (1) notice of the
6 corporate authorities' intended entry and cleanup of the
7 cemetery; (2) the name, if known, and geographic location of
8 the cemetery; (3) the right of the cemetery authority or
9 owner of the property to deny entry to the corporate
10 authorities upon written notice to those authorities; and (4)
11 the date or dates of the intended cleanup.
12 "Inadequate maintenance" includes, but is not limited to,
13 the failure to cut the lawn throughout a cemetery to prevent
14 an overgrowth of grass and weeds; the failure to trim shrubs
15 to prevent excessive overgrowth; the failure to trim trees so
16 as to remove dead limbs; the failure to keep in repair the
17 drains, water lines, roads, buildings, fences, and other
18 structures of the cemetery premises; or the failure to keep
19 the cemetery premises free of trash and debris.
20 (Source: Laws 1961, p. 576.)
21 Section 20. The Illinois Funeral or Burial Funds Act is
22 amended by changing Sections 1a, 1a-1, 2, 2a, 3, 3a, 3e, 3f,
23 4, 7.2, and 8 and by adding Sections 3a-5 and 8.1 as follows:
24 (225 ILCS 45/1a) (from Ch. 111 1/2, par. 73.101a)
25 Sec. 1a. For the purposes of this Act, the following
26 terms shall have the meanings specified, unless the context
27 clearly requires another meaning:
28 "Beneficiary" means the person specified in the pre-need
29 contract upon whose death funeral services or merchandise
30 shall be provided or delivered.
31 "Licensee" means a seller of a pre-need contract who has
32 been licensed by the Comptroller under this Act.
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1 "Outer burial container" means any container made of
2 concrete, steel, wood, fiberglass or similar material, used
3 solely at the interment site, and designed and used
4 exclusively to surround or enclose a separate casket and to
5 support the earth above such casket, commonly known as a
6 burial vault, grave box or grave liner, but not including a
7 lawn crypt as defined in the Illinois Pre-need Cemetery Sales
8 Act.
9 "Parent company" means a corporation that has a
10 controlling interest in another corporation.
11 "Person" means any person, partnership, association,
12 corporation, or other entity.
13 "Pre-need contract" means any agreement or contract, or
14 any series or combination of agreements or contracts, whether
15 funded by trust deposits or life insurance policies or
16 annuities, which has for a purpose the furnishing or
17 performance of funeral services or the furnishing or delivery
18 of any personal property, merchandise, or services of any
19 nature in connection with the final disposition of a dead
20 human body. Nothing in this Act is intended to regulate the
21 content of a life insurance policy or a tax-deferred annuity.
22 "Provider" means a person who is obligated for furnishing
23 or performing funeral services or the furnishing or delivery
24 of any personal property, merchandise, or services of any
25 nature in connection with the final disposition of a dead
26 human body.
27 "Purchaser" means the person who originally paid the
28 money under or in connection with a pre-need contract.
29 "Sales proceeds" means the entire amount paid to a
30 seller, exclusive of sales taxes paid by the seller, finance
31 charges paid by the purchaser, and credit life, accident or
32 disability insurance premiums, upon any agreement or
33 contract, or series or combination of agreements or
34 contracts, for the purpose of performing funeral services or
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1 furnishing personal property, merchandise, or services of any
2 nature in connection with the final disposition of a dead
3 human body, including, but not limited to, the retail price
4 paid for such services and personal property and merchandise.
5 "Purchase price" means the sales proceeds less finance
6 charges on retail installment contracts.
7 "Seller" means the person who sells or offers to sell the
8 pre-need contract to a purchaser, whether funded by a trust
9 agreement, life insurance policy, or tax-deferred annuity.
10 "Trustee" means a person authorized to hold funds under
11 this Act.
12 (Source: P.A. 88-477.)
13 (225 ILCS 45/1a-1)
14 Sec. 1a-1. Pre-need contracts.
15 (a) It shall be unlawful for any seller doing business
16 within this State to accept sales proceeds from a purchaser,
17 either directly or indirectly by any means, unless the seller
18 enters into a pre-need contract with the purchaser which
19 meets the following requirements:
20 (1) It states the name and address of the principal
21 office of the seller and the parent company of the
22 seller, if any provider, or clearly discloses that the
23 provider will be selected by the purchaser or the
24 purchaser's survivor or legal representative at a later
25 date, except that no contract shall contain any provision
26 restricting the right of the contract purchaser during
27 his or her lifetime in making his or her own selection of
28 a provider.
29 (2) It clearly identifies the provider's seller's
30 name and address, the purchaser, and the beneficiary, if
31 other than the purchaser, and the provider, if different
32 than the seller or discloses that the provider will be
33 selected at a later date.
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1 (2.5) If the provider has branch locations, the
2 contract gives the purchaser the opportunity to identify
3 the branch at which the funeral will be provided.
4 (3) It contains a complete description of the
5 funeral merchandise and services to be provided and the
6 price of the merchandise and services, and it clearly
7 discloses whether the price of the merchandise and
8 services is guaranteed or not guaranteed as to price.
9 (A) Each guaranteed price contract shall
10 contain the following statement in 12 point bold
11 type:
12 THIS CONTRACT GUARANTEES THE BENEFICIARY THE
13 SPECIFIC GOODS AND SERVICES CONTRACTED FOR. NO
14 ADDITIONAL CHARGES MAY BE REQUIRED. FOR DESIGNATED
15 GOODS AND SERVICES, ADDITIONAL CHARGES MAY BE
16 INCURRED FOR UNEXPECTED EXPENSES INCLUDING, BUT NOT
17 LIMITED TO, CASH ADVANCES, SHIPPING OF REMAINS FROM
18 A DISTANT PLACE, OR DESIGNATED HONORARIA ORDERED OR
19 DIRECTED BY SURVIVORS.
20 (B) Except as provided in subparagraph (C) of
21 this paragraph (3), each non-guaranteed price
22 contract shall contain the following statement in 12
23 point bold type:
24 THIS CONTRACT DOES NOT GUARANTEE THE PRICE THE
25 BENEFICIARY WILL PAY FOR ANY SPECIFIC GOODS OR
26 SERVICES. ANY FUNDS PAID UNDER THIS CONTRACT ARE
27 ONLY A DEPOSIT TO BE APPLIED TOWARD THE FINAL PRICE
28 OF THE GOODS OR SERVICES CONTRACTED FOR. ADDITIONAL
29 CHARGES MAY BE REQUIRED.
30 (C) If a non-guaranteed price contract may
31 subsequently become guaranteed, the contract shall
32 clearly disclose the nature of the guarantee and the
33 time, occurrence, or event upon which the contract
34 shall become a guaranteed price contract.
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1 (4) It provides that if the particular supplies and
2 services specified in the pre-need contract are
3 unavailable at the time of delivery, the provider shall
4 be required to furnish supplies and services similar in
5 style and at least equal in quality of material and
6 workmanship.
7 (5) It discloses any penalties or restrictions,
8 including but not limited to geographic restrictions or
9 the inability of the provider, if selected, to perform,
10 on the delivery of merchandise, services, or pre-need
11 contract guarantees.
12 (6) Regardless of the method of funding the
13 pre-need contract, the following must be disclosed:
14 (A) Whether the pre-need contract is to be
15 funded by a trust, life insurance, or an annuity;
16 (B) The nature of the relationship among the
17 person entity funding the pre-need contract, the
18 provider, if selected, and the seller; and
19 (C) The impact on the pre-need contract of (i)
20 any changes in the funding arrangement including but
21 not limited to changes in the assignment,
22 beneficiary designation, or use of the funds; (ii)
23 any specific penalties to be incurred by the
24 contract purchaser as a result of failure to make
25 payments; (iii) penalties to be incurred or moneys
26 or refunds to be received as a result of
27 cancellations; and (iv) all relevant information
28 concerning what occurs and whether any entitlements
29 or obligations arise if there is a difference
30 between the proceeds of the particular funding
31 arrangement and the amount actually needed to pay
32 for the funeral at-need.; and
33 (D) The method of changing or selecting the
34 designation of the provider.
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1 (b) All pre-need contracts are subject to the Federal
2 Trade Commission Rule concerning the Cooling-Off Period for
3 Door-to-Door Sales (16 CFR Part 429).
4 (c) No pre-need contract shall be sold in this State
5 unless there is a provider for the services and personal
6 property being sold, or unless disclosure has been made by
7 the seller as provided in subdivision (a)(1). If the seller
8 is not a provider and a provider has been selected, then the
9 seller must have a binding agreement with a provider, and the
10 identity of the provider and the nature of the agreement
11 between the seller and the provider shall be disclosed in the
12 pre-need contract at the time of the sale and before the
13 receipt of any sales proceeds. Any subsequent change made in
14 the identity of the provider shall be approved in writing by
15 the purchaser and beneficiary within 30 days after it occurs.
16 The failure to disclose the identity of the provider, the
17 nature of the agreement between the seller and the provider,
18 or any changes thereto to the purchaser and beneficiary, or
19 the failure to make the disclosures required in subdivision
20 (a)(1), constitutes an intentional violation of this Act.
21 (d) All pre-need contracts must be in writing in at
22 least 12 point type, numbered, and executed in duplicate and
23 no pre-need contract form shall be used without prior filing
24 with the Comptroller. A signed copy of the pre-need contract
25 must be provided to the purchaser at the time of entry into
26 the pre-need contract. The Comptroller shall review all
27 pre-need contract forms and shall prohibit the use of
28 contract forms which do not meet the requirements of this Act
29 upon written notification to the seller. Any use or
30 attempted use of any oral pre-need contract or any written
31 pre-need contract in a form not filed with the Comptroller or
32 in a form which does not meet the requirements of this Act
33 shall be deemed a violation of this Act and is voidable by
34 the purchaser without penalty. Life insurance policies,
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1 tax-deferred annuities, endorsements, riders, or applications
2 for life insurance or tax-deferred annuities are not subject
3 to filing with the Comptroller. The Comptroller may by rule
4 develop a model pre-need contract form which meets the
5 requirements of this Act.
6 (e) The State Comptroller shall by rule develop a
7 booklet for consumers in plain English describing the scope,
8 application, and consumer protections of this Act. After the
9 adoption of these rules, no pre-need contract shall be sold
10 in this State unless the seller (i) distributes to the
11 purchaser prior to the sale a booklet promulgated or approved
12 for use by the State Comptroller and (ii) explains to the
13 purchaser the terms of the pre-need contract prior to the
14 purchaser's signing.
15 (f) All sales proceeds received in connection with a
16 pre-need contract shall be deposited into a trust account as
17 provided in Section 1b and Section 2 of this Act, or shall be
18 used to purchase a life insurance policy or tax-deferred
19 annuity as provided in Section 2a of this Act.
20 (g) No pre-need contract shall be sold in this State
21 unless it is accompanied by a funding mechanism permitted
22 under this Act, and unless the seller is licensed by the
23 Comptroller as provided in Section 3 of this Act. Nothing in
24 this Act is intended to relieve sellers of pre-need contracts
25 from being licensed under any other Act required for their
26 profession or business, and being subject to the rules
27 promulgated to regulate their profession or business,
28 including rules on solicitation and advertisement.
29 (Source: P.A. 90-47, eff. 1-1-98.)
30 (225 ILCS 45/2) (from Ch. 111 1/2, par. 73.102)
31 Sec. 2. (a) If a purchaser selects a trust arrangement
32 to fund the pre-need contract, all trust deposits as
33 determined by Section 1b shall be made within 30 days of
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1 receipt.
2 (b) A trust established under this Act must be
3 maintained:
4 (1) in a trust account established in a bank,
5 savings and loan association, savings bank, or credit
6 union authorized to do business in Illinois in which
7 accounts are insured by an agency of the federal
8 government; or
9 (2) in a trust company authorized to do business in
10 Illinois.
11 (c) Trust agreements and amendments to the trust
12 agreements used to fund a pre-need contract shall be filed
13 with the Comptroller.
14 (d) (Blank). Trust agreements shall follow the format of
15 the standard Funeral Trust Agreements approved by the
16 Comptroller for guaranteed or non-guaranteed price funeral
17 plans.
18 (e) A seller or provider shall furnish to the trustee
19 and depositary the name of each payor and the amount of
20 payment on each such account for which deposit is being so
21 made. Nothing shall prevent the trustee or a seller or
22 provider acting as a trustee in accordance with this Act from
23 commingling the deposits in any such trust fund for purposes
24 of its management and the investment of its funds as provided
25 in the Common Trust Fund Act. In addition, multiple trust
26 funds maintained under this Act may be commingled or
27 commingled with other funeral or burial related trust funds
28 if all record keeping requirements imposed by law are met.
29 (f) Trust funds may be maintained in a financial
30 institution described in subsection (b) which is located in a
31 state adjoining this State where: (1) the financial
32 institution is located within 50 miles of the border of this
33 State, (2) its accounts are federally insured, and (3) it has
34 registered with the Illinois Secretary of State for purposes
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1 of service of process.
2 (g) Upon notice to the Comptroller, the seller may
3 change the trustee of the fund.
4 (Source: P.A. 88-477.)
5 (225 ILCS 45/2a)
6 Sec. 2a. Purchase of insurance or annuity.
7 (a) If a purchaser selects the purchase of a life
8 insurance policy or tax-deferred annuity contract to fund the
9 pre-need contract, the application and collected premium
10 shall be mailed within 30 days of signing the pre-need
11 contract.
12 (b) If life insurance or an annuity is used to fund a
13 pre-need contract, the seller or provider shall not be named
14 as the owner or beneficiary of the policy or annuity. No
15 person whose only insurable interest in the insured is the
16 receipt of proceeds from the policy or in naming who shall
17 receive the proceeds nor any trust acting on behalf of such
18 person or seller or provider shall be named as owner or
19 beneficiary of the policy or annuity.
20 (c) Nothing shall prohibit the purchaser from
21 irrevocably assigning ownership of the policy or annuity used
22 to fund a guaranteed price pre-need contract to a person or
23 trust for the purpose of obtaining favorable consideration
24 for Medicaid, Supplemental Security Income, or another public
25 assistance program, as permitted under federal law. The
26 seller or contract provider may be named a nominal owner of
27 the life insurance policy only for such time as it takes to
28 immediately transfer the policy into a trust. Except for
29 this purpose, neither the seller nor the contract provider
30 shall be named the owner or the beneficiary of the policy or
31 annuity. , except that neither the seller nor the contract
32 provider shall be named the owner of the policy or annuity.
33 (d) If a life insurance policy or annuity contract is
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1 used to fund a pre-need contract, except for guaranteed price
2 contracts permitted in Section 4(a) of this Act, the pre-need
3 contract must be revocable, and any the assignment provision
4 in the pre-need contract must contain the following
5 disclosure in 12 point bold type:
6 THIS ASSIGNMENT MAY BE REVOKED BY THE ASSIGNOR OR
7 ASSIGNOR'S SUCCESSOR OR, IF THE ASSIGNOR IS ALSO THE INSURED
8 AND DECEASED, BY THE REPRESENTATIVE OF THE INSURED'S ESTATE
9 BEFORE THE RENDERING TO THE CEMETERY SERVICES OR GOODS OR
10 FUNERAL SERVICES OR GOODS. IF THE ASSIGNMENT IS REVOKED, THE
11 DEATH BENEFIT UNDER THE LIFE INSURANCE POLICY OR ANNUITY
12 CONTRACT SHALL BE PAID IN ACCORDANCE WITH THE BENEFICIARY
13 DESIGNATION UNDER THE INSURANCE POLICY OR ANNUITY CONTRACT.
14 (e) Sales proceeds shall not be used to purchase life
15 insurance policies or tax-deferred annuities unless the
16 company issuing the life insurance policies or tax-deferred
17 annuities is licensed with the Illinois Department of
18 Insurance, and the insurance producer or annuity seller is
19 licensed to do business in the State of Illinois.
20 (Source: P.A. 88-477.)
21 (225 ILCS 45/3) (from Ch. 111 1/2, par. 73.103)
22 Sec. 3. Licensing.
23 (a) No person, firm, partnership, association or
24 corporation may act as seller without first securing from the
25 State Comptroller a license to so act. Application for such
26 license shall be in writing, signed by the applicant and duly
27 verified on forms furnished by the Comptroller. Each
28 application shall contain at least the following:
29 (1) The full name and address (both residence and
30 place of business) of the applicant, and every member,
31 officer and director thereof if the applicant is a firm,
32 partnership, association, or corporation, and of every
33 shareholder holding more than 10% of the corporate stock
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1 if the applicant is a corporation. Any license issued
2 pursuant to the application shall be valid only at the
3 address stated in the application for such applicant or
4 at such new address as may be approved by the
5 Comptroller;
6 (2) A statement of the applicant's assets and
7 liabilities approximate net worth;
8 (3) The name and address of the applicant's
9 principal place of business at which the books, accounts,
10 and records shall be available for examination by the
11 Comptroller as required by this Act;
12 (4) The names and addresses of the applicant's
13 branch locations at which pre-need sales shall be
14 conducted and which shall operate under the same license
15 number as the applicant's principal place of business;
16 (5) For each individual listed under item (1) above,
17 a detailed statement of the individual's business
18 experience for the 10 years immediately preceding the
19 application; any present or prior connection between the
20 individual and any other person engaged in pre-need
21 sales; any felony or misdemeanor convictions for which
22 fraud was an essential element; any charges or complaints
23 lodged against the individual for which fraud was an
24 essential element and which resulted in civil or criminal
25 litigation; any failure of the individual to satisfy an
26 enforceable judgment entered against him based upon
27 fraud; and any other information requested by the
28 Comptroller relating to past business practices of the
29 individual. Since the information required by this item
30 (5) may be confidential or contain proprietary
31 information, this information shall not be available to
32 other licensees or the general public and shall be used
33 only for the lawful purposes of the Comptroller in
34 enforcing this Act;
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1 (6) The name of the trustee and, if applicable, the
2 names of the advisors to the trustee, including a copy of
3 the proposed trust agreement under which the trust funds
4 are to be held as required by this Act; and
5 (7) Such other information as the Comptroller may
6 reasonably require in order to determine the
7 qualification of the applicant to be licensed under this
8 Act. and (3)
9 (b) Applications for license shall be accompanied by a
10 fidelity bond executed by the applicant and a surety company
11 authorized to do business in this State or an irrevocable,
12 unconditional letter of credit issued by a bank, credit
13 union, or trust company authorized to do business in the
14 State of Illinois, as approved by the State Comptroller, in
15 such amount not exceeding $10,000 as the Comptroller may
16 require. Individual salespersons employed by a licensee
17 shall not be required to obtain licenses in their individual
18 capacities. Upon receipt of such application and bond or
19 letter of credit the Comptroller shall issue a license unless
20 he or she shall determine that the applicant has made false
21 statements or representations in such application, or is
22 insolvent, or has conducted or is about to conduct his
23 business in a fraudulent manner, or is not duly authorized to
24 transact business in this State. Such license shall be kept
25 conspicuously posted in the place of business of the
26 licensee. If, after notice and an opportunity to be heard, it
27 has been determined that a licensee has violated this Act
28 within the past 5 calendar years, or if a licensee does not
29 retain a corporate fiduciary, as defined in the Corporate
30 Fiduciary Act, to manage the funds in trust pursuant to this
31 Act, the Comptroller may require an additional bond or letter
32 of credit from the licensee from time to time in amounts
33 equal to one-tenth of such trust funds, which bond or letter
34 of credit shall run to the Comptroller for the use and
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1 benefit of the beneficiaries of such trust funds.
2 The licensee shall keep accurate accounts, books and
3 records in this State, at the principal place of business
4 identified in the licensee's license application or as
5 otherwise approved by the Comptroller in writing, of all
6 transactions, copies of all pre-need contracts, trust
7 agreements, and other agreements, dates and amounts of
8 payments made and accepted thereon, the names and addresses
9 of the contracting parties, the persons for whose benefit
10 such funds are accepted, and the names of the depositaries of
11 such funds. Each licensee shall maintain the documentation
12 for a period of 3 years after the licensee has fulfilled his
13 obligations under the pre-need contract. Additionally, for a
14 period not to exceed 6 months after the performance of all
15 terms in a pre-need sales contract, the licensee shall
16 maintain copies of the contract at the licensee branch
17 location where the contract was entered. If an insurance
18 policy or tax-deferred annuity is used to fund the pre-need
19 contract, the licensee under this Act shall keep and maintain
20 accurate accounts, books, and records in this State, at the
21 principal place of business identified in the licensee's
22 application or as otherwise approved by the Comptroller in
23 writing, of all insurance policies and tax-deferred annuities
24 used to fund the pre-need contract, the name and address of
25 insured, annuitant, and initial beneficiary, and the name and
26 address of the insurance company issuing the policy or
27 annuity. If a life insurance policy or tax-deferred annuity
28 is used to fund a pre-need contract, the licensee shall
29 notify the insurance company of the name of each pre-need
30 contract purchaser and the amount of each payment when the
31 pre-need contract, insurance policy or annuity is purchased.
32 The licensee shall make reports to the Comptroller
33 annually or at such other time as the Comptroller may
34 require, on forms furnished by the Comptroller. The licensee
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1 shall file the annual report with the Comptroller within 75
2 days after the end of the licensee's fiscal year. The
3 Comptroller shall for good cause shown grant an extension for
4 the filing of the annual report upon the written request of
5 the licensee. Such extension shall not exceed 60 days. If a
6 licensee fails to submit an annual report to the Comptroller
7 within the time specified in this Section, the Comptroller
8 shall impose upon the licensee a penalty of $5 for each and
9 every day the licensee remains delinquent in submitting the
10 annual report. Every application shall be accompanied by a
11 check or money order in the amount of $25 and every report
12 shall be accompanied by a check or money order in the amount
13 of $10 payable to: Comptroller, State of Illinois.
14 The licensee shall make all required books and records
15 pertaining to trust funds, insurance policies, or
16 tax-deferred annuities available to the Comptroller for
17 examination. The Comptroller, or a person designated by the
18 Comptroller who is trained to perform such examinations, may
19 at any time investigate the books, records and accounts of
20 the licensee with respect to trust funds, insurance policies,
21 or tax-deferred annuities and for that purpose may require
22 the attendance of and examine under oath all persons whose
23 testimony he may require. The licensee shall pay a fee for
24 such examination in accordance with a schedule established by
25 the Comptroller. The fee shall not exceed the cost of such
26 examination. For pre-need contracts funded by trust
27 arrangements, the cost of an initial examination shall be
28 borne by the licensee if it has $10,000 or more in trust
29 funds, otherwise, by the Comptroller. The charge made by the
30 Comptroller for an examination shall be based upon the total
31 amount of trust funds held by the licensee at the end of the
32 calendar or fiscal year for which the report is required by
33 this Act and shall be in accordance with the following
34 schedule:
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1 Less than $10,000..................................no charge;
2 $10,000 or more but less than $50,000....................$10;
3 $50,000 or more but less than $100,000...................$40;
4 $100,000 or more but less than $250,000..................$80;
5 $250,000 or more........................................$100.
6 The Comptroller may order additional audits or
7 examinations as he or she may deem necessary or advisable to
8 ensure the safety and stability of the trust funds and to
9 ensure compliance with this Act. These additional audits or
10 examinations shall only be made after good cause is
11 established by the Comptroller in the written order. The
12 grounds for ordering these additional audits or examinations
13 may include, but shall not be limited to:
14 (1) material and unverified changes or fluctuations
15 in trust balances or insurance or annuity policy amounts;
16 (2) the licensee changing trustees more than twice
17 in any 12-month period;
18 (3) any withdrawals or attempted withdrawals from
19 the trusts, insurance policies, or annuity contracts in
20 violation of this Act; or
21 (4) failure to maintain or produce documentation
22 required by this Act for deposits into trust accounts,
23 trust investment activities, or life insurance or annuity
24 policies.
25 Prior to ordering an additional audit or examination, the
26 Comptroller shall request the licensee to respond and comment
27 upon the factors identified by the Comptroller as warranting
28 the subsequent examination or audit. The licensee shall have
29 30 days to provide a response to the Comptroller. If the
30 Comptroller decides to proceed with the additional
31 examination or audit, the licensee shall bear the full cost
32 of that examination or audit, up to a maximum of $7,500. The
33 Comptroller may elect to pay for the examination or audit and
34 receive reimbursement from the licensee. Payment of the
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1 costs of the examination or audit by a licensee shall be a
2 condition of receiving, maintaining, or renewing a license
3 under this Act. All moneys received by the Comptroller for
4 examination or audit fees shall be maintained in a separate
5 account to be known as the Comptroller's Administrative Fund.
6 This Fund, subject to appropriation by the General Assembly,
7 may be utilized by the Comptroller for enforcing this Act and
8 other purposes that may be authorized by law.
9 For pre-need contracts funded by life insurance or a
10 tax-deferred annuity, the cost of an examination shall be
11 borne by the licensee if it has received $10,000 or more in
12 premiums during the preceding calendar year. The fee schedule
13 for such examination shall be established in rules
14 promulgated by the Comptroller. In the event such
15 investigation or other information received by the
16 Comptroller discloses a substantial violation of the
17 requirements of this Act, the Comptroller shall revoke the
18 license of such person upon a hearing as provided in this
19 Act. Such licensee may terminate all further responsibility
20 for compliance with the requirements of this Act by
21 voluntarily surrendering the license to the Comptroller, or
22 in the event of its loss, furnishing the Comptroller with a
23 sworn statement to that effect, which states the licensee's
24 intention to discontinue acceptance of funds received under
25 pre-need contracts. Such license or statement must be
26 accompanied by an affidavit that said licensee has lawfully
27 expended or refunded all funds received under pre-need
28 contracts, and that the licensee will accept no additional
29 sales proceeds. The Comptroller shall immediately cancel or
30 revoke said license.
31 (Source: P.A. 88-477; 89-615, eff. 8-9-96.)
32 (225 ILCS 45/3a) (from Ch. 111 1/2, par. 73.103a)
33 Sec. 3a. Denial, suspension, or revocation of license.
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1 (a) The Comptroller may refuse to issue or may suspend
2 or revoke a license on any of the following grounds:
3 (1) The applicant or licensee has made any
4 misrepresentations or false statements or concealed any
5 material fact.
6 (2) The applicant or licensee is insolvent.
7 (3) The applicant or licensee has been engaged in
8 business practices that work a fraud.
9 (4) The applicant or licensee has refused to give
10 pertinent data to the Comptroller.
11 (5) The applicant or licensee has failed to satisfy
12 any enforceable judgment or decree rendered by any court
13 of competent jurisdiction against the applicant.
14 (6) The applicant or licensee has conducted or is
15 about to conduct business in a fraudulent manner.
16 (7) The trustee advisors or the trust agreement is
17 not satisfactory to the Comptroller.
18 (8) The fidelity bond is not satisfactory to the
19 Comptroller.
20 (9) As to any individual, the individual has
21 conducted or is about to conduct any business on behalf
22 of the applicant in a fraudulent manner; has been
23 convicted of any felony or misdemeanor, an essential
24 element of which is fraud; has had a judgment rendered
25 against him or her based on fraud in any civil
26 litigation; has failed to satisfy any enforceable
27 judgment or decree rendered against him or her by any
28 court of competent jurisdiction; or has been convicted of
29 any felony or any theft-related offense.
30 (10) The applicant or licensee, including any
31 member, officer, or director thereof if the applicant or
32 licensee is a firm, partnership, association or
33 corporation and any shareholder holding more than 10% of
34 the corporate stock, has violated any provision of this
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1 Act or any regulation, decision, order, or finding made
2 by the Comptroller under this Act.
3 (11) The Comptroller finds any fact or condition
4 existing which, if it had existed at the time of the
5 original application for such license, would have
6 warranted the Comptroller in refusing the issuance of the
7 license.
8 (b) Before refusal to issue or renew and before
9 suspension or revocation of a license, the Comptroller shall
10 hold a hearing to determine whether the applicant or
11 licensee, hereinafter referred to as the respondent, is
12 entitled to hold such a license. At least 10 days prior to
13 the date set for such hearing, the Comptroller shall notify
14 the respondent in writing that on the date designated a
15 hearing will be held to determine his eligibility for a
16 license and that he may appear in person or by counsel. Such
17 written notice may be served on the respondent personally, or
18 by registered or certified mail sent to the respondent's
19 business address as shown in his latest notification to the
20 Comptroller. 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 allowances as prescribed in judicial proceedings in
30 civil cases.
31 Any authorized agent of the Comptroller may administer
32 oaths to witnesses at any hearing which the Comptroller is
33 authorized to conduct.
34 (Source: P.A. 84-839.)
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1 (225 ILCS 45/3a-5 new)
2 Section 3a-5. License requirements.
3 (a) Every license issued by the Comptroller shall state
4 the number of the license, the business name and address of
5 the licensee's principal place of business, each branch
6 location also operating under the license, and the licensee's
7 parent company, if any. The license shall be conspicuously
8 posted in each place of business operating under the license.
9 The Comptroller may issue such additional licenses as may be
10 necessary for licensee branch locations upon compliance with
11 the provisions of this Act governing an original issuance of
12 a license for each new license.
13 (b) Individual salespersons representing a licensee
14 shall not be required to obtain licenses in their individual
15 capacities, but must acknowledge, by affidavit, that they
16 have been educated in the provisions of this Act and
17 understand the penalties for failure to comply. The licensee
18 shall retain copies of the affidavits of its sellers for its
19 records and shall make the affidavits available to the
20 Comptroller for examination upon request.
21 (c) The licensee shall be responsible for the activities
22 of any person representing the licensee in selling or
23 offering a pre-need contract for sale.
24 (d) Any person not selling on behalf of a licensee shall
25 obtain its own license.
26 (e) No license shall be transferable or assignable
27 without the express written consent of the Comptroller. A
28 transfer of more than 50% of the ownership of any business
29 licensed hereunder shall be deemed to be an attempted
30 assignment of the license originally issued to the licensee
31 for which consent of the Comptroller shall be required.
32 (f) Every license issued hereunder shall remain in force
33 until it has been suspended, surrendered, or revoked in
34 accordance with this Act. The Comptroller, upon the request
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1 of an interested person or on his own motion, may issue new
2 licenses to a licensee whose license or licenses have been
3 revoked, if no factor or condition then exists which would
4 have warranted the Comptroller to originally refuse the
5 issuance of such license.
6 (225 ILCS 45/3e) (from Ch. 111 1/2, par. 73.103e)
7 Sec. 3e. Upon the revocation of, suspension of, or
8 refusal to renew any license, the licensee shall immediately
9 surrender the license or licenses and any branch office
10 licenses to the Comptroller. If the licensee fails to do so,
11 the Comptroller shall have the right to seize the same.
12 (Source: P.A. 84-839.)
13 (225 ILCS 45/3f)
14 Sec. 3f. Revocation of license.
15 (a) The Comptroller, upon determination that grounds
16 exist for the revocation or suspension of a license issued
17 under this Act, may 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.
20 (b) Whenever a license is revoked by the Comptroller, he
21 or she shall apply to the Circuit Court of the county wherein
22 the licensee is located for a receiver to administer the
23 trust funds of the licensee or to maintain the life insurance
24 policies and tax-deferred annuities held by the licensee
25 under a pre-need contract.
26 (Source: P.A. 88-477.)
27 (225 ILCS 45/4) (from Ch. 111 1/2, par. 73.104)
28 Sec. 4. Withdrawal of funds; revocability of contract.
29 (a) The amount or amounts so deposited into trust, with
30 interest thereon, if any, shall not be withdrawn until the
31 death of the person or persons for whose funeral or burial
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1 such funds were paid, unless sooner withdrawn and repaid to
2 the person who originally paid the money under or in
3 connection with the pre-need contract or to his or her legal
4 representative. The life insurance policies or tax-deferred
5 annuities shall not be surrendered until the death of the
6 person or persons for whose funeral or burial the policies or
7 annuities were purchased, unless sooner surrendered and
8 repaid to the owner of the policy purchased under or in
9 connection with the pre-need contract or to his or her legal
10 representative. If, however, the agreement or series of
11 agreements provides for forfeiture and retention of any or
12 all payments as and for liquidated damages as provided in
13 Section 6, then the trustee may withdraw the deposits. In
14 addition, nothing in this Section (i) prohibits the change of
15 depositary by the trustee and the transfer of trust funds
16 from one depositary to another or (ii) prohibits a contract
17 purchaser who is or may become eligible for public assistance
18 under any applicable federal or State law or local ordinance
19 including, but not limited to, eligibility under 24 C.F.R.,
20 Part 913 relating to family insurance under federal Housing
21 and Urban Development Policy from irrevocably waiving, in
22 writing, and renouncing the right to cancel a pre-need
23 contract for funeral services in an amount prescribed by rule
24 of the Illinois Department of Public Aid. No guaranteed price
25 pre-need funeral contract may prohibit a purchaser from
26 making a contract irrevocable to the extent that federal law
27 or regulations require that such a contract be irrevocable
28 for purposes of the purchaser's eligibility for Supplemental
29 Security Income benefits, Medicaid, or another public
30 assistance program, as permitted under federal law.
31 (b) If for any reason a seller or provider who has
32 engaged in pre-need sales has refused, cannot, or does not
33 comply with the terms of the pre-need contract within a
34 reasonable time after he or she is required to do so, the
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1 purchaser or his or her heirs or assigns or duly authorized
2 representative shall have the right to a refund of an amount
3 equal to the sales proceeds price paid for undelivered
4 merchandise or services plus otherwise earned undistributed
5 interest amounts held in trust attributable to the contract,
6 within 30 days of the filing of a sworn affidavit with the
7 trustee setting forth the existence of the contract and the
8 fact of breach. A copy of this affidavit shall be filed with
9 the Comptroller and the seller. In the event a seller is
10 prevented from performing by strike, shortage of materials,
11 civil disorder, natural disaster, or any like occurrence
12 beyond the control of the seller or provider, the seller or
13 provider's time for performance shall be extended by the
14 length of the delay. Nothing in this Section shall relieve
15 the seller or provider from any liability for non-performance
16 of his or her obligations under the pre-need contract.
17 (c) After final payment on a pre-need contract, any
18 purchaser may, upon written demand to a seller, demand that
19 the pre-need contract with the seller be terminated. The
20 seller shall, within 30 days, initiate a refund to the
21 purchaser of the entire amount held in trust attributable to
22 undelivered merchandise and unperformed services, including
23 otherwise earned undistributed interest earned thereon or the
24 cash surrender value of a life insurance policy or
25 tax-deferred annuity.
26 (c-5) If no funeral merchandise or services are provided
27 or if the funeral is conducted by another person, the seller
28 may keep no more than 10% of the payments made under the
29 pre-need contract or $300, whichever sum is less. The
30 remainder of the trust funds or insurance or annuity proceeds
31 shall be forwarded to the legal heirs of the deceased or as
32 determined by probate action.
33 (d) The placement and retention of all or a portion of a
34 casket, combination casket-vault, urn, or outer burial
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1 container comprised of materials which are designed to
2 withstand prolonged storage in the manner set forth in this
3 paragraph without adversely affecting the structural
4 integrity or aesthetic characteristics of such merchandise in
5 a specific burial space in which the person or persons for
6 whose funeral or burial the merchandise was intended has a
7 right of interment, or the placement of the merchandise in a
8 specific mausoleum crypt or lawn crypt in which such person
9 has a right of entombment, or the placement of the
10 merchandise in a specific niche in which such person has a
11 right of inurnment, or delivery to such person and retention
12 by such person until the time of need shall constitute actual
13 delivery to the person who originally paid the money under or
14 in connection with said agreement or series of agreements.
15 Actual delivery shall eliminate, from and after the date of
16 actual delivery, any requirement under this Act to place or
17 retain in trust any funds received for the sale of such
18 merchandise. The delivery, prior to the time of need, of any
19 funeral or burial merchandise in any manner other than
20 authorized by this Section shall not constitute actual
21 delivery and shall not eliminate any requirement under this
22 Act to place or retain in trust any funds received for the
23 sale of such merchandise.
24 (Source: P.A. 87-1091; 88-477.)
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
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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 $5,000 for each violation. This liability
31 shall be enforced in an action brought in any court of
32 competent jurisdiction by the Comptroller in the name of the
33 People of the State of Illinois.
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1 Any violation of this Act for which a fine may be
2 assessed shall be established by rules promulgated by the
3 Comptroller.
4 In addition to the other penalties and remedies provided
5 in this Act, the Comptroller may bring a civil action in the
6 county of residence of the licensee or any person accepting
7 trust funds to enjoin any violation or threatened violation
8 of this Act.
9 The powers vested in the Comptroller by this Section are
10 in addition to any and all other powers and remedies vested
11 in the Comptroller by law.
12 (Source: P.A. 88-477.)
13 (225 ILCS 45/8.1 new)
14 Sec. 8.1. Sales; liability of purchaser for shortage. In
15 the event of a sale or transfer of all or substantially all
16 of the assets of the licensee, the sale or transfer of the
17 controlling interest of the corporate stock of the licensee
18 if the licensee is a corporation, the sale or transfer of the
19 controlling interest of the partnership if the licensee is a
20 partnership, or the sale of the licensee pursuant to
21 foreclosure proceedings, the purchaser is liable for any
22 shortages existing before or after the sale in the trust
23 funds required to be maintained in a trust pursuant to this
24 Act and shall honor all pre-need contracts and trusts entered
25 into by the licensee. Any shortages existing in the trust
26 funds constitute a prior lien in favor of the trust for the
27 total value of the shortages, and notice of that lien shall
28 be provided in all sales instruments.
29 In the event of a sale or transfer of all or
30 substantially all of the assets of the licensee, the sale or
31 transfer of the controlling interest of the corporate stock
32 of the licensee if the licensee is a corporation, or the sale
33 or transfer of the controlling interest of the partnership if
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1 the licensee is a partnership, the licensee shall, at least
2 21 days prior to the sale or transfer, notify the
3 Comptroller, in writing, of the pending date of sale or
4 transfer so as to permit the Comptroller to audit the books
5 and records of the licensee. The audit must be commenced
6 within 10 business days of the receipt of the notification
7 and completed within the 21-day notification period unless
8 the Comptroller notifies the licensee during that period that
9 there is a basis for determining a deficiency which will
10 require additional time to finalize. The sale or transfer
11 may not be completed by the licensee unless and until:
12 (i) the Comptroller has completed the audit of the
13 licensee's books and records;
14 (ii) any delinquency existing in the trust funds has
15 been paid by the licensee, or arrangements satisfactory
16 to the Comptroller have been made by the licensee on the
17 sale or transfer for the payment of any delinquency; and
18 (iii) the Comptroller issues a license upon
19 application of the new owner, which license must be
20 applied for within 30 days of the anticipated date of the
21 sale or transfer, subject to the payment of any
22 delinquencies, if any, as stated in item (ii).
23 For purposes of this Section, a person, firm,
24 corporation, partnership, or institution that acquires the
25 licensee through a real estate foreclosure shall be subject
26 to the provisions of this Section.
27 Section 25. The Illinois Public Aid Code is amended by
28 changing Section 12-4.11 as follows:
29 (305 ILCS 5/12-4.11) (from Ch. 23, par. 12-4.11)
30 Sec. 12-4.11. Grant amounts. The Department, with due
31 regard for and subject to budgetary limitations, shall
32 establish grant amounts for each of the programs, by
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1 regulation. The grant amounts may vary by program, size of
2 assistance unit and geographic area.
3 Aid payments shall not be reduced except: (1) for changes
4 in the cost of items included in the grant amounts, or (2)
5 for changes in the expenses of the recipient, or (3) for
6 changes in the income or resources available to the
7 recipient, or (4) for changes in grants resulting from
8 adoption of a consolidated grant amount.
9 In fixing standards to govern payments or reimbursements
10 for funeral and burial expenses, the Department shall
11 establish a minimum allowable amount of not less than $1,000
12 for Department payment of funeral services and not less than
13 $500 for Department payment of burial or cremation services.
14 In establishing the minimum allowable amount, the Department
15 shall take into account the services essential to a
16 dignified, low-cost (i) funeral and (ii) burial or cremation,
17 including reasonable amounts that may be necessary for burial
18 space and cemetery charges, and any applicable taxes or other
19 required governmental fees or charges. If no person has
20 agreed to pay the total cost of the (i) funeral and (ii)
21 burial or cremation charges, the Department shall pay the
22 vendor the actual costs of the (i) funeral and (ii) burial or
23 cremation, or the minimum allowable amount for each service
24 as established by the Department, whichever is less, provided
25 that the Department reduces its payments by the amount
26 available from the following sources: the decedent's assets
27 and available resources and the anticipated amounts of any
28 death benefits available to the decedent's estate, and
29 amounts paid and arranged to be paid by the decedent's
30 legally responsible relatives. A legally responsible relative
31 is expected to pay (i) funeral and (ii) burial or cremation
32 expenses unless financially unable to do so.
33 Nothing contained in this Section or in any other Section
34 of this Code shall be construed to prohibit the Illinois
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1 Department (1) from consolidating existing standards on the
2 basis of any standards which are or were in effect on, or
3 subsequent to July 1, 1969, or (2) from employing any
4 consolidated standards in determining need for public aid and
5 the amount of money payment or grant for individual
6 recipients or recipient families.
7 (Source: P.A. 90-17, eff. 7-1-97; 90-326, eff. 8-8-97;
8 90-372, eff. 7-1-98; 90-655, eff. 7-30-98; 91-24, eff.
9 7-1-99.)
10 Section 30. The Cemetery Care Act is amended by changing
11 Sections 2a, 9, 10, 11, 11.1, 13, and 15b and adding Section
12 26 as follows:
13 (760 ILCS 100/2a) (from Ch. 21, par. 64.2a)
14 Sec. 2a. Powers and duties of cemetery authorities;
15 cemetery property maintained by cemetery care funds.
16 (a) With respect to cemetery property maintained by
17 cemetery care funds, a cemetery authority is shall be
18 responsible for the performance of:
19 (1) (a) the care and maintenance of the cemetery
20 property it owns; and
21 (2) (b) the opening and closing of all graves,
22 crypts, or niches for human remains in any cemetery
23 property it owns.
24 (b) A cemetery authority owning, operating, controlling
25 or managing a privately operated cemetery shall provide
26 reasonable maintenance of the cemetery property and of the
27 lots, graves, crypts, and columbariums in the cemetery.
28 Reasonable maintenance includes, but is not limited to:
29 (1) the laying of seed, sod, or other suitable
30 ground cover as soon as practicable following an
31 interment given the weather conditions, climate, season,
32 and the interment's proximity to ongoing burial activity;
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1 (2) the cutting of the lawn throughout the cemetery
2 at reasonable intervals to prevent an overgrowth of grass
3 and weeds given the weather conditions, climate, and
4 season;
5 (3) the trimming of shrubs to prevent excessive
6 overgrowth;
7 (4) the trimming of trees to remove dead limbs;
8 (5) keeping in repair the drains, water lines,
9 roads, buildings, fences, and other structures; and
10 (6) keeping the cemetery premises free of trash and
11 debris.
12 Reasonable maintenance by the cemetery authority shall
13 not preclude the exercise of lawful rights by an owner of an
14 interment, inurnment, or entombment right, or the owner's
15 family and heirs, in accordance with the reasonable rules and
16 regulations of the cemetery or other agreement of the
17 cemetery authority. In the case of a cemetery dedicated as a
18 nature preserve under the Illinois Natural Areas Preservation
19 Act, reasonable maintenance by the cemetery authority shall
20 be in accordance with the rules and master plan governing the
21 dedicated nature preserve.
22 (c) A cemetery authority owning, operating, controlling
23 or managing a privately operated cemetery shall make
24 available for inspection, and upon reasonable request provide
25 a copy of, its rules and regulations and its current prices
26 of interment, inurnment, or entombment rights.
27 (d) A cemetery authority owning, operating, controlling
28 or managing a privately operated cemetery may, from time to
29 time as land in its cemetery may be required for burial
30 purposes, survey and subdivide those lands and make and file
31 in its office a map thereof delineating the lots or plots,
32 avenues, paths, alleys, and walks and their respective
33 designations. The cemetery authority shall open the map to
34 public inspection. The cemetery authority may make available
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1 a true copy of the map upon written request and payment of
2 reasonable photocopy fees. Any unsold lots, plots or parts
3 thereof, in which there are not human remains, may be
4 resurveyed and altered in shape or size, and properly
5 designated on such map. Nothing contained in this
6 subsection, however, shall prevent the cemetery authority
7 from enlarging an interment right by selling to the owner
8 thereof the excess space next to such interment right and
9 permitting interments therein, provided reasonable access to
10 such interment right and to adjoining interment rights is not
11 thereby eliminated.
12 (e) A cemetery authority owning, operating, controlling,
13 or managing a privately operated cemetery shall keep a record
14 of every interment, entombment, and inurnment in the
15 cemetery. The record shall include the deceased's name, age,
16 and date of burial, when these particulars can be
17 conveniently obtained, and the lot, plot, or section where
18 the human remains are interred, entombed, or inurned. The
19 record shall be open to public inspection. The cemetery
20 authority shall make available a true copy of the record upon
21 written request and payment of reasonable copy costs.
22 (f) A cemetery authority owning, operating, controlling,
23 or managing a privately operated cemetery shall provide
24 access to the cemetery under the cemetery authority's
25 reasonable rules and regulations.
26 (Source: P.A. 87-747.)
27 (760 ILCS 100/9) (from Ch. 21, par. 64.9)
28 Sec. 9. Application for license.
29 (a) Prior to the acceptance of care funds authorized by
30 Section 3 of this Act or the sale or transfer of the
31 controlling interest of a licensed cemetery authority, a
32 cemetery authority owning, operating, controlling, or
33 managing a privately operated cemetery shall make application
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1 to the Comptroller for a license to hold the funds. Whenever
2 a cemetery authority owning, operating, controlling or
3 managing a privately operated cemetery is newly organized and
4 such cemetery authority desires to be licensed to accept the
5 care funds authorized by Section 3 of this Act, or whenever
6 there is a sale or transfer of the controlling interest of a
7 licensed cemetery authority, it shall make application for
8 such license.
9 In the case of a sale or transfer of the controlling
10 interest of the cemetery authority, the prior license shall
11 remain in effect until the Comptroller issues a new license
12 to the newly-controlled cemetery authority as provided in
13 Section 15b. Upon issuance of the new license, the prior
14 license shall be deemed surrendered if the licensee has
15 agreed to the sale and transfer and has consented to the
16 surrender of the license. A sale or transfer of the
17 controlling interest of a cemetery authority to an immediate
18 family member is not considered a transfer of the controlling
19 interest for purposes of this Section.
20 (b) Applications for license shall be filed with the
21 Comptroller. Applications shall be in writing under oath,
22 signed by the applicant, and in the form furnished by the
23 Comptroller. The form furnished by the Comptroller shall
24 enable a cemetery authority to apply for license of multiple
25 cemetery locations within a single license application. A
26 check or money order in the amount of $25 per license seeking
27 to be issued under the application, payable to: Comptroller,
28 State of Illinois, shall be included. Each application shall
29 contain the following:
30 (1) the full name and address (both of residence
31 and of place of business) of the applicant, if an
32 individual; of every member, if the applicant is a
33 partnership or association; of every officer, or
34 director, if the applicant is a corporation;, and of any
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1 party owning 10% or more of the cemetery authority, and
2 the full name and address of the parent company, if any;
3 (2) a detailed statement of the applicant's assets
4 and liabilities;
5 (2.1) the name, address, and legal boundaries of
6 each cemetery for which the care funds shall be entrusted
7 and at which books, accounts, and records shall be
8 available for examination by the Comptroller as required
9 by Section 13 of this Act;
10 (3) as to the name of each individual person listed
11 under (1) above, a detailed statement of each person's
12 business experience for the 10 years immediately
13 preceding the application; the present and previous
14 connection, if any, of each person with any other
15 cemetery or cemetery authority; whether each person has
16 ever been convicted of any a felony or has ever been
17 convicted of any misdemeanor of which an essential
18 element is fraud or has been involved in any civil
19 litigation in which a judgment has been entered against
20 him or her based on fraud; whether each person is
21 currently a defendant in any lawsuit in which the
22 complaint against the person is based upon fraud; whether
23 such person has failed to satisfy any enforceable
24 judgment entered by a court of competent jurisdiction in
25 any civil proceedings against such individual; and
26 (4) the total amount in trust and now available
27 from sales of lots, graves, crypts or niches where part
28 of the sale price has been placed in trust; the amount of
29 money placed in the care funds of each applicant; the
30 amount set aside in care funds from the sale of lots,
31 graves, crypts and niches for the general care of the
32 cemetery and the amount available for that purpose; the
33 amount received in trust by special agreement for special
34 care and the amount available for that purpose; the
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1 amount of principal applicable to trust funds received by
2 the applicant; and.
3 (5) any other information that the Comptroller may
4 reasonably require in order to determine the
5 qualifications of the applicant to be licensed under this
6 Act.
7 Such information shall be furnished whether the care
8 funds are held by the applicant as trustee or by an
9 independent trustee. If the funds are not held by the
10 applicant, the name of the independent trustee holding them
11 is also to be furnished by the applicant.
12 (c) Applications for license shall also be accompanied
13 by a fidelity bond issued by a bonding company or insurance
14 company authorized to do business in this State or by an
15 irrevocable, unconditional letter of credit issued by a bank
16 or trust company authorized to do business in the State of
17 Illinois, as approved by the State Comptroller, where such
18 care funds exceed the sum of $15,000. Such bond or letter of
19 credit shall run to the Comptroller and his or her successor
20 for the benefit of the care funds held by such cemetery
21 authority or by the trustee of the care funds of such
22 cemetery authority. Such bonds or letters of credit shall be
23 in an amount equal to 1/10 of such care funds. However, such
24 bond or letter of credit shall not be in an amount less than
25 $1,000; the first $15,000 of such care funds shall not be
26 considered in computing the amount of such bond or letter of
27 credit. No application shall be accepted by the Comptroller
28 unless accompanied by such bond or letter of credit.
29 Applications for license by newly organized cemetery
30 authorities after January 1, 1960 shall also be accompanied
31 by evidence of a minimum care fund deposit in an amount to be
32 determined as follows: if the number of inhabitants, either
33 in the county in which the cemetery is to be located or in
34 the area included within a 10 mile radius from the cemetery
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1 if the number of inhabitants therein is greater, is 25,000 or
2 less the deposit shall be $7,500; if the number of
3 inhabitants is 25,001 to 50,000, the deposit shall be
4 $10,000; if the number of inhabitants is 50,001 to 125,000,
5 the deposit shall be $15,000; if the number of inhabitants is
6 over 125,000, the deposit shall be $25,000.
7 After an amount equal to and in addition to the required
8 minimum care fund deposit has been deposited in trust, the
9 cemetery authority may withhold 50% of all future care funds
10 until it has recovered the amount of the minimum care fund
11 deposit.
12 (d) (Blank). The applicant shall have a permanent
13 address and any license issued pursuant to the application is
14 valid only at the address or at any new address approved by
15 the Comptroller.
16 (e) All bonds and bonding deposits made by any cemetery
17 authority may be returned to the cemetery authority or
18 cancelled as to care funds invested with an investment
19 company.
20 (Source: P.A. 89-615, eff. 8-9-96; 90-655, eff. 7-30-98.)
21 (760 ILCS 100/10) (from Ch. 21, par. 64.10)
22 Sec. 10. Upon receipt of such application for license,
23 the Comptroller shall issue a license to the applicant unless
24 the Comptroller determines that:
25 (a) The applicant has made any misrepresentations or
26 false statements or has concealed any essential or material
27 fact, or
28 (b) The applicant is insolvent; or
29 (c) The applicant is or has been using practices in the
30 conducting of the cemetery business that work or tend to work
31 a fraud; or
32 (d) The applicant has refused to furnish or give
33 pertinent data to the Comptroller; or
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1 (e) The applicant has failed to notify the Comptroller
2 with respect to any material facts required in the
3 application for license under the provisions of this Act; or
4 (f) The applicant has failed to satisfy any enforceable
5 judgment entered by the circuit court in any civil
6 proceedings against such applicant; or
7 (g) The applicant has conducted or is about to conduct
8 its business in a fraudulent manner; or
9 (h) The applicant or any As to the name of any
10 individual listed in the license application, such individual
11 has conducted or is about to conduct any business on behalf
12 of the applicant in a fraudulent manner; or has been
13 convicted of a felony or any misdemeanor of which an
14 essential element is fraud; or has been involved in any civil
15 litigation in which a judgment has been entered against him
16 or her based on fraud; or has failed to satisfy any
17 enforceable judgment entered by the circuit court in any
18 civil proceedings against such individual; or has been
19 convicted of any felony; or has been convicted of any
20 theft-related offense; or has failed to comply with the
21 requirements of this Act; or has demonstrated a pattern of
22 failing to open or close any graves, crypts, or niches for
23 human remains in the cemetery within a reasonable time frame;
24 or has demonstrated a pattern of placing human remains in a
25 final resting place other than that required under an
26 agreement with a consumer; or has demonstrated a pattern of
27 improperly failing to honor a contract with a consumer; or
28 (i) The applicant has ever had a license involving
29 cemeteries or funeral homes revoked, suspended, or refused to
30 be issued in Illinois or elsewhere.
31 If the Comptroller so determines, then he or she shall
32 conduct a hearing to determine whether to deny the
33 application. However, no application shall be denied unless
34 the applicant has had at least 10 days' notice of a hearing
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1 on the application and an opportunity to be heard thereon. If
2 the application is denied, the Comptroller shall within 20
3 days thereafter prepare and keep on file in his or her office
4 the transcript of the evidence taken and a written order of
5 denial thereof, which shall contain his or her findings with
6 respect thereto and the reasons supporting the denial, and
7 shall send by United States mail a copy of the written order
8 of denial to the applicant at the address set forth in the
9 application, within 5 days after the filing of such order. A
10 review of such decision may be had as provided in Section 20
11 of this Act.
12 The license issued by the Comptroller shall remain in
13 full force and effect until it is surrendered by the licensee
14 or revoked by the Comptroller as hereinafter provided.
15 (Source: P.A. 88-477.)
16 (760 ILCS 100/11) (from Ch. 21, par. 64.11)
17 Sec. 11. Issuance and display of license. A license
18 issued under this Act authorizes the cemetery authority to
19 accept care funds for the cemetery identified in the license.
20 If a license application seeks licensure to accept care funds
21 on behalf of more than one cemetery location, the
22 Comptroller, upon approval of the license application, shall
23 issue to the cemetery authority a separate license for each
24 cemetery location indicated on the application. Each license
25 issued by the Comptroller under this Act is independent of
26 any other license that may be issued to a cemetery authority
27 under a single license application.
28 Every license issued by the Comptroller shall state the
29 number of the license and the address at which the business
30 is to be conducted. Such license shall be kept conspicuously
31 posted in the place of business of the licensee and shall not
32 be transferable or assignable.
33 No more than one place of business shall be maintained
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1 under the same license, but the Comptroller may issue more
2 than one license to the same licensee upon compliance with
3 the provisions of this Act governing an original issuance of
4 a license, for each new license.
5 Whenever a licensee shall wish to change the name as
6 originally set forth in his license, he shall give written
7 notice thereof to the Comptroller together with the reasons
8 for the change and if the change is approved by the
9 Comptroller he shall issue a new license.
10 A license issued by the Comptroller shall remain in full
11 force and effect until it is surrendered by the licensee or
12 suspended or revoked by the Comptroller as provided in this
13 Act.
14 (Source: P.A. 78-592.)
15 (760 ILCS 100/11.1)
16 Sec. 11.1. Investigation of unlawful practices. If it
17 appears to the Comptroller that a person has engaged in, is
18 engaging in, or is about to engage in any practice declared
19 to be unlawful by this Act, the Comptroller may:
20 (1) require that person to file on such terms as
21 the Comptroller prescribes a statement or report in
22 writing, under oath or otherwise, containing all
23 information the Comptroller may consider necessary to
24 ascertain whether a privately operated cemetery authority
25 licensee is in compliance with this Act, or whether an
26 unlicensed person is engaging in activities for which a
27 license is required;
28 (2) examine under oath any person in connection
29 with the books and records pertaining to or having an
30 impact upon the trust funds required to be maintained
31 pursuant to this Act;
32 (2.1) examine under oath any person in connection
33 with the performance of duties required to be performed
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1 under this Act;
2 (3) examine any books and records of the privately
3 operated cemetery authority, licensee, trustee, or
4 investment advisor that the Comptroller may consider
5 necessary to ascertain compliance with this Act; and
6 (4) require the production of a copy of any record,
7 book, document, account, or paper that is produced in
8 accordance with this Act and retain it in his or her
9 possession until the completion of all proceedings in
10 connection with which it is produced.
11 (Source: P.A. 89-615, eff. 8-9-96.)
12 (760 ILCS 100/13) (from Ch. 21, par. 64.13)
13 Sec. 13. Books, accounts, and records. Every licensee
14 and the trustee of the care funds of every licensee shall be
15 a resident of this State and shall keep in this State and use
16 in its business such books, accounts and records as will
17 enable the Comptroller to determine whether such licensee or
18 trustee is complying with the provisions of this Act and with
19 the rules, regulations and directions made by the Comptroller
20 hereunder. The licensee shall update books, accounts, and
21 records no less often than monthly. The licensee shall keep
22 the books, accounts, and records at the location identified
23 in the license issued by the Comptroller or as otherwise
24 agreed by the Comptroller in writing. The books, accounts,
25 and records shall be accessible for review upon demand of the
26 Comptroller.
27 (Source: P.A. 78-592.)
28 (760 ILCS 100/15b)
29 Sec. 15b. Sales; liability of purchaser for shortage.
30 In the case of a sale of any privately operated cemetery
31 or any part thereof or of any related personal property by a
32 cemetery authority to a purchaser or pursuant to foreclosure
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1 proceedings, except the sale of burial rights, services, or
2 merchandise to a person for his or her personal or family
3 burial or interment, the purchaser is liable for any
4 shortages existing before or after the sale in the care funds
5 required to be maintained in a trust pursuant to this Act and
6 shall honor all instruments issued under Section 4 for that
7 cemetery. Any shortages existing in the care funds constitute
8 a prior lien in favor of the trust for the total value of the
9 shortages, and notice of such lien shall be provided in all
10 sales instruments.
11 In the event of a sale or transfer of all or
12 substantially all of the assets of the cemetery authority, a
13 sale or transfer of any cemetery land, including any portion
14 of cemetery land in which no human remains have been
15 interred, the sale or transfer of the controlling interest of
16 the corporate stock of the cemetery authority if the cemetery
17 authority is a corporation, or the sale or transfer of the
18 controlling of the partnership if the cemetery authority is a
19 partnership, the cemetery authority shall, at least 21 days
20 prior to the sale or transfer, notify the Comptroller, in
21 writing, of the pending date of sale or transfer so as to
22 permit the Comptroller to audit the books and records of the
23 cemetery authority. The audit must be commenced within 10 5
24 business days of the receipt of the notification and
25 completed within the 21 day notification period unless the
26 Comptroller notifies the cemetery authority during that
27 period that there is a basis for determining a deficiency
28 which will require additional time to finalize. The sale or
29 transfer may not be completed by the cemetery authority
30 unless and until:
31 (a) The Comptroller has completed the audit of the
32 cemetery authority's books and records;
33 (b) Any delinquency existing in the care funds has
34 been paid by the cemetery authority, or arrangements
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1 satisfactory to the Comptroller have been made by the
2 cemetery authority on the sale or transfer for the
3 payment of any delinquency;
4 (c) The Comptroller issues a new cemetery care
5 license upon application of the newly controlled
6 corporation or partnership, which license must be applied
7 for within 30 days of the anticipated date of the sale or
8 transfer, subject to the payment of any delinquencies, if
9 any, as stated in item (b) above.
10 For purposes of this Section, a person, firm,
11 corporation, partnership, or institution that acquires the
12 cemetery through a real estate foreclosure shall be subject
13 to the provisions of this Section. The sale or transfer of
14 the controlling interest of a cemetery authority to an
15 immediate family member is not subject to the license
16 application process required in item (c) of this Section.
17 (Source: P.A. 90-623, eff. 7-10-98.)
18 (760 ILCS 100/26 new)
19 Sec. 26. Abandoned or neglected cemeteries; clean-up.
20 The Comptroller may administer a program for the purpose of
21 cleaning up abandoned or neglected cemeteries located in
22 Illinois. Administration of this program may include the
23 Comptroller's issuance of grants for that purpose to units of
24 local government, school districts, and not-for-profit
25 associations.
26 Section 40. The Cemetery Protection Act is amended by
27 changing Section 1 as follows:
28 (765 ILCS 835/1) (from Ch. 21, par. 15)
29 Sec. 1. (a) Any person who acts without proper legal
30 authority and who willfully and knowingly destroys or damages
31 the remains of a deceased human being or who desecrates human
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1 remains is guilty of a Class 3 felony.
2 (a-5) Any person who acts without proper legal authority
3 and who willfully and knowingly removes any portion of the
4 remains of a deceased human being from a burial ground where
5 skeletal remains are buried or from a grave, crypt, vault,
6 mausoleum, or other repository of human remains is guilty of
7 a Class 4 felony.
8 (b) Any person who acts without proper legal authority
9 and who willfully and knowingly:
10 (1) obliterates, vandalizes, or desecrates a burial
11 ground where skeletal remains are buried or a grave,
12 crypt, vault, mausoleum, or other repository of human
13 remains;
14 (2) obliterates, vandalizes, or desecrates a park
15 or other area clearly designated to preserve and
16 perpetuate the memory of a deceased person or group of
17 persons;
18 (3) obliterates, vandalizes, or desecrates plants,
19 trees, shrubs, or flowers located upon or around a
20 repository for human remains or within a human graveyard
21 or cemetery; or
22 (4) obliterates, vandalizes, or desecrates a fence,
23 rail, curb, or other structure of a similar nature
24 intended for the protection or for the ornamentation of
25 any tomb, monument, gravestone, or other structure of
26 like character;
27 is guilty of a Class A misdemeanor if the amount of the
28 damage is less than $500, a Class 4 felony if the amount of
29 the damage is at least $500 and less than $10,000, a Class 3
30 felony if the amount of the damage is at least $10,000 and
31 less than $100,000, or a Class 2 felony if the damage is
32 $100,000 or more and shall provide restitution to the
33 cemetery authority or property owner for the amount of any
34 damage caused.
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1 (b-5) Any person who acts without proper legal authority
2 and who willfully and knowingly defaces, vandalizes, injures,
3 or removes a gravestone or other memorial, monument, or
4 marker commemorating a deceased person or group of persons,
5 whether located within or outside of a recognized cemetery,
6 memorial park, or battlefield is guilty of a Class 4 felony
7 for damaging at least one but no more than 4 gravestones, a
8 Class 3 felony for damaging at least 5 but no more than 10
9 gravestones, or a Class 2 felony for damaging more than 10
10 gravestones and shall provide restitution to the cemetery
11 authority or property owner for the amount of any damage
12 caused.
13 (b-7) Any person who acts without proper legal authority
14 and who willfully and knowingly removes with the intent to
15 resell a gravestone or other memorial, monument, or marker
16 commemorating a deceased person or group of persons, whether
17 located within or outside a recognized cemetery, memorial
18 park, or battlefield, is guilty of a Class 2 felony.
19 (c) The provisions of this Section shall not apply to
20 the removal or unavoidable breakage or injury by a cemetery
21 authority of anything placed in or upon any portion of its
22 cemetery in violation of any of the rules and regulations of
23 the cemetery authority, nor to the removal of anything placed
24 in the cemetery by or with the consent of the cemetery
25 authority that in the judgment of the cemetery authority has
26 become wrecked, unsightly, or dilapidated.
27 (d) If an unemancipated minor is found guilty of
28 violating any of the provisions of subsection (b) of this
29 Section and is unable to provide restitution to the cemetery
30 authority or property owner, the parents or legal guardians
31 of that minor shall provide restitution to the cemetery
32 authority or property owner for the amount of any damage
33 caused, up to the total amount allowed under the Parental
34 Responsibility Law.
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1 (e) Any person who shall hunt, shoot or discharge any
2 gun, pistol or other missile, within the limits of any
3 cemetery, or shall cause any shot or missile to be discharged
4 into or over any portion thereof, or shall violate any of the
5 rules made and established by the board of directors of such
6 cemetery, for the protection or government thereof, is guilty
7 of a Class C misdemeanor.
8 (f) Any person who knowingly enters or knowingly remains
9 upon the premises of a public or private cemetery without
10 authorization during hours that the cemetery is posted as
11 closed to the public is guilty of a Class A misdemeanor.
12 (g) All fines when recovered, shall be paid over by the
13 court or officer receiving the same to the cemetery
14 association and be applied, as far as possible in repairing
15 the injury, if any, caused by such offense. Provided,
16 nothing contained in this Act shall deprive such cemetery
17 association, or the owner of any lot or monument from
18 maintaining an action for the recovery of damages caused by
19 any injury caused by a violation of the provisions of this
20 Act, or of the rules established by the board of directors of
21 such cemetery association. Nothing in this Section shall be
22 construed to prohibit the discharge of firearms loaded with
23 blank ammunition as part of any funeral, any memorial
24 observance or any other patriotic or military ceremony.
25 (Source: P.A. 89-36, eff. 1-1-96.)
26 Section 45. The Illinois Pre-Need Cemetery Sales Act is
27 amended by changing Sections 1, 4, 5, 6, 7, 8, 8a, 9, 12, 14,
28 16, 19, 20, and 22 and adding Section 27.1 as follows:
29 (815 ILCS 390/1) (from Ch. 21, par. 201)
30 Sec. 1. Purpose. It is the purpose of this Act to
31 assure adequate protection for those who contract through
32 pre-need contracts for the purchase of certain cemetery
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1 merchandise and cemetery services and undeveloped interment,
2 entombment or inurnment space, when the seller may delay
3 delivery or performance more than 120 days following initial
4 payment on the account.
5 (Source: P.A. 85-805.)
6 (815 ILCS 390/4) (from Ch. 21, par. 204)
7 Sec. 4. Definitions. As used in this Act, the following
8 terms shall have the meaning specified:
9 (A) A. "Pre-need sales contract" or "Pre-need sales"
10 means any agreement or contract or series or combination of
11 agreements or contracts which have for a purpose the sale of
12 cemetery merchandise, cemetery services or undeveloped
13 interment, entombment or inurnment spaces where the terms of
14 such sale require payment or payments to be made at a
15 currently determinable time and where the merchandise,
16 services or completed spaces are to be provided more than 120
17 days following the initial payment on the account.
18 (B) B. "Delivery" occurs when:
19 (1) Physical possession of the merchandise is
20 transferred or the easement for burial rights in a
21 completed space is executed, delivered and transferred to
22 the buyer; or
23 (2) Following authorization by a purchaser under a
24 pre-need sales contract, title to the merchandise has
25 been transferred to the buyer and the merchandise has
26 been paid for and is in the possession of the seller who
27 has placed it, until needed, at the site of its ultimate
28 use; except that burial of any item at the site of its
29 ultimate use shall not constitute delivery for purposes
30 of this Act; or
31 (3) (A) Following authorization by a purchaser
32 under a pre-need sales contract, the merchandise has been
33 permanently identified with the name of the buyer or the
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1 beneficiary and delivered to a licensed and bonded
2 warehouse and both title to the merchandise and a
3 warehouse receipt have been delivered to the purchaser or
4 beneficiary and a copy of the warehouse receipt has been
5 delivered to the licensee for retention in its files;
6 except that in the case of outer burial containers, the
7 use of a licensed and bonded warehouse as set forth in
8 this paragraph shall not constitute delivery for purposes
9 of this Act. Nothing herein shall prevent a seller from
10 perfecting a security interest in accordance with the
11 Uniform Commercial Code on any merchandise covered under
12 this Act.
13 (B) All warehouse facilities to which sellers
14 deliver merchandise pursuant to this Act shall:
15 (i) be either located in the State of Illinois
16 or qualify as a foreign warehouse facility as
17 defined herein;
18 (ii) submit to the Comptroller not less than
19 annually, by March 1 of each year, a report of all
20 cemetery merchandise stored by each licensee under
21 this Act which is in storage on the date of the
22 report;
23 (iii) permit the Comptroller or his designee
24 at any time to examine stored merchandise and to
25 examine any documents pertaining thereto;
26 (iv) submit evidence satisfactory to the
27 Comptroller that all merchandise stored by said
28 warehouse for licensees under this Act is insured
29 for casualty or other loss normally assumed by a
30 bailee for hire;
31 (v) demonstrate to the Comptroller that the
32 warehouse has procured and is maintaining a
33 performance bond in the form, content and amount
34 sufficient to unconditionally guarantee to the
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1 purchaser or beneficiary the prompt shipment of the
2 cemetery merchandise.
3 (C) "Cemetery merchandise" means items of personal
4 property normally sold by a cemetery authority not covered
5 under the Illinois Funeral or Burial Funds Act, including but
6 not limited to:
7 (1) memorials,
8 (2) markers,
9 (3) monuments,
10 (4) foundations, and
11 (5) outer burial containers.
12 (D) "Undeveloped interment, entombment or inurnment
13 spaces" or "undeveloped spaces" means any space to be used
14 for the reception of human remains that is not completely and
15 totally constructed at the time of initial payment therefor
16 in a:
17 (1) lawn crypt,
18 (2) mausoleum,
19 (3) garden crypt,
20 (4) columbarium, or
21 (5) cemetery section.
22 (E) "Cemetery services" means those services customarily
23 performed by cemetery or crematory personnel in connection
24 with the interment, entombment, inurnment or cremation of a
25 dead human body.
26 (F) "Cemetery section" means a grouping of spaces
27 intended to be developed simultaneously for the purpose of
28 interring human remains.
29 (G) "Columbarium" means an arrangement of niches that
30 may be an entire building, a complete room, a series of
31 special indoor alcoves, a bank along a corridor or part of an
32 outdoor garden setting that is constructed of permanent
33 material such as bronze, marble, brick, stone or concrete for
34 the inurnment of human remains.
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1 (H) "Lawn crypt" means a permanent underground crypt
2 usually constructed of reinforced concrete or similar
3 material installed in multiple units for the interment of
4 human remains.
5 (I) "Mausoleum" or "garden crypt" means a grouping of
6 spaces constructed of reinforced concrete or similar material
7 constructed or assembled above the ground for entombing human
8 remains.
9 (J) "Memorials, markers and monuments" means the object
10 usually comprised of a permanent material such as granite or
11 bronze used to identify and memorialize the deceased.
12 (K) "Foundations" means those items used to affix or
13 support a memorial or monument to the ground in connection
14 with the installation of a memorial, marker or monument.
15 (L) "Person" means an individual, corporation,
16 partnership, joint venture, business trust, voluntary
17 organization or any other form of entity.
18 (M) "Seller" means any person selling or offering for
19 sale cemetery merchandise, cemetery services or undeveloped
20 interment, entombment, or inurnment spaces in accordance with
21 a pre-need sales contract on a pre-need basis.
22 (N) "Religious cemetery" means a cemetery owned,
23 operated, controlled or managed by any recognized church,
24 religious society, association or denomination or by any
25 cemetery authority or any corporation administering, or
26 through which is administered, the temporalities of any
27 recognized church, religious society, association or
28 denomination.
29 (O) "Municipal cemetery" means a cemetery owned,
30 operated, controlled or managed by any city, village,
31 incorporated town, township, county or other municipal
32 corporation, political subdivision, or instrumentality
33 thereof authorized by law to own, operate or manage a
34 cemetery.
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1 (O-1) "Outer burial container" means a container made of
2 concrete, steel, wood, fiberglass, or similar material, used
3 solely at the interment site, and designed and used
4 exclusively to surround or enclose a separate casket and to
5 support the earth above such casket, commonly known as a
6 burial vault, grave box, or grave liner, but not including a
7 lawn crypt.
8 (P) "Sales price" means the gross amount paid by a
9 purchaser on a pre-need sales contract for cemetery
10 merchandise, cemetery services or undeveloped interment,
11 entombment or inurnment spaces, excluding sales taxes, credit
12 life insurance premiums, finance charges and Cemetery Care
13 Act contributions.
14 (Q) (Blank).
15 (R) "Provider" means a person who is responsible for
16 performing cemetery services or furnishing cemetery
17 merchandise, interment spaces, entombment spaces, or
18 inurnment spaces under a pre-need sales contract.
19 (S) "Purchaser" or "buyer" means the person who
20 originally paid the money under or in connection with a
21 pre-need sales contract.
22 (T) "Parent company" means a corporation that has a
23 controlling interest in another corporation.
24 (U) "Foreign warehouse facility" means a warehouse
25 facility now or hereafter located in any state or territory
26 of the United States, including the District of Columbia,
27 other than the 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 seller person directly or
19 indirectly doing business within this State, through an agent
20 or otherwise to engage in pre-need sales without a license
21 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 director and shareholder holding more than 10% 5% of the
9 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.
20 (b) Upon the revocation or suspension of any license,
21 the licensee shall immediately surrender the license or
22 licenses and any branch office licenses to the Comptroller.
23 If the licensee fails to do so, the Comptroller has the right
24 to seize the license or licenses same.
25 (Source: P.A. 84-239.)
26 (815 ILCS 390/14) (from Ch. 21, par. 214)
27 Sec. 14. Contract required.
28 (a) It is unlawful for any person seller doing business
29 within this State to accept sales proceeds, either directly
30 or indirectly, by any means, unless the seller enters into a
31 pre-need sales contract with the purchaser which meets the
32 following requirements:
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1 (1) A written sales contract shall be executed in
2 at least 12 point type in duplicate for each pre-need
3 sale made by a licensee, and a signed copy given to the
4 purchaser. Each completed contract shall be numbered and
5 shall contain: (i) the name and address of the purchaser,
6 the principal office of the licensee, and the parent
7 company of the licensee; (ii) and the seller, the name
8 of the person, if known, who is to receive the cemetery
9 merchandise, cemetery services or the completed
10 interment, entombment or inurnment spaces under the
11 contract; and (iii) specific identification of
12 specifically identify such merchandise, services or
13 spaces to be provided and the price of the merchandise,
14 services, or space or spaces.
15 (2) In addition, such contracts must contain a
16 provision in distinguishing typeface as follows:
17 "Notwithstanding anything in this contract to the
18 contrary, you are afforded certain specific rights of
19 cancellation and refund under Sections 18 and 19 of the
20 Illinois Pre-Need Cemetery Sales Act, enacted by the 84th
21 General Assembly of the State of Illinois".
22 (3) All pre-need sales contracts shall be sold on a
23 guaranteed price basis. At the time of performance of the
24 service or delivery of the merchandise, the seller shall
25 be prohibited from assessing the purchaser or his heirs
26 or assigns or duly authorized representative any
27 additional charges for the specific merchandise and
28 services listed on the pre-need sales contract.
29 (4) Each contract shall clearly disclose that the
30 price of the merchandise or services is guaranteed and
31 shall contain the following statement in 12 point bold
32 type:
33 "THIS CONTRACT GUARANTEES THE BENEFICIARY THE
34 SPECIFIC GOODS, AND SERVICES, INTERMENT SPACES,
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1 ENTOMBMENT SPACES, AND INURNMENT SPACES CONTRACTED FOR.
2 NO ADDITIONAL CHARGES MAY BE REQUIRED. FOR DESIGNATED
3 GOODS, AND SERVICES, AND SPACES. ADDITIONAL CHARGES MAY
4 BE INCURRED FOR UNEXPECTED EXPENSES."
5 (5) The pre-need sales contract shall provide that
6 if the particular cemetery services, cemetery
7 merchandise, or spaces specified in the pre-need contract
8 are unavailable at the time of delivery, the seller shall
9 be required to furnish services, merchandise, and spaces
10 similar in style and at least equal in quality of
11 material and workmanship.
12 (6) The pre-need contract shall also disclose any
13 specific penalties to be incurred by the purchaser as a
14 result of failure to make payments; and penalties to be
15 incurred or moneys or refunds to be received as a result
16 of cancellation of the contract.
17 (7) The pre-need contract shall disclose the nature
18 of the relationship between the provider and the seller.
19 (8) Each pre-need contract that authorizes the
20 delivery of cemetery merchandise to a licensed and bonded
21 warehouse shall provide that prior to or upon delivery of
22 the merchandise to the warehouse (i) the merchandise
23 shall be permanently identified with the name of the
24 buyer; and (ii) the title to the merchandise and a
25 warehouse receipt shall be delivered to the purchaser or
26 beneficiary. The pre-need contract shall contain the
27 following statement in 12 point bold type:
28 "THIS CONTRACT AUTHORIZES THE DELIVERY OF MERCHANDISE TO
29 A LICENSED AND BONDED WAREHOUSE FOR STORAGE OF THE
30 MERCHANDISE UNTIL THE MERCHANDISE IS NEEDED BY THE
31 BENEFICIARY. DELIVERY OF THE MERCHANDISE IN THIS MANNER
32 MAY PRECLUDE REFUND OF SALE PROCEEDS THAT ARE
33 ATTRIBUTABLE TO THE DELIVERED MERCHANDISE."
34 The purchaser shall initial the statement at the
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1 time of entry into the pre-need contract.
2 (9) Each pre-need contract that authorizes the
3 placement of cemetery merchandise at the site of its
4 ultimate use prior to the time that the merchandise is
5 needed by the beneficiary shall contain the following
6 statement in 12 point bold type:
7 "THIS CONTRACT AUTHORIZES THE PLACEMENT OF MERCHANDISE AT
8 THE SITE OF ITS ULTIMATE USE PRIOR TO THE TIME THAT THE
9 MERCHANDISE IS NEEDED BY THE BENEFICIARY. DELIVERY OF THE
10 MERCHANDISE IN THIS MANNER MAY PRECLUDE REFUND OF SALE
11 PROCEEDS THAT ARE ATTRIBUTABLE TO THE DELIVERED
12 MERCHANDISE."
13 The purchaser shall initial the statement at the
14 time of entry into the pre-need contract.
15 (b) Every pre-need sales contract must be in writing.,
16 and no pre-need sales contract form may be used unless it has
17 previously been filed with the Comptroller. The Comptroller
18 shall review all pre-need sales contract forms and, upon
19 written notification to the seller, shall prohibit the use of
20 contract forms that do not meet the requirements of this Act.
21 Any use or attempted use of any oral pre-need sales contract
22 or any written pre-need sales contract in a form not filed
23 with the Comptroller or in a form that does not meet the
24 requirements of this Act shall be deemed a violation of this
25 Act and is voidable by the purchaser without penalty. The
26 Comptroller may by rule develop a model pre-need sales
27 contract form that meets the requirements of this Act.
28 (c) To the extent the Rule is applicable, every pre-need
29 sales contract is subject to the Federal Trade Commission
30 Rule concerning the Cooling-Off Period for Door-to-Door Sales
31 (16 CFR Part 429).
32 (d) No pre-need sales contract may be entered into in
33 this State unless there is a provider for the cemetery
34 merchandise, cemetery services, and undeveloped interment,
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1 inurnment, and entombment spaces being sold. If the seller
2 is not the provider, then the seller must have a binding
3 agreement with a provider, and the identity of the provider
4 and the nature of the agreement between the seller and the
5 provider must be disclosed in the pre-need sales contract at
6 the time of sale and before the receipt of any sale proceeds.
7 The failure to disclose the identity of the provider, the
8 nature of the agreement between the seller and the provider,
9 or any changes thereto to the purchaser and beneficiary, or
10 the failure to make the disclosures required by this Section
11 constitutes an intentional violation of this Act.
12 (e) No pre-need contract may be entered into in this
13 State unless it is accompanied by a funding mechanism
14 permitted under this Act and unless the seller is licensed by
15 the Comptroller as provided in this Act. Nothing in this Act
16 is intended to relieve providers or sellers of pre-need
17 contracts from being licensed under any other Act required
18 for their profession or business or from being subject to the
19 rules promulgated to regulate their profession or business,
20 including rules on solicitation and advertisement.
21 (f) No pre-need contract may be entered into in this
22 State unless the seller explains to the purchaser the terms
23 of the pre-need contract prior to the purchaser's signing.
24 (g) The State Comptroller shall develop a booklet for
25 consumers in plain English describing the scope, application,
26 and consumer protections of this Act. After the booklet is
27 developed, no pre-need contract may be sold in this State
28 unless the seller distributes to the purchaser prior to the
29 sale a booklet developed or approved for use by the State
30 Comptroller.
31 (Source: P.A. 91-7, eff. 1-1-2000.)
32 (815 ILCS 390/16) (from Ch. 21, par. 216)
33 Sec. 16. Trust funds; disbursements.
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1 (a) A trustee shall make no disbursements from the trust
2 fund except as provided in this Act.
3 (b) A trustee shall, with respect to the investment of
4 such trust funds, exercise the judgment and care under the
5 circumstances then prevailing which persons of prudence,
6 discretion and intelligence exercise in the management of
7 their own affairs, not in regard to speculation, but in
8 regard to the permanent disposition of their funds,
9 considering the probable income as well as the probable
10 safety of their capital.
11 The seller shall act as trustee of all amounts received
12 for cemetery merchandise, services, or undeveloped spaces
13 until those amounts have been deposited into the trust fund.
14 The seller may continue to be the trustee of up to $500,000
15 that has been deposited into the trust fund, but the seller
16 must retain an independent trustee for any amount of trust
17 funds in excess of $500,000. A seller holding trust funds in
18 excess of $500,000 on the effective date of this amendatory
19 Act of 1996 shall have 36 months to retain an independent
20 trustee for the amounts over $500,000; any other seller must
21 retain an independent trustee for its trust funds in excess
22 of $500,000 as soon as may be practical. The Comptroller
23 shall have the right to disqualify the trustee upon the same
24 grounds as for refusing to grant or revoking a license
25 hereunder. Upon notice to the Comptroller, the seller may
26 change the trustee of the trust fund.
27 (c) The trustee may rely upon certifications and
28 affidavits made to it under the provisions of this Act, and
29 shall not be liable to any person for such reliance.
30 (d) A trustee shall be allowed to withdraw from the
31 trust funds maintained pursuant to this Act, payable solely
32 from the income earned on such trust funds, a reasonable fee
33 for all usual and customary services for the operation of the
34 trust fund, including, but not limited to trustee fees,
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1 investment advisor fees, allocation fees, annual audit fees
2 and other similar fees. The maximum amount allowed to be
3 withdrawn for these fees each year shall be the lesser of 3%
4 of the balance of the trust calculated on an annual basis or
5 the amount of annual income generated therefrom.
6 (e) The trust shall be a single-purpose trust fund. In
7 the event of the seller's bankruptcy, insolvency or
8 assignment for the benefit of creditors, or an adverse
9 judgment, the trust funds shall not be available to any
10 creditor as assets of the seller or to pay any expenses of
11 any bankruptcy or similar proceeding, but shall be
12 distributed to the purchasers or managed for their benefit by
13 the trustee holding the funds. Except in an action by the
14 Comptroller to revoke a license issued pursuant to this Act
15 and for creation of a receivership as provided in this Act,
16 the trust shall not be subject to judgment, execution,
17 garnishment, attachment, or other seizure by process in
18 bankruptcy or otherwise, nor to sale, pledge, mortgage, or
19 other alienation, and shall not be assignable except as
20 approved by the Comptroller. The changes made by this
21 amendatory Act of the 91st General Assembly are intended to
22 clarify existing law regarding the inability of licensees to
23 pledge the trust.
24 (f) Because it is not known at the time of deposit or at
25 the time that income is earned on the trust account to whom
26 the principal and the accumulated earnings will be
27 distributed, for purposes of determining the Illinois Income
28 Tax due on these trust funds, the principal and any accrued
29 earnings or losses relating to each individual account shall
30 be held in suspense until the final determination is made as
31 to whom the account shall be paid.
32 (Source: P.A. 91-7, eff. 6-1-99.)
33 (815 ILCS 390/19) (from Ch. 21, par. 219)
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1 Sec. 19. Construction or development of spaces.
2 (a) The construction or development of undeveloped
3 interment, entombment or inurnment spaces shall be commenced
4 on that phase, section or sections of undeveloped ground or
5 section of lawn crypts, mausoleums, garden crypts,
6 columbariums or cemetery spaces in which sales are made
7 within 3 years of the date of the first such sale. The
8 seller shall give written notice to the Comptroller no later
9 than 30 days after the first sale. Such notice shall include
10 a description of the project. Once commenced, construction
11 or development shall be pursued diligently to completion.
12 The construction must be completed within 6 years of the
13 first sale. If construction or development is not commenced
14 or completed within the times specified herein, any purchaser
15 may surrender and cancel the contract and upon cancellation
16 shall be entitled to a refund of the actual amounts paid
17 toward the purchase price plus interest attributable to such
18 amount earned while in trust; provided however that any delay
19 caused by strike, shortage of materials, civil disorder,
20 natural disaster or any like occurrence beyond the control of
21 the seller shall extend the time of such commencement and
22 completion by the length of such delay.
23 (b) At any time within 12 months of a purchaser's
24 entering into a pre-need contract for undeveloped interment,
25 entombment or inurnment spaces, a purchaser may surrender and
26 cancel his or her contract and upon cancellation shall be
27 entitled to a refund of the actual amounts paid toward the
28 purchase price plus interest attributable to such amount
29 earned while in trust. Notwithstanding the foregoing, the
30 cancellation and refund rights specified in this paragraph
31 shall terminate as of the date the seller commences
32 construction or development of the phase, section or sections
33 of undeveloped spaces in which sales are made. After the
34 rights of cancellation and refund specified herein have
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1 terminated, if a purchaser defaults in making payments under
2 the pre-need contract, the seller shall have the right to
3 cancel the contract and withdraw from the trust fund the
4 entire balance to the credit of the defaulting purchaser's
5 account as liquidated damages. In such event, the trustee
6 shall deliver said balance to the seller upon its
7 certification, and upon receiving said certification the
8 trustee may rely thereon and shall not be liable to anyone
9 for such reliance.
10 (c) During the construction or development of interment,
11 entombment or inurnment spaces, upon the sworn certification
12 by the seller and the contractor to the trustee, the trustee
13 shall disburse from the trust fund the amount equivalent to
14 the cost of performed labor or delivered materials as
15 certified. Said certification shall be substantially in the
16 following form:
17 We, the undersigned, being respectively the Seller and
18 Contractor, do hereby certify that the Contractor has
19 performed labor or delivered materials or both to (address of
20 property) .........., in connection with a contract to
21 .........., and that as of this date the value of the labor
22 performed and materials delivered is $.......
23 We do further certify that in connection with such
24 contract there remains labor to be performed, and materials
25 to be delivered, of the value of $........
26 This Certificate is signed (insert date).
27 ............ ............
28 Seller Contractor
29 A person who executes and delivers a completion
30 certificate with actual knowledge of a falsity contained
31 therein shall be considered in violation of this Act and
32 subject to the penalties contained herein.
33 (d) Except as otherwise authorized by this Section,
34 every seller of undeveloped spaces shall provide facilities
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1 for temporary interment, entombment or inurnment for
2 purchasers or beneficiaries of contracts who die prior to
3 completion of the space. Such temporary facilities shall be
4 constructed of permanent materials, and, insofar as
5 practical, be landscaped and groomed to the extent customary
6 in the cemetery industry in that community. The heirs,
7 assigns, or personal representative of a purchaser or
8 beneficiary shall not be required to accept temporary
9 underground interment spaces where the undeveloped space
10 contracted for was an above ground entombment or inurnment
11 space. In the event that temporary facilities as described
12 in this paragraph are not made available, upon the death of a
13 purchaser or beneficiary, the heirs, assigns, or personal
14 representative is entitled to a refund of the entire sales
15 price paid plus undistributed interest attributable to such
16 amount while in trust.
17 (e) If the seller delivers a completed space acceptable
18 to the heirs, assigns or personal representative of a
19 purchaser or beneficiary, other than the temporary facilities
20 specified herein, in lieu of the undeveloped space purchased,
21 the seller shall provide the trustee with a delivery
22 certificate and all sums deposited under the pre-need sales
23 contract, including the undistributed income, shall be paid
24 to the seller.
25 (f) Upon completion of the phase, section or sections of
26 the project as certified to the trustee by the seller and the
27 contractor and delivery of the deed or certificate of
28 ownership to the completed interment, entombment, or
29 inurnment space to all of the purchasers entitled to receive
30 those ownership documents, the trust fund requirements set
31 forth herein shall terminate and all funds held in the
32 preconstruction trust fund attributable to the completed
33 phase, section or sections, including interest accrued
34 thereon, shall be returned to the seller.
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1 (g) This Section shall not apply to the sale of
2 undeveloped spaces if there has been any such sale in the
3 same phase, section or sections of the project prior to the
4 effective date of this Act.
5 (Source: P.A. 91-357, eff. 7-29-99.)
6 (815 ILCS 390/20) (from Ch. 21, par. 220)
7 Sec. 20. Records.
8 (a) Each licensee must keep accurate accounts, books and
9 records in this State at the principal place of business
10 identified in the licensee's license application or as
11 otherwise approved by the Comptroller in writing of all
12 transactions, copies of agreements, dates and amounts of
13 payments made or received, the names and addresses of the
14 contracting parties, the names and addresses of persons for
15 whose benefit funds are received, if known, and the names of
16 the trust depositories. Additionally, for a period not to
17 exceed 6 months after the performance of all terms in a
18 pre-need sales contract, the licensee shall maintain copies
19 of each pre-need contract at the licensee branch location
20 where the contract was entered.
21 (b) Each licensee must maintain such records for a
22 period of 3 years after the licensee shall have fulfilled his
23 or her obligation under the pre-need contract or 3 years
24 after any stored merchandise shall have been provided to the
25 purchaser or beneficiary, whichever is later.
26 (c) Each licensee shall submit reports to the
27 Comptroller annually, under oath, on forms furnished by the
28 Comptroller. The annual report shall contain, but shall not
29 be limited to, the following:
30 (1) An accounting of the principal deposit and
31 additions of principal during the fiscal year.
32 (2) An accounting of any withdrawal of principal or
33 earnings.
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1 (3) An accounting at the end of each fiscal year,
2 of the total amount of principal and earnings held.
3 (d) The annual report shall be filed by the licensee
4 with the Comptroller within 75 days after the end of the
5 licensee's fiscal year. An extension of up to 60 days may be
6 granted by the Comptroller, upon a showing of need by the
7 licensee. Any other reports shall be in the form furnished
8 or specified by the Comptroller. If a licensee fails to
9 submit an annual report to the Comptroller within the time
10 specified in this Section, the Comptroller shall impose upon
11 the licensee a penalty of $5 for each and every day the
12 licensee remains delinquent in submitting the annual report.
13 Each report shall be accompanied by a check or money order in
14 the amount of $10 payable to: Comptroller, State of
15 Illinois.
16 (e) On and after the effective date of this amendatory
17 Act of the 91st General Assembly, a licensee may report all
18 required information concerning the sale of outer burial
19 containers on the licensee's annual report required to be
20 filed under this Act and shall not be required to report that
21 information under the Illinois Funeral or Burial Funds Act,
22 as long as the information is reported under this Act.
23 (Source: P.A. 91-7, eff. 1-1-2000.)
24 (815 ILCS 390/22) (from Ch. 21, par. 222)
25 Sec. 22. Cemetery Consumer Protection Fund.
26 (a) Every seller engaging in pre-need sales shall pay to
27 the Comptroller $5 for each said contract entered into, to be
28 paid into a special income earning fund hereby created in the
29 State Treasury, known as the Cemetery Consumer Protection
30 Fund. The above said fees shall be remitted to the
31 Comptroller semi-annually within 30 days after the end of
32 June and December for all contracts that have been entered in
33 such 6 month period.
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1 (b) All monies paid into the fund together with all
2 accumulated undistributed income thereon shall be held as a
3 special fund in the State Treasury. The fund shall be used
4 solely for the purpose of providing restitution to consumers
5 who have suffered pecuniary loss arising out of pre-need
6 sales.
7 (c) The fund shall be applied only to restitution or
8 completion of the project or delivery of the merchandise or
9 services, where such has been ordered by the Circuit Court in
10 a lawsuit brought under this Act by the Attorney General of
11 the State of Illinois on behalf of the Comptroller and in
12 which it has been determined by the Court that the obligation
13 is non-collectible from the judgment debtor. Restitution
14 shall not exceed the amount of the sales price paid plus
15 interest at the statutory rate. The fund shall not be used
16 for the payment of any attorney or other fees.
17 (d) Whenever restitution is paid by the fund, the fund
18 shall be subrogated to the amount of such restitution, and
19 the Comptroller shall request the Attorney General to engage
20 in all reasonable post judgment collection steps to collect
21 said restitution from the judgment debtor and reimburse the
22 fund.
23 (e) The fund shall not be applied toward any restitution
24 for losses in any lawsuit initiated by the Attorney General
25 or Comptroller or with respect to any claim made on pre-need
26 sales which occurred prior to the effective date of this Act.
27 (f) The fund may not be allocated for any purpose other
28 than that specified in this Act.
29 (g) Notwithstanding any other provision of this Section,
30 the payment of restitution from the fund shall be a matter of
31 grace and not of right and no purchaser shall have any vested
32 rights in the fund as a beneficiary or otherwise. Prior to
33 seeking restitution from the fund, a purchaser or beneficiary
34 seeking payment of restitution shall apply for restitution on
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1 a form provided by the Comptroller. The form shall include
2 any information the Comptroller may reasonably require in
3 order for the Court to determine that restitution or
4 completion of the project or delivery of merchandise or
5 service is appropriate.
6 (h) Annually, the status of the fund shall be reviewed
7 by the Comptroller, and if he determines that the fund
8 together with all accumulated income earned thereon, equals
9 or exceeds $10,000,000 and that the total number of
10 outstanding claims filed against the fund is less than 10% of
11 the fund's current balance, then payments to the fund shall
12 be suspended until such time as the fund's balance drops
13 below $10,000,000 or the total number of outstanding claims
14 filed against the fund is more than 10% of the fund's current
15 balance, but on such suspension, the fund shall not be
16 considered inactive.
17 (Source: P.A. 84-239.)
18 (815 ILCS 390/27.1 new)
19 Sec. 27.1. Sales; liability of purchaser for shortage.
20 In the event of a sale or transfer of all or substantially
21 all of the assets of the licensee, the sale or transfer of
22 the controlling interest of the corporate stock of the
23 licensee if the licensee is a corporation, the sale or
24 transfer of the controlling interest of the partnership if
25 the licensee is a partnership, or sale pursuant to
26 foreclosure proceedings, the purchaser is liable for any
27 shortages existing before or after the sale in the trust
28 funds required to be maintained in a trust under this Act and
29 shall honor all pre-need contracts and trusts entered into by
30 the licensee. Any shortages existing in the trust funds
31 constitute a prior lien in favor of the trust for the total
32 value of the shortages, and notice of that lien must be
33 provided in all sales instruments.
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1 In the event of a sale or transfer of all or
2 substantially all of the assets of the licensee, the sale or
3 transfer of the controlling interest of the corporate stock
4 of the licensee if the licensee is a corporation, or the sale
5 or transfer of the controlling interest of the partnership if
6 the licensee is a partnership, the licensee shall, at least
7 21 days prior to the sale or transfer, notify the
8 Comptroller, in writing, of the pending date of sale or
9 transfer so as to permit the Comptroller to audit the books
10 and records of the licensee. The audit must be commenced
11 within 10 business days after the receipt of the notification
12 and completed within the 21-day notification period unless
13 the Comptroller notifies the licensee during that period that
14 there is a basis for determining a deficiency which will
15 require additional time to finalize. The sale or transfer
16 may not be completed by the licensee unless and until:
17 (i) the Comptroller has completed the audit of the
18 licensee's books and records;
19 (ii) any delinquency existing in the trust funds has
20 been paid by the licensee, or arrangements satisfactory
21 to the Comptroller have been made by the licensee on the
22 sale or transfer for the payment of any delinquency;
23 (iii) the Comptroller issues a license upon
24 application of the new owner, which license must be
25 applied for within 30 days after the anticipated date of
26 the sale or transfer, subject to the payment of any
27 delinquencies, if any, as stated in item (ii).
28 For purposes of this Section, a person, firm,
29 corporation, partnership, or institution that acquires the
30 licensee through a real estate foreclosure is subject to the
31 provisions of this Section.
32 Section 50. Severability. If any provision of this Act or
33 its application to any person or circumstance is held
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1 invalid, the invalidity of that provision or application does
2 not affect other provisions or applications of this Act that
3 can be given effect without the invalid provision or
4 application.
5 Section 99. Effective date. This Act takes effect
6 January 1, 2002.
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1 INDEX
2 Statutes amended in order of appearance
3 55 ILCS 70/1 from Ch. 21, par. 61
4 60 ILCS 1/130-5
5 65 ILCS 5/11-49-1 from Ch. 24, par. 11-49-1
6 225 ILCS 45/1a from Ch. 111 1/2, par. 73.101a
7 225 ILCS 45/1a-1
8 225 ILCS 45/2 from Ch. 111 1/2, par. 73.102
9 225 ILCS 45/2a
10 225 ILCS 45/3 from Ch. 111 1/2, par. 73.103
11 225 ILCS 45/3a from Ch. 111 1/2, par. 73.103a
12 225 ILCS 45/3a-5 new
13 225 ILCS 45/3e from Ch. 111 1/2, par. 73.103e
14 225 ILCS 45/3f
15 225 ILCS 45/4 from Ch. 111 1/2, par. 73.104
16 225 ILCS 45/7.2
17 225 ILCS 45/8 from Ch. 111 1/2, par. 73.108
18 225 ILCS 45/8.1 new
19 305 ILCS 5/12-4.11 from Ch. 23, par. 12-4.11
20 760 ILCS 100/2a from Ch. 21, par. 64.2a
21 760 ILCS 100/9 from Ch. 21, par. 64.9
22 760 ILCS 100/10 from Ch. 21, par. 64.10
23 760 ILCS 100/11 from Ch. 21, par. 64.11
24 760 ILCS 100/11.1
25 760 ILCS 100/13 from Ch. 21, par. 64.13
26 760 ILCS 100/15b
27 760 ILCS 100/26 new
28 765 ILCS 835/1 from Ch. 21, par. 15
29 815 ILCS 390/1 from Ch. 21, par. 201
30 815 ILCS 390/4 from Ch. 21, par. 204
31 815 ILCS 390/5 from Ch. 21, par. 205
32 815 ILCS 390/6 from Ch. 21, par. 206
33 815 ILCS 390/7 from Ch. 21, par. 207
34 815 ILCS 390/8 from Ch. 21, par. 208
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1 815 ILCS 390/8a
2 815 ILCS 390/9 from Ch. 21, par. 209
3 815 ILCS 390/12 from Ch. 21, par. 212
4 815 ILCS 390/14 from Ch. 21, par. 214
5 815 ILCS 390/16 from Ch. 21, par. 216
6 815 ILCS 390/19 from Ch. 21, par. 219
7 815 ILCS 390/20 from Ch. 21, par. 220
8 815 ILCS 390/22 from Ch. 21, par. 222
9 815 ILCS 390/27.1 new