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92_HB2283eng HB2283 Engrossed 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: HB2283 Engrossed -2- LRB9201944LDprA 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 HB2283 Engrossed -3- LRB9201944LDprA 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. HB2283 Engrossed -4- LRB9201944LDprA 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 HB2283 Engrossed -5- LRB9201944LDprA 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. HB2283 Engrossed -6- LRB9201944LDprA 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. HB2283 Engrossed -7- LRB9201944LDprA 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 owning more than 12 10 cemeteries or funeral homes in more than one state. 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 HB2283 Engrossed -8- LRB9201944LDprA 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" meansthesales 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 anyprovider, or clearly discloses that the23provider will be selected by the purchaser or the24purchaser's survivor or legal representative at a later25date, except that no contract shall contain any provision26restricting the right of the contract purchaser during27his or her lifetime in making his or her own selection of28a provider. 29 (2) It clearly identifies the provider'sseller's30 name and address, the purchaser, and the beneficiary, if 31 other than the purchaser, and the provider, if different32than the seller or discloses that the provider will be33selected at a later date. HB2283 Engrossed -9- LRB9201944LDprA 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. HB2283 Engrossed -10- LRB9201944LDprA 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 personentityfunding 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.; and33 (D) The method of changingor selecting the34designation ofthe provider. HB2283 Engrossed -11- LRB9201944LDprA 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 by7the seller as provided in subdivision (a)(1). If the seller 8 is not a providerand 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 in14the identity of the provider shall be approved in writing by15the 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 11 point type, numbered, and executed in duplicateand23no pre-need contract form shall be used without prior filing24with 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 all27pre-need contract forms and shall prohibit the use of28contract forms which do not meet the requirements of this Act29upon written notification to the seller. Any use or30attempted use of any oral pre-need contract or any written31pre-need contract in a form not filed with the Comptroller or32in a form which does not meet the requirements of this Act33shall be deemed a violation of this Act. Life insurance34policies, tax-deferred annuities, endorsements, riders, orHB2283 Engrossed -12- LRB9201944LDprA 1applications for life insurance or tax-deferred annuities are2not subject to filing with the Comptroller.The Comptroller 3 may by rule develop a model pre-need contract form which 4 meets the requirements of this Act. 5 (e) The State Comptroller shall by rule develop a 6 booklet for consumers in plain English describing the scope, 7 application, and consumer protections of this Act. After the 8 adoption of these rules, no pre-need contract shall be sold 9 in this State unless (i) the seller distributes to the 10 purchaser prior to the sale a booklet promulgated or approved 11 for use by the State Comptroller; (ii) the seller explains to 12 the purchaser the terms of the pre-need contract prior to the 13 purchaser signing; and (iii) the purchaser initials a 14 statement in the contract confirming that the seller has 15 explained the terms of the contract prior to the purchaser 16 signing. 17 (f) All sales proceeds received in connection with a 18 pre-need contract shall be deposited into a trust account as 19 provided in Section 1b and Section 2 of this Act, or shall be 20 used to purchase a life insurance policy or tax-deferred 21 annuity as provided in Section 2a of this Act. 22 (g) No pre-need contract shall be sold in this State 23 unless it is accompanied by a funding mechanism permitted 24 under this Act, and unless the seller is licensed by the 25 Comptroller as provided in Section 3 of this Act. Nothing in 26 this Act is intended to relieve sellers of pre-need contracts 27 from being licensed under any other Act required for their 28 profession or business, and being subject to the rules 29 promulgated to regulate their profession or business, 30 including rules on solicitation and advertisement. 31 (Source: P.A. 90-47, eff. 1-1-98.) 32 (225 ILCS 45/2) (from Ch. 111 1/2, par. 73.102) 33 Sec. 2. (a) If a purchaser selects a trust arrangement HB2283 Engrossed -13- LRB9201944LDprA 1 to fund the pre-need contract, all trust deposits as 2 determined by Section 1b shall be made within 30 days of 3 receipt. 4 (b) A trust established under this Act must be 5 maintained: 6 (1) in a trust account established in a bank, 7 savings and loan association, savings bank, or credit 8 union authorized to do business in Illinois in which 9 accounts are insured by an agency of the federal 10 government; or 11 (2) in a trust company authorized to do business in 12 Illinois. 13 (c) Trust agreements and amendments to the trust 14 agreements used to fund a pre-need contract shall be filed 15 with the Comptroller. 16 (d) (Blank).Trust agreements shall follow the format of17the standard Funeral Trust Agreements approved by the18Comptroller for guaranteed or non-guaranteed price funeral19plans.20 (e) A seller or provider shall furnish to the trustee 21 and depositary the name of each payor and the amount of 22 payment on each such account for which deposit is being so 23 made. Nothing shall prevent the trustee or a seller or 24 provider acting as a trustee in accordance with this Act from 25 commingling the deposits in any such trust fund for purposes 26 of its management and the investment of its funds as provided 27 in the Common Trust Fund Act. In addition, multiple trust 28 funds maintained under this Act may be commingled or 29 commingled with other funeral or burial related trust funds 30 if all record keeping requirements imposed by law are met. 31 (f) Trust funds may be maintained in a financial 32 institution described in subsection (b) which is located in a 33 state adjoining this State where: (1) the financial 34 institution is located within 50 miles of the border of this HB2283 Engrossed -14- LRB9201944LDprA 1 State, (2) its accounts are federally insured, and (3) it has 2 registered with the Illinois Secretary of State for purposes 3 of service of process. 4 (g) Upon notice to the Comptroller, the seller may 5 change the trustee of the fund. 6 (Source: P.A. 88-477.) 7 (225 ILCS 45/2a) 8 Sec. 2a. Purchase of insurance or annuity. 9 (a) If a purchaser selects the purchase of a life 10 insurance policy or tax-deferred annuity contract to fund the 11 pre-need contract, the application and collected premium 12 shall be mailed within 30 days of signing the pre-need 13 contract. 14 (b) If life insurance or an annuity is used to fund a 15 pre-need contract, the seller or provider shall not be named 16 as the owner or beneficiary of the policy or annuity. No 17 person whose only insurable interest in the insured is the 18 receipt of proceeds from the policy or in naming who shall 19 receive the proceeds nor any trust acting on behalf of such 20 person or seller or provider shall be named as owner or 21 beneficiary of the policy or annuity. 22 (c) Nothing shall prohibit the purchaser from 23 irrevocably assigning ownership of the policy or annuity used 24 to fund a guaranteed price pre-need contract to a person or 25 trust for the purpose of obtaining favorable consideration 26 for Medicaid, Supplemental Security Income, or another public 27 assistance program, as permitted under federal law. The 28 seller or contract provider may be named a nominal owner of 29 the life insurance policy only for such time as it takes to 30 immediately transfer the policy into a trust. Except for 31 this purpose, neither the seller nor the contract provider 32 shall be named the owner or the beneficiary of the policy or 33 annuity., except that neither the seller nor the contractHB2283 Engrossed -15- LRB9201944LDprA 1provider shall be named the owner of the policy or annuity.2 (d) If a life insurance policy or annuity contract is 3 used to fund a pre-need contract, except for guaranteed price 4 contracts permitted in Section 4(a) of this Act, the pre-need 5 contract must be revocable, and anytheassignment provision 6 in the pre-need contract must contain the following 7 disclosure in 12 point bold type: 8 THIS ASSIGNMENT MAY BE REVOKED BY THE ASSIGNOR OR 9 ASSIGNOR'S SUCCESSOR OR, IF THE ASSIGNOR IS ALSO THE INSURED 10 AND DECEASED, BY THE REPRESENTATIVE OF THE INSURED'S ESTATE 11 BEFORE THE RENDERING TO THE CEMETERY SERVICES OR GOODS OR 12 FUNERAL SERVICES OR GOODS. IF THE ASSIGNMENT IS REVOKED, THE 13 DEATH BENEFIT UNDER THE LIFE INSURANCE POLICY OR ANNUITY 14 CONTRACT SHALL BE PAID IN ACCORDANCE WITH THE BENEFICIARY 15 DESIGNATION UNDER THE INSURANCE POLICY OR ANNUITY CONTRACT. 16 (e) Sales proceeds shall not be used to purchase life 17 insurance policies or tax-deferred annuities unless the 18 company issuing the life insurance policies or tax-deferred 19 annuities is licensed with the Illinois Department of 20 Insurance, and the insurance producer or annuity seller is 21 licensed to do business in the State of Illinois. 22 (Source: P.A. 88-477.) 23 (225 ILCS 45/3) (from Ch. 111 1/2, par. 73.103) 24 Sec. 3. Licensing. 25 (a) No person, firm, partnership, association or 26 corporation may act as seller without first securing from the 27 State Comptroller a license to so act. Application for such 28 license shall be in writing, signed by the applicant and duly 29 verified on forms furnished by the Comptroller. Each 30 application shall contain at least the following: 31 (1) The full name and address (both residence and 32 place of business) of the applicant, and every member, 33 officer and director thereof if the applicant is a firm, HB2283 Engrossed -16- LRB9201944LDprA 1 partnership, association, or corporation, and of every 2 shareholder holding more than 10% of the corporate stock 3 if the applicant is a corporation.Any license issued4pursuant to the application shall be valid only at the5address stated in the application for such applicant or6at such new address as may be approved by the7Comptroller; 8 (2) A statement of the applicant's assets and 9 liabilitiesapproximate net worth; 10 (3) The name and address of the applicant's 11 principal place of business at which the books, accounts, 12 and records shall be available for examination by the 13 Comptroller as required by this Act; 14 (4) The names and addresses of the applicant's 15 branch locations at which pre-need sales shall be 16 conducted and which shall operate under the same license 17 number as the applicant's principal place of business; 18 (5) For each individual listed under item (1) above, 19 a detailed statement of the individual's business 20 experience for the 10 years immediately preceding the 21 application; any present or prior connection between the 22 individual and any other person engaged in pre-need 23 sales; any felony or misdemeanor convictions for which 24 fraud was an essential element; any charges or complaints 25 lodged against the individual for which fraud was an 26 essential element and which resulted in civil or criminal 27 litigation; any failure of the individual to satisfy an 28 enforceable judgment entered against him based upon 29 fraud; and any other information requested by the 30 Comptroller relating to past business practices of the 31 individual. Since the information required by this item 32 (5) may be confidential or contain proprietary 33 information, this information shall not be available to 34 other licensees or the general public and shall be used HB2283 Engrossed -17- LRB9201944LDprA 1 only for the lawful purposes of the Comptroller in 2 enforcing this Act; 3 (6) The name of the trustee and, if applicable, the 4 names of the advisors to the trustee, including a copy of 5 the proposed trust agreement under which the trust funds 6 are to be held as required by this Act; and 7 (7) Such other information as the Comptroller may 8 reasonably require in order to determine the 9 qualification of the applicant to be licensed under this 10 Act.and (3)11 (b) Applications for license shall be accompanied by a 12 fidelity bond executed by the applicant and a surety company 13 authorized to do business in this State or an irrevocable, 14 unconditional letter of credit issued by a bank, credit 15 union, or trust company authorized to do business in the 16 State of Illinois, as approved by the State Comptroller, in 17 such amount not exceeding $10,000 as the Comptroller may 18 require.Individual salespersons employed by a licensee19shall not be required to obtain licenses in their individual20capacities. Upon receipt of such application and bond or21letter of credit the Comptroller shall issue a license unless22he or she shall determine that the applicant has made false23statements or representations in such application, or is24insolvent, or has conducted or is about to conduct his25business in a fraudulent manner, or is not duly authorized to26transact business in this State. Such license shall be kept27conspicuously posted in the place of business of the28licensee.If, after notice and an opportunity to be heard, it 29 has been determined that a licensee has violated this Act 30 within the past 5 calendar years, or if a licensee does not 31 retain a corporate fiduciary, as defined in the Corporate 32 Fiduciary Act, to manage the funds in trust pursuant to this 33 Act, the Comptroller may require an additional bond or letter 34 of credit from the licensee from time to time in amounts HB2283 Engrossed -18- LRB9201944LDprA 1 equal to one-tenth of such trust funds, which bond or letter 2 of credit shall run to the Comptroller for the use and 3 benefit of the beneficiaries of such trust funds. 4 The licensee shall keep accurate accounts, books and 5 records in this State, at the principal place of business 6 identified in the licensee's license application or as 7 otherwise approved by the Comptroller in writing, of all 8 transactions, copies of all pre-need contracts, trust 9 agreements, and other agreements, dates and amounts of 10 payments made and accepted thereon, the names and addresses 11 of the contracting parties, the persons for whose benefit 12 such funds are accepted, and the names of the depositaries of 13 such funds. Each licensee shall maintain the documentation 14 for a period of 3 years after the licensee has fulfilled his 15 obligations under the pre-need contract. Additionally, for a 16 period not to exceed 6 months after the performance of all 17 terms in a pre-need sales contract, the licensee shall 18 maintain copies of the contract at the licensee branch 19 location where the contract was entered or at some other 20 location agreed to by the Comptroller in writing. If an 21 insurance policy or tax-deferred annuity is used to fund the 22 pre-need contract, the licensee under this Act shall keep and 23 maintain accurate accounts, books, and records in this State, 24 at the principal place of business identified in the 25 licensee's application or as otherwise approved by the 26 Comptroller in writing, of all insurance policies and 27 tax-deferred annuities used to fund the pre-need contract, 28 the name and address of insured, annuitant, and initial 29 beneficiary, and the name and address of the insurance 30 company issuing the policy or annuity. If a life insurance 31 policy or tax-deferred annuity is used to fund a pre-need 32 contract, the licensee shall notify the insurance company of 33 the name of each pre-need contract purchaser and the amount 34 of each payment when the pre-need contract, insurance policy HB2283 Engrossed -19- LRB9201944LDprA 1 or annuity is purchased. 2 The licensee shall make reports to the Comptroller 3 annually or at such other time as the Comptroller may 4 require, on forms furnished by the Comptroller. The licensee 5 shall file the annual report with the Comptroller within 75 6 days after the end of the licensee's fiscal year. The 7 Comptroller shall for good cause shown grant an extension for 8 the filing of the annual report upon the written request of 9 the licensee. Such extension shall not exceed 60 days. If a 10 licensee fails to submit an annual report to the Comptroller 11 within the time specified in this Section, the Comptroller 12 shall impose upon the licensee a penalty of $5 for each and 13 every day the licensee remains delinquent in submitting the 14 annual report. The Comptroller may abate all or part of the 15 $5 daily penalty for good cause shown. Every application 16 shall be accompanied by a check or money order in the amount 17 of $25 and every report shall be accompanied by a check or 18 money order in the amount of $10 payable to: Comptroller, 19 State of Illinois. 20 The licensee shall make all required books and records 21 pertaining to trust funds, insurance policies, or 22 tax-deferred annuities available to the Comptroller for 23 examination. The Comptroller, or a person designated by the 24 Comptroller who is trained to perform such examinations, may 25 at any time investigate the books, records and accounts of 26 the licensee with respect to trust funds, insurance policies, 27 or tax-deferred annuities and for that purpose may require 28 the attendance of and examine under oath all persons whose 29 testimony he may require. The licensee shall pay a fee for 30 such examination in accordance with a schedule established by 31 the Comptroller. The fee shall not exceed the cost of such 32 examination. For pre-need contracts funded by trust 33 arrangements, the cost of an initial examination shall be 34 borne by the licensee if it has $10,000 or more in trust HB2283 Engrossed -20- LRB9201944LDprA 1 funds, otherwise, by the Comptroller. The charge made by the 2 Comptroller for an examination shall be based upon the total 3 amount of trust funds held by the licensee at the end of the 4 calendar or fiscal year for which the report is required by 5 this Act and shall be in accordance with the following 6 schedule: 7 Less than $10,000..................................no charge; 8 $10,000 or more but less than $50,000....................$10; 9 $50,000 or more but less than $100,000...................$40; 10 $100,000 or more but less than $250,000..................$80; 11 $250,000 or more........................................$100. 12 The Comptroller may order additional audits or 13 examinations as he or she may deem necessary or advisable to 14 ensure the safety and stability of the trust funds and to 15 ensure compliance with this Act. These additional audits or 16 examinations shall only be made after good cause is 17 established by the Comptroller in the written order. The 18 grounds for ordering these additional audits or examinations 19 may include, but shall not be limited to: 20 (1) material and unverified changes or fluctuations 21 in trust balances or insurance or annuity policy amounts; 22 (2) the licensee changing trustees more than twice 23 in any 12-month period; 24 (3) any withdrawals or attempted withdrawals from 25 the trusts, insurance policies, or annuity contracts in 26 violation of this Act; or 27 (4) failure to maintain or produce documentation 28 required by this Act for deposits into trust accounts, 29 trust investment activities, or life insurance or annuity 30 policies. 31 Prior to ordering an additional audit or examination, the 32 Comptroller shall request the licensee to respond and comment 33 upon the factors identified by the Comptroller as warranting 34 the subsequent examination or audit. The licensee shall have HB2283 Engrossed -21- LRB9201944LDprA 1 30 days to provide a response to the Comptroller. If the 2 Comptroller decides to proceed with the additional 3 examination or audit, the licensee shall bear the full cost 4 of that examination or audit, up to a maximum of $7,500. The 5 Comptroller may elect to pay for the examination or audit and 6 receive reimbursement from the licensee. Payment of the 7 costs of the examination or audit by a licensee shall be a 8 condition of receiving, maintaining, or renewing a license 9 under this Act. All moneys received by the Comptroller for 10 examination or audit fees shall be maintained in a separate 11 account to be known as the Comptroller's Administrative Fund. 12 This Fund, subject to appropriation by the General Assembly, 13 may be utilized by the Comptroller for enforcing this Act and 14 other purposes that may be authorized by law. 15 For pre-need contracts funded by life insurance or a 16 tax-deferred annuity, the cost of an examination shall be 17 borne by the licensee if it has received $10,000 or more in 18 premiums during the preceding calendar year. The fee schedule 19 for such examination shall be established in rules 20 promulgated by the Comptroller. In the event such 21 investigation or other information received by the 22 Comptroller discloses a substantial violation of the 23 requirements of this Act, the Comptroller shall revoke the 24 license of such person upon a hearing as provided in this 25 Act. Such licensee may terminate all further responsibility 26 for compliance with the requirements of this Act by 27 voluntarily surrendering the license to the Comptroller, or 28 in the event of its loss, furnishing the Comptroller with a 29 sworn statement to that effect, which states the licensee's 30 intention to discontinue acceptance of funds received under 31 pre-need contracts. Such license or statement must be 32 accompanied by an affidavit that said licensee has lawfully 33 expended or refunded all funds received under pre-need 34 contracts, and that the licensee will accept no additional HB2283 Engrossed -22- LRB9201944LDprA 1 sales proceeds. The Comptroller shall immediately cancel or 2 revoke said license. 3 (Source: P.A. 88-477; 89-615, eff. 8-9-96.) 4 (225 ILCS 45/3a) (from Ch. 111 1/2, par. 73.103a) 5 Sec. 3a. Denial, suspension, or revocation of license. 6 (a) The Comptroller may refuse to issue or may suspend 7 or revoke a license on any of the following grounds: 8 (1) The applicant or licensee has made any 9 misrepresentations or false statements or concealed any 10 material fact. 11 (2) The applicant or licensee is insolvent. 12 (3) The applicant or licensee has been engaged in 13 business practices that work a fraud. 14 (4) The applicant or licensee has refused to give 15 pertinent data to the Comptroller. 16 (5) The applicant or licensee has failed to satisfy 17 any enforceable judgment or decree rendered by any court 18 of competent jurisdiction against the applicant. 19 (6) The applicant or licensee has conducted or is 20 about to conduct business in a fraudulent manner. 21 (7) The trust agreement is not in compliance with 22 State or federal law. 23 (8) The fidelity bond is not satisfactory to the 24 Comptroller. 25 (9) As to any individual required to be listed in 26 the license application, the individual has conducted or 27 is about to conduct any business on behalf of the 28 applicant in a fraudulent manner; has been convicted of 29 any felony or misdemeanor, an essential element of which 30 is fraud; has had a judgment rendered against him or her 31 based on fraud in any civil litigation; has failed to 32 satisfy any enforceable judgment or decree rendered 33 against him or her by any court of competent HB2283 Engrossed -23- LRB9201944LDprA 1 jurisdiction; or has been convicted of any felony or any 2 theft-related offense. 3 (10) The applicant or licensee, including any 4 member, officer, or director thereof if the applicant or 5 licensee is a firm, partnership, association or 6 corporation and any shareholder holding more than 10% of 7 the corporate stock, has violated any provision of this 8 Act or any regulation, decision, order, or finding made 9 by the Comptroller under this Act. 10 (11) The Comptroller finds any fact or condition 11 existing which, if it had existed at the time of the 12 original application for such license, would have 13 warranted the Comptroller in refusing the issuance of the 14 license. 15 (b) Before refusal to issue or renew and before 16 suspension or revocation of a license, the Comptroller shall 17 hold a hearing to determine whether the applicant or 18 licensee, hereinafter referred to as the respondent, is 19 entitled to hold such a license. At least 10 days prior to 20 the date set for such hearing, the Comptroller shall notify 21 the respondent in writing that on the date designated a 22 hearing will be held to determine his eligibility for a 23 license and that he may appear in person or by counsel. Such 24 written notice may be served on the respondent personally, or 25 by registered or certified mail sent to the respondent's 26 business address as shown in his latest notification to the 27 Comptroller. At the hearing, both the respondent and the 28 complainant shall be accorded ample opportunity to present in 29 person or by counsel such statements, testimony, evidence and 30 argument as may be pertinent to the charges or to any defense 31 thereto. The Comptroller may reasonably continue such 32 hearing from time to time. 33 The Comptroller may subpoena any person or persons in 34 this State and take testimony orally, by deposition or by HB2283 Engrossed -24- LRB9201944LDprA 1 exhibit, in the same manner and with the same fees and 2 mileage allowances as prescribed in judicial proceedings in 3 civil cases. 4 Any authorized agent of the Comptroller may administer 5 oaths to witnesses at any hearing which the Comptroller is 6 authorized to conduct. 7 (Source: P.A. 84-839.) 8 (225 ILCS 45/3a-5 new) 9 Section 3a-5. License requirements. 10 (a) Every license issued by the Comptroller shall state 11 the number of the license, the business name and address of 12 the licensee's principal place of business, each branch 13 location also operating under the license, and the licensee's 14 parent company, if any. The license shall be conspicuously 15 posted in each place of business operating under the license. 16 The Comptroller may issue such additional licenses as may be 17 necessary for licensee branch locations upon compliance with 18 the provisions of this Act governing an original issuance of 19 a license for each new license. 20 (b) Individual salespersons representing a licensee 21 shall not be required to obtain licenses in their individual 22 capacities, but must acknowledge, by affidavit, that they 23 have been provided with a copy of and have read this Act. The 24 licensee shall retain copies of the affidavits of its sellers 25 for its records and shall make the affidavits available to 26 the Comptroller for examination upon request. 27 (c) The licensee shall be responsible for the activities 28 of any person representing the licensee in selling or 29 offering a pre-need contract for sale. 30 (d) Any person not selling on behalf of a licensee shall 31 obtain its own license. 32 (e) No license shall be transferable or assignable 33 without the express written consent of the Comptroller. A HB2283 Engrossed -25- LRB9201944LDprA 1 transfer of more than 50% of the ownership of any business 2 licensed hereunder shall be deemed to be an attempted 3 assignment of the license originally issued to the licensee 4 for which consent of the Comptroller shall be required. 5 (f) Every license issued hereunder shall remain in force 6 until it has been suspended, surrendered, or revoked in 7 accordance with this Act. The Comptroller, upon the request 8 of an interested person or on his own motion, may issue new 9 licenses to a licensee whose license or licenses have been 10 revoked, if no factor or condition then exists which would 11 have warranted the Comptroller to originally refuse the 12 issuance of such license. 13 (225 ILCS 45/3e) (from Ch. 111 1/2, par. 73.103e) 14 Sec. 3e. Upon the revocation of, suspension of, or 15 refusal to renew any license, the licensee shall immediately 16 surrender the license or licensesand any branch office17licensesto the Comptroller. If the licensee fails to do so, 18 the Comptroller shall have the right to seize the same. 19 (Source: P.A. 84-839.) 20 (225 ILCS 45/3f) 21 Sec. 3f. Revocation of license. 22 (a) The Comptroller, upon determination that grounds 23 exist for the revocation or suspension of a license issued 24 under this Act, may revoke or suspend, if appropriate, the 25 license issued to a licensee or to a particular branch office 26 location with respect to which the grounds for revocation or 27 suspension may occur or exist. 28 (b) Whenever a license is revoked by the Comptroller, he 29 or she shall apply to the Circuit Court of the county wherein 30 the licensee is located for a receiver to administer the 31 trust funds of the licensee or to maintain the life insurance 32 policies and tax-deferred annuities held by the licensee HB2283 Engrossed -26- LRB9201944LDprA 1 under a pre-need contract. 2 (Source: P.A. 88-477.) 3 (225 ILCS 45/4) (from Ch. 111 1/2, par. 73.104) 4 Sec. 4. Withdrawal of funds; revocability of contract. 5 (a) The amount or amounts so deposited into trust, with 6 interest thereon, if any, shall not be withdrawn until the 7 death of the person or persons for whose funeral or burial 8 such funds were paid, unless sooner withdrawn and repaid to 9 the person who originally paid the money under or in 10 connection with the pre-need contract or to his or her legal 11 representative. The life insurance policies or tax-deferred 12 annuities shall not be surrendered until the death of the 13 person or persons for whose funeral or burial the policies or 14 annuities were purchased, unless sooner surrendered and 15 repaid to the owner of the policy purchased under or in 16 connection with the pre-need contract or to his or her legal 17 representative. If, however, the agreement or series of 18 agreements provides for forfeiture and retention of any or 19 all payments as and for liquidated damages as provided in 20 Section 6, then the trustee may withdraw the deposits. In 21 addition, nothing in this Section (i) prohibits the change of 22 depositary by the trustee and the transfer of trust funds 23 from one depositary to another or (ii) prohibits a contract 24 purchaser who is or may become eligible for public assistance 25 under any applicable federal or State law or local ordinance 26 including, but not limited to, eligibility under 24 C.F.R., 27 Part 913 relating to family insurance under federal Housing 28 and Urban Development Policy from irrevocably waiving, in 29 writing, and renouncing the right to cancel a pre-need 30 contract for funeral services in an amount prescribed by rule 31 of the Illinois Department of Public Aid. No guaranteed price 32 pre-need funeral contract may prohibit a purchaser from 33 making a contract irrevocable to the extent that federal law HB2283 Engrossed -27- LRB9201944LDprA 1 or regulations require that such a contract be irrevocable 2 for purposes of the purchaser's eligibility for Supplemental 3 Security Income benefits, Medicaid, or another public 4 assistance program, as permitted under federal law. 5 (b) If for any reason a seller or provider who has 6 engaged in pre-need sales has refused, cannot, or does not 7 comply with the terms of the pre-need contract within a 8 reasonable time after he or she is required to do so, the 9 purchaser or his or her heirs or assigns or duly authorized 10 representative shall have the right to a refund of an amount 11 equal to the sales price paid for undelivered merchandise or 12 services plus otherwise earned undistributed interest amounts 13 held in trust attributable to the contract, within 30 days of 14 the filing of a sworn affidavit with the trustee setting 15 forth the existence of the contract and the fact of breach. 16 A copy of this affidavit shall be filed with the Comptroller 17 and the seller. In the event a seller is prevented from 18 performing by strike, shortage of materials, civil disorder, 19 natural disaster, or any like occurrence beyond the control 20 of the seller or provider, the seller or provider's time for 21 performance shall be extended by the length of the delay. 22 Nothing in this Section shall relieve the seller or provider 23 from any liability for non-performance of his or her 24 obligations under the pre-need contract. 25 (c) After final payment on a pre-need contract, any 26 purchaser may, upon written demand to a seller, demand that 27 the pre-need contract with the seller be terminated. The 28 seller shall, within 30 days, initiate a refund to the 29 purchaser of the entire amount held in trust attributable to 30 undelivered merchandise and unperformed services, including 31 otherwise earned undistributed interest earned thereon or the 32 cash surrender value of a life insurance policy or 33 tax-deferred annuity. 34 (c-5) If no funeral merchandise or services are provided HB2283 Engrossed -28- LRB9201944LDprA 1 or if the funeral is conducted by another person, the seller 2 may keep no more than 10% of the payments made under the 3 pre-need contract or $300, whichever sum is less. The 4 remainder of the trust funds or insurance or annuity proceeds 5 shall be forwarded to the legal heirs of the deceased or as 6 determined by probate action. 7 (d) The placement and retention of all or a portion of a 8 casket, combination casket-vault, urn, or outer burial 9 container comprised of materials which are designed to 10 withstand prolonged storage in the manner set forth in this 11 paragraph without adversely affecting the structural 12 integrity or aesthetic characteristics of such merchandise in 13 a specific burial space in which the person or persons for 14 whose funeral or burial the merchandise was intended has a 15 right of interment, or the placement of the merchandise in a 16 specific mausoleum crypt or lawn crypt in which such person 17 has a right of entombment, or the placement of the 18 merchandise in a specific niche in which such person has a 19 right of inurnment, or delivery to such person and retention 20 by such person until the time of need shall constitute actual 21 delivery to the person who originally paid the money under or 22 in connection with said agreement or series of agreements. 23 Actual delivery shall eliminate, from and after the date of 24 actual delivery, any requirement under this Act to place or 25 retain in trust any funds received for the sale of such 26 merchandise. The delivery, prior to the time of need, of any 27 funeral or burial merchandise in any manner other than 28 authorized by this Section shall not constitute actual 29 delivery and shall not eliminate any requirement under this 30 Act to place or retain in trust any funds received for the 31 sale of such merchandise. 32 (Source: P.A. 87-1091; 88-477.) 33 (225 ILCS 45/7.2) HB2283 Engrossed -29- LRB9201944LDprA 1 Sec. 7.2. Investigation of unlawful practices. If it 2 appears to the Comptroller that a person has engaged in, is 3 engaging in, or is about to engage in any practice in 4 violation ofdeclared to be unlawful bythis Act, the 5 Comptroller may: 6 (1) require that person to file on such terms as 7 the Comptroller prescribes a statement or report in 8 writing, under oath or otherwise, containing all 9 information the Comptroller may consider necessary to 10 ascertain whether a licensee is in compliance with this 11 Act, or whether an unlicensed person is engaging in 12 activities for which a license is required; 13 (2) examine under oath any person in connection 14 with the books and records pertaining to or having an 15 impact upon trust funds, insurance policies, or tax 16 deferred annuities required or allowed to be maintained 17 pursuant to this Act; 18 (3) examine any books and records of the licensee, 19 trustee, or investment advisor that the Comptroller may 20 consider necessary to ascertain compliance with this Act; 21 and 22 (4) require the production of a copy of any record, 23 book, document, account, or paper that is produced in 24 accordance with this Act and retain it in his or her 25 possession until the completion of all proceedings in 26 connection with which it is produced. 27 (Source: P.A. 89-615, eff. 8-9-96.) 28 (225 ILCS 45/8) (from Ch. 111 1/2, par. 73.108) 29 Sec. 8. Any person who intentionally fails to deposit the 30 required sales proceeds into a trust required under this Act, 31 intentionally and improperly withdraws or uses trust funds 32 for his or her own benefit, or otherwise intentionally 33 violates any provision of this Act is guilty of a Class 4 HB2283 Engrossed -30- LRB9201944LDprA 1 felony. 2 If any person intentionally violates this Act or fails or 3 refuses to comply with any order of the Comptroller or any 4 part of an order that has become final to the person and is 5 still in effect, the Comptroller may, after notice and 6 hearing at which it is determined that a violation of this 7 Act or the order has been committed, further order that the 8 person shall forfeit and pay to the State of Illinois a sum 9 not to exceed $5,000 for each violation. This liability 10 shall be enforced in an action brought in any court of 11 competent jurisdiction by the Comptroller in the name of the 12 People of the State of Illinois. 13Any violation of this Act for which a fine may be14assessed shall be established by rules promulgated by the15Comptroller.16 In addition to the other penalties and remedies provided 17 in this Act, the Comptroller may bring a civil action in the 18 county of residence of the licensee or any person accepting 19 trust funds to enjoin any violation or threatened violation 20 of this Act. 21 The powers vested in the Comptroller by this Section are 22 in addition to any and all other powers and remedies vested 23 in the Comptroller by law. 24 (Source: P.A. 88-477.) 25 (225 ILCS 45/8.1 new) 26 Sec. 8.1. Sales; liability of purchaser for shortage. In 27 the event of a sale or transfer of all or substantially all 28 of the assets of the licensee, the sale or transfer of the 29 controlling interest of the corporate stock of the licensee 30 if the licensee is a corporation, the sale or transfer of the 31 controlling interest of the partnership if the licensee is a 32 partnership, or the sale of the licensee pursuant to 33 foreclosure proceedings, the purchaser is liable for any HB2283 Engrossed -31- LRB9201944LDprA 1 shortages existing before or after the sale in the trust 2 funds required to be maintained in a trust pursuant to this 3 Act and shall honor all pre-need contracts and trusts entered 4 into by the licensee. Any shortages existing in the trust 5 funds constitute a prior lien in favor of the trust for the 6 total value of the shortages, and notice of that lien shall 7 be provided in all sales instruments. 8 In the event of a sale or transfer of all or 9 substantially all of the assets of the licensee, the sale or 10 transfer of the controlling interest of the corporate stock 11 of the licensee if the licensee is a corporation, or the sale 12 or transfer of the controlling interest of the partnership if 13 the licensee is a partnership, the licensee shall, at least 14 21 days prior to the sale or transfer, notify the 15 Comptroller, in writing, of the pending date of sale or 16 transfer so as to permit the Comptroller to audit the books 17 and records of the licensee. The audit must be commenced 18 within 10 business days of the receipt of the notification 19 and completed within the 21-day notification period unless 20 the Comptroller notifies the licensee during that period that 21 there is a basis for determining a deficiency which will 22 require additional time to finalize. The sale or transfer 23 may not be completed by the licensee unless and until: 24 (i) the Comptroller has completed the audit of the 25 licensee's books and records; 26 (ii) any delinquency existing in the trust funds has 27 been paid by the licensee, or arrangements satisfactory 28 to the Comptroller have been made by the licensee on the 29 sale or transfer for the payment of any delinquency; and 30 (iii) the Comptroller issues a license upon 31 application of the new owner, which license must be 32 applied for within 30 days of the anticipated date of the 33 sale or transfer, subject to the payment of any 34 delinquencies, if any, as stated in item (ii). HB2283 Engrossed -32- LRB9201944LDprA 1 For purposes of this Section, a person, firm, 2 corporation, partnership, or institution that acquires the 3 licensee through a real estate foreclosure shall be subject 4 to the provisions of this Section. 5 Section 25. The Illinois Public Aid Code is amended by 6 changing Section 12-4.11 as follows: 7 (305 ILCS 5/12-4.11) (from Ch. 23, par. 12-4.11) 8 Sec. 12-4.11. Grant amounts. The Department, with due 9 regard for and subject to budgetary limitations, shall 10 establish grant amounts for each of the programs, by 11 regulation. The grant amounts may vary by program, size of 12 assistance unit and geographic area. 13 Aid payments shall not be reduced except: (1) for changes 14 in the cost of items included in the grant amounts, or (2) 15 for changes in the expenses of the recipient, or (3) for 16 changes in the income or resources available to the 17 recipient, or (4) for changes in grants resulting from 18 adoption of a consolidated grant amount. 19 In fixing standards to govern payments or reimbursements 20 for funeral and burial expenses, the Department shall 21 establish a minimum allowable amount of not less than $1,000 22 for Department payment of funeral services and not less than 23 $500 for Department payment of burial or cremation services. 24 In establishing the minimum allowable amount, the Department 25 shall take into account the services essential to a 26 dignified, low-cost (i) funeral and (ii) burial or cremation, 27 including reasonable amounts that may be necessary for burial 28 space and cemetery charges, and any applicable taxes or other 29 required governmental fees or charges. If no person has 30 agreed to pay the total cost of the (i) funeral and (ii) 31 burial or cremation charges, the Department shall pay the 32 vendor the actual costs of the (i) funeral and (ii) burial or HB2283 Engrossed -33- LRB9201944LDprA 1 cremation, or the minimum allowable amount for each service 2 as established by the Department, whichever is less, provided 3 that the Department reduces its payments by the amount 4 available from the following sources: the decedent's assets 5 and available resources and the anticipated amounts of any 6 death benefits available to the decedent's estate, and 7 amounts paid and arranged to be paid by the decedent's 8 legally responsible relatives. A legally responsible relative 9 is expected to pay (i) funeral and (ii) burial or cremation 10 expenses unless financially unable to do so. 11 Nothing contained in this Section or in any other Section 12 of this Code shall be construed to prohibit the Illinois 13 Department (1) from consolidating existing standards on the 14 basis of any standards which are or were in effect on, or 15 subsequent to July 1, 1969, or (2) from employing any 16 consolidated standards in determining need for public aid and 17 the amount of money payment or grant for individual 18 recipients or recipient families. 19 (Source: P.A. 90-17, eff. 7-1-97; 90-326, eff. 8-8-97; 20 90-372, eff. 7-1-98; 90-655, eff. 7-30-98; 91-24, eff. 21 7-1-99.) 22 Section 27. The Crematory Regulation Act is amended by 23 changing Section 10 as follows: 24 (410 ILCS 18/10) 25 Sec. 10. Establishment of crematory and registration of 26 crematory authority. 27 (a) Any person doing business in this State, or any 28 cemetery, funeral establishment, corporation, partnership, 29 joint venture, voluntary organization or any other entity, 30 may erect, maintain, and operate a crematory in this State 31 and provide the necessary appliances and facilities for the 32 cremation of human remains in accordance with this Act. HB2283 Engrossed -34- LRB9201944LDprA 1 (b) A crematory shall be subject to all local, State, 2 and federal health and environmental protection requirements 3 and shall obtain all necessary licenses and permits from the 4 Department, the federal Department of Health and Human 5 Services, and the Illinois and federal Environmental 6 Protection Agencies, or such other appropriate local, State, 7 or federal agencies. 8 (c) A crematory may be constructed on or adjacent to any 9 cemetery, on or adjacent to any funeral establishment, or at 10 any other location consistent with local zoning regulations. 11 (d) An application for registration as a crematory 12 authority shall be in writing on forms furnished by the 13 Comptroller. Applications shall be accompanied by a fee of 14 $50 and shall contain all of the following: 15 (1) The full name and address, both residence and 16 business, of the applicant if the applicant is an 17 individual; the full name and address of every member if 18 the applicant is a partnership; the full name and address 19 of every member of the board of directors if the 20 applicant is an association; and the name and address of 21 every officer, director, and shareholder holding more 22 than 25% of the corporate stock if the applicant is a 23 corporation. 24 (2) The address and location of the crematory. 25 (3) A description of the type of structure and 26 equipment to be used in the operation of the crematory. 27 (4) Any further information that the Comptroller 28 reasonably may require. 29 (e) Each crematory authority shall file an annual report 30 with the Comptroller, accompanied with a $25 fee, providing 31 any changes required in the information provided under 32 subsection (d) or indicating that no changes have occurred. 33 The annual report shall be filed by a crematory authority on 34 or before March 15 of each calendar year, in the Office of HB2283 Engrossed -35- LRB9201944LDprA 1 the Comptroller. If the fiscal year of a crematory authority 2 is other than on a calendar year basis, then the crematory 3 authority shall file the report required by this Section 4 within 75 days after the end of its fiscal year. The 5 Comptroller shall, for good cause shown, grant an extension 6 for the filing of the annual report upon the written request 7 of the crematory authority. An extension shall not exceed 60 8 days. If a crematory authority fails to submit an annual 9 report to the Comptroller within the time specified in this 10 Section, the Comptroller shall impose upon the crematory 11 authority a penalty of $5 for each and every day the 12 crematory authority remains delinquent in submitting the 13 annual report. The Comptroller may abate all or part of the 14 $5 daily penalty for good cause shown. 15 (f) All records relating to the registration and annual 16 report of the crematory authority required to be filed under 17 this Section shall be subject to inspection by the 18 Comptroller upon reasonable notice. 19 (Source: P.A. 87-1187.) 20 Section 30. The Cemetery Care Act is amended by changing 21 Sections 2a, 9, 10, 11, 12, 13, 15b, and 24 and adding 22 Section 26 as follows: 23 (760 ILCS 100/2a) (from Ch. 21, par. 64.2a) 24 Sec. 2a. Powers and duties of cemetery authorities; 25 cemetery property maintained by cemetery care funds. 26 (a) With respect to cemetery property maintained by 27 cemetery care funds, a cemetery authority shall be 28 responsible for the performance of: 29 (1)(a)the care and maintenance of the cemetery 30 property it owns; and 31 (2)(b)the opening and closing of all graves, 32 crypts, or niches for human remains in any cemetery HB2283 Engrossed -36- LRB9201944LDprA 1 property it owns. 2 (b) A cemetery authority owning, operating, controlling 3 or managing a privately operated cemetery shall make 4 available for inspection, and upon reasonable request provide 5 a copy of, its rules and regulations and its current prices 6 of interment, inurnment, or entombment rights. 7 (c) A cemetery authority owning, operating, controlling 8 or managing a privately operated cemetery may, from time to 9 time as land in its cemetery may be required for burial 10 purposes, survey and subdivide those lands and make and file 11 in its office a map thereof delineating the lots or plots, 12 avenues, paths, alleys, and walks and their respective 13 designations. The cemetery authority shall open the map to 14 public inspection. The cemetery authority may make available 15 a copy of the overall map upon written request and payment of 16 reasonable photocopy fees. Any unsold lots, plots or parts 17 thereof, in which there are not human remains, may be 18 resurveyed and altered in shape or size, and properly 19 designated on such map. Nothing contained in this 20 subsection, however, shall prevent the cemetery authority 21 from enlarging an interment right by selling to the owner 22 thereof the excess space next to such interment right and 23 permitting interments therein, provided reasonable access to 24 such interment right and to adjoining interment rights is not 25 thereby eliminated. The Comptroller may waive any or all of 26 the requirements of this subsection (c) for good cause shown. 27 (d) A cemetery authority owning, operating, controlling, 28 or managing a privately operated cemetery shall keep a record 29 of every interment, entombment, and inurnment in the 30 cemetery. The record shall include the deceased's name, age, 31 and date of burial, when these particulars can be 32 conveniently obtained, and the lot, plot, or section where 33 the human remains are interred, entombed, or inurned. The 34 record shall be open to public inspection consistent with HB2283 Engrossed -37- LRB9201944LDprA 1 State and federal law. The cemetery authority shall make 2 available, consistent with State and federal law, a true copy 3 of the record upon written request and payment of reasonable 4 copy costs. 5 (e) A cemetery authority owning, operating, controlling, 6 or managing a privately operated cemetery shall provide 7 access to the cemetery under the cemetery authority's 8 reasonable rules and regulations. 9 (Source: P.A. 87-747.) 10 (760 ILCS 100/9) (from Ch. 21, par. 64.9) 11 Sec. 9. Application for license. 12 (a) Prior to the acceptance of care funds authorized by 13 Section 3 of this Act or the sale or transfer of the 14 controlling interest of a licensed cemetery authority, a 15 cemetery authority owning, operating, controlling, or 16 managing a privately operated cemetery shall make application 17 to the Comptroller for a license to hold the funds.Whenever18a cemetery authority owning, operating, controlling or19managing a privately operated cemetery is newly organized and20such cemetery authority desires to be licensed to accept the21care funds authorized by Section 3 of this Act, or whenever22there is a sale or transfer of the controlling interest of a23licensed cemetery authority, it shall make application for24such license.25 In the case of a sale or transfer of the controlling 26 interest of the cemetery authority, the prior license shall 27 remain in effect until the Comptroller issues a new license 28 to the newly-controlled cemetery authority as provided in 29 Section 15b. Upon issuance of the new license, the prior 30 license shall be deemed surrendered if the licensee has 31 agreed to the sale and transfer and has consented to the 32 surrender of the license. A sale or transfer of the 33 controlling interest of a cemetery authority to an immediate HB2283 Engrossed -38- LRB9201944LDprA 1 family member is not considered a transfer of the controlling 2 interest for purposes of this Section. 3 (b) Applications for license shall be filed with the 4 Comptroller. Applications shall be in writing under oath, 5 signed by the applicant, and in the form furnished by the 6 Comptroller. The form furnished by the Comptroller shall 7 enable a cemetery authority to apply for license of multiple 8 cemetery locations within a single license application. A 9 check or money order in the amount of $25 per license seeking 10 to be issued under the application, payable to: Comptroller, 11 State of Illinois, shall be included. Each application shall 12 contain the following: 13 (1) the full name and address (both of residence 14 and of place of business) of the applicant, if an 15 individual; of every member, if the applicant is a 16 partnership or association; of every officer,or 17 director, if the applicant is a corporation;,and of any 18 party owning 10% or more of the cemetery authority, and 19 the full name and address of the parent company, if any; 20 (2) a detailed statement of the applicant's assets 21 and liabilities; 22 (2.1) the name, address, and legal boundaries of 23 each cemetery for which the care funds shall be entrusted 24 and at which books, accounts, and records shall be 25 available for examination by the Comptroller as required 26 by Section 13 of this Act; 27 (3) as to the name of each individual person listed 28 under (1) above, a detailed statement of each person's 29 business experience for the 10 years immediately 30 preceding the application; the present and previous 31 connection, if any, of each person with any other 32 cemetery or cemetery authority; whether each person has 33 ever been convicted of anyafelony or has ever been 34 convicted of any misdemeanor of which an essential HB2283 Engrossed -39- LRB9201944LDprA 1 element is fraud or has been involved in any civil 2 litigation in which a judgment has been entered against 3 him or her based on fraud; whether each person is 4 currently a defendant in any lawsuit in which the 5 complaint against the person is based upon fraud; whether 6 such person has failed to satisfy any enforceable 7 judgment entered by a court of competent jurisdiction in 8 any civil proceedings against such individual;and9 (4) the total amount in trust and now available 10 from sales of lots, graves, crypts or niches where part 11 of the sale price has been placed in trust; the amount of 12 money placed in the care funds of each applicant; the 13 amount set aside in care funds from the sale of lots, 14 graves, crypts and niches for the general care of the 15 cemetery and the amount available for that purpose; the 16 amount received in trust by special agreement for special 17 care and the amount available for that purpose; the 18 amount of principal applicable to trust funds received by 19 the applicant; and.20 (5) any other information that the Comptroller may 21 reasonably require in order to determine the 22 qualifications of the applicant to be licensed under this 23 Act. 24 Such information shall be furnished whether the care 25 funds are held by the applicant as trustee or by an 26 independent trustee. If the funds are not held by the 27 applicant, the name of the independent trustee holding them 28 is also to be furnished by the applicant. 29 (c) Applications for license shall also be accompanied 30 by a fidelity bond issued by a bonding company or insurance 31 company authorized to do business in this State or by an 32 irrevocable, unconditional letter of credit issued by a bank 33 or trust company authorized to do business in the State of 34 Illinois, as approved by the State Comptroller, where such HB2283 Engrossed -40- LRB9201944LDprA 1 care funds exceed the sum of $15,000. Such bond or letter of 2 credit shall run to the Comptroller and his or her successor 3 for the benefit of the care funds held by such cemetery 4 authority or by the trustee of the care funds of such 5 cemetery authority. Such bonds or letters of credit shall be 6 in an amount equal to 1/10 of such care funds. However, such 7 bond or letter of credit shall not be in an amount less than 8 $1,000; the first $15,000 of such care funds shall not be 9 considered in computing the amount of such bond or letter of 10 credit. No application shall be accepted by the Comptroller 11 unless accompanied by such bond or letter of credit. 12 Applications for license by newly organized cemetery 13 authorities after January 1, 1960 shall also be accompanied 14 by evidence of a minimum care fund deposit in an amount to be 15 determined as follows: if the number of inhabitants, either 16 in the county in which the cemetery is to be located or in 17 the area included within a 10 mile radius from the cemetery 18 if the number of inhabitants therein is greater, is 25,000 or 19 less the deposit shall be $7,500; if the number of 20 inhabitants is 25,001 to 50,000, the deposit shall be 21 $10,000; if the number of inhabitants is 50,001 to 125,000, 22 the deposit shall be $15,000; if the number of inhabitants is 23 over 125,000, the deposit shall be $25,000. 24 After an amount equal to and in addition to the required 25 minimum care fund deposit has been deposited in trust, the 26 cemetery authority may withhold 50% of all future care funds 27 until it has recovered the amount of the minimum care fund 28 deposit. 29 (d) (Blank).The applicant shall have a permanent30address and any license issued pursuant to the application is31valid only at the address or at any new address approved by32the Comptroller.33 (e) All bonds and bonding deposits made by any cemetery 34 authority may be returned to the cemetery authority or HB2283 Engrossed -41- LRB9201944LDprA 1 cancelled as to care funds invested with an investment 2 company. 3 (Source: P.A. 89-615, eff. 8-9-96; 90-655, eff. 7-30-98.) 4 (760 ILCS 100/10) (from Ch. 21, par. 64.10) 5 Sec. 10. Upon receipt of such application for license, 6 the Comptroller shall issue a license to the applicant unless 7 the Comptroller determines that: 8 (a) The applicant has made any misrepresentations or 9 false statements or has concealed any essential or material 10 fact, or 11 (b) The applicant is insolvent; or 12 (c) The applicant is or has been using practices in the 13 conducting of the cemetery business that work or tend to work 14 a fraud; or 15 (d) The applicant has refused to furnish or give 16 pertinent data to the Comptroller; or 17 (e) The applicant has failed to notify the Comptroller 18 with respect to any material facts required in the 19 application for license under the provisions of this Act; or 20 (f) The applicant has failed to satisfy any enforceable 21 judgment entered by the circuit court in any civil 22 proceedings against such applicant; or 23 (g) The applicant has conducted or is about to conduct 24 its business in a fraudulent manner; or 25 (h) The applicant or anyAs to the name of any26 individual listed in the license application, such individual27 has conducted or is about to conduct any business on behalf 28 of the applicant in a fraudulent manner; or has been 29 convicted of a felony or any misdemeanor of which an 30 essential element is fraud; or has been involved in any civil 31 litigation in which a judgment has been entered against him 32 or her based on fraud; or has failed to satisfy any 33 enforceable judgment entered by the circuit court in any HB2283 Engrossed -42- LRB9201944LDprA 1 civil proceedings against such individual; or has been 2 convicted of any felony of which fraud is an essential 3 element; or has been convicted of any theft-related offense; 4 or has failed to comply with the requirements of this Act; or 5 has demonstrated a pattern of improperly failing to honor a 6 contract with a consumer; or 7 (i) The applicant has ever had a license involving 8 cemeteries or funeral homes revoked, suspended, or refused to 9 be issued in Illinois or elsewhere. 10 If the Comptroller so determines, then he or she shall 11 conduct a hearing to determine whether to deny the 12 application. However, no application shall be denied unless 13 the applicant has had at least 10 days' notice of a hearing 14 on the application and an opportunity to be heard thereon. If 15 the application is denied, the Comptroller shall within 20 16 days thereafter prepare and keep on file in his or her office 17 the transcript of the evidence taken and a written order of 18 denial thereof, which shall contain his or her findings with 19 respect thereto and the reasons supporting the denial, and 20 shall send by United States mail a copy of the written order 21 of denial to the applicant at the address set forth in the 22 application, within 5 days after the filing of such order. A 23 review of such decision may be had as provided in Section 20 24 of this Act. 25 The license issued by the Comptroller shall remain in 26 full force and effect until it is surrendered by the licensee 27 or revoked by the Comptroller as hereinafter provided. 28 (Source: P.A. 88-477.) 29 (760 ILCS 100/11) (from Ch. 21, par. 64.11) 30 Sec. 11. Issuance and display of license. A license 31 issued under this Act authorizes the cemetery authority to 32 accept care funds for the cemetery identified in the license. 33 If a license application seeks licensure to accept care funds HB2283 Engrossed -43- LRB9201944LDprA 1 on behalf of more than one cemetery location, the 2 Comptroller, upon approval of the license application, shall 3 issue to the cemetery authority a separate license for each 4 cemetery location indicated on the application. Each license 5 issued by the Comptroller under this Act is independent of 6 any other license that may be issued to a cemetery authority 7 under a single license application. 8 Every license issued by the Comptroller shall state the 9 number of the license and the address at which the business 10 is to be conducted. Such license shall be kept conspicuously 11 posted in the place of business of the licensee and shall not 12 be transferable or assignable. 13 No more than one place of business shall be maintained 14 under the same license, but the Comptroller may issue more 15 than one license to the same licensee upon compliance with 16 the provisions of this Act governing an original issuance of 17 a license, for each new license. 18 Whenever a licensee shall wish to change the name as 19 originally set forth in his license, he shall give written 20 notice thereof to the Comptroller together with the reasons 21 for the change and if the change is approved by the 22 Comptroller he shall issue a new license. 23 A license issued by the Comptroller shall remain in full 24 force and effect until it is surrendered by the licensee or 25 suspended or revoked by the Comptroller as provided in this 26 Act. 27 (Source: P.A. 78-592.) 28 (760 ILCS 100/12) (from Ch. 21, par. 64.12) 29 Sec. 12. Annual reports. Every licensee shall prepare a 30 written report as of the end of the preceding calendar year 31 or fiscal year, as the case may be, showing: 32 (a) The amount of the principal of the care funds held 33 in trust by the trustee of the care funds at the beginning of HB2283 Engrossed -44- LRB9201944LDprA 1 such year and in addition thereto all moneys or property 2 received during such year (1) under and by virtue of the sale 3 of a lot, grave, crypt or niche; (2) under or by virtue of 4 the terms of the contract authorized by the provisions of 5 Section 3 of this Act; (3) under or by virtue of any gift, 6 grant, legacy, payment or other contribution made either 7 prior to or subsequent to the effective date of this Act, and 8 (4) under or by virtue of any contract or conveyance made 9 either prior to or subsequent to the effective date of this 10 Act; 11 (b) The securities in which such care funds are invested 12 and the cash on hand as of the date of the report; 13 (c) The income received from such care funds during the 14 preceding calendar year, or fiscal year, as the case may be; 15 (d) The expenditures made from said income during the 16 preceding calendar year, or fiscal year, as the case may be; 17 and 18 (e) The number of interments made during the preceding 19 calendar year, or fiscal year, as the case may be. 20 Where any of the care funds of a licensee are held by an 21 independent trustee, the report filed by the licensee shall 22 contain a certificate signed by the trustee of the care funds 23 of such licensee certifying to the truthfulness of the 24 statements in the report as to (1) the total amount of 25 principal of the care funds held by the trustee, (2) the 26 securities in which such care funds are invested and the cash 27 on hand as of the date of the report and (3) the income 28 received from such care funds during the preceding calendar 29 year, or fiscal year, as the case may be. 30 Such report shall be filed by such licensee on or before 31 March 15 of each calendar year, in the office of the 32 Comptroller. If the fiscal year of such licensee is other 33 than on a calendar year basis, then such licensee shall file 34 the report required by this Section within 2 1/2 months of HB2283 Engrossed -45- LRB9201944LDprA 1 the end of its fiscal year. The Comptroller shall for good 2 cause shown grant an extension for the filing of the annual 3 report upon the written request of the licensee. Such 4 extension shall not exceed 60 days. If a licensee fails to 5 submit an annual report to the Comptroller within the time 6 specified in this Section, the Comptroller shall impose upon 7 the licensee a penalty of $5 for each and every day the 8 licensee remains delinquent in submitting the annual report. 9 The Comptroller may abate all or part of the $5 daily penalty 10 for good cause shown. 11 Such report shall be made under oath and shall be in the 12 form furnished by the Comptroller. Each report shall be 13 accompanied by a check or money order in the amount of $10, 14 payable to: Comptroller, State of Illinois. 15 If any annual report shows that the amount of the care 16 funds held in trust at the end of the preceding calendar year 17 or fiscal year, as the case may be, has increased in amount 18 over that shown by the next preceding report, then the 19 fidelity bond theretofore filed shall be increased to the 20 amount required by Section 9 of this Act. Such increased 21 fidelity bond shall accompany the report and no report shall 22 be accepted by the Comptroller unless accompanied by such 23 bond, except where the filing of a bond is excused by Section 24 18 of this Act. 25 (Source: P.A. 88-477; 89-615, eff. 8-9-96.) 26 (760 ILCS 100/13) (from Ch. 21, par. 64.13) 27 Sec. 13. Books, accounts, and records. Every licensee 28 and the trustee of the care funds of every licensee shall be 29 a resident of this State and shall keep in this State and use 30 in its business such books, accounts and records as will 31 enable the Comptroller to determine whether such licensee or 32 trustee is complying with the provisions of this Act and with 33 the rules, regulations and directions made by the Comptroller HB2283 Engrossed -46- LRB9201944LDprA 1 hereunder. The licensee shall keep the books, accounts, and 2 records at the location identified in the license issued by 3 the Comptroller or as otherwise agreed by the Comptroller in 4 writing. The books, accounts, and records shall be 5 accessible for review upon demand of the Comptroller. 6 (Source: P.A. 78-592.) 7 (760 ILCS 100/15b) 8 Sec. 15b. Sales; liability of purchaser for shortage. 9 In the case of a sale of any privately operated cemetery 10 or any part thereof or of any related personal property by a 11 cemetery authority to a purchaser or pursuant to foreclosure 12 proceedings, except the sale of burial rights, services, or 13 merchandise to a person for his or her personal or family 14 burial or interment, the purchaser is liable for any 15 shortages existing before or after the sale in the care funds 16 required to be maintained in a trust pursuant to this Act and 17 shall honor all instruments issued under Section 4 for that 18 cemetery. Any shortages existing in the care funds constitute 19 a prior lien in favor of the trust for the total value of the 20 shortages, and notice of such lien shall be provided in all 21 sales instruments. 22 In the event of a sale or transfer of all or 23 substantially all of the assets of the cemetery authority, 24 the sale or transfer of the controlling interest of the 25 corporate stock of the cemetery authority if the cemetery 26 authority is a corporation, or the sale or transfer of the 27 controlling of the partnership if the cemetery authority is a 28 partnership, the cemetery authority shall, at least 21 days 29 prior to the sale or transfer, notify the Comptroller, in 30 writing, of the pending date of sale or transfer so as to 31 permit the Comptroller to audit the books and records of the 32 cemetery authority. The audit must be commenced within 10533 business days of the receipt of the notification and HB2283 Engrossed -47- LRB9201944LDprA 1 completed within the 21 day notification period unless the 2 Comptroller notifies the cemetery authority during that 3 period that there is a basis for determining a deficiency 4 which will require additional time to finalize. The sale or 5 transfer may not be completed by the cemetery authority 6 unless and until: 7 (a) The Comptroller has completed the audit of the 8 cemetery authority's books and records; 9 (b) Any delinquency existing in the care funds has 10 been paid by the cemetery authority, or arrangements 11 satisfactory to the Comptroller have been made by the 12 cemetery authority on the sale or transfer for the 13 payment of any delinquency; 14 (c) The Comptroller issues a new cemetery care 15 license upon application of the newly controlled 16 corporation or partnership, which license must be applied 17 for within 30 days of the anticipated date of the sale or 18 transfer, subject to the payment of any delinquencies, if 19 any, as stated in item (b) above. 20 For purposes of this Section, a person, firm, 21 corporation, partnership, or institution that acquires the 22 cemetery through a real estate foreclosure shall be subject 23 to the provisions of this Section. The sale or transfer of 24 the controlling interest of a cemetery authority to an 25 immediate family member is not subject to the license 26 application process required in item (c) of this Section. 27 In the event of a sale or transfer of any cemetery land, 28 including any portion of cemetery land in which no human 29 remains have been interred, a licensee shall, at least 21 30 days prior to the sale or transfer, notify the Comptroller, 31 in writing, of the pending sale or transfer. 32 (Source: P.A. 90-623, eff. 7-10-98.) 33 (760 ILCS 100/24) (from Ch. 21, par. 64.24) HB2283 Engrossed -48- LRB9201944LDprA 1 Sec. 24. Whoever intentionally fails to deposit the 2 required amounts into a trust provided for in this Act, 3 intentionally and improperly withdraws or uses trust funds 4 for his or her own benefit, or otherwise intentionally 5 violates any provision of this Act (other thanexceptthe 6 provisions of Section 23 and subsections (b), (c), (d), and 7 (e) of Section 2a) shall be guilty of a Class 4 felony, and 8 each day such provisions are violated shall constitute a 9 separate offense. 10 If any person intentionally violates this Act or fails or 11 refuses to comply with any order of the Comptroller or any 12 part of an order that has become final to such person and is 13 still in effect, the Comptroller may, after notice and 14 hearing at which it is determined that a violation of this 15 Act or such order has been committed, further order that such 16 person shall forfeit and pay to the State of Illinois a sum 17 not to exceed $5,000 for each violation. Such liability 18 shall be enforced in an action brought in any court of 19 competent jurisdiction by the Comptroller in the name of the 20 People of the State of Illinois. 21 In addition to the other penalties and remedies provided 22 in this Act, the Comptroller may bring a civil action in the 23 county of residence of the licensee or any person accepting 24 care funds to enjoin any violation or threatened violation of 25 this Act. 26 The powers vested in the Comptroller by this Section are 27 additional to any and all other powers and remedies vested in 28 the Comptroller by law. 29 (Source: P. A. 86-1359.) 30 (760 ILCS 100/26 new) 31 Sec. 26. Abandoned or neglected cemeteries; clean-up. 32 The Comptroller may administer a program for the purpose of 33 cleaning up abandoned or neglected cemeteries located in HB2283 Engrossed -49- LRB9201944LDprA 1 Illinois. Administration of this program may include the 2 Comptroller's issuance of grants for that purpose to units of 3 local government, school districts, and not-for-profit 4 associations. 5 Section 40. The Cemetery Protection Act is amended by 6 changing Section 1 as follows: 7 (765 ILCS 835/1) (from Ch. 21, par. 15) 8 Sec. 1. (a) Any person who acts without proper legal 9 authority and who willfully and knowingly destroys or damages 10 the remains of a deceased human being or who desecrates human 11 remains is guilty of a Class 3 felony. 12 (a-5) Any person who acts without proper legal authority 13 and who willfully and knowingly removes any portion of the 14 remains of a deceased human being from a burial ground where 15 skeletal remains are buried or from a grave, crypt, vault, 16 mausoleum, or other repository of human remains is guilty of 17 a Class 4 felony. 18 (b) Any person who acts without proper legal authority 19 and who willfully and knowingly: 20 (1) obliterates, vandalizes, or desecrates a burial 21 ground where skeletal remains are buried or a grave, 22 crypt, vault, mausoleum, or other repository of human 23 remains; 24 (2) obliterates, vandalizes, or desecrates a park 25 or other area clearly designated to preserve and 26 perpetuate the memory of a deceased person or group of 27 persons; 28 (3) obliterates, vandalizes, or desecrates plants, 29 trees, shrubs, or flowers located upon or around a 30 repository for human remains or within a human graveyard 31 or cemetery; or 32 (4) obliterates, vandalizes, or desecrates a fence, HB2283 Engrossed -50- LRB9201944LDprA 1 rail, curb, or other structure of a similar nature 2 intended for the protection or for the ornamentation of 3 any tomb, monument, gravestone, or other structure of 4 like character; 5 is guilty of a Class A misdemeanor if the amount of the 6 damage is less than $500, a Class 4 felony if the amount of 7 the damage is at least $500 and less than $10,000, a Class 3 8 felony if the amount of the damage is at least $10,000 and 9 less than $100,000, or a Class 2 felony if the damage is 10 $100,000 or more and shall provide restitution to the 11 cemetery authority or property owner for the amount of any 12 damage caused. 13 (b-5) Any person who acts without proper legal authority 14 and who willfully and knowingly defaces, vandalizes, injures, 15 or removes a gravestone or other memorial, monument, or 16 marker commemorating a deceased person or group of persons, 17 whether located within or outside of a recognized cemetery, 18 memorial park, or battlefield is guilty of a Class 4 felony 19 for damaging at least one but no more than 4 gravestones, a 20 Class 3 felony for damaging at least 5 but no more than 10 21 gravestones, or a Class 2 felony for damaging more than 10 22 gravestones and shall provide restitution to the cemetery 23 authority or property owner for the amount of any damage 24 caused. 25 (b-7) Any person who acts without proper legal authority 26 and who willfully and knowingly removes with the intent to 27 resell a gravestone or other memorial, monument, or marker 28 commemorating a deceased person or group of persons, whether 29 located within or outside a recognized cemetery, memorial 30 park, or battlefield, is guilty of a Class 2 felony. 31 (c) The provisions of this Section shall not apply to 32 the removal or unavoidable breakage or injury by a cemetery 33 authority of anything placed in or upon any portion of its 34 cemetery in violation of any of the rules and regulations of HB2283 Engrossed -51- LRB9201944LDprA 1 the cemetery authority, nor to the removal of anything placed 2 in the cemetery by or with the consent of the cemetery 3 authority that in the judgment of the cemetery authority has 4 become wrecked, unsightly, or dilapidated. 5 (d) If an unemancipated minor is found guilty of 6 violating any of the provisions of subsection (b) of this 7 Section and is unable to provide restitution to the cemetery 8 authority or property owner, the parents or legal guardians 9 of that minor shall provide restitution to the cemetery 10 authority or property owner for the amount of any damage 11 caused, up to the total amount allowed under the Parental 12 Responsibility Law. 13 (e) Any person who shall hunt, shoot or discharge any 14 gun, pistol or other missile, within the limits of any 15 cemetery, or shall cause any shot or missile to be discharged 16 into or over any portion thereof, or shall violate any of the 17 rules made and established by the board of directors of such 18 cemetery, for the protection or government thereof, is guilty 19 of a Class C misdemeanor. 20 (f) Any person who knowingly enters or knowingly remains 21 upon the premises of a public or private cemetery without 22 authorization during hours that the cemetery is posted as 23 closed to the public is guilty of a Class A misdemeanor. 24 (g) All fines when recovered, shall be paid over by the 25 court or officer receiving the same to the cemetery 26 association and be applied, as far as possible in repairing 27 the injury, if any, caused by such offense. Provided, 28 nothing contained in this Act shall deprive such cemetery 29 association, or the owner of any lot or monument from 30 maintaining an action for the recovery of damages caused by 31 any injury caused by a violation of the provisions of this 32 Act, or of the rules established by the board of directors of 33 such cemetery association. Nothing in this Section shall be 34 construed to prohibit the discharge of firearms loaded with HB2283 Engrossed -52- LRB9201944LDprA 1 blank ammunition as part of any funeral, any memorial 2 observance or any other patriotic or military ceremony. 3 (Source: P.A. 89-36, eff. 1-1-96.) 4 Section 45. The Illinois Pre-Need Cemetery Sales Act is 5 amended by changing Sections 1, 4, 5, 6, 7, 8, 8a, 9, 12, 14, 6 16, 19, 20, 22, and 23 and adding Section 27.1 as follows: 7 (815 ILCS 390/1) (from Ch. 21, par. 201) 8 Sec. 1. Purpose. It is the purpose of this Act to 9 assure adequate protection for those who contract through 10 pre-need contracts for the purchase of certain cemetery 11 merchandise and cemetery services and undeveloped interment, 12 entombment or inurnment space, when the seller may delay 13 delivery or performance more than 120 days following initial 14 payment on the account. 15 (Source: P.A. 85-805.) 16 (815 ILCS 390/4) (from Ch. 21, par. 204) 17 Sec. 4. Definitions. As used in this Act, the following 18 terms shall have the meaning specified: 19 (A)A."Pre-need sales contract" or "Pre-need sales" 20 means any agreement or contract or series or combination of 21 agreements or contracts which have for a purpose the sale of 22 cemetery merchandise, cemetery services or undeveloped 23 interment, entombment or inurnment spaces where the terms of 24 such sale require payment or payments to be made at a 25 currently determinable time and where the merchandise, 26 services or completed spaces are to be provided more than 120 27 days following the initial payment on the account. An 28 agreement or contract for a memorial, marker, or monument 29 shall not be deemed a "pre-need sales contract" or a 30 "pre-need sale" if the memorial, marker, or monument is 31 delivered within 180 days following initial payment on the HB2283 Engrossed -53- LRB9201944LDprA 1 account and work thereon commences a reasonably short time 2 after initial payment on the account. 3 (B)B."Delivery" occurs when: 4 (1) Physical possession of the merchandise is 5 transferred or the easement for burial rights in a 6 completed space is executed, delivered and transferred to 7 the buyer; or 8 (2) Following authorization by a purchaser under a 9 pre-need sales contract, title to the merchandise has 10 been transferred to the buyer and the merchandise has 11 been paid for and is in the possession of the seller who 12 has placed it, until needed, at the site of its ultimate 13 use; or 14 (3)(A)Following authorization by a purchaser 15 under a pre-need sales contract, the merchandise has been 16 permanently identified with the name of the buyer or the 17 beneficiary and delivered to a licensed and bonded 18 warehouse and both title to the merchandise and a 19 warehouse receipt have been delivered to the purchaser or 20 beneficiary and a copy of the warehouse receipt has been 21 delivered to the licensee for retention in its files; 22 except that in the case of outer burial containers, the 23 use of a licensed and bonded warehouse as set forth in 24 this paragraph shall not constitute delivery for purposes 25 of this Act. Nothing herein shall prevent a seller from 26 perfecting a security interest in accordance with the 27 Uniform Commercial Code on any merchandise covered under 28 this Act. 29(B)All warehouse facilities to which sellers 30 deliver merchandise pursuant to this Act shall: 31 (i) be either located in the State of Illinois 32 or qualify as a foreign warehouse facility as 33 defined herein; 34 (ii) submit to the Comptroller not less than HB2283 Engrossed -54- LRB9201944LDprA 1 annually, by March 1 of each year, a report of all 2 cemetery merchandise stored by each licensee under 3 this Act which is in storage on the date of the 4 report; 5 (iii) permit the Comptroller or his designee 6 at any time to examine stored merchandise and to 7 examine any documents pertaining thereto; 8 (iv) submit evidence satisfactory to the 9 Comptroller that all merchandise stored by said 10 warehouse for licensees under this Act is insured 11 for casualty or other loss normally assumed by a 12 bailee for hire; 13 (v) demonstrate to the Comptroller that the 14 warehouse has procured and is maintaining a 15 performance bond in the form, content and amount 16 sufficient to unconditionally guarantee to the 17 purchaser or beneficiary the prompt shipment of the 18 cemetery merchandise. 19 (C) "Cemetery merchandise" means items of personal 20 property normally sold by a cemetery authority not covered 21 under the Illinois Funeral or Burial Funds Act, including but 22 not limited to: 23 (1) memorials, 24 (2) markers, 25 (3) monuments, 26 (4) foundations, and 27 (5) outer burial containers. 28 (D) "Undeveloped interment, entombment or inurnment 29 spaces" or "undeveloped spaces" means any space to be used 30 for the reception of human remains that is not completely and 31 totally constructed at the time of initial payment therefor 32 in a: 33 (1) lawn crypt, 34 (2) mausoleum, HB2283 Engrossed -55- LRB9201944LDprA 1 (3) garden crypt, 2 (4) columbarium, or 3 (5) cemetery section. 4 (E) "Cemetery services" means those services customarily 5 performed by cemetery or crematory personnel in connection 6 with the interment, entombment, inurnment or cremation of a 7 dead human body. 8 (F) "Cemetery section" means a grouping of spaces 9 intended to be developed simultaneously for the purpose of 10 interring human remains. 11 (G) "Columbarium" means an arrangement of niches that 12 may be an entire building, a complete room, a series of 13 special indoor alcoves, a bank along a corridor or part of an 14 outdoor garden setting that is constructed of permanent 15 material such as bronze, marble, brick, stone or concrete for 16 the inurnment of human remains. 17 (H) "Lawn crypt" means a permanent underground crypt 18 usually constructed of reinforced concrete or similar 19 material installed in multiple units for the entombment 20intermentof human remains. 21 (I) "Mausoleum" or "garden crypt" means a grouping of 22 spaces constructed of reinforced concrete or similar material 23 constructed or assembled above the ground for entombing human 24 remains. 25 (J) "Memorials, markers and monuments" means the object 26 usually comprised of a permanent material such as granite or 27 bronze used to identify and memorialize the deceased. 28 (K) "Foundations" means those items used to affix or 29 support a memorial or monument to the ground in connection 30 with the installation of a memorial, marker or monument. 31 (L) "Person" means an individual, corporation, 32 partnership, joint venture, business trust, voluntary 33 organization or any other form of entity. 34 (M) "Seller" means any person selling or offering for HB2283 Engrossed -56- LRB9201944LDprA 1 sale cemetery merchandise, cemetery services or undeveloped 2 interment, entombment, or inurnment spaces in accordance with 3 a pre-need sales contracton a pre-need basis. 4 (N) "Religious cemetery" means a cemetery owned, 5 operated, controlled or managed by any recognized church, 6 religious society, association or denomination or by any 7 cemetery authority or any corporation administering, or 8 through which is administered, the temporalities of any 9 recognized church, religious society, association or 10 denomination. 11 (O) "Municipal cemetery" means a cemetery owned, 12 operated, controlled or managed by any city, village, 13 incorporated town, township, county or other municipal 14 corporation, political subdivision, or instrumentality 15 thereof authorized by law to own, operate or manage a 16 cemetery. 17 (O-1) "Outer burial container" means a container made of 18 concrete, steel, wood, fiberglass, or similar material, used 19 solely at the interment site, and designed and used 20 exclusively to surround or enclose a separate casket and to 21 support the earth above such casket, commonly known as a 22 burial vault, grave box, or grave liner, but not including a 23 lawn crypt. 24 (P) "Sales price" means the gross amount paid by a 25 purchaser on a pre-need sales contract for cemetery 26 merchandise, cemetery services or undeveloped interment, 27 entombment or inurnment spaces, excluding sales taxes, credit 28 life insurance premiums, finance charges and Cemetery Care 29 Act contributions. 30 (Q) (Blank). 31 (R) "Provider" means a person who is responsible for 32 performing cemetery services or furnishing cemetery 33 merchandise, interment spaces, entombment spaces, or 34 inurnment spaces under a pre-need sales contract. HB2283 Engrossed -57- LRB9201944LDprA 1 (S) "Purchaser" or "buyer" means the person who 2 originally paid the money under or in connection with a 3 pre-need sales contract. 4 (T) "Parent company" means a corporation owning more than 5 12 cemeteries or funeral homes in more than one state. 6 (U) "Foreign warehouse facility" means a warehouse 7 facility now or hereafter located in any state or territory 8 of the United States, including the District of Columbia, 9 other than the State of Illinois. 10 A foreign warehouse facility shall be deemed to have 11 appointed the Comptroller to be its true and lawful attorney 12 upon whom may be served all legal process in any action or 13 proceeding against it relating to or growing out of this Act, 14 and the acceptance of the delivery of stored merchandise 15 under this Act shall be signification of its agreement that 16 any such process against it which is so served, shall be of 17 the same legal force and validity as though served upon it 18 personally. 19 Service of such process shall be made by delivering to 20 and leaving with the Comptroller, or any agent having charge 21 of the Comptroller's Department of Cemetery and Burial 22 Trusts, a copy of such process and such service shall be 23 sufficient service upon such foreign warehouse facility if 24 notice of such service and a copy of the process are, within 25 10 days thereafter, sent by registered mail by the plaintiff 26 to the foreign warehouse facility at its principal office and 27 the plaintiff's affidavit of compliance herewith is appended 28 to the summons. The Comptroller shall keep a record of all 29 process served upon him under this Section and shall record 30 therein the time of such service. 31 (Source: P.A. 91-7, eff. 1-1-2000; 91-357, eff. 7-29-99; 32 revised 8-30-99.) 33 (815 ILCS 390/5) (from Ch. 21, par. 205) HB2283 Engrossed -58- LRB9201944LDprA 1 Sec. 5. It is unlawful for any sellerpersondirectly or 2 indirectly doing business within this State, through an agent3or otherwiseto engage in pre-need sales without a license 4 issued by the Comptroller. 5 (Source: P.A. 84-239.) 6 (815 ILCS 390/6) (from Ch. 21, par. 206) 7 Sec. 6. License application. 8 (a) An application for a license shall be made in 9 writing to the Comptroller on forms prescribed by him or her, 10 signed by the applicant under oath verified by a notary 11 public, andshall beaccompanied by a non-returnable $25 12 application fee. The Comptroller may prescribe abbreviated 13 application forms for persons holding a license under the 14 Cemetery Care Act. Applications (except abbreviated 15 applications) must include at least the following 16 information: 17 (1) The full name and address, both residence and 18 business, of the applicant if the applicant is an 19 individual; of every member if applicant is a 20 partnership; of every member of the Board of Directors if 21 applicant is an association; and of every officer, 22 director and shareholder holding more than 10%5%of the 23 corporate stock if applicant is a corporation; 24 (2) A detailed statement of applicant's assets and 25 liabilities; 26 (2.1) The name and address of the applicant's 27 principal place of business at which the books, accounts, 28 and records are available for examination by the 29 Comptroller as required by this Act; 30 (2.2) The name and address of the applicant's 31 branch locations at which pre-need sales will be 32 conducted and which will operate under the same license 33 number as the applicant's principal place of business; HB2283 Engrossed -59- LRB9201944LDprA 1 (3) For each individual listed under (1) above, a 2 detailed statement of the individual's business 3 experience for the 10 years immediately preceding the 4 application; any present or prior connection between the 5 individual and any other person engaged in pre-need 6 sales; any felony or misdemeanor convictions for which 7 fraud was an essential element; any charges or complaints 8 lodged against the individual for which fraud was an 9 essential element and which resulted in civil or criminal 10 litigation; any failure of the individual to satisfy an 11 enforceable judgment entered against him or her based 12 upon fraud; and any other information requested by the 13 Comptroller relating to the past business practices of 14 the individual. Since the information required by this 15 paragraph may be confidential or contain proprietary 16 information, this information shall not be available to 17 other licensees or the general public and shall be used 18 only for the lawful purposes of the Comptroller in 19 enforcing this Act; 20 (4) The name of the trustee and, if applicable, the 21 names of the advisors to the trustee, including a copy of 22 the proposed trust agreement under which the trust funds 23 are to be held as required by this Act; 24 (5) Where applicable, the name of the corporate 25 surety company providing the performance bond for the 26 construction of undeveloped spaces and a copy of the 27 bond; and 28 (6) Such other information as the Comptroller may 29 reasonably require in order to determine the 30 qualification of the applicant to be licensed under this 31 Act. 32 (b) Applications for license shall be accompanied by a 33 fidelity bond executed by the applicant and a security 34 company authorized to do business in this State in such HB2283 Engrossed -60- LRB9201944LDprA 1 amount, not exceeding $10,000, as the Comptroller may 2 require. The Comptroller may require additional bond from 3 time to time in amounts equal to one-tenth of such trust 4 funds but not to exceed $100,000, which bond shall run to the 5 Comptroller for the use and benefit of the beneficiaries of 6 such trust funds. Such licensee may by written permit of the 7 Comptroller be authorized to operate without additional bond, 8 except such fidelity bond as may be required by the 9 Comptroller for the protection of the licensee against loss 10 by default by any of its employees engaged in the handling of 11 trust funds. 12 (c) Any application not acted upon within 90 days may be 13 deemed denied. 14 (Source: P.A. 88-477.) 15 (815 ILCS 390/7) (from Ch. 21, par. 207) 16 Sec. 7. The Comptroller may refuse to issue or may 17 suspend or revoke a license on any of the following grounds: 18 (a) The applicant or licensee has made any 19 misrepresentations or false statements or concealed any 20 material fact; 21 (b) The applicant or licensee is insolvent; 22 (c) The applicant or licensee has been engaged in 23 business practices that work a fraud; 24 (d) The applicant or licensee has refused to give 25 pertinent data to the Comptroller; 26 (e) The applicant or licensee has failed to satisfy any 27 enforceable judgment or decree rendered by any court of 28 competent jurisdiction against the applicant; 29 (f) The applicant or licensee has conducted or is about 30 to conduct business in a fraudulent manner; 31 (g) Thetrustee advisors or thetrust agreement is not 32 in compliance with State or federal lawsatisfactory to the33Comptroller; HB2283 Engrossed -61- LRB9201944LDprA 1 (h) The pre-construction performance bond, if 2 applicable, is not satisfactory to the Comptroller; 3 (i) The fidelity bond is not satisfactory to the 4 Comptroller; 5 (j) As to any individual listed in the license 6 application as required pursuant to Section 6, thatsuch7 individual has conducted or is about to conduct any business 8 on behalf of the applicant in a fraudulent manner,;has been 9 convicted of any felony or misdemeanor an essential element 10 of which is fraud, has had a judgment rendered against him or 11 her based on fraud in any civil litigation,orhas failed to 12 satisfy any enforceable judgment or decree rendered against 13 him by any court of competent jurisdiction, or has been 14 convicted of any felony or any theft-related offense; 15 (k) The applicant or licensee has failed to make the 16 annual report required by this Act or to comply with a final 17 order, decision, or finding of the Comptroller made pursuant 18 to this Act; 19 (l) The applicant or licensee, including any member, 20 officer, or director thereof if the applicant or licensee is 21 a firm, partnership, association, or corporation and any 22 shareholder holding more than 10% of the corporate stock, has 23 violated any provision of this Act or any regulation or order 24 made by the Comptroller under this Act; or 25 (m) The Comptroller finds any fact or condition existing 26 which, if it had existed at the time of the original 27 application for such license would have warranted the 28 Comptroller in refusing the issuance of the license. 29 (Source: P.A. 85-842.) 30 (815 ILCS 390/8) (from Ch. 21, par. 208) 31 Sec. 8. (a) Every license issued by the Comptroller 32 shall state the number of the license, the business name and 33 address of the licensee's principal place of business, each HB2283 Engrossed -62- LRB9201944LDprA 1 branch location also operating under the license, and the 2 licensee's parent company, if any.licensee at which the3business is to be conducted, andThe license shall be 4 conspicuously posted in eachtheplace of business operating 5 under the license.No more than one place of business shall6be maintained under the same license, butThe Comptroller 7 may issue additional licenses as may be necessary for license 8 branch locationsmore than one license to a licenseeupon 9 compliance with the provisions of this Act governing an 10 original issuance of a license for each new license. 11 (b) Individual salespersons representingemployed bya 12 licensee shall not be required to obtain licenses in their 13 individual capacities but must acknowledge, by affidavit, 14 that they have been provided a copy of and have read this 15 Act. The licensee must retain copies of the affidavits of 16 its salespersons for its records and must make the affidavits 17 available to the Comptroller for examination upon request. 18 (c) The licensee shall be responsible for the activities 19 of any person representing the licensee in selling or 20 offering a pre-need contract for saleall individuals or21sales organizations selling under contract with, as agents or22on behalf of the licensee. 23 (d) Anysales company or otherperson not selling on 24 behalf of a licensee shall be required to obtain his or her 25itsown license. 26 (e) Any person engaged in pre-need sales, as defined 27 herein, prior to the effective date of this Act may continue 28 operations until the application for license under this Act 29 is denied; provided that such person shall make application 30 for a license within 60 days of the date that application 31 forms are made available by the Comptroller. 32 (f) No license shall be transferable or assignable 33 without the express written consent of the Comptroller. A 34 transfer of more than 50% of the ownership of any business HB2283 Engrossed -63- LRB9201944LDprA 1 licensed hereunder shall be deemed to be an attempted 2 assignment of the license originally issued to the licensee 3 for which consent of the Comptroller shall be required. 4 (g) Every license issued hereunder shall remain in force 5 until the same has been suspended, surrendered or revoked in 6 accordance with this Act, but the Comptroller, upon the 7 request of an interested person or on his own motion, may 8 issue new licenses to a licensee whose license or licenses 9 have been revoked, if no factor or condition then exists 10 which would have warranted the Comptroller in refusing 11 originally the issuance of such license. 12 (Source: P.A. 84-239.) 13 (815 ILCS 390/8a) 14 Sec. 8a. Investigation of unlawful practices. If it 15 appears to the Comptroller that a person has engaged in, is 16 engaging in, or is about to engage in any practice in 17 violation ofdeclared to be unlawful bythis Act, the 18 Comptroller may: 19 (1) require that person to file on such terms as 20 the Comptroller prescribes a statement or report in 21 writing, under oath or otherwise, containing all 22 information the Comptroller may consider necessary to 23 ascertain whether a licensee is in compliance with this 24 Act, or whether an unlicensed person is engaging in 25 activities for which a license is required; 26 (2) examine under oath any person in connection 27 with the books and records pertaining to or having an 28 impact upon the trust funds required to be maintained 29 pursuant to this Act; 30 (3) examine any books and records of the licensee, 31 trustee, or investment advisor that the Comptroller may 32 consider necessary to ascertain compliance with this Act; 33 and HB2283 Engrossed -64- LRB9201944LDprA 1 (4) require the production of a copy of any record, 2 book, document, account, or paper that is produced in 3 accordance with this Act and retain it in his or her 4 possession until the completion of all proceedings in 5 connection with which it is produced. 6 (Source: P.A. 89-615, eff. 8-9-96.) 7 (815 ILCS 390/9) (from Ch. 21, par. 209) 8 Sec. 9. The Comptroller may,upon his own motion 9 investigate the actions of any person providing, selling, or 10 offering pre-need sales contracts or of any applicant or any 11 person or persons holding or claiming to hold a license under 12 this Act. The Comptroller shall make such an investigation 13 on receipt of the verified written complaint of any person 14 setting forth facts which, if proved, would constitute 15 grounds for refusal, suspension, or revocation of a license 16with respect to which grounds for revocation may occur or17exist, or if he shall find that such grounds for revocation18are of general application to all offices or to more than one19office operated by such licensee, he may revoke all of the20licenses issued to such licensee or such number of licensees21to which grounds apply, as the case may be. Before refusing 22 to issue, and before suspension or revocation of a license, 23 the Comptroller shall hold a hearing to determine whether the 24 applicant or licensee, hereafter called the respondent, is 25 entitled to hold such a license. At least 10 days prior to 26 the date set for such hearing, the Comptroller shall notify 27 the respondent in writing that on the date designated a 28 hearing will be held to determine his eligibility for a 29 license and that he may appear in person or by counsel. 30 Such written notice may be served on the respondent 31 personally, or by registered or certified mail sent to the 32 respondent's business address as shown in his latest 33 notification to the Comptroller and shall include sufficient HB2283 Engrossed -65- LRB9201944LDprA 1 information to inform the respondent of the general nature of 2 the charge. At the hearing, both the respondent and the 3 complainant shall be accorded ample opportunity to present in 4 person or by counsel such statements, testimony, evidence and 5 argument as may be pertinent to the charges or to any defense 6 thereto. The Comptroller may reasonably continue such 7 hearing from time to time. 8 The Comptroller may subpoena any person or persons in 9 this State and take testimony orally, by deposition or by 10 exhibit, in the same manner and with the same fees and 11 mileage as prescribed in judicial proceedings in civil cases. 12 Any authorized agent of the Comptroller may administer 13 oaths to witnesses at any hearing which the Comptroller is 14 authorized to conduct. 15 The Comptroller, at his expense, shall provide a 16 certified shorthand reporter to take down the testimony and 17 preserve a record of all proceedings at the hearing of any 18 case involving the refusal to issue a license, the suspension 19 or revocation of a license, the imposition of a monetary 20 penalty, or the referral of a case for criminal prosecution. 21 The record of any such proceeding shall consist of the notice 22 of hearing, complaint, all other documents in the nature of 23 pleadings and written motions filed in the proceedings, the 24 transcript of testimony and the report and orders of the 25 Comptroller. Copies of the transcript of such record may be 26 purchased from the certified shorthand reporter who prepared 27 the record or from the Comptroller. 28 (Source: P.A. 84-239.) 29 (815 ILCS 390/12) (from Ch. 21, par. 212) 30 Sec. 12. License revocation or suspension. 31 (a) The Comptroller may, upon determination that grounds 32 exist for the revocation or suspension of a license issued 33 under this Act, revoke or suspend, if appropriate, the HB2283 Engrossed -66- LRB9201944LDprA 1 license issued to a licensee or to a particular branch office 2 location with respect to which the grounds for revocation or 3 suspension may occur or exist. 4 (b) Upon the revocation or suspension of any license, 5 the licensee shall immediately surrender the license or 6 licensesand any branch office licensesto the Comptroller. 7 If the licensee fails to do so, the Comptroller has the right 8 to seize the license or licensessame. 9 (Source: P.A. 84-239.) 10 (815 ILCS 390/14) (from Ch. 21, par. 214) 11 Sec. 14. Contract required. 12 (a) It is unlawful for any personsellerdoing business 13 within this State to accept sales proceeds, either directly 14 or indirectly, by any means,unless the seller enters into a 15 pre-need sales contract with the purchaser which meets the 16 following requirements: 17 (1) A written sales contract shall be executed in 18 at least 11 point type in duplicate for each pre-need 19 sale made by a licensee, and a signed copy given to the 20 purchaser. Each completed contract shall be numbered and 21 shall contain: (i) the name and address of the purchaser, 22 the principal office of the licensee, and the parent 23 company of the licensee; (ii)and theseller,the name 24 of the person, if known, who is to receive the cemetery 25 merchandise, cemetery services or the completed 26 interment, entombment or inurnment spaces under the 27 contract; and (iii) specific identification of 28specifically identifysuch merchandise, services or 29 spaces to be provided, if a specific space or spaces are 30 contracted for, and the price of the merchandise, 31 services, or space or spaces. 32 (2) In addition, such contracts must contain a 33 provision in distinguishing typeface as follows: HB2283 Engrossed -67- LRB9201944LDprA 1 "Notwithstanding anything in this contract to the 2 contrary, you are afforded certain specific rights of 3 cancellation and refund underSections 18 and 19 ofthe 4 Illinois Pre-Need Cemetery Sales Act, enacted by the 84th 5 General Assembly of the State of Illinois". 6 (3) All pre-need sales contracts shall be sold on a 7 guaranteed price basis. At the time of performance of the 8 service or delivery of the merchandise, the seller shall 9 be prohibited from assessing the purchaser or his heirs 10 or assigns or duly authorized representative any 11 additional charges for the specific merchandise and 12 services listed on the pre-need sales contract. 13 (4) Each contract shall clearly disclose that the 14 price of the merchandise or services is guaranteed and 15 shall contain the following statement in 12 point bold 16 type: 17 "THIS CONTRACT GUARANTEES THE BENEFICIARY THE 18 SPECIFIC GOODS,ANDSERVICES, INTERMENT SPACES, 19 ENTOMBMENT SPACES, AND INURNMENT SPACES CONTRACTED FOR. 20 NO ADDITIONAL CHARGES MAY BE REQUIRED.FOR DESIGNATED 21 GOODS,ANDSERVICES, AND SPACES. ADDITIONAL CHARGES MAY 22 BE INCURRED FOR UNEXPECTED EXPENSES." 23 (5) The pre-need sales contract shall provide that 24 if the particular cemetery services, cemetery 25 merchandise, or spaces specified in the pre-need contract 26 are unavailable at the time of delivery, the seller shall 27 be required to furnish services, merchandise, and spaces 28 similar in style and at least equal in quality of 29 material and workmanship. 30 (6) The pre-need contract shall also disclose any 31 specific penalties to be incurred by the purchaser as a 32 result of failure to make payments; and penalties to be 33 incurred or moneys or refunds to be received as a result 34 of cancellation of the contract. HB2283 Engrossed -68- LRB9201944LDprA 1 (7) The pre-need contract shall disclose the nature 2 of the relationship between the provider and the seller. 3 (8) Each pre-need contract that authorizes the 4 delivery of cemetery merchandise to a licensed and bonded 5 warehouse shall provide that prior to or upon delivery of 6 the merchandise to the warehouse the title to the 7 merchandise and a warehouse receipt shall be delivered to 8 the purchaser or beneficiary. The pre-need contract 9 shall contain the following statement in 12 point bold 10 type: 11 "THIS CONTRACT AUTHORIZES THE DELIVERY OF MERCHANDISE TO 12 A LICENSED AND BONDED WAREHOUSE FOR STORAGE OF THE 13 MERCHANDISE UNTIL THE MERCHANDISE IS NEEDED BY THE 14 BENEFICIARY. DELIVERY OF THE MERCHANDISE IN THIS MANNER 15 MAY PRECLUDE REFUND OF SALE PROCEEDS THAT ARE 16 ATTRIBUTABLE TO THE DELIVERED MERCHANDISE." 17 The purchaser shall initial the statement at the 18 time of entry into the pre-need contract. 19 (9) Each pre-need contract that authorizes the 20 placement of cemetery merchandise at the site of its 21 ultimate use prior to the time that the merchandise is 22 needed by the beneficiary shall contain the following 23 statement in 12 point bold type: 24 "THIS CONTRACT AUTHORIZES THE PLACEMENT OF MERCHANDISE AT 25 THE SITE OF ITS ULTIMATE USE PRIOR TO THE TIME THAT THE 26 MERCHANDISE IS NEEDED BY THE BENEFICIARY. DELIVERY OF THE 27 MERCHANDISE IN THIS MANNER MAY PRECLUDE REFUND OF SALE 28 PROCEEDS THAT ARE ATTRIBUTABLE TO THE DELIVERED 29 MERCHANDISE." 30 The purchaser shall initial the statement at the 31 time of entry into the pre-need contract. 32 (b) Every pre-need sales contract must be in writing.,33and no pre-need sales contract form may be used unless it has34previously been filed with the Comptroller. The ComptrollerHB2283 Engrossed -69- LRB9201944LDprA 1shall review all pre-need sales contract forms and, upon2written notification to the seller, shall prohibit the use of3contract forms that do not meet the requirements of this Act.4Any use or attempted use of any oral pre-need sales contract5or any written pre-need sales contract in a form not filed6with the Comptroller or in a form that does not meet the7requirements of this Act shall be deemed a violation of this8Act.The Comptroller may by rule develop a model pre-need 9 sales contract form that meets the requirements of this Act. 10 (c) To the extent the Rule is applicable, every pre-need 11 sales contract is subject to the Federal Trade Commission 12 Rule concerning the Cooling-Off Period for Door-to-Door Sales 13 (16 CFR Part 429). 14 (d) No pre-need sales contract may be entered into in 15 this State unless there is a provider for the cemetery 16 merchandise, cemetery services, and undeveloped interment, 17 inurnment, and entombment spaces being sold. If the seller 18 is not the provider, then the seller must have a binding 19 agreement with a provider, and the identity of the provider 20 and the nature of the agreement between the seller and the 21 provider must be disclosed in the pre-need sales contract at 22 the time of sale and before the receipt of any sale proceeds. 23 The failure to disclose the identity of the provider, the 24 nature of the agreement between the seller and the provider, 25 or any changes thereto to the purchaser and beneficiary, or 26 the failure to make the disclosures required by this Section 27 constitutes an intentional violation of this Act. 28 (e) No pre-need contract may be entered into in this 29 State unless it is accompanied by a funding mechanism 30 permitted under this Act and unless the seller is licensed by 31 the Comptroller as provided in this Act. Nothing in this Act 32 is intended to relieve providers or sellers of pre-need 33 contracts from being licensed under any other Act required 34 for their profession or business or from being subject to the HB2283 Engrossed -70- LRB9201944LDprA 1 rules promulgated to regulate their profession or business, 2 including rules on solicitation and advertisement. 3 (f) No pre-need contract may be entered into in this 4 State unless the seller explains to the purchaser the terms 5 of the pre-need contract prior to the purchaser signing and 6 the purchaser initials a statement in the contract confirming 7 that the seller has explained the terms of the contract prior 8 to the purchaser signing. 9 (g) The State Comptroller shall develop a booklet for 10 consumers in plain English describing the scope, application, 11 and consumer protections of this Act. After the booklet is 12 developed, no pre-need contract may be sold in this State 13 unless the seller distributes to the purchaser prior to the 14 sale a booklet developed or approved for use by the State 15 Comptroller. 16 (Source: P.A. 91-7, eff. 1-1-2000.) 17 (815 ILCS 390/16) (from Ch. 21, par. 216) 18 Sec. 16. Trust funds; disbursements. 19 (a) A trustee shall make no disbursements from the trust 20 fund except as provided in this Act. 21 (b) A trustee shall, with respect to the investment of 22 such trust funds, exercise the judgment and care under the 23 circumstances then prevailing which persons of prudence, 24 discretion and intelligence exercise in the management of 25 their own affairs, not in regard to speculation, but in 26 regard to the permanent disposition of their funds, 27 considering the probable income as well as the probable 28 safety of their capital. 29 The seller shall act as trustee of all amounts received 30 for cemetery merchandise, services, or undeveloped spaces 31 until those amounts have been deposited into the trust fund. 32 The seller may continue to be the trustee of up to $500,000 33 that has been deposited into the trust fund, but the seller HB2283 Engrossed -71- LRB9201944LDprA 1 must retain an independent trustee for any amount of trust 2 funds in excess of $500,000. A seller holding trust funds in 3 excess of $500,000on the effective date of this amendatory4Act of 1996 shall have 36 months to retain an independent5trustee for the amounts over $500,000; any other sellermust 6 retain an independent trustee for its trust funds in excess 7 of $500,000 as soon as may be practical. The Comptroller 8 shall have the right to disqualify the trustee upon the same 9 grounds as for refusing to grant or revoking a license 10 hereunder. Upon notice to the Comptroller, the seller may 11 change the trustee of the trust fund. 12 (c) The trustee may rely upon certifications and 13 affidavits made to it under the provisions of this Act, and 14 shall not be liable to any person for such reliance. 15 (d) A trustee shall be allowed to withdraw from the 16 trust funds maintained pursuant to this Act, payable solely 17 from the income earned on such trust funds, a reasonable fee 18 for all usual and customary services for the operation of the 19 trust fund, including, but not limited to trustee fees, 20 investment advisor fees, allocation fees, annual audit fees 21 and other similar fees. The maximum amount allowed to be 22 withdrawn for these fees each year shall be the lesser of 3% 23 of the balance of the trust calculated on an annual basis or 24 the amount of annual income generated therefrom. 25 (e) The trust shall be a single-purpose trust fund. In 26 the event of the seller's bankruptcy, insolvency or 27 assignment for the benefit of creditors, or an adverse 28 judgment, the trust funds shall not be available to any 29 creditor as assets of the seller or to pay any expenses of 30 any bankruptcy or similar proceeding, but shall be 31 distributed to the purchasers or managed for their benefit by 32 the trustee holding the funds. Except in an action by the 33 Comptroller to revoke a license issued pursuant to this Act 34 and for creation of a receivership as provided in this Act, HB2283 Engrossed -72- LRB9201944LDprA 1 the trust shall not be subject to judgment, execution, 2 garnishment, attachment, or other seizure by process in 3 bankruptcy or otherwise, nor to sale, pledge, mortgage, or 4 other alienation, and shall not be assignable except as 5 approved by the Comptroller. The changes made by this 6 amendatory Act of the 91st General Assembly are intended to 7 clarify existing law regarding the inability of licensees to 8 pledge the trust. 9 (f) Because it is not known at the time of deposit or at 10 the time that income is earned on the trust account to whom 11 the principal and the accumulated earnings will be 12 distributed, for purposes of determining the Illinois Income 13 Tax due on these trust funds, the principal and any accrued 14 earnings or losses relating to each individual account shall 15 be held in suspense until the final determination is made as 16 to whom the account shall be paid. 17 (Source: P.A. 91-7, eff. 6-1-99.) 18 (815 ILCS 390/19) (from Ch. 21, par. 219) 19 Sec. 19. Construction or development of spaces. 20 (a) The construction or development of undeveloped 21 interment, entombment or inurnment spaces shall be commenced 22 on that phase, section or sections of undeveloped ground or 23 section of lawn crypts, mausoleums, garden crypts, 24 columbariums or cemetery spaces in which sales are made 25 within 3 years of the date of the first such sale. The 26 seller shall give written notice to the Comptroller no later 27 than 30 days after the first sale. Such notice shall include 28 a description of the project. Once commenced, construction 29 or development shall be pursued diligently to completion. 30 The construction must be completed within 6 years of the 31 first sale. If construction or development is not commenced 32 or completed within the times specified herein, any purchaser 33 may surrender and cancel the contract and upon cancellation HB2283 Engrossed -73- LRB9201944LDprA 1 shall be entitled to a refund of the actual amounts paid 2 toward the purchase price plus interest attributable to such 3 amount earned while in trust; provided however that any delay 4 caused by strike, shortage of materials, civil disorder, 5 natural disaster or any like occurrence beyond the control of 6 the seller shall extend the time of such commencement and 7 completion by the length of such delay. 8 (b) At any time within 12 months of a purchaser's 9 entering into a pre-need contract for undeveloped interment, 10 entombment or inurnment spaces, a purchaser may surrender and 11 cancel his or her contract and upon cancellation shall be 12 entitled to a refund of the actual amounts paid toward the 13 purchase price plus interest attributable to such amount 14 earned while in trust. Notwithstanding the foregoing, the 15 cancellation and refund rights specified in this paragraph 16 shall terminate as of the date the seller commences 17 construction or development of the phase, section or sections 18 of undeveloped spaces in which sales are made. After the 19 rights of cancellation and refund specified herein have 20 terminated, if a purchaser defaults in making payments under 21 the pre-need contract, the seller shall have the right to 22 cancel the contract and withdraw from the trust fund the 23 entire balance to the credit of the defaulting purchaser's 24 account as liquidated damages. In such event, the trustee 25 shall deliver said balance to the seller upon its 26 certification, and upon receiving said certification the 27 trustee may rely thereon and shall not be liable to anyone 28 for such reliance. 29 (c) During the construction or development of interment, 30 entombment or inurnment spaces, upon the sworn certification 31 by the seller and the contractor to the trustee,the trustee 32 shall disburse from the trust fund the amount equivalent to 33 the cost of performed labor or delivered materials as 34 certified. Said certification shall be substantially in the HB2283 Engrossed -74- LRB9201944LDprA 1 following form: 2 We, the undersigned, being respectively the Seller and 3 Contractor, do hereby certify that the Contractor has 4 performed labor or delivered materials or both to (address of 5 property) .........., in connection with a contract to 6 .........., and that as of this date the value of the labor 7 performed and materials delivered is $....... 8 We do further certify that in connection with such 9 contract there remains labor to be performed, and materials 10 to be delivered, of the value of $........ 11 This Certificate is signed (insert date). 12 ............ ............ 13 Seller Contractor 14 A person who executes and delivers a completion 15 certificate with actual knowledge of a falsity contained 16 therein shall be considered in violation of this Act and 17 subject to the penalties contained herein. 18 (d) Except as otherwise authorized by this Section, 19 every seller of undeveloped spaces shall provide facilities 20 for temporary interment, entombment or inurnment for 21 purchasers or beneficiaries of contracts who die prior to 22 completion of the space. Such temporary facilities shall be 23 constructed of permanent materials, and, insofar as 24 practical, be landscaped and groomed to the extent customary 25 in the cemetery industry in that community. The heirs, 26 assigns, or personal representative of a purchaser or 27 beneficiary shall not be required to accept temporary 28 underground interment spaces where the undeveloped space 29 contracted for was an above ground entombment or inurnment 30 space. In the event that temporary facilities as described 31 in this paragraph are not made available, upon the death of a 32 purchaser or beneficiary, the heirs, assigns, or personal 33 representative is entitled to a refund of the entire sales 34 price paid plus undistributed interest attributable to such HB2283 Engrossed -75- LRB9201944LDprA 1 amount while in trust. 2 (e) If the seller delivers a completed space acceptable 3 to the heirs, assigns or personal representative of a 4 purchaser or beneficiary, other than the temporary facilities 5 specified herein, in lieu of the undeveloped space purchased, 6 the seller shall provide the trustee with a delivery 7 certificate and all sums deposited under the pre-need sales 8 contract, including the undistributed income, shall be paid 9 to the seller. 10 (f) Upon completion of the phase, section or sections of 11 the project as certified to the trustee by the seller and the 12 contractor and delivery of the deed or certificate of 13 ownership to the completed interment, entombment, or 14 inurnment space to all of the purchasers entitled to receive 15 those ownership documents, the trust fund requirements set 16 forth herein shall terminate and all funds held in the 17 preconstruction trust fund attributable to the completed 18 phase, section or sections, including interest accrued 19 thereon, shall be returned to the seller. 20 (g) This Section shall not apply to the sale of 21 undeveloped spaces if there has been any such sale in the 22 same phase, section or sections of the project prior to the 23 effective date of this Act. 24 (Source: P.A. 91-357, eff. 7-29-99.) 25 (815 ILCS 390/20) (from Ch. 21, par. 220) 26 Sec. 20. Records. 27 (a) Each licensee must keep accurate accounts, books and 28 records in this State at the principal place of business 29 identified in the licensee's license application or as 30 otherwise approved by the Comptroller in writing of all 31 transactions, copies of agreements, dates and amounts of 32 payments made or received, the names and addresses of the 33 contracting parties, the names and addresses of persons for HB2283 Engrossed -76- LRB9201944LDprA 1 whose benefit funds are received, if known, and the names of 2 the trust depositories. Additionally, for a period not to 3 exceed 6 months after the performance of all terms in a 4 pre-need sales contract, the licensee shall maintain copies 5 of each pre-need contract at the licensee branch location 6 where the contract was entered or at some other location 7 agreed to by the Comptroller in writing. 8 (b) Each licensee must maintain such records for a 9 period of 3 years after the licensee shall have fulfilled his 10 or her obligation under the pre-need contract or 3 years 11 after any stored merchandise shall have been provided to the 12 purchaser or beneficiary, whichever is later. 13 (c) Each licensee shall submit reports to the 14 Comptroller annually, under oath, on forms furnished by the 15 Comptroller. The annual report shall contain, but shall not 16 be limited to, the following: 17 (1) An accounting of the principal deposit and 18 additions of principal during the fiscal year. 19 (2) An accounting of any withdrawal of principal or 20 earnings. 21 (3) An accounting at the end of each fiscal year, 22 of the total amount of principal and earnings held. 23 (d) The annual report shall be filed by the licensee 24 with the Comptroller within 75 days after the end of the 25 licensee's fiscal year. An extension of up to 60 days may be 26 granted by the Comptroller, upon a showing of need by the 27 licensee. Any other reports shall be in the form furnished 28 or specified by the Comptroller. If a licensee fails to 29 submit an annual report to the Comptroller within the time 30 specified in this Section, the Comptroller shall impose upon 31 the licensee a penalty of $5 for each and every day the 32 licensee remains delinquent in submitting the annual report. 33 The Comptroller may abate all or part of the $5 daily penalty 34 for good cause shown. Each report shall be accompanied by a HB2283 Engrossed -77- LRB9201944LDprA 1 check or money order in the amount of $10 payable to: 2 Comptroller, State of Illinois. 3 (e) On and after the effective date of this amendatory 4 Act of the 91st General Assembly, a licensee may report all 5 required information concerning the sale of outer burial 6 containers on the licensee's annual report required to be 7 filed under this Act and shall not be required to report that 8 information under the Illinois Funeral or Burial Funds Act, 9 as long as the information is reported under this Act. 10 (Source: P.A. 91-7, eff. 1-1-2000.) 11 (815 ILCS 390/22) (from Ch. 21, par. 222) 12 Sec. 22. Cemetery Consumer Protection Fund. 13 (a) Every seller engaging in pre-need sales shall pay to 14 the Comptroller $5 for each said contract entered into, to be 15 paid into a special income earning fund hereby created in the 16 State Treasury, known as the Cemetery Consumer Protection 17 Fund. The above said fees shall be remitted to the 18 Comptroller semi-annually within 30 days after the end of 19 June and December for all contracts that have been entered in 20 such 6 month period. 21 (b) All monies paid into the fund together with all 22 accumulated undistributed income thereon shall be held as a 23 special fund in the State Treasury. The fund shall be used 24 solely for the purpose of providing restitution to consumers 25 who have suffered pecuniary loss arising out of pre-need 26 sales. 27 (c) The fund shall be applied only to restitution or 28 completion of the project or delivery of the merchandise or 29 services, where such has been ordered by the Circuit Court in 30 a lawsuit brought under this Act by the Attorney General of 31 the State of Illinois on behalf of the Comptroller and in 32 which it has been determined by the Court that the obligation 33 is non-collectible from the judgment debtor. Restitution HB2283 Engrossed -78- LRB9201944LDprA 1 shall not exceed the amount of the sales price paid plus 2 interest at the statutory rate. The fund shall not be used 3 for the payment of any attorney or other fees. 4 (d) Whenever restitution is paid by the fund, the fund 5 shall be subrogated to the amount of such restitution, and 6 the Comptroller shall request the Attorney General to engage 7 in all reasonable post judgment collection steps to collect 8 said restitution from the judgment debtor and reimburse the 9 fund. 10 (e) The fund shall not be applied toward any restitution 11 for losses in any lawsuit initiated by the Attorney General 12 or Comptroller or with respect to any claim made on pre-need 13 sales which occurred prior to the effective date of this Act. 14 (f) The fund may not be allocated for any purpose other 15 than that specified in this Act. 16 (g) Notwithstanding any other provision of this Section, 17 the payment of restitution from the fund shall be a matter of 18 grace and not of right and no purchaser shall have any vested 19 rights in the fund as a beneficiary or otherwise. Prior to 20 seeking restitution from the fund, a purchaser or beneficiary 21 seeking payment of restitution shall apply for restitution on 22 a form provided by the Comptroller. The form shall include 23 any information the Comptroller may reasonably require in 24 order for the Court to determine that restitution or 25 completion of the project or delivery of merchandise or 26 service is appropriate. 27 (h) Annually, the status of the fund shall be reviewed 28 by the Comptroller, and if he determines that the fund 29 together with all accumulated income earned thereon, equals 30 or exceeds $10,000,000 and that the total number of 31 outstanding claims filed against the fund is less than 10% of 32 the fund's current balance, then payments to the fund shall 33 be suspended until such time as the fund's balance drops 34 below $10,000,000 or the total number of outstanding claims HB2283 Engrossed -79- LRB9201944LDprA 1 filed against the fund is more than 10% of the fund's current 2 balance, but on such suspension, the fund shall not be 3 considered inactive. 4 (Source: P.A. 84-239.) 5 (815 ILCS 390/23) (from Ch. 21, par. 223) 6 Sec. 23. (a) Any person who fails to deposit the required 7 amount into a trust provided for in this Act, improperly 8 withdraws or uses trust funds for his or her own benefit, or 9 otherwise violatesviolatingany provision of this Act is 10 guilty of a Class 4 felony. 11 (b) If any person violates this Act or fails or refuses 12 to comply with any order of the Comptroller or any part 13 thereof which to such person has become final and is still in 14 effect, the Comptroller may, after notice and hearing at 15 which it is determined that a violation of this Act or such 16 order has been committed, further order that such person 17 shall forfeit and pay to the State of Illinois a sum not to 18 exceed $5,000 for each violation. Such liability shall be 19 enforced in an action brought in any court of competent 20 jurisdiction by the Comptroller in the name of the people of 21 the State of Illinois. 22 (c) Whenever a license is revoked by the Comptroller, or 23 the Comptroller determines that any person is engaged in 24 pre-need sales without a license, he shall apply to the 25 circuit court of the county where such person is located for 26 a receiver to administer the business of such person. 27 (d) Whenever a licensee fails or refuses to make a 28 required report or whenever it appears to the Comptroller 29 from any report or examination that such licensee has 30 committed a violation of law or that the trust funds have not 31 been administered properly or that it is unsafe or 32 inexpedient for such licensee or the trustee of the trust 33 funds of such licensee to continue to administer such funds HB2283 Engrossed -80- LRB9201944LDprA 1 or that any officer of such licensee or of the trustee of the 2 trust funds of such licensee has abused his trust or has been 3 guilty of misconduct or breach of trust in his official 4 position injurious to such licensee or that such licensee has 5 suffered as to its trust funds a serious loss by larceny, 6 embezzlement, burglary, repudiation or otherwise, the 7 Comptroller shall, by order, direct the discontinuance of 8 such illegal, unsafe or unauthorized practices and shall 9 direct strict conformity with the requirements of the law and 10 safety and security in its transactions and may apply to the 11 circuit court of the county where such licensee is located to 12 prevent any disbursements or expenditures by such licensee 13 until the trust funds are in such condition that it would not 14 be jeopardized thereby and the Comptroller shall communicate 15 the facts to the Attorney General of the State of Illinois 16 who shall thereupon institute such proceedings against the 17 licensee or its trustee or the officers of either or both as 18 the nature of the case may require. 19 (e) In addition to the other penalties and remedies 20 provided in this Act, the Comptroller may bring a civil 21 action in the county of residence of the licensee or any 22 person engaging in pre-need sales, to enjoin any violation or 23 threatened violation of this Act. 24 (f) The powers vested in the Comptroller by this Section 25 are additional to any and all other powers and remedies 26 vested in the Comptroller by law, and nothing herein 27 contained shall be construed as requiring that the 28 Comptroller shall employ the powers conferred herein instead 29 of or as a condition precedent to the exercise of any other 30 power or remedy vested in the Comptroller. 31 (Source: P.A. 88-477.) 32 (815 ILCS 390/27.1 new) 33 Sec. 27.1. Sales; liability of purchaser for shortage. HB2283 Engrossed -81- LRB9201944LDprA 1 In the event of a sale or transfer of all or substantially 2 all of the assets of the licensee, the sale or transfer of 3 the controlling interest of the corporate stock of the 4 licensee if the licensee is a corporation, the sale or 5 transfer of the controlling interest of the partnership if 6 the licensee is a partnership, or sale pursuant to 7 foreclosure proceedings, the purchaser is liable for any 8 shortages existing before or after the sale in the trust 9 funds required to be maintained in a trust under this Act and 10 shall honor all pre-need contracts and trusts entered into by 11 the licensee. Any shortages existing in the trust funds 12 constitute a prior lien in favor of the trust for the total 13 value of the shortages, and notice of that lien must be 14 provided in all sales instruments. 15 In the event of a sale or transfer of all or 16 substantially all of the assets of the licensee, the sale or 17 transfer of the controlling interest of the corporate stock 18 of the licensee if the licensee is a corporation, or the sale 19 or transfer of the controlling interest of the partnership if 20 the licensee is a partnership, the licensee shall, at least 21 21 days prior to the sale or transfer, notify the 22 Comptroller, in writing, of the pending date of sale or 23 transfer so as to permit the Comptroller to audit the books 24 and records of the licensee. The audit must be commenced 25 within 10 business days after the receipt of the notification 26 and completed within the 21-day notification period unless 27 the Comptroller notifies the licensee during that period that 28 there is a basis for determining a deficiency which will 29 require additional time to finalize. The sale or transfer 30 may not be completed by the licensee unless and until: 31 (i) the Comptroller has completed the audit of the 32 licensee's books and records; 33 (ii) any delinquency existing in the trust funds has 34 been paid by the licensee, or arrangements satisfactory HB2283 Engrossed -82- LRB9201944LDprA 1 to the Comptroller have been made by the licensee on the 2 sale or transfer for the payment of any delinquency; 3 (iii) the Comptroller issues a license upon 4 application of the new owner, which license must be 5 applied for within 30 days after the anticipated date of 6 the sale or transfer, subject to the payment of any 7 delinquencies, if any, as stated in item (ii). 8 For purposes of this Section, a person, firm, 9 corporation, partnership, or institution that acquires the 10 licensee through a real estate foreclosure is subject to the 11 provisions of this Section. 12 Section 50. Severability. If any provision of this Act or 13 its application to any person or circumstance is held 14 invalid, the invalidity of that provision or application does 15 not affect other provisions or applications of this Act that 16 can be given effect without the invalid provision or 17 application. 18 Section 99. Effective date. This Act takes effect 19 January 1, 2002.