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1 | AN ACT concerning regulation.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Illinois Funeral or Burial Funds Act is | ||||||||||||||||||||||||
5 | amended by changing Sections 1a, 1a-1, 1a-2, 2, 3, 3a, 3a-5, | ||||||||||||||||||||||||
6 | 3b, 3c, 3d, 3e, 3f, 4a, 7.2, 7.3, 8, and 8.1 as follows:
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7 | (225 ILCS 45/1a) (from Ch. 111 1/2, par. 73.101a)
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8 | Sec. 1a.
For the purposes of this Act, the following terms | ||||||||||||||||||||||||
9 | shall have
the meanings specified, unless the context clearly | ||||||||||||||||||||||||
10 | requires another meaning:
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11 | "Beneficiary" means the person specified in the pre-need | ||||||||||||||||||||||||
12 | contract upon
whose death funeral services or merchandise shall | ||||||||||||||||||||||||
13 | be provided or delivered.
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14 | "Department" means the Department of Financial and | ||||||||||||||||||||||||
15 | Professional Regulation. | ||||||||||||||||||||||||
16 | "Licensee" means a seller of a pre-need contract who has
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17 | been licensed by
the Department Comptroller under this Act.
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18 | "Outer burial container" means any container made of | ||||||||||||||||||||||||
19 | concrete,
steel, wood, fiberglass or similar material, used | ||||||||||||||||||||||||
20 | solely at the interment
site, and designed and used exclusively | ||||||||||||||||||||||||
21 | to surround or enclose a separate
casket and to support the | ||||||||||||||||||||||||
22 | earth above such casket, commonly known as a
burial vault, | ||||||||||||||||||||||||
23 | grave box or grave liner, but not including a lawn
crypt as |
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| |||||||
1 | defined in the Illinois Pre-need Cemetery Sales Act.
| ||||||
2 | "Parent company" means a corporation owning more than 12 | ||||||
3 | cemeteries or
funeral homes in more than one state.
| ||||||
4 | "Person" means any person, partnership, association, | ||||||
5 | corporation, or
other entity.
| ||||||
6 | "Pre-need contract" means any agreement or contract, or any | ||||||
7 | series or
combination of agreements or contracts, whether | ||||||
8 | funded by trust deposits or
life insurance policies or | ||||||
9 | annuities, which has for a purpose the furnishing
or | ||||||
10 | performance of funeral services or the furnishing or delivery | ||||||
11 | of any
personal property, merchandise, or services of any | ||||||
12 | nature in connection with
the final disposition of a dead human | ||||||
13 | body. Nothing in this Act is intended to
regulate the content | ||||||
14 | of a life insurance policy or a tax-deferred annuity.
| ||||||
15 | "Provider" means a person who is obligated for furnishing | ||||||
16 | or performing
funeral services or the furnishing or delivery of | ||||||
17 | any personal property,
merchandise, or services of any nature | ||||||
18 | in connection with the final disposition
of a dead human body.
| ||||||
19 | "Purchaser" means the person who originally paid the money | ||||||
20 | under or in
connection with a pre-need contract.
| ||||||
21 | "Sales proceeds" means the entire amount paid to a seller, | ||||||
22 | exclusive
of sales taxes paid by the seller, finance charges | ||||||
23 | paid by the purchaser, and
credit life, accident or disability | ||||||
24 | insurance premiums, upon any agreement or
contract, or series | ||||||
25 | or combination of agreements or contracts, for the purpose
of | ||||||
26 | performing funeral services or furnishing personal property, |
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| |||||||
1 | merchandise, or
services of any nature in connection with the | ||||||
2 | final disposition of a dead human
body, including, but not | ||||||
3 | limited to, the retail price paid for such services
and | ||||||
4 | personal property and merchandise.
| ||||||
5 | "Purchase price" means sales proceeds less finance charges | ||||||
6 | 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. 92-419, eff. 1-1-02.)
| ||||||
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 meets | ||||||
19 | 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
seller, | ||||||
22 | if
any.
| ||||||
23 | (1.5) If funded by a trust, it clearly identifies the | ||||||
24 | trustee's name and address and the primary state or federal | ||||||
25 | regulator of the trustee as a corporate fiduciary. |
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| |||||||
1 | (1.7) If funded by life insurance, it clearly | ||||||
2 | identifies the life insurance provider and the primary | ||||||
3 | regulator of the life insurance provider.
| ||||||
4 | (2) It clearly identifies the provider's name and
| ||||||
5 | address,
the purchaser, and
the beneficiary, if other than | ||||||
6 | the purchaser.
| ||||||
7 | (2.5) If the provider has branch locations, the | ||||||
8 | contract
gives the purchaser the opportunity to identify | ||||||
9 | the branch
at which the funeral will be provided.
| ||||||
10 | (3) It contains a complete description of the funeral | ||||||
11 | merchandise and
services to be provided and the price of | ||||||
12 | the merchandise and services, and it
clearly discloses | ||||||
13 | whether the price of the merchandise and services is
| ||||||
14 | guaranteed or not guaranteed as to price.
| ||||||
15 | (A) Each guaranteed price contract shall contain | ||||||
16 | the following
statement in 12 point bold type:
| ||||||
17 | THIS CONTRACT GUARANTEES THE BENEFICIARY THE | ||||||
18 | SPECIFIC GOODS AND
SERVICES CONTRACTED FOR. NO | ||||||
19 | ADDITIONAL CHARGES MAY BE REQUIRED.
FOR DESIGNATED | ||||||
20 | GOODS AND SERVICES, ADDITIONAL CHARGES MAY BE INCURRED | ||||||
21 | FOR
UNEXPECTED EXPENSES INCLUDING, BUT NOT LIMITED TO, | ||||||
22 | CASH ADVANCES, SHIPPING OF
REMAINS FROM A DISTANT | ||||||
23 | PLACE, OR DESIGNATED HONORARIA ORDERED OR DIRECTED BY
| ||||||
24 | SURVIVORS.
| ||||||
25 | (B) Except as provided in subparagraph (C) of this | ||||||
26 | paragraph (3),
each non-guaranteed price contract |
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| |||||||
1 | shall contain the following
statement in 12 point bold | ||||||
2 | type:
| ||||||
3 | THIS CONTRACT DOES NOT GUARANTEE THE PRICE THE | ||||||
4 | BENEFICIARY WILL PAY FOR
ANY SPECIFIC GOODS OR | ||||||
5 | SERVICES. ANY FUNDS PAID UNDER THIS CONTRACT ARE ONLY A
| ||||||
6 | DEPOSIT TO BE APPLIED TOWARD THE FINAL PRICE OF THE | ||||||
7 | GOODS OR SERVICES
CONTRACTED FOR. ADDITIONAL CHARGES | ||||||
8 | MAY BE REQUIRED.
| ||||||
9 | (C) If a non-guaranteed price contract may
| ||||||
10 | subsequently become guaranteed, the contract shall | ||||||
11 | clearly
disclose the nature of the guarantee and the | ||||||
12 | time,
occurrence, or event upon which the contract | ||||||
13 | shall become a
guaranteed price contract.
| ||||||
14 | (4) It provides that if the particular supplies and | ||||||
15 | services specified
in the pre-need contract are | ||||||
16 | unavailable at the time of delivery, the provider
shall be | ||||||
17 | required to furnish supplies and services similar in style | ||||||
18 | and at
least equal in quality of material and workmanship.
| ||||||
19 | (5) It discloses any penalties or restrictions, | ||||||
20 | including
but not limited
to geographic restrictions or the | ||||||
21 | inability of the provider
to
perform, on the delivery of | ||||||
22 | merchandise, services, or pre-need contract
guarantees.
| ||||||
23 | (6) Regardless of the method of funding the pre-need | ||||||
24 | contract, the
following must be disclosed:
| ||||||
25 | (A) Whether the pre-need contract is to be funded | ||||||
26 | by a trust, life
insurance, or an annuity;
|
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| |||||||
1 | (B) The nature of the relationship among the person
| ||||||
2 | funding the
pre-need contract, the provider, and the
| ||||||
3 | seller; and
| ||||||
4 | (C) The impact on the pre-need contract of (i) any | ||||||
5 | changes in the
funding arrangement including but not | ||||||
6 | limited to changes in the assignment,
beneficiary | ||||||
7 | designation, or use of the funds; (ii) any specific | ||||||
8 | penalties
to be incurred
by the contract purchaser as a | ||||||
9 | result of failure to make payments; (iii)
penalties to | ||||||
10 | be incurred or moneys or refunds to be received as a | ||||||
11 | result of
cancellations; and (iv) all relevant | ||||||
12 | information concerning what occurs and
whether any | ||||||
13 | entitlements or obligations arise if there is a | ||||||
14 | difference between
the proceeds of the particular | ||||||
15 | funding arrangement and the amount actually
needed to | ||||||
16 | pay for the funeral at-need.
| ||||||
17 | (D) The method of changing the
provider.
| ||||||
18 | (b) All pre-need contracts are subject to the Federal Trade | ||||||
19 | Commission Rule
concerning the Cooling-Off Period for | ||||||
20 | Door-to-Door Sales (16 CFR Part 429).
| ||||||
21 | (c) No pre-need contract shall be sold in this State unless
| ||||||
22 | there is a provider for the services and personal property | ||||||
23 | being
sold. If the seller is not a provider, then the seller | ||||||
24 | must have a binding agreement with a provider, and
the identity | ||||||
25 | of the provider and the nature of the agreement between the | ||||||
26 | seller
and the provider shall be disclosed in the pre-need |
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| |||||||
1 | contract at the time of the
sale and before the receipt of any | ||||||
2 | sales proceeds. The failure to disclose the
identity of the | ||||||
3 | provider, the nature of the agreement between the seller and
| ||||||
4 | the provider, or any changes thereto to the purchaser and | ||||||
5 | beneficiary, or the
failure to make the disclosures required in | ||||||
6 | subdivision (a)(1), constitutes an
intentional violation of | ||||||
7 | this Act.
| ||||||
8 | (d) All pre-need contracts must be in writing in at least | ||||||
9 | 11 point type,
numbered, and executed in duplicate. A signed
| ||||||
10 | copy of the pre-need contract must be provided to the purchaser | ||||||
11 | at the time of
entry into the pre-need contract. The Department | ||||||
12 | Comptroller may by rule develop
a model pre-need contract form | ||||||
13 | that meets the requirements of this Act.
| ||||||
14 | (e) The Department State Comptroller shall by rule develop | ||||||
15 | a booklet for
consumers in plain English describing
the scope, | ||||||
16 | application, and consumer protections of this Act. After the
| ||||||
17 | adoption of these rules, no pre-need contract shall be sold in | ||||||
18 | this State
unless (i) the seller distributes to the purchaser | ||||||
19 | prior to the sale a
booklet promulgated or approved for use by | ||||||
20 | the Department State Comptroller ; (ii) the
seller explains to | ||||||
21 | the purchaser the terms of the pre-need contract prior to
the | ||||||
22 | purchaser signing; and (iii) the purchaser initials a statement | ||||||
23 | in the
contract confirming that the seller has explained the | ||||||
24 | terms of the contract
prior to the purchaser signing.
| ||||||
25 | (f) All sales proceeds received in connection with a | ||||||
26 | pre-need
contract shall be deposited into a trust account as |
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| |||||||
1 | provided in
Section 1b and Section 2 of this Act, or shall be | ||||||
2 | used to purchase a life
insurance policy or tax-deferred | ||||||
3 | annuity as provided in Section 2a
of this Act.
| ||||||
4 | (g) No pre-need contract shall be sold in this State unless | ||||||
5 | it is
accompanied by a funding mechanism permitted under this | ||||||
6 | Act, and unless the
seller is licensed by the Department | ||||||
7 | Comptroller as provided in Section 3
of this Act.
Nothing in | ||||||
8 | this Act is intended to relieve sellers of pre-need
contracts | ||||||
9 | from
being licensed under any other Act required for their | ||||||
10 | profession or business,
and being subject to the rules | ||||||
11 | promulgated to regulate their profession or
business, | ||||||
12 | including rules on solicitation and advertisement.
| ||||||
13 | (Source: P.A. 96-879, eff. 2-2-10.)
| ||||||
14 | (225 ILCS 45/1a-2) | ||||||
15 | Sec. 1a-2. Pre-Need Funeral Consumer Protection Fund. | ||||||
16 | (a) Each licensee shall pay a fee of $5 out of the funds | ||||||
17 | received for each pre-need contract sold and shall forward this | ||||||
18 | sum to the Department Comptroller semi-annually within 30 days | ||||||
19 | of the end of June and December. Fees collected under this | ||||||
20 | Section shall be deposited into the Pre-need Funeral Consumer | ||||||
21 | Protection Fund, which is hereby created as a special fund in | ||||||
22 | the State treasury. Moneys in the Fund may be expended for the | ||||||
23 | purposes specified in subsection (b) and to purchase insurance | ||||||
24 | to cover losses guaranteed by the Fund. | ||||||
25 | (b) In the event that the purchaser is unable to receive |
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| |||||||
1 | the benefits of his or her pre-need contract or to receive the | ||||||
2 | funds due by reason of cancellation of the contract, the | ||||||
3 | purchaser may apply to the Department Comptroller on a form | ||||||
4 | prescribed by the Department Comptroller for restitution from | ||||||
5 | the Pre-need Funeral Consumer Protection Fund. Upon a finding | ||||||
6 | by the Department Comptroller that the benefits or return of | ||||||
7 | payment is not available to the purchaser, the Department | ||||||
8 | Comptroller may cause restitution to be paid to the purchaser | ||||||
9 | from the Pre-need Funeral Consumer Protection Fund. | ||||||
10 | (c) In all such cases where a purchaser is paid restitution | ||||||
11 | from the Fund, the Department Comptroller shall be subrogated | ||||||
12 | to that purchaser's claims against the licensee for all amounts | ||||||
13 | paid from the Fund. If the licensee's liability for default is | ||||||
14 | subsequently proven, any award made by a court of law shall be | ||||||
15 | made payable to the Pre-need Funeral Consumer Protection Fund | ||||||
16 | up to the amount paid to the purchaser from the Fund and the | ||||||
17 | Department Comptroller shall request that the Attorney General | ||||||
18 | engage in all reasonable post-judgment collection steps to | ||||||
19 | collect such claims from the judgment debtor and reimburse the | ||||||
20 | Fund. | ||||||
21 | (d) The Fund shall not be applied toward any restitution | ||||||
22 | for losses in any lawsuit initiated by the Attorney General or | ||||||
23 | Department Comptroller or with respect to any claim made on a | ||||||
24 | pre-need contract that occurred prior to the effective date of | ||||||
25 | this amendatory Act of the 96th General Assembly. | ||||||
26 | (e) Notwithstanding any other provision of this Section, |
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| |||||||
1 | the payment of restitution from the Fund shall be a matter of | ||||||
2 | grace and not of right and no purchaser shall have any vested | ||||||
3 | right in the Fund as a beneficiary or otherwise. | ||||||
4 | (f) The Fund may not be allocated for any purpose other | ||||||
5 | than that specified in this Act.
| ||||||
6 | (Source: P.A. 96-879, eff. 2-2-10.)
| ||||||
7 | (225 ILCS 45/2) (from Ch. 111 1/2, par. 73.102)
| ||||||
8 | Sec. 2.
(a) If a purchaser selects a trust arrangement to | ||||||
9 | fund the
pre-need contract, all trust deposits as determined by | ||||||
10 | Section 1b shall be made
within 30 days of receipt.
| ||||||
11 | (b) A trust established under this Act must be maintained | ||||||
12 | with a corporate fiduciary as defined in Section 1-5.05 of the | ||||||
13 | Corporate Fiduciary Act.
| ||||||
14 | (c) Trust agreements and amendments to the trust agreements | ||||||
15 | used to
fund a pre-need contract shall be filed with the | ||||||
16 | Department Comptroller .
| ||||||
17 | (d) (Blank).
| ||||||
18 | (e) A seller or provider shall furnish to the trustee and | ||||||
19 | depositary the
name of each payor and the amount of payment on | ||||||
20 | each such account for which
deposit is being so made. Nothing | ||||||
21 | shall prevent the trustee from commingling the
deposits in any | ||||||
22 | such trust fund for purposes of its management and the
| ||||||
23 | investment of its funds as provided in the Common Trust Fund | ||||||
24 | Act. In addition,
multiple trust funds maintained under this | ||||||
25 | Act may be commingled or commingled
with other funeral or |
| |||||||
| |||||||
1 | burial related trust funds if all record keeping
requirements | ||||||
2 | imposed by law are met.
| ||||||
3 | (f) (Blank).
| ||||||
4 | (g) Upon no less than 30 days prior notice to the | ||||||
5 | Department Comptroller , the seller may change
the trustee of
| ||||||
6 | the fund. Failure to provide the Department Comptroller with | ||||||
7 | timely prior notice is an intentional violation of this Act. | ||||||
8 | (h) A trustee shall at least annually furnish to each | ||||||
9 | purchaser a statement containing: (1) the receipts, | ||||||
10 | disbursements, and inventory of the trust, including an | ||||||
11 | explanation of any fees or expenses charged by the trustee | ||||||
12 | under Section 5 of this Act or otherwise, (2) an explanation of | ||||||
13 | the purchaser's right to a refund, if any, under this Act, and | ||||||
14 | (3) identifying the primary regulator of the trust as a | ||||||
15 | corporate fiduciary under state or federal law.
| ||||||
16 | (Source: P.A. 96-879, eff. 2-2-10.)
| ||||||
17 | (225 ILCS 45/3) (from Ch. 111 1/2, par. 73.103)
| ||||||
18 | Sec. 3. Licensing.
| ||||||
19 | (a) No person, firm, partnership, association or | ||||||
20 | corporation may act as
seller without first securing from the | ||||||
21 | Department State Comptroller a
license to
so act. Application | ||||||
22 | for such license shall be in writing, signed by the
applicant | ||||||
23 | and duly verified on forms furnished by the Department | ||||||
24 | Comptroller . Each
application shall contain at least the | ||||||
25 | following:
|
| |||||||
| |||||||
1 | (1) The full name and
address (both residence and place | ||||||
2 | of business) of the applicant, and
every member, officer | ||||||
3 | and director thereof if the applicant is a firm,
| ||||||
4 | partnership, association, or corporation, and of every | ||||||
5 | shareholder
holding
more than 10% of the corporate stock if | ||||||
6 | the applicant is a corporation;
| ||||||
7 | (2) A statement of the applicant's
assets and | ||||||
8 | liabilities;
| ||||||
9 | (3) The name and address of the applicant's principal
| ||||||
10 | place of business at which the books, accounts, and
records | ||||||
11 | shall be available for examination by the Department
| ||||||
12 | Comptroller as required by this Act;
| ||||||
13 | (4) The names and addresses of the applicant's branch
| ||||||
14 | locations at which pre-need sales shall be conducted and
| ||||||
15 | which shall operate under the same license number as the
| ||||||
16 | applicant's principal place of business;
| ||||||
17 | (5) For each individual listed under item (1) above, a
| ||||||
18 | detailed statement of the individual's business
experience | ||||||
19 | for the 10 years immediately preceding the
application; any | ||||||
20 | present or prior connection between the
individual and any | ||||||
21 | other person engaged in pre-need
sales; any felony or | ||||||
22 | misdemeanor convictions for which
fraud was an essential | ||||||
23 | element; any charges or
complaints lodged against the | ||||||
24 | individual for which fraud
was an essential element and | ||||||
25 | which resulted in civil or
criminal litigation; any failure | ||||||
26 | of the individual to
satisfy an enforceable judgment |
| |||||||
| |||||||
1 | entered against him
based upon fraud; and any other | ||||||
2 | information requested by
the Department Comptroller | ||||||
3 | relating to past business practices of
the individual. | ||||||
4 | Since the information required by this
item (5) may be | ||||||
5 | confidential or contain proprietary
information, this | ||||||
6 | information shall not be available to
other licensees or | ||||||
7 | the general public and shall be used
only for the lawful | ||||||
8 | purposes of the Department Comptroller in
enforcing this | ||||||
9 | Act;
| ||||||
10 | (6) The name of the trustee and, if applicable, the
| ||||||
11 | names of the advisors to the trustee, including a copy
of | ||||||
12 | the proposed trust agreement under which the trust
funds | ||||||
13 | are to be held as required by this Act; and
| ||||||
14 | (7) Such other information as the Department | ||||||
15 | Comptroller may
reasonably require in order to determine | ||||||
16 | the
qualification of the applicant to be licensed under | ||||||
17 | this
Act.
| ||||||
18 | (b) Applications for
license shall be accompanied
by a | ||||||
19 | fidelity bond executed by the applicant and a surety company
| ||||||
20 | authorized to do business in this State or an irrevocable, | ||||||
21 | unconditional
letter of credit issued by a bank, credit union, | ||||||
22 | or trust company authorized to
do business in the State of | ||||||
23 | Illinois, as approved by the Department State Comptroller , in
| ||||||
24 | such amount not exceeding $10,000 as the Department Comptroller | ||||||
25 | may require. If, after
notice and an opportunity to be heard, | ||||||
26 | it
has been determined that a licensee has violated this Act |
| |||||||
| |||||||
1 | within the past 5
calendar years, the Department Comptroller | ||||||
2 | may require an additional bond or letter of credit
from the | ||||||
3 | licensee from time to time in amounts equal to one-tenth of | ||||||
4 | such trust
funds, which bond or letter of credit shall run to | ||||||
5 | the Department Comptroller for the use
and benefit of the | ||||||
6 | beneficiaries of such trust funds.
| ||||||
7 | The licensee shall keep accurate accounts, books and | ||||||
8 | records in this State,
at the principal place of business | ||||||
9 | identified in the
licensee's license application or as | ||||||
10 | otherwise approved by
the Department Comptroller in writing,
of
| ||||||
11 | all transactions, copies of all pre-need contracts, trust | ||||||
12 | agreements, and other
agreements, dates and amounts of payments | ||||||
13 | made and accepted thereon, the names
and addresses of the | ||||||
14 | contracting parties, the persons for whose benefit such
funds | ||||||
15 | are accepted, and the names of the depositaries of such funds.
| ||||||
16 | Each licensee shall maintain the documentation for a period
of | ||||||
17 | 3 years after the licensee has fulfilled his obligations
under | ||||||
18 | the pre-need contract. Additionally, for a period
not to exceed | ||||||
19 | 6 months after the performance of all terms
in a pre-need sales | ||||||
20 | contract, the licensee shall maintain
copies of the contract at | ||||||
21 | the licensee branch location
where the contract was entered or | ||||||
22 | at some other location agreed to by the Department
Comptroller | ||||||
23 | in writing.
If an
insurance policy or tax-deferred annuity is | ||||||
24 | used to fund the pre-need contract,
the licensee under this Act | ||||||
25 | shall keep and maintain accurate accounts, books,
and records | ||||||
26 | in this State, at the principal place of business identified in
|
| |||||||
| |||||||
1 | the
licensee's application or as otherwise approved by the | ||||||
2 | Department
Comptroller in writing,
of all insurance policies | ||||||
3 | and tax-deferred annuities
used to fund the pre-need contract, | ||||||
4 | the name and address of insured, annuitant,
and initial | ||||||
5 | beneficiary, and the name and address of the insurance company
| ||||||
6 | issuing the policy or annuity. If a life insurance policy or | ||||||
7 | tax-deferred
annuity is used to fund a pre-need contract, the | ||||||
8 | licensee shall notify the
insurance company of the name of each | ||||||
9 | pre-need contract purchaser and the
amount of each payment when | ||||||
10 | the pre-need contract, insurance policy or annuity
is | ||||||
11 | purchased.
| ||||||
12 | The licensee shall make reports to the Department | ||||||
13 | Comptroller annually or at such other
time as the Department | ||||||
14 | Comptroller may require, on forms furnished by the Department | ||||||
15 | Comptroller . The
licensee shall file the annual report with the | ||||||
16 | Department Comptroller within 75 days after
the end of the | ||||||
17 | licensee's fiscal year. The Department Comptroller shall for | ||||||
18 | good cause
shown grant an extension for the filing of the | ||||||
19 | annual report upon the written
request of the licensee. Such | ||||||
20 | extension shall not exceed 60 days. If a
licensee fails to | ||||||
21 | submit an annual report to the Department Comptroller within | ||||||
22 | the time
specified in this Section, the Department Comptroller | ||||||
23 | shall impose upon the licensee a
penalty of $5 for each and | ||||||
24 | every day the licensee remains delinquent in
submitting the | ||||||
25 | annual report. The Department Comptroller may abate all or part | ||||||
26 | of the
$5 daily penalty for good cause shown. Every application |
| |||||||
| |||||||
1 | shall be
accompanied by a check
or money order in the amount of | ||||||
2 | $25 and every report shall be accompanied by a
check or money | ||||||
3 | order in the amount of $10 payable to: the Illinois Department | ||||||
4 | of Financial and Professional Regulation Comptroller, State of
| ||||||
5 | Illinois .
| ||||||
6 | The licensee shall make all required books and records | ||||||
7 | pertaining to trust
funds, insurance policies, or tax-deferred | ||||||
8 | annuities available to the Department
Comptroller for | ||||||
9 | examination. The Department Comptroller , or a person | ||||||
10 | designated by the Department
Comptroller who is trained to | ||||||
11 | perform such examinations, may at any time
investigate the | ||||||
12 | books, records and accounts of the licensee with respect to
| ||||||
13 | trust funds, insurance policies, or tax-deferred annuities and | ||||||
14 | for that purpose
may require the attendance of and examine | ||||||
15 | under oath all persons whose
testimony he may require. The | ||||||
16 | licensee shall pay a fee for such examination in
accordance | ||||||
17 | with a schedule established by the Department Comptroller . The | ||||||
18 | fee shall not
exceed the cost of such examination. For pre-need | ||||||
19 | contracts funded by trust
arrangements, the cost of an initial | ||||||
20 | examination shall be borne by the
licensee if it
has $10,000 or | ||||||
21 | more in trust funds, otherwise, by the Department Comptroller . | ||||||
22 | The charge
made by the Department Comptroller for an | ||||||
23 | examination shall be based upon the total amount
of trust funds | ||||||
24 | held by the licensee at the end of the calendar or fiscal year
| ||||||
25 | for which the report is required by this Act and shall be in | ||||||
26 | accordance with
the following schedule:
|
| |||||||
| |||||||
1 | Less than $10,000 .................................no charge;
| ||||||
2 | $10,000 or more but less than $50,000 ...................$10;
| ||||||
3 | $50,000 or more but less than $100,000 ..................$40;
| ||||||
4 | $100,000 or more but less than $250,000 .................$80;
| ||||||
5 | $250,000 or more ........................................$100.
| ||||||
6 | The Department Comptroller may order additional audits or | ||||||
7 | examinations as he or she
may deem necessary or advisable to | ||||||
8 | ensure the safety and stability of the trust
funds and to | ||||||
9 | ensure compliance with this Act. These additional audits or
| ||||||
10 | examinations shall only be made after good cause is established | ||||||
11 | by the Department
Comptroller in the written order. The grounds | ||||||
12 | for ordering these additional
audits or examinations may | ||||||
13 | include, but shall not be limited to:
| ||||||
14 | (1) material and unverified changes or fluctuations in | ||||||
15 | trust balances or
insurance or annuity policy amounts;
| ||||||
16 | (2) the licensee changing trustees more than twice in | ||||||
17 | any 12-month
period;
| ||||||
18 | (3) any withdrawals or attempted withdrawals from the | ||||||
19 | trusts, insurance
policies, or annuity contracts in | ||||||
20 | violation of this Act; or
| ||||||
21 | (4) failure to maintain or produce documentation | ||||||
22 | required by this Act for
deposits into trust accounts, | ||||||
23 | trust investment activities, or life insurance or
annuity | ||||||
24 | policies.
| ||||||
25 | The
licensee shall bear the full cost of that examination | ||||||
26 | or audit, up to a maximum
of $20,000. The Department
|
| |||||||
| |||||||
1 | Comptroller may elect to pay for the examination or audit and | ||||||
2 | receive
reimbursement from the licensee. Payment of the costs | ||||||
3 | of the examination or
audit by a licensee shall be a condition | ||||||
4 | of receiving, maintaining, or renewing
a license
under this | ||||||
5 | Act. All moneys received by the Department Comptroller for | ||||||
6 | examination or
audit fees shall be maintained in a separate | ||||||
7 | account to be known as the Department's
Comptroller's | ||||||
8 | Administrative
Fund. This
Fund, subject to appropriation by the | ||||||
9 | General Assembly, may
be utilized by the Department Comptroller | ||||||
10 | for
enforcing this Act and other purposes that may be | ||||||
11 | authorized by law.
| ||||||
12 | For pre-need contracts funded by life insurance or a | ||||||
13 | tax-deferred annuity,
the cost of an examination shall be borne | ||||||
14 | by the licensee. The fee
schedule for such examination shall be | ||||||
15 | established in rules promulgated by the Department
| ||||||
16 | Comptroller . In the event such investigation or other | ||||||
17 | information received by
the Department Comptroller discloses a | ||||||
18 | substantial violation of the requirements of this
Act, the | ||||||
19 | Department Comptroller shall revoke the license of such person | ||||||
20 | upon a hearing as
provided in this Act. Such licensee may | ||||||
21 | terminate all further responsibility
for compliance with the | ||||||
22 | requirements of this Act by voluntarily surrendering
the | ||||||
23 | license to the Department Comptroller , or in the event of its | ||||||
24 | loss, furnishing the Department
Comptroller with a sworn | ||||||
25 | statement to that effect, which states the licensee's
intention | ||||||
26 | to discontinue acceptance of funds received under pre-need |
| |||||||
| |||||||
1 | contracts.
Such license or statement must be accompanied by an | ||||||
2 | affidavit that said
licensee has lawfully expended or refunded | ||||||
3 | all funds received under pre-need
contracts, and that the | ||||||
4 | licensee will accept no additional sales proceeds. The
| ||||||
5 | Department Comptroller shall immediately cancel or revoke said | ||||||
6 | license.
| ||||||
7 | (Source: P.A. 96-879, eff. 2-2-10.)
| ||||||
8 | (225 ILCS 45/3a) (from Ch. 111 1/2, par. 73.103a)
| ||||||
9 | Sec. 3a. Denial, suspension, or revocation of license.
| ||||||
10 | (a) The Department Comptroller may refuse to issue or may | ||||||
11 | suspend
or revoke a license on any of the following grounds:
| ||||||
12 | (1) The applicant or licensee has made any
| ||||||
13 | misrepresentations or false statements or concealed any
| ||||||
14 | material fact.
| ||||||
15 | (2) The applicant or licensee is insolvent.
| ||||||
16 | (3) The applicant or licensee has been engaged in
| ||||||
17 | business practices that work a fraud.
| ||||||
18 | (4) The applicant or licensee has refused to give
| ||||||
19 | pertinent data to the Department Comptroller .
| ||||||
20 | (5) The applicant or licensee has failed to satisfy
any | ||||||
21 | enforceable judgment or decree rendered by any court
of | ||||||
22 | competent jurisdiction against the applicant.
| ||||||
23 | (6) The applicant or licensee has conducted or is
about | ||||||
24 | to conduct business in a fraudulent manner.
| ||||||
25 | (7) The trust agreement is
not in compliance with State |
| |||||||
| |||||||
1 | or federal law.
| ||||||
2 | (8) The fidelity bond is not satisfactory to the | ||||||
3 | Department
Comptroller .
| ||||||
4 | (9) As to any individual required to be listed in the | ||||||
5 | license application,
the individual has
conducted or is | ||||||
6 | about to conduct any business on behalf
of the applicant in | ||||||
7 | a fraudulent manner; has been
convicted of any felony or | ||||||
8 | misdemeanor, an essential
element of which is fraud; has | ||||||
9 | had a judgment rendered
against him or her based on fraud | ||||||
10 | in any civil
litigation; has failed to satisfy any | ||||||
11 | enforceable
judgment or decree rendered against him or her | ||||||
12 | by any
court of competent jurisdiction; or has been | ||||||
13 | convicted
of any felony or any theft-related offense.
| ||||||
14 | (10) The applicant or licensee, including any member,
| ||||||
15 | officer, or director thereof if the applicant or
licensee | ||||||
16 | is a firm, partnership, association or
corporation and any | ||||||
17 | shareholder holding more than 10% of
the corporate stock, | ||||||
18 | has violated any provision of this
Act or any regulation, | ||||||
19 | decision, order, or finding made
by the Department | ||||||
20 | Comptroller under this Act.
| ||||||
21 | (11) The Department Comptroller finds any fact or | ||||||
22 | condition
existing which, if it had existed at the time of | ||||||
23 | the
original application for such license, would have
| ||||||
24 | warranted the Department Comptroller in refusing the | ||||||
25 | issuance of
the license.
| ||||||
26 | (b) Before refusal to issue or renew and before suspension |
| |||||||
| |||||||
1 | or
revocation of a
license, the Department Comptroller shall | ||||||
2 | hold a hearing to determine whether the
applicant or licensee, | ||||||
3 | hereinafter referred to as the respondent, is entitled
to hold | ||||||
4 | such a license. At least 10 days prior to the date set for such
| ||||||
5 | hearing, the Department Comptroller shall notify the | ||||||
6 | respondent in writing that on the
date designated a hearing | ||||||
7 | will be held to determine his eligibility for a
license and | ||||||
8 | that he may appear in person or by counsel. Such written
notice | ||||||
9 | may be served on the respondent personally, or by registered or
| ||||||
10 | certified mail sent to the respondent's business address as | ||||||
11 | shown in his
latest notification to the Department Comptroller . | ||||||
12 | At the hearing, both the
respondent and the complainant shall | ||||||
13 | be accorded ample opportunity to
present in person or by | ||||||
14 | counsel such statements, testimony, evidence and
argument as | ||||||
15 | may be pertinent to the charges or to any defense thereto. The | ||||||
16 | Department
Comptroller may reasonably continue such hearing | ||||||
17 | from time to time.
| ||||||
18 | The Department Comptroller may subpoena any person or | ||||||
19 | persons in this State and take
testimony orally, by deposition | ||||||
20 | or by exhibit, in the same manner and with
the same fees and | ||||||
21 | mileage allowances as prescribed in judicial proceedings
in | ||||||
22 | civil cases.
| ||||||
23 | Any authorized agent of the Department Comptroller may | ||||||
24 | administer oaths to witnesses
at any hearing which the | ||||||
25 | Department Comptroller is authorized to conduct.
| ||||||
26 | (Source: P.A. 92-419, eff. 1-1-02.)
|
| |||||||
| |||||||
1 | (225 ILCS 45/3a-5)
| ||||||
2 | Sec. 3a-5. License requirements.
| ||||||
3 | (a) Every license issued by the Department Comptroller | ||||||
4 | shall state
the number of the license, the business name and | ||||||
5 | address of
the licensee's principal place of business, each | ||||||
6 | branch
location also operating under the license, and the
| ||||||
7 | licensee's parent company, if any. The license shall be
| ||||||
8 | conspicuously posted in each place of business operating
under | ||||||
9 | the license. The Department Comptroller may issue such
| ||||||
10 | additional licenses as may be necessary for licensee branch
| ||||||
11 | locations upon compliance with the provisions of this Act
| ||||||
12 | governing an original issuance of a license for each new
| ||||||
13 | license.
| ||||||
14 | (b) Individual salespersons representing a licensee
shall | ||||||
15 | not be required to obtain licenses in their
individual | ||||||
16 | capacities, but must acknowledge, by affidavit,
that they have | ||||||
17 | been provided with a copy of and have read
this Act. The | ||||||
18 | licensee shall retain copies of the affidavits
of its sellers | ||||||
19 | for its records and shall make the affidavits
available to the | ||||||
20 | Department Comptroller for examination upon request.
| ||||||
21 | (c) The licensee shall be responsible for the activities
of | ||||||
22 | any person representing the licensee in selling or
offering a | ||||||
23 | pre-need contract for sale.
| ||||||
24 | (d) Any person not selling on behalf of a licensee shall
| ||||||
25 | obtain its own license.
|
| |||||||
| |||||||
1 | (e) No license shall be transferable or assignable
without | ||||||
2 | the express written consent of the Department Comptroller . A
| ||||||
3 | transfer of more than 50% of the ownership of any business
| ||||||
4 | licensed hereunder shall be deemed to be an attempted
| ||||||
5 | assignment of the license originally issued to the licensee
for | ||||||
6 | which consent of the Department Comptroller shall be required.
| ||||||
7 | (f) Every license issued hereunder shall remain in force
| ||||||
8 | until it has been suspended, surrendered, or revoked in
| ||||||
9 | accordance with this Act. The Department Comptroller , upon the | ||||||
10 | request
of an interested person or on his own motion, may issue | ||||||
11 | new
licenses to a licensee whose license or licenses have been
| ||||||
12 | revoked, if no factor or condition then exists which would
have | ||||||
13 | warranted the Department Comptroller to originally refuse the
| ||||||
14 | issuance of such license.
| ||||||
15 | (Source: P.A. 92-419, eff. 1-1-02 .)
| ||||||
16 | (225 ILCS 45/3b) (from Ch. 111 1/2, par. 73.103b)
| ||||||
17 | Sec. 3b.
The Department Comptroller , at his expense, shall | ||||||
18 | provide a certified
shorthand reporter to take down the | ||||||
19 | testimony and preserve a record of all
proceedings at the | ||||||
20 | hearing of any case involving the refusal to issue or
renew a | ||||||
21 | license, the suspension or revocation of a license, the | ||||||
22 | imposition
of a monetary penalty, or the referral of a case for | ||||||
23 | criminal prosecution.
The record of any such proceeding shall | ||||||
24 | consist of the notice of hearing,
complaint, all other | ||||||
25 | documents in the nature of pleadings and written
motions filed |
| |||||||
| |||||||
1 | in the proceedings, the transcript of testimony and the
report | ||||||
2 | and orders of the Department Comptroller . Copies of the | ||||||
3 | transcript of such
record may be purchased from the certified | ||||||
4 | shorthand reporter who prepared
the record.
| ||||||
5 | (Source: P.A. 84-839.)
| ||||||
6 | (225 ILCS 45/3c) (from Ch. 111 1/2, par. 73.103c)
| ||||||
7 | Sec. 3c.
Any circuit court may, upon application of the | ||||||
8 | Department Comptroller or
of the applicant or licensee against | ||||||
9 | whom proceedings under Section 3a are
pending, enter an order | ||||||
10 | requiring witnesses to attend and testify, and
requiring the | ||||||
11 | production of documents, papers, files, books and records in
| ||||||
12 | connection with any hearing in any proceedings under that | ||||||
13 | Section. Failure
to obey such court order may result in the | ||||||
14 | institution of contempt proceedings.
| ||||||
15 | (Source: P.A. 84-839.)
| ||||||
16 | (225 ILCS 45/3d) (from Ch. 111 1/2, par. 73.103d)
| ||||||
17 | Sec. 3d.
Any person affected by a final administrative | ||||||
18 | decision of the Department
Comptroller may have such decision | ||||||
19 | reviewed judicially by the circuit court
of the county where | ||||||
20 | such person resides, or in the case of a corporation,
where the | ||||||
21 | registered office is located. If the plaintiff in the review
| ||||||
22 | proceeding is not a resident of this State, venue shall be in | ||||||
23 | Sangamon
County. The provisions of the Administrative Review | ||||||
24 | Law, as now or
hereafter amended, and any rules adopted |
| |||||||
| |||||||
1 | thereunder shall govern all
proceedings for the judicial review | ||||||
2 | of final administrative decisions of the Department
| ||||||
3 | Comptroller . The term "administrative decision" is defined as | ||||||
4 | in the
Administrative Review Law.
| ||||||
5 | The Department Comptroller is not required to certify the | ||||||
6 | record of the proceeding
unless the plaintiff in the review | ||||||
7 | proceedings has purchased a copy of the
transcript from the | ||||||
8 | certified shorthand reporter who prepared the record.
Exhibits | ||||||
9 | shall be certified without cost.
| ||||||
10 | (Source: P.A. 84-839.)
| ||||||
11 | (225 ILCS 45/3e) (from Ch. 111 1/2, par. 73.103e)
| ||||||
12 | Sec. 3e.
Upon the revocation of, suspension of, or refusal | ||||||
13 | to renew any
license, the
licensee shall immediately surrender | ||||||
14 | the license or licenses to the Department
Comptroller . If the | ||||||
15 | licensee fails to do so, the Department
Comptroller shall have | ||||||
16 | the right to seize the same.
| ||||||
17 | (Source: P.A. 92-419, eff. 1-1-02.)
| ||||||
18 | (225 ILCS 45/3f)
| ||||||
19 | Sec. 3f. Revocation of license.
| ||||||
20 | (a) The Department Comptroller , upon determination that | ||||||
21 | grounds
exist for the revocation or suspension of a license | ||||||
22 | issued
under this Act, may revoke or suspend, if appropriate, | ||||||
23 | the license issued to
a licensee or to a particular branch | ||||||
24 | office location with respect to which
the grounds for |
| |||||||
| |||||||
1 | revocation or suspension may occur or exist.
| ||||||
2 | (b) Whenever a license is revoked by the Department
| ||||||
3 | Comptroller , he or she shall apply to the Circuit Court of the | ||||||
4 | county wherein
the licensee is located for a receiver to | ||||||
5 | administer the trust funds of the
licensee or to maintain the | ||||||
6 | life insurance policies and tax-deferred annuities
held by the | ||||||
7 | licensee under a pre-need contract.
| ||||||
8 | (Source: P.A. 92-419, eff. 1-1-02.)
| ||||||
9 | (225 ILCS 45/4a)
| ||||||
10 | Sec. 4a. Investment of funds.
| ||||||
11 | (a) A trustee has a duty to invest and manage the trust | ||||||
12 | assets pursuant to the Prudent Investor Rule under the Trusts | ||||||
13 | and Trustees Act.
| ||||||
14 | (b) The trust shall be a single-purpose trust fund. In the | ||||||
15 | event of the
seller's bankruptcy, insolvency or assignment for | ||||||
16 | the benefit of creditors, or
an adverse judgment, the trust | ||||||
17 | funds shall not be available to any creditor as
assets of the | ||||||
18 | seller or to pay any expenses of any bankruptcy or similar
| ||||||
19 | proceeding, but shall be distributed to the purchasers or | ||||||
20 | managed for their
benefit by the trustee holding the funds. | ||||||
21 | Except in an action by the Department
Comptroller to revoke a | ||||||
22 | license issued pursuant
to this Act and for creation of a | ||||||
23 | receivership as provided in this Act, the
trust shall not be | ||||||
24 | subject to judgment, execution, garnishment, attachment,
or | ||||||
25 | other seizure by process in bankruptcy or otherwise, nor to |
| |||||||
| |||||||
1 | sale, pledge,
mortgage, or other alienation, and shall not be | ||||||
2 | assignable except as
approved by the Department Comptroller . | ||||||
3 | The changes made by Public Act 91-7 are intended to clarify | ||||||
4 | existing law regarding the
inability of licensees to pledge the | ||||||
5 | trust.
| ||||||
6 | (c) Because it is not known at the time of deposit or at | ||||||
7 | the time that
income is earned on the trust account to whom the | ||||||
8 | principal and the accumulated
earnings will be distributed for | ||||||
9 | the purpose of determining the Illinois income
tax due on these | ||||||
10 | trust funds, the principal and any accrued earnings or losses
| ||||||
11 | related to each individual account shall be held in suspense | ||||||
12 | until the final
determination is made as to whom the account | ||||||
13 | shall be paid. The beneficiary's
estate shall not be | ||||||
14 | responsible for any funeral and burial purchases listed in
a | ||||||
15 | pre-need contract if the pre-need contract is entered into on a | ||||||
16 | guaranteed
price basis.
| ||||||
17 | If a pre-need contract is not a guaranteed price contract, | ||||||
18 | then to the extent
the proceeds of a non-guaranteed price | ||||||
19 | pre-need contract cover the funeral and
burial expenses for the | ||||||
20 | beneficiary, no claim may be made against the estate of
the | ||||||
21 | beneficiary. A claim may be made against the beneficiary's | ||||||
22 | estate if the
charges for the funeral services and merchandise | ||||||
23 | at the time of use exceed the
amount of the amount in trust | ||||||
24 | plus the percentage of the sale proceeds
initially retained by | ||||||
25 | the seller or the face value of the life insurance policy
or | ||||||
26 | tax-deferred annuity.
|
| |||||||
| |||||||
1 | (Source: P.A. 96-879, eff. 2-2-10.)
| ||||||
2 | (225 ILCS 45/7.2)
| ||||||
3 | Sec. 7.2. Investigation of unlawful practices. If it | ||||||
4 | appears to the Department
Comptroller that a person has engaged | ||||||
5 | in, is engaging in, or is about to engage
in any practice in | ||||||
6 | violation of this Act,
the Department Comptroller may:
| ||||||
7 | (1) require that person to file on such terms as the | ||||||
8 | Department Comptroller
prescribes
a statement or report in | ||||||
9 | writing, under oath or otherwise, containing all
| ||||||
10 | information the Department Comptroller may consider | ||||||
11 | necessary to ascertain whether a
licensee is in compliance | ||||||
12 | with this Act, or whether an unlicensed person is
engaging | ||||||
13 | in activities for which a license is required;
| ||||||
14 | (2) examine under oath any person in connection with | ||||||
15 | the books and records
pertaining to or having an impact | ||||||
16 | upon trust funds, insurance policies, or tax
deferred | ||||||
17 | annuities required or allowed to be maintained pursuant to | ||||||
18 | this Act;
| ||||||
19 | (3) examine any books and records of the licensee, | ||||||
20 | trustee, or investment
advisor that the Department | ||||||
21 | Comptroller may consider necessary to ascertain compliance
| ||||||
22 | with this Act; and
| ||||||
23 | (4) require the production of a copy of any record, | ||||||
24 | book,
document, account, or paper that is produced in | ||||||
25 | accordance with this Act and
retain it in his or her |
| |||||||
| |||||||
1 | possession until the completion of all proceedings in
| ||||||
2 | connection with which it is produced.
| ||||||
3 | (Source: P.A. 92-419, eff. 1-1-02.)
| ||||||
4 | (225 ILCS 45/7.3)
| ||||||
5 | Sec. 7.3. Service. Service by the Department Comptroller of | ||||||
6 | any notice requiring a
person to file a statement or report | ||||||
7 | shall be made:
| ||||||
8 | (1) personally by delivery of a duly executed copy | ||||||
9 | thereof to the person
to
be served or, if that person is | ||||||
10 | not a natural person, in the manner provided in
the Civil | ||||||
11 | Practice Law when a complaint is filed; or
| ||||||
12 | (2) by mailing by certified mail a duly executed copy | ||||||
13 | thereof to the
person
to be served at his or her last known | ||||||
14 | abode or principal place of business
within this
State.
| ||||||
15 | (Source: P.A. 89-615, eff. 8-9-96.)
| ||||||
16 | (225 ILCS 45/8) (from Ch. 111 1/2, par. 73.108)
| ||||||
17 | Sec. 8.
Any person who intentionally fails to deposit the | ||||||
18 | required sales
proceeds into a trust required under this Act, | ||||||
19 | intentionally and improperly
withdraws or uses trust funds for | ||||||
20 | his or her own benefit, or otherwise
intentionally violates any | ||||||
21 | provision of this Act
is guilty of a Class 4 felony.
| ||||||
22 | If any person intentionally violates this Act or fails or | ||||||
23 | refuses to comply
with any order of the Department Comptroller | ||||||
24 | or any part of an order that has become final
to the person and |
| |||||||
| |||||||
1 | is still in effect, the Department Comptroller may, after | ||||||
2 | notice and
hearing at which it is determined that a violation | ||||||
3 | of this Act or the order has
been committed, further order that | ||||||
4 | the person shall forfeit and pay to the
State of Illinois a sum | ||||||
5 | not to exceed $5,000 for each
violation. This
liability shall | ||||||
6 | be enforced in an action brought in any court of competent
| ||||||
7 | jurisdiction by the Department Comptroller in the name of the | ||||||
8 | People of the State of
Illinois.
| ||||||
9 | In addition to the other penalties and remedies provided in | ||||||
10 | this Act, the Department
Comptroller may bring a civil action | ||||||
11 | in the county of residence of the
licensee
or any person | ||||||
12 | accepting trust funds to enjoin any violation or threatened
| ||||||
13 | violation of this Act.
| ||||||
14 | The powers vested in the Department Comptroller by this | ||||||
15 | Section are in addition to any
and all other powers and | ||||||
16 | remedies vested in the Department Comptroller by law.
| ||||||
17 | (Source: P.A. 92-419, eff. 1-1-02.)
| ||||||
18 | (225 ILCS 45/8.1)
| ||||||
19 | Sec. 8.1. Sales; liability of purchaser for shortage. In | ||||||
20 | the event of a sale or transfer of all or
substantially all of | ||||||
21 | the assets of the licensee, the sale
or transfer of the | ||||||
22 | controlling interest of the corporate
stock of the licensee if | ||||||
23 | the licensee is a corporation, the
sale or transfer of the | ||||||
24 | controlling interest of the partnership if
the licensee is a | ||||||
25 | partnership, or the sale of the licensee
pursuant to |
| |||||||
| |||||||
1 | foreclosure proceedings, the purchaser is
liable for any | ||||||
2 | shortages existing before or after the sale
in the trust funds | ||||||
3 | required to be maintained in a trust
pursuant to this Act and | ||||||
4 | shall honor all pre-need contracts
and trusts entered into by | ||||||
5 | the licensee. Any shortages
existing in the trust funds | ||||||
6 | constitute a prior lien in
favor of the trust for the total | ||||||
7 | value of the shortages,
and notice of that lien shall be | ||||||
8 | provided in all sales
instruments.
| ||||||
9 | In the event of a sale or transfer of all or
substantially | ||||||
10 | all of the assets of the licensee, the sale
or transfer of the | ||||||
11 | controlling interest of the corporate
stock of the licensee if | ||||||
12 | the licensee is a corporation, or
the sale or transfer of the | ||||||
13 | controlling interest of the partnership
if the licensee is a | ||||||
14 | partnership, the licensee shall, at
least 21 days prior to the | ||||||
15 | sale or transfer, notify the Department
Comptroller , in | ||||||
16 | writing, of the pending date of sale or
transfer so as to | ||||||
17 | permit the Department Comptroller to audit the books
and | ||||||
18 | records of the licensee. The audit must be commenced
within 10 | ||||||
19 | business days of the receipt of the notification
and completed | ||||||
20 | within the 21-day notification period unless
the Department | ||||||
21 | Comptroller notifies the licensee during that period
that there | ||||||
22 | is a basis for determining a deficiency which
will require | ||||||
23 | additional time to finalize. Failure to provide timely notice | ||||||
24 | to the Department Comptroller under this Section shall be an | ||||||
25 | intentional violation of this Act. The sale or
transfer may not | ||||||
26 | be completed by the licensee unless and
until:
|
| |||||||
| |||||||
1 | (i) the Department Comptroller has completed the audit | ||||||
2 | of the
licensee's books and records;
| ||||||
3 | (ii) any delinquency existing
in the trust funds has | ||||||
4 | been paid by the licensee, or
arrangements satisfactory to | ||||||
5 | the Department Comptroller have been made
by the licensee | ||||||
6 | on the sale or transfer for the payment of
any delinquency; | ||||||
7 | and
| ||||||
8 | (iii) the Department Comptroller issues a license
upon | ||||||
9 | application of the new owner, which license must be
applied | ||||||
10 | for within 21 days of the anticipated date of the
sale or | ||||||
11 | transfer, subject to the payment of any
delinquencies, if | ||||||
12 | any, as stated in item (ii).
| ||||||
13 | For purposes of this Section, a person, firm,
corporation, | ||||||
14 | partnership, or institution that acquires the
licensee through | ||||||
15 | a real estate foreclosure shall be subject
to the provisions of | ||||||
16 | this Section.
| ||||||
17 | (Source: P.A. 96-879, eff. 2-2-10.)
| ||||||
18 | Section 10. The Illinois Pre-Need Cemetery Sales Act is | ||||||
19 | amended by changing Sections 4, 5, 6, 7, 8, 8a, 8b, 9, 10, 11, | ||||||
20 | 12, 13, 14, 15, 16, 18, 19, 20, 21, 23, 24, 27, and 27.1 as | ||||||
21 | follows:
| ||||||
22 | (815 ILCS 390/4) (from Ch. 21, par. 204)
| ||||||
23 | Sec. 4. Definitions. As used in this Act, the following | ||||||
24 | terms shall
have the meaning specified:
|
| |||||||
| |||||||
1 | (A) "Pre-need sales contract" or "Pre-need sales" means any
| ||||||
2 | agreement or contract or series or combination of agreements or | ||||||
3 | contracts which
have for a purpose the sale of cemetery | ||||||
4 | merchandise, cemetery services or
undeveloped interment, | ||||||
5 | entombment or inurnment spaces where the terms of
such sale | ||||||
6 | require payment or payments to be made at a currently | ||||||
7 | determinable
time and where the merchandise, services or | ||||||
8 | completed spaces are to be
provided more than 120 days | ||||||
9 | following the initial payment on the account.
An agreement or | ||||||
10 | contract for a memorial, marker, or monument shall not be
| ||||||
11 | deemed a "pre-need sales contract" or a "pre-need sale" if the | ||||||
12 | memorial,
marker, or monument is delivered within 180 days | ||||||
13 | following initial payment on
the account and work thereon | ||||||
14 | commences a reasonably short time after initial
payment on the | ||||||
15 | account.
| ||||||
16 | (B) "Delivery" occurs when:
| ||||||
17 | (1) Physical possession of
the merchandise is | ||||||
18 | transferred or
the
easement for burial rights in a | ||||||
19 | completed space is executed, delivered and
transferred to | ||||||
20 | the buyer; or
| ||||||
21 | (2) Following authorization by a purchaser under a | ||||||
22 | pre-need sales
contract, title to the merchandise has been | ||||||
23 | transferred to the
buyer and the
merchandise has been paid | ||||||
24 | for and is in the possession of the seller who
has placed | ||||||
25 | it, until needed, at the site of its ultimate use;
or
| ||||||
26 | (3) Following authorization by a purchaser under a |
| |||||||
| |||||||
1 | pre-need
sales
contract, the merchandise has been | ||||||
2 | permanently identified
with the
name of the buyer or the | ||||||
3 | beneficiary and delivered to a licensed and bonded
| ||||||
4 | warehouse and both title to the merchandise and a warehouse | ||||||
5 | receipt have
been delivered to the purchaser or beneficiary | ||||||
6 | and a copy of the warehouse
receipt has been delivered to | ||||||
7 | the licensee for retention in its files; except
that in the | ||||||
8 | case of
outer burial containers, the use of a licensed and | ||||||
9 | bonded warehouse as set
forth in this paragraph shall not | ||||||
10 | constitute delivery for purposes of this
Act. Nothing | ||||||
11 | herein shall prevent a seller from perfecting a security | ||||||
12 | interest
in accordance with the Uniform Commercial Code on | ||||||
13 | any merchandise covered under
this Act.
| ||||||
14 | All warehouse facilities to which sellers deliver
| ||||||
15 | merchandise pursuant to this Act shall:
| ||||||
16 | (i) be either located in the State of Illinois or | ||||||
17 | qualify as a
foreign warehouse facility as defined | ||||||
18 | herein;
| ||||||
19 | (ii) submit to the Department Comptroller not less | ||||||
20 | than annually, by March 1 of
each year, a report of all | ||||||
21 | cemetery merchandise stored by each licensee
under | ||||||
22 | this Act which is in storage on the date of the report;
| ||||||
23 | (iii) permit the Department Comptroller or his | ||||||
24 | designee at any time to examine
stored merchandise and | ||||||
25 | to examine any documents pertaining thereto;
| ||||||
26 | (iv) submit evidence satisfactory to the |
| |||||||
| |||||||
1 | Department Comptroller that all
merchandise stored by | ||||||
2 | said warehouse for licensees under this Act is
insured | ||||||
3 | for casualty or other loss normally assumed by a bailee | ||||||
4 | for hire;
| ||||||
5 | (v) demonstrate to the Department Comptroller that | ||||||
6 | the warehouse has procured and
is maintaining a | ||||||
7 | performance bond in the form, content and amount
| ||||||
8 | sufficient to unconditionally guarantee to the | ||||||
9 | purchaser or beneficiary the
prompt shipment of the | ||||||
10 | cemetery merchandise.
| ||||||
11 | (C) "Cemetery merchandise" means items of personal | ||||||
12 | property normally
sold by a cemetery authority not covered | ||||||
13 | under the Illinois Funeral or Burial
Funds Act, including but | ||||||
14 | not limited to:
| ||||||
15 | (1) memorials,
| ||||||
16 | (2) markers,
| ||||||
17 | (3) monuments,
| ||||||
18 | (4) foundations, and
| ||||||
19 | (5) outer burial containers.
| ||||||
20 | (D) "Undeveloped interment, entombment or inurnment | ||||||
21 | spaces" or
"undeveloped spaces" means any space to be used for | ||||||
22 | the reception of human
remains that is not completely and | ||||||
23 | totally constructed at the time of
initial payment therefor in | ||||||
24 | a:
| ||||||
25 | (1) lawn crypt,
| ||||||
26 | (2) mausoleum,
|
| |||||||
| |||||||
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 with | ||||||
6 | the interment,
entombment, inurnment or cremation of a dead | ||||||
7 | human body.
| ||||||
8 | (F) "Cemetery section" means a grouping of spaces intended | ||||||
9 | to be
developed simultaneously for the purpose of interring | ||||||
10 | human remains.
| ||||||
11 | (G) "Columbarium" means an arrangement of niches that may | ||||||
12 | be an entire
building, a complete room, a series of special | ||||||
13 | indoor alcoves, a bank along
a corridor or part of an outdoor | ||||||
14 | garden setting that is constructed of
permanent material such | ||||||
15 | as bronze, marble, brick, stone or concrete for the
inurnment | ||||||
16 | of human remains.
| ||||||
17 | (G-5) "Department" means the Department of Financial and | ||||||
18 | Professional Regulation. | ||||||
19 | (H) "Lawn crypt" means a permanent underground crypt | ||||||
20 | usually constructed
of reinforced concrete or similar material | ||||||
21 | installed in multiple units for
the entombment of human | ||||||
22 | remains.
| ||||||
23 | (I) "Mausoleum" or "garden crypt" means a grouping of | ||||||
24 | spaces constructed
of reinforced concrete or similar material | ||||||
25 | constructed or assembled above
the ground for entombing human | ||||||
26 | remains.
|
| |||||||
| |||||||
1 | (J) "Memorials, markers and monuments" means the object | ||||||
2 | usually comprised
of a permanent material such as granite or | ||||||
3 | bronze used to identify and
memorialize the deceased.
| ||||||
4 | (K) "Foundations" means those items used to affix or | ||||||
5 | support a memorial
or monument to the ground in connection with | ||||||
6 | the installation of a memorial,
marker or monument.
| ||||||
7 | (L) "Person" means an individual, corporation, | ||||||
8 | partnership, joint
venture, business trust, voluntary | ||||||
9 | organization or any other form of entity.
| ||||||
10 | (M) "Seller" means
any person selling or offering for sale | ||||||
11 | cemetery
merchandise, cemetery services or undeveloped | ||||||
12 | interment, entombment, or
inurnment spaces in accordance with a | ||||||
13 | pre-need sales contract.
| ||||||
14 | (N) "Religious cemetery" means a cemetery owned, operated, | ||||||
15 | controlled
or managed by any recognized church, religious | ||||||
16 | society, association or
denomination or by any cemetery | ||||||
17 | authority or any corporation administering,
or through which is | ||||||
18 | administered, the temporalities of any recognized
church, | ||||||
19 | religious society, association or denomination.
| ||||||
20 | (O) "Municipal cemetery" means a cemetery owned, operated, | ||||||
21 | controlled or
managed by any city, village, incorporated town, | ||||||
22 | township, county or other
municipal corporation, political | ||||||
23 | subdivision, or instrumentality thereof
authorized by law to | ||||||
24 | own, operate or manage a cemetery. "Municipal cemetery" also | ||||||
25 | includes a cemetery placed in receivership pursuant to this Act | ||||||
26 | while such cemetery is in receivership.
|
| |||||||
| |||||||
1 | (O-1) "Outer burial container" means a container made of | ||||||
2 | concrete, steel,
wood, fiberglass, or similar material, used | ||||||
3 | solely at the interment site, and
designed and used exclusively | ||||||
4 | to surround or enclose a separate casket and to
support the | ||||||
5 | earth above such casket, commonly known as a burial vault, | ||||||
6 | grave
box, or grave liner, but not including a lawn crypt.
| ||||||
7 | (P) "Sales price" means the gross amount paid by a
| ||||||
8 | purchaser on a
pre-need sales contract for cemetery | ||||||
9 | merchandise, cemetery services or
undeveloped interment, | ||||||
10 | entombment or inurnment spaces, excluding sales
taxes, credit | ||||||
11 | life insurance premiums, finance charges and Cemetery Care
Act | ||||||
12 | contributions.
| ||||||
13 | (Q) (Blank).
| ||||||
14 | (R) "Provider" means a person who is responsible for
| ||||||
15 | performing cemetery services or furnishing cemetery
| ||||||
16 | merchandise, interment spaces, entombment spaces, or
inurnment | ||||||
17 | spaces under a pre-need sales contract.
| ||||||
18 | (S) "Purchaser" or "buyer" means the person who
originally | ||||||
19 | paid the money under or in connection with a
pre-need sales | ||||||
20 | contract.
| ||||||
21 | (T) "Parent company" means a corporation owning more than | ||||||
22 | 12 cemeteries or
funeral homes in more than one state.
| ||||||
23 | (U) "Foreign warehouse facility" means a warehouse | ||||||
24 | facility
now or
hereafter located in any state or territory of | ||||||
25 | the United States, including
the District of Columbia, other | ||||||
26 | than the State of Illinois.
|
| |||||||
| |||||||
1 | A foreign warehouse facility shall be deemed to have | ||||||
2 | appointed the Department
Comptroller to be its true and lawful | ||||||
3 | attorney upon whom may be served all
legal process in any | ||||||
4 | action or proceeding against it relating to or growing
out of | ||||||
5 | this Act, and the acceptance of the delivery of stored | ||||||
6 | merchandise
under this Act shall be signification of its | ||||||
7 | agreement that any such
process against it which is so served, | ||||||
8 | shall be of the same legal force and
validity as though served | ||||||
9 | upon it personally.
| ||||||
10 | Service of such process shall be made by delivering to and | ||||||
11 | leaving with
the Department Comptroller , or any agent having | ||||||
12 | charge of the Department's Comptroller's Department
of | ||||||
13 | Cemetery and Burial Trusts, a copy of such process and such | ||||||
14 | service
shall be sufficient service upon such foreign warehouse | ||||||
15 | facility if notice
of such service and a copy of the process | ||||||
16 | are, within 10 days thereafter,
sent by registered mail by the | ||||||
17 | plaintiff to the foreign warehouse facility
at its principal | ||||||
18 | office and the plaintiff's affidavit of compliance
herewith is | ||||||
19 | appended to the summons. The Department Comptroller shall keep | ||||||
20 | a record
of all process served upon him under this Section and | ||||||
21 | shall record therein
the time of such service.
| ||||||
22 | (Source: P.A. 96-879, eff. 2-2-10.)
| ||||||
23 | (815 ILCS 390/5) (from Ch. 21, par. 205)
| ||||||
24 | Sec. 5.
It is unlawful for any seller directly or
| ||||||
25 | indirectly doing business within this State to engage in |
| |||||||
| |||||||
1 | pre-need sales without
a license issued
by the Department | ||||||
2 | Comptroller .
| ||||||
3 | (Source: P.A. 92-419, eff. 1-1-02.)
| ||||||
4 | (815 ILCS 390/6) (from Ch. 21, par. 206)
| ||||||
5 | Sec. 6. License application.
| ||||||
6 | (a) An application for a license shall be made in writing | ||||||
7 | to
the Department Comptroller on forms prescribed by him or | ||||||
8 | her, signed by the applicant
under oath verified by a notary | ||||||
9 | public,
and accompanied
by a non-returnable $25 application | ||||||
10 | fee. The Department Comptroller may prescribe
abbreviated | ||||||
11 | application forms for persons holding a license under the | ||||||
12 | Cemetery
Care Act. Applications (except abbreviated | ||||||
13 | applications) must include at least
the following information:
| ||||||
14 | (1) The full name and address, both residence and | ||||||
15 | business, of the
applicant if the applicant is an | ||||||
16 | individual; of every member if applicant is
a partnership; | ||||||
17 | of every member of the Board of Directors if applicant is | ||||||
18 | an
association; and of every officer, director and | ||||||
19 | shareholder
holding more
than 10% of the corporate stock if | ||||||
20 | applicant is a corporation;
| ||||||
21 | (2) A detailed statement of applicant's assets and | ||||||
22 | liabilities;
| ||||||
23 | (2.1) The name and address of the applicant's
principal | ||||||
24 | place of business at which the books,
accounts, and records | ||||||
25 | are available for examination
by the Department |
| |||||||
| |||||||
1 | Comptroller as required by this Act;
| ||||||
2 | (2.2) The name and address of the applicant's branch
| ||||||
3 | locations at which pre-need sales will be conducted and
| ||||||
4 | which will operate under the same license number as the
| ||||||
5 | applicant's principal place of business;
| ||||||
6 | (3) For each individual listed under (1) above, a | ||||||
7 | detailed statement of
the individual's business experience | ||||||
8 | for the 10 years immediately preceding
the application; any | ||||||
9 | present or prior connection between the individual and
any | ||||||
10 | other person engaged in pre-need sales; any felony or | ||||||
11 | misdemeanor
convictions for which fraud was an essential | ||||||
12 | element; any charges or
complaints lodged against the | ||||||
13 | individual for which fraud was an essential
element and | ||||||
14 | which resulted in civil or criminal litigation; any failure | ||||||
15 | of
the individual to satisfy an enforceable judgment | ||||||
16 | entered against him or
her based
upon fraud;
and any other | ||||||
17 | information requested by the Department Comptroller | ||||||
18 | relating
to the past business practices of the individual. | ||||||
19 | Since the information
required by this paragraph may be | ||||||
20 | confidential or contain proprietary
information, this | ||||||
21 | information shall not be available to other licensees or
| ||||||
22 | the general public and shall be used only for the lawful | ||||||
23 | purposes of the
Department Comptroller in enforcing this | ||||||
24 | Act;
| ||||||
25 | (4) The name of the trustee and, if applicable, the | ||||||
26 | names of the
advisors to the trustee, including a copy of |
| |||||||
| |||||||
1 | the proposed trust agreement
under which the trust funds | ||||||
2 | are to be held as required by this Act;
| ||||||
3 | (5) Where applicable, the name of the corporate surety | ||||||
4 | company
providing the performance bond for the | ||||||
5 | construction of undeveloped spaces
and a copy of the bond; | ||||||
6 | and
| ||||||
7 | (6) Such other information as the Department | ||||||
8 | Comptroller may reasonably require in
order to determine | ||||||
9 | the qualification of the applicant to be licensed under | ||||||
10 | this
Act.
| ||||||
11 | (b) Applications for license shall be accompanied by a | ||||||
12 | fidelity bond
executed by the applicant and a security company | ||||||
13 | authorized to do business
in this State in such amount, not | ||||||
14 | exceeding $10,000, as the Department Comptroller may
require. | ||||||
15 | The Department Comptroller may require additional bond from | ||||||
16 | time to time in
amounts equal to one-tenth of such trust funds | ||||||
17 | but not to exceed $100,000,
which bond shall run to the | ||||||
18 | Department Comptroller for the use and benefit of the
| ||||||
19 | beneficiaries of such trust funds. Such licensee may by written | ||||||
20 | permit of
the Department Comptroller be authorized to operate | ||||||
21 | without additional bond, except
such fidelity bond as may be | ||||||
22 | required by the Department Comptroller for the protection
of | ||||||
23 | the licensee against loss by default by any of its employees | ||||||
24 | engaged in
the handling of trust funds.
| ||||||
25 | (c) Any application not acted upon within 90 days may be | ||||||
26 | deemed denied.
|
| |||||||
| |||||||
1 | (Source: P.A. 92-419, eff. 1-1-02.)
| ||||||
2 | (815 ILCS 390/7) (from Ch. 21, par. 207)
| ||||||
3 | Sec. 7.
The Department Comptroller may refuse to issue or | ||||||
4 | may suspend or revoke
a license on any of the following | ||||||
5 | grounds:
| ||||||
6 | (a) The applicant or licensee has made any | ||||||
7 | misrepresentations or false
statements or concealed any | ||||||
8 | material fact;
| ||||||
9 | (b) The applicant or licensee is insolvent;
| ||||||
10 | (c) The applicant or licensee has been engaged in business | ||||||
11 | practices that
work a fraud;
| ||||||
12 | (d) The applicant or licensee has refused to give pertinent | ||||||
13 | data to the Department
Comptroller ;
| ||||||
14 | (e) The applicant or licensee has failed to satisfy any | ||||||
15 | enforceable
judgment or decree rendered by any court of | ||||||
16 | competent jurisdiction against
the applicant;
| ||||||
17 | (f) The applicant or licensee has conducted or is about to | ||||||
18 | conduct
business in a fraudulent manner;
| ||||||
19 | (g) The trust agreement is not in compliance
with State or | ||||||
20 | federal law;
| ||||||
21 | (h) The pre-construction performance bond, if applicable, | ||||||
22 | is not
satisfactory to the Department Comptroller ;
| ||||||
23 | (i) The fidelity bond is not satisfactory to the Department | ||||||
24 | Comptroller ;
| ||||||
25 | (j) As to any individual listed in the license application |
| |||||||
| |||||||
1 | as required
pursuant to Section 6, that individual has | ||||||
2 | conducted
or is
about to conduct any business on behalf of the | ||||||
3 | applicant in a fraudulent
manner, has been convicted of any | ||||||
4 | felony or misdemeanor an essential
element of which is fraud, | ||||||
5 | has had a judgment rendered against him or her
based on
fraud | ||||||
6 | in any civil litigation, has failed to satisfy any enforceable
| ||||||
7 | judgment or decree rendered against him by any court of | ||||||
8 | competent
jurisdiction, or has been convicted of any felony or | ||||||
9 | any theft-related
offense;
| ||||||
10 | (k) The applicant or licensee has failed to make the annual | ||||||
11 | report
required by this Act or to comply with a final order, | ||||||
12 | decision, or finding
of the Department Comptroller made | ||||||
13 | pursuant to this Act;
| ||||||
14 | (l) The applicant or licensee, including any member, | ||||||
15 | officer, or director
thereof if the applicant or licensee is a | ||||||
16 | firm, partnership, association, or
corporation and any | ||||||
17 | shareholder holding more than 10% of the corporate stock,
has | ||||||
18 | violated any provision of this Act
or
any regulation or order | ||||||
19 | made by the Department Comptroller under this Act; or
| ||||||
20 | (m) The Department Comptroller finds any fact or condition | ||||||
21 | existing which, if it
had existed at the time of the original | ||||||
22 | application for such license would
have warranted the | ||||||
23 | Department Comptroller in refusing the issuance of the license.
| ||||||
24 | (Source: P.A. 92-419, eff. 1-1-02.)
| ||||||
25 | (815 ILCS 390/8) (from Ch. 21, par. 208)
|
| |||||||
| |||||||
1 | Sec. 8.
(a) Every license issued by the Department | ||||||
2 | Comptroller shall state the
number of the license, the business | ||||||
3 | name and address of the licensee's
principal place of business, | ||||||
4 | each branch location also operating under the
license, and the | ||||||
5 | licensee's parent company, if any. The license shall be
| ||||||
6 | conspicuously posted in
each place of business operating under | ||||||
7 | the license. The Department Comptroller may issue
additional | ||||||
8 | licenses as may be necessary for license branch locations upon | ||||||
9 | compliance with the provisions of this Act
governing an | ||||||
10 | original issuance of a license for each new license.
| ||||||
11 | (b) Individual salespersons representing a licensee
shall | ||||||
12 | not be required
to obtain licenses in their individual | ||||||
13 | capacities
but must acknowledge, by affidavit, that they have
| ||||||
14 | been provided a copy of and have read this Act. The licensee | ||||||
15 | must
retain copies of the affidavits of its salespersons for | ||||||
16 | its
records and must make the affidavits available to the | ||||||
17 | Department
Comptroller for examination upon request.
| ||||||
18 | (c) The licensee shall be responsible for the activities of | ||||||
19 | any person
representing the licensee in selling or offering a | ||||||
20 | pre-need contract for sale.
| ||||||
21 | (d) Any person not selling on behalf of a
licensee
shall be | ||||||
22 | required to obtain his or her own license.
| ||||||
23 | (e) Any person engaged in pre-need sales, as defined | ||||||
24 | herein, prior to
the effective date of this Act may continue | ||||||
25 | operations until the application
for license under this Act is | ||||||
26 | denied; provided that such person shall make
application for a |
| |||||||
| |||||||
1 | license within 60 days of the date that application forms
are | ||||||
2 | made available by the Department Comptroller .
| ||||||
3 | (f) No license shall be transferable or assignable without | ||||||
4 | the express
written consent of the Department Comptroller . A | ||||||
5 | transfer of more than 50% of the
ownership of any business | ||||||
6 | licensed hereunder shall be deemed to be an attempted
| ||||||
7 | assignment of the license originally issued to the licensee for | ||||||
8 | which consent
of the Department Comptroller shall be required.
| ||||||
9 | (g) Every license issued hereunder shall remain in force | ||||||
10 | until the same
has been suspended, surrendered or revoked in | ||||||
11 | accordance with this Act,
but the Department Comptroller , upon | ||||||
12 | the request of an interested person or on his
own motion, may | ||||||
13 | issue new licenses to a licensee whose license or licenses
have | ||||||
14 | been revoked, if no factor or condition then exists which would | ||||||
15 | have
warranted the Department Comptroller in refusing | ||||||
16 | originally the issuance of such license.
| ||||||
17 | (Source: P.A. 92-419, eff. 1-1-02.)
| ||||||
18 | (815 ILCS 390/8a)
| ||||||
19 | Sec. 8a. Investigation of unlawful practices. If it appears | ||||||
20 | to the Department
Comptroller that a person has engaged in, is | ||||||
21 | engaging in, or is about to engage
in any practice in violation | ||||||
22 | of this Act,
the Department Comptroller may:
| ||||||
23 | (1) require that person to file on such terms as the | ||||||
24 | Department Comptroller
prescribes a statement or report in | ||||||
25 | writing, under oath or otherwise,
containing all |
| |||||||
| |||||||
1 | information the Department Comptroller may consider | ||||||
2 | necessary to ascertain
whether a licensee is in compliance | ||||||
3 | with this Act, or whether an unlicensed
person is engaging | ||||||
4 | in activities for which a license is required;
| ||||||
5 | (2) examine under oath any person in connection with | ||||||
6 | the books and records
pertaining to or having an impact | ||||||
7 | upon the trust funds required to be
maintained pursuant to | ||||||
8 | this Act;
| ||||||
9 | (3) examine any books and records of the licensee, | ||||||
10 | trustee, or investment
advisor that the Department | ||||||
11 | Comptroller may consider necessary to ascertain compliance
| ||||||
12 | with this Act; and
| ||||||
13 | (4) require the production of a copy of any record, | ||||||
14 | book,
document, account, or paper that is produced in | ||||||
15 | accordance with this Act and
retain it in his or her | ||||||
16 | possession until the completion of all proceedings in
| ||||||
17 | connection with which it is produced.
| ||||||
18 | (Source: P.A. 92-419, eff. 1-1-02.)
| ||||||
19 | (815 ILCS 390/8b)
| ||||||
20 | Sec. 8b. Service. Service by the Department Comptroller of | ||||||
21 | any notice requiring a
person to file a statement or report | ||||||
22 | shall be made:
| ||||||
23 | (1) personally by delivery of a duly executed copy | ||||||
24 | thereof to the person
to
be served or, if that person is | ||||||
25 | not a natural person, in the manner provided in
the Civil |
| |||||||
| |||||||
1 | Practice Law when a complaint is filed; or
| ||||||
2 | (2) by mailing by certified mail a duly executed copy | ||||||
3 | thereof to the
person
to be served at his or her last known | ||||||
4 | abode or principal place of business
within this
State.
| ||||||
5 | (Source: P.A. 89-615, eff. 8-9-96.)
| ||||||
6 | (815 ILCS 390/9) (from Ch. 21, par. 209)
| ||||||
7 | Sec. 9.
The Department Comptroller may upon his own motion | ||||||
8 | investigate the actions
of any person providing, selling, or | ||||||
9 | offering pre-need sales contracts
or of any applicant
or any | ||||||
10 | person or persons holding or claiming to hold
a license under | ||||||
11 | this Act. The Department Comptroller shall make such an | ||||||
12 | investigation
on receipt of the verified written complaint of | ||||||
13 | any person setting forth
facts which, if proved, would | ||||||
14 | constitute grounds for refusal, suspension,
or revocation of a | ||||||
15 | license.
Before refusing to issue, and before suspension or | ||||||
16 | revocation of a license,
the Department Comptroller shall hold | ||||||
17 | a hearing to determine whether the applicant or
licensee,
| ||||||
18 | hereafter called the respondent, is entitled to hold
such a | ||||||
19 | license. At
least 10 days prior to the date set for such | ||||||
20 | hearing, the Department Comptroller shall
notify the | ||||||
21 | respondent in writing that on the date designated a hearing
| ||||||
22 | will be held to determine his eligibility for a license and | ||||||
23 | that he may
appear in person or by counsel. Such written notice | ||||||
24 | may be served on the
respondent personally, or by registered or | ||||||
25 | certified mail sent to the
respondent's
business address as |
| |||||||
| |||||||
1 | shown in his latest notification to the Department Comptroller | ||||||
2 | and
shall include sufficient information to inform the | ||||||
3 | respondent of the general
nature of the charge. At the hearing, | ||||||
4 | both the respondent and the complainant
shall be accorded ample | ||||||
5 | opportunity to present in person or by counsel such
statements, | ||||||
6 | testimony, evidence and argument as may be pertinent to the
| ||||||
7 | charges or to any defense thereto. The Department Comptroller | ||||||
8 | may reasonably continue
such hearing from time to time.
| ||||||
9 | The Department Comptroller may subpoena any person or | ||||||
10 | persons in this State and take
testimony orally, by deposition | ||||||
11 | or by exhibit, in the same manner and with
the same fees and | ||||||
12 | mileage as prescribed in judicial proceedings in civil cases.
| ||||||
13 | Any authorized agent of the Department Comptroller may | ||||||
14 | administer oaths to witnesses
at any hearing which the | ||||||
15 | Department Comptroller is authorized to conduct.
| ||||||
16 | The Department Comptroller , at his expense, shall provide a | ||||||
17 | certified shorthand reporter
to take down the testimony and | ||||||
18 | preserve a record of all proceedings at the
hearing of any case | ||||||
19 | involving the refusal to issue a license, the suspension
or | ||||||
20 | revocation of a license, the imposition of a monetary penalty, | ||||||
21 | or the
referral
of a case for criminal prosecution. The record | ||||||
22 | of any such proceeding shall
consist of the notice of hearing, | ||||||
23 | complaint, all other documents in the
nature of pleadings and | ||||||
24 | written motions filed in the proceedings, the
transcript
of | ||||||
25 | testimony and the report and orders of the Department | ||||||
26 | Comptroller . Copies of the
transcript of such record may be |
| |||||||
| |||||||
1 | purchased from the certified shorthand
reporter
who prepared | ||||||
2 | the record or from the Department Comptroller .
| ||||||
3 | (Source: P.A. 92-419, eff. 1-1-02.)
| ||||||
4 | (815 ILCS 390/10) (from Ch. 21, par. 210)
| ||||||
5 | Sec. 10.
Any circuit court may, upon application of the | ||||||
6 | Department Comptroller
or of the applicant or licensee against | ||||||
7 | whom proceedings under Section 9
are pending, enter an order | ||||||
8 | requiring witnesses to attend and testify, and
requiring the | ||||||
9 | production of documents, papers, files, books and records
in | ||||||
10 | connection with any hearing in any proceedings under that | ||||||
11 | Section. Failure
to obey such court order may result in | ||||||
12 | contempt proceedings.
| ||||||
13 | (Source: P.A. 84-239.)
| ||||||
14 | (815 ILCS 390/11) (from Ch. 21, par. 211)
| ||||||
15 | Sec. 11.
Any person affected by a final administrative | ||||||
16 | decision of the Department
Comptroller may have such decision | ||||||
17 | reviewed judicially by the circuit court
of the county where | ||||||
18 | such person resides, or in the case of a corporation,
where the | ||||||
19 | registered office is located. If the plaintiff in the review
| ||||||
20 | proceeding is not a resident of this State, venue shall be in | ||||||
21 | Sangamon County. The
provisions of the "Administrative Review | ||||||
22 | Law", approved August 19, 1981,
all amendments and | ||||||
23 | modifications thereto, and any rules adopted under it
govern | ||||||
24 | all proceedings for the judicial review of final administrative
|
| |||||||
| |||||||
1 | decisions of the Department Comptroller . The term | ||||||
2 | "administrative decision" is defined
as in the "Administrative | ||||||
3 | Review Law".
| ||||||
4 | The Department Comptroller is not required to certify the | ||||||
5 | record of the proceeding
unless the plaintiff in the review | ||||||
6 | proceedings has purchased a copy of the
transcript from the | ||||||
7 | certified shorthand reporter who prepared the record or
from | ||||||
8 | the Department Comptroller . Exhibits shall be certified | ||||||
9 | without cost.
| ||||||
10 | (Source: P.A. 84-239.)
| ||||||
11 | (815 ILCS 390/12) (from Ch. 21, par. 212)
| ||||||
12 | Sec. 12. License revocation or suspension.
| ||||||
13 | (a) The Department Comptroller may, upon determination | ||||||
14 | that grounds
exist for the revocation or suspension of a | ||||||
15 | license issued
under this Act, revoke or suspend, if | ||||||
16 | appropriate, the license issued to a
licensee or to a
| ||||||
17 | particular branch office location with respect to which the
| ||||||
18 | grounds for revocation or suspension may occur or exist.
| ||||||
19 | (b) Upon the revocation or suspension of any license, the
| ||||||
20 | licensee shall immediately surrender the license or licenses to | ||||||
21 | the Department Comptroller . If the licensee fails to do so, the | ||||||
22 | Department
Comptroller has the right to seize the license or | ||||||
23 | licenses.
| ||||||
24 | (Source: P.A. 92-419, eff. 1-1-02.)
|
| |||||||
| |||||||
1 | (815 ILCS 390/13) (from Ch. 21, par. 213)
| ||||||
2 | Sec. 13.
A licensee may surrender any license by delivering | ||||||
3 | to the Department
Comptroller written notice that he thereby | ||||||
4 | surrenders such license but such
surrender shall not affect | ||||||
5 | such licensee's civil or criminal liability for
acts committed | ||||||
6 | prior to such surrender, or affect his bond. The Department | ||||||
7 | Comptroller
shall not permit a license to be surrendered by | ||||||
8 | licensee unless and until
the trust funds of such licensee have | ||||||
9 | been transferred to a successor
licensee who shall be licensed | ||||||
10 | by the Department Comptroller in conformity with the
provisions | ||||||
11 | of this Act. Any purported transfer of trust funds without
| ||||||
12 | compliance with this Section is void and the Department | ||||||
13 | Comptroller shall have the
right to petition for the | ||||||
14 | appointment of a receiver to administer the
business of the | ||||||
15 | licensee.
| ||||||
16 | (Source: P.A. 84-239.)
| ||||||
17 | (815 ILCS 390/14) (from Ch. 21, par. 214)
| ||||||
18 | Sec. 14. Contract required.
| ||||||
19 | (a) It is unlawful for any person doing business within | ||||||
20 | this
State to accept sales proceeds, either directly or | ||||||
21 | indirectly, by any
means unless the seller enters into a | ||||||
22 | pre-need sales
contract
with the
purchaser which meets the | ||||||
23 | following requirements:
| ||||||
24 | (1) A written sales contract shall be executed in at | ||||||
25 | least 11 point
type in duplicate for
each pre-need sale |
| |||||||
| |||||||
1 | made by a licensee, and a signed copy given to the
| ||||||
2 | purchaser. Each completed contract shall be numbered and | ||||||
3 | shall contain: (i)
the
name and address of the purchaser, | ||||||
4 | the principal office
of the licensee, and the parent | ||||||
5 | company of the licensee; (ii) the name
of the person,
if | ||||||
6 | known, who
is to receive the cemetery merchandise, cemetery | ||||||
7 | services or the
completed interment, entombment or | ||||||
8 | inurnment spaces under the contract; and
(iii) specific | ||||||
9 | identification of such
merchandise, services or spaces to | ||||||
10 | be provided, if a specific space or spaces
are contracted | ||||||
11 | for, and
the price of the merchandise, services, or space | ||||||
12 | or spaces.
| ||||||
13 | (2) In addition,
such contracts must contain a | ||||||
14 | provision in distinguishing typeface as follows:
| ||||||
15 | "Notwithstanding anything in this contract to the | ||||||
16 | contrary, you are
afforded certain specific rights of | ||||||
17 | cancellation and refund under the Illinois Pre-Need | ||||||
18 | Cemetery Sales Act, enacted by the 84th
General Assembly of | ||||||
19 | the State of Illinois".
| ||||||
20 | (3) All pre-need sales contracts shall be sold on a | ||||||
21 | guaranteed price
basis.
At the time of performance of the | ||||||
22 | service or delivery of the merchandise,
the seller shall be | ||||||
23 | prohibited from assessing the purchaser or
his heirs or
| ||||||
24 | assigns or duly authorized representative any additional | ||||||
25 | charges for the
specific merchandise and services listed on | ||||||
26 | the pre-need sales contract.
|
| |||||||
| |||||||
1 | (4) Each contract shall clearly disclose that the price | ||||||
2 | of the
merchandise or services is guaranteed and shall | ||||||
3 | contain the following
statement in 12 point bold type:
| ||||||
4 | "THIS CONTRACT GUARANTEES THE BENEFICIARY THE SPECIFIC | ||||||
5 | GOODS,
SERVICES, INTERMENT SPACES, ENTOMBMENT SPACES, AND | ||||||
6 | INURNMENT SPACES
CONTRACTED FOR. NO ADDITIONAL CHARGES MAY | ||||||
7 | BE REQUIRED FOR
DESIGNATED GOODS, SERVICES, AND SPACES. | ||||||
8 | ADDITIONAL CHARGES MAY
BE INCURRED FOR
UNEXPECTED | ||||||
9 | EXPENSES."
| ||||||
10 | (5) The pre-need sales contract shall provide that
if | ||||||
11 | the particular cemetery services, cemetery
merchandise, or | ||||||
12 | spaces specified in the pre-need
contract are unavailable | ||||||
13 | at the time of delivery, the
seller shall be required to | ||||||
14 | furnish services,
merchandise, and spaces similar in style | ||||||
15 | and at least
equal in quality of material and workmanship.
| ||||||
16 | (6) The pre-need contract shall also disclose any
| ||||||
17 | specific penalties to be incurred by the purchaser as a
| ||||||
18 | result of failure to make payments; and penalties to be
| ||||||
19 | incurred or moneys or refunds to be received as a result
of | ||||||
20 | cancellation of the contract.
| ||||||
21 | (7) The pre-need contract shall disclose the nature
of | ||||||
22 | the relationship between the provider and the seller.
| ||||||
23 | (8) Each pre-need contract that authorizes the | ||||||
24 | delivery
of cemetery merchandise to a licensed and bonded | ||||||
25 | warehouse
shall provide that prior to or upon delivery of | ||||||
26 | the
merchandise to the warehouse
the title to the |
| |||||||
| |||||||
1 | merchandise and a warehouse receipt shall
be delivered to | ||||||
2 | the purchaser or beneficiary. The pre-need
contract shall | ||||||
3 | contain the following statement in 12 point
bold type:
| ||||||
4 | "THIS CONTRACT AUTHORIZES THE DELIVERY OF MERCHANDISE TO
A | ||||||
5 | LICENSED AND BONDED WAREHOUSE FOR STORAGE OF THE
| ||||||
6 | MERCHANDISE UNTIL THE MERCHANDISE IS NEEDED BY THE
| ||||||
7 | BENEFICIARY. DELIVERY OF THE MERCHANDISE IN THIS MANNER MAY
| ||||||
8 | PRECLUDE REFUND OF SALE PROCEEDS THAT ARE ATTRIBUTABLE TO
| ||||||
9 | THE DELIVERED MERCHANDISE."
| ||||||
10 | The purchaser shall initial the statement at the time | ||||||
11 | of
entry into the pre-need contract.
| ||||||
12 | (9) Each pre-need contract that authorizes the | ||||||
13 | placement
of cemetery merchandise at the site of its
| ||||||
14 | ultimate use prior to the time that the merchandise is | ||||||
15 | needed
by the beneficiary shall contain the following | ||||||
16 | statement in
12 point bold type:
| ||||||
17 | "THIS CONTRACT AUTHORIZES THE PLACEMENT OF MERCHANDISE
AT | ||||||
18 | THE SITE OF ITS ULTIMATE USE PRIOR TO THE TIME THAT THE
| ||||||
19 | MERCHANDISE IS NEEDED BY THE BENEFICIARY. DELIVERY OF THE
| ||||||
20 | MERCHANDISE IN THIS MANNER MAY PRECLUDE REFUND OF SALE
| ||||||
21 | PROCEEDS THAT ARE ATTRIBUTABLE TO THE DELIVERED
| ||||||
22 | MERCHANDISE."
| ||||||
23 | The purchaser shall initial the statement at the time | ||||||
24 | of
entry into the pre-need contract.
| ||||||
25 | (10) Each pre-need contract that is funded by a trust | ||||||
26 | shall clearly identify the trustee's name and address and |
| |||||||
| |||||||
1 | the primary state or federal regulator of the trustee as a | ||||||
2 | corporate fiduciary. | ||||||
3 | (b) Every pre-need sales contract must be in writing.
The | ||||||
4 | Department Comptroller may by rule
develop a model pre-need | ||||||
5 | sales contract form that meets the requirements
of this Act.
| ||||||
6 | (c) To the extent the Rule is applicable, every pre-need | ||||||
7 | sales
contract is subject to the Federal Trade Commission Rule | ||||||
8 | concerning the
Cooling-Off Period for Door-to-Door Sales (16 | ||||||
9 | CFR Part 429).
| ||||||
10 | (d) No pre-need sales contract may be entered into in
this | ||||||
11 | State unless there is a provider for the cemetery
merchandise, | ||||||
12 | cemetery services, and undeveloped interment,
inurnment, and | ||||||
13 | entombment spaces being sold. If the seller
is not the | ||||||
14 | provider, then the seller must have a binding
agreement with a | ||||||
15 | provider, and the identity of the provider
and the nature of | ||||||
16 | the agreement between the seller and the
provider must be | ||||||
17 | disclosed in the pre-need sales contract
at the time of sale | ||||||
18 | and before the receipt of any sale
proceeds. The failure to | ||||||
19 | disclose the identity of the
provider, the nature of the | ||||||
20 | agreement between the seller
and the provider, or any changes | ||||||
21 | thereto to the purchaser
and beneficiary, or the failure to | ||||||
22 | make the disclosures
required by this Section constitutes an | ||||||
23 | intentional
violation of this Act.
| ||||||
24 | (e) No pre-need contract may be entered into in this
State | ||||||
25 | unless it is accompanied by a funding mechanism
permitted under | ||||||
26 | this Act and unless the seller is
licensed by the Department |
| |||||||
| |||||||
1 | Comptroller as provided in this Act.
Nothing in this Act is | ||||||
2 | intended to relieve providers or
sellers of pre-need contracts | ||||||
3 | from being licensed under any
other Act required for their | ||||||
4 | profession or business or from
being subject to the rules | ||||||
5 | promulgated to regulate their
profession or business, | ||||||
6 | including rules on solicitation and
advertisement.
| ||||||
7 | (f) No pre-need contract may be entered into in this
State | ||||||
8 | unless the seller explains to the
purchaser the terms of the | ||||||
9 | pre-need contract prior to the
purchaser signing and the | ||||||
10 | purchaser initials a statement in the contract
confirming that | ||||||
11 | the seller has explained the terms of the contract prior to the
| ||||||
12 | purchaser signing.
| ||||||
13 | (g) The Department State Comptroller shall develop a | ||||||
14 | booklet for
consumers in plain English describing the scope,
| ||||||
15 | application, and consumer protections of this Act. After
the | ||||||
16 | booklet is developed, no pre-need contract may be
sold in this | ||||||
17 | State unless the seller
distributes to the purchaser prior to | ||||||
18 | the sale a booklet
developed or approved for use by the | ||||||
19 | Department State Comptroller .
| ||||||
20 | (Source: P.A. 96-879, eff. 2-2-10.)
| ||||||
21 | (815 ILCS 390/15) (from Ch. 21, par. 215)
| ||||||
22 | Sec. 15.
(a) Whenever a seller receives anything of value | ||||||
23 | under a
pre-need sales contract, the person receiving such | ||||||
24 | value shall deposit 50%
of all proceeds received into one or | ||||||
25 | more trust funds maintained pursuant
to this Section, except |
| |||||||
| |||||||
1 | that, in the case of proceeds received for the
purchase of | ||||||
2 | outer burial containers, 85% of the proceeds shall be deposited
| ||||||
3 | into one or more trust funds. Such deposits shall be made until | ||||||
4 | the amount
deposited in
trust equals 50% of the sales price of | ||||||
5 | the cemetery merchandise, cemetery
services and undeveloped | ||||||
6 | spaces included in such contract, except that, in
the case of | ||||||
7 | deposits for outer burial containers, deposits shall be made | ||||||
8 | until
the amount deposited in trust equals 85% of the sales | ||||||
9 | price. In the event
an
installment contract is factored, | ||||||
10 | discounted or sold to a third party, the
seller shall deposit | ||||||
11 | an amount equal to 50% of the sales price of the
installment | ||||||
12 | contract, except that, for the portion of the contract
| ||||||
13 | attributable to the sale of outer burial containers, the seller | ||||||
14 | shall deposit
an amount equal to 85% of the sales price. | ||||||
15 | Proceeds required to be deposited
in trust which
are
| ||||||
16 | attributable to cemetery merchandise and cemetery services | ||||||
17 | shall be held
in a "Cemetery Merchandise Trust Fund". Proceeds | ||||||
18 | required to be deposited
in trust which are attributable to the | ||||||
19 | sale of undeveloped interment,
entombment or inurnment spaces | ||||||
20 | shall be held in a "Pre-construction Trust
Fund". If | ||||||
21 | merchandise is delivered for storage in a bonded warehouse, as
| ||||||
22 | authorized herein, and payment of transportation or other | ||||||
23 | charges totaling
more than $20 will be required in order to | ||||||
24 | secure delivery to the site of
ultimate use, upon such delivery | ||||||
25 | to the warehouse the seller shall deposit
to the trust fund the | ||||||
26 | full amount of the actual or estimated transportation
charge. |
| |||||||
| |||||||
1 | Transportation charges which have been prepaid by the seller
| ||||||
2 | shall not be deposited to trust funds maintained pursuant to | ||||||
3 | this Section.
As used in this Section, "all proceeds" means the | ||||||
4 | entire amount paid by a
purchaser in connection with a pre-need | ||||||
5 | sales contract, including finance
charges and Cemetery Care Act | ||||||
6 | contributions, but excluding sales taxes
and credit life | ||||||
7 | insurance premiums.
| ||||||
8 | (b) The seller shall act as trustee of all amounts received | ||||||
9 | for cemetery merchandise, services, or undeveloped spaces | ||||||
10 | until those amounts have been deposited into the trust fund. | ||||||
11 | All trust deposits required by this Act shall be made within 30 | ||||||
12 | days
following the end of the month of receipt. The seller must | ||||||
13 | retain a corporate fiduciary as an independent trustee for any | ||||||
14 | amount of trust funds. Upon 30 days' prior written notice from | ||||||
15 | the seller to the Department Comptroller , the seller may change | ||||||
16 | the trustee of the trust fund. Failure to provide the | ||||||
17 | Department Comptroller with timely prior notice is an | ||||||
18 | intentional violation of this Act.
| ||||||
19 | (c) A trust established under this Act must be maintained | ||||||
20 | with a corporate fiduciary as defined in Section 1-5.05 of the | ||||||
21 | Corporate Fiduciary Act.
| ||||||
22 | (d) Funds deposited in the trust account shall be | ||||||
23 | identified in the records
of the seller by the name of the | ||||||
24 | purchaser. Nothing shall prevent the trustee
from commingling | ||||||
25 | the deposits in any such trust fund for purposes of the
| ||||||
26 | management thereof and the investment of funds therein as |
| |||||||
| |||||||
1 | provided in the
"Common Trust Fund Act", approved June 24, | ||||||
2 | 1949, as amended. In addition,
multiple trust funds maintained | ||||||
3 | pursuant to this Act may be commingled or
commingled with other | ||||||
4 | funeral or burial related trust funds, provided that
all record | ||||||
5 | keeping requirements imposed by or pursuant to law are met.
| ||||||
6 | (e) In lieu of a pre-construction trust fund, a seller of | ||||||
7 | undeveloped
interment, entombment or inurnment spaces may | ||||||
8 | obtain and file with the Department
Comptroller a performance | ||||||
9 | bond in an amount at least equal to 50% of the
sales price of | ||||||
10 | the undeveloped spaces or the estimated cost of completing
| ||||||
11 | construction, whichever is greater. The bond shall be | ||||||
12 | conditioned on the
satisfactory construction and completion of | ||||||
13 | the undeveloped spaces as
required in Section 19 of this Act.
| ||||||
14 | Each bond obtained under this Section shall have as surety | ||||||
15 | thereon a
corporate surety company incorporated under the laws | ||||||
16 | of the United States,
or a State, the District of Columbia or a | ||||||
17 | territory or possession of the
United States. Each such | ||||||
18 | corporate surety company must be authorized to
provide | ||||||
19 | performance bonds as required by this Section, have paid-up
| ||||||
20 | capital of at least $250,000 in cash or its equivalent and be | ||||||
21 | able to carry
out its contracts. Each pre-need seller must | ||||||
22 | provide to the Department Comptroller ,
for each corporate | ||||||
23 | surety company such
seller utilizes, a statement of assets and | ||||||
24 | liabilities of the corporate
surety company sworn to by the | ||||||
25 | president and secretary
of the corporation by January 1 of each | ||||||
26 | year.
|
| |||||||
| |||||||
1 | The Department Comptroller shall prohibit pre-need sellers | ||||||
2 | from doing new business
with a corporate surety company if the | ||||||
3 | company is insolvent or is in
violation of this Section. In | ||||||
4 | addition the Department Comptroller may direct a
pre-need | ||||||
5 | seller to reinstate a pre-construction trust fund upon the | ||||||
6 | Department's
Comptroller's determination that the corporate | ||||||
7 | surety company no longer is
sufficient security.
| ||||||
8 | All performance bonds issued pursuant to this Section must | ||||||
9 | be irrevocable
during the statutory term for completing | ||||||
10 | construction specified in Section
19 of this Act, unless | ||||||
11 | terminated sooner by the completion of construction.
| ||||||
12 | (f) Whenever any pre-need contract shall be entered into | ||||||
13 | and include 1)
items of cemetery merchandise and cemetery | ||||||
14 | services, and 2) rights to
interment, inurnment or entombment | ||||||
15 | in completed spaces without allocation
of the gross sale price | ||||||
16 | among the items sold, the application of payments
received | ||||||
17 | under the contract shall be allocated, first to the right to
| ||||||
18 | interment, inurnment or entombment, second to items of cemetery | ||||||
19 | merchandise
and cemetery services, unless some other | ||||||
20 | allocation is clearly provided
in the contract.
| ||||||
21 | (g) Any person engaging in pre-need sales who enters into a | ||||||
22 | combination
sale which involves the sale of items covered by a | ||||||
23 | trust or performance
bond requirement and any item not covered | ||||||
24 | by any entrustment or bond
requirement, shall be prohibited | ||||||
25 | from increasing the gross sales price of
those items not | ||||||
26 | requiring entrustment with the purpose of allocating a
lesser |
| |||||||
| |||||||
1 | gross sales price to items which require a trust deposit or a
| ||||||
2 | performance bond.
| ||||||
3 | (Source: P.A. 96-879, eff. 2-2-10.)
| ||||||
4 | (815 ILCS 390/16) (from Ch. 21, par. 216)
| ||||||
5 | Sec. 16. Trust funds; disbursements.
| ||||||
6 | (a) A trustee shall make no disbursements from the trust | ||||||
7 | fund
except as provided in this Act.
| ||||||
8 | (b) A trustee has a duty to invest and manage the trust | ||||||
9 | assets pursuant to the Prudent Investor Rule under the Trusts | ||||||
10 | and Trustees Act. Whenever the seller changes trustees pursuant | ||||||
11 | to this Act, the trustee must provide written notice of the | ||||||
12 | change in trustees to the Department Comptroller no less than | ||||||
13 | 28 days prior to the effective date of such a change in | ||||||
14 | trustee. The trustee has an ongoing duty to provide the | ||||||
15 | Department Comptroller with a current and true copy of the | ||||||
16 | trust agreement under which the trust funds are held pursuant | ||||||
17 | to this Act.
| ||||||
18 | (c) The trustee may rely upon certifications and affidavits | ||||||
19 | made to it
under the provisions of this Act, and shall not be | ||||||
20 | liable to any person
for such reliance.
| ||||||
21 | (d) A trustee shall be allowed to withdraw from the trust | ||||||
22 | funds maintained
pursuant to this Act a reasonable fee pursuant | ||||||
23 | to the Trusts and Trustees Act.
| ||||||
24 | (e) The trust shall be a single-purpose trust fund. In the | ||||||
25 | event of the
seller's bankruptcy, insolvency or assignment for |
| |||||||
| |||||||
1 | the
benefit of creditors,
or an adverse judgment, the trust | ||||||
2 | funds shall not be available to any creditor
as assets of the | ||||||
3 | seller or to pay any expenses of any
bankruptcy or similar
| ||||||
4 | proceeding, but shall be distributed to the purchasers or | ||||||
5 | managed for their
benefit by the trustee holding the funds.
| ||||||
6 | Except in an action by the Department Comptroller to revoke a | ||||||
7 | license issued pursuant
to this Act and for creation of a | ||||||
8 | receivership as provided in this Act, the
trust shall not be | ||||||
9 | subject to judgment, execution, garnishment, attachment,
or | ||||||
10 | other seizure by process in bankruptcy or otherwise, nor to | ||||||
11 | sale, pledge,
mortgage, or other alienation, and shall not be | ||||||
12 | assignable except as
approved by the Department Comptroller . | ||||||
13 | The changes made by this amendatory Act of
the 91st General | ||||||
14 | Assembly are intended to clarify existing law regarding the
| ||||||
15 | inability of licensees to pledge the trust.
| ||||||
16 | (f) Because it is not known at the time of deposit or at | ||||||
17 | the time that
income is earned on the trust account to whom the | ||||||
18 | principal and the accumulated
earnings will be distributed, for | ||||||
19 | purposes of determining the Illinois Income
Tax due on these | ||||||
20 | trust funds, the principal and any accrued earnings or
losses | ||||||
21 | relating to each individual account shall be held in suspense | ||||||
22 | until
the final determination is made as to whom the account | ||||||
23 | shall be paid.
| ||||||
24 | (g) A trustee shall at least annually furnish to each | ||||||
25 | purchaser a statement identifying: (1) the receipts, | ||||||
26 | disbursements, and inventory of the trust, including an |
| |||||||
| |||||||
1 | explanation of any fees or expenses charged by the trustee | ||||||
2 | under paragraph (d) of this Section or otherwise, (2) an | ||||||
3 | explanation of the purchaser's right to a refund, if any, under | ||||||
4 | this Act, and (3) the primary regulator of the trust as a | ||||||
5 | corporate fiduciary under state or federal law. | ||||||
6 | (Source: P.A. 96-879, eff. 2-2-10.)
| ||||||
7 | (815 ILCS 390/18) (from Ch. 21, par. 218)
| ||||||
8 | Sec. 18.
(a) If for any reason a seller who has engaged in | ||||||
9 | pre-need
sales has refused, cannot or does not comply with the | ||||||
10 | terms of the pre-need
sales contract within a reasonable time | ||||||
11 | after he is required to do so, the
purchaser or his heirs or | ||||||
12 | assigns or duly authorized representative shall
have the right | ||||||
13 | to a refund of an amount equal to the sales price paid for
| ||||||
14 | undelivered merchandise, services or spaces plus undistributed | ||||||
15 | interest
amounts held in trust attributable to such contract, | ||||||
16 | within 30 days of the
filing of a sworn affidavit with the | ||||||
17 | trustee setting forth the existence of
the contract and the | ||||||
18 | fact of breach. A copy of this affidavit shall be
filed with | ||||||
19 | the Department Comptroller and the seller. In the event a | ||||||
20 | seller is
prevented from performing by strike, shortage of | ||||||
21 | materials, civil disorder,
natural disaster or any like | ||||||
22 | occurrence beyond the control of the seller,
the seller's time | ||||||
23 | for performance shall be extended by the length of such
delay. | ||||||
24 | Nothing in this Section shall relieve the seller from any | ||||||
25 | liability
for non-performance of his obligations under the |
| |||||||
| |||||||
1 | pre-need sales contract.
| ||||||
2 | (b) If the purchaser defaults in making payments, the | ||||||
3 | seller shall have
the right to cancel the contract and withdraw | ||||||
4 | from the trust fund the
entire balance to the credit of the | ||||||
5 | defaulting purchaser's account as
liquidating damages. In such | ||||||
6 | event, the trustee shall deliver said balance
to the seller | ||||||
7 | upon its certification, and upon receiving said certification | ||||||
8 | the
trustee may rely thereon and shall not be liable to anyone | ||||||
9 | for such reliance.
| ||||||
10 | (c) After final payment on a pre-need contract, any | ||||||
11 | beneficiary may upon
written demand of a seller, demand that | ||||||
12 | the pre-need contract with such
seller be terminated. The | ||||||
13 | seller shall, within 30 days, initiate a refund
to such | ||||||
14 | purchaser or beneficiary of the entire amount held in trust
| ||||||
15 | attributable to undelivered cemetery merchandise and | ||||||
16 | unperformed cemetery
services, including undistributed | ||||||
17 | interest earned thereon. Where more than
one beneficiary is | ||||||
18 | included in a pre-need contract, a seller need not honor
a | ||||||
19 | demand for cancellation under this paragraph unless all | ||||||
20 | beneficiaries
assent and their signatures are included in | ||||||
21 | written demand for refund.
| ||||||
22 | (Source: P.A. 85-805.)
| ||||||
23 | (815 ILCS 390/19) (from Ch. 21, par. 219)
| ||||||
24 | Sec. 19. Construction or development of spaces.
| ||||||
25 | (a) The construction or development of undeveloped
|
| |||||||
| |||||||
1 | interment, entombment or inurnment spaces shall be commenced on | ||||||
2 | that phase,
section or sections of undeveloped ground or | ||||||
3 | section of lawn crypts,
mausoleums, garden crypts, | ||||||
4 | columbariums or cemetery spaces in which sales
are made within | ||||||
5 | 3 years of the date of the first such sale.
The
seller
shall | ||||||
6 | give written notice to the Department Comptroller no later than | ||||||
7 | 30 days after
the first sale. Such notice shall include a | ||||||
8 | description of the project.
Once commenced, construction or | ||||||
9 | development shall be pursued diligently to
completion. The | ||||||
10 | construction must be completed within 6 years of the first
| ||||||
11 | sale. If construction or development is not commenced or | ||||||
12 | completed
within the times specified herein,
any purchaser may | ||||||
13 | surrender and cancel the contract and upon cancellation
shall | ||||||
14 | be entitled to a refund of the actual amounts paid toward the | ||||||
15 | purchase
price plus interest attributable to such amount earned | ||||||
16 | while in trust; provided
however that any delay caused by | ||||||
17 | strike, shortage of materials, civil disorder,
natural | ||||||
18 | disaster or any like occurrence beyond the control of the | ||||||
19 | seller
shall extend the time of such commencement and | ||||||
20 | completion by the length of
such delay.
| ||||||
21 | (b) At any time within 12 months of a purchaser's entering | ||||||
22 | into a pre-need
contract for undeveloped interment, entombment | ||||||
23 | or inurnment spaces, a
purchaser
may surrender and cancel his | ||||||
24 | or her contract and upon cancellation shall be
entitled
to a | ||||||
25 | refund of
the actual amounts paid toward the purchase
price | ||||||
26 | plus interest
attributable to such amount earned while in |
| |||||||
| |||||||
1 | trust. Notwithstanding the
foregoing, the cancellation and | ||||||
2 | refund rights specified in this paragraph shall
terminate as of | ||||||
3 | the date the seller commences construction or
development of
| ||||||
4 | the phase, section or sections of undeveloped spaces in which | ||||||
5 | sales are
made.
After the rights of cancellation and refund | ||||||
6 | specified herein have terminated,
if a purchaser defaults in | ||||||
7 | making payments under the pre-need contract, the
seller shall | ||||||
8 | have the right to cancel the contract and
withdraw from the | ||||||
9 | trust
fund the entire balance to the credit of the defaulting | ||||||
10 | purchaser's
account as liquidated damages. In such event, the | ||||||
11 | trustee shall
deliver
said balance to the seller upon its | ||||||
12 | certification,
and upon
receiving said
certification the | ||||||
13 | trustee may rely thereon and shall not be liable to
anyone for | ||||||
14 | such reliance.
| ||||||
15 | (c) During the construction or development of interment, | ||||||
16 | entombment or
inurnment spaces, upon the sworn certification by | ||||||
17 | the seller
and the
contractor to the trustee the trustee shall | ||||||
18 | disburse from the trust fund
the amount equivalent to the cost | ||||||
19 | of performed labor or delivered materials
as certified. Said | ||||||
20 | certification shall be substantially in the following
form:
| ||||||
21 | We, the undersigned, being respectively the Seller and
| ||||||
22 | Contractor, do
hereby certify that the Contractor has performed | ||||||
23 | labor or delivered materials
or both to (address of property) | ||||||
24 | .........., in connection with
a contract to .........., and | ||||||
25 | that as of this date the value of the labor
performed and | ||||||
26 | materials delivered is $.......
|
| |||||||
| |||||||
1 | We do further certify that in connection with such contract | ||||||
2 | there remains
labor to be performed, and materials to be | ||||||
3 | delivered, of the value of $........
| ||||||
4 | This Certificate is signed (insert date).
| ||||||
5 | ............ ............
| ||||||
6 | Seller Contractor
| ||||||
7 | A person who executes and delivers a completion certificate | ||||||
8 | with actual
knowledge of a falsity contained therein shall be | ||||||
9 | considered in violation of
this Act and subject to the | ||||||
10 | penalties contained herein.
| ||||||
11 | (d) Except as otherwise authorized by this Section, every
| ||||||
12 | seller of
undeveloped spaces shall provide facilities for | ||||||
13 | temporary interment,
entombment or inurnment for purchasers or | ||||||
14 | beneficiaries of contracts who
die prior to completion of the | ||||||
15 | space. Such temporary facilities shall be
constructed of | ||||||
16 | permanent materials, and, insofar as practical, be
landscaped | ||||||
17 | and groomed to the extent customary in the cemetery industry in
| ||||||
18 | that community. The heirs, assigns, or personal representative | ||||||
19 | of a
purchaser or beneficiary shall not be required to accept | ||||||
20 | temporary
underground interment spaces where the undeveloped | ||||||
21 | space contracted for was
an above ground entombment or | ||||||
22 | inurnment space. In the event that temporary
facilities as | ||||||
23 | described in this paragraph
are not made available, upon the | ||||||
24 | death of a purchaser or beneficiary, the
heirs, assigns, or | ||||||
25 | personal representative is entitled to a refund of the
entire |
| |||||||
| |||||||
1 | sales price paid plus undistributed interest attributable to | ||||||
2 | such
amount while in trust.
| ||||||
3 | (e) If the seller delivers a completed space acceptable to
| ||||||
4 | the heirs,
assigns or personal representative of a purchaser or | ||||||
5 | beneficiary, other
than the temporary facilities specified | ||||||
6 | herein, in lieu of the undeveloped
space purchased, the seller | ||||||
7 | shall provide the trustee with a
delivery
certificate and all | ||||||
8 | sums deposited under the pre-need sales contract,
including the | ||||||
9 | undistributed income, shall be paid 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 ownership | ||||||
13 | to the completed
interment, entombment, or inurnment space to
| ||||||
14 | all of the purchasers entitled to receive those ownership | ||||||
15 | documents, the
trust fund
requirements set forth herein shall | ||||||
16 | terminate and all
funds held in the
preconstruction trust fund | ||||||
17 | attributable to the completed phase, section or
sections, | ||||||
18 | including interest accrued thereon, shall be returned to the
| ||||||
19 | seller.
| ||||||
20 | (g) This Section shall not apply to the sale of undeveloped | ||||||
21 | spaces if
there has been any such sale in the same phase, | ||||||
22 | section or sections of the
project prior to the effective date | ||||||
23 | of this Act.
| ||||||
24 | (Source: P.A. 91-357, eff. 7-29-99; 92-419, eff. 1-1-02.)
| ||||||
25 | (815 ILCS 390/20) (from Ch. 21, par. 220)
|
| |||||||
| |||||||
1 | Sec. 20. Records.
| ||||||
2 | (a) Each licensee must keep accurate accounts, books and
| ||||||
3 | records in this State
at the principal place of business | ||||||
4 | identified in the
licensee's license application or as | ||||||
5 | otherwise approved by
the Department Comptroller in writing
of | ||||||
6 | all transactions, copies of agreements, dates and
amounts of | ||||||
7 | payments made or received, the names and addresses of the
| ||||||
8 | contracting parties, the names and addresses of persons for | ||||||
9 | whose benefit
funds are received, if known, and the names of | ||||||
10 | the trust depositories.
Additionally, for a period not to | ||||||
11 | exceed 6 months after
the performance of all terms in a | ||||||
12 | pre-need sales contract,
the licensee shall maintain copies of | ||||||
13 | each pre-need
contract at the licensee branch location where | ||||||
14 | the contract
was entered or at some other location agreed to by | ||||||
15 | the Department Comptroller in
writing.
| ||||||
16 | (b) Each licensee must maintain such records for a period | ||||||
17 | of 3
years
after the licensee shall have fulfilled his or her | ||||||
18 | obligation
under the pre-need
contract or 3 years after any | ||||||
19 | stored merchandise shall have been provided
to the purchaser or | ||||||
20 | beneficiary, whichever is later.
| ||||||
21 | (c) Each licensee shall submit reports to the Department | ||||||
22 | Comptroller
annually,
under oath, on forms furnished by the | ||||||
23 | Department Comptroller . The annual report
shall
contain, but | ||||||
24 | shall not be limited to, the following:
| ||||||
25 | (1) An accounting of the principal deposit and | ||||||
26 | additions of principal
during the fiscal year.
|
| |||||||
| |||||||
1 | (2) An accounting of any withdrawal of principal or | ||||||
2 | earnings.
| ||||||
3 | (3) An accounting at the end of each fiscal year, of | ||||||
4 | the total amount of
principal and earnings held.
| ||||||
5 | (d) The annual report shall be filed by the licensee with | ||||||
6 | the Department
Comptroller within 75 days after the end of the | ||||||
7 | licensee's fiscal year. An
extension of up to 60 days may be | ||||||
8 | granted by the Department Comptroller , upon a
showing of need | ||||||
9 | by the licensee. Any other reports shall be in
the form
| ||||||
10 | furnished or specified by the Department Comptroller . If a | ||||||
11 | licensee fails to submit an
annual report to the Department | ||||||
12 | Comptroller within the time specified in this Section, the | ||||||
13 | Department
Comptroller shall impose upon the licensee a penalty | ||||||
14 | of $5 for
each and every
day the licensee remains delinquent in | ||||||
15 | submitting the annual report. The Department
Comptroller may | ||||||
16 | abate all or part of the $5 daily penalty for good cause
shown. | ||||||
17 | Each
report shall be accompanied by a check or money order in | ||||||
18 | the
amount of $10
payable to: the Illinois Department of | ||||||
19 | Financial and Professional Regulation Comptroller, State of | ||||||
20 | Illinois .
| ||||||
21 | (e) On and after the effective date of this amendatory Act | ||||||
22 | of the 91st
General Assembly, a licensee may
report all | ||||||
23 | required information concerning the sale of outer burial | ||||||
24 | containers
on the licensee's annual report required to be filed | ||||||
25 | under this Act and
shall
not be required to report that | ||||||
26 | information under the Illinois Funeral or
Burial
Funds Act, as |
| ||||||||||
| ||||||||||
1 | long as the information is reported under this Act.
| |||||||||
2 | (Source: P.A. 91-7, eff. 1-1-00; 92-419, eff. 1-1-02.)
| |||||||||
3 | (815 ILCS 390/21) (from Ch. 21, par. 221)
| |||||||||
4 | Sec. 21. Audits.
| |||||||||
5 | (a) The Department Comptroller may audit the records of any | |||||||||
6 | licensee with
respect to the trust funds created or | |||||||||
7 | pre-construction performance bonds
obtained pursuant to this | |||||||||
8 | Act as they pertain to the deposits to and
withdrawals from the | |||||||||
9 | trust fund and the maintenance of the required bond,
at | |||||||||
10 | reasonable times no more than annually unless there is | |||||||||
11 | reasonable cause
to suspect a deficiency. For that purpose, the | |||||||||
12 | Department Comptroller shall have free
access to the office and | |||||||||
13 | places of business of all licensees and all
trustees or | |||||||||
14 | depositories as it relates to the deposit, withdrawal and
| |||||||||
15 | investment of funds. The fee for
an initial audit shall be | |||||||||
16 | borne by the licensee
if it has $10,000 or more in trust funds; | |||||||||
17 | otherwise, by the Department Comptroller .
The fee charged by | |||||||||
18 | the Department Comptroller for such audit shall be paid by the
| |||||||||
19 | licensee and shall be based upon the total amount of pre-need | |||||||||
20 | sales made by
the licensee pursuant to this Act as of the end | |||||||||
21 | of the calendar or fiscal
year for which an annual report is | |||||||||
22 | required and shall be in accordance with
the following | |||||||||
23 | schedule:
| |||||||||
|
| ||||||||||||||
| ||||||||||||||
| ||||||||||||||
4 | (b) The Department Comptroller may order additional audits | |||||||||||||
5 | or examinations as he or
she
may deem necessary or advisable to | |||||||||||||
6 | ensure the safety and stability of the trust
funds and to | |||||||||||||
7 | ensure compliance with this Act. These additional audits or
| |||||||||||||
8 | examinations shall only be made after good cause is established | |||||||||||||
9 | by the Department
Comptroller in the written order. The grounds | |||||||||||||
10 | for ordering these additional
audits or examinations may | |||||||||||||
11 | include, but shall not be limited to:
| |||||||||||||
12 | (1) material and unverified changes or fluctuations in | |||||||||||||
13 | trust balances;
| |||||||||||||
14 | (2) the licensee changing trustees more than twice in | |||||||||||||
15 | any 12-month
period;
| |||||||||||||
16 | (3) any withdrawals or attempted withdrawals from the | |||||||||||||
17 | trusts in violation
of this Act; or
| |||||||||||||
18 | (4) failure to maintain or produce documentation | |||||||||||||
19 | required by this Act for
deposits into trust accounts or | |||||||||||||
20 | trust investment activities.
| |||||||||||||
21 | Prior to ordering an additional audit or examination, the | |||||||||||||
22 | Department Comptroller shall
request the licensee to respond | |||||||||||||
23 | and comment upon the factors identified by the Department
| |||||||||||||
24 | Comptroller as warranting the subsequent examination or audit. | |||||||||||||
25 | The licensee
shall have 30 days to provide a response to the | |||||||||||||
26 | Department Comptroller . If the Department
Comptroller decides |
| |||||||
| |||||||
1 | to proceed with the additional examination or audit, the
| ||||||
2 | licensee shall bear the full cost of that examination or audit | ||||||
3 | up to a maximum
of $7,500. The Department
Comptroller may elect | ||||||
4 | to pay for the examination or audit and receive
reimbursement | ||||||
5 | from the licensee. Payment of the costs of the examination or
| ||||||
6 | audit by a licensee shall be a condition of receiving or | ||||||
7 | maintaining a license
under this Act. All moneys received by | ||||||
8 | the Department Comptroller for examination or
audit fees shall | ||||||
9 | be maintained in a separate account to be known as the | ||||||
10 | Department's
Comptroller's Administrative
Fund. This
Fund, | ||||||
11 | subject to appropriation by the General Assembly, may
be | ||||||
12 | utilized by the Department Comptroller for
enforcing this Act | ||||||
13 | and other purposes that may be authorized by law.
| ||||||
14 | (Source: P.A. 88-477; 89-615, eff. 8-9-96.)
| ||||||
15 | (815 ILCS 390/23) (from Ch. 21, par. 223)
| ||||||
16 | Sec. 23.
(a) Any person who fails to deposit the required | ||||||
17 | amount into a
trust provided for in this Act, improperly | ||||||
18 | withdraws or uses trust funds for
his
or her own benefit, or | ||||||
19 | otherwise violates any provision of this
Act is
guilty of a | ||||||
20 | Class 4 felony.
| ||||||
21 | (b) If any person violates this Act or fails or refuses to | ||||||
22 | comply with
any order of the Department Comptroller or any part | ||||||
23 | thereof which to such person has
become final and is still in | ||||||
24 | effect, the Department Comptroller may, after notice and
| ||||||
25 | hearing at which it is determined that a violation of this Act |
| |||||||
| |||||||
1 | or such order
has been committed, further order that such | ||||||
2 | person shall forfeit and pay to the
State of Illinois a sum not | ||||||
3 | to exceed $5,000 for each violation. Such
liability shall be | ||||||
4 | enforced in an action brought in any court of competent
| ||||||
5 | jurisdiction by the Department Comptroller in the name of the | ||||||
6 | people of the State of
Illinois.
| ||||||
7 | (c) Whenever a license is revoked by the Department | ||||||
8 | Comptroller , or the Department Comptroller
determines that any | ||||||
9 | person is engaged in pre-need sales without a license,
he shall | ||||||
10 | apply to the circuit court of the county where such person is
| ||||||
11 | located for a receiver to administer the business of such | ||||||
12 | person.
| ||||||
13 | (d) Whenever a licensee fails or refuses to make a required | ||||||
14 | report or
whenever it appears to the Department Comptroller | ||||||
15 | from any report or examination that
such licensee has committed | ||||||
16 | a violation of law or that the trust funds have
not been | ||||||
17 | administered properly or that it is unsafe or inexpedient for | ||||||
18 | such
licensee or the trustee of the trust funds of such | ||||||
19 | licensee to continue to
administer such funds or that any | ||||||
20 | officer of such licensee or of the trustee
of the trust funds | ||||||
21 | of such licensee has abused his trust or has been guilty
of | ||||||
22 | misconduct or breach of trust in his official position | ||||||
23 | injurious to such
licensee or that such licensee has suffered | ||||||
24 | as to its trust funds a serious
loss by larceny, embezzlement, | ||||||
25 | burglary, repudiation or otherwise, the Department
Comptroller | ||||||
26 | shall, by order, direct the discontinuance of such illegal,
|
| |||||||
| |||||||
1 | unsafe or unauthorized practices and shall direct strict | ||||||
2 | conformity with the
requirements of the law and safety and | ||||||
3 | security in its transactions and may
apply to the circuit court | ||||||
4 | of the county where such licensee is located to
prevent any | ||||||
5 | disbursements or expenditures by such licensee until the trust
| ||||||
6 | funds are in such condition that it would not be jeopardized | ||||||
7 | thereby and
the Department Comptroller shall communicate the | ||||||
8 | facts to the Attorney General of the
State of Illinois who | ||||||
9 | shall thereupon institute such proceedings against the
| ||||||
10 | licensee or its trustee or the officers of either or both as | ||||||
11 | the nature of
the case may require.
| ||||||
12 | (e) In addition to the other penalties and remedies | ||||||
13 | provided in this
Act, the Department Comptroller may bring a | ||||||
14 | civil action in the county of residence of
the licensee or any | ||||||
15 | person engaging in pre-need sales, to enjoin any
violation or | ||||||
16 | threatened violation of this Act.
| ||||||
17 | (f) The powers vested in the Department Comptroller by this | ||||||
18 | Section are additional
to any and all other powers and remedies | ||||||
19 | vested in the Department Comptroller by law,
and nothing herein | ||||||
20 | contained shall be construed as requiring that the Department
| ||||||
21 | Comptroller shall employ the powers conferred herein instead of | ||||||
22 | or as a
condition precedent to the exercise of any other power | ||||||
23 | or remedy vested in
the Department Comptroller .
| ||||||
24 | (Source: P.A. 92-419, eff. 1-1-02.)
| ||||||
25 | (815 ILCS 390/24) (from Ch. 21, par. 224)
|
| |||||||
| |||||||
1 | Sec. 24.
The Department Comptroller may adopt, amend or | ||||||
2 | repeal such rules, not
inconsistent with the law, as may be | ||||||
3 | necessary to enable him to administer
and enforce the | ||||||
4 | provisions of this Act. All such action shall be taken
| ||||||
5 | according to the provisions of "The Illinois Administrative | ||||||
6 | Procedure Act",
approved September 22, 1975, as amended.
| ||||||
7 | (Source: P.A. 84-239.)
| ||||||
8 | (815 ILCS 390/27) (from Ch. 21, par. 227)
| ||||||
9 | Sec. 27.
(a) The provisions of this Act shall not apply to | ||||||
10 | any pre-need
sale that was executed prior to the effective date | ||||||
11 | of this Act. Any seller,
with the written approval of the | ||||||
12 | purchaser, shall have the option to become
subject to this Act | ||||||
13 | on any pre-need sales made prior to the effective date
of this | ||||||
14 | Act by giving written notice to its purchasers and to the | ||||||
15 | Department Comptroller .
| ||||||
16 | (b) The provisions of this Act shall not apply to the | ||||||
17 | isolated or
occasional sale by a consumer to another consumer | ||||||
18 | of cemetery merchandise,
cemetery services or undeveloped | ||||||
19 | spaces by an individual who does not
hold himself out as being | ||||||
20 | engaged in, or who does not engage in, making
pre-need sales.
| ||||||
21 | (Source: P.A. 85-805.)
| ||||||
22 | (815 ILCS 390/27.1)
| ||||||
23 | Sec. 27.1. Sales; liability of purchaser for shortage. In | ||||||
24 | the event of a sale or transfer of all or
substantially all of |
| |||||||
| |||||||
1 | the assets of the licensee, the sale
or transfer of the | ||||||
2 | controlling interest of the corporate
stock of the licensee if | ||||||
3 | the licensee is a corporation, the
sale or transfer of the | ||||||
4 | controlling interest of the partnership if
the licensee is a | ||||||
5 | partnership, or sale pursuant to
foreclosure proceedings, the | ||||||
6 | purchaser is liable for any
shortages existing before or after | ||||||
7 | the sale in the trust
funds required to be maintained in a | ||||||
8 | trust under this Act
and shall honor all pre-need contracts and | ||||||
9 | trusts entered
into by the licensee. Any shortages existing in | ||||||
10 | the trust
funds constitute a prior lien in favor of the trust | ||||||
11 | for the
total value of the shortages, and notice of that lien | ||||||
12 | must
be provided in all sales instruments.
| ||||||
13 | In the event of a sale or transfer of all or
substantially | ||||||
14 | all of the assets of the licensee, the sale
or transfer of the | ||||||
15 | controlling interest of the corporate
stock of the licensee if | ||||||
16 | the licensee is a corporation, or
the sale or transfer of the | ||||||
17 | controlling interest of the partnership
if the licensee is a | ||||||
18 | partnership, the licensee shall, at
least 21 days prior to the | ||||||
19 | sale or transfer, notify the Department
Comptroller , in | ||||||
20 | writing, of the pending date of sale or
transfer so as to | ||||||
21 | permit the Department Comptroller to audit the books
and | ||||||
22 | records of the licensee. The audit must be commenced
within 10 | ||||||
23 | business days after the receipt of the notification
and | ||||||
24 | completed within the 21-day notification period unless
the | ||||||
25 | Department Comptroller notifies the licensee during that | ||||||
26 | period
that there is a basis for determining a deficiency which
|
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
1 | will require additional time to finalize. The sale or
transfer | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
2 | may not be completed by the licensee unless and
until:
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
3 | (i) the Department Comptroller has completed the audit | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
4 | of the
licensee's books and records;
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
5 | (ii) any delinquency existing
in the trust funds has | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
6 | been paid by the licensee, or
arrangements satisfactory to | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
7 | the Department Comptroller have been made
by the licensee | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
8 | on the sale or transfer for the payment of
any delinquency;
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
9 | (iii) the Department Comptroller issues a license
upon | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
10 | application of the new owner, which license must be
applied | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
11 | for within 30 days after the anticipated date of the
sale | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
12 | or transfer, subject to the payment of any
delinquencies, | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
13 | if any, as stated in item (ii).
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
14 | For purposes of this Section, a person, firm,
corporation, | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
15 | partnership, or institution that acquires the
licensee through | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
16 | a real estate foreclosure is subject
to the provisions of this | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
17 | Section.
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
18 | (Source: P.A. 92-419, eff. 1-1-02.)
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
19 | Section 99. Effective date. This Act takes effect upon | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
20 | becoming law.
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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