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Public Act 92-0419
HB2283 Enrolled LRB9201944LDprA
AN ACT in relation to cemeteries.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Grave and Cemetery Restoration Act is
amended by changing Section 1 as follows:
(55 ILCS 70/1) (from Ch. 21, par. 61)
Sec. 1. Care by county.
(a) The county board of any county may appropriate funds
from the county treasury to be used for the purpose of
putting any old, neglected graves and cemeteries in the
county in a cleaner and more respectable condition.
(b) A county that has within its territory an abandoned
cemetery may enter the cemetery grounds and cause the grounds
to be cleared and made orderly. Provided, in no event shall a
county enter an abandoned cemetery under this subsection if
the owner of the property or the legally responsible cemetery
authority provides written notification to the county, prior
to the county's entry (1) demonstrating the ownership or
authority to control or manage the cemetery and (2) declining
the county authorization to enter the property. In making a
cemetery orderly under this Section, the county may take
necessary measures to correct dangerous conditions that exist
in regard to markers, memorials, or other cemetery artifacts
but may not permanently remove those items from their
location on the cemetery grounds. If an abandoned cemetery
is dedicated as an Illinois nature preserve under the
Illinois Natural Areas Preservation Act, any actions to cause
the grounds to be cleared and kept orderly shall be
consistent with the rules and master plan governing the
dedicated nature preserve.
(c) For the purposes of this Section:
"Abandoned cemetery" means an area of land containing
more than 6 places of interment for which, after diligent
search, no owner of the land or currently functioning
cemetery authority objects to entry sought pursuant to this
Section, and (1) at which no interments have taken place in
at least 3 years; or (2) for which there has been inadequate
maintenance for at least 6 months.
"Diligent search" includes, but is not limited to,
publication of a notice in a newspaper of local circulation
not more than 45 but at least 30 days prior to a county's
entry and cleanup of cemetery grounds. The notice shall
provide (1) notice of the county's intended entry and cleanup
of the cemetery; (2) the name, if known, and geographic
location of the cemetery; (3) the right of the cemetery
authority or owner of the property to deny entry to the
county upon written notice to the county; and (4) the date or
dates of the intended cleanup.
"Inadequate maintenance" includes, but is not limited to,
the failure to cut the lawn throughout a cemetery to prevent
an overgrowth of grass and weeds; the failure to trim shrubs
to prevent excessive overgrowth; the failure to trim trees so
as to remove dead limbs; the failure to keep in repair the
drains, water lines, roads, buildings, fences, and other
structures of the cemetery premises; or the failure to keep
the cemetery premises free of trash and debris.
(Source: P.A. 86-696.)
Section 10. The Township Code is amended by changing
Section 130-5 as follows:
(60 ILCS 1/130-5)
Sec. 130-5. Cemeteries; permitted activities.
(a) A township may establish and maintain cemeteries
within and without its territory, may acquire lands for
cemeteries by condemnation or otherwise, may lay out lots of
convenient size for families, and may sell lots for a family
burying ground or to individuals for burial purposes.
Associations duly incorporated under the laws of this State
for cemetery purposes shall have the same power and authority
to purchase lands and sell lots for burial purposes as are
conferred upon townships under this Article.
(b) A township that has within its territory an
abandoned cemetery may enter the cemetery grounds and cause
the grounds to be cleared and made orderly. Provided, in no
event shall a township enter an abandoned cemetery under this
subsection if the owner of the property or the legally
responsible cemetery authority provides written notification
to the township, prior to the township's entry (1)
demonstrating the ownership or authority to control or manage
the cemetery and (2) declining the township authorization to
enter the property. In making a cemetery orderly under this
Section, the township may take necessary measures to correct
dangerous conditions that exist in regard to markers,
memorials, or other cemetery artifacts but may not
permanently remove those items from their location on the
cemetery grounds. If an abandoned cemetery is dedicated as
an Illinois nature preserve under the Illinois Natural Areas
Preservation Act, any actions to cause the grounds to be
cleared and kept orderly shall be consistent with the rules
and master plan governing the dedicated nature preserve.
(c) In this Section:
"Abandoned cemetery" means an area of land containing
more than 6 places of interment for which, after diligent
search, no owner of the land or currently functioning
cemetery authority objects to entry sought pursuant to this
Section, and (1) at which no interments have taken place in
at least 3 years; or (2) for which there has been inadequate
maintenance for at least 6 months.
"Diligent search" includes, but is not limited to,
publication of a notice in a newspaper of local circulation
not more than 45 but at least 30 days prior to a township's
entry and cleanup of cemetery grounds. The notice shall
provide (1) notice of the township's intended entry and
cleanup of the cemetery; (2) the name, if known, and
geographic location of the cemetery; (3) the right of the
cemetery authority or owner of the property to deny entry to
the township upon written notice to the township; and (4) the
date or dates of the intended cleanup.
"Inadequate maintenance" includes, but is not limited to,
the failure to cut the lawn throughout a cemetery to prevent
an overgrowth of grass and weeds; the failure to trim shrubs
to prevent excessive overgrowth; the failure to trim trees so
as to remove dead limbs; the failure to keep in repair the
drains, water lines, roads, buildings, fences, and other
structures of the cemetery premises; or the failure to keep
the cemetery premises free of trash and debris.
(Source: Laws 1963, p. 824; P.A. 88-62.)
Section 15. The Illinois Municipal Code is amended by
changing Section 11-49-1 as follows:
(65 ILCS 5/11-49-1) (from Ch. 24, par. 11-49-1)
Sec. 11-49-1. Cemeteries; permitted activities.
(a) The corporate authorities of each municipality may
establish and regulate cemeteries within or without the
municipal limits; may acquire lands therefor, by purchase or
otherwise; may cause cemeteries to be removed; and may
prohibit their establishment within one mile of the municipal
limits.
(b) The corporate authorities also may enter into
contracts to purchase existing cemeteries, or lands for
cemetery purposes, on deferred installments to be paid solely
from the proceeds of sale of cemetery lots. Every such
contract shall empower the purchasing municipality, in its
own name, to execute and deliver deeds to purchasers of
cemetery lots for burial purposes.
(c) The corporate authorities of each municipality that
has within its territory an abandoned cemetery may enter the
cemetery grounds and cause the grounds to be cleared and made
orderly. Provided, in no event shall the corporate
authorities of a municipality enter an abandoned cemetery
under this subsection if the owner of the property or the
legally responsible cemetery authority provides written
notification to the corporate authorities, prior to the
corporate authorities' entry (1) demonstrating the ownership
or authority to control or manage the cemetery and (2)
declining the corporate authority authorization to enter the
property. In making a cemetery orderly under this Section,
the corporate authorities of a municipality may take
necessary measures to correct dangerous conditions that exist
in regard to markers, memorials, or other cemetery artifacts
but may not permanently remove those items from their
location on the cemetery grounds. If an abandoned cemetery
is dedicated as an Illinois nature preserve under the
Illinois Natural Areas Preservation Act, any actions to cause
the grounds to be cleared and kept orderly shall be
consistent with the rules and master plan governing the
dedicated nature preserve.
(d) In this Section:
"Abandoned cemetery" means an area of land containing
more than 6 places of interment for which, after diligent
search, no owner of the land or currently functioning
cemetery authority objects to entry sought pursuant to this
Section, and (1) at which no interments have taken place in
at least 3 years; or (2) for which there has been inadequate
maintenance for at least 6 months.
"Diligent search" includes, but is not limited to,
publication of a notice in a newspaper of local circulation
not more than 45 but at least 30 days prior to entry and
cleanup of cemetery grounds by the corporate authorities of a
municipality. The notice shall provide (1) notice of the
corporate authorities' intended entry and cleanup of the
cemetery; (2) the name, if known, and geographic location of
the cemetery; (3) the right of the cemetery authority or
owner of the property to deny entry to the corporate
authorities upon written notice to those authorities; and (4)
the date or dates of the intended cleanup.
"Inadequate maintenance" includes, but is not limited to,
the failure to cut the lawn throughout a cemetery to prevent
an overgrowth of grass and weeds; the failure to trim shrubs
to prevent excessive overgrowth; the failure to trim trees so
as to remove dead limbs; the failure to keep in repair the
drains, water lines, roads, buildings, fences, and other
structures of the cemetery premises; or the failure to keep
the cemetery premises free of trash and debris.
(Source: Laws 1961, p. 576.)
Section 20. The Illinois Funeral or Burial Funds Act is
amended by changing Sections 1a, 1a-1, 2, 2a, 3, 3a, 3e, 3f,
4, 7.2, and 8 and by adding Sections 3a-5 and 8.1 as follows:
(225 ILCS 45/1a) (from Ch. 111 1/2, par. 73.101a)
Sec. 1a. For the purposes of this Act, the following
terms shall have the meanings specified, unless the context
clearly requires another meaning:
"Beneficiary" means the person specified in the pre-need
contract upon whose death funeral services or merchandise
shall be provided or delivered.
"Licensee" means a seller of a pre-need contract who has
been licensed by the Comptroller under this Act.
"Outer burial container" means any container made of
concrete, steel, wood, fiberglass or similar material, used
solely at the interment site, and designed and used
exclusively to surround or enclose a separate casket and to
support the earth above such casket, commonly known as a
burial vault, grave box or grave liner, but not including a
lawn crypt as defined in the Illinois Pre-need Cemetery Sales
Act.
"Parent company" means a corporation owning more than 12
cemeteries or funeral homes in more than one state.
"Person" means any person, partnership, association,
corporation, or other entity.
"Pre-need contract" means any agreement or contract, or
any series or combination of agreements or contracts, whether
funded by trust deposits or life insurance policies or
annuities, which has for a purpose the furnishing or
performance of funeral services or the furnishing or delivery
of any personal property, merchandise, or services of any
nature in connection with the final disposition of a dead
human body. Nothing in this Act is intended to regulate the
content of a life insurance policy or a tax-deferred annuity.
"Provider" means a person who is obligated for furnishing
or performing funeral services or the furnishing or delivery
of any personal property, merchandise, or services of any
nature in connection with the final disposition of a dead
human body.
"Purchaser" means the person who originally paid the
money under or in connection with a pre-need contract.
"Sales proceeds" means the entire amount paid to a
seller, exclusive of sales taxes paid by the seller, finance
charges paid by the purchaser, and credit life, accident or
disability insurance premiums, upon any agreement or
contract, or series or combination of agreements or
contracts, for the purpose of performing funeral services or
furnishing personal property, merchandise, or services of any
nature in connection with the final disposition of a dead
human body, including, but not limited to, the retail price
paid for such services and personal property and merchandise.
"Purchase price" means the sales proceeds less finance
charges on retail installment contracts.
"Seller" means the person who sells or offers to sell the
pre-need contract to a purchaser, whether funded by a trust
agreement, life insurance policy, or tax-deferred annuity.
"Trustee" means a person authorized to hold funds under
this Act.
(Source: P.A. 88-477.)
(225 ILCS 45/1a-1)
Sec. 1a-1. Pre-need contracts.
(a) It shall be unlawful for any seller doing business
within this State to accept sales proceeds from a purchaser,
either directly or indirectly by any means, unless the seller
enters into a pre-need contract with the purchaser which
meets the following requirements:
(1) It states the name and address of the principal
office of the seller and the parent company of the
seller, if any provider, or clearly discloses that the
provider will be selected by the purchaser or the
purchaser's survivor or legal representative at a later
date, except that no contract shall contain any provision
restricting the right of the contract purchaser during
his or her lifetime in making his or her own selection of
a provider.
(2) It clearly identifies the provider's seller's
name and address, the purchaser, and the beneficiary, if
other than the purchaser, and the provider, if different
than the seller or discloses that the provider will be
selected at a later date.
(2.5) If the provider has branch locations, the
contract gives the purchaser the opportunity to identify
the branch at which the funeral will be provided.
(3) It contains a complete description of the
funeral merchandise and services to be provided and the
price of the merchandise and services, and it clearly
discloses whether the price of the merchandise and
services is guaranteed or not guaranteed as to price.
(A) Each guaranteed price contract shall
contain the following statement in 12 point bold
type:
THIS CONTRACT GUARANTEES THE BENEFICIARY THE
SPECIFIC GOODS AND SERVICES CONTRACTED FOR. NO
ADDITIONAL CHARGES MAY BE REQUIRED. FOR DESIGNATED
GOODS AND SERVICES, ADDITIONAL CHARGES MAY BE
INCURRED FOR UNEXPECTED EXPENSES INCLUDING, BUT NOT
LIMITED TO, CASH ADVANCES, SHIPPING OF REMAINS FROM
A DISTANT PLACE, OR DESIGNATED HONORARIA ORDERED OR
DIRECTED BY SURVIVORS.
(B) Except as provided in subparagraph (C) of
this paragraph (3), each non-guaranteed price
contract shall contain the following statement in 12
point bold type:
THIS CONTRACT DOES NOT GUARANTEE THE PRICE THE
BENEFICIARY WILL PAY FOR ANY SPECIFIC GOODS OR
SERVICES. ANY FUNDS PAID UNDER THIS CONTRACT ARE
ONLY A DEPOSIT TO BE APPLIED TOWARD THE FINAL PRICE
OF THE GOODS OR SERVICES CONTRACTED FOR. ADDITIONAL
CHARGES MAY BE REQUIRED.
(C) If a non-guaranteed price contract may
subsequently become guaranteed, the contract shall
clearly disclose the nature of the guarantee and the
time, occurrence, or event upon which the contract
shall become a guaranteed price contract.
(4) It provides that if the particular supplies and
services specified in the pre-need contract are
unavailable at the time of delivery, the provider shall
be required to furnish supplies and services similar in
style and at least equal in quality of material and
workmanship.
(5) It discloses any penalties or restrictions,
including but not limited to geographic restrictions or
the inability of the provider, if selected, to perform,
on the delivery of merchandise, services, or pre-need
contract guarantees.
(6) Regardless of the method of funding the
pre-need contract, the following must be disclosed:
(A) Whether the pre-need contract is to be
funded by a trust, life insurance, or an annuity;
(B) The nature of the relationship among the
person entity funding the pre-need contract, the
provider, if selected, and the seller; and
(C) The impact on the pre-need contract of (i)
any changes in the funding arrangement including but
not limited to changes in the assignment,
beneficiary designation, or use of the funds; (ii)
any specific penalties to be incurred by the
contract purchaser as a result of failure to make
payments; (iii) penalties to be incurred or moneys
or refunds to be received as a result of
cancellations; and (iv) all relevant information
concerning what occurs and whether any entitlements
or obligations arise if there is a difference
between the proceeds of the particular funding
arrangement and the amount actually needed to pay
for the funeral at-need.; and
(D) The method of changing or selecting the
designation of the provider.
(b) All pre-need contracts are subject to the Federal
Trade Commission Rule concerning the Cooling-Off Period for
Door-to-Door Sales (16 CFR Part 429).
(c) No pre-need contract shall be sold in this State
unless there is a provider for the services and personal
property being sold, or unless disclosure has been made by
the seller as provided in subdivision (a)(1). If the seller
is not a provider and a provider has been selected, then the
seller must have a binding agreement with a provider, and the
identity of the provider and the nature of the agreement
between the seller and the provider shall be disclosed in the
pre-need contract at the time of the sale and before the
receipt of any sales proceeds. Any subsequent change made in
the identity of the provider shall be approved in writing by
the purchaser and beneficiary within 30 days after it occurs.
The failure to disclose the identity of the provider, the
nature of the agreement between the seller and the provider,
or any changes thereto to the purchaser and beneficiary, or
the failure to make the disclosures required in subdivision
(a)(1), constitutes an intentional violation of this Act.
(d) All pre-need contracts must be in writing in at
least 11 point type, numbered, and executed in duplicate and
no pre-need contract form shall be used without prior filing
with the Comptroller. A signed copy of the pre-need contract
must be provided to the purchaser at the time of entry into
the pre-need contract. The Comptroller shall review all
pre-need contract forms and shall prohibit the use of
contract forms which do not meet the requirements of this Act
upon written notification to the seller. Any use or
attempted use of any oral pre-need contract or any written
pre-need contract in a form not filed with the Comptroller or
in a form which does not meet the requirements of this Act
shall be deemed a violation of this Act. Life insurance
policies, tax-deferred annuities, endorsements, riders, or
applications for life insurance or tax-deferred annuities are
not subject to filing with the Comptroller. The Comptroller
may by rule develop a model pre-need contract form which
meets the requirements of this Act.
(e) The State Comptroller shall by rule develop a
booklet for consumers in plain English describing the scope,
application, and consumer protections of this Act. After the
adoption of these rules, no pre-need contract shall be sold
in this State unless (i) the seller distributes to the
purchaser prior to the sale a booklet promulgated or approved
for use by the State Comptroller; (ii) the seller explains to
the purchaser the terms of the pre-need contract prior to the
purchaser signing; and (iii) the purchaser initials a
statement in the contract confirming that the seller has
explained the terms of the contract prior to the purchaser
signing.
(f) All sales proceeds received in connection with a
pre-need contract shall be deposited into a trust account as
provided in Section 1b and Section 2 of this Act, or shall be
used to purchase a life insurance policy or tax-deferred
annuity as provided in Section 2a of this Act.
(g) No pre-need contract shall be sold in this State
unless it is accompanied by a funding mechanism permitted
under this Act, and unless the seller is licensed by the
Comptroller as provided in Section 3 of this Act. Nothing in
this Act is intended to relieve sellers of pre-need contracts
from being licensed under any other Act required for their
profession or business, and being subject to the rules
promulgated to regulate their profession or business,
including rules on solicitation and advertisement.
(Source: P.A. 90-47, eff. 1-1-98.)
(225 ILCS 45/2) (from Ch. 111 1/2, par. 73.102)
Sec. 2. (a) If a purchaser selects a trust arrangement
to fund the pre-need contract, all trust deposits as
determined by Section 1b shall be made within 30 days of
receipt.
(b) A trust established under this Act must be
maintained:
(1) in a trust account established in a bank,
savings and loan association, savings bank, or credit
union authorized to do business in Illinois in which
accounts are insured by an agency of the federal
government; or
(2) in a trust company authorized to do business in
Illinois.
(c) Trust agreements and amendments to the trust
agreements used to fund a pre-need contract shall be filed
with the Comptroller.
(d) (Blank). Trust agreements shall follow the format of
the standard Funeral Trust Agreements approved by the
Comptroller for guaranteed or non-guaranteed price funeral
plans.
(e) A seller or provider shall furnish to the trustee
and depositary the name of each payor and the amount of
payment on each such account for which deposit is being so
made. Nothing shall prevent the trustee or a seller or
provider acting as a trustee in accordance with this Act from
commingling the deposits in any such trust fund for purposes
of its management and the investment of its funds as provided
in the Common Trust Fund Act. In addition, multiple trust
funds maintained under this Act may be commingled or
commingled with other funeral or burial related trust funds
if all record keeping requirements imposed by law are met.
(f) Trust funds may be maintained in a financial
institution described in subsection (b) which is located in a
state adjoining this State where: (1) the financial
institution is located within 50 miles of the border of this
State, (2) its accounts are federally insured, and (3) it has
registered with the Illinois Secretary of State for purposes
of service of process.
(g) Upon notice to the Comptroller, the seller may
change the trustee of the fund.
(Source: P.A. 88-477.)
(225 ILCS 45/2a)
Sec. 2a. Purchase of insurance or annuity.
(a) If a purchaser selects the purchase of a life
insurance policy or tax-deferred annuity contract to fund the
pre-need contract, the application and collected premium
shall be mailed within 30 days of signing the pre-need
contract.
(b) If life insurance or an annuity is used to fund a
pre-need contract, the seller or provider shall not be named
as the owner or beneficiary of the policy or annuity. No
person whose only insurable interest in the insured is the
receipt of proceeds from the policy or in naming who shall
receive the proceeds nor any trust acting on behalf of such
person or seller or provider shall be named as owner or
beneficiary of the policy or annuity.
(c) Nothing shall prohibit the purchaser from
irrevocably assigning ownership of the policy or annuity used
to fund a guaranteed price pre-need contract to a person or
trust for the purpose of obtaining favorable consideration
for Medicaid, Supplemental Security Income, or another public
assistance program, as permitted under federal law. The
seller or contract provider may be named a nominal owner of
the life insurance policy only for such time as it takes to
immediately transfer the policy into a trust. Except for
this purpose, neither the seller nor the contract provider
shall be named the owner or the beneficiary of the policy or
annuity. , except that neither the seller nor the contract
provider shall be named the owner of the policy or annuity.
(d) If a life insurance policy or annuity contract is
used to fund a pre-need contract, except for guaranteed price
contracts permitted in Section 4(a) of this Act, the pre-need
contract must be revocable, and any the assignment provision
in the pre-need contract must contain the following
disclosure in 12 point bold type:
THIS ASSIGNMENT MAY BE REVOKED BY THE ASSIGNOR OR
ASSIGNOR'S SUCCESSOR OR, IF THE ASSIGNOR IS ALSO THE INSURED
AND DECEASED, BY THE REPRESENTATIVE OF THE INSURED'S ESTATE
BEFORE THE RENDERING TO THE CEMETERY SERVICES OR GOODS OR
FUNERAL SERVICES OR GOODS. IF THE ASSIGNMENT IS REVOKED, THE
DEATH BENEFIT UNDER THE LIFE INSURANCE POLICY OR ANNUITY
CONTRACT SHALL BE PAID IN ACCORDANCE WITH THE BENEFICIARY
DESIGNATION UNDER THE INSURANCE POLICY OR ANNUITY CONTRACT.
(e) Sales proceeds shall not be used to purchase life
insurance policies or tax-deferred annuities unless the
company issuing the life insurance policies or tax-deferred
annuities is licensed with the Illinois Department of
Insurance, and the insurance producer or annuity seller is
licensed to do business in the State of Illinois.
(Source: P.A. 88-477.)
(225 ILCS 45/3) (from Ch. 111 1/2, par. 73.103)
Sec. 3. Licensing.
(a) No person, firm, partnership, association or
corporation may act as seller without first securing from the
State Comptroller a license to so act. Application for such
license shall be in writing, signed by the applicant and duly
verified on forms furnished by the Comptroller. Each
application shall contain at least the following:
(1) The full name and address (both residence and
place of business) of the applicant, and every member,
officer and director thereof if the applicant is a firm,
partnership, association, or corporation, and of every
shareholder holding more than 10% of the corporate stock
if the applicant is a corporation. Any license issued
pursuant to the application shall be valid only at the
address stated in the application for such applicant or
at such new address as may be approved by the
Comptroller;
(2) A statement of the applicant's assets and
liabilities approximate net worth;
(3) The name and address of the applicant's
principal place of business at which the books, accounts,
and records shall be available for examination by the
Comptroller as required by this Act;
(4) The names and addresses of the applicant's
branch locations at which pre-need sales shall be
conducted and which shall operate under the same license
number as the applicant's principal place of business;
(5) For each individual listed under item (1) above,
a detailed statement of the individual's business
experience for the 10 years immediately preceding the
application; any present or prior connection between the
individual and any other person engaged in pre-need
sales; any felony or misdemeanor convictions for which
fraud was an essential element; any charges or complaints
lodged against the individual for which fraud was an
essential element and which resulted in civil or criminal
litigation; any failure of the individual to satisfy an
enforceable judgment entered against him based upon
fraud; and any other information requested by the
Comptroller relating to past business practices of the
individual. Since the information required by this item
(5) may be confidential or contain proprietary
information, this information shall not be available to
other licensees or the general public and shall be used
only for the lawful purposes of the Comptroller in
enforcing this Act;
(6) The name of the trustee and, if applicable, the
names of the advisors to the trustee, including a copy of
the proposed trust agreement under which the trust funds
are to be held as required by this Act; and
(7) Such other information as the Comptroller may
reasonably require in order to determine the
qualification of the applicant to be licensed under this
Act. and (3)
(b) Applications for license shall be accompanied by a
fidelity bond executed by the applicant and a surety company
authorized to do business in this State or an irrevocable,
unconditional letter of credit issued by a bank, credit
union, or trust company authorized to do business in the
State of Illinois, as approved by the State Comptroller, in
such amount not exceeding $10,000 as the Comptroller may
require. Individual salespersons employed by a licensee
shall not be required to obtain licenses in their individual
capacities. Upon receipt of such application and bond or
letter of credit the Comptroller shall issue a license unless
he or she shall determine that the applicant has made false
statements or representations in such application, or is
insolvent, or has conducted or is about to conduct his
business in a fraudulent manner, or is not duly authorized to
transact business in this State. Such license shall be kept
conspicuously posted in the place of business of the
licensee. If, after notice and an opportunity to be heard, it
has been determined that a licensee has violated this Act
within the past 5 calendar years, or if a licensee does not
retain a corporate fiduciary, as defined in the Corporate
Fiduciary Act, to manage the funds in trust pursuant to this
Act, the Comptroller may require an additional bond or letter
of credit from the licensee from time to time in amounts
equal to one-tenth of such trust funds, which bond or letter
of credit shall run to the Comptroller for the use and
benefit of the beneficiaries of such trust funds.
The licensee shall keep accurate accounts, books and
records in this State, at the principal place of business
identified in the licensee's license application or as
otherwise approved by the Comptroller in writing, of all
transactions, copies of all pre-need contracts, trust
agreements, and other agreements, dates and amounts of
payments made and accepted thereon, the names and addresses
of the contracting parties, the persons for whose benefit
such funds are accepted, and the names of the depositaries of
such funds. Each licensee shall maintain the documentation
for a period of 3 years after the licensee has fulfilled his
obligations under the pre-need contract. Additionally, for a
period not to exceed 6 months after the performance of all
terms in a pre-need sales contract, the licensee shall
maintain copies of the contract at the licensee branch
location where the contract was entered or at some other
location agreed to by the Comptroller in writing. If an
insurance policy or tax-deferred annuity is used to fund the
pre-need contract, the licensee under this Act shall keep and
maintain accurate accounts, books, and records in this State,
at the principal place of business identified in the
licensee's application or as otherwise approved by the
Comptroller in writing, of all insurance policies and
tax-deferred annuities used to fund the pre-need contract,
the name and address of insured, annuitant, and initial
beneficiary, and the name and address of the insurance
company issuing the policy or annuity. If a life insurance
policy or tax-deferred annuity is used to fund a pre-need
contract, the licensee shall notify the insurance company of
the name of each pre-need contract purchaser and the amount
of each payment when the pre-need contract, insurance policy
or annuity is purchased.
The licensee shall make reports to the Comptroller
annually or at such other time as the Comptroller may
require, on forms furnished by the Comptroller. The licensee
shall file the annual report with the Comptroller within 75
days after the end of the licensee's fiscal year. The
Comptroller shall for good cause shown grant an extension for
the filing of the annual report upon the written request of
the licensee. Such extension shall not exceed 60 days. If a
licensee fails to submit an annual report to the Comptroller
within the time specified in this Section, the Comptroller
shall impose upon the licensee a penalty of $5 for each and
every day the licensee remains delinquent in submitting the
annual report. The Comptroller may abate all or part of the
$5 daily penalty for good cause shown. Every application
shall be accompanied by a check or money order in the amount
of $25 and every report shall be accompanied by a check or
money order in the amount of $10 payable to: Comptroller,
State of Illinois.
The licensee shall make all required books and records
pertaining to trust funds, insurance policies, or
tax-deferred annuities available to the Comptroller for
examination. The Comptroller, or a person designated by the
Comptroller who is trained to perform such examinations, may
at any time investigate the books, records and accounts of
the licensee with respect to trust funds, insurance policies,
or tax-deferred annuities and for that purpose may require
the attendance of and examine under oath all persons whose
testimony he may require. The licensee shall pay a fee for
such examination in accordance with a schedule established by
the Comptroller. The fee shall not exceed the cost of such
examination. For pre-need contracts funded by trust
arrangements, the cost of an initial examination shall be
borne by the licensee if it has $10,000 or more in trust
funds, otherwise, by the Comptroller. The charge made by the
Comptroller for an examination shall be based upon the total
amount of trust funds held by the licensee at the end of the
calendar or fiscal year for which the report is required by
this Act and shall be in accordance with the following
schedule:
Less than $10,000..................................no charge;
$10,000 or more but less than $50,000....................$10;
$50,000 or more but less than $100,000...................$40;
$100,000 or more but less than $250,000..................$80;
$250,000 or more........................................$100.
The Comptroller may order additional audits or
examinations as he or she may deem necessary or advisable to
ensure the safety and stability of the trust funds and to
ensure compliance with this Act. These additional audits or
examinations shall only be made after good cause is
established by the Comptroller in the written order. The
grounds for ordering these additional audits or examinations
may include, but shall not be limited to:
(1) material and unverified changes or fluctuations
in trust balances or insurance or annuity policy amounts;
(2) the licensee changing trustees more than twice
in any 12-month period;
(3) any withdrawals or attempted withdrawals from
the trusts, insurance policies, or annuity contracts in
violation of this Act; or
(4) failure to maintain or produce documentation
required by this Act for deposits into trust accounts,
trust investment activities, or life insurance or annuity
policies.
Prior to ordering an additional audit or examination, the
Comptroller shall request the licensee to respond and comment
upon the factors identified by the Comptroller as warranting
the subsequent examination or audit. The licensee shall have
30 days to provide a response to the Comptroller. If the
Comptroller decides to proceed with the additional
examination or audit, the licensee shall bear the full cost
of that examination or audit, up to a maximum of $7,500. The
Comptroller may elect to pay for the examination or audit and
receive reimbursement from the licensee. Payment of the
costs of the examination or audit by a licensee shall be a
condition of receiving, maintaining, or renewing a license
under this Act. All moneys received by the Comptroller for
examination or audit fees shall be maintained in a separate
account to be known as the Comptroller's Administrative Fund.
This Fund, subject to appropriation by the General Assembly,
may be utilized by the Comptroller for enforcing this Act and
other purposes that may be authorized by law.
For pre-need contracts funded by life insurance or a
tax-deferred annuity, the cost of an examination shall be
borne by the licensee if it has received $10,000 or more in
premiums during the preceding calendar year. The fee schedule
for such examination shall be established in rules
promulgated by the Comptroller. In the event such
investigation or other information received by the
Comptroller discloses a substantial violation of the
requirements of this Act, the Comptroller shall revoke the
license of such person upon a hearing as provided in this
Act. Such licensee may terminate all further responsibility
for compliance with the requirements of this Act by
voluntarily surrendering the license to the Comptroller, or
in the event of its loss, furnishing the Comptroller with a
sworn statement to that effect, which states the licensee's
intention to discontinue acceptance of funds received under
pre-need contracts. Such license or statement must be
accompanied by an affidavit that said licensee has lawfully
expended or refunded all funds received under pre-need
contracts, and that the licensee will accept no additional
sales proceeds. The Comptroller shall immediately cancel or
revoke said license.
(Source: P.A. 88-477; 89-615, eff. 8-9-96.)
(225 ILCS 45/3a) (from Ch. 111 1/2, par. 73.103a)
Sec. 3a. Denial, suspension, or revocation of license.
(a) The Comptroller may refuse to issue or may suspend
or revoke a license on any of the following grounds:
(1) The applicant or licensee has made any
misrepresentations or false statements or concealed any
material fact.
(2) The applicant or licensee is insolvent.
(3) The applicant or licensee has been engaged in
business practices that work a fraud.
(4) The applicant or licensee has refused to give
pertinent data to the Comptroller.
(5) The applicant or licensee has failed to satisfy
any enforceable judgment or decree rendered by any court
of competent jurisdiction against the applicant.
(6) The applicant or licensee has conducted or is
about to conduct business in a fraudulent manner.
(7) The trust agreement is not in compliance with
State or federal law.
(8) The fidelity bond is not satisfactory to the
Comptroller.
(9) As to any individual required to be listed in
the license application, the individual has conducted or
is about to conduct any business on behalf of the
applicant in a fraudulent manner; has been convicted of
any felony or misdemeanor, an essential element of which
is fraud; has had a judgment rendered against him or her
based on fraud in any civil litigation; has failed to
satisfy any enforceable judgment or decree rendered
against him or her by any court of competent
jurisdiction; or has been convicted of any felony or any
theft-related offense.
(10) The applicant or licensee, including any
member, officer, or director thereof if the applicant or
licensee is a firm, partnership, association or
corporation and any shareholder holding more than 10% of
the corporate stock, has violated any provision of this
Act or any regulation, decision, order, or finding made
by the Comptroller under this Act.
(11) The Comptroller finds any fact or condition
existing which, if it had existed at the time of the
original application for such license, would have
warranted the Comptroller in refusing the issuance of the
license.
(b) Before refusal to issue or renew and before
suspension or revocation of a license, the Comptroller shall
hold a hearing to determine whether the applicant or
licensee, hereinafter referred to as the respondent, is
entitled to hold such a license. At least 10 days prior to
the date set for such hearing, the Comptroller shall notify
the respondent in writing that on the date designated a
hearing will be held to determine his eligibility for a
license and that he may appear in person or by counsel. Such
written notice may be served on the respondent personally, or
by registered or certified mail sent to the respondent's
business address as shown in his latest notification to the
Comptroller. At the hearing, both the respondent and the
complainant shall be accorded ample opportunity to present in
person or by counsel such statements, testimony, evidence and
argument as may be pertinent to the charges or to any defense
thereto. The Comptroller may reasonably continue such
hearing from time to time.
The Comptroller may subpoena any person or persons in
this State and take testimony orally, by deposition or by
exhibit, in the same manner and with the same fees and
mileage allowances as prescribed in judicial proceedings in
civil cases.
Any authorized agent of the Comptroller may administer
oaths to witnesses at any hearing which the Comptroller is
authorized to conduct.
(Source: P.A. 84-839.)
(225 ILCS 45/3a-5 new)
Section 3a-5. License requirements.
(a) Every license issued by the Comptroller shall state
the number of the license, the business name and address of
the licensee's principal place of business, each branch
location also operating under the license, and the licensee's
parent company, if any. The license shall be conspicuously
posted in each place of business operating under the license.
The Comptroller may issue such additional licenses as may be
necessary for licensee branch locations upon compliance with
the provisions of this Act governing an original issuance of
a license for each new license.
(b) Individual salespersons representing a licensee
shall not be required to obtain licenses in their individual
capacities, but must acknowledge, by affidavit, that they
have been provided with a copy of and have read this Act. The
licensee shall retain copies of the affidavits of its sellers
for its records and shall make the affidavits available to
the Comptroller for examination upon request.
(c) The licensee shall be responsible for the activities
of any person representing the licensee in selling or
offering a pre-need contract for sale.
(d) Any person not selling on behalf of a licensee shall
obtain its own license.
(e) No license shall be transferable or assignable
without the express written consent of the Comptroller. A
transfer of more than 50% of the ownership of any business
licensed hereunder shall be deemed to be an attempted
assignment of the license originally issued to the licensee
for which consent of the Comptroller shall be required.
(f) Every license issued hereunder shall remain in force
until it has been suspended, surrendered, or revoked in
accordance with this Act. The Comptroller, upon the request
of an interested person or on his own motion, may issue new
licenses to a licensee whose license or licenses have been
revoked, if no factor or condition then exists which would
have warranted the Comptroller to originally refuse the
issuance of such license.
(225 ILCS 45/3e) (from Ch. 111 1/2, par. 73.103e)
Sec. 3e. Upon the revocation of, suspension of, or
refusal to renew any license, the licensee shall immediately
surrender the license or licenses and any branch office
licenses to the Comptroller. If the licensee fails to do so,
the Comptroller shall have the right to seize the same.
(Source: P.A. 84-839.)
(225 ILCS 45/3f)
Sec. 3f. Revocation of license.
(a) The Comptroller, upon determination that grounds
exist for the revocation or suspension of a license issued
under this Act, may revoke or suspend, if appropriate, the
license issued to a licensee or to a particular branch office
location with respect to which the grounds for revocation or
suspension may occur or exist.
(b) Whenever a license is revoked by the Comptroller, he
or she shall apply to the Circuit Court of the county wherein
the licensee is located for a receiver to administer the
trust funds of the licensee or to maintain the life insurance
policies and tax-deferred annuities held by the licensee
under a pre-need contract.
(Source: P.A. 88-477.)
(225 ILCS 45/4) (from Ch. 111 1/2, par. 73.104)
Sec. 4. Withdrawal of funds; revocability of contract.
(a) The amount or amounts so deposited into trust, with
interest thereon, if any, shall not be withdrawn until the
death of the person or persons for whose funeral or burial
such funds were paid, unless sooner withdrawn and repaid to
the person who originally paid the money under or in
connection with the pre-need contract or to his or her legal
representative. The life insurance policies or tax-deferred
annuities shall not be surrendered until the death of the
person or persons for whose funeral or burial the policies or
annuities were purchased, unless sooner surrendered and
repaid to the owner of the policy purchased under or in
connection with the pre-need contract or to his or her legal
representative. If, however, the agreement or series of
agreements provides for forfeiture and retention of any or
all payments as and for liquidated damages as provided in
Section 6, then the trustee may withdraw the deposits. In
addition, nothing in this Section (i) prohibits the change of
depositary by the trustee and the transfer of trust funds
from one depositary to another or (ii) prohibits a contract
purchaser who is or may become eligible for public assistance
under any applicable federal or State law or local ordinance
including, but not limited to, eligibility under 24 C.F.R.,
Part 913 relating to family insurance under federal Housing
and Urban Development Policy from irrevocably waiving, in
writing, and renouncing the right to cancel a pre-need
contract for funeral services in an amount prescribed by rule
of the Illinois Department of Public Aid. No guaranteed price
pre-need funeral contract may prohibit a purchaser from
making a contract irrevocable to the extent that federal law
or regulations require that such a contract be irrevocable
for purposes of the purchaser's eligibility for Supplemental
Security Income benefits, Medicaid, or another public
assistance program, as permitted under federal law.
(b) If for any reason a seller or provider who has
engaged in pre-need sales has refused, cannot, or does not
comply with the terms of the pre-need contract within a
reasonable time after he or she is required to do so, the
purchaser or his or her heirs or assigns or duly authorized
representative shall have the right to a refund of an amount
equal to the sales price paid for undelivered merchandise or
services plus otherwise earned undistributed interest amounts
held in trust attributable to the contract, within 30 days of
the filing of a sworn affidavit with the trustee setting
forth the existence of the contract and the fact of breach.
A copy of this affidavit shall be filed with the Comptroller
and the seller. In the event a seller is prevented from
performing by strike, shortage of materials, civil disorder,
natural disaster, or any like occurrence beyond the control
of the seller or provider, the seller or provider's time for
performance shall be extended by the length of the delay.
Nothing in this Section shall relieve the seller or provider
from any liability for non-performance of his or her
obligations under the pre-need contract.
(c) After final payment on a pre-need contract, any
purchaser may, upon written demand to a seller, demand that
the pre-need contract with the seller be terminated. The
seller shall, within 30 days, initiate a refund to the
purchaser of the entire amount held in trust attributable to
undelivered merchandise and unperformed services, including
otherwise earned undistributed interest earned thereon or the
cash surrender value of a life insurance policy or
tax-deferred annuity.
(c-5) If no funeral merchandise or services are provided
or if the funeral is conducted by another person, the seller
may keep no more than 10% of the payments made under the
pre-need contract or $300, whichever sum is less. The
remainder of the trust funds or insurance or annuity proceeds
shall be forwarded to the legal heirs of the deceased or as
determined by probate action.
(d) The placement and retention of all or a portion of a
casket, combination casket-vault, urn, or outer burial
container comprised of materials which are designed to
withstand prolonged storage in the manner set forth in this
paragraph without adversely affecting the structural
integrity or aesthetic characteristics of such merchandise in
a specific burial space in which the person or persons for
whose funeral or burial the merchandise was intended has a
right of interment, or the placement of the merchandise in a
specific mausoleum crypt or lawn crypt in which such person
has a right of entombment, or the placement of the
merchandise in a specific niche in which such person has a
right of inurnment, or delivery to such person and retention
by such person until the time of need shall constitute actual
delivery to the person who originally paid the money under or
in connection with said agreement or series of agreements.
Actual delivery shall eliminate, from and after the date of
actual delivery, any requirement under this Act to place or
retain in trust any funds received for the sale of such
merchandise. The delivery, prior to the time of need, of any
funeral or burial merchandise in any manner other than
authorized by this Section shall not constitute actual
delivery and shall not eliminate any requirement under this
Act to place or retain in trust any funds received for the
sale of such merchandise.
(Source: P.A. 87-1091; 88-477.)
(225 ILCS 45/7.2)
Sec. 7.2. Investigation of unlawful practices. If it
appears to the Comptroller that a person has engaged in, is
engaging in, or is about to engage in any practice in
violation of declared to be unlawful by this Act, the
Comptroller may:
(1) require that person to file on such terms as
the Comptroller prescribes a statement or report in
writing, under oath or otherwise, containing all
information the Comptroller may consider necessary to
ascertain whether a licensee is in compliance with this
Act, or whether an unlicensed person is engaging in
activities for which a license is required;
(2) examine under oath any person in connection
with the books and records pertaining to or having an
impact upon trust funds, insurance policies, or tax
deferred annuities required or allowed to be maintained
pursuant to this Act;
(3) examine any books and records of the licensee,
trustee, or investment advisor that the Comptroller may
consider necessary to ascertain compliance with this Act;
and
(4) require the production of a copy of any record,
book, document, account, or paper that is produced in
accordance with this Act and retain it in his or her
possession until the completion of all proceedings in
connection with which it is produced.
(Source: P.A. 89-615, eff. 8-9-96.)
(225 ILCS 45/8) (from Ch. 111 1/2, par. 73.108)
Sec. 8. Any person who intentionally fails to deposit the
required sales proceeds into a trust required under this Act,
intentionally and improperly withdraws or uses trust funds
for his or her own benefit, or otherwise intentionally
violates any provision of this Act is guilty of a Class 4
felony.
If any person intentionally violates this Act or fails or
refuses to comply with any order of the Comptroller or any
part of an order that has become final to the person and is
still in effect, the Comptroller may, after notice and
hearing at which it is determined that a violation of this
Act or the order has been committed, further order that the
person shall forfeit and pay to the State of Illinois a sum
not to exceed $5,000 for each violation. This liability
shall be enforced in an action brought in any court of
competent jurisdiction by the Comptroller in the name of the
People of the State of Illinois.
Any violation of this Act for which a fine may be
assessed shall be established by rules promulgated by the
Comptroller.
In addition to the other penalties and remedies provided
in this Act, the Comptroller may bring a civil action in the
county of residence of the licensee or any person accepting
trust funds to enjoin any violation or threatened violation
of this Act.
The powers vested in the Comptroller by this Section are
in addition to any and all other powers and remedies vested
in the Comptroller by law.
(Source: P.A. 88-477.)
(225 ILCS 45/8.1 new)
Sec. 8.1. Sales; liability of purchaser for shortage. In
the event of a sale or transfer of all or substantially all
of the assets of the licensee, the sale or transfer of the
controlling interest of the corporate stock of the licensee
if the licensee is a corporation, the sale or transfer of the
controlling interest of the partnership if the licensee is a
partnership, or the sale of the licensee pursuant to
foreclosure proceedings, the purchaser is liable for any
shortages existing before or after the sale in the trust
funds required to be maintained in a trust pursuant to this
Act and shall honor all pre-need contracts and trusts entered
into by the licensee. Any shortages existing in the trust
funds constitute a prior lien in favor of the trust for the
total value of the shortages, and notice of that lien shall
be provided in all sales instruments.
In the event of a sale or transfer of all or
substantially all of the assets of the licensee, the sale or
transfer of the controlling interest of the corporate stock
of the licensee if the licensee is a corporation, or the sale
or transfer of the controlling interest of the partnership if
the licensee is a partnership, the licensee shall, at least
21 days prior to the sale or transfer, notify the
Comptroller, in writing, of the pending date of sale or
transfer so as to permit the Comptroller to audit the books
and records of the licensee. The audit must be commenced
within 10 business days of the receipt of the notification
and completed within the 21-day notification period unless
the Comptroller notifies the licensee during that period that
there is a basis for determining a deficiency which will
require additional time to finalize. The sale or transfer
may not be completed by the licensee unless and until:
(i) the Comptroller has completed the audit of the
licensee's books and records;
(ii) any delinquency existing in the trust funds has
been paid by the licensee, or arrangements satisfactory
to the Comptroller have been made by the licensee on the
sale or transfer for the payment of any delinquency; and
(iii) the Comptroller issues a license upon
application of the new owner, which license must be
applied for within 30 days of the anticipated date of the
sale or transfer, subject to the payment of any
delinquencies, if any, as stated in item (ii).
For purposes of this Section, a person, firm,
corporation, partnership, or institution that acquires the
licensee through a real estate foreclosure shall be subject
to the provisions of this Section.
Section 25. The Illinois Public Aid Code is amended by
changing Section 12-4.11 as follows:
(305 ILCS 5/12-4.11) (from Ch. 23, par. 12-4.11)
Sec. 12-4.11. Grant amounts. The Department, with due
regard for and subject to budgetary limitations, shall
establish grant amounts for each of the programs, by
regulation. The grant amounts may vary by program, size of
assistance unit and geographic area.
Aid payments shall not be reduced except: (1) for changes
in the cost of items included in the grant amounts, or (2)
for changes in the expenses of the recipient, or (3) for
changes in the income or resources available to the
recipient, or (4) for changes in grants resulting from
adoption of a consolidated grant amount.
In fixing standards to govern payments or reimbursements
for funeral and burial expenses, the Department shall
establish a minimum allowable amount of not less than $1,000
for Department payment of funeral services and not less than
$500 for Department payment of burial or cremation services.
In establishing the minimum allowable amount, the Department
shall take into account the services essential to a
dignified, low-cost (i) funeral and (ii) burial or cremation,
including reasonable amounts that may be necessary for burial
space and cemetery charges, and any applicable taxes or other
required governmental fees or charges. If no person has
agreed to pay the total cost of the (i) funeral and (ii)
burial or cremation charges, the Department shall pay the
vendor the actual costs of the (i) funeral and (ii) burial or
cremation, or the minimum allowable amount for each service
as established by the Department, whichever is less, provided
that the Department reduces its payments by the amount
available from the following sources: the decedent's assets
and available resources and the anticipated amounts of any
death benefits available to the decedent's estate, and
amounts paid and arranged to be paid by the decedent's
legally responsible relatives. A legally responsible relative
is expected to pay (i) funeral and (ii) burial or cremation
expenses unless financially unable to do so.
Nothing contained in this Section or in any other Section
of this Code shall be construed to prohibit the Illinois
Department (1) from consolidating existing standards on the
basis of any standards which are or were in effect on, or
subsequent to July 1, 1969, or (2) from employing any
consolidated standards in determining need for public aid and
the amount of money payment or grant for individual
recipients or recipient families.
(Source: P.A. 90-17, eff. 7-1-97; 90-326, eff. 8-8-97;
90-372, eff. 7-1-98; 90-655, eff. 7-30-98; 91-24, eff.
7-1-99.)
Section 27. The Crematory Regulation Act is amended by
changing Section 10 as follows:
(410 ILCS 18/10)
Sec. 10. Establishment of crematory and registration of
crematory authority.
(a) Any person doing business in this State, or any
cemetery, funeral establishment, corporation, partnership,
joint venture, voluntary organization or any other entity,
may erect, maintain, and operate a crematory in this State
and provide the necessary appliances and facilities for the
cremation of human remains in accordance with this Act.
(b) A crematory shall be subject to all local, State,
and federal health and environmental protection requirements
and shall obtain all necessary licenses and permits from the
Department, the federal Department of Health and Human
Services, and the Illinois and federal Environmental
Protection Agencies, or such other appropriate local, State,
or federal agencies.
(c) A crematory may be constructed on or adjacent to any
cemetery, on or adjacent to any funeral establishment, or at
any other location consistent with local zoning regulations.
(d) An application for registration as a crematory
authority shall be in writing on forms furnished by the
Comptroller. Applications shall be accompanied by a fee of
$50 and shall contain all of the following:
(1) The full name and address, both residence and
business, of the applicant if the applicant is an
individual; the full name and address of every member if
the applicant is a partnership; the full name and address
of every member of the board of directors if the
applicant is an association; and the name and address of
every officer, director, and shareholder holding more
than 25% of the corporate stock if the applicant is a
corporation.
(2) The address and location of the crematory.
(3) A description of the type of structure and
equipment to be used in the operation of the crematory.
(4) Any further information that the Comptroller
reasonably may require.
(e) Each crematory authority shall file an annual report
with the Comptroller, accompanied with a $25 fee, providing
any changes required in the information provided under
subsection (d) or indicating that no changes have occurred.
The annual report shall be filed by a crematory authority on
or before March 15 of each calendar year, in the Office of
the Comptroller. If the fiscal year of a crematory authority
is other than on a calendar year basis, then the crematory
authority shall file the report required by this Section
within 75 days after the end of its fiscal year. The
Comptroller shall, for good cause shown, grant an extension
for the filing of the annual report upon the written request
of the crematory authority. An extension shall not exceed 60
days. If a crematory authority fails to submit an annual
report to the Comptroller within the time specified in this
Section, the Comptroller shall impose upon the crematory
authority a penalty of $5 for each and every day the
crematory authority remains delinquent in submitting the
annual report. The Comptroller may abate all or part of the
$5 daily penalty for good cause shown.
(f) All records relating to the registration and annual
report of the crematory authority required to be filed under
this Section shall be subject to inspection by the
Comptroller upon reasonable notice.
(Source: P.A. 87-1187.)
Section 30. The Cemetery Care Act is amended by changing
Sections 2a, 9, 10, 11, 12, 13, 15b, and 24 and adding
Section 26 as follows:
(760 ILCS 100/2a) (from Ch. 21, par. 64.2a)
Sec. 2a. Powers and duties of cemetery authorities;
cemetery property maintained by cemetery care funds.
(a) With respect to cemetery property maintained by
cemetery care funds, a cemetery authority shall be
responsible for the performance of:
(1) (a) the care and maintenance of the cemetery
property it owns; and
(2) (b) the opening and closing of all graves,
crypts, or niches for human remains in any cemetery
property it owns.
(b) A cemetery authority owning, operating, controlling
or managing a privately operated cemetery shall make
available for inspection, and upon reasonable request provide
a copy of, its rules and regulations and its current prices
of interment, inurnment, or entombment rights.
(c) A cemetery authority owning, operating, controlling
or managing a privately operated cemetery may, from time to
time as land in its cemetery may be required for burial
purposes, survey and subdivide those lands and make and file
in its office a map thereof delineating the lots or plots,
avenues, paths, alleys, and walks and their respective
designations. The cemetery authority shall open the map to
public inspection. The cemetery authority may make available
a copy of the overall map upon written request and payment of
reasonable photocopy fees. Any unsold lots, plots or parts
thereof, in which there are not human remains, may be
resurveyed and altered in shape or size, and properly
designated on such map. Nothing contained in this
subsection, however, shall prevent the cemetery authority
from enlarging an interment right by selling to the owner
thereof the excess space next to such interment right and
permitting interments therein, provided reasonable access to
such interment right and to adjoining interment rights is not
thereby eliminated. The Comptroller may waive any or all of
the requirements of this subsection (c) for good cause shown.
(d) A cemetery authority owning, operating, controlling,
or managing a privately operated cemetery shall keep a record
of every interment, entombment, and inurnment in the
cemetery. The record shall include the deceased's name, age,
and date of burial, when these particulars can be
conveniently obtained, and the lot, plot, or section where
the human remains are interred, entombed, or inurned. The
record shall be open to public inspection consistent with
State and federal law. The cemetery authority shall make
available, consistent with State and federal law, a true copy
of the record upon written request and payment of reasonable
copy costs.
(e) A cemetery authority owning, operating, controlling,
or managing a privately operated cemetery shall provide
access to the cemetery under the cemetery authority's
reasonable rules and regulations.
(Source: P.A. 87-747.)
(760 ILCS 100/9) (from Ch. 21, par. 64.9)
Sec. 9. Application for license.
(a) Prior to the acceptance of care funds authorized by
Section 3 of this Act or the sale or transfer of the
controlling interest of a licensed cemetery authority, a
cemetery authority owning, operating, controlling, or
managing a privately operated cemetery shall make application
to the Comptroller for a license to hold the funds. Whenever
a cemetery authority owning, operating, controlling or
managing a privately operated cemetery is newly organized and
such cemetery authority desires to be licensed to accept the
care funds authorized by Section 3 of this Act, or whenever
there is a sale or transfer of the controlling interest of a
licensed cemetery authority, it shall make application for
such license.
In the case of a sale or transfer of the controlling
interest of the cemetery authority, the prior license shall
remain in effect until the Comptroller issues a new license
to the newly-controlled cemetery authority as provided in
Section 15b. Upon issuance of the new license, the prior
license shall be deemed surrendered if the licensee has
agreed to the sale and transfer and has consented to the
surrender of the license. A sale or transfer of the
controlling interest of a cemetery authority to an immediate
family member is not considered a transfer of the controlling
interest for purposes of this Section.
(b) Applications for license shall be filed with the
Comptroller. Applications shall be in writing under oath,
signed by the applicant, and in the form furnished by the
Comptroller. The form furnished by the Comptroller shall
enable a cemetery authority to apply for license of multiple
cemetery locations within a single license application. A
check or money order in the amount of $25 per license seeking
to be issued under the application, payable to: Comptroller,
State of Illinois, shall be included. Each application shall
contain the following:
(1) the full name and address (both of residence
and of place of business) of the applicant, if an
individual; of every member, if the applicant is a
partnership or association; of every officer, or
director, if the applicant is a corporation;, and of any
party owning 10% or more of the cemetery authority, and
the full name and address of the parent company, if any;
(2) a detailed statement of the applicant's assets
and liabilities;
(2.1) the name, address, and legal boundaries of
each cemetery for which the care funds shall be entrusted
and at which books, accounts, and records shall be
available for examination by the Comptroller as required
by Section 13 of this Act;
(3) as to the name of each individual person listed
under (1) above, a detailed statement of each person's
business experience for the 10 years immediately
preceding the application; the present and previous
connection, if any, of each person with any other
cemetery or cemetery authority; whether each person has
ever been convicted of any a felony or has ever been
convicted of any misdemeanor of which an essential
element is fraud or has been involved in any civil
litigation in which a judgment has been entered against
him or her based on fraud; whether each person is
currently a defendant in any lawsuit in which the
complaint against the person is based upon fraud; whether
such person has failed to satisfy any enforceable
judgment entered by a court of competent jurisdiction in
any civil proceedings against such individual; and
(4) the total amount in trust and now available
from sales of lots, graves, crypts or niches where part
of the sale price has been placed in trust; the amount of
money placed in the care funds of each applicant; the
amount set aside in care funds from the sale of lots,
graves, crypts and niches for the general care of the
cemetery and the amount available for that purpose; the
amount received in trust by special agreement for special
care and the amount available for that purpose; the
amount of principal applicable to trust funds received by
the applicant; and.
(5) any other information that the Comptroller may
reasonably require in order to determine the
qualifications of the applicant to be licensed under this
Act.
Such information shall be furnished whether the care
funds are held by the applicant as trustee or by an
independent trustee. If the funds are not held by the
applicant, the name of the independent trustee holding them
is also to be furnished by the applicant.
(c) Applications for license shall also be accompanied
by a fidelity bond issued by a bonding company or insurance
company authorized to do business in this State or by an
irrevocable, unconditional letter of credit issued by a bank
or trust company authorized to do business in the State of
Illinois, as approved by the State Comptroller, where such
care funds exceed the sum of $15,000. Such bond or letter of
credit shall run to the Comptroller and his or her successor
for the benefit of the care funds held by such cemetery
authority or by the trustee of the care funds of such
cemetery authority. Such bonds or letters of credit shall be
in an amount equal to 1/10 of such care funds. However, such
bond or letter of credit shall not be in an amount less than
$1,000; the first $15,000 of such care funds shall not be
considered in computing the amount of such bond or letter of
credit. No application shall be accepted by the Comptroller
unless accompanied by such bond or letter of credit.
Applications for license by newly organized cemetery
authorities after January 1, 1960 shall also be accompanied
by evidence of a minimum care fund deposit in an amount to be
determined as follows: if the number of inhabitants, either
in the county in which the cemetery is to be located or in
the area included within a 10 mile radius from the cemetery
if the number of inhabitants therein is greater, is 25,000 or
less the deposit shall be $7,500; if the number of
inhabitants is 25,001 to 50,000, the deposit shall be
$10,000; if the number of inhabitants is 50,001 to 125,000,
the deposit shall be $15,000; if the number of inhabitants is
over 125,000, the deposit shall be $25,000.
After an amount equal to and in addition to the required
minimum care fund deposit has been deposited in trust, the
cemetery authority may withhold 50% of all future care funds
until it has recovered the amount of the minimum care fund
deposit.
(d) (Blank). The applicant shall have a permanent
address and any license issued pursuant to the application is
valid only at the address or at any new address approved by
the Comptroller.
(e) All bonds and bonding deposits made by any cemetery
authority may be returned to the cemetery authority or
cancelled as to care funds invested with an investment
company.
(Source: P.A. 89-615, eff. 8-9-96; 90-655, eff. 7-30-98.)
(760 ILCS 100/10) (from Ch. 21, par. 64.10)
Sec. 10. Upon receipt of such application for license,
the Comptroller shall issue a license to the applicant unless
the Comptroller determines that:
(a) The applicant has made any misrepresentations or
false statements or has concealed any essential or material
fact, or
(b) The applicant is insolvent; or
(c) The applicant is or has been using practices in the
conducting of the cemetery business that work or tend to work
a fraud; or
(d) The applicant has refused to furnish or give
pertinent data to the Comptroller; or
(e) The applicant has failed to notify the Comptroller
with respect to any material facts required in the
application for license under the provisions of this Act; or
(f) The applicant has failed to satisfy any enforceable
judgment entered by the circuit court in any civil
proceedings against such applicant; or
(g) The applicant has conducted or is about to conduct
its business in a fraudulent manner; or
(h) The applicant or any As to the name of any
individual listed in the license application, such individual
has conducted or is about to conduct any business on behalf
of the applicant in a fraudulent manner; or has been
convicted of a felony or any misdemeanor of which an
essential element is fraud; or has been involved in any civil
litigation in which a judgment has been entered against him
or her based on fraud; or has failed to satisfy any
enforceable judgment entered by the circuit court in any
civil proceedings against such individual; or has been
convicted of any felony of which fraud is an essential
element; or has been convicted of any theft-related offense;
or has failed to comply with the requirements of this Act; or
has demonstrated a pattern of improperly failing to honor a
contract with a consumer; or
(i) The applicant has ever had a license involving
cemeteries or funeral homes revoked, suspended, or refused to
be issued in Illinois or elsewhere.
If the Comptroller so determines, then he or she shall
conduct a hearing to determine whether to deny the
application. However, no application shall be denied unless
the applicant has had at least 10 days' notice of a hearing
on the application and an opportunity to be heard thereon. If
the application is denied, the Comptroller shall within 20
days thereafter prepare and keep on file in his or her office
the transcript of the evidence taken and a written order of
denial thereof, which shall contain his or her findings with
respect thereto and the reasons supporting the denial, and
shall send by United States mail a copy of the written order
of denial to the applicant at the address set forth in the
application, within 5 days after the filing of such order. A
review of such decision may be had as provided in Section 20
of this Act.
The license issued by the Comptroller shall remain in
full force and effect until it is surrendered by the licensee
or revoked by the Comptroller as hereinafter provided.
(Source: P.A. 88-477.)
(760 ILCS 100/11) (from Ch. 21, par. 64.11)
Sec. 11. Issuance and display of license. A license
issued under this Act authorizes the cemetery authority to
accept care funds for the cemetery identified in the license.
If a license application seeks licensure to accept care funds
on behalf of more than one cemetery location, the
Comptroller, upon approval of the license application, shall
issue to the cemetery authority a separate license for each
cemetery location indicated on the application. Each license
issued by the Comptroller under this Act is independent of
any other license that may be issued to a cemetery authority
under a single license application.
Every license issued by the Comptroller shall state the
number of the license and the address at which the business
is to be conducted. Such license shall be kept conspicuously
posted in the place of business of the licensee and shall not
be transferable or assignable.
No more than one place of business shall be maintained
under the same license, but the Comptroller may issue more
than one license to the same licensee upon compliance with
the provisions of this Act governing an original issuance of
a license, for each new license.
Whenever a licensee shall wish to change the name as
originally set forth in his license, he shall give written
notice thereof to the Comptroller together with the reasons
for the change and if the change is approved by the
Comptroller he shall issue a new license.
A license issued by the Comptroller shall remain in full
force and effect until it is surrendered by the licensee or
suspended or revoked by the Comptroller as provided in this
Act.
(Source: P.A. 78-592.)
(760 ILCS 100/12) (from Ch. 21, par. 64.12)
Sec. 12. Annual reports. Every licensee shall prepare a
written report as of the end of the preceding calendar year
or fiscal year, as the case may be, showing:
(a) The amount of the principal of the care funds held
in trust by the trustee of the care funds at the beginning of
such year and in addition thereto all moneys or property
received during such year (1) under and by virtue of the sale
of a lot, grave, crypt or niche; (2) under or by virtue of
the terms of the contract authorized by the provisions of
Section 3 of this Act; (3) under or by virtue of any gift,
grant, legacy, payment or other contribution made either
prior to or subsequent to the effective date of this Act, and
(4) under or by virtue of any contract or conveyance made
either prior to or subsequent to the effective date of this
Act;
(b) The securities in which such care funds are invested
and the cash on hand as of the date of the report;
(c) The income received from such care funds during the
preceding calendar year, or fiscal year, as the case may be;
(d) The expenditures made from said income during the
preceding calendar year, or fiscal year, as the case may be;
and
(e) The number of interments made during the preceding
calendar year, or fiscal year, as the case may be.
Where any of the care funds of a licensee are held by an
independent trustee, the report filed by the licensee shall
contain a certificate signed by the trustee of the care funds
of such licensee certifying to the truthfulness of the
statements in the report as to (1) the total amount of
principal of the care funds held by the trustee, (2) the
securities in which such care funds are invested and the cash
on hand as of the date of the report and (3) the income
received from such care funds during the preceding calendar
year, or fiscal year, as the case may be.
Such report shall be filed by such licensee on or before
March 15 of each calendar year, in the office of the
Comptroller. If the fiscal year of such licensee is other
than on a calendar year basis, then such licensee shall file
the report required by this Section within 2 1/2 months of
the end of its fiscal year. The Comptroller shall for good
cause shown grant an extension for the filing of the annual
report upon the written request of the licensee. Such
extension shall not exceed 60 days. If a licensee fails to
submit an annual report to the Comptroller within the time
specified in this Section, the Comptroller shall impose upon
the licensee a penalty of $5 for each and every day the
licensee remains delinquent in submitting the annual report.
The Comptroller may abate all or part of the $5 daily penalty
for good cause shown.
Such report shall be made under oath and shall be in the
form furnished by the Comptroller. Each report shall be
accompanied by a check or money order in the amount of $10,
payable to: Comptroller, State of Illinois.
If any annual report shows that the amount of the care
funds held in trust at the end of the preceding calendar year
or fiscal year, as the case may be, has increased in amount
over that shown by the next preceding report, then the
fidelity bond theretofore filed shall be increased to the
amount required by Section 9 of this Act. Such increased
fidelity bond shall accompany the report and no report shall
be accepted by the Comptroller unless accompanied by such
bond, except where the filing of a bond is excused by Section
18 of this Act.
(Source: P.A. 88-477; 89-615, eff. 8-9-96.)
(760 ILCS 100/13) (from Ch. 21, par. 64.13)
Sec. 13. Books, accounts, and records. Every licensee
and the trustee of the care funds of every licensee shall be
a resident of this State and shall keep in this State and use
in its business such books, accounts and records as will
enable the Comptroller to determine whether such licensee or
trustee is complying with the provisions of this Act and with
the rules, regulations and directions made by the Comptroller
hereunder. The licensee shall keep the books, accounts, and
records at the location identified in the license issued by
the Comptroller or as otherwise agreed by the Comptroller in
writing. The books, accounts, and records shall be
accessible for review upon demand of the Comptroller.
(Source: P.A. 78-592.)
(760 ILCS 100/15b)
Sec. 15b. Sales; liability of purchaser for shortage.
In the case of a sale of any privately operated cemetery
or any part thereof or of any related personal property by a
cemetery authority to a purchaser or pursuant to foreclosure
proceedings, except the sale of burial rights, services, or
merchandise to a person for his or her personal or family
burial or interment, the purchaser is liable for any
shortages existing before or after the sale in the care funds
required to be maintained in a trust pursuant to this Act and
shall honor all instruments issued under Section 4 for that
cemetery. Any shortages existing in the care funds constitute
a prior lien in favor of the trust for the total value of the
shortages, and notice of such lien shall be provided in all
sales instruments.
In the event of a sale or transfer of all or
substantially all of the assets of the cemetery authority,
the sale or transfer of the controlling interest of the
corporate stock of the cemetery authority if the cemetery
authority is a corporation, or the sale or transfer of the
controlling of the partnership if the cemetery authority is a
partnership, the cemetery authority shall, at least 21 days
prior to the sale or transfer, notify the Comptroller, in
writing, of the pending date of sale or transfer so as to
permit the Comptroller to audit the books and records of the
cemetery authority. The audit must be commenced within 10 5
business days of the receipt of the notification and
completed within the 21 day notification period unless the
Comptroller notifies the cemetery authority during that
period that there is a basis for determining a deficiency
which will require additional time to finalize. The sale or
transfer may not be completed by the cemetery authority
unless and until:
(a) The Comptroller has completed the audit of the
cemetery authority's books and records;
(b) Any delinquency existing in the care funds has
been paid by the cemetery authority, or arrangements
satisfactory to the Comptroller have been made by the
cemetery authority on the sale or transfer for the
payment of any delinquency;
(c) The Comptroller issues a new cemetery care
license upon application of the newly controlled
corporation or partnership, which license must be applied
for within 30 days of the anticipated date of the sale or
transfer, subject to the payment of any delinquencies, if
any, as stated in item (b) above.
For purposes of this Section, a person, firm,
corporation, partnership, or institution that acquires the
cemetery through a real estate foreclosure shall be subject
to the provisions of this Section. The sale or transfer of
the controlling interest of a cemetery authority to an
immediate family member is not subject to the license
application process required in item (c) of this Section.
In the event of a sale or transfer of any cemetery land,
including any portion of cemetery land in which no human
remains have been interred, a licensee shall, at least 21
days prior to the sale or transfer, notify the Comptroller,
in writing, of the pending sale or transfer.
(Source: P.A. 90-623, eff. 7-10-98.)
(760 ILCS 100/24) (from Ch. 21, par. 64.24)
Sec. 24. Whoever intentionally fails to deposit the
required amounts into a trust provided for in this Act,
intentionally and improperly withdraws or uses trust funds
for his or her own benefit, or otherwise intentionally
violates any provision of this Act (other than except the
provisions of Section 23 and subsections (b), (c), (d), and
(e) of Section 2a) shall be guilty of a Class 4 felony, and
each day such provisions are violated shall constitute a
separate offense.
If any person intentionally violates this Act or fails or
refuses to comply with any order of the Comptroller or any
part of an order that has become final to such person and is
still in effect, the Comptroller may, after notice and
hearing at which it is determined that a violation of this
Act or such order has been committed, further order that such
person shall forfeit and pay to the State of Illinois a sum
not to exceed $5,000 for each violation. Such liability
shall be enforced in an action brought in any court of
competent jurisdiction by the Comptroller in the name of the
People of the State of Illinois.
In addition to the other penalties and remedies provided
in this Act, the Comptroller may bring a civil action in the
county of residence of the licensee or any person accepting
care funds to enjoin any violation or threatened violation of
this Act.
The powers vested in the Comptroller by this Section are
additional to any and all other powers and remedies vested in
the Comptroller by law.
(Source: P. A. 86-1359.)
(760 ILCS 100/26 new)
Sec. 26. Abandoned or neglected cemeteries; clean-up.
The Comptroller may administer a program for the purpose of
cleaning up abandoned or neglected cemeteries located in
Illinois. Administration of this program may include the
Comptroller's issuance of grants for that purpose to units of
local government, school districts, and not-for-profit
associations.
If an abandoned or neglected cemetery has been dedicated
as an Illinois nature preserve under the Illinois Natural
Areas Preservation Act, any action to cause the clean up of
the cemetery under the provisions of this Section shall be
consistent with the rules and master plan governing the
dedicated nature preserve.
Section 40. The Cemetery Protection Act is amended by
changing Sections 1, 9, 10, 12, 13, and 14 and adding Section
16 as follows:
(765 ILCS 835/1) (from Ch. 21, par. 15)
Sec. 1. (a) Any person who acts without proper legal
authority and who willfully and knowingly destroys or damages
the remains of a deceased human being or who desecrates human
remains is guilty of a Class 3 felony.
(a-5) Any person who acts without proper legal authority
and who willfully and knowingly removes any portion of the
remains of a deceased human being from a burial ground where
skeletal remains are buried or from a grave, crypt, vault,
mausoleum, or other repository of human remains is guilty of
a Class 4 felony.
(b) Any person who acts without proper legal authority
and who willfully and knowingly:
(1) obliterates, vandalizes, or desecrates a burial
ground where skeletal remains are buried or a grave,
crypt, vault, mausoleum, or other repository of human
remains;
(2) obliterates, vandalizes, or desecrates a park
or other area clearly designated to preserve and
perpetuate the memory of a deceased person or group of
persons;
(3) obliterates, vandalizes, or desecrates plants,
trees, shrubs, or flowers located upon or around a
repository for human remains or within a human graveyard
or cemetery; or
(4) obliterates, vandalizes, or desecrates a fence,
rail, curb, or other structure of a similar nature
intended for the protection or for the ornamentation of
any tomb, monument, gravestone, or other structure of
like character;
is guilty of a Class A misdemeanor if the amount of the
damage is less than $500, a Class 4 felony if the amount of
the damage is at least $500 and less than $10,000, a Class 3
felony if the amount of the damage is at least $10,000 and
less than $100,000, or a Class 2 felony if the damage is
$100,000 or more and shall provide restitution to the
cemetery authority or property owner for the amount of any
damage caused.
(b-5) Any person who acts without proper legal authority
and who willfully and knowingly defaces, vandalizes, injures,
or removes a gravestone or other memorial, monument, or
marker commemorating a deceased person or group of persons,
whether located within or outside of a recognized cemetery,
memorial park, or battlefield is guilty of a Class 4 felony
for damaging at least one but no more than 4 gravestones, a
Class 3 felony for damaging at least 5 but no more than 10
gravestones, or a Class 2 felony for damaging more than 10
gravestones and shall provide restitution to the cemetery
authority or property owner for the amount of any damage
caused.
(b-7) Any person who acts without proper legal authority
and who willfully and knowingly removes with the intent to
resell a gravestone or other memorial, monument, or marker
commemorating a deceased person or group of persons, whether
located within or outside a recognized cemetery, memorial
park, or battlefield, is guilty of a Class 2 felony.
(c) The provisions of this Section shall not apply to
the removal or unavoidable breakage or injury by a cemetery
authority of anything placed in or upon any portion of its
cemetery in violation of any of the rules and regulations of
the cemetery authority, nor to the removal of anything placed
in the cemetery by or with the consent of the cemetery
authority that in the judgment of the cemetery authority has
become wrecked, unsightly, or dilapidated.
(d) If an unemancipated minor is found guilty of
violating any of the provisions of subsection (b) of this
Section and is unable to provide restitution to the cemetery
authority or property owner, the parents or legal guardians
of that minor shall provide restitution to the cemetery
authority or property owner for the amount of any damage
caused, up to the total amount allowed under the Parental
Responsibility Law.
(e) Any person who shall hunt, shoot or discharge any
gun, pistol or other missile, within the limits of any
cemetery, or shall cause any shot or missile to be discharged
into or over any portion thereof, or shall violate any of the
rules made and established by the board of directors of such
cemetery, for the protection or government thereof, is guilty
of a Class C misdemeanor.
(f) Any person who knowingly enters or knowingly remains
upon the premises of a public or private cemetery without
authorization during hours that the cemetery is posted as
closed to the public is guilty of a Class A misdemeanor.
(g) All fines when recovered, shall be paid over by the
court or officer receiving the same to the cemetery
association and be applied, as far as possible in repairing
the injury, if any, caused by such offense. Provided,
nothing contained in this Act shall deprive such cemetery
association, or the owner of any lot or monument from
maintaining an action for the recovery of damages caused by
any injury caused by a violation of the provisions of this
Act, or of the rules established by the board of directors of
such cemetery association. Nothing in this Section shall be
construed to prohibit the discharge of firearms loaded with
blank ammunition as part of any funeral, any memorial
observance or any other patriotic or military ceremony.
(Source: P.A. 89-36, eff. 1-1-96.)
(765 ILCS 835/9) (from Ch. 21, par. 21.2)
Sec. 9. When there is no memorial, monument, or marker
installed on a cemetery lot; no interment in a cemetery lot;
no transfer or assignment of a cemetery lot on the cemetery
authority records; no contact by an owner recorded in the
cemetery authority records; publication has been made in a
local newspaper and no response was received; and 60 years
have passed since the cemetery lot was sold, there is a
presumption that the cemetery lot has been abandoned.
Alternatively, where there is an obligation to pay a cemetery
authority, annually or periodically, maintenance or care
charges on a cemetery lot, or part thereof, and the owner of
or claimant to a right or easement for burial in such
cemetery lot, or part thereof, has failed to pay the required
annual or periodic maintenance or care charges for a period
of 30 years or more, such continuous failure to do so creates
and establishes a presumption that the cemetery lot, or part
thereof, has been abandoned.
Upon a court's determination of abandonment, the
ownership of a right or easement for burial in a cemetery
lot, or part thereof, shall be subject to sale in the manner
hereinafter provided.
(Source: Laws 1961, p. 2908.)
(765 ILCS 835/10) (from Ch. 21, par. 21.3)
Sec. 10. A cemetery authority may file in the office of
the clerk of the circuit court of the county in which the
cemetery is located a verified petition praying for the entry
of an order adjudging a cemetery lot, or part thereof, to
have been abandoned. The petition shall describe the
cemetery lot, or part thereof, alleged to have been
abandoned, shall allege ownership by the petitioner of the
cemetery, and, if known, the name of the owner of the right
or easement for burial in such cemetery lot, or part thereof,
as is alleged to have been abandoned, or, if the owner
thereof is known to the petitioner to be deceased, then the
names, if known to petitioner, of such claimants thereto as
are the heirs-at-law and next-of-kin or the specific legatees
under the will of the owner of the right or easement for
burial in such lot, or part thereof, and such other facts as
the petitioner may have with respect to ownership of the
right or easement for burial in such cemetery lot, or part
thereof.
The petition shall also allege the facts with respect to
the abandonment of the cemetery lot or facts about the
obligation of the owner to pay annual or periodic maintenance
or care charges on such cemetery lot, or part thereof, the
amount of such charges as are due and unpaid, and shall also
allege the continuous failure by the owner or claimant to pay
such charges for a period of 30 consecutive years or more.
Irrespective of diversity of ownership of the right or
easement for burial therein, a cemetery authority may include
in one petition as many cemetery lots, or parts thereof, as
are alleged to have been abandoned.
(Source: P.A. 84-549.)
(765 ILCS 835/12) (from Ch. 21, par. 21.5)
Sec. 12. In the event the owner, the claimant, or the
heirs-at-law and next-of-kin or the specific legatees under
the will of either the owner or claimant submits proof of
ownership to the court or, appears and answers the petition,
the presumption of abandonment shall no longer exist and the
court shall set the matter for hearing upon the petition and
such answers thereto as may be filed.
In the event the defendant or defendants fails to appear
and answer the petition, or in the event that upon the
hearing the court determines from the evidence presented that
there has been an abandonment of the cemetery lot for 60
years or a continuous failure to pay the annual or periodic
maintenance or care charges on such lot, or part thereof, for
a period of 30 years or more preceding the filing of the
petition, then, in either such event, an order shall be
entered adjudicating such lot, or part thereof, to have been
abandoned and adjudging the right or easement for burial
therein to be subject to sale by the cemetery authority at
the expiration of one year from the date of the entry of such
order. Upon entry of an order adjudicating abandonment of a
cemetery lot, or part thereof, the court shall fix such sum
as is deemed a reasonable fee for the services of
petitioner's attorney.
(Source: P.A. 84-549.)
(765 ILCS 835/13) (from Ch. 21, par. 21.6)
Sec. 13. In the event that, at any time within one year
after adjudication of abandonment, the owner or claimant of a
lot, or part thereof, which has been adjudged abandoned,
shall contact the court or the cemetery authority and pay all
maintenance or care charges that are due and unpaid, shall
reimburse the cemetery authority for the costs of suit and
necessary expenses incurred in the proceeding with respect to
such lot, or part thereof, and shall contract for its future
care and maintenance, then such lot, or part thereof, shall
not be sold as herein provided and, upon petition of the
owner or claimant, the order or judgment adjudging the same
to have been abandoned shall be vacated as to such lot, or
part thereof.
(Source: P.A. 79-1365.)
(765 ILCS 835/14) (from Ch. 21, par. 21.7)
Sec. 14. After the expiration of one year from the date
of entry of an order adjudging a lot, or part thereof, to
have been abandoned, a cemetery authority shall have the
right to do so and may sell such lot, or part thereof, at
public sale and grant an easement therein for burial purposes
to the purchaser at such sale, subject to the interment of
any human remains theretofore placed therein and the right to
maintain memorials placed thereon. A cemetery authority may
bid at and purchase such lot, or part thereof, at such sale.
Notice of the time and place of any sale held pursuant to
an order adjudicating abandonment of a cemetery, or part
thereof, shall be published once in a newspaper of general
circulation in the county in which the cemetery is located,
such publication to be not less than 30 days prior to the
date of sale.
The proceeds derived from any sale shall be used to
reimburse the petitioner for the costs of suit and necessary
expenses, including attorney's fees, incurred by petitioner
in the proceeding, and the balance, if any, shall be
deposited into the cemetery authority's care fund or, if
there is no care fund, used by the cemetery authority for the
care of its cemetery and for no other purpose.
(Source: P.A. 79-1365.)
(765 ILCS 835/16 new)
Sec. 16. When a multiple interment right owner becomes
deceased, the ownership of any unused rights of interment
shall pass in accordance with the specific bequest in the
decedent's will. If there is no will or specific bequest
then the use of the unused rights of interment shall be
determined by a cemetery authority in accordance with the
information set out on a standard affidavit for cemetery
interment rights use form if such a form has been prepared.
The unused right of interment shall be used for the interment
of the first deceased heir listed on the standard affidavit
and continue in sequence until all listed heirs are deceased.
In the event that an interment right is not used, the
interment right shall pass to the heirs of the heirs of the
deceased interment right owner in perpetuity. This shall not
preclude the ability of the heirs to sell said interment
rights, in the event that all listed living heirs are in
agreement. If the standard affidavit for cemetery interment
rights use, showing heirship of decedent interment right
owner's living heirs is provided to and followed by a
cemetery authority, the cemetery authority shall be released
of any liability in relying on that affidavit.
The following is the form of the standard affidavit:
STATE OF ILLINOIS )
) SS
COUNTY OF ....................)
AFFIDAVIT FOR CEMETERY INTERMENT RIGHTS USE
I, .............., being first duly sworn on oath depose and
say that:
1. A. My place of residence is ........................
B. My post office address is .......................
C. I understand that I am providing the information
contained in this affidavit to the ............
("Cemetery") and the Cemetery shall, in the absence of
directions to the contrary in my will, rely on this
information to allow the listed individuals to be
interred in any unused interment rights in the order of
their death.
D. I understand that, if I am an out-of-state
resident, I submit myself to the jurisdiction of Illinois
courts for all matters related to the preparation and use
of this affidavit. My agent for service of process in
Illinois is:
Name ................. Address .....................
City ................. Telephone ...................
Items 2 through 6 must be completed by the executor of
the decedent's estate, a personal representative, owner's
surviving spouse, or surviving heir.
2. The decedent's name is ..............................
3. The date of decedent's death was ....................
4. The decedent's place of residence immediately before
his or her death was ........................................
5. My relationship to the decedent is ..................
6. At the time of death, the decedent (had no) (had a)
surviving spouse. The name of the surviving spouse, if any,
is ....................., and he or she (has) (has not)
remarried.
7. The following is a list of the cemetery interment
rights that may be used by the heirs if the owner is
deceased:
.............................................................
.............................................................
8. The following persons have a right to use the
cemetery interment rights in the order of their death:
.......................... Address ..........................
.......................... Address ..........................
.......................... Address ..........................
.......................... Address ..........................
.......................... Address ..........................
.......................... Address ..........................
.......................... Address ..........................
9. This affidavit is made for the purpose of obtaining
the consent of the undersigned to transfer the right of
interment at the above mentioned cemetery property to the
listed heirs. Affiants agree that they will save, hold
harmless, and indemnify Cemetery, its heirs, successors,
employees, and assigns, from all claims, loss, or damage
whatsoever that may result from relying on this affidavit to
record said transfer in its records and allow interments on
the basis of the information contained in this affidavit.
WHEREFORE affiant requests Cemetery to recognize the
above named heirs-at-law as those rightfully entitled to the
use of said interment (spaces) (space).
THE FOREGOING STATEMENT IS MADE UNDER THE PENALTIES OF
PERJURY. (A FRAUDULENT STATEMENT MADE UNDER THE PENALTIES OF
PERJURY IS PERJURY AS DEFINED IN THE CRIMINAL CODE OF 1961.)
Dated this ........ day of .............., .....
................... (Seal) (To be signed by the owner or
the individual who completes items 2 through 6 above.)
Subscribed and sworn to before me, a Notary Public in and for
the County and State of .............. aforesaid this
........ day of ..............., .....
............................ Notary Public.
Section 45. The Illinois Pre-Need Cemetery Sales Act is
amended by changing Sections 1, 4, 5, 6, 7, 8, 8a, 9, 12, 14,
16, 19, 20, 22, and 23 and adding Section 27.1 as follows:
(815 ILCS 390/1) (from Ch. 21, par. 201)
Sec. 1. Purpose. It is the purpose of this Act to
assure adequate protection for those who contract through
pre-need contracts for the purchase of certain cemetery
merchandise and cemetery services and undeveloped interment,
entombment or inurnment space, when the seller may delay
delivery or performance more than 120 days following initial
payment on the account.
(Source: P.A. 85-805.)
(815 ILCS 390/4) (from Ch. 21, par. 204)
Sec. 4. Definitions. As used in this Act, the following
terms shall have the meaning specified:
(A) A. "Pre-need sales contract" or "Pre-need sales"
means any agreement or contract or series or combination of
agreements or contracts which have for a purpose the sale of
cemetery merchandise, cemetery services or undeveloped
interment, entombment or inurnment spaces where the terms of
such sale require payment or payments to be made at a
currently determinable time and where the merchandise,
services or completed spaces are to be provided more than 120
days following the initial payment on the account. An
agreement or contract for a memorial, marker, or monument
shall not be deemed a "pre-need sales contract" or a
"pre-need sale" if the memorial, marker, or monument is
delivered within 180 days following initial payment on the
account and work thereon commences a reasonably short time
after initial payment on the account.
(B) B. "Delivery" occurs when:
(1) Physical possession of the merchandise is
transferred or the easement for burial rights in a
completed space is executed, delivered and transferred to
the buyer; or
(2) Following authorization by a purchaser under a
pre-need sales contract, title to the merchandise has
been transferred to the buyer and the merchandise has
been paid for and is in the possession of the seller who
has placed it, until needed, at the site of its ultimate
use; or
(3) (A) Following authorization by a purchaser
under a pre-need sales contract, the merchandise has been
permanently identified with the name of the buyer or the
beneficiary and delivered to a licensed and bonded
warehouse and both title to the merchandise and a
warehouse receipt have been delivered to the purchaser or
beneficiary and a copy of the warehouse receipt has been
delivered to the licensee for retention in its files;
except that in the case of outer burial containers, the
use of a licensed and bonded warehouse as set forth in
this paragraph shall not constitute delivery for purposes
of this Act. Nothing herein shall prevent a seller from
perfecting a security interest in accordance with the
Uniform Commercial Code on any merchandise covered under
this Act.
(B) All warehouse facilities to which sellers
deliver merchandise pursuant to this Act shall:
(i) be either located in the State of Illinois
or qualify as a foreign warehouse facility as
defined herein;
(ii) submit to the Comptroller not less than
annually, by March 1 of each year, a report of all
cemetery merchandise stored by each licensee under
this Act which is in storage on the date of the
report;
(iii) permit the Comptroller or his designee
at any time to examine stored merchandise and to
examine any documents pertaining thereto;
(iv) submit evidence satisfactory to the
Comptroller that all merchandise stored by said
warehouse for licensees under this Act is insured
for casualty or other loss normally assumed by a
bailee for hire;
(v) demonstrate to the Comptroller that the
warehouse has procured and is maintaining a
performance bond in the form, content and amount
sufficient to unconditionally guarantee to the
purchaser or beneficiary the prompt shipment of the
cemetery merchandise.
(C) "Cemetery merchandise" means items of personal
property normally sold by a cemetery authority not covered
under the Illinois Funeral or Burial Funds Act, including but
not limited to:
(1) memorials,
(2) markers,
(3) monuments,
(4) foundations, and
(5) outer burial containers.
(D) "Undeveloped interment, entombment or inurnment
spaces" or "undeveloped spaces" means any space to be used
for the reception of human remains that is not completely and
totally constructed at the time of initial payment therefor
in a:
(1) lawn crypt,
(2) mausoleum,
(3) garden crypt,
(4) columbarium, or
(5) cemetery section.
(E) "Cemetery services" means those services customarily
performed by cemetery or crematory personnel in connection
with the interment, entombment, inurnment or cremation of a
dead human body.
(F) "Cemetery section" means a grouping of spaces
intended to be developed simultaneously for the purpose of
interring human remains.
(G) "Columbarium" means an arrangement of niches that
may be an entire building, a complete room, a series of
special indoor alcoves, a bank along a corridor or part of an
outdoor garden setting that is constructed of permanent
material such as bronze, marble, brick, stone or concrete for
the inurnment of human remains.
(H) "Lawn crypt" means a permanent underground crypt
usually constructed of reinforced concrete or similar
material installed in multiple units for the entombment
interment of human remains.
(I) "Mausoleum" or "garden crypt" means a grouping of
spaces constructed of reinforced concrete or similar material
constructed or assembled above the ground for entombing human
remains.
(J) "Memorials, markers and monuments" means the object
usually comprised of a permanent material such as granite or
bronze used to identify and memorialize the deceased.
(K) "Foundations" means those items used to affix or
support a memorial or monument to the ground in connection
with the installation of a memorial, marker or monument.
(L) "Person" means an individual, corporation,
partnership, joint venture, business trust, voluntary
organization or any other form of entity.
(M) "Seller" means any person selling or offering for
sale cemetery merchandise, cemetery services or undeveloped
interment, entombment, or inurnment spaces in accordance with
a pre-need sales contract on a pre-need basis.
(N) "Religious cemetery" means a cemetery owned,
operated, controlled or managed by any recognized church,
religious society, association or denomination or by any
cemetery authority or any corporation administering, or
through which is administered, the temporalities of any
recognized church, religious society, association or
denomination.
(O) "Municipal cemetery" means a cemetery owned,
operated, controlled or managed by any city, village,
incorporated town, township, county or other municipal
corporation, political subdivision, or instrumentality
thereof authorized by law to own, operate or manage a
cemetery.
(O-1) "Outer burial container" means a container made of
concrete, steel, wood, fiberglass, or similar material, used
solely at the interment site, and designed and used
exclusively to surround or enclose a separate casket and to
support the earth above such casket, commonly known as a
burial vault, grave box, or grave liner, but not including a
lawn crypt.
(P) "Sales price" means the gross amount paid by a
purchaser on a pre-need sales contract for cemetery
merchandise, cemetery services or undeveloped interment,
entombment or inurnment spaces, excluding sales taxes, credit
life insurance premiums, finance charges and Cemetery Care
Act contributions.
(Q) (Blank).
(R) "Provider" means a person who is responsible for
performing cemetery services or furnishing cemetery
merchandise, interment spaces, entombment spaces, or
inurnment spaces under a pre-need sales contract.
(S) "Purchaser" or "buyer" means the person who
originally paid the money under or in connection with a
pre-need sales contract.
(T) "Parent company" means a corporation owning more than
12 cemeteries or funeral homes in more than one state.
(U) "Foreign warehouse facility" means a warehouse
facility now or hereafter located in any state or territory
of the United States, including the District of Columbia,
other than the State of Illinois.
A foreign warehouse facility shall be deemed to have
appointed the Comptroller to be its true and lawful attorney
upon whom may be served all legal process in any action or
proceeding against it relating to or growing out of this Act,
and the acceptance of the delivery of stored merchandise
under this Act shall be signification of its agreement that
any such process against it which is so served, shall be of
the same legal force and validity as though served upon it
personally.
Service of such process shall be made by delivering to
and leaving with the Comptroller, or any agent having charge
of the Comptroller's Department of Cemetery and Burial
Trusts, a copy of such process and such service shall be
sufficient service upon such foreign warehouse facility if
notice of such service and a copy of the process are, within
10 days thereafter, sent by registered mail by the plaintiff
to the foreign warehouse facility at its principal office and
the plaintiff's affidavit of compliance herewith is appended
to the summons. The Comptroller shall keep a record of all
process served upon him under this Section and shall record
therein the time of such service.
(Source: P.A. 91-7, eff. 1-1-2000; 91-357, eff. 7-29-99;
revised 8-30-99.)
(815 ILCS 390/5) (from Ch. 21, par. 205)
Sec. 5. It is unlawful for any seller person directly or
indirectly doing business within this State, through an agent
or otherwise to engage in pre-need sales without a license
issued by the Comptroller.
(Source: P.A. 84-239.)
(815 ILCS 390/6) (from Ch. 21, par. 206)
Sec. 6. License application.
(a) An application for a license shall be made in
writing to the Comptroller on forms prescribed by him or her,
signed by the applicant under oath verified by a notary
public, and shall be accompanied by a non-returnable $25
application fee. The Comptroller may prescribe abbreviated
application forms for persons holding a license under the
Cemetery Care Act. Applications (except abbreviated
applications) must include at least the following
information:
(1) The full name and address, both residence and
business, of the applicant if the applicant is an
individual; of every member if applicant is a
partnership; of every member of the Board of Directors if
applicant is an association; and of every officer,
director and shareholder holding more than 10% 5% of the
corporate stock if applicant is a corporation;
(2) A detailed statement of applicant's assets and
liabilities;
(2.1) The name and address of the applicant's
principal place of business at which the books, accounts,
and records are available for examination by the
Comptroller as required by this Act;
(2.2) The name and address of the applicant's
branch locations at which pre-need sales will be
conducted and which will operate under the same license
number as the applicant's principal place of business;
(3) For each individual listed under (1) above, a
detailed statement of the individual's business
experience for the 10 years immediately preceding the
application; any present or prior connection between the
individual and any other person engaged in pre-need
sales; any felony or misdemeanor convictions for which
fraud was an essential element; any charges or complaints
lodged against the individual for which fraud was an
essential element and which resulted in civil or criminal
litigation; any failure of the individual to satisfy an
enforceable judgment entered against him or her based
upon fraud; and any other information requested by the
Comptroller relating to the past business practices of
the individual. Since the information required by this
paragraph may be confidential or contain proprietary
information, this information shall not be available to
other licensees or the general public and shall be used
only for the lawful purposes of the Comptroller in
enforcing this Act;
(4) The name of the trustee and, if applicable, the
names of the advisors to the trustee, including a copy of
the proposed trust agreement under which the trust funds
are to be held as required by this Act;
(5) Where applicable, the name of the corporate
surety company providing the performance bond for the
construction of undeveloped spaces and a copy of the
bond; and
(6) Such other information as the Comptroller may
reasonably require in order to determine the
qualification of the applicant to be licensed under this
Act.
(b) Applications for license shall be accompanied by a
fidelity bond executed by the applicant and a security
company authorized to do business in this State in such
amount, not exceeding $10,000, as the Comptroller may
require. The Comptroller may require additional bond from
time to time in amounts equal to one-tenth of such trust
funds but not to exceed $100,000, which bond shall run to the
Comptroller for the use and benefit of the beneficiaries of
such trust funds. Such licensee may by written permit of the
Comptroller be authorized to operate without additional bond,
except such fidelity bond as may be required by the
Comptroller for the protection of the licensee against loss
by default by any of its employees engaged in the handling of
trust funds.
(c) Any application not acted upon within 90 days may be
deemed denied.
(Source: P.A. 88-477.)
(815 ILCS 390/7) (from Ch. 21, par. 207)
Sec. 7. The Comptroller may refuse to issue or may
suspend or revoke a license on any of the following grounds:
(a) The applicant or licensee has made any
misrepresentations or false statements or concealed any
material fact;
(b) The applicant or licensee is insolvent;
(c) The applicant or licensee has been engaged in
business practices that work a fraud;
(d) The applicant or licensee has refused to give
pertinent data to the Comptroller;
(e) The applicant or licensee has failed to satisfy any
enforceable judgment or decree rendered by any court of
competent jurisdiction against the applicant;
(f) The applicant or licensee has conducted or is about
to conduct business in a fraudulent manner;
(g) The trustee advisors or the trust agreement is not
in compliance with State or federal law satisfactory to the
Comptroller;
(h) The pre-construction performance bond, if
applicable, is not satisfactory to the Comptroller;
(i) The fidelity bond is not satisfactory to the
Comptroller;
(j) As to any individual listed in the license
application as required pursuant to Section 6, that such
individual has conducted or is about to conduct any business
on behalf of the applicant in a fraudulent manner,; has been
convicted of any felony or misdemeanor an essential element
of which is fraud, has had a judgment rendered against him or
her based on fraud in any civil litigation, or has failed to
satisfy any enforceable judgment or decree rendered against
him by any court of competent jurisdiction, or has been
convicted of any felony or any theft-related offense;
(k) The applicant or licensee has failed to make the
annual report required by this Act or to comply with a final
order, decision, or finding of the Comptroller made pursuant
to this Act;
(l) The applicant or licensee, including any member,
officer, or director thereof if the applicant or licensee is
a firm, partnership, association, or corporation and any
shareholder holding more than 10% of the corporate stock, has
violated any provision of this Act or any regulation or order
made by the Comptroller under this Act; or
(m) The Comptroller finds any fact or condition existing
which, if it had existed at the time of the original
application for such license would have warranted the
Comptroller in refusing the issuance of the license.
(Source: P.A. 85-842.)
(815 ILCS 390/8) (from Ch. 21, par. 208)
Sec. 8. (a) Every license issued by the Comptroller
shall state the number of the license, the business name and
address of the licensee's principal place of business, each
branch location also operating under the license, and the
licensee's parent company, if any. licensee at which the
business is to be conducted, and The license shall be
conspicuously posted in each the place of business operating
under the license. No more than one place of business shall
be maintained under the same license, but The Comptroller
may issue additional licenses as may be necessary for license
branch locations more than one license to a licensee upon
compliance with the provisions of this Act governing an
original issuance of a license for each new license.
(b) Individual salespersons representing employed by a
licensee shall not be required to obtain licenses in their
individual capacities but must acknowledge, by affidavit,
that they have been provided a copy of and have read this
Act. The licensee must retain copies of the affidavits of
its salespersons for its records and must make the affidavits
available to the Comptroller for examination upon request.
(c) The licensee shall be responsible for the activities
of any person representing the licensee in selling or
offering a pre-need contract for sale all individuals or
sales organizations selling under contract with, as agents or
on behalf of the licensee.
(d) Any sales company or other person not selling on
behalf of a licensee shall be required to obtain his or her
its own license.
(e) Any person engaged in pre-need sales, as defined
herein, prior to the effective date of this Act may continue
operations until the application for license under this Act
is denied; provided that such person shall make application
for a license within 60 days of the date that application
forms are made available by the Comptroller.
(f) No license shall be transferable or assignable
without the express written consent of the Comptroller. A
transfer of more than 50% of the ownership of any business
licensed hereunder shall be deemed to be an attempted
assignment of the license originally issued to the licensee
for which consent of the Comptroller shall be required.
(g) Every license issued hereunder shall remain in force
until the same has been suspended, surrendered or revoked in
accordance with this Act, but the Comptroller, upon the
request of an interested person or on his own motion, may
issue new licenses to a licensee whose license or licenses
have been revoked, if no factor or condition then exists
which would have warranted the Comptroller in refusing
originally the issuance of such license.
(Source: P.A. 84-239.)
(815 ILCS 390/8a)
Sec. 8a. Investigation of unlawful practices. If it
appears to the Comptroller that a person has engaged in, is
engaging in, or is about to engage in any practice in
violation of declared to be unlawful by this Act, the
Comptroller may:
(1) require that person to file on such terms as
the Comptroller prescribes a statement or report in
writing, under oath or otherwise, containing all
information the Comptroller may consider necessary to
ascertain whether a licensee is in compliance with this
Act, or whether an unlicensed person is engaging in
activities for which a license is required;
(2) examine under oath any person in connection
with the books and records pertaining to or having an
impact upon the trust funds required to be maintained
pursuant to this Act;
(3) examine any books and records of the licensee,
trustee, or investment advisor that the Comptroller may
consider necessary to ascertain compliance with this Act;
and
(4) require the production of a copy of any record,
book, document, account, or paper that is produced in
accordance with this Act and retain it in his or her
possession until the completion of all proceedings in
connection with which it is produced.
(Source: P.A. 89-615, eff. 8-9-96.)
(815 ILCS 390/9) (from Ch. 21, par. 209)
Sec. 9. The Comptroller may, upon his own motion
investigate the actions of any person providing, selling, or
offering pre-need sales contracts or of any applicant or any
person or persons holding or claiming to hold a license under
this Act. The Comptroller shall make such an investigation
on receipt of the verified written complaint of any person
setting forth facts which, if proved, would constitute
grounds for refusal, suspension, or revocation of a license
with respect to which grounds for revocation may occur or
exist, or if he shall find that such grounds for revocation
are of general application to all offices or to more than one
office operated by such licensee, he may revoke all of the
licenses issued to such licensee or such number of licensees
to which grounds apply, as the case may be. Before refusing
to issue, and before suspension or revocation of a license,
the Comptroller shall hold a hearing to determine whether the
applicant or licensee, hereafter called the respondent, is
entitled to hold such a license. At least 10 days prior to
the date set for such hearing, the Comptroller shall notify
the respondent in writing that on the date designated a
hearing will be held to determine his eligibility for a
license and that he may appear in person or by counsel.
Such written notice may be served on the respondent
personally, or by registered or certified mail sent to the
respondent's business address as shown in his latest
notification to the Comptroller and shall include sufficient
information to inform the respondent of the general nature of
the charge. At the hearing, both the respondent and the
complainant shall be accorded ample opportunity to present in
person or by counsel such statements, testimony, evidence and
argument as may be pertinent to the charges or to any defense
thereto. The Comptroller may reasonably continue such
hearing from time to time.
The Comptroller may subpoena any person or persons in
this State and take testimony orally, by deposition or by
exhibit, in the same manner and with the same fees and
mileage as prescribed in judicial proceedings in civil cases.
Any authorized agent of the Comptroller may administer
oaths to witnesses at any hearing which the Comptroller is
authorized to conduct.
The Comptroller, at his expense, shall provide a
certified shorthand reporter to take down the testimony and
preserve a record of all proceedings at the hearing of any
case involving the refusal to issue a license, the suspension
or revocation of a license, the imposition of a monetary
penalty, or the referral of a case for criminal prosecution.
The record of any such proceeding shall consist of the notice
of hearing, complaint, all other documents in the nature of
pleadings and written motions filed in the proceedings, the
transcript of testimony and the report and orders of the
Comptroller. Copies of the transcript of such record may be
purchased from the certified shorthand reporter who prepared
the record or from the Comptroller.
(Source: P.A. 84-239.)
(815 ILCS 390/12) (from Ch. 21, par. 212)
Sec. 12. License revocation or suspension.
(a) The Comptroller may, upon determination that grounds
exist for the revocation or suspension of a license issued
under this Act, revoke or suspend, if appropriate, the
license issued to a licensee or to a particular branch office
location with respect to which the grounds for revocation or
suspension may occur or exist.
(b) Upon the revocation or suspension of any license,
the licensee shall immediately surrender the license or
licenses and any branch office licenses to the Comptroller.
If the licensee fails to do so, the Comptroller has the right
to seize the license or licenses same.
(Source: P.A. 84-239.)
(815 ILCS 390/14) (from Ch. 21, par. 214)
Sec. 14. Contract required.
(a) It is unlawful for any person seller doing business
within this State to accept sales proceeds, either directly
or indirectly, by any means, unless the seller enters into a
pre-need sales contract with the purchaser which meets the
following requirements:
(1) A written sales contract shall be executed in
at least 11 point type in duplicate for each pre-need
sale made by a licensee, and a signed copy given to the
purchaser. Each completed contract shall be numbered and
shall contain: (i) the name and address of the purchaser,
the principal office of the licensee, and the parent
company of the licensee; (ii) and the seller, the name
of the person, if known, who is to receive the cemetery
merchandise, cemetery services or the completed
interment, entombment or inurnment spaces under the
contract; and (iii) specific identification of
specifically identify such merchandise, services or
spaces to be provided, if a specific space or spaces are
contracted for, and the price of the merchandise,
services, or space or spaces.
(2) In addition, such contracts must contain a
provision in distinguishing typeface as follows:
"Notwithstanding anything in this contract to the
contrary, you are afforded certain specific rights of
cancellation and refund under Sections 18 and 19 of the
Illinois Pre-Need Cemetery Sales Act, enacted by the 84th
General Assembly of the State of Illinois".
(3) All pre-need sales contracts shall be sold on a
guaranteed price basis. At the time of performance of the
service or delivery of the merchandise, the seller shall
be prohibited from assessing the purchaser or his heirs
or assigns or duly authorized representative any
additional charges for the specific merchandise and
services listed on the pre-need sales contract.
(4) Each contract shall clearly disclose that the
price of the merchandise or services is guaranteed and
shall contain the following statement in 12 point bold
type:
"THIS CONTRACT GUARANTEES THE BENEFICIARY THE
SPECIFIC GOODS, AND SERVICES, INTERMENT SPACES,
ENTOMBMENT SPACES, AND INURNMENT SPACES CONTRACTED FOR.
NO ADDITIONAL CHARGES MAY BE REQUIRED. FOR DESIGNATED
GOODS, AND SERVICES, AND SPACES. ADDITIONAL CHARGES MAY
BE INCURRED FOR UNEXPECTED EXPENSES."
(5) The pre-need sales contract shall provide that
if the particular cemetery services, cemetery
merchandise, or spaces specified in the pre-need contract
are unavailable at the time of delivery, the seller shall
be required to furnish services, merchandise, and spaces
similar in style and at least equal in quality of
material and workmanship.
(6) The pre-need contract shall also disclose any
specific penalties to be incurred by the purchaser as a
result of failure to make payments; and penalties to be
incurred or moneys or refunds to be received as a result
of cancellation of the contract.
(7) The pre-need contract shall disclose the nature
of the relationship between the provider and the seller.
(8) Each pre-need contract that authorizes the
delivery of cemetery merchandise to a licensed and bonded
warehouse shall provide that prior to or upon delivery of
the merchandise to the warehouse the title to the
merchandise and a warehouse receipt shall be delivered to
the purchaser or beneficiary. The pre-need contract
shall contain the following statement in 12 point bold
type:
"THIS CONTRACT AUTHORIZES THE DELIVERY OF MERCHANDISE TO
A LICENSED AND BONDED WAREHOUSE FOR STORAGE OF THE
MERCHANDISE UNTIL THE MERCHANDISE IS NEEDED BY THE
BENEFICIARY. DELIVERY OF THE MERCHANDISE IN THIS MANNER
MAY PRECLUDE REFUND OF SALE PROCEEDS THAT ARE
ATTRIBUTABLE TO THE DELIVERED MERCHANDISE."
The purchaser shall initial the statement at the
time of entry into the pre-need contract.
(9) Each pre-need contract that authorizes the
placement of cemetery merchandise at the site of its
ultimate use prior to the time that the merchandise is
needed by the beneficiary shall contain the following
statement in 12 point bold type:
"THIS CONTRACT AUTHORIZES THE PLACEMENT OF MERCHANDISE AT
THE SITE OF ITS ULTIMATE USE PRIOR TO THE TIME THAT THE
MERCHANDISE IS NEEDED BY THE BENEFICIARY. DELIVERY OF THE
MERCHANDISE IN THIS MANNER MAY PRECLUDE REFUND OF SALE
PROCEEDS THAT ARE ATTRIBUTABLE TO THE DELIVERED
MERCHANDISE."
The purchaser shall initial the statement at the
time of entry into the pre-need contract.
(b) Every pre-need sales contract must be in writing.,
and no pre-need sales contract form may be used unless it has
previously been filed with the Comptroller. The Comptroller
shall review all pre-need sales contract forms and, upon
written notification to the seller, shall prohibit the use of
contract forms that do not meet the requirements of this Act.
Any use or attempted use of any oral pre-need sales contract
or any written pre-need sales contract in a form not filed
with the Comptroller or in a form that does not meet the
requirements of this Act shall be deemed a violation of this
Act. The Comptroller may by rule develop a model pre-need
sales contract form that meets the requirements of this Act.
(c) To the extent the Rule is applicable, every pre-need
sales contract is subject to the Federal Trade Commission
Rule concerning the Cooling-Off Period for Door-to-Door Sales
(16 CFR Part 429).
(d) No pre-need sales contract may be entered into in
this State unless there is a provider for the cemetery
merchandise, cemetery services, and undeveloped interment,
inurnment, and entombment spaces being sold. If the seller
is not the provider, then the seller must have a binding
agreement with a provider, and the identity of the provider
and the nature of the agreement between the seller and the
provider must be disclosed in the pre-need sales contract at
the time of sale and before the receipt of any sale proceeds.
The failure to disclose the identity of the provider, the
nature of the agreement between the seller and the provider,
or any changes thereto to the purchaser and beneficiary, or
the failure to make the disclosures required by this Section
constitutes an intentional violation of this Act.
(e) No pre-need contract may be entered into in this
State unless it is accompanied by a funding mechanism
permitted under this Act and unless the seller is licensed by
the Comptroller as provided in this Act. Nothing in this Act
is intended to relieve providers or sellers of pre-need
contracts from being licensed under any other Act required
for their profession or business or from being subject to the
rules promulgated to regulate their profession or business,
including rules on solicitation and advertisement.
(f) No pre-need contract may be entered into in this
State unless the seller explains to the purchaser the terms
of the pre-need contract prior to the purchaser signing and
the purchaser initials a statement in the contract confirming
that the seller has explained the terms of the contract prior
to the purchaser signing.
(g) The State Comptroller shall develop a booklet for
consumers in plain English describing the scope, application,
and consumer protections of this Act. After the booklet is
developed, no pre-need contract may be sold in this State
unless the seller distributes to the purchaser prior to the
sale a booklet developed or approved for use by the State
Comptroller.
(Source: P.A. 91-7, eff. 1-1-2000.)
(815 ILCS 390/16) (from Ch. 21, par. 216)
Sec. 16. Trust funds; disbursements.
(a) A trustee shall make no disbursements from the trust
fund except as provided in this Act.
(b) A trustee shall, with respect to the investment of
such trust funds, exercise the judgment and care under the
circumstances then prevailing which persons of prudence,
discretion and intelligence exercise in the management of
their own affairs, not in regard to speculation, but in
regard to the permanent disposition of their funds,
considering the probable income as well as the probable
safety of their capital.
The seller shall act as trustee of all amounts received
for cemetery merchandise, services, or undeveloped spaces
until those amounts have been deposited into the trust fund.
The seller may continue to be the trustee of up to $500,000
that has been deposited into the trust fund, but the seller
must retain an independent trustee for any amount of trust
funds in excess of $500,000. A seller holding trust funds in
excess of $500,000 on the effective date of this amendatory
Act of 1996 shall have 36 months to retain an independent
trustee for the amounts over $500,000; any other seller must
retain an independent trustee for its trust funds in excess
of $500,000 as soon as may be practical. The Comptroller
shall have the right to disqualify the trustee upon the same
grounds as for refusing to grant or revoking a license
hereunder. Upon notice to the Comptroller, the seller may
change the trustee of the trust fund.
(c) The trustee may rely upon certifications and
affidavits made to it under the provisions of this Act, and
shall not be liable to any person for such reliance.
(d) A trustee shall be allowed to withdraw from the
trust funds maintained pursuant to this Act, payable solely
from the income earned on such trust funds, a reasonable fee
for all usual and customary services for the operation of the
trust fund, including, but not limited to trustee fees,
investment advisor fees, allocation fees, annual audit fees
and other similar fees. The maximum amount allowed to be
withdrawn for these fees each year shall be the lesser of 3%
of the balance of the trust calculated on an annual basis or
the amount of annual income generated therefrom.
(e) The trust shall be a single-purpose trust fund. In
the event of the seller's bankruptcy, insolvency or
assignment for the benefit of creditors, or an adverse
judgment, the trust funds shall not be available to any
creditor as assets of the seller or to pay any expenses of
any bankruptcy or similar proceeding, but shall be
distributed to the purchasers or managed for their benefit by
the trustee holding the funds. Except in an action by the
Comptroller to revoke a license issued pursuant to this Act
and for creation of a receivership as provided in this Act,
the trust shall not be subject to judgment, execution,
garnishment, attachment, or other seizure by process in
bankruptcy or otherwise, nor to sale, pledge, mortgage, or
other alienation, and shall not be assignable except as
approved by the Comptroller. The changes made by this
amendatory Act of the 91st General Assembly are intended to
clarify existing law regarding the inability of licensees to
pledge the trust.
(f) Because it is not known at the time of deposit or at
the time that income is earned on the trust account to whom
the principal and the accumulated earnings will be
distributed, for purposes of determining the Illinois Income
Tax due on these trust funds, the principal and any accrued
earnings or losses relating to each individual account shall
be held in suspense until the final determination is made as
to whom the account shall be paid.
(Source: P.A. 91-7, eff. 6-1-99.)
(815 ILCS 390/19) (from Ch. 21, par. 219)
Sec. 19. Construction or development of spaces.
(a) The construction or development of undeveloped
interment, entombment or inurnment spaces shall be commenced
on that phase, section or sections of undeveloped ground or
section of lawn crypts, mausoleums, garden crypts,
columbariums or cemetery spaces in which sales are made
within 3 years of the date of the first such sale. The
seller shall give written notice to the Comptroller no later
than 30 days after the first sale. Such notice shall include
a description of the project. Once commenced, construction
or development shall be pursued diligently to completion.
The construction must be completed within 6 years of the
first sale. If construction or development is not commenced
or completed within the times specified herein, any purchaser
may surrender and cancel the contract and upon cancellation
shall be entitled to a refund of the actual amounts paid
toward the purchase price plus interest attributable to such
amount earned while in trust; provided however that any delay
caused by strike, shortage of materials, civil disorder,
natural disaster or any like occurrence beyond the control of
the seller shall extend the time of such commencement and
completion by the length of such delay.
(b) At any time within 12 months of a purchaser's
entering into a pre-need contract for undeveloped interment,
entombment or inurnment spaces, a purchaser may surrender and
cancel his or her contract and upon cancellation shall be
entitled to a refund of the actual amounts paid toward the
purchase price plus interest attributable to such amount
earned while in trust. Notwithstanding the foregoing, the
cancellation and refund rights specified in this paragraph
shall terminate as of the date the seller commences
construction or development of the phase, section or sections
of undeveloped spaces in which sales are made. After the
rights of cancellation and refund specified herein have
terminated, if a purchaser defaults in making payments under
the pre-need contract, the seller shall have the right to
cancel the contract and withdraw from the trust fund the
entire balance to the credit of the defaulting purchaser's
account as liquidated damages. In such event, the trustee
shall deliver said balance to the seller upon its
certification, and upon receiving said certification the
trustee may rely thereon and shall not be liable to anyone
for such reliance.
(c) During the construction or development of interment,
entombment or inurnment spaces, upon the sworn certification
by the seller and the contractor to the trustee, the trustee
shall disburse from the trust fund the amount equivalent to
the cost of performed labor or delivered materials as
certified. Said certification shall be substantially in the
following form:
We, the undersigned, being respectively the Seller and
Contractor, do hereby certify that the Contractor has
performed labor or delivered materials or both to (address of
property) .........., in connection with a contract to
.........., and that as of this date the value of the labor
performed and materials delivered is $.......
We do further certify that in connection with such
contract there remains labor to be performed, and materials
to be delivered, of the value of $........
This Certificate is signed (insert date).
............ ............
Seller Contractor
A person who executes and delivers a completion
certificate with actual knowledge of a falsity contained
therein shall be considered in violation of this Act and
subject to the penalties contained herein.
(d) Except as otherwise authorized by this Section,
every seller of undeveloped spaces shall provide facilities
for temporary interment, entombment or inurnment for
purchasers or beneficiaries of contracts who die prior to
completion of the space. Such temporary facilities shall be
constructed of permanent materials, and, insofar as
practical, be landscaped and groomed to the extent customary
in the cemetery industry in that community. The heirs,
assigns, or personal representative of a purchaser or
beneficiary shall not be required to accept temporary
underground interment spaces where the undeveloped space
contracted for was an above ground entombment or inurnment
space. In the event that temporary facilities as described
in this paragraph are not made available, upon the death of a
purchaser or beneficiary, the heirs, assigns, or personal
representative is entitled to a refund of the entire sales
price paid plus undistributed interest attributable to such
amount while in trust.
(e) If the seller delivers a completed space acceptable
to the heirs, assigns or personal representative of a
purchaser or beneficiary, other than the temporary facilities
specified herein, in lieu of the undeveloped space purchased,
the seller shall provide the trustee with a delivery
certificate and all sums deposited under the pre-need sales
contract, including the undistributed income, shall be paid
to the seller.
(f) Upon completion of the phase, section or sections of
the project as certified to the trustee by the seller and the
contractor and delivery of the deed or certificate of
ownership to the completed interment, entombment, or
inurnment space to all of the purchasers entitled to receive
those ownership documents, the trust fund requirements set
forth herein shall terminate and all funds held in the
preconstruction trust fund attributable to the completed
phase, section or sections, including interest accrued
thereon, shall be returned to the seller.
(g) This Section shall not apply to the sale of
undeveloped spaces if there has been any such sale in the
same phase, section or sections of the project prior to the
effective date of this Act.
(Source: P.A. 91-357, eff. 7-29-99.)
(815 ILCS 390/20) (from Ch. 21, par. 220)
Sec. 20. Records.
(a) Each licensee must keep accurate accounts, books and
records in this State at the principal place of business
identified in the licensee's license application or as
otherwise approved by the Comptroller in writing of all
transactions, copies of agreements, dates and amounts of
payments made or received, the names and addresses of the
contracting parties, the names and addresses of persons for
whose benefit funds are received, if known, and the names of
the trust depositories. Additionally, for a period not to
exceed 6 months after the performance of all terms in a
pre-need sales contract, the licensee shall maintain copies
of each pre-need contract at the licensee branch location
where the contract was entered or at some other location
agreed to by the Comptroller in writing.
(b) Each licensee must maintain such records for a
period of 3 years after the licensee shall have fulfilled his
or her obligation under the pre-need contract or 3 years
after any stored merchandise shall have been provided to the
purchaser or beneficiary, whichever is later.
(c) Each licensee shall submit reports to the
Comptroller annually, under oath, on forms furnished by the
Comptroller. The annual report shall contain, but shall not
be limited to, the following:
(1) An accounting of the principal deposit and
additions of principal during the fiscal year.
(2) An accounting of any withdrawal of principal or
earnings.
(3) An accounting at the end of each fiscal year,
of the total amount of principal and earnings held.
(d) The annual report shall be filed by the licensee
with the Comptroller within 75 days after the end of the
licensee's fiscal year. An extension of up to 60 days may be
granted by the Comptroller, upon a showing of need by the
licensee. Any other reports shall be in the form furnished
or specified by the Comptroller. If a licensee fails to
submit an annual report to the Comptroller within the time
specified in this Section, the Comptroller shall impose upon
the licensee a penalty of $5 for each and every day the
licensee remains delinquent in submitting the annual report.
The Comptroller may abate all or part of the $5 daily penalty
for good cause shown. Each report shall be accompanied by a
check or money order in the amount of $10 payable to:
Comptroller, State of Illinois.
(e) On and after the effective date of this amendatory
Act of the 91st General Assembly, a licensee may report all
required information concerning the sale of outer burial
containers on the licensee's annual report required to be
filed under this Act and shall not be required to report that
information under the Illinois Funeral or Burial Funds Act,
as long as the information is reported under this Act.
(Source: P.A. 91-7, eff. 1-1-2000.)
(815 ILCS 390/22) (from Ch. 21, par. 222)
Sec. 22. Cemetery Consumer Protection Fund.
(a) Every seller engaging in pre-need sales shall pay to
the Comptroller $5 for each said contract entered into, to be
paid into a special income earning fund hereby created in the
State Treasury, known as the Cemetery Consumer Protection
Fund. The above said fees shall be remitted to the
Comptroller semi-annually within 30 days after the end of
June and December for all contracts that have been entered in
such 6 month period.
(b) All monies paid into the fund together with all
accumulated undistributed income thereon shall be held as a
special fund in the State Treasury. The fund shall be used
solely for the purpose of providing restitution to consumers
who have suffered pecuniary loss arising out of pre-need
sales.
(c) The fund shall be applied only to restitution or
completion of the project or delivery of the merchandise or
services, where such has been ordered by the Circuit Court in
a lawsuit brought under this Act by the Attorney General of
the State of Illinois on behalf of the Comptroller and in
which it has been determined by the Court that the obligation
is non-collectible from the judgment debtor. Restitution
shall not exceed the amount of the sales price paid plus
interest at the statutory rate. The fund shall not be used
for the payment of any attorney or other fees.
(d) Whenever restitution is paid by the fund, the fund
shall be subrogated to the amount of such restitution, and
the Comptroller shall request the Attorney General to engage
in all reasonable post judgment collection steps to collect
said restitution from the judgment debtor and reimburse the
fund.
(e) The fund shall not be applied toward any restitution
for losses in any lawsuit initiated by the Attorney General
or Comptroller or with respect to any claim made on pre-need
sales which occurred prior to the effective date of this Act.
(f) The fund may not be allocated for any purpose other
than that specified in this Act.
(g) Notwithstanding any other provision of this Section,
the payment of restitution from the fund shall be a matter of
grace and not of right and no purchaser shall have any vested
rights in the fund as a beneficiary or otherwise. Prior to
seeking restitution from the fund, a purchaser or beneficiary
seeking payment of restitution shall apply for restitution on
a form provided by the Comptroller. The form shall include
any information the Comptroller may reasonably require in
order for the Court to determine that restitution or
completion of the project or delivery of merchandise or
service is appropriate.
(h) Annually, the status of the fund shall be reviewed
by the Comptroller, and if he determines that the fund
together with all accumulated income earned thereon, equals
or exceeds $10,000,000 and that the total number of
outstanding claims filed against the fund is less than 10% of
the fund's current balance, then payments to the fund shall
be suspended until such time as the fund's balance drops
below $10,000,000 or the total number of outstanding claims
filed against the fund is more than 10% of the fund's current
balance, but on such suspension, the fund shall not be
considered inactive.
(Source: P.A. 84-239.)
(815 ILCS 390/23) (from Ch. 21, par. 223)
Sec. 23. (a) Any person who fails to deposit the required
amount into a trust provided for in this Act, improperly
withdraws or uses trust funds for his or her own benefit, or
otherwise violates violating any provision of this Act is
guilty of a Class 4 felony.
(b) If any person violates this Act or fails or refuses
to comply with any order of the Comptroller or any part
thereof which to such person has become final and is still in
effect, the Comptroller may, after notice and hearing at
which it is determined that a violation of this Act or such
order has been committed, further order that such person
shall forfeit and pay to the State of Illinois a sum not to
exceed $5,000 for each violation. Such liability shall be
enforced in an action brought in any court of competent
jurisdiction by the Comptroller in the name of the people of
the State of Illinois.
(c) Whenever a license is revoked by the Comptroller, or
the Comptroller determines that any person is engaged in
pre-need sales without a license, he shall apply to the
circuit court of the county where such person is located for
a receiver to administer the business of such person.
(d) Whenever a licensee fails or refuses to make a
required report or whenever it appears to the Comptroller
from any report or examination that such licensee has
committed a violation of law or that the trust funds have not
been administered properly or that it is unsafe or
inexpedient for such licensee or the trustee of the trust
funds of such licensee to continue to administer such funds
or that any officer of such licensee or of the trustee of the
trust funds of such licensee has abused his trust or has been
guilty of misconduct or breach of trust in his official
position injurious to such licensee or that such licensee has
suffered as to its trust funds a serious loss by larceny,
embezzlement, burglary, repudiation or otherwise, the
Comptroller shall, by order, direct the discontinuance of
such illegal, unsafe or unauthorized practices and shall
direct strict conformity with the requirements of the law and
safety and security in its transactions and may apply to the
circuit court of the county where such licensee is located to
prevent any disbursements or expenditures by such licensee
until the trust funds are in such condition that it would not
be jeopardized thereby and the Comptroller shall communicate
the facts to the Attorney General of the State of Illinois
who shall thereupon institute such proceedings against the
licensee or its trustee or the officers of either or both as
the nature of the case may require.
(e) In addition to the other penalties and remedies
provided in this Act, the Comptroller may bring a civil
action in the county of residence of the licensee or any
person engaging in pre-need sales, to enjoin any violation or
threatened violation of this Act.
(f) The powers vested in the Comptroller by this Section
are additional to any and all other powers and remedies
vested in the Comptroller by law, and nothing herein
contained shall be construed as requiring that the
Comptroller shall employ the powers conferred herein instead
of or as a condition precedent to the exercise of any other
power or remedy vested in the Comptroller.
(Source: P.A. 88-477.)
(815 ILCS 390/27.1 new)
Sec. 27.1. Sales; liability of purchaser for shortage.
In the event of a sale or transfer of all or substantially
all of the assets of the licensee, the sale or transfer of
the controlling interest of the corporate stock of the
licensee if the licensee is a corporation, the sale or
transfer of the controlling interest of the partnership if
the licensee is a partnership, or sale pursuant to
foreclosure proceedings, the purchaser is liable for any
shortages existing before or after the sale in the trust
funds required to be maintained in a trust under this Act and
shall honor all pre-need contracts and trusts entered into by
the licensee. Any shortages existing in the trust funds
constitute a prior lien in favor of the trust for the total
value of the shortages, and notice of that lien must be
provided in all sales instruments.
In the event of a sale or transfer of all or
substantially all of the assets of the licensee, the sale or
transfer of the controlling interest of the corporate stock
of the licensee if the licensee is a corporation, or the sale
or transfer of the controlling interest of the partnership if
the licensee is a partnership, the licensee shall, at least
21 days prior to the sale or transfer, notify the
Comptroller, in writing, of the pending date of sale or
transfer so as to permit the Comptroller to audit the books
and records of the licensee. The audit must be commenced
within 10 business days after the receipt of the notification
and completed within the 21-day notification period unless
the Comptroller notifies the licensee during that period that
there is a basis for determining a deficiency which will
require additional time to finalize. The sale or transfer
may not be completed by the licensee unless and until:
(i) the Comptroller has completed the audit of the
licensee's books and records;
(ii) any delinquency existing in the trust funds has
been paid by the licensee, or arrangements satisfactory
to the Comptroller have been made by the licensee on the
sale or transfer for the payment of any delinquency;
(iii) the Comptroller issues a license upon
application of the new owner, which license must be
applied for within 30 days after the anticipated date of
the sale or transfer, subject to the payment of any
delinquencies, if any, as stated in item (ii).
For purposes of this Section, a person, firm,
corporation, partnership, or institution that acquires the
licensee through a real estate foreclosure is subject to the
provisions of this Section.
Section 50. Severability. If any provision of this Act or
its application to any person or circumstance is held
invalid, the invalidity of that provision or application does
not affect other provisions or applications of this Act that
can be given effect without the invalid provision or
application.
Section 99. Effective date. This Act takes effect
January 1, 2002.
Passed in the General Assembly May 23, 2001.
Approved August 17, 2001.
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