This rule implements Section 497.372(2), F.S., providing that the board shall adopt by rule criteria for determining whether the required affiliation exists between a funeral director and a funeral establishment, through the funeral director’s ...

 

DEPARTMENT OF FINANCIAL SERVICES

Division of Funeral, Cemetery, and Consumer Services

RULE NO.:RULE TITLE:

69K-100.040Funeral Director Affiliation With Funeral Establishment

PURPOSE AND EFFECT: This rule implements Section 497.372(2), F.S., providing that the board shall adopt by rule criteria for determining whether the required affiliation exists between a funeral director and a funeral establishment, through the funeral director’s ownership of, employment by, or contractual relationship with, a funeral establishment. This rule was approved by the Board of Funeral, Cemetery, and Consumer Services at its public meeting on Jan. 6, 2011.

SUMMARY: This rule established criteria for determining whether a required affiliation exists between a funeral director and a funeral establishment, through the funeral director’s ownership of, employment by, or contractual relationship with, a funeral establishment.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has been prepared by the agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The vast majority of the funeral directors, and funeral establishments, are already in compliance with the requirements of the rule. The rule specifies criteria for determining whether there is an affiliation between a funeral director and a funeral establishment, which criteria are consistent with existing marketplace norms of practice. The Division estimates there may be 25 funeral directors statewide that are currently practicing funeral directing not in affiliation with a funeral establishment within the contemplation of the rule. These funeral directors will have to find a funeral establishment with which to establish an affiliation, and accomplish the paperwork contemplated by the rule by which the affiliation is established. In the majority of cases this will mean that the funeral director must obtain employment at a funeral establishment. If we assume that those 25 funeral directors stop activity as funeral directors pending obtaining the required affiliation, and that it takes them 4 weeks to obtain employment or other affiliation, and that during those 4 weeks they forgo approximately $500 per week in income they had previously received as unaffiliated funeral directors, then the aggregate lost income to all 25 of them is estimated at $50,000 ((25 * $500) * 4). The Division estimates that there may be 10 funeral establishments, all small businesses, that have a funeral director working for them as a contract vendor, based on oral contract. These funeral establishments will have to create a written contract. The Division estimates that this will take, on average, 1 hour of funeral establishment staff time, at an estimated value of $40 per hour, and 1 hour of funeral establishment's attorney time to review the matter, at $200 per hour. The estimated cost in aggregate, for all 10 funeral establishments, would thus be $2,400 (($40+$200)*10).

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 497.372(2); 497.103(1), (5) FS.

LAW IMPLEMENTED: 497.372(2) FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

DATE AND TIME: September 10, 2013, 9:00 a.m.

PLACE: Room 332, Pepper Building, 111 W. Madison Street, Tallahassee, Florida

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: LaTonya Bryant, at [phone], or by email at [e-mail].. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice). If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Douglas Shropshire, Executive Director, Board of Funeral, Cemetery, and Consumer Services, Division of Funeral, Cemetery, and Consumer Services, Department of Financial Services, 200 East Gaines Street, Tallahassee, FL 32399-0361; [phone]; [e-mail]. Direct any request for a hearing to Mr. Shropshire

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

69K-100.040 Funeral Director Affiliation With Funeral Establishment.

(1) This rule implements Section 497.372(2), F.S., providing that the board shall adopt by rule criteria for determining whether the required affiliation exists between a funeral director and a funeral establishment, through the funeral director’s ownership of, employment by, or contractual relationship with, a funeral establishment. The criteria listed below shall determine whether the required affiliation exists.

(2) OWNERSHIP. A funeral director who asserts affiliation with a funeral establishment by ownership of such funeral establishment, shall, upon request of the Division of Funeral, Cemetery, and Consumer Services (Division) demonstrate such ownership by:

(a) Being named as owner or principal of the funeral establishment licensee in the funeral establishment’s application for funeral establishment license in the records of the Division;

(b) Being named as owner or principal of the funeral establishment licensee in an application for approval of change in ownership of the funeral establishment in the records of the Division;

(c) Providing an executed contract for sale, or bill of sale, or other executed legal document showing the purchase of an ownership interest in the funeral establishment by the funeral director; or

(d) Providing executed articles of incorporation, partnership agreement, or limited liability company formation or operating agreement, showing the funeral director as incorporator, member, partner, or principal in the entity that owns or controls the funeral establishment.

(3) EMPLOYMENT. A funeral director who asserts affiliation with a funeral establishment by employment by that funeral establishment, shall upon request by the Division demonstrate such employment by:

(a) Providing a written employment agreement between the funeral director and the funeral establishment, executed by the funeral director and the funeral establishment prior to the funeral director providing services to the funeral establishment during the period of the asserted employment; or

(b) Providing documentary evidence that the funeral establishment has paid federal Insurance Contributions Act (FICA) tax in regard to gross compensation of the funeral director by the funeral establishment for the period of the asserted employment,

(4) CONTRACTUAL RELATIONSHIP. A funeral director who asserts affiliation with a funeral establishment by contractual relationship with the funeral establishment, shall upon request by the Division demonstrate such contractual relationship by:

(a) Providing a copy of a written contract between the funeral director and the funeral establishment, calling for the funeral director to provide services on behalf of the funeral establishment, upon request. The contract shall be dated and executed by the funeral director and the funeral establishment.

Rulemaking Authority 497.372(2), 497.103(1), (5) FS. Law implemented 497.372 FS. History–New__________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Douglas Shropshire, as Executive Director, Board of Funeral, Cemetery, and Consumer Services

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Board of Funeral, Cemetery, and Consumer Services, under Section 497.101, F.S.

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: January 6, 2011

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: July 29, 2011