These rules are being amended to clarify which persons and entities are subject to the rule requirements; remove unnecessary language; change the Department’s website address; revise form numbers; and update the history notes. These proposed rules ...

Notice of Proposed Rule

 

DEPARTMENT OF FINANCIAL SERVICES

Division of Funeral, Cemetery, and Consumer Services

RULE NOS.:RULE TITLES:

69K-5.003Application for Registration of a Preneed Sales Agent

69K-5.0031Definition of Good Standing With the Board of Funeral, Cemetery, and Consumer Services

69K-5.004Procedures for Licensing a New Cemetery

69K-5.006Procedure for Licensing Transferred Cemeteries

69K-5.007Conversion Procedures

PURPOSE AND EFFECT: These rules are being amended to clarify which persons and entities are subject to the rule requirements; remove unnecessary language; change the Department’s website address; revise form numbers; and update the history notes. These proposed rules were approved by the Board of Funeral, Cemetery, and Consumer Services at its meeting on April 30, 2015.

SUMMARY: The rule more closely tracks the language utilized in the statutes with regard to preneed sales agents and cemetery regulation, removes requirements already contained in the statute and updates Department addresses.

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 not 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 Department conducted an economic analysis of the potential impact of the proposed rule repeal and determined that there will be no adverse economic impact or regulatory increases that would require legislative ratification.

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: 497.103, 497.466(8)(a) FS.

LAW IMPLEMENTED: 497.263, 497.264, 497.265, 497.266, 497.268, 497.2983, 497.466(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 (IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):

DATE AND TIME: Monday, November 23, 2015, 9:00 a.m.

PLACE: 116 Larson Building, 200 East Gaines 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: Ellen Simon, telephone: [phone] or e-mail: [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).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Ellen Simon, Assistant Director, Division of Funeral, Cemetery, and Consumer Services, Department of Financial Services, address: 200 East Gaines Street, Tallahassee, Florida 32399-0361, telephone: [phone], e-mail: [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

69K-5.003 Application for Registration of a Preneed Sales Agent License and Appointment.

(1) Each person desiring to obtain registration as a preneed sales agent license for a preneed licensee shall apply to the Department Board by submitting the following by certified mail or online:

(a) A completed application for Application Registration of a Preneed Sales Agent, Form DFS-PNS-1, adopted in Rule 69K-1.001, F.A.C effective 4-25-94, which is hereby incorporated by reference and available by mail from the Department of Financial Services, 200 East Gaines Street, Tallahassee, Florida 32399-0361. The application registration must be completed and signed by an authorized representative of the preneed licensee within thirty (30) days prior to receipt by the Department;

(b) No change.

(2) Request for Additional Information. Any request for additional information will be made by the Department within thirty (30) days after receipt of the application by the Department. The additional information must be received by the Department within forty-five (45) days from the date of request. Failure to respond to the request for additional information within forty-five (45) days from the date of request shall be construed by the Board to be grounds for denial of the application for failure to complete the application, and the application shall be denied pursuant to subsection Section 120.60(2), F.S.

(3) Amendment of Application Registration. An applicant may amend the application registration as to those factors generally within the control or selection of the applicant, once, as a matter of course, at any time within thirty (30) days from its receipt for filing. Otherwise, the application registration may be amended only with prior permission from the Department. Any unapproved requests to make changes filed at any time after the application registration has been received shall be deemed by the Board to be grounds for denial, and a new registration, accompanied by the appropriate fee, shall be required.

(4) Withdrawal of Application Registration. An applicant, or sponsoring preneed licensee, can request withdrawal of an application a registration prior to a determination of the application being made by the Board of Funeral, Cemetery, and Consumer Services by submitting a written request that the application registration be withdrawn.

(5) Denial of Application Registration. The Department shall notify the applicant at the address of the sponsoring preneed licensee of the Board’s intent to deny the application. Upon receipt of the notification, the applicant shall cease conducting business as a preneed sales agent. Upon receipt of the notification, the preneed licensee will use due diligence to stop the preneed sales agent from conducting business as a preneed sales agent on behalf of the preneed licensee. If a request for a hearing has not been received within twenty-six (26) days of the date of the notification, the application shall be denied.

(6) Refunds. If the application registration is withdrawn or denied, the application fee is non-refundable.

(7) Upon approval of the application, a license registration will be issued for the remainder of the biennial registration period effective the later of the date the application was received or the date the last deficiency on the application was resolved.

(8) A separate license registration is required for each different preneed licensee represented by the applicant.

Rulemaking Authority 497.103, 497.466(8)(a) 497.466(2) FS. Law Implemented 497.466 FS. History–New 4-25-94, Formerly 3F-5.003, Amended 6-22-09, _________.

 

69K-5.0031 Definition of Good Standing With the Board of Funeral, Cemetery, and Consumer Services.

RulemakingSpecific Authority 497.103 FS. Law Implemented 497.466(2) FS. History–New 4-23-95, Formerly 3F-5.0031, Repealed_________.

 

69K-5.004 Procedures for Licensing a New Cemetery.

(1) Any corporation, partnership or limited liability company legal entity wishing to establish a cemetery should review the requirements of the Florida Funeral, Cemetery, and Consumer Services Act (Chapter 497, F.S.) and applicable rules and regulations before filing a formal application for permission to start a cemetery in the State of Florida. The following should then be completed and submitted to the Department Board:

(a) Application To Organize A New Cemetery Company, Form DFS-CEMN 7/01, adopted in Rule 69K-1.001, F.A.C., incorporated herein by reference, effective 6-26-02 and a non-refundable fee in the amount of $5,005;

(b) Completion of an Application to Transact Cemetery Business, Form DFS-CEM, and a license fee of $255 to $4,905 depending on the applicant’s most current annual gross sales, refundable if license is not issued;

Historical Sketch, as referenced in Rule 69K-5.002, F.A.C.;

(c) Current Financial Statement of each proponent, Form DFS-F-32 10/91, adopted in Rule 69K-1.001, F.A.C. effective October 23, 1991, which is hereby incorporated by reference;

(d) Creation of a legal entity to conduct the cemetery business;

(e) The proposed financial structure of the cemetery;

(f) A map showing location of proposed site and other cemeteries located in the area;

(g) A non-refundable application fee in the amount of $5,000. Upon receipt of the above-completed documents and application fee, the Department will conduct an investigation;

(h) Legal description of the property including a statement as to the number of acres contained therein;

(i) Development plans for proposed cemetery;

(j) Written approval from the governing zoning authority. If no zoning board for such authority exists, written approval must be obtained from a majority of the adjacent property owners;

(k) Shown compliance with Rule 69K-5.009, F.A.C., Regulatory Standards for Evaluating Applications by the Board.

(2) If the application is approved, the following will be required:

(a) Establishment of a “Care and Maintenance Trust Fund”;

(b) Certification from Trustee of deposit of $50,000 in “Care and Maintenance Trust Fund”;

(c) Designation of a general manager;

(d) Certification from an Attorney or Title Company that the proposed acreage is free and clear from any financial encumbrances and submit a copy of deed showing notice required by Section 497.263, F.S., has been recorded;

(e) Full development, ready for burials, of not less than two acres, including, but not limited to, a paved road from a public roadway to said developed section;

(f) Completion of an Application to Transact Cemetery Business, Form DFS-CEM 1/96, Rev. 7/01, incorporated herein by reference, effective 6-26-02, and a license fee of $250, refundable if license is not issued;

(g) Upon completion of the above requirements and on investigation of the cemetery grounds by the Department, a cemetery license will be issued to transact business for that year.

(h) Denial of Application. If the Board intends to deny an application, the provisions of Chapter 120, F.S., shall prevail. If the application is denied, written notice thereof will be given to the applicant and upon written request for a hearing thereon received within 21 days after receipt of notice of denial, a hearing may be held. Such hearing will be conducted in accordance with Chapter 120, F.S., and Chapter 28-107, F.A.C., of the Uniform Rules of Procedure.

(2)(3) An application may be submitted to the Department by mail to the Division of Funeral, Cemetery and Consumer Services, Revenue Processing, P.O. Box 6100, Tallahassee, Florida 32399-6100. All forms herein are available by mail from The Department of Financial Services, 200 East Gaines Street, Tallahassee, Florida 32399-0361 or http://www.myfloridacfo.com/FuneralCemetery/.

Rulemaking Specific Authority 497.103 FS. Law Implemented 497.263, 497.266, 497.268, 497.283 FS. History–New 9-29-75, Amended 6-21-77, 6-21-78, 11-2-78, 1-27-81, Formerly 3D-30.15, Amended 10-23-91, Formerly 3D-30.015, Amended 12-8-98, 6-26-02, Formerly 3F-5.004, Amended 1-12-04, _________.

 

69K-5.006 Procedure for Licensing Transferred Cemeteries.

(1) Application. When A a person, a group of persons or a corporation proposing proposes to purchase or acquire control of an existing cemetery company either by purchasing the outstanding capital stock of any cemetery company, or the interest of the owner or owners, and thereby to change the control of said cemetery company, such person shall file the following application with the Department by mail to the Division of Funeral, Cemetery and Consumer Services,  Revenue Processing, P.O. Box 6100, Tallahassee, Florida 32399-6100 an Application For Authority To Acquire Control Of An Existing Cemetery Company, Form DFS-F-35, effective September 18, 2001, and hereby incorporated by reference and available from the Department of Financial Services, Board of Funeral, Cemetery, and Consumer Services, 200 East Gaines Street, Tallahassee, Florida 32399-0361. This application shall be accompanied by a non-refundable application fee of $5,000.

(a) Application for Authority to Acquire Control of An Existing Cemetery Company, Form DFS-F35, adopted in Rule 69K-1.001, F.A.C., and accompanied by a license fee which is based on the cemetery’s gross sales for the previous fiscal year, pursuant to Section 497.265, Florida Statutes.

(2) Existing license must be returned to the Board for cancellation. No license is transferable or assignable.

(2) Supporting Data. The following items shall accompany the above application:

(a) Copy of sales agreement;

(b) Copy of certificate of good standing, if applicable;

(c) Historical Sketch of each proponent, as referenced in Rule 69K-5.002, F.A.C.

(d) Current Financial Statement, Form DFS-F-32, effective October 23, 1991, which is hereby incorporated by reference, of each proponent;

(e) Completion of an Application To Transact Cemetery Business, Form CEM 1/96 REV. 7/01, effective September 28, 2003, which is incorporated by reference in Rule 69K-5.010, F.A.C. Form DFS-CEM 1/96 Rev. 7/01 shall be accompanied by a license fee based on the cemeteries’ last fiscal year sales pursuant to Section 497.265, F.S.;

(f) Existing license must be returned to the Board for cancellation. No license is transferable or assignable;

(g) A map showing land platted for burials.

(3) through (5) No change.

Rulemkaking Specific Authority 497.103 FS. Law Implemented 497.264 497.263(1) FS. History–New 9-29-75, Amended 11-2-78, 1-27-81, Formerly 3D-30.17, Amended 10-23-91, Formerly 3D-30.017, Amended 9-18-01, 6-26-02, Formerly 3F-5.006, Amended 1-12-04, ________.

 

69K-5.007 Conversion Procedures.

When a municipal, church owned, fraternal or community and non-profit association cemetery converts to a cemetery company as defined in Section 497.005, F.S., then said cemetery shall file the following with the Department department:

(1) An Application To Organize A New Cemetery Company, Form DFS-CEMN F-34, adopted in Rule 69K-1.001, F.A.C. effective October 23, 1991, which is hereby incorporated by reference. This application shall be accompanied by a non-refundable application fee of $5,005 5,000.

(2) A map showing the location of cemetery.

(3) A map showing land that has been platted for burials.

(4) Legal description of the property including a statement as to the number of acres contained therein.

(5) and (6) are renumbered to (2) and (3) No change.

(7) Historical Sketch of each proponent, as referenced in Rule 69K-5.002, F.A.C.

(8) Current Financial Statement, Form DFS-F-32, effective October 23, 1991, which is hereby incorporated by reference, of each proponent.

(4) (9) Completion of an Application To Transact Cemetery Business, Form DFS-CEM F-33, adopted in Rule 69K-1.001, F.A.C. effective October 23, 1991, which is hereby incorporated by reference. Form DFS-CEM F-33 shall be accompanied by a license fee based on the cemetery’s last fiscal year sales pursuant to Section 497.265, F.S.

(10) Investigation. The Department shall investigate the following conditions:

(a) Character, reputation, financial standing, business qualifications and motives of the proponents;

(b) Legal entity;

(c) Capitalization;

(d) Current financial statement of each proponent;

(e) Biographical sketch of each proponent.

(11) If the application is denied, written notice thereof will be given to the applicant and upon written request for a hearing thereon received within 21 days after receipt of notice of denial, a hearing may be held. Such hearing will be conducted in accordance with Chapter 120, F.S., and Chapter 28-107, F.A.C., of the Uniform Rules of Procedure.

(12) All forms herein are available by mail from The Department of Financial Services, Division of Funeral, Cemetery, and Consumer Services, 200 East Gaines Street, Tallahassee, Florida 32399-0361.

Rulemaking Specific Authority 497.103 FS. Law Implemented 497.263, 497.265 FS. History–New 9-29-75, Amended 1-27-81, Formerly 3D-30.19, Amended 10-23-91, Formerly 3D-30.019, Amended 6-26-02, Formerly 3F-5.007, Amended_________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Ellen Simon, Assistant Director, Division of Funeral, Cemetery, and Consumer Services, Department of Financial Services

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Jeff Atwater, Chief Financial Officer, Department of Financial Services

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: October 21, 2015

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: July 31, 2015