BILL NUMBER: AB 180 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 29, 2015
AMENDED IN ASSEMBLY APRIL 22, 2015
INTRODUCED BY Assembly Member Bonilla
( Principal coauthor: Senator
Hill )
( Coauthor: Senator
Hill )
JANUARY 26, 2015
An act to amend Section 9625 of, and to amend and repeal
Section 9613 of, the Business and Professions Code, relating to
cemeteries. An act to amend Sections 205, 7600, 7602,
7607, 7608, 7609, 7622.2, 7685.3, 7685.5, 7725.2, and 7727 of, to
amend the heading of Chapter 12 (commencing with Section 7600) of
Division 3 of, to add Sections 7610.1, 7700.1, 7711.2, 7711.3,
7711.4, 7711.5, 7711.6, 7711.7, 7711.8, 7711.9, 7711.10, 7711.11,
7711.12, 7729.1, 7729.2, 7729.3, 7729.4, 7729.5, 7729.6, 7729.7,
7729.8, 7729.9, 7729.10, 7730, 7730.1, 7730.2, 7730.3, 7730.4,
7730.5, 7730.6, 7730.7, 7730.8, 7730.9, 7730.10, 7731, 7731.1,
7731.2, 7731.3, and 7731.4 to, to add Article 1.5 (commencing with
Section 7611), Article 2.5 (commencing with Section 7637),
Article 3.5 (commencing with Section 7651), Article 4.5 (commencing
with Section 7672), and Article 6.5 (commencing with Section 7712) to
Chapter 12 of Division 3 of, to repeal Sections 7619.2, 7620, and
7261 of, to repeal Chapter 19 (commencing with Section 9600) of
Division 3 of, and to repeal and add Section 7606 of, th e
Business and Professions Code, relating to professions and
vocations, and making an appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
AB 180, as amended, Bonilla. Cemetery and Funeral Bureau.
Existing law provides for the licensure and regulation of funeral
directors, funeral establishments, and embalmers, by the Cemetery and
Funeral Bureau pursuant to the Funeral Directors and Embalmers Law,
and a violation of the law is a crime. Existing law provides for the
licensure and regulation of cemetery managers, cemetery brokers,
cemetery salespersons, crematories, and crematory managers, pursuant
to the Cemetery Act, by the Cemetery and Funeral Bureau. Existing law
directs charges imposed under the law and the act to be deposited
into the State Funeral Directors and Embalmers Fund or the Cemetery
Fund, respectively. Under existing law, these funds are continuously
appropriated. Existing law, the Cemetery Act, requires the bureau to
survey each of its licensees to obtain information to determine if
the endowment care fund levels of the licensee's cemetery are
sufficient to cover the cost of future operation, as specified, and
required the bureau to report its findings and recommendations to the
Legislature by January 1, 2008.
This bill would consolidate the Funeral Directors and Embalmers
Law and the Cemetery Act into the Cemetery and Funeral Bureau Act and
direct charges imposed under the act to be deposited into the
renamed Cemetery and Funeral Fund, a continuously appropriated fund.
Because additional moneys would be deposited into a continuously
appropriated fund, the bill would make an appropriation. The bill
would subject the powers and duties of the bureau to review by the
appropriate policy committees of the Legislature and require the
review to be performed as if the act is scheduled to be repealed on
January 1, 2020. The bill would require the bureau to conduct a study
to obtain information to determine if the endowment care fund levels
of its licensees' cemeteries are sufficient to cover the cost of
future maintenance, as specified, and to report its findings and
recommendations to those policy committees by November 1, 2018. The
bill would no longer require an applicant to include specified
information or proof when applying to become a funeral director. The
bill would also remove obsolete references and make additional
nonsubstantive changes.
By expanding the scope of a crime, the bill would impose a
state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
The Cemetery Act provides for the licensure and regulation of
cemeteries, crematories, and their personnel by the Cemetery and
Funeral Bureau, which is within the Department of Consumer Affairs.
The act authorizes the Director of Consumer Affairs with the approval
of the Director of Finance to appoint a chief of the bureau who is
vested with the duty to enforce the act and serves at the pleasure of
the director. The act also required the bureau to survey each of its
licensees to obtain information to determine if the endowment care
fund levels of the licensee's cemetery are sufficient to cover the
cost of future operation, as specified, and report its findings and
recommendations to the Legislature by January 1, 2008.
This bill would provide that the powers and duties of the bureau
under the act are subject to review by the appropriate policy
committees of the Legislature and that the review is required to be
performed as if the act is scheduled to be repealed on January 1,
2020. The bill would require the bureau to conduct a study to obtain
information to determine if the endowment care fund levels of its
licensees' cemeteries are sufficient to cover the cost of future
operation, as specified, and report its findings and recommendations
to the Senate Committee on Business, Professions and Economic
Development and the Assembly Committee on Business and Professions by
November 1, 2018. The bill would repeal that reporting requirement
on January 1, 2020.
Vote: majority. Appropriation: no yes
. Fiscal committee: yes. State-mandated local program:
no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 205 of the Business
and Professions Code is amended to read:
205. (a) There is in the State Treasury the Professions and
Vocations Fund. The fund shall consist of the following special
funds:
(1) Accountancy Fund.
(2) California Architects Board Fund.
(3) Athletic Commission Fund.
(4) Barbering and Cosmetology Contingent Fund.
(5) Cemetery and Funeral Fund.
(6) Contractors' License Fund.
(7) State Dentistry Fund.
(8) State Funeral Directors and Embalmers Fund.
(9)
(8) Guide Dogs for the Blind Fund.
(10)
(9) Home Furnishings and Thermal Insulation Fund.
(11)
(10) California Architects Board-Landscape Architects
Fund.
(12)
(11) Contingent Fund of the Medical Board of
California.
(13)
(12) Optometry Fund.
(14)
(13) Pharmacy Board Contingent Fund.
(15)
(14 ) Physical Therapy Fund.
(16)
(15) Private Investigator Fund.
(17)
(16) Professional Engineer's and Land Surveyor's Fund.
(18)
(17) Consumer Affairs Fund.
(19)
(18) Behavioral Sciences Fund.
(20)
(19) Licensed Midwifery Fund.
(21)
(20) Court Reporters' Fund.
(22)
(21) Veterinary Medical Board Contingent Fund.
(23)
(22) Vocational Nurses Account of the Vocational
Nursing and Psychiatric Technicians Fund.
(24)
(23) Electronic and Appliance Repair Fund.
(25)
(24) Geology and Geophysics Account of the Professional
Engineer's and Land Surveyor's Fund.
(26)
(25) Dispensing Opticians Fund.
(27)
(26) Acupuncture Fund.
(28)
(27) Physician Assistant Fund.
(29)
(28) Board of Podiatric Medicine Fund.
(30)
(29) Psychology Fund.
(31)
(30) Respiratory Care Fund.
(32)
(31) Speech-Language Pathology and Audiology and
Hearing Aid Dispensers Fund.
(33)
(32) Board of Registered Nursing Fund.
(34)
(33) Psychiatric Technician Examiners Account of the
Vocational Nursing and Psychiatric Technicians Fund.
(35)
(34) Animal Health Technician Examining Committee Fund.
(36)
(35) State Dental Hygiene Fund.
(37)
(36) State Dental Assistant Fund.
(38)
(37) Structural Pest Control Fund.
(39)
(38) Structural Pest Control Eradication and
Enforcement Fund.
(40)
(39) Structural Pest Control Research Fund.
(b) For accounting and recordkeeping purposes, the Professions and
Vocations Fund shall be deemed to be a single special fund, and each
of the several special funds therein shall constitute and be deemed
to be a separate account in the Professions and Vocations Fund. Each
account or fund shall be available for expenditure only for the
purposes as are now or may hereafter be provided by law.
SEC. 2. The heading of Chapter 12 (commencing with
Section 7600) of Division 3 of the Business and
Professions Code is amended to read:
CHAPTER 12. CEMETERY AND FUNERAL DIRECTORS
AND EMBALMERS ACT
SEC. 3. Section 7600 of the Business
and Professions Code is amended to read:
7600. This chapter of the Business and Professions Code
constitutes the chapter on funeral directors
cemetery and embalmers. funeral law.
It may be cited as the Funeral Directors
and Embalmers Law.
Cemetery and Funeral Act.
SEC. 4. Section 7602 of the Business
and Professions Code is amended to read:
7602. (a) (1) There
is in the department the Cemetery and Funeral Bureau, under the
supervision and control of the director.
The
(2) The director may appoint a
chief at a salary to be fixed and determined by the director, with
the approval of the Director of Finance. The duty of enforcing and
administering this chapter is vested in the chief, and he or she is
responsible to the director therefor. The chief shall serve at the
pleasure of the director.
Every
(3) Every power granted or duty
imposed upon the director under this chapter may be exercised or
performed in the name of the director by a deputy director or by the
chief, subject to such conditions and limitations as the director may
prescribe.
(b) Notwithstanding any other law, the powers and duties of the
bureau, as set forth in this chapter, shall be subject to review by
the appropriate policy committees of the Legislature. The review
shall be performed as if this chapter is scheduled to repeal on
January 1, 2020.
SEC. 5 . Section 7606 of the
Business and Professions Code is repealed.
7606. The bureau may, pursuant to the provisions of the
Administrative Procedure Act, adopt and enforce reasonably necessary
rules and regulations relating to:
(a) The practice of embalming.
(b) The business of a funeral director.
(c) The sanitary conditions of places where such practice or
business is conducted with particular regard to plumbing, sewage,
ventilation and equipment.
(d) Specifying conditions for approval of funeral establishments
for apprentices and for approval of mortuary science programs.
(e) The scope of examinations.
(f) Carrying out generally the various provisions of this chapter
for the protection of the peace, health, safety, welfare and morals
of the public.
SEC. 6. Section 7606 is added to the
Business and Professions Code , to read:
7606. The bureau may establish necessary rules and regulations
for the administration and enforcement of this act and the laws
subject to its jurisdiction and prescribe the form of statements and
reports provided for in this act. The rules and regulations shall be
adopted, amended, or repealed in accordance with the provisions of
the Administrative Procedure Act (Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code).
SEC. 7. Section 7607 of the Business
and Professions Code is amended to read:
7607. The bureau may inspect the premises in which the business
of a funeral director establishment,
cemetery, or crematory is conducted, where embalming is
practiced, or where human remains are stored.
SEC. 8. Section 7608 of the Business
and Professions Code is amended to read:
7608. The Director of Consumer Affairs may employ and appoint all
employees necessary to properly administer the work of the bureau,
in accordance with civil service regulations.
With the approval of the Director of Finance, and, subject to the
provisions of Section 159.5, the bureau shall employ investigators
and attorneys to assist the bureau in prosecuting violations of this
chapter, whose compensation and expenses shall be payable
only out of the State
Funeral Directors and Embalmers
from the Cemetery and Funeral Fund.
SEC. 9. Section 7609 of the Business
and Professions Code is amended to read:
7609. This chapter does not apply to, or in any way interfere
with, the duties of any officer of any public institution or of any
duly accredited medical college, nor does it apply to any hospital
licensed pursuant to Chapter 2 (commencing with Section 1250) of
Division 2 of the Health and Safety Code, or anyone
engaged only in the furnishing of burial receptacles, or
anyone engaged in the operation of a cemetery solely for the
interment of human dead. receptacles.
SEC. 10. Section 7610.1 is added to the
Business and Professions Code , to read:
7610.1. In the enforcement of this act and the laws subject to
its jurisdiction, the bureau has all the powers and is subject to all
the responsibilities vested in and imposed upon the head of a
department under Chapter 2 (commencing with Section 11150) of Part 1
of Division 3 of Title 2 of the Government Code.
SEC. 11. Article 1.5 (commencing with Section
7611) is added to Chapter 12 of Division 3 of the Business
and Professions Code , to read:
Article 1.5. Definitions and Regulation of Cemeteries
7611. The definitions in this article govern the meaning of terms
used in the act except as otherwise provided expressly or by
necessary implication.
7611.1. "Act" means the Cemetery and Funeral Bureau Act.
7611.2. A "cemetery broker" is a person who, other than in
reference to an occasional sale, sells or offers for sale, buys, or
offers to buy, lists, leases or offers to lease, or solicits, or
negotiates the purchase or sale, lease, or exchange of cemetery
property or interment services, or interest therein, for his or her
own account or for another.
7611.3. A "cemetery salesperson" is a natural person who, other
than in reference to an occasional sale, is employed by a cemetery
broker to sell, or offer for sale, list or offer to list, or to buy,
or to offer to buy, or to lease, or offer to lease, or to solicit, or
to negotiate the purchase or sale or lease or exchange of cemetery
property or interment services, or any interest therein, for his or
her own account or for another.
7611.4. (a) A "cemetery manager" is a person engaged in or
conducting, or holding himself or herself out as engaged in those
activities involved in, or incidental to, the maintaining, operating,
or improving a cemetery licensed under this chapter, the interring
of human remains, and the care, preservation, and embellishment of
cemetery property.
(b) For persons licensed pursuant to Section 7637.1, a "cemetery
manager" is a person engaged in or conducting, or holding himself or
herself out as engaged in those activities involved in, or incidental
to, the following:
(1) The maintaining, operating, or improving of a cemetery
licensed under this chapter.
(2) The interment of human remains.
(3) The care, preservation, and embellishment of cemetery
property.
(4) Activities described in Section 7637.2.
7611.5. A "crematory manager" is a person engaged in or
conducting, or holding himself or herself out as engaged in those
activities involved in, or incidental to, the maintaining or
operating a crematory licensed under this chapter, and the cremation
of human remains.
7611.6. The definitions in Chapter 1 (commencing with Section
7000) of Part 1 of Division 7 of the Health and Safety Code are
applicable to this act.
7611.7. "Cemetery licensee" means any cemetery broker, cemetery
salesperson, or cemetery manager.
7611.8. "Crematory licensee" shall mean a corporation,
partnership, or natural person licensed pursuant to Article 6.5
(commencing with Section 7712) and shall mean a cemetery licensee for
purposes of disciplinary action under Article 6 (commencing with
Section 7686).
7611.9. A "cremated remains disposer" is a person who, for his or
her own account or for another, disposes of, or offers to dispose
of, cremated human remains by scattering over or on land or sea.
7611.10. "Endowment care" or "endowed care" shall include both
general and special care funds.
7612. An "occasional sale" is a sale of cemetery property not
acquired or held for purposes of resale or speculation, provided such
sale is not one of a series of sales sufficient in number, scope,
and character to constitute engaging in the business of selling or
reselling or holding for speculation cemetery property.
7612.1. "Public cemetery" means a cemetery owned and operated by
a city, county, city and county, or public cemetery district.
7612.2. This act does not apply to any of the following:
(a) A religious corporation, church, religious society or
denomination, a corporation sole administering temporalities of any
church or religious society or denomination, or any cemetery
organized, controlled, and operated by any of them.
(b) A public cemetery.
(c) Any private or fraternal burial park not exceeding 10 acres in
area, established prior to September 19, 1939; however, (1) those
cemeteries shall be subject to the cemetery brokerage provisions of
this act, and (2) any cemetery shall be subject to all of the
provisions of this act if it collects a care, maintenance, or
embellishment deposit or sets up a trust for burial purposes pursuant
to Section 8775 of the Health and Safety Code, including funeral
services such as mortuary, cremation, or other commodities or
services furnished at the time of and in connection with that funeral
or cremation.
7612.3. The bureau shall disclose on its Internet Web site,
information about each cemetery subject to the jurisdiction of the
bureau. In addition to the information required by Section 27, the
bureau shall disclose the name of the owner of each cemetery, the
name of the cemetery, the business address of the cemetery owner, and
the physical address of the cemetery.
7612.4. (a) Notwithstanding Section 8115 of the Health and Safety
Code, in order to protect consumers, the bureau shall adopt
regulations that establish minimum standards of maintenance for
endowment care cemeteries under the jurisdiction of the bureau. The
regulations shall consider differences in cemetery size, location,
topography, and type of interments. The regulations shall also
consider the extent to which funds are available from the cemetery's
endowment care funds to perform maintenance.
(b) The standards established pursuant to this section shall not
supersede any standards of a higher level of care established
pursuant to Section 8115 of the Health and Safety Code.
7612.5. (a) (1) Any person who holds or has held, or was named
on, any license or registration under the jurisdiction of the bureau
that has been, within the immediately preceding 10 years, revoked,
suspended, placed on probation, or surrendered under a stipulated
decision, and who is employed by, or who seeks employment with, a
licensed cemetery, a licensed crematory, or a licensed cemetery
broker in any capacity, shall inform the licensed cemetery manager,
the licensed crematory manager, or the licensed cemetery broker of
that revocation, suspension, probation, or surrender.
(2) A person subject to this subdivision shall inform the licensed
cemetery manager, the licensed crematory manager, or the licensed
cemetery broker upon application for employment by completing a form
that shall be made available by the bureau.
(b) The cemetery manager, crematory manager, or cemetery broker
who is informed pursuant to subdivision (a) shall notify the bureau
by submitting the form within 30 days of being so informed. Failure
of the cemetery manager, crematory manager, or cemetery broker to
notify the bureau shall be a cause for a warning. A cemetery manager,
crematory manager, or cemetery broker shall not be subject to a
warning if his or her failure to notify the bureau is due to a false
statement made by an employee.
(c) Any person required to notify the cemetery manager, crematory
manager, or cemetery broker under subdivision (a) who fails to do so
or who makes a false statement on the required form shall be subject
to disciplinary action if that person is a licensee of the bureau, or
that failure or false statement shall be cause for denial of a
license under Section 480.
(d) For purposes of subdivision (a), the term "named on" applies
to a person who was an owner, partner, or corporate officer of an
entity that was licensed or registered under the act at the time that
entity's license or registration under the act was revoked,
suspended, placed on probation, or surrendered.
7612.6. (a) Each cemetery authority shall file with the bureau
annually, on or before June 1, or within five months after close of
their fiscal year provided approval has been granted by the bureau as
provided for in Section 7612.7, a written report in a form
prescribed by the bureau setting forth the following:
(1) The number of square feet of grave space and the number of
crypts and niches sold or disposed of under endowment care by
specific periods as set forth in the form prescribed.
(2) The amount collected and deposited in both the general and
special endowment care funds segregated as to the amounts for crypts,
niches, and grave space by specific periods as set forth either on
the accrual or cash basis at the option of the cemetery authority.
(3) A statement showing separately the total amount of the general
and special endowment care funds invested in each of the investments
authorized by law and the amount of cash on hand not invested, which
statement shall actually show the financial condition of the funds.
(4) A statement showing separately the location, description, and
character of the investments in which the special endowment care
funds are invested. The statement shall show the valuations of any
securities held in the endowment care fund as valued pursuant to
Section 7614.7.
(5) A statement showing the transactions entered into between the
corporation or any officer, employee, or stockholder thereof and the
trustees of the endowment care funds with respect to those endowment
care funds. The statement shall show the dates, amounts of the
transactions, and shall contain a statement of the reasons for those
transactions.
(b) The report shall be verified by the president or vice
president and one other officer of the cemetery corporation. The
information submitted pursuant to paragraphs (2), (3), (4), and (5)
of subdivision (a) shall be accompanied by an annual audit report of
the endowment care fund and special care fund signed by a certified
public accountant or public accountant. The scope of the audit shall
include the inspection, review, and audit of the general purpose
financial statements of the endowment care fund and special care
fund, which shall include the balance sheet, the statement of
revenues, expenditures, and changes in fund balance.
(c) If a cemetery authority files a written request prior to the
date the report is due, the bureau may, in its discretion, grant an
additional 30 days within which to file the report.
7612.7. Each cemetery authority requesting a change of filing
date of the endowment care fund report from a calendar year to a
fiscal year or a change in fiscal year shall file a petition with the
bureau prior to the close of the year of request. The bureau may
approve such petition provided that no report shall be for a period
of more than 12 months.
7612.8. The report shall state the name of the trustee or
trustees of the endowment care fund. Any change of trustee shall be
reported to the bureau within a period of 30 days after the change is
made.
7612.9. A copy of each annual audit report shall be transmitted
to the bureau and shall be a public record. It shall also be open for
public inspection at the offices of the cemetery authority during
normal business hours. If the cemetery authority does not maintain
offices in the county in which its cemetery is located, it shall file
a copy of the annual audit report with the county clerk of the
county, which shall be subject to public inspection.
7612.10. (a) Any cemetery authority that does not file its report
within the time prescribed by Section 7612.6 may be assessed a fine
by the bureau in an amount not to exceed four hundred dollars ($400)
per month for a maximum of five months. The amount of the fine shall
be established by regulation in accordance with the Administrative
Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code). Failure to pay the
fine within 15 days after receipt of written notification of the
assessment or, where a timely request for waiver or reduction of the
fine has been filed, within 15 days after receipt of written
notification of the bureau's decision in the matter, shall be cause
for disciplinary action.
(b) A cemetery authority may request waiver or reduction of a fine
by making a written request therefor. The request shall be
postmarked within the time specified above for payment of the fine
and shall be accompanied by a statement showing good cause for the
request.
(c) The bureau may waive or reduce the fine where a timely request
is made and where it determines, in its discretion, that the
cemetery authority has made a sufficient showing of good cause for
the waiver or reduction.
7612.11. (a) The bureau shall conduct a study to obtain
information to determine if the endowment care fund levels of each
licensee's cemetery are sufficient to cover the cost of future
maintenance. The bureau shall also review the levels of endowment
care funds that have previously been reported pursuant to this
chapter by licensed cemeteries.
(b) The bureau shall report its findings and recommendations to
the Senate Committee on Business, Professions and Economic
Development and the Assembly Committee on Business and Profession by
November 1, 2018.
7613. The bureau shall examine the reports filed with it as to
their compliance with the requirements of the Health and Safety Code
as to the amount of endowment care funds collected and as to the
manner of investment of those funds.
7613.1. The bureau shall examine the endowment care funds of a
cemetery authority:
(a) Whenever it deems necessary and at least once every five
years.
(b) Whenever the cemetery authority in charge of endowment care
funds fails to file the report required by this article.
(c) Whenever the accountant or auditor qualifies his or her
certification of the report that is prepared and signed by a
certified public accountant licensed in the state and prepared in
accordance with Section 7612.6.
(d) The reasonable and necessary cost of the examination performed
under subdivision (b) or (c) shall be paid by the cemetery
authority.
(e) A certified copy of the actual costs, or a good faith estimate
of the costs where actual costs are not available, signed by the
director or his or her designee, shall be prima facie evidence of the
reasonable and necessary costs of the examination.
(f) The actual and necessary expense of the examination under
subdivision (a) shall, in the discretion of the bureau, be paid by
the cemetery authority whenever the examination requires more than
one day and the need for continuing the examination is directly
related to identified omissions and errors in the management of
endowment care funds.
7613.2. If any cemetery authority refuses to pay such expenses,
the bureau shall refuse it a certificate of authority and shall
revoke any existing certificate of authority. All examination expense
moneys collected by the bureau shall be paid into the State Treasury
to the credit of the Cemetery and Funeral Fund.
7613.3. (a) In making the examination, the bureau:
(1) Shall have free access to the books and records relating to
the trust funds, their collection and investment, and the number of
graves, crypts, and niches under endowment care.
(2) Shall inspect and examine the trust funds to determine their
condition and the existence of the investments.
(3) Shall ascertain if the cemetery corporation has complied with
all the laws applicable to trust funds.
(b) Upon request by the bureau, a cemetery authority shall provide
records to substantiate the expenditures of the income of the trust
funds. If a cemetery authority fails to reasonably comply with this
request, the bureau may have access to books, records, and accounts
of a cemetery authority for purposes of ascertaining compliance with
applicable laws.
7613.4. (a) Subject to subdivision (b), a limited liability
company certificated as a cemetery authority pursuant to Section 7018
of the Health and Safety Code may provide services of licensed
cemetery brokers, cemetery salespersons, cemetery managers, funeral
directors, embalmers, crematorium licensees, and any other
person licensed under this code to
provide services relating to cemeteries and funerals by employing one
or more of these licensed persons.
(b) At the time of certification, and at all times during which a
limited liability company transacts intrastate business as a cemetery
authority, the company shall be required to provide security for
claims against it based upon acts, errors, or omissions of its
licensed employees as described in subdivision (a) by complying with
one, or a combination, of the following:
(1) (A) Maintaining a policy or policies of insurance against
liability imposed on or against it by law for damages arising out of
claims. However, the total aggregate limit of liability under the
policy or policies of insurance for a limited liability company that
employs five or fewer licensed persons shall not be less than one
million dollars ($1,000,000), and for a limited liability company
that employs more than five licensees, an additional one hundred
thousand dollars ($100,000) of insurance shall be obtained for each
additional licensee except that the maximum amount of insurance is
not required to exceed five million dollars ($5,000,000) in any one
designated period, less amounts paid in defending, settling, or
discharging claims as set forth in this paragraph. The policy or
policies may be issued on a claims-made or occurrence basis, and
shall cover:
(i) In the case of a claims-made policy, claims initially asserted
in the designated period.
(ii) In the case of an occurrence policy, occurrences during the
designated period.
(B) For purposes of this paragraph, "designated period" means a
policy year or any other designated period in the policy that is not
greater than 12 months.
(C) The impairment or exhaustion of the aggregate limit of
liability by amounts paid under the policy in connection with the
settlement, discharge, or defense of claims applicable to a
designated period shall not require the limited liability company to
acquire additional insurance coverage for that designated period. The
policy or policies of insurance may be in a form reasonably
available in the commercial insurance market and may be subject to
those terms, conditions, exclusions, and endorsements that are
typically contained in those policies. A policy or policies of
insurance maintained pursuant to this paragraph may be subject to a
deductible or self-insured retention.
(D) Upon the dissolution and winding up of the limited liability
company, the company shall, with respect to any insurance policy or
policies then maintained pursuant to this paragraph, maintain or
obtain an extended reporting period endorsement or equivalent
provision in the maximum aggregate limit of liability required to
comply with this paragraph for a minimum of three years if reasonably
available from the insurer.
(2) Maintaining in trust or bank escrow, cash, bank certificates
of deposit, United States Treasury obligations, bank letters of
credit, or bonds of insurance or surety companies as security for
payment of liabilities imposed by law for damages arising out of all
claims. However, the maximum amount of security for a limited
liability company that employs five or fewer licensed persons shall
not be less than one million dollars ($1,000,000), and for a limited
liability company that employs more than five licensees rendering
professional services on behalf of the company, an additional one
hundred thousand dollars ($100,000) of security shall be obtained for
each additional licensee except that the maximum amount of security
is not required to exceed five million dollars ($5,000,000). The
limited liability company remains in compliance with this section
during a calendar year notwithstanding amounts paid during that
calendar year from the accounts, funds, Treasury obligations, letters
of credit, or bonds in defending, settling, or discharging claims of
the type described in this paragraph, provided that the amount of
those accounts, funds, Treasury obligations, letters of credit, or
bonds was at least the amount specified in the preceding sentence as
of the first business day of that calendar year. Notwithstanding the
pendency of other claims against the limited liability company, it
shall be deemed to be in compliance with this paragraph as to a claim
if within 30 days after the time that a claim is initially asserted
through service of a summons, complaint, or comparable pleading in a
judicial or administrative proceeding, the limited liability company
has provided the required amount of security by designating and
segregating funds in compliance with the requirements of this
paragraph.
(3) Unless the limited liability company has satisfied paragraph
(4), each member of a limited liability company certificated as a
cemetery authority that provides professional services rendered by
employees who are licensed professionals described in subdivision
(a), by virtue of that person's status as a member, thereby
automatically guarantees payment of the difference between the
maximum amount of security required for the limited liability company
by this subdivision and the security otherwise provided in
accordance with paragraphs (1) and (2), provided that the aggregate
amount paid by all members under these guarantees shall not exceed
the difference. Neither withdrawal by a member nor the dissolution
and winding up of the limited liability company shall affect the
rights or obligations of a member arising prior to withdrawal or
dissolution and winding up, and the guarantee provided for in this
paragraph shall apply only to conduct that occurred prior to the
withdrawal or dissolution and winding up. Nothing contained in this
subdivision shall affect or impair the rights or obligations of the
members among themselves, or the limited liability company,
including, but not limited to, rights of contribution, subrogation,
or indemnification.
(4) Confirming, pursuant to the procedure in subdivision (c) of
Section 16956 of the Corporations Code, that, as of the most recently
completed fiscal year of the limited liability company, it had a net
worth equal to or exceeding ten million dollars ($10,000,000). The
limited liability company shall transmit evidence of this paragraph
to the bureau in a form similar to the form submitted by a limited
liability partnership providing alternative security provisions
pursuant to subdivision (c) of Section 16956 of the Corporations
Code.
(c) (1) A limited liability company may aggregate the security
required pursuant to paragraphs (1) to (4), inclusive, of subdivision
(b).
(2) For purposes of compliance with this section, the provisions
of subdivision (d) of Section 16956 of the Corporations Code shall
apply to a limited liability company certificated as a cemetery
authority.
7613.5. (a) A person licensed under this code as a cemetery
broker, cemetery salesperson, cemetery manager, funeral director,
embalmer, crematorium licensee, or other person licensed to provide
services related to cemeteries and funerals shall not have any
ownership interest as a member in a limited liability company
certificated as a cemetery authority pursuant to Section 7018 of the
Health and Safety Code.
(b) If a limited liability company admits, as a member with
ownership interest, a licensed person described in subdivision (a),
the limited liability company, by operation of law, shall be deemed
in violation of subdivision (e) of Section 17701.04 of the
Corporations Code, and the members shall be treated as partners with
joint and several liability for claims made upon acts, errors, or
omissions arising out of services provided by any licensed person
described in subdivision (a).
(c) If the bureau determines that a licensed cemetery broker,
cemetery salesperson, cemetery manager, funeral director, embalmer,
crematorium licensee, or other person licensed to provide services
related to cemeteries and funerals has an ownership interest as a
member in the limited liability company, the bureau shall suspend the
limited liability company's certificate of authority. The bureau
shall reinstate the certificate of authority only upon finding that
the licensed cemetery broker, cemetery salesperson, cemetery manager,
funeral director, embalmer, crematorium licensee, or other person
licensed to provide services related to cemeteries and funerals has
been divested of his or her ownership interest in the limited
liability company or has voluntarily surrendered his or her license.
7613.6. The bureau may administer oaths and examine under oath
any person relative to the endowment care fund. The examination shall
be conducted in the principal office of the person or body in charge
of the endowment care fund and shall be private.
7613.7. If any examination made by the bureau, or any report
filed with it, shows that there has not been collected and deposited
in the endowment care funds the minimum amounts required by the
Health and Safety Code since September 19, 1939, the bureau shall
require a cemetery corporation to comply with Sections 8743 and 8744
of the Health and Safety Code.
7613.8. Whenever the bureau finds, after notice and hearing, that
any endowment care funds have been invested in violation of the
Health and Safety Code, it shall by written order mailed to the
person or body in charge of the fund require the reinvestment of the
funds in conformity to that code within a period which shall be not
less than two years if the investment was made prior to October 1,
1949, not less than six months if the investment was made on or after
October 1, 1949, and before the effective date of the amendment of
this section by the 1969 Regular Session of the Legislature, and not
less than 30 days if the investment is made on or after the effective
date of the amendment. The period may be extended by the bureau in
its discretion.
7613.9. The superior court of the county in which the principal
office of the cemetery authority in charge of endowment care funds is
located shall, upon the filing by the bureau of a verified
application showing any of the following conditions hereinafter
enumerated to exist, issue its order vesting title to any endowment
care funds of a cemetery authority in the bureau, and directing the
bureau forthwith to take possession of all necessary books, records,
property, real and personal, and assets, and to conduct as
conservator, the management of such endowment care funds, or so much
thereof as to the bureau may seem appropriate:
(a) That the cemetery authority has refused to submit its books,
papers, accounts, or affairs to the reasonable examination of the
bureau.
(b) That the cemetery authority has neglected to observe an order
of the bureau to make good within the time prescribed by law any
deficiency in its investments of endowment care funds.
(c) That the cemetery authority is found, after an examination, to
be in such condition that its further management of its endowment
care funds will be hazardous to its members, plotholders, or to the
public.
(d) That the cemetery authority has violated its articles of
incorporation or any law of the state.
(e) That any officer, director, agent, servant or employee of the
cemetery authority person refuses to be examined under oath relative
to the endowment care funds thereof.
(f) That any person has embezzled or otherwise wrongfully diverted
any of the endowment care funds of the cemetery authority.
(g) The order shall continue in force and effect until, on the
application either of the bureau or of the cemetery authority, it
shall, after a full hearing, appear to the court that the ground for
the order does not exist or has been removed and that the cemetery
authority can properly resume title and possession of its property
and the management of its endowment care funds.
7613.10. When it has been alleged by verified petition pursuant
to Section 7613.1 or when the bureau on its own investigation
determines that there is probable cause to believe that any of the
conditions set forth in Section 7613.9 exist or that irreparable loss
and injury to the endowment care funds of a cemetery authority has
occurred or may occur unless the bureau so acts immediately, the
bureau, without notice and before applying to the court for any
order, may take possession of the endowment care funds and the books,
records, and accounts relating thereto of the cemetery authority,
and retain possession subject to the order of the court. Any person
having possession of and refusing to deliver any assets, books or
records of a cemetery authority against which a seizure order has
been issued by the bureau shall be guilty of a misdemeanor and
punishable by a fine not exceeding one thousand dollars ($1,000) or
imprisonment not exceeding one year, or by both that fine and
imprisonment.
7614. If any city, county, or city and county exercises its
authority to address public health, safety, or welfare issues in
connection with a cemetery within its jurisdiction and if the
certificate of authority of the cemetery has been revoked or
suspended or has not been renewed, and the bureau holds the endowment
care fund of the certificate of authority under applicable
provisions of this code, the costs of any action that constitutes
care, maintenance, or embellishment of the cemetery within the
meaning of Section 8726 of the Health and Safety Code shall be
eligible for reimbursement from available income from any endowment
care fund in existence for the cemetery. For purposes of this
section, local jurisdiction action may be based on charter,
ordinance, or inherent police powers. Any claim for money or damages
for an act or omission by the local jurisdiction acting in accord
with this section shall be subject to all otherwise applicable
immunities contained in Division 3.6 (commencing with Section 810) of
Title 1 of the Government Code.
7614.1. Whenever the bureau makes any seizure as provided in
Section 7613.10, it shall, on demand of the bureau, be the duty of
the sheriff of any county of this state, and of the police department
of any municipal corporation therein, to furnish the bureau with
deputies, patrolmen or officers as may be necessary to assist the
bureau in making and enforcing that seizure.
7614.2. Immediately after effecting a seizure pursuant to Section
7613.10, the bureau shall institute a proceeding as provided for in
Section 7613.9.
7614.3. Notwithstanding any other law, the bureau shall be the
custodian of all moneys collected or surrendered pursuant to Sections
7613.9 and 7613.10. As custodian, the bureau may deposit those
moneys, or any part thereof, without court approval, in any of the
following: a bank or trust company legally authorized and empowered
by the state to act as a trustee in the handling of trust funds; in a
centralized State Treasury system bank account; or in funds
administered by the State Treasurer.
7614.4. The bureau shall maintain, regulate, operate, and control
the property situated in the County of Amador, referred to as the
Elkin Property in Judicial Council Coordination Proceedings Nos. 1814
and 1817, Order Re Proposed Neptune Memorial, Disposition of the
Elkin Property, and Order Re Final Disposition of Ashes of the
Sacramento Superior Court, and legally described as "Parcel 16-B as
shown on the certain Record or Survey for Eugene S. Lowrance, et ux,
filed for record May 17, 1971, in Book 17 of Maps and Plats at page
87, Amador County Records". The bureau shall administer and supervise
endowment funds established by the court for the property. The
bureau shall exercise the authority granted by this section for the
sole purpose of protecting the human remains resting on the property
and preserving the property in its natural state.
7614.5. The bureau is authorized to bring action to enforce the
provisions of the law subject to its jurisdiction, in which actions
it shall be represented by the Attorney General.
7614.6. The bureau shall enforce and administer Part 1
(commencing with Section 8100), Part 3 (commencing with Section
8250), and Part 5 (commencing with Section 9501) of Division 8 of the
Health and Safety Code.
7614.7. In any report to the bureau, all bonds, debentures, or
other evidences of debt held by a cemetery corporation if amply
secured and if not in default as to principal or interest may be
valued as follows:
(a) If purchased at par at the par value.
(b) If purchased above or below par on the basis of the purchase
price adjusted so as to bring the value to par at maturity and so as
to yield the effective rate of interest on the basis at which the
purchase was made.
(c) In such valuation, the purchase price shall in no case be
taken at a higher figure than the actual market value at the time of
purchase.
7614.8. Any security or other evidence of debt if in default as
to principal or interest or if not amply secured shall not be valued
as an asset of the endowment care fund above its market value.
7614.9. Notwithstanding any other law, every cemetery authority
shall present to the survivor of the deceased who is handling the
burial or cremation arrangements or the responsible party a copy of
any preneed agreement that has been signed and paid in full, or in
part, by or on behalf of the deceased and is in the possession of the
cemetery authority. The copy may be presented in person, by
certified mail, or by facsimile transmission, as agreed upon by the
survivor of the deceased or the responsible party. A cemetery
authority who knowingly fails to present the preneed agreement to the
survivor of the deceased or the responsible party shall be liable
for a civil fine equal to three times the cost of the preneed
agreement, or one thousand dollars ($1,000), whichever is greater.
SEC. 12. Section 7619.2 of the Business
and Professions Code is repealed.
7619.2. The bureau shall grant a funeral director's license to
any applicant who complies with this article, notwithstanding Section
7619, if the applicant can demonstrate that he or she has complied
with Section 7622 on or before July 1, 1999.
SEC. 13. Section 7620 of the Business
and Professions Code is repealed.
7620. The application shall specify the address at which the
applicant proposes to engage in or conduct a place of business as a
funeral director.
SEC. 14. Section 7621 of the Business
and Professions Code is repealed.
7621. The applicant shall also furnish the bureau with
satisfactory proof that the facility in which he or she intends to
conduct business as a funeral director is or will be constructed,
equipped and maintained in all respects as a licensed funeral
establishment as defined in this chapter.
SEC. 15. Section 7622.2 of the Business
and Professions Code is amended to read:
7622.2. No person, partnership, association,
corporation, or other organization A person
shall not open or maintain a place or establishment
at which to engage in or conduct, or hold himself, herself, or
itself out as engaging in or conducting, the activities of a funeral
director without a license.
SEC. 16. Article 2.5 (commencing with Section
7637) is added to Chapter 12 of Division 3 of the Business
and Professions Code , to read:
Article 2.5. Cemetery Brokerage Regulations
7637. This article does not apply to the following cases or to
the following persons:
(a) A person acting with reference to an occasional sale of his or
her own property.
(b) The regular officers of a cemetery corporation holding a
certificate of authority acting with reference to the corporation's
property when they receive no special compensation therefor.
(c) Persons making an occasional sale under a duly executed power
of attorney from others.
(d) The services rendered by an attorney at law in performing his
or her duties in that capacity.
(e) A receiver, trustee in bankruptcy, any person acting under
orders of any court, or a trustee selling under a deed of trust.
(f) A real estate broker or real estate salesperson, acting in
that capacity in connection with the sale, lease, or exchange of real
property, or interest therein, when the transfer of cemetery
property is purely incidental to the sale, lease, or exchange of real
property.
7637.1. A person shall not engage in the business of, act in the
capacity of, advertise or assume to act as, a cemetery broker or
cemetery salesperson in this state without first obtaining a license
from the bureau.
7637.2. Any act other than an occasional sale of buying or
selling, leasing, or exchanging cemetery property or interment
services of or for another or on his or her own account, or offering
for another or for his or her own account to buy or sell, lease, or
exchange cemetery property or interment services, or negotiating the
purchase or sale, lease, or exchange of cemetery property or
interment services, or negotiating the purchase or sale, lease, or
exchange, or listing or soliciting, or negotiating a loan on or
leasing of cemetery property or interment services constitutes the
person making such offer, sale or purchase, lease, or exchange, or
negotiating the loan, or listing or soliciting, a cemetery broker or
cemetery salesperson.
7637.3. A person engaged in the business or acting in the
capacity of a broker or a salesperson within this state shall not
bring or maintain any action in the courts of this state for the
collection of compensation for the performance of any of the acts
mentioned in this article without alleging and proving that he or she
was a duly licensed cemetery broker or cemetery salesperson at the
time the alleged cause of action arose.
7637.4. (a) A cemetery broker shall not employ or compensate,
directly or indirectly, any person for performing any of the acts
within the scope of this article who is not a licensed cemetery
broker, or a cemetery salesperson licensed under the cemetery broker
employing or compensating him or her. A cemetery salesperson shall
not be employed by or accept compensation from any person other than
the cemetery broker under whom he or she is at the time licensed.
(b) A salesperson shall not pay any compensation for performing
any of the acts within the scope of this article to any licensee
except through the cemetery broker under whom he or she is at the
time licensed.
(c) For a violation of any of the provisions of this section, the
bureau may temporarily suspend or permanently revoke the license of
the cemetery licensee in accordance with the provisions of this act
relating to disciplinary proceedings.
7637.5. (a) It is a misdemeanor, punishable by a fine not
exceeding one hundred dollars ($100) for each offense, for any
person, whether obligor, escrowholder, or otherwise, to pay or
deliver to anyone a compensation for performing any of the acts
within the scope of this article who is not known to be or who does
not present evidence to such payer that he or she is a licensed
cemetery broker at the time compensation is earned.
(b) For violation of any of the
provisions of this section, the bureau may temporarily suspend or
permanently revoke the license of the cemetery licensee in accordance
with the provisions of this act relating to disciplinary
proceedings.
7637.6. Any person acting as a cemetery broker or cemetery
salesperson without a license, or who advertises so as to indicate he
or she is a cemetery broker without being so licensed, is guilty of
a misdemeanor. If that person is a corporation, it shall be punished
by a fine of not to exceed five thousand dollars ($5,000).
7637.7. (a) Any cemetery salesperson or cemetery broker who
sells, causes to be sold, or offers for sale any cemetery property
upon the promise, guarantee, or representation to the purchaser that
the same may be resold or repurchased at a financial profit is guilty
of a misdemeanor.
(b) For violation of any of the provisions of this section, the
bureau may temporarily suspend or permanently revoke the license of
the cemetery salesperson or cemetery broker in accordance with the
provisions of this act relating to disciplinary proceedings.
(c) No violation of any of the provisions of this section by any
cemetery salesperson or employee of any licensed cemetery broker
shall cause the suspension or revocation of the license of the
employer of the salesperson or employee unless it appears upon a
hearing by the bureau that the employer had guilty knowledge of the
violation.
7637.8. Every officer, agent, or employee of any company, and
every other person who knowingly authorizes, directs, or aids in the
publication, advertisement, distribution, or circularization of any
false statement or representation concerning any cemetery or cemetery
brokerage business and every person who, with knowledge that any
advertisement, pamphlet, prospectus, or letter concerning any
cemetery brokerage business or any written statement that is false or
fraudulent, issues, circulates, publishes, or distributes the same,
or causes it to be issued, circulated, published, or distributed, or
who in any other respect willfully violates or fails, omits, or
neglects to obey, observe, or comply with any order, permit,
decision, demand, or requirement of the bureau under the provisions
of this act relating to cemetery brokerage, is guilty of a
misdemeanor, and, if a cemetery licensee, he or she shall be held to
trial by the bureau for a suspension or revocation of this cemetery
license, as provided in the provisions of this act relating to
disciplinary proceedings.
7637.9. Each cemetery broker, other than a cemetery corporation
holding a certificate of authority, and each cemetery salesperson
shall include in any advertising a statement that he or she is acting
as a cemetery broker or cemetery salesperson.
7637.10. For violation of any of the provisions of Section
7637.9, the bureau may temporarily suspend or permanently revoke the
license of the cemetery licensee in accordance with the provisions of
this act relating to disciplinary proceedings.
7638. Any person, other than a person making an occasional sale,
who advertises cemetery property for sale or exchange, without being
duly licensed as a cemetery broker or a cemetery salesperson, or
without possessing a certificate of authority as a cemetery
corporation, is guilty of a misdemeanor. If such person is a
corporation, it shall be punished by a fine of not to exceed five
thousand dollars ($5,000).
SEC. 17. Article 3.5 (commencing with Section
7651) is added to Chapter 12 of Division 3 of the Business
and Professions Code , to read:
Article 3.5. Licenses and Certificates of Authority
7651. Application for license as a cemetery broker shall be made
in writing on the form prescribed by the bureau and filed at the
principal office of the bureau. The application shall be accompanied
by the original cemetery broker's license fee.
7651.1. The bureau shall not grant an original cemetery broker's
license to any person who is not a resident of this state. Change of
residence to another state shall terminate the license.
7651.2. The bureau shall not grant an original cemetery broker's
license to any person who has not held a cemetery salesperson's
license for at least two years prior to the date of his or her
application for the broker's license, and during that time was not
actively engaged in the business of a cemetery salesperson except
that if an applicant for a cemetery broker's license having at least
the equivalent of two years' general cemetery experience files a
written petition with the bureau setting forth his or her
qualifications and experience and the bureau approves, he or she may
be issued a cemetery broker's license immediately upon passing the
appropriate examinations and satisfying the other requirements of
this article.
7651.3. Application for license as a cemetery salesperson shall
be made in writing on the form prescribed by the bureau and filed at
the principal office of the bureau. The application shall be signed
by the applicant, and shall be accompanied by the cemetery
salesperson's license fee.
7651.4. Notwithstanding any other provision of this chapter,
Section 7651.7 does not apply to an applicant for a cemetery
salesperson's license.
7651.5. The bureau shall investigate the qualifications of the
applicants. Except as otherwise prescribed in this article, it may
issue the license applied for to an applicant on a showing
satisfactory to it that the following facts exist:
(a) The applicant is properly qualified to perform the duties of a
cemetery broker or salesperson.
(b) Granting the license will not be against public interest.
(c) The applicant intends actively and in good faith to carry on
the business of a cemetery broker or a cemetery salesperson.
(d) In the case of a corporate applicant, the articles of
incorporation permit it to act as a cemetery broker.
(e) In the case of an association or copartnership applying for
such a license, its articles of association or agreement of
partnership authorize it to act as a cemetery broker.
(f) The license is not being secured for the purpose of permitting
the applicant to advertise as a cemetery broker or salesperson
without actually engaging in such business.
(g) The applicant has not committed acts or crimes constituting
grounds for denial of licensure under Section 480.
7651.6. All cemetery brokers who do not possess a certificate of
authority shall, in addition to the requirements of this chapter,
file with the bureau a satisfactory bond to the people of the State
of California, duly executed by a sufficient surety or sureties to be
approved by the bureau, in the amount of ten thousand dollars
($10,000). That bond shall be conditioned for the honest and faithful
performance by such broker and his or her salespersons and employees
of any undertaking as a licensed cemetery broker or salesperson or
employee of said broker at any time when licensed under this chapter,
and the strict compliance with the provisions of this chapter and of
Division 8 (commencing with Section 8100) of the Health and Safety
Code, relating to cemeteries, and the honest and faithful application
of all funds received. That bond shall be further conditioned upon
the payment of all damages suffered by any person damaged or
defrauded by reason of the violation of any of the provisions of this
chapter or of Division 8 (commencing with Section 8100) of the
Health and Safety Code relating to cemeteries, or by reason of the
violation of the obligation of such broker as an agent, as such
obligations are laid down by the Civil Code, or by reason of any
fraud connected with or growing out of any transactions contemplated
by this chapter or Division 8 (commencing with Section 8100) of the
Health and Safety Code.
7651.7. The bureau shall ascertain by written examination that
the applicant, and, in case of a copartnership or corporation
applicant for a cemetery broker's license, that each officer, agent
or member thereof through whom it proposes to act as a cemetery
licensee has:
(a) Appropriate knowledge of the English language, including
reading, writing and spelling, and of elementary arithmetic.
(b) A fair understanding of:
(1) Cemetery associations, cemetery corporations, and duties of
directors.
(2) Plot ownership, deeds, certificates of ownership, contracts of
sale, liens, and leases.
(3) Establishing, dedicating, maintaining, managing, operating,
improving, and conducting a cemetery.
(4) The care, preservation, and embellishment of cemetery
property.
(5) The care and preservation of endowment care funds, trust
funds, and the investment thereof.
(c) A general and fair understanding of the obligations between
principal and agent, of the principles of cemetery brokerage practice
and the business ethics pertaining thereto, as well as of the
provisions of this act relating to cemetery brokerage.
7651.8. The bureau may, in its discretion, waive the examination
of any applicant for a cemetery broker's license who held an
unrevoked or unsuspended cemetery license on June 30 of the preceding
fiscal year as an individual broker, an officer of a corporation, or
member of a copartnership.
7651.9. An application on the form prescribed by the bureau for
the renewal of any unrevoked and unsuspended license filed before
midnight of June 30 of the year for which such unrevoked and
unsuspended license was issued, accompanied by the applicable renewal
fee, entitles the applicant to continue operating under his or her
existing license after its usual expiration date, if not previously
suspended or revoked, and until such date as he or she is notified in
writing that the application has been granted or denied.
7651.10. A cemetery license does not give authority to do any act
specified in this act to any person other than the person to whom
the license is issued.
7652. When a cemetery brokerage license is issued to a cemetery
brokerage corporation, if it desires any of its officers other than
the officer through whom it is already licensed to act under its
license as a cemetery broker, it shall procure an additional license
for each such officer. When a cemetery brokerage license is granted
to cemetery brokerage copartnership, if it desires any of its members
other than the one through whom it is already licensed to act as a
cemetery broker, it shall procure an additional license for each such
member.
7652.1. Each officer of a corporation through whom it is licensed
to act as a cemetery broker, and each member of a copartnership
through whom it is licensed to act as a cemetery broker, is, while so
employed under such license, a licensed cemetery broker, but
licensed only to act as such for and on behalf of the corporation or
the copartnership, as officer or member, respectively.
7652.2. The cemetery licenses of both broker and salesperson
shall be prominently displayed in the office of the broker.
The cemetery salesperson's license shall remain in the possession
of the licensed cemetery broker employer until canceled or until the
salesperson leaves the employ of the broker.
7652.3. Immediately upon the salesperson's withdrawal from the
employ of the broker, the broker shall return the salesperson's
license to the bureau for cancellation. A license canceled but not
suspended or revoked may be reinstated within the fiscal year upon
receipt of application therefor and the fee for the reinstatement of
the license.
7652.4. (a) Every licensed cemetery broker shall have and
maintain a definite place of business in this state which shall serve
as his or her office for the transaction of business.
(b) No cemetery license authorizes the licensee to do business
except from the location for which the cemetery license was issued.
(c) Notice in writing shall be given the bureau of change of
business location of a cemetery broker, whereupon the bureau shall
issue a new cemetery license for the unexpired period. The change or
abandonment of business location without notification to the bureau
shall automatically cancel the license theretofore issued.
7652.5. (a) If the applicant for a cemetery broker's license
maintains more than one place of business within the state, he or she
shall apply for and procure an additional license for each branch
office so maintained. Every such application shall state the name of
the person and the location of the place of business for which such
license is desired.
(b) The bureau may determine whether or not a broker is doing a
cemetery brokerage business at or from any particular location which
requires him or her to have a branch office license.
7652.6. Each cemetery broker shall erect and maintain a sign in a
conspicuous place on the premises to indicate that he or she is a
licensed cemetery broker and his or her name shall be clearly shown
thereon. The size and place of the sign shall conform to regulations
that may be adopted by the bureau.
7652.7. For a violation of any of the provisions of Sections
7652.2, 7652.3, 7652.4, and 7652.6, the bureau may temporarily
suspend or permanently revoke the license of the cemetery licensee in
accordance with the provisions of this act relating to disciplinary
proceedings.
7652.8. Application for a certificate of authority shall be made
in writing on the form prescribed by the bureau and filed at the
principal office of the bureau. The application shall be accompanied
by the fee provided for in this act and shall show that the cemetery
authority owns or is actively operating a cemetery in this state
which is subject to the provisions of the act or that the applicant
is in a position to commence operating a cemetery.
7652.9. Each cemetery for which a certificate of authority is
required shall be operated under the supervision of a manager who is
qualified in accordance with the regulations adopted by the bureau.
Each cemetery manager shall be required to successfully pass a
written examination evidencing an understanding of the applicable
provisions of this code and of the Health and Safety Code. A person
shall not engage in the business of, act in the capacity of, or
advertise or assume to act as, a cemetery manager without first
obtaining a license from the bureau.
7652.10. The bureau may require such proof as it deems advisable
concerning the compliance by such applicant to all the laws, rules,
regulations, ordinances and orders applicable.
7653. (a) The bureau shall adopt, and may from time to time
amend, rules and regulations prescribing standards of knowledge and
experience and financial responsibility for applicants for
certificates of authority. In reviewing an application for a
certificate of authority, the bureau may consider acts of
incorporators, officers, directors, and stockholders of the
applicant, which shall constitute grounds for the denial of a
certificate of authority under Division 1.5 (commencing with Section
475).
(b) Upon receipt of an application for a certificate of authority,
the bureau may cause an investigation to be made of the physical
status, plans, specifications and financing of the proposed cemetery,
and any other qualifications required of the applicant under this
act, and for this purpose may subpoena witnesses, administer oaths,
and take testimony.
(c) At the time of the filing of the application required by this
section, the applicant shall pay to the Cemetery and Funeral Fund the
sum fixed by the bureau at not in excess of four hundred dollars
($400) to defray the expenses of investigation. In the event the sum
shall be insufficient to defray all of the expenses, the applicant
shall, within five days after request, deposit an additional sum
sufficient to defray those expenses, provided that the total sum
shall not exceed the sum of nine hundred dollars ($900).
7653.1. (a) The bureau may, in accordance with its rules and
regulations, authorize interments in cemeteries for which there is no
currently valid certificate of authority outstanding if the bureau
finds that rights to interment therein will otherwise be impaired.
However, nothing in this section authorizes sales of lots, vaults, or
niches by cemeteries for which there is no currently valid
certificate of authority. Interments permitted under this section
shall be conducted by persons authorized by the bureau in accordance
with its regulations, and Section 7731.2 shall not be applicable to
such interments.
(b) The bureau or its representative shall be entitled to inspect
and copy any cemetery records necessary to the performance of
interments under this section, and any person having custody of those
records shall permit inspection and copying thereof for that
purpose. The bureau may apply to the superior court for the county in
which the cemetery is located for an order temporarily transferring
custody of cemetery records to it for purposes of this section.
7653.2. The bureau shall inspect the books, records, and premises
of any crematory licensed under this chapter. In making those
inspections, the bureau shall have access to all books and records,
the crematory building, the cremation chambers or furnaces, and the
storage areas for human remains before and after cremation, during
regular office hours or the hours the crematory is in operation. No
prior notification of the inspection is required to be given to the
crematory licensee. If any crematory licensee fails to allow that
inspection or any part thereof, it shall be grounds for the
suspension or revocation of a license or other disciplinary action
against the licensee. All proceedings under this section shall be
conducted in accordance with the provisions of this chapter relating
to disciplinary proceedings.
7653.3. The bureau shall annually conduct a minimum of one
unannounced inspection of each licensed crematory.
7653.4. The bureau shall inspect the books, records, and premises
of any cemetery where a certificate of authority is required under
this chapter. In making the inspections, the bureau shall have access
to all books and records, buildings, mausoleums, columbariums,
storage areas, including storage areas for human remains, during
regular office hours or the hours the cemetery is in operation. No
prior notification of the inspection is required to be given to the
holder of the certificate of authority. If any certificate holder
fails to allow the inspection or any part thereof, disciplinary
action including, but not limited to, revocation or suspension may be
taken against the certificate of authority. All disciplinary
proceedings shall be conducted in accordance with this chapter.
7653.5. The bureau shall annually conduct a minimum of one
unannounced inspection of each cemetery for which a certificate of
authority is required.
7653.6. A cemetery licensed under this chapter shall at all times
employ a licensed cemetery manager to manage, supervise, and direct
its operations. Notwithstanding any other provision of this chapter,
licensed cemeteries within close geographical proximity of each other
may request the bureau to allow a licensed cemetery manager to
manage, supervise, and direct the business or profession of more than
one facility.
(a) Every cemetery shall designate a licensed cemetery manager to
manage the cemetery, and shall report the designation to the bureau
within 10 days of the effective date. Any change in the designated
manager shall be reported to the bureau within 10 days.
(b) The designated cemetery manager shall be responsible for
exercising direct supervision and control over the operations,
employees, and agents of the cemetery as is necessary to ensure full
compliance with the applicable provisions of this code, the Health
and Safety Code, and any regulations adopted thereto. Failure of the
designated cemetery manager or the licensed cemetery to exercise that
supervision or control shall constitute a ground for disciplinary
action.
(c) A cemetery may employ, in addition to the designated cemetery
manager, additional licensed cemetery managers. However, only one
licensed cemetery manager may be appointed as the designated cemetery
manager of the cemetery.
7653.7. (a) Application for a cemetery manager license shall be
made in writing on the form provided by the bureau, verified by the
applicant, and filed at the principal office of the bureau. The
application shall be accompanied by the fee fixed by this chapter.
(b) The applicant for a cemetery manager license shall be at least
18 years of age, possess a high school diploma or its equivalent,
shall not have committed acts or crimes constituting grounds for
denial of licensure under Section 480, shall demonstrate compliance
with the training and experience requirements established by the
bureau, and shall be a resident of this state.
(c) The bureau shall grant a cemetery manager license to any
applicant who meets the requirements of this chapter and who has
successfully passed the cemetery manager examination administered by
the bureau.
7653.8. (a) A person shall not engage in or conduct, or hold
himself or herself out as engaging in or conducting, the activities
of a cemetery manager without holding a valid, unexpired cemetery
manager license issued by the bureau.
(b) A licensed cemetery manager shall not engage in or conduct, or
hold himself or herself out as engaging in or conducting, the
activities of a cemetery manager without being employed by, or
without being a corporate officer of a licensed cemetery.
7653.9. (a) Notwithstanding any other law, based upon a finding
by a court of competent jurisdiction that a cemetery manager of a
private cemetery has ceased to perform his or her duties, as
described in subdivision (a) of Section 7611.4, due to a lapse,
suspension, surrender, abandonment, or revocation of his or her
license, the court may appoint a temporary manager to manage the
cemetery property and to service the prepaid interments of the
private cemetery. The court shall appoint a licensed cemetery manager
as the temporary manager.
(b) The appointed temporary manager shall have the same powers
over the care and maintenance of the private cemetery as a licensed
cemetery manager, as described in subdivision (a) of Section 7611.4.
The temporary manager shall serve for a limited term not to exceed
six months, or until a new licensed manager has been hired, at which
time the court shall terminate the appointment of the temporary
manager.
(c) The court may authorize the payment of reasonable compensation
for the temporary manager's services, which shall be paid by the
trustees from available income from the cemetery. In exercising its
discretion pursuant to this subdivision, the court shall give due
consideration to the ability of the cemetery income to otherwise pay
for care and maintenance of the cemetery.
SEC. 18. Article 4.5 (commencing with Section
7672) is added to Chapter 12 of Division 3 of the Business
and Professions Code , to read:
Article 4.5. Cremated Remains Disposer
7672. A person shall not dispose of or offer to dispose of any
cremated human remains unless registered as a cremated remains
disposer by the bureau. This article shall not apply to any person,
partnership, or corporation holding a certificate of authority as a
cemetery, crematory license, cemetery broker's license, cemetery
salesperson's license, or funeral director's license, nor shall this
article apply to any person having the right to control the
disposition of the cremated remains of any person or that person's
designee if the person does not dispose of or offer to dispose of
more than 10 cremated human remains within any calendar year.
7672.1. (a) Registration shall be on the form prescribed by the
bureau and shall include, but not be limited to, the full name of the
registrant, business and residence addresses, description and
identification of aircraft or boats which may be used in dispensing
cremated human remains, and the area to be served. Each registration
application shall be accompanied by the cremated remains disposer
fee.
(b) Every registered cremated remains disposer who dispenses human
remains by air shall post a copy of his or her current pilot's
license, and the address of the cremated remains storage area at his
or her place of business. Every registered cremated remains disposer
who dispenses human remains by boat shall post a copy of his or her
current boating license and the address of the cremated remains
storage area at his or her place of business.
7672.2. The bureau shall prepare and deliver to each registered
cremated remains disposer a booklet that includes, but is not limited
to, the following information: details about the registration and
renewal requirements for cremated remains disposers; requirements for
obtaining state permits to dispose of cremated human remains; state
storage requirements, if any; statutory duties pursuant to this
article, and other applicable state laws.
7672.3. All aircraft used for the scattering of cremated human
remains shall be validly certified by the Federal Aviation
Administration. All boats or vessels used for the scattering of
cremated human remains shall be registered with the Department of
Motor Vehicles or documented by a federal agency, as appropriate. The
certification or registration shall be available for inspection by
the bureau.
7672.4. A cremated remains disposer who scatters any cremated
human remains without specific written instructions from the person
having the right to control the disposition of the remains or who
scatters any remains in a manner not in accordance with those
instructions shall be subject to disciplinary action.
7672.5. Each cremated remains disposer shall provide the person
with the right to control the disposition of the remains under
Section 7100 of the Health and Safety Code with a copy of the
completed permit for disposition of human remains pursuant to Chapter
8 (commencing with Section 103050) of Part 1 of Division 102 of the
Health and Safety Code within 30 days of the date of the scattering.
7672.6. (a) Every cremated remains disposer shall do both of the
following:
(1) Dispose of cremated remains within 60 days of the receipt of
those remains, unless a written signed reason for a delay is
presented to the person with the right to control the disposition of
the remains under Section 7100 of the Health and Safety Code.
(2) Provide the bureau with the address and telephone number of
any storage facility being used by the registrant to store cremated
remains. Cremated remains shall be stored in a place free from
exposure to the elements, and shall be responsibly maintained until
disposal. The bureau and its representatives shall conduct, on an
annual basis, random inspections of the operations of 5 to 10 percent
of the registered cremated remains disposers, and is authorized to
inspect any place used by a cremated remains disposer for the storage
of cremated remains without notice to the cremated remains disposer.
(b) A violation of the requirements of this section is grounds for
disciplinary action.
7672.7. (a) Each cremated remains disposer shall file, and
thereafter maintain an updated copy of, an annual report on a form
prescribed by the bureau. The report shall include, but not be
limited to, the names of the deceased persons whose cremated remains
were disposed of, the dates of receipt of the cremated remains, the
names and addresses of the persons who authorized disposal of those
remains, the dates and locations of disposal of those remains, and
the means and manner of disposition. The report shall cover the
fiscal year ending on June 30 and shall be filed with the bureau no
later than September 30 of each year.
(b) Any cremated remains disposer that makes a willful and
material false statement regarding the disposal of cremated remains
in the annual report filed or updated pursuant to subdivision (a)
shall be subject to disciplinary action.
(c) Any cremated remains disposer that makes a willful and
material false statement in the annual report filed or updated
pursuant to subdivision (a) shall be guilty of a misdemeanor.
7672.8. All cremated remains disposer registrations shall expire
at 12 midnight on September 30 of each year. A person desiring to
renew his or her registration shall file an application for renewal
on a form prescribed by the bureau accompanied by the required fee. A
registration that has expired may be renewed within five years of
its expiration upon payment of all accrued and unpaid renewal fees.
The bureau shall not renew the registration of any person who has not
filed the required annual report until he or she has filed a
complete annual report with the department.
7672.9. If a person fails to apply for renewal of his or her
cremated remains disposer registration prior to midnight of September
30 of the year for which the registration was issued, no renewal
shall be issued except upon payment of the delinquent renewal fee
required under Section 7729.2.
7672.10. Any person who scatters cremated human remains without a
valid registration and who is not otherwise exempt from this article
shall be guilty of a misdemeanor. The remains of each person
scattered shall constitute a separate violation.
7673. Any person who scatters any cremated human remains without
specific written instructions from the person having the right to
control the disposition of the remains or who scatters any remains in
a manner not in accordance with those instructions shall be guilty
of a misdemeanor.
7673.1. Any cremated remains disposer who stores cremated remains
in a reckless manner that results in either of the following is
guilty of a public offense punishable by imprisonment in a county
jail not exceeding one year or by a fine not to exceed five thousand
dollars ($5,000), or by both that fine and imprisonment:
(a) Loss of all or part of the cremated remains.
(b) Inability to individually identify the cremated remains.
7673.2. A cremated remains disposer shall be subject to and shall
be disciplined by the bureau in accordance with Article 6
(commencing with Section 7686). Any violation of this article shall
also be grounds for disciplinary action.
SEC. 19. Section 7685.3 of the Business
and Professions Code is amended to read:
7685.3. The current address, telephone number, and name of the
Department of Consumer Affairs, Cemetery and Funeral Bureau shall
appear on the first page of any contract for goods and services
offered by a funeral director. licensee.
At a minimum, the information shall be in 8-point boldface type
and make this statement:
"FOR MORE INFORMATION ON FUNERAL, CEMETERY, AND CREMATION MATTERS,
CONTACT: DEPARTMENT OF CONSUMER AFFAIRS, CEMETERY AND FUNERAL BUREAU
(ADDRESS), (TELEPHONE NUMBER)."
SEC. 20. Section 7685.5 of the Business
and Professions Code is amended to read:
7685.5. (a) The bureau shall make available to funeral
establishments and cemetery authorities a copy of a consumer guide
for funeral and cemetery purchases for purposes of reproduction and
distribution. The funeral and cemetery guide that is approved by the
bureau, in consultation with the funeral and cemetery industries and
any other interested parties, shall be made available in printed form
and electronically through the Internet.
(b) A funeral establishment licensee
shall prominently display and make available to any individual who,
in person, inquires about funeral or cemetery purchases, a copy of
the consumer guide for funeral and cemetery purchases, reproduced as
specified in subdivision (a).
(c) Prior to the drafting of a contract for funeral
services, the funeral establishment
licensee shall provide, for retention, the consumer with a
copy of the consumer guide for funeral and cemetery purchases
described in subdivisions (a) and (b).
SEC. 21. Section 7700.1 is added to the
Business and Professions Code , to read:
7700.1. Unprofessional conduct by any licensee or registrant or
by any agent or employee of a licensee or registrant constitutes
grounds for disciplinary action. Unprofessional conduct includes, but
is not limited to, the following:
(a) Violating or attempting to violate, directly or indirectly, or
assisting in or abetting the violation of this chapter and any
regulation adopted thereunder, or of any federal or state law or
regulation governing the disposition of human remains, operation of
cemeteries or crematories, the sale of cemetery property, or the sale
of crematory services or commodities.
(b) Negligence in performing any act related to the operation of a
cemetery or crematory.
SEC. 22. Section 7711.2 is added to the
Business and Professions Code , to read:
7711.2. The bureau may, upon its own motion, and shall, upon the
verified complaint in writing of any person, investigate the actions
of any person engaged in the business or acting in the capacity of a
cemetery licensee, and may temporarily suspend or permanently revoke
a license at any time where the licensee, within the immediately
preceding three years, while a cemetery licensee in performing or
attempting to perform any of the acts specified in this act, has been
guilty of any of the following:
(a) Making any substantial misrepresentation.
(b) Making any false statement of a character likely to influence
or persuade.
(c) A continued and flagrant course of misrepresentation or making
of false promises through cemetery agents or salespersons.
(d) Acting for more than one party in a transaction without the
knowledge or consent of all parties thereto.
(e) Commingling the money or other property of his or her
principal with his or her own.
(f) The practice of claiming or demanding a fee, compensation or
commission under any exclusive agreement authorizing or employing a
licensee to sell, buy, or exchange cemetery property for compensation
or commission where such agreement does not contain a definite,
specified date of final and complete termination.
(g) The claiming or taking by a licensee of any secret or
undisclosed amount of compensation, commission, or profit or the
failure of a licensee to reveal to the employer of such licensee the
full amount of such licensee's compensation, commission, or profit
under any agreement authorizing or employing such licensee to sell,
buy, or exchange cemetery property for compensation or commission
prior to or coincident with the signing of such agreement evidencing
the meeting of the minds of the contracting parties, regardless of
the form of such agreement, whether evidenced by documents in an
escrow or by any other or different procedure.
(h) The use by a licensee of any provision allowing the licensee
an option to purchase in an agreement authorizing or employing such
licensee to sell, buy, or exchange cemetery property for compensation
or commission, except when such licensee prior to or coincident with
election to exercise such option to purchase reveals in writing to
the employer the full amount of licensee's profit and obtains the
written consent of the employer approving the amount of such profit.
(i) Any other conduct, whether of the same or a different
character than specified in this section, which constitutes fraud or
dishonest dealing.
(j) The misrepresentations and false statements mentioned in this
section include also misrepresentation and false statements as to
other property than that which the cemetery licensee may be selling
or attempting to sell.
SEC. 23. Section 7711.3 is added to the
Business and Professions Code , to read:
7711.3. The bureau may suspend or revoke the license of any
cemetery licensee who, within the immediately preceding three years,
has done any of the following:
(a) Been convicted of a crime substantially related to the
qualifications, functions, and duties of such licensee. The record of
conviction, or a certified copy thereof, shall be conclusive
evidence of such conviction.
(b) Knowingly authorized, directed, connived at or aided in the
publication, advertisement, distribution, or circulation of any
material false statement or representation concerning his or her
business or any cemetery property offered for sale.
(c) Willfully disregarded or violated any of the provisions of
this act relating to cemetery brokerage.
(d) Acted or conducted himself or herself in a manner which would
have warranted the denial of his or her application for a cemetery
license, or for a renewal thereof.
SEC. 24. Section 7711.4 is added to the
Business and Professions Code , to read:
7711.4. When any salesperson is discharged by his or her employer
for a violation of any of the provisions of this article prescribing
a ground for disciplinary action, a verified written statement of
the facts with reference thereto shall be filed forthwith with the
bureau by the employer and, if the employer fails to notify the
bureau as required by this section, the bureau may temporarily
suspend or permanently revoke the cemetery license of the employer in
accordance with the provisions of this act.
SEC. 25. Section 7711.5 is added to the
Business and Professions Code , to read:
7711.5. The bureau may deny, suspend, or revoke the cemetery
license of a corporation as to any officer or agent acting under its
cemetery license, and the cemetery license of a copartnership as to
any member acting under its cemetery license, without revoking the
cemetery license of the corporation or of the copartnership.
SEC. 26. Section 7711.6 is added to the
Business and Professions Code , to read:
7711.6. The fees for cemetery licenses at all periods of the
fiscal year is the same as provided in this article. All cemetery
license fees are payable in advance of issuing the licenses and at
the time of filing the application. All licenses shall be issued for
the fiscal year and shall expire on June 30 of each fiscal year at
midnight.
SEC. 27. Section 7711.7 is added to the
Business and Professions Code , to read:
7711.7. (a) If a person fails to apply for a license renewal, no
renewal license shall be issued except upon payment of the delinquent
renewal fee required under Section 7729.2.
(b) A person who fails to renew his or her license within one year
of the expiration date shall not engage in any of the activities
authorized by a license unless he or she first files the application
required for an original license, pays the original license fee, and
otherwise complies with all of the provisions of this act pertaining
to the issuance of an original license.
SEC. 28. Section 7711.8 is added to the
Business and Professions Code , to read:
7711.8. The definitions contained in this article are solely for
the purposes of this article.
SEC. 29. Section 7711.9 is added to the
Business and Professions Code , to read:
7711.9. An original cemetery broker's license is a cemetery
license issued to a person who did not have a cemetery broker's
license on June 30 of the fiscal year previous to the fiscal year for
which the license is issued.
SEC. 30. Section 7711.10 is added to the
Business and Professions Code , to read:
7711.10. A renewal cemetery broker's license is a cemetery
license issued to a person who had a cemetery broker's license
unrevoked and unsuspended on June 30 of the fiscal year previous to
the fiscal year for which the renewal cemetery license is issued.
SEC. 31. Section 7711.11 is added to the
Business and Professions Code , to read:
7711.11. An original cemetery salesperson's license is a cemetery
license issued to a person who did not have a cemetery salesperson's
or a broker's license either individually or as an officer of a
corporation, or as a member of a copartnership, on June 30 of the
fiscal year previous to the fiscal year for which the salesperson's
license is issued.
SEC. 32. Section 7711.12 is added to the
Business and Professions Code , to read:
7711.12. A renewal cemetery salesperson's license is a cemetery
license issued to a person who had a cemetery salesperson's or a
broker's license either individually or as an officer of a
corporation, or as a member of a copartnership, on June 30 of the
fiscal year previous to the fiscal year for which the salesperson's
license is issued.
SEC. 33. Article 6.5 (commencing with Section
7712) is added to Chapter 12 of Division 3 of the Business
and Professions Code , to read:
Article 6.5. Crematories
7712. A crematory established, operated, or maintained, may be
operated by a corporation, partnership, or natural person, provided
that a valid crematory license shall have been issued by the bureau.
7712.1. Any change in the ownership of a crematory shall be
reported to the bureau. Any transfer in a single transaction or a
related series of transactions of more than 50 percent of the
equitable interest in a licensed crematory shall constitute a change
of ownership. When a change of ownership in a crematory occurs, the
existing crematory license shall lapse and the new owner shall obtain
a new license from the bureau as otherwise provided in this act. The
bureau shall not require an applicant under this section to obtain
any new permit or license from any other governmental agency when the
existing permit or license is valid.
7712.2. Application for a crematory license shall be made in
writing on the form prescribed by the bureau and filed at the
principal office of the bureau. The application shall be accompanied
by the fee provided for in this article and shall show that the
applicant owns or is actively operating a crematory in this state or
that the applicant is in a position to commence operating such a
crematory.
7712.3. The provisions of Article 5 (commencing with Section
8341) of Chapter 2 of Part 3 of Division 8 of the Health and Safety
Code shall apply to crematories licensed under this chapter.
7712.4. The bureau may require such proof as it deems advisable
concerning the compliance by such applicant with all the laws, rules,
regulations, ordinances, and orders applicable to the applicant and
shall not issue such crematory license until it has satisfied itself
that the public interest will be served by such applicant.
7712.5. (a) The bureau shall adopt, and may from time to time
amend, rules and regulations prescribing standards of knowledge and
experience and financial responsibility for applicants for a
crematory license. In reviewing an application for a crematory
license, the bureau may consider acts of the applicant, including
acts of incorporators, officers, directors, and stockholders of the
applicant, which shall constitute grounds for the denial of a
crematory license under Division 1.5 (commencing with Section 475).
(b) Upon receipt of an application for a crematory license, the
bureau may cause an investigation to be made of the physical status,
plans, specifications, and financing of the proposed crematory, the
character of the applicant, including, if applicable, its officers,
directors, shareholders, or members, and any other qualifications
required of the applicant under this article, and for this purpose
may subpoena witnesses, administer oaths, and take testimony.
(c) At the time of the filing of the application required by this
article, the applicant shall pay to the Cemetery and Funeral Fund
the sum fixed by the bureau at not in excess of four hundred dollars
($400) to defray the expenses of investigation. In the event the sum
shall be insufficient to defray all of the expenses, the applicant
shall, within five days after request therefor, deposit an additional
sum sufficient to defray such expenses, provided that the total sum
shall not exceed the sum of nine hundred dollars ($900).
7712.6. A crematory licensee under this article shall not conduct
any cremations:
(a) Unless the licensee has a written contract with the person or
persons entitled to custody of the remains clearly stating the
location, manner, and time of disposition to be made of the remains,
agreeing to pay the regular fees of the licensee for cremation,
disposition, and other services rendered, and any other contractual
provisions as may be required by the bureau.
(b) Of any remains more than 24 hours after delivery of the
remains, unless the remains have been preserved in the interim by
refrigeration or embalming.
(c) Unless the licensee has a contractual relationship with a
licensed cemetery authority for final disposition of cremated human
remains by burial, entombment, or inurnment of any and all remains
which are not lawfully disposed of or which are not called for or
accepted by the person or persons entitled to the custody and control
of the disposition thereof within 90 days of the date of death.
7712.7. Every crematory licensee, who prohibits relatives or the
responsible party from viewing the cremation process, shall disclose
this fact in writing to the person or persons entitled to custody of
the remains prior to the signing of any contract.
7712.8. Each crematory licensee shall keep such records as may be
required by the bureau to assure compliance with all laws relating
to the disposition of cremated human remains and shall file annually
with the bureau, a report in the form prescribed by the bureau,
describing the operations of the licensee, including the number of
cremations made, the disposition thereof, and any other information
as the bureau may, from time to time, require.
7712.9. Every crematory licensee operating a crematory pursuant
to a license issued in compliance with this article shall pay an
annual regulatory charge for each crematory, to be fixed by the
bureau at not more than four hundred dollars ($400). In addition to
an annual regulatory charge for each crematory, every licensee
operating a crematory pursuant to a license issued pursuant to this
article shall pay an additional charge to be fixed by the bureau at
not more than eight dollars and fifty cents ($8.50) per cremation
made during the preceding quarter, which charges shall be deposited
in the Cemetery and Funeral Fund.
7712.10. (a)
Each crematory for which a crematory license is required shall be
operated under the supervision of a manager qualified in accordance
with rules adopted by the bureau. Each manager shall be required to
successfully pass a written examination evidencing an understanding
of the applicable provisions of this code and of the Health and
Safety Code.
(b) A person shall not engage in the business of, act in the
capacity of, or advertise or assume to act as, a crematory manager
without first obtaining a license from the bureau.
7713. A crematory shall at all times employ a licensed crematory
manager to manage, supervise, and direct its operations.
(a) Every crematory shall designate a licensed crematory manager
to manage the crematory, and shall report the designation to the
bureau within 10 days of the effective date. Any change in the
designated manager shall be reported to the bureau within 10 days.
(b) The designated crematory manager shall be responsible for
exercising direct supervision and control over the operations,
employees, and agents of the crematory as is necessary to ensure full
compliance with the applicable provisions of this code, the Health
and Safety Code, and any regulations adopted thereto. Failure of the
designated crematory manager or the licensed crematory to exercise
that supervision or control shall constitute a ground for
disciplinary action.
(c) A crematory may employ, in addition to the designated
crematory manager, additional licensed crematory managers. However,
only one licensed crematory manager may be appointed as the
designated crematory manager of the crematory.
7713.1. (a) Application for a crematory manager license shall be
made in writing on the form provided by the bureau, verified by the
applicant and filed at the principal office of the bureau. The
application shall be accompanied by the fee fixed by this chapter.
(b) The applicant for a crematory manager license shall be at
least 18 years of age, possess a high school diploma or its
equivalent, shall not have committed acts or crimes constituting
grounds for denial of licensure under Section 480, shall demonstrate
compliance with the training and experience requirements established
by the bureau, and shall be a resident of this state.
(c) The bureau shall grant a crematory manager license to any
applicant who meets the requirements of this chapter and who has
successfully passed the crematory manager examination administered by
the bureau.
7713.2. (a) A person shall not engage in or conduct, or hold
himself or herself out as engaging in or conducting, the activities
of a crematory manager without holding a valid, unexpired crematory
manager license issued by the bureau.
(b) A licensed crematory manager shall not engage in or conduct,
or hold himself or herself out as engaging in or conducting, the
activities of a crematory manager without being employed by, or
without being a sole proprietor, partner, or corporate officer of, a
licensed crematory.
7713.3. It is a misdemeanor for any person, firm, or corporation
to cremate human remains or to engage in the disposition thereof
without a valid, unexpired crematory license. Each cremation shall be
a separate violation.
7713.4. A crematory licensee shall be subject to and shall be
disciplined by the bureau in accordance with Article 6 (commencing
with Section 7686).
SEC. 34. Section 7725.2 of the Business
and Professions Code is amended to read:
7725.2. Except as otherwise provided in this article,
chapter, a license that has expired may be
renewed at any time within five years after its expiration on filing
of an application for renewal on a form prescribed by the bureau and
payment of all accrued and unpaid renewal fees. If the license is not
renewed within 30 days after its expiration the licensee, as a
condition precedent to renewal, shall also pay the delinquency fee
prescribed by this chapter. Renewal under this section shall be
effective on the date on which the application is filed, on the date
on which all renewal fees are paid, or on the date on which the
delinquency fee, if any, is paid, whichever last occurs. If so
renewed, the license shall continue in effect through the date
provided in Section 7725 that next occurs after the effective date of
the renewal, when it shall expire if it is not again renewed.
If a license is not renewed within one year following its
expiration, the bureau may require as a condition of renewal that the
holder of the license pass an examination on the appropriate
subjects provided by this chapter.
SEC. 35. Section 7727 of the Business
and Professions Code is amended to read:
7727. On or before the 10th day of each month, the department
shall pay into the State Treasury and report to the State Controller
all the fees received for the bureau. The fees shall be received by
the State Treasurer and placed in the State
Funeral Directors and Embalmers
Cemetery and Funeral Fund, which fund is available for
expenditures necessary for the proper administration of this chapter.
SEC. 36. Section 7729.1 is added to the
Business and Professions Code , to read:
7729.1. The amount of fees prescribed for a license or
certificate of authority under this act is that fixed by the
following provisions of this article. Any license or certificate of
authority provided under this act that has expired may be renewed
within five years of its expiration upon payment of all accrued and
unpaid renewal and regulatory fees.
SEC. 37. Section 7729.2 is added to the
Business and Professions Code , to read:
7729.2. The delinquent renewal fee for a license, registration,
or certificate of authority under this chapter shall be 150 percent
of the timely fee, but not less than the renewal fee plus twenty-five
dollars ($25).
SEC. 38. Section 7729.3 is added to the
Business and Professions Code , to read:
7729.3. The original cemetery broker's license fee shall be fixed
by the bureau at not more than four hundred dollars ($400).
SEC. 39. Section 7729.4 is added to the
Business and Professions Code , to read:
7729.4. (a) The original cemetery broker's license fee is payable
at the time of the filing of an application for an original cemetery
broker's license.
(b) If the applicant fails the required written examination, he or
she may be permitted to take another examination upon the filing of
an application for reexamination and the payment of a reexamination
fee. This reexamination fee shall be fixed by the bureau at not more
than one hundred dollars ($100).
(c) No part of any original cemetery broker's license fee or
reexamination fee is refundable. It is deemed earned upon receipt by
the bureau, whether the accompanying application for a license is
complete or incomplete.
SEC. 40. Section 7729.5 is added to the
Business and Professions Code , to read:
7729.5. The annual renewal fee for a cemetery broker's license
shall be fixed by the bureau at not more than three hundred dollars
($300).
SEC. 41. Section 7729.6 is added to the
Business and Professions Code , to read:
7729.6. If the licensee is a cemetery brokerage corporation, the
license issued to it entitles one officer only, on behalf of the
corporation, to engage in the business of a cemetery broker without
the payment of a further fee, that officer to be designated in the
application of the corporation for a license. For each other officer
of a licensed cemetery brokerage corporation, through whom it engages
in the business of a cemetery broker, the annual renewal fee, in
addition to the fee paid by the corporation, shall be fixed by the
bureau at not more than one hundred dollars ($100).
SEC. 42. Section 7729.7 is added to the
Business and Professions Code , to read:
7729.7. If the licensee is a cemetery brokerage copartnership,
the license issued to it entitles one member only of the
copartnership to engage on behalf of the copartnership in the
business of a cemetery broker, which member shall be designated in
the application of the copartnership for a license. For each other
member of the copartnership who on behalf of the copartnership
engages in the business of a cemetery broker, the annual renewal fee,
in addition to the fee paid by the copartnership, shall be fixed by
the bureau at not more than one hundred dollars ($100).
SEC. 43. Section 7729.8 is added to the
Business and Professions Code , to read:
7729.8. The cemetery salesperson's license fee shall be fixed by
the bureau at not more than thirty dollars ($30).
SEC. 44. Section 7729.9 is added to the
Business and Professions Code , to read:
7729.9. A cemetery salesperson's license fee is payable on each
filing of an application for a cemetery salesperson's license.
SEC. 45. Section 7729.10 is added to the
Business and Professions Code , to read:
7729.10. The annual renewal fee for a cemetery salesperson's
license shall be fixed by the bureau at not more than twenty-five
dollars ($25).
SEC. 46. Section 7730 is added to the
Business and Professions Code , to read:
7730. For a branch office broker's license, the fee shall be
fixed by the bureau at not more than one hundred dollars ($100).
SEC. 47. Section 7730.1 is added to the
Business and Professions Code , to read:
7730.1. The cremated remains disposer registration fee shall be
one hundred dollars ($100).
SEC. 48. Section 7730.2 is added to the
Business and Professions Code , to read:
7730.2. The renewal fee for a cremated remains disposer
registration shall be fifty dollars ($50).
SEC. 49. Section 7730.3 is added to the
Business and Professions Code , to read:
7730.3. For change of name or of address of licensee on the
records of the bureau, the fee shall be fixed by the bureau at not
more than twenty-five dollars ($25).
SEC. 50. Section 7730.4 is added to the
Business and Professions Code , to read:
7730.4. For transfer of a salesperson's license on change of
employer, the fee shall be fixed by the bureau at not more than
twenty-five dollars ($25).
SEC. 51. Section 7730.5 is added to the
Business and Professions Code , to read:
7730.5. For a duplicate license the fee shall be fixed by the
bureau at not more than twenty-five dollars ($25).
SEC. 52. Section 7730.6 is added to the
Business and Professions Code , to read:
7730.6. (a) For reinstatement of a license within the fiscal
year, the fee shall be fixed by the bureau at not more than
twenty-five dollars ($25).
(b) As used in this section, "reinstatement of a license" means
the reissuance of a canceled cemetery broker's license, or a cemetery
salesperson's license which was canceled during the year for which
it was issued upon the salesperson's withdrawal from the employ of a
cemetery broker.
SEC. 53. Section 7730.7 is added to the
Business and Professions Code , to read:
7730.7. (a) The fee for a crematory manager examination and
reexamination may not exceed five hundred dollars ($500).
(b) The license fee to obtain a crematory manager license may not
exceed one hundred dollars ($100).
(c) The renewal fee for a crematory manager license may not exceed
one hundred dollars ($100).
SEC. 54. Section 7730.8 is added to the
Business and Professions Code , to read:
7730.8. (a) The fee for a cemetery manager examination and
reexamination may not exceed nine hundred dollars ($900).
(b) The license fee to obtain a cemetery manager license may not
exceed one hundred dollars ($100).
(c) The renewal fee for a cemetery manager license may not exceed
one hundred dollars ($100).
SEC. 55. Section 7730.9 is added to the
Business and Professions Code , to read:
7730.9. The fee for filing a report of a change of designated
manager or a request for approval to share a designated cemetery
manager shall not exceed fifty dollars ($50).
SEC. 56. Section 7730.10 is added to the
Business and Professions Code , to read:
7730.10. Every cemetery authority operating a cemetery shall pay
an annual regulatory charge for each cemetery to be fixed by the
bureau at not more than four hundred dollars ($400). In addition to
an annual regulatory charge for each cemetery, an additional
quarterly charge to be fixed by the bureau at not more than eight
dollars and fifty cents ($8.50) for each burial, entombment, or
inurnment made during the preceding quarter shall be paid to the
bureau and these charges shall be deposited in the Cemetery and
Funeral Fund. If the cemetery authority performs a burial,
entombment, or inurnment, and the cremation was performed at a
crematory located on the grounds of the cemetery and under common
ownership with the cemetery authority, the total of all additional
charges shall be not more than eight dollars and fifty cents ($8.50).
SEC. 57. Section 7731 is added to the
Business and Professions Code , to read:
7731. Upon payment of the charges set forth, the bureau shall
issue a renewal of the certificate of authority to the cemetery
authority.
SEC. 58. Section 7731.1 is added to the
Business and Professions Code , to read:
7731.1. Failure to pay the charges set forth by Section 7730.10
prior to February 1 for each year shall be cause for suspension of
the certificate of authority. The certificate may be restored upon
payment to the bureau of the prescribed charges.
SEC. 59. Section 7731.2 is added to the
Business and Professions Code , to read:
7731.2. It is a misdemeanor for any cemetery corporation to make
any interments without a valid certificate of authority. Each
interment shall be a separate violation.
SEC. 60. Section 7731.3 is added to the
Business and Professions Code , to read:
7731.3. All moneys received by the bureau under the provisions of
this chapter shall be accounted for and reported by detailed
statements furnished by the bureau to the Controller at least once a
month, and at the same time these moneys shall be remitted to the
Treasurer, and, upon order of the Controller, shall be deposited in
the Cemetery and Funeral Fund in the State Treasury, which fund is
hereby created.
SEC. 61. Section 7731.4 is added to the
Business and Professions Code , to read:
7731.4. All money paid into the State Treasury and credited to
the Cemetery and Funeral Fund shall be expended in accordance with
law for the payment of all actual and necessary expenses incurred in
carrying out the provisions of this act.
SEC. 62. Chapter 19 (commencing with Section 9600)
of Division 3 of the Business and Professions Code
is repealed.
SEC. 63. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
SECTION 1. Section 9613 of the Business and
Professions Code is amended to read:
9613. (a) The bureau shall conduct a study to obtain information
to determine if the endowment care fund levels of each licensee's
cemetery are sufficient to cover the cost of future operation. The
bureau shall also review the levels of endowment care funds that have
previously been reported pursuant to this chapter by licensed
cemeteries.
(b) The bureau shall report its findings and recommendations to
the Senate Committee on Business, Professions and Economic
Development and the Assembly Committee on Business and Professions by
November 1, 2018.
(c) This section shall remain in effect only until January 1,
2020, and as of that date is repealed.
SEC. 2. Section 9625 of the Business and
Professions Code is amended to read:
9625. (a) There is in the department, the Cemetery and Funeral
Bureau, under the supervision and control of the director.
(b) The director may appoint a chief at a salary to be fixed and
determined by the director, with the approval of the Director of
Finance. The duty of enforcing and administering this chapter is
vested in the chief, and he or she is responsible to the director
therefor. The chief shall serve at the pleasure of the director.
(c) Notwithstanding any other law, the powers and duties of the
bureau, as set forth in this chapter, shall be subject to review by
the appropriate policy committees of the Legislature. The review
shall be performed as if this chapter were scheduled to be repealed
on January 1, 2020.