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AB-651 Endowment care cemeteries: examination, investigation, and discipline.(2021-2022)

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Date Published: 04/21/2021 09:00 PM
AB651:v97#DOCUMENT

Amended  IN  Assembly  April 21, 2021
Amended  IN  Assembly  April 13, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 651


Introduced by Assembly Member Gipson

February 12, 2021


An act to amend Sections 7612.11, 7613.1, 7613.1 and 7653.9 of, and to add Section 7688 to, the Business and Professions Code, and to amend Section 8738 of the Health and Safety Code, relating to cemeteries.


LEGISLATIVE COUNSEL'S DIGEST


AB 651, as amended, Gipson. Endowment care cemeteries: examination, investigation, and discipline.
Existing law, the Cemetery and Funeral Act, establishes the Cemetery and Funeral Bureau within the Department of Consumer Affairs and sets forth its powers and duties relating to the licensure and regulation of cemeteries, crematories, funeral establishments, and their personnel. Existing law authorizes a cemetery authority that maintains a cemetery to place its cemetery under endowment care and establish, maintain, and operate an endowment care fund.

Existing law requires the bureau to 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, as provided, and to report the findings and recommendations to the appropriate policy committees of the Legislature by January 1, 2018.

This bill would require the bureau to adopt the recommendations of the study and to promulgate the necessary regulations.

Under existing law, an endowment care cemetery is defined as one which has deposited in its endowment care fund at the time of or not later than completion of the initial sale specified minimum amounts for plots sold or disposed of.
This bill would increase the minimum amounts for each plot sold or disposed of that an endowment care cemetery is required to deposit in its endowment care trust fund, as prescribed. The bill would require the minimum amounts to increase or decrease annually with the Consumer Price Index.
Existing law requires the bureau to examine the endowment care funds of a cemetery authority at least once every 5 years, and under specified circumstances, including if the cemetery authority in charge of the endowment care funds fails to file a required report. Existing law authorizes the bureau to make or cause an investigation of a licensee upon the filing of a complaint.
This bill would require the bureau to examine the endowment care funds of a cemetery authority if the bureau receives a valid complaint alleging the authority has engaged in financial misconduct or neglect of duties.
Existing law authorizes a court, based upon a finding that a cemetery manager of a private cemetery has ceased to perform specified duties, to appoint a temporary manager to manage the cemetery property and to service the prepaid interments of the private cemetery.
This bill would, instead, require a court to appoint a temporary manager, as described above. The bill would require a county in which the cemetery is located to assume responsibility for the maintenance of the cemetery and to preserve public access to the cemetery, until the court can appoint a temporary manager, if the bureau deems a cemetery manager of a private cemetery is in severe violation of existing regulations and the cemetery manager has not adopted the necessary improvements within a reasonable timeframe or has refused to perform their duties, as specified. cemetery manager has had their license suspended or revoked or has surrendered their license, and a court has not appointed a temporary manager within 6 months or the appointment of a temporary manager has expired. By imposing new duties on counties, the bill would impose a state-mandated local program.
Existing law provides that a licensing entity of the department retains the authority to institute or continue a disciplinary proceeding against a licensee, despite the suspension, expiration, or forfeiture by operation of law of a license, or its surrender without the written consent of the licensing entity, as provided.
This bill would specify that the director retains jurisdiction to proceed with any investigation of or action or disciplinary proceedings against a cemetery licensee and its officers, agents or employees, or to render a decision suspending or revoking the license, despite the cemetery licensee’s voluntary surrender of the license, as provided.
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, if the Commission on State Mandates determines that the bill contains unreimbursed costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.Section 7612.11 of the Business and Professions Code is amended to read:
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)By January 1, 2022, the bureau shall adopt the recommendations of the study and promulgate the necessary regulations.

SEC. 2.SECTION 1.

 Section 7613.1 of the Business and Professions Code is amended to read:

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 their 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) Whenever the bureau receives a valid complaint alleging the authority has engaged in financial misconduct or neglect of duties.
(e) The reasonable and necessary cost of the examination performed under subdivision (b) or (c) shall be paid by the cemetery authority.
(f) 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 the director’s designee, shall be prima facie evidence of the reasonable and necessary costs of the examination.
(g) 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.

SEC. 3.SEC. 2.

 Section 7653.9 of the Business and Professions Code is amended to read:

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 their duties, as described in subdivision (a) of Section 7611.4, due to a lapse, suspension, surrender, abandonment, or revocation of their license, the court shall 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.
(d) (1) Notwithstanding any other law, if a cemetery manager of a private cemetery has been deemed to be in severe violation of existing regulations by the bureau and the cemetery manager has not adopted the necessary improvements within a reasonable timeframe or has refused to perform their duties as defined in Section 7611.4, had their license suspended or revoked or has surrendered their license, and a court has not appointed a temporary manager within six months or the appointment of a temporary manager has expired, the county in which the cemetery is located shall assume responsibility for the maintenance of the cemetery and shall preserve public access to the cemetery until the court can appoint a temporary manager.
(2) This subdivision shall only apply if the removal of the cemetery manager is due to surrender, abandonment, neglect, or financial misconduct. If a county assumes maintenance responsibilities for a cemetery under this subdivision, the county shall be entitled to receive appropriate reimbursement reimbursed from available income from the cemetery for maintenance services rendered until a temporary care manager is appointed by the court. court or a new permanent cemetery manager is found.

SEC. 4.SEC. 3.

 Section 7688 is added to the Business and Professions Code, to read:

7688.
 Notwithstanding any law, the in the event of expiration or suspension of a license by operation of law or by order or decision of the director or a court of law, or the voluntary surrender of a license by a cemetery licensee, shall not deprive the director of jurisdiction to proceed cemetery owner, cemetery operator, or holder of a cemetery certificate of authority, the director may coordinate and assist with any investigation of or action or disciplinary criminal proceedings against the cemetery licensee and its officers, agents, or employees, or to render a decision suspending or revoking the license. employees that is conducted by another law enforcement entity.

SEC. 4.

 Section 8738 of the Health and Safety Code is amended to read:

8738.
 (a) For purposes of this section, “net price” means the retail price less any discounts the cemetery provides to consumers for the purchase of an interment space.

An

(b) An endowment care cemetery is one which has deposited in its endowment care fund the minimum amounts heretofore required by law and shall hereafter have deposited in its endowment care fund at the time of or not later than completion of the initial sale not less than the following amounts for plots sold or disposed of:

(a)Four dollars and fifty cents ($4.50) a square foot

(1) Either 10 percent of net price or two hundred fifty dollars ($250), whichever is greater, for each grave. The minimum deposit amount of two hundred fifty dollars ($250) shall increase or decrease annually with the Consumer Price Index.

(b)Seventy dollars ($70)

(2) Either 10 percent of net price or one hundred fifty dollars ($150), whichever is greater, for each niche. The minimum deposit amount of one hundred fifty dollars ($150) shall increase or decrease annually with the Consumer Price Index.

(c)Two hundred twenty dollars ($220)

(3) Either 10 percent of net price or two hundred fifty dollars ($250), whichever is greater, for each crypt; provided, however, that for companion crypts, there shall be deposited two hundred twenty dollars ($220) for the first crypt and one hundred ten dollars ($110) for each additional crypt. crypt. The minimum deposit amount of two hundred fifty dollars ($250) shall increase or decrease annually with the Consumer Price Index.

(d)Seventy dollars ($70)

(4) Either 10 percent of net price or one hundred fifty dollars ($150), whichever is greater, for the cremated remains of each deceased person scattered in the cemetery at a garden or designated open area that is not an interment site subject to subdivision (a). paragraph (1). The minimum deposit amount of one hundred fifty dollars ($150) shall increase or decrease annually with the Consumer Price Index.

SEC. 5.

 If the Commission on State Mandates determines that this act contains unreimbursed costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.