This bill makes changes regarding each of the following: 1) the regulation of
cemetery authorities, cemetery salespersons, and cemetery preneed sellers; 2) the
care of abandoned or neglected cemeteries and mausoleums; 3) reporting and
record-keeping requirements applicable to cemetery authorities; 4) care fund
requirements for cemetery lots; and 5) various other requirements applicable to
cemeteries.
Cemetery authorities, cemetery salespersons, and cemetery preneed sellers
Under current law, the department of regulation and licensing (DRL) has
various duties regarding the regulation of cemeteries, cemetery salespersons, and
cemetery preneed sellers. DRL is also responsible for taking disciplinary action
against cemetery authorities, cemetery salespersons, and cemetery preneed sellers
who violate certain statutory requirements and rules promulgated by DRL. In
addition, with certain exceptions, current law requires cemetery authorities,
cemetery salespersons, and cemetery preneed sellers to register with DRL. A
"cemetery authority" is a person who owns or operates a cemetery; a "cemetery
salesperson" is a person who sells ten or more cemetery lots or mausoleum spaces in
a calendar year; and a "cemetery preneed seller" is a person who sells cemetery
merchandise and undeveloped mausoleum spaces under preneed contracts. A
cemetery authority is exempt from registration under current law if it sells less than
ten cemetery lots or mausoleum spaces per year. Also, cemetery salespersons for
religious cemeteries do not have to register with DRL and cemetery preneed sellers
who work for religious cemeteries do not have to register if the operator of the
cemetery files an annual certification with DRL. Other exemptions apply to
municipal and nonprofit cemeteries.
This bill creates a cemetery board attached to DRL to investigate and take
disciplinary action against cemetery authorities, cemetery salespersons, and
preneed sellers. However, the cemetery board has no authority over religious
cemeteries, cemetery salespersons who work for religious cemeteries, and cemetery
preneed sellers who work for religious cemeteries that file an annual certification
with DRL. In addition, the cemetery board does not have any rule-making authority.
Instead, the bill allows the cemetery board to comment on any rules that DRL
proposes to promulgate regarding cemeteries, cemetery salespersons, or cemetery
preneed sellers, except for rules that relate exclusively to religious cemeteries. The
cemetery board consists of four business representatives of cemetery authorities, one
representative of the department of justice, and two public members. Of the business
representative members, one must represent a cemetery authority operated for
profit, one must represent a nonprofit cemetery authority, and one must represent
a municipal cemetery.
This bill also replaces the registration requirement for cemetery authorities
with a licensure requirement. Under the bill, except for a cemetery authority that
operates a religious cemetery, a cemetery authority must obtain a separate license
from DRL for each cemetery at which it sells 20 or more cemetery lots or other burial
spaces in a calendar year or for which it has $100,000 or more in trust fund accounts.
Also, except for a cemetery authority that operates a religious cemetery, a cemetery
authority must obtain a license for each cemetery that is five acres or more in size.
A cemetery authority that is not required to be licensed under the bill must register
with DRL, unless the cemetery authority receives no income, other than gifts, from
the sale of lots or services or from trust fund earnings or unless the cemetery
authority operates a religious cemetery. There is no exception from the licensure or
registration requirements for municipal or nonprofit cemeteries. If a cemetery
authority licensed under the bill engages in certain transactions regarding changes
in ownership or control of the cemetery authority, it must obtain a new license or
registration.
The bill also requires cemetery salespersons and preneed sellers to be licensed,
rather than registered, by DRL. In addition, the bill requires a person to obtain a
cemetery salesperson license if he or she sells 20 or more burial spaces during two
calendar years. However, no license is required for a cemetery salesperson who
works for a religious cemetery. Also, no license is required for a cemetery preneed
seller who works for a religious cemetery if the operator of the cemetery files an
annual certification with DRL. Also, the following persons who are exempt from
registration under current law must be licensed under the bill: 1) cemetery
salespersons who sell cemetery lots or mausoleum spaces in nonreligious cemeteries
that are not required to register as cemetery authorities; and 2) preneed sellers for
nonprofit cemeteries. However, the bill creates an exception to the requirement to
have a cemetery salesperson license for an individual who is supervised by a licensed
cemetery salesperson. This exception only applies to individuals who act as cemetery
salespersons for cemeteries operated by towns, villages, cities, or fraternal or
benevolent societies.
The bill also does each of the following: 1) eliminates references to sale
solicitations and applies instead only to actual sales; 2) requires a preneed seller to
deposit 40% of each payment of principal received under preneed sales contracts into
a preneed trust fund and eliminates the option to deposit a different percentage
based on the wholesale cost of the item sold; 3) requires DRL to promulgate rules
establishing a code of ethics for operators of licensed cemetery authorities, cemetery
salespersons, and cemetery preneed sellers; 4) allows the cemetery board to assess
forfeitures against licensed cemetery authorities, cemetery salespersons, and
preneed sellers that violate certain requirements and; 5) requires DRL to investigate
whether an applicant and specified business associates of the applicant have violated
any law relating to the operation or management of a cemetery.
Care of abandoned or neglected cemeteries and mausoleums
Under current law, if the operator of a cemetery fails to care for the cemetery
for one year or more, the city, village, or town in which the cemetery is located may,
but is not required to, take control of the cemetery. However, if the operator has failed
to care for the cemetery for five years or more, the city, village, or town is required
to take control of the cemetery. In addition, under certain circumstances, the town
board of a town in which an abandoned or neglected cemetery is located may be
required to operate the cemetery.
This bill repeals the above provisions and provides instead that, if a city, village,
or town determines that a cemetery authority, including the cemetery authority for
a religious cemetery, has failed to care for a cemetery for six months or more, the city,
village, or town may notify the cemetery authority that it has 90 days to correct the
failure. The city, village, or town may give the cemetery authority one 90-day
extension of this deadline. If the city, village, or town finds that the cemetery
authority failed to correct the failure within the deadline, the city, village, or town
may, after a public hearing, take control of the cemetery or any other action necessary
to provide for the care of the cemetery. A city, village, or town may collect from the
cemetery authority any costs incurred in caring for the cemetery.
The bill also provides for the appointment of trustees for cemeteries and
mausoleums, except for religious cemeteries and mausoleums. Under the bill, the
circuit court for the county in which a cemetery or mausoleum is located may appoint
a person, other than DRL or the cemetery board, as a trustee to operate the cemetery
or mausoleum. A trustee may be appointed for a cemetery only if a city, village, or
town has not adopted a resolution or enacted an ordinance that has the effect of
assuming ownership, control, or management of the cemetery. The attorney general
may petition the court for such an appointment. The court is required to appoint a
trustee if the court finds, after a hearing, that the cemetery or mausoleum is
neglected, abandoned, in disuse, improperly maintained, or financially unsound.
The bill also allows the owner of the cemetery or mausoleum to petition the
court to transfer title of the cemetery or mausoleum to a new owner, other than the
state.
The bill requires a trustee that is appointed to operate the cemetery or
mausoleum and comply with the reporting requirements that apply to operators of
cemeteries under current law as affected by the bill. The bill allows a trustee to seek
a new owner or operator of the cemetery or mausoleum, to use the procedure under
current law for assessing cemetery lots for cleaning, care, or improvement purposes,
and to take any other action necessary or useful to the management or trusteeship
of the cemetery or mausoleum. In addition, the trustee may petition the court for the
following: 1) transfer of ownership of the cemetery or mausoleum to a new owner,
other than the state; 2) reversion of ownership and operation of the cemetery or
mausoleum to the previous owner; or 3) closure of the cemetery or mausoleum after
removal and reinternment of human remains.
The court that appointed a trustee under the bill is required to terminate the
trusteeship if the owner or operator of the cemetery or mausoleum demonstrates that
the conditions that necessitated the trusteeship have been remedied. The court may
also terminate the trusteeship if the court finds that a new owner or operator, other
than the state, is competent and capable of managing the cemetery or mausoleum
or if the court approves the closure of the cemetery or mausoleum.
The bill also creates a cemetery management insurance fund that may be used
by a trustee to exercise its powers and carry out its duties under the bill. The fund
consists of moneys collected from the following: 1) a $10 filing fee for death
certificates; and 2) a $1 surcharge on copies of death certificates. DRL is required
to promulgate rules that establish procedures and requirements for the cemetery
board to make disbursements from the fund to trustees.
Cemetery reports and records
Under current law, with certain exceptions, cemetery authorities must submit
annual reports to DRL that include financial and other information. Exempt from
such requirements are cemetery authorities with annual operating budgets of $2,500
or less and certain nonprofit cemetery authorities. In addition, cemetery authorities
for religious cemeteries may submit an annual certification to DRL, rather than the
annual report.
Under this bill, any cemetery authority that is required to be licensed by DRL
must submit the annual report. In addition, as under current law, a religious
cemetery authority must submit an annual report unless the cemetery authority
submits an annual certification to DRL. Also, the bill makes other changes regarding
the reports, including the following: 1) the bill allows DRL to promulgate rules
establishing minimum standards for certain records used to prepare the reports; 2)
the bill eliminates a requirement under current law for certain cemetery
associations to submit annual reports to the department of financial institutions;
and 3) the bill requires licensed cemetery authorities to maintain records regarding
the location of burial spaces.
Care funds and preneed trust funds
The bill also makes changes to current law regarding care funds for cemetery
lots and preneed trust funds that are paid to preneed sellers under preneed
contracts.
With respect to care funds, the requirements that apply to cemetery lots under
current law apply to any burial space under the bill. Also, the bill eliminates the
exemption from the requirements under current law that applies to nonprofit
cemeteries. However, the bill maintains the exemption under current law that
applies to religious cemeteries. In addition, the bill makes other changes, including
the following: 1) the bill eliminates the exemption for certain nonprofit cemeteries
from the requirement under current law to deposit 15% of each payment of principal
on a cemetery lot into a care fund; and 2) the bill requires similar deposits into care
funds for sales of lawn crypts or columbarium spaces, in addition to sales of cemetery
lots.
The bill also requires DRL to request proposals from financial institutions
located in this state for the purpose of selecting a financial institution that cemetery
authorities and preneed sellers may use as the trustee for care funds and preneed
trust funds. A cemetery authority or preneed seller is not required to use the trustee
selected by DRL, unless DRL determines that the cemetery authority or preneed
seller has violated any requirement regarding care funds or preneed trust funds.
Other changes
The bill makes other changes to current law regarding cemeteries, including
the following:
1. The bill replaces certain references to "cemetery lot" with "burial space" and
defines "burial space" as any space used or intended to be used for the burial of
human remains, including by entombment, inurnment, interment, or placement in
a mausoleum, vault, crypt, or columbarium.
2. The bill requires DRL approval before a cemetery authority may do any of
the following: sell or encumber cemetery land; transfer ownership or control of 50%
or more of the assets or stock of the cemetery; engage in a transaction that results
in a person acquiring ownership or control of 50% or more of the stock of the cemetery;
or transfer responsibility for management or operation of the cemetery authority.
Only religious cemetery authorities and cemetery authorities that are not required
to be licensed are exempt from this requirement.
3. The bill allows DRL to apply to a court for an injunction to prohibit a person
from acquiring ownership or control of a cemetery, including a religious cemetery, if
the person has abandoned another cemetery or has owned or operated another
cemetery that is subsequently controlled by a municipality.
4. The bill imposes certain requirements on agreements for purchasing burial
spaces from cemetery authorities, other than religious cemetery authorities.
5. The bill requires DRL to promulgate rules for the approval of cemetery
merchandise warehouses located in and outside the state. Under current law,
authority to approve in-state warehouses rests primarily with the department of
agriculture, trade and consumer protection.
6. The bill allows DRL or the cemetery board to require registered or licensed
cemetery authorities to conduct independent audits if DRL has cause to believe that
the cemetery authority has not complied with certain requirements regarding trust
funds and accounts.
7. The bill allows a person to convey an interest in a burial space to a spouse,
child, brother, sister, or parent without the consent of a cemetery authority, which
is required under current law. However, this provision does not apply if the spouse,
child, brother, sister, or parent is in a class whose burial is prohibited in a religious
cemetery.
8. The bill creates an exception for religious cemeteries from a current law that
provides that the human remains of a husband, wife, or relative of a person with an
interest in a burial space may be buried in the space. Under the bill, this provision
does not apply if the husband, wife, or relative is in a class whose burial is prohibited
in a religious cemetery. Also, the bill clarifies that "relative" includes a brother or
sister.
9. The bill requires DRL to promulgate rules interpreting the requirements
regarding interests in burial spaces. In addition, DRL must promulgate rules that
require a person who transfers an interest in a burial space to provide the transferee
with a written notice, prepared by DRL, that describes those requirements.
10. The bill requires a cemetery authority, other than a religious cemetery
authority, to maintain a cemetery in a reasonable manner at all times.
11. The bill eliminates a requirement under current law for a cemetery
authority to increase its surety bonds to cover gifts that are received and requires
instead that a cemetery authority maintain a gift ledger accounting for all receipts
and disbursements of gifts.
12. The bill requires a person who provides an outer burial container or casket
to a cemetery authority for the burial of human remains to identify the decedent on
the exterior of the container or casket. This requirement does not apply to outer
burial containers and caskets provided to religious cemetery authorities.
13. The bill allows a city, village, or town to enact and enforce an ordinance that
allows a person to bury human remains in a burial space that is not located in a
cemetery. If a city, village, or town has not enacted such an ordinance, a person may
not bury human remains in the city, village, or town in a burial space that is not
located in a cemetery.
14. The bill increases the penalty for violating requirements regarding the
reburial of human remains to a fine of no more than $1,000, imprisonment for no
more than 90 days, or both. Under current law, the penalty is a forfeiture of no more
than $200.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB776, s. 1
1Section
1. 15.07 (1) (b) 23. of the statutes is created to read:
AB776,9,22
15.07
(1) (b) 23. Cemetery board.
AB776, s. 2
3Section
2. 15.07 (1) (cm) of the statutes is amended to read:
AB776,9,174
15.07
(1) (cm) The term of one member of the ethics board shall expire on each
5May 1. The terms of 3 members of the development finance board appointed under
6s. 15.155 (1) (a) 6. shall expire on May 1 of every even-numbered year and the terms
7of the other 3 members appointed under s. 15.155 (1) (a) 6. shall expire on May 1 of
8every odd-numbered year. The terms of the 3 members of the land and water
9conservation board appointed under s. 15.135 (4) (b) 2. shall expire on January 1.
10The term of the member of the land and water conservation board appointed under
11s. 15.135 (4) (b) 2m. shall expire on May 1 of an even-numbered year. The terms of
12members of the real estate board shall expire on July 1. The terms of the appraiser
13members of the real estate appraisers board and the terms of the auctioneer and
14auction company representative members of the auctioneer board shall expire on
15May 1 in an even-numbered year.
The terms of the cemetery authority business
16representative members of the cemetery board shall expire on May 1 in an
17even-numbered year.
AB776, s. 3
18Section
3. 15.07 (1) (cs) of the statutes is amended to read:
AB776,10,4
115.07
(1) (cs) No member of the auctioneer board,
cemetery board, real estate
2appraisers board
, or real estate board may be an officer, director
, or employee of a
3private organization that promotes or furthers any profession or occupation
4regulated by that board.
AB776, s. 4
5Section
4. 15.07 (3) (b) of the statutes is amended to read:
AB776,10,106
15.07
(3) (b) Except as provided in par. (bm), each board not covered under par.
7(a) shall meet annually, and may meet at other times on the call of the chairperson
8or a majority of its members. The auctioneer board,
the cemetery board, the real
9estate board
, and the real estate appraisers board shall also meet on the call of the
10secretary of regulation and licensing or his or her designee within the department.
AB776, s. 5
11Section
5. 15.07 (3) (bm) 5. of the statutes is created to read:
AB776,10,1212
15.07
(3) (bm) 5. The cemetery board shall meet at least 4 times each year.
AB776, s. 6
13Section
6. 15.07 (5) (z) of the statutes is created to read:
AB776,10,1414
15.07
(5) (z) Members of the cemetery board, $25 per day.
AB776, s. 7
15Section
7. 15.405 (3m) of the statutes is created to read:
AB776,10,1616
15.405
(3m) Cemetery board. (a) In this subsection:
AB776,10,1717
1. "Business representative" has the meaning given in s. 452.01 (3k).
AB776,10,1818
2. "Licensed cemetery authority" has the meaning given in s. 157.061 (8r).
AB776,10,1919
3. "Religious cemetery authority" has the meaning given s. 157.061 (15m).
AB776,10,2220
(b) There is created a cemetery board, attached to the department of regulation
21and licensing under s. 15.03, consisting of the following members appointed for
224-year terms:
AB776,10,2423
1. Four members, each of whom is a business representative of a licensed
24cemetery authority.
AB776,11,2
12. A representative of the department of justice designated by the attorney
2general.
AB776,11,33
3. Two public members.
AB776,11,104
(c) Of the members appointed under par. (b) 1., one member shall be a business
5representative of a licensed cemetery authority organized or conducted for pecuniary
6profit, one member shall be a business representative of a licensed cemetery
7authority not organized or conducted for pecuniary profit, one member shall be a
8business representative of a licensed cemetery authority that is a city, village, town,
9or county, and no member may be a business representative of a religious cemetery
10authority.
AB776,11,1111
(d) No member of the cemetery board may serve more than 2 terms.
AB776, s. 8
12Section
8. 20.165 (1) (q) of the statutes is created to read:
AB776,11,1513
20.165
(1) (q)
Cemetery and mausoleum trustee disbursements. From the
14cemetery management insurance fund, a sum sufficient to make disbursements to
15trustees under the rules promulgated under s. 157.117 (4) (a).
AB776, s. 9
16Section
9. 25.17 (1) (at) of the statutes is created to read:
AB776,11,1717
25.17
(1) (at) Cemetery management insurance fund (s. 25.86);
AB776, s. 10
18Section
10. 25.86 of the statutes is created to read:
AB776,11,21
1925.86 Cemetery management insurance fund. There is established a
20separate nonlapsible trust fund designated as the cemetery management insurance
21fund, to consist of each of the following:
AB776,11,22
22(1) The moneys received from death certificate filing fees under s. 69.22 (1) (e).
AB776,11,24
23(2) The moneys received from the issuance of copies of death certificates under
24s. 69.22 (1) (f).
AB776, s. 11
25Section
11. 60.61 (2) (j) of the statutes is created to read:
AB776,12,1
160.61
(2) (j) Authorize burials under s. 157.066.
AB776, s. 12
2Section
12. 62.23 (7) (c) of the statutes is amended to read:
AB776,12,153
62.23
(7) (c)
Purposes in view. Such regulations shall be made in accordance
4with a comprehensive plan and designed to lessen congestion in the streets; to secure
5safety from fire, panic and other dangers; to promote health and the general welfare;
6to provide adequate light and air, including access to sunlight for solar collectors and
7to wind for wind energy systems; to encourage the protection of groundwater
8resources; to prevent the overcrowding of land; to avoid undue concentration of
9population; to facilitate the adequate provision of transportation, water, sewerage,
10schools, parks and other public requirements;
to authorize burials if an ordinance is
11enacted under s. 157.066; and to preserve burial sites, as defined in s. 157.70 (1) (b).
12Such regulations shall be made with reasonable consideration, among other things,
13of the character of the district and its peculiar suitability for particular uses, and
14with a view to conserving the value of buildings and encouraging the most
15appropriate use of land throughout such city.
AB776, s. 13
16Section
13
. 69.18 (1) (bm) (intro.) of the statutes is amended to read:
AB776,13,217
69.18
(1) (bm) (intro.) A person required to file a certificate of death under par.
18(b) shall obtain the information required for the certificate of death from the next of
19kin or the best qualified person or source available. The person filing the certificate
20of death shall enter his or her signature on the certificate and include his or her
21address and the date of signing and shall present or mail the certificate, within 24
22hours after being notified of the death, to the physician, coroner or medical examiner
23responsible for completing and signing the medical certification under sub. (2).
24Within 2 days after receipt of the medical certification under sub. (2), the person
1filing the certificate of death shall mail or present the certificate of death
, together
2with the fee required under s. 69.22 (1) (e), in:
AB776,13,145
69.18
(1) (bm) (intro.) A person required to file a certificate of death under par.
6(b) shall obtain the information required for the certificate of death from the next of
7kin or the best qualified person or source available. The person filing the certificate
8of death shall enter his or her signature on the certificate and include his or her
9address and the date of signing and shall present or mail the certificate, within 24
10hours after being notified of the death, to the physician, coroner or medical examiner
11responsible for completing and signing the medical certification. Within 2 days after
12receipt of the medical certification, the person filing the certificate of death shall mail
13or present the certificate of death
, together with the fee required under s. 69.22 (1)
14(e), in:
AB776,13,1917
69.22
(1) (a) Except as provided under
par. pars. (c)
and (f), $7 for issuing one
18certified copy of a vital record and $3 for any additional certified copy of the same
19vital record issued at the same time.
AB776, s. 16
20Section
16. 69.22 (1) (e) and (f) of the statutes are created to read:
AB776,13,2321
69.22
(1) (e) Ten dollars for receiving a death certificate filed by a person
22required to file a certificate of death under s. 69.18 (1) (b), which shall be forwarded
23to the state treasurer under sub. (1r).
AB776,13,2524
(f) Eight dollars for issuing a copy of a death certificate, $1 of which shall be
25forwarded to the state treasurer under sub. (1r).
AB776, s. 17
1Section
17. 69.22 (1r) of the statutes is created to read:
AB776,14,62
69.22
(1r) By the 15th day of the first month following the end of a calendar
3quarter, the state registrar and any person acting under this subchapter shall
4forward to the state treasurer the amounts specified in sub. (1) (e) and (f) that are
5received during the calendar quarter. The state treasurer shall credit all amounts
6received under this subsection to the cemetery management insurance fund.
AB776, s. 18
7Section
18. 157.061 (1) of the statutes is renumbered 157.061 (1c) and
8amended to read:
AB776,14,109
157.061
(1c) "Burial" means entombment, inurnment
or, interment
, or
10placement in a mausoleum, vault, crypt, or columbarium.