AB410: Bill Text

2015 - 2016 LEGISLATURE

2015 Assembly BILL 410

October 15, 2015 - Introduced by Representatives Sanfelippo, Allen, Bernier, R. Brooks, Kleefisch, Tittl, Ohnstad and Novak, cosponsored by Senators LeMahieu, Lazich and Wirch. Referred to Committee on State Affairs and Government Operations.

AB410,2,16 An Act to repeal 157.061 (5), 157.061 (7), 157.07 (6), 157.11 (9g) (a) 1. b., 157.62 (3) (b) 2., 157.625 (2) and 440.91 (1) (c) 2.; to renumber and amend 157.061 (12), 157.061 (13), 157.10, 157.12 (4), 157.62 (5), 440.90 (7), 440.90 (8), 440.90 (9), 440.91 (1) (c) 1. and 979.10 (1) (c); to amend 15.07 (1) (cs), 15.405 (3m) (d), 71.07 (5r) (a) 3., 71.28 (5r) (a) 3., 71.47 (5r) (a) 3., 157.061 (3), 157.061 (4), 157.061 (11r), 157.061 (14), 157.061 (15), 157.062 (1), 157.062 (2), 157.062 (6) (b), 157.062 (6m), 157.062 (9), 157.064 (6), 157.064 (7), 157.07 (1), 157.07 (4), 157.08 (2) (b), 157.08 (5), 157.10 (title), 157.11 (2), 157.11 (9g) (a) 1. c., 157.11 (9g) (a) 2., 157.11 (9g) (c), 157.11 (9m), 157.11 (10), 157.112 (3m), 157.115 (2) (a) 1. (intro.), 157.115 (2) (a) 3., 157.115 (2) (b), 157.115 (2) (c), 157.115 (2) (d) (intro.), 157.12 (title), 157.12 (2) (a), 157.12 (2) (b), 157.12 (3) (a) 3., 157.12 (3) (b), 157.125 (1), 157.125 (2), 157.19 (5) (a), 157.19 (5) (b), 157.60, 157.62 (1) (a) (intro.), 157.62 (1) (c), 157.62 (2) (d), 157.62 (4), 157.62 (6), 157.62 (7), 157.63 (title), 157.63 (1), 157.63 (2) (intro.), 157.63 (2) (b), 157.63 (5), 157.635, 157.637, 157.64 (2) (intro.) and (a), 157.65 (1) (a), 157.65 (1) (b), 157.65 (2), 440.90 (3), 440.90 (14), 440.91 (1) (a), 440.91 (1m) (a), 440.91 (2) (intro.), 440.91 (2) (d), 440.91 (3), 440.91 (4), 440.91 (10), 440.92 (1) (a), 440.92 (1) (b) 1., 440.92 (1) (b) 3., 440.92 (1) (b) 4., 440.92 (1) (c), 440.92 (2) (a) (intro.), 440.92 (2) (d), 440.92 (3) (c) 3., 440.92 (6) (j), 440.92 (9) (title), 440.92 (9) (a), 440.92 (9) (b) (intro.), 440.92 (9) (b) 2., 440.92 (9) (b) 3., 440.92 (9) (d), 440.92 (9) (e), 440.92 (9) (f), 440.93 (2), 440.945 (5) (a), 440.945 (5) (b), 440.947 (5), 440.95 (3), 440.95 (4) (intro.), 815.18 (3) (a) and 895.04 (5); and to create 157.061 (1p), 157.10 (1), 157.10 (2) (a) 1. to 4., 157.10 (2) (b), 157.10 (3), 157.10 (6), 157.10 (7), 157.62 (2) (b) 6m., 157.62 (3) (b) 2g., 157.62 (3) (b) 2r., 157.62 (5) (a) to (j), 182.0175 (2) (c) and 440.97 of the statutes; relating to: powers and duties of cemetery authorities; inheritance of cemetery lots in which human remains are buried; exemption of cemeteries from certain requirements concerning excavation; the powers and duties of the Cemetery Board, the Department of Safety and Professional Services, and the Department of Financial institutions; requiring the exercise of rule-making authority; and providing a penalty.

Analysis by the Legislative Reference Bureau

This bill makes a number of changes to laws concerning cemeteries, including the following:

Transfers of functions to the Cemetery Board.

Under current law, the Department of Safety and Professional Services (DSPS) and the Department of Financial Institutions (DFI) administer certain laws governing cemeteries not currently administered by the Cemetery Board (board). The laws administered by DSPS include the following:

1. The construction of mausoleums.

2. Various reporting requirements for cemetery authorities.

3. The certification of certain cemetery authorities as religious associations, which are subject, in part, to different rules than other cemetery authorities.

4. The audit of a cemetery authority's records, trust funds, and accounts.

5. The licensure and regulation of cemetery salespersons.

6. The licensure and regulation of preneed sellers, the regulation of preneed sales contracts, and the regulation and audit of preneed trust funds.

7. The promulgation of certain rules implementing laws concerning cemeteries and the enforcement of those rules and laws.

With limited exceptions, the bill transfers the administration of the laws governing cemeteries currently administered by DSPS, including all of the functions specified above, to the board.

Under current law, seven or more residents of a county may form a cemetery association for the election of trustees to manage cemetery land owned by the cemetery association. A cemetery association is also a kind of cemetery authority. Currently, the organization and certain other aspects, including reporting requirements, of a cemetery association's functions are governed by DFI. The bill transfers all regulation of cemetery associations from DFI to the board.

Disposition of occupied cemetery lots and mausoleum spaces.

Under current law, ownership of a cemetery lot in which human remains are buried may not be transferred to another person who is not already an owner of the cemetery lot, unless the cemetery authority consents to the transfer. Upon the death of the owner of a cemetery lot, ownership descends to the owner's heirs. Current law does not specify who qualifies as an heir.

This bill establishes specific rules for the disposition of a cemetery lot or mausoleum space in which human remains are buried. Under the bill, upon the death of the last owner of a cemetery lot or mausoleum space, ownership of the cemetery lot or mausoleum space descends as follows:

1. To the owner's surviving spouse or domestic partner.

2. If there is no living spouse or domestic partner, to the owner's children.

3. If there is no living spouse, domestic partner, or child, to the owner's grandchildren.

4. If there is no living spouse, domestic partner, child, or grandchild, to the cemetery authority for the cemetery in which the cemetery lot or mausoleum space is located.

The bill provides that a cemetery authority is to be held harmless for any decision made by a majority of the owners of a cemetery lot or mausoleum space.

Changes to cemetery authority licensure requirements.

The board licenses cemetery authorities. Under current law, subject to certain exceptions, a cemetery authority must be licensed for each cemetery the cemetery authority operates that is at least five acres in size or for which the cemetery authority has at least $100,000 in trust fund accounts or sells at least 20 cemetery lots or mausoleum spaces in one year. A cemetery authority must be registered for any cemetery the cemetery authority operates that does not satisfy at least one of those conditions.

Under the bill, subject to certain exceptions, a cemetery authority must be licensed for each cemetery it operates that has at least three acres of land platted for use as a cemetery or for which the cemetery has at least $50,000 in trust fund accounts. A cemetery authority must be registered for each cemetery it operates that does not satisfy at least one of those conditions. The bill also eliminates an option for a cemetery authority to be relieved of its obligation to renew a license under certain circumstances.

Changes to cemetery salesperson licensure requirements.

The board also licenses cemetery salespersons. Under current law, with one exception, an individual must be a licensed cemetery salesperson if the individual sells or solicits the sale of, or expects to sell or solicit the sale of, 20 or more cemetery lots or mausoleum spaces per year for two consecutive years. Under the bill, an individual must be a licensed cemetery salesperson if the individual sells or solicits the sale of, or expects to sell or solicit the sale of, a cemetery lot or mausoleum space, without regard to the quantity or frequency of sales.

Religious associations.

Under current law a cemetery authority that is a church, synagogue, or mosque, or a religious society organized under Wisconsin law, is a religious association for purposes of the laws governing cemeteries. Under the bill, a religious association also includes any corporation whose articles of organization provide, subject to Wisconsin law, that the corporation is under the supervision and control of a church, synagogue, mosque, or religious society.

Also under the bill, certain exemptions from the laws governing cemeteries that are applicable to a religious association are also applicable to a cemetery authority of a cemetery that is affiliated with a religious association, for that cemetery.

No deposit of care funds with county or city.

Current law regulates how a cemetery authority may deposit or invest funds it receives in trust for the care of a cemetery. One option under current law authorizes a cemetery authority to deposit the care funds with the treasurer of the county or city in which the cemetery is located. The bill eliminates that option for the deposit of care funds.

Changes to certain penalties.

Under current law, any person who opens or makes any highway, town way, or private way or constructs anything in the nature of a public easement over, through, in, or upon a cemetery, unless authorized by consent or by law, is punishable by a fine not to exceed $300 or imprisonment in the county jail not to exceed one year. Under the bill, such a violation is punishable by a fine not to exceed $3,000 and by imprisonment in the county jail not to exceed one year.

The bill also increases the potential fine for certain violations of the laws governing cemeteries, including laws governing preneed sellers and the investment of preneed trust funds, from $1,000 to $5,000 for a first offense, and the bill provides that a subsequent violation of such laws is punishable by a fine not to exceed $10,000 or imprisonment not to exceed nine months or both.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report concerning the proposed penalty and the costs or savings that are likely to result if the bill is enacted.

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:

AB410,1 Section 1. 15.07 (1) (cs) of the statutes is amended to read:

AB410,5,4 15.07 (1) (cs) No member of the auctioneer board, cemetery board, or real estate appraisers board may be an officer, director, or employee of a private organization that promotes or furthers any profession or occupation regulated by that board.

AB410,2 Section 2. 15.405 (3m) (d) of the statutes is amended to read:

AB410,5,7 15.405 (3m) (d) No member of the cemetery board may serve more than 2 consecutive terms.

AB410,3 Section 3. 71.07 (5r) (a) 3. of the statutes is amended to read:

AB410,5,11 71.07 (5r) (a) 3. "Family member" has the meaning given in s. 157.061 (7) means a spouse or an individual related by blood, marriage, or adoption within the 3rd degree of kinship as computed under s. 990.001 (16).

AB410,4 Section 4. 71.28 (5r) (a) 3. of the statutes is amended to read:

AB410,5,14 71.28 (5r) (a) 3. "Family member" has the meaning given in s. 157.061 (7) 71.07 (5r) (a) 3.

AB410,5 Section 5. 71.47 (5r) (a) 3. of the statutes is amended to read:

AB410,5,17 71.47 (5r) (a) 3. "Family member" has the meaning given in s. 157.061 (7) 71.07 (5r) (a) 3.

AB410,6 Section 6. 157.061 (1p) of the statutes is created to read:

AB410,5,20 157.061 (1p) "Cemetery" means any land, including any mausoleum on the land, that is used or intended to be used, exclusively for the burial of human remains.

AB410,7 Section 7. 157.061 (3) of the statutes is amended to read:

AB410,6,6 157.061 (3) "Cemetery services and merchandise" means goods associated with the burial of human remains, including monuments, markers, nameplates, vases, and urns, and any services that are associated with supplying or delivering those goods or with the burial of human remains, including the burial or entombment, and that may be lawfully provided by a cemetery authority. The term does not include caskets or outer burial containers.

AB410,8 Section 8. 157.061 (4) of the statutes is amended to read:

AB410,6,9 157.061 (4) "Dedicated" means platted for use exclusively as a cemetery and qualified for the exemption from general property taxes under s. 70.11 (13).

AB410,9 Section 9. 157.061 (5) of the statutes is repealed.

AB410,10 Section 10. 157.061 (7) of the statutes is repealed.

AB410,11 Section 11. 157.061 (11r) of the statutes is amended to read:

AB410,6,18 157.061 (11r) "Payment of principal" means the portion of a payment for the purchase of a cemetery lot, cemetery services and merchandise, or a mausoleum space that represents the principal amount owed by the purchaser for the cemetery lot, cemetery services and merchandise, or mausoleum space, and does not include any portion of the payment that represents any taxes, finance or interest charges, administrative fees, or insurance premiums.

AB410,12 Section 12. 157.061 (12) of the statutes is renumbered 157.061 (3g) and amended to read:

AB410,6,24 157.061 (3g) "Preneed sales contract" means an agreement for the sale of cemetery services and merchandise that is to be delivered after the date of the initial payment for the cemetery services and merchandise, or for the sale of an undeveloped space.

AB410,13 Section 13. 157.061 (13) of the statutes is renumbered 157.061 (3r) and amended to read:

AB410,7,5 157.061 (3r) "Preneed trust fund" means an account or other investment in which a portion of the proceeds cemetery services and merchandise received under a preneed sales contract is deposited.

AB410,14 Section 14. 157.061 (14) of the statutes is amended to read:

AB410,7,9 157.061 (14) "Public mausoleum" means a mausoleum that holds or is intended to hold more than 10 human remains or a mausoleum in which at least one mausoleum space is offered for sale to the general public.

AB410,15 Section 15. 157.061 (15) of the statutes is amended to read:

AB410,7,14 157.061 (15) "Religious association" means any church, synagogue, or mosque or; any religious society organized under ch. 187; and any corporation whose articles of organization provide, subject to s. 182.030, that it shall be under the supervision and control of a church, synagogue, mosque, or religious society.

AB410,16 Section 16. 157.062 (1) of the statutes is amended to read:

AB410,8,2 157.062 (1) Organization. Seven or more residents of the same county may form a cemetery association. They shall meet, select a chairperson and secretary, choose a name, fix the annual meeting date, and elect by ballot not less than 3 nor more than 9 trustees whom the chairperson and secretary shall immediately divide by lot into 3 classes, who shall hold their offices for 1, 2, and 3 years, respectively. Within 3 days, the chairperson and secretary shall certify the corporate name, the names, home addresses, and business addresses of the organizers and of the trustees, and their classification, and the annual meeting date acknowledged by them, and, except as provided in sub. (9), deliver the certification to the department of financial institutions cemetery board. The association then has the powers of a corporation.

AB410,17 Section 17. 157.062 (2) of the statutes is amended to read:

AB410,8,9 157.062 (2) Amendments. The association may change its name, the number of trustees, or the annual meeting date by resolution at an annual meeting, or special meeting called for such purpose, by a majority vote of the members present, and, except as provided in sub. (9), by delivering to the department of financial institutions cemetery board a copy of the resolution, with the date of adoption, certified by the president and secretary or corresponding officers.

AB410,18 Section 18. 157.062 (6) (b) of the statutes is amended to read:

AB410,8,25 157.062 (6) (b) If an association that has been dissolved under par. (a), or any group that was never properly organized as a cemetery association, has cemetery grounds and human remains are buried in the cemetery grounds, 5 or more members, or persons interested as determined by order of the circuit judge under par. (c), may publish a class 3 notice, under ch. 985, in the municipality in which the cemetery is located, of the time, place, and object of the meeting, assemble and reorganize by the election of trustees and divide them into classes as provided in sub. (1), the commencement of the terms to be computed from the next annual meeting date. The secretary shall enter the proceedings of the meeting on the records. The association is reorganized upon delivery of a copy of the proceedings to the department of financial institutions cemetery board, except as provided in sub. (9). Upon reorganization, the title to the cemetery grounds, trust funds , and all other property of the association or group vests in the reorganized association, under the control of the trustees. The reorganized association may continue the name of the dissolved association or may adopt a new name.

AB410,19 Section 19. 157.062 (6m) of the statutes is amended to read:

AB410,9,4 157.062 (6m) Forms. The department of financial institutions cemetery board may prescribe and furnish forms for providing the information required under subs. (1) to (6).

AB410,20 Section 20. 157.062 (9) of the statutes is amended to read:

AB410,9,11 157.062 (9) Exemptions for certain cemeteries. In lieu of delivering a certification, resolution, or copy of proceedings to the department of financial institutions cemetery board under sub. (1), (2), or (6) (b), a cemetery association that is not required to be licensed under s. 440.91 (1) or registered under s. 440.91 (1m) shall deliver the certification, resolution, or copy of proceedings to the office of the register of deeds of the county in which the cemetery is located.

AB410,21 Section 21. 157.064 (6) of the statutes is amended to read:

AB410,9,25 157.064 (6) Whenever the majority of the members of a cemetery association, or of a religious association authorized to hold lands for cemetery purposes, present at an annual meeting or special meeting called for such purpose vote to convey all of the cemetery association's or religious association's cemetery property, trust funds and other property used for cemetery purposes to another cemetery association or religious association, the trustees of the association shall transfer the property upon the acceptance of the transfer by the other association by affirmative vote of a majority of its members present at an annual meeting or special meeting called for that purpose. Upon such acceptance, the title to the cemetery property, trust funds and other property of the transferring association vests in the accepting association under the control of the trustees of the accepting association. A conveyance under this subsection is subject to s. 157.08 (2). This subsection does not apply to a religious society organized under ch. 187.

AB410,22 Section 22. 157.064 (7) of the statutes is amended to read: