: (CLEARINGHOUSE RULE 19-150)
An order of the Cemetery Board to amend CB 6.07 (1) and (2) and 6.08; and to create CB 6.02 (3) and 6.085 relating to mausoleums.
Analysis prepared by the Department of Safety and Professional Services.
Statutes interpreted: Sections 157.12 (2) (b) and (3) (a), Stats.
Statutory authority: Sections 157.12 (2) (a), 157.12 (3) (a) 3. and 440.905 (2), Stats.
Explanation of agency authority:
Section 440.905 (2), Stats., provides “[t]he board has rule-making authority and may promulgate rules relating to the regulation of cemetery authorities, cemetery salespersons, and cemetery preneed sellers…”
Section 157.12 (3) (a) 3., Stats., provides “…The municipality in which mausoleum is located may, by ordinance, require a larger fund, but only if the cemetery board notifies the municipality in writing that the cemetery board approves of the requirement. The cemetery board may promulgate rules establishing uniform standards for approvals under this subdivision.”
Related statute or rule: None.
Plain language analysis: This rule project will amend ss. CB 6.07 and 6.08 to revise references to “progress reports” to instead reference “temporary certification” in order to be consistent with the terminology used in statute. Section CB 6.07 will also be revised to clarify that in order to obtain temporary certification status, the minor defects in question must not be structural defects.
Further, s. CB 6.08 will also be revised to bring the rule into conformity with state statute and allow for the sale of mausoleum space and the burial of human remains while a mausoleum has temporary certification status.
Finally, the project creates a uniform procedure for municipalities to request, and criteria for the Cemetery Board to use when deciding whether to approve an ordinance under s. 157.12 (3) (a) 3., Stats., requiring a larger mausoleum care fund than what is required by s. 157.12 (3) (a) 1. and 2., Stats.
Summary of, and comparison with, existing or proposed federal regulation:
The federal government does not regulate mausoleum construction or care funds.
Summary of public comments received on statement of scope and a description of how and to what extent those comments and feedback were taken into account in drafting the proposed rule:
The Cemetery Board held a preliminary hearing on the statement of scope for this rule at its August 20, 2019 meeting. No comments were received.
Comparison with rules in adjacent states:
Illinois: Illinois requires that fifty percent of the proceeds of sales of undeveloped spaces, be deposited into a preneed trust fund (815 ILCS 390/15 (a)). Sellers of undeveloped space are required to maintain temporary burial facilities for those who die prior to completion of the space (Id. at (d)).
Illinois law does not require the establishment of care funds for mausoleums. However, if a cemetery authority requires the establishment of a care fund, or a deposit to an existing care fund as a condition of the sale of a plot, the cemetery authority is required by law to deposit certain percentages of the sale into the care fund:
1. For interment rights, $1 per square foot of the space sold or fifteen percent of the sales price or imputed value, whichever is the greater, with a minimum of $25 for each individual interment right.
2. For entombment rights, not less than ten percent of the sales price or imputed value with a minimum of $25 for each individual entombment right.
3. For inurnment rights, not less than ten percent of the sales price or imputed value with a minimum of $15 for each individual inurnment right.
4. For any transfer of interment rights, entombment rights, or inurnment rights recorded in the records of the cemetery authority, excepting only transfers between members of the immediate family of the transferor, a minimum of $25 for each such right transferred. For the purposes of this paragraph “immediate family of the transferor” means the spouse, parents, grandparents, children, grandchildren, and siblings of the transferor.
5. Upon an interment, entombment, or inurnment in a grave, crypt, or niche in which rights of interment, entombment, or inurnment were originally acquired from a cemetery authority prior to January 1, 1948, a minimum of $25 for each such right exercised.
6. For the special care of any lot, grave, crypt, or niche or of a family mausoleum, memorial, marker, or monument, the full amount received (760 ILCS 100/4).
Illinois does not appear to provide municipalities with the option of requiring greater deposits.
Iowa: Iowa law requires that an amount equal to or greater than $50 or twenty percent of the gross selling price received by the cemetery for each sale of interment rights, whichever is greater, must be deposited into a care fund for the cemetery’s perpetual care (IA Code s. 523I.807 (1)). Iowa does not appear to specifically provide that a municipality may require a greater deposit. Iowa does not allow for the sale of interment rights in a mausoleum that will be completed in the future unless the commissioner has approved the cemetery authority to make sales. The cemetery authority is required to submit a notification to the cemetery commissioner for approval including the following information:
a. A description of the new facility or the proposed expansion, including a description of the interment rights to be offered to prospective purchasers.
Links to Admin. Code and Statutes in this Register are to current versions, which may not be the version that was referred to in the original published document.