AB588: Bill Text

1999 Assembly BILL 588

November 18, 1999 - Introduced by Representatives Morris-Tatum, Young, Turner, Coggs, Williams, Colon and Riley, cosponsored by Senator Moore. Referred to Committee on Small Business and Economic Development.

AB588,2,2 An Act to repeal 157.115 (1) (b) 2., 157.115 (1) (c), 157.625, 157.63, 157.64 (2) (f), 440.91 (6m) and (7), 440.92 (9) and 440.95 (4) (d); to renumber 157.115 (1) (b) 1.; to renumber and amend 440.03 (13); to amend 69.18 (1) (bm) (intro.), 69.22 (1) (a), 157.062 (9), 157.08 (5), 157.10, 157.11 (11), 157.115 (2) (b), 157.128 (3) (b), 157.19 (5) (a), 157.62 (1) (a) (intro.), 157.62 (2) (a), 157.62 (6), 157.64 (3), 440.91 (1), 440.91 (2) (intro.), 440.92 (1) (a) and 440.92 (10); and to create 20.165 (1) (q), 25.17 (1) (at), 25.85, 69.22 (1) (d) and (e), 69.22 (1r), 157.065 (1) (b) 8., 157.105, 157.117, 157.61, 157.62 (2) (b) 8., 157.62 (2) (e), 157.64 (2) (h), 440.03 (13) (b) and 445.12 (1m) of the statutes; relating to: creating a cemetery management reserve fund, regulation of cemetery authorities, salespersons and preneed sellers, appointment of trustees for certain cemeteries and mausoleums, identification of human remains, granting rule-making authority, making an appropriation and providing a penalty.

Analysis by the Legislative Reference Bureau

This bill provides for the appointment of trustees that are responsible for the operation of certain abandoned or neglected cemeteries and mausoleums. The bill also establishes a cemetery management reserve fund that may be used by trustees to carry out their responsibilities under the bill. In addition, the bill makes certain changes to the registration of cemetery authorities, cemetery salespersons and preneed sellers under current law and makes other changes to requirements regarding cemeteries and the burial of human remains.

Cemetery and mausoleum trustees.

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 allows the circuit court for the county in which a cemetery or mausoleum is located to appoint the department of regulation and licensing (DORL) or another person as a trustee to operate the cemetery or mausoleum. The attorney general, city, village, town, county or six or more residents of the city, village, town or county in which the cemetery or mausoleum is located 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 the trustee that is appointed.

The bill requires a trustee that is appointed to operate the cemetery or mausoleum and comply with the record-keeping, audit and reporting requirements that apply to operators of cemeteries under current law. 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 the state under the trustee's management or to a new owner; 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 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 reserve 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; 2) a $1 surcharge on copies of death certificates; and 3) a $10 surcharge on the sale of cemetery lots and mausoleums. DORL is required to promulgate rules that establish procedures and requirements for disbursements from the fund to trustees.

Cemetery authorities, cemetery salespersons and preneed sellers.

With certain exceptions, current law requires cemetery authorities, cemetery salespersons and preneed sellers to register with DORL. A "cemetery authority" is any person that owns or operates a cemetery, a "cemetery salesperson" is person that sells ten or more cemetery lots or mausoleum spaces in a calendar year and a "preneed seller" is a person that sells certain cemetery merchandise or undeveloped mausoleum spaces under preneed contracts. There is an exemption from the registration requirements for each of the following:

1) A cemetery authority that sells less than ten cemetery lots or mausoleum spaces per year.

2) A cemetery authority of a cemetery organized or operated by a town, village, city, church, synagogue, mosque, religious, fraternal or benevolent society or incorporated college of a religious order.

3) A cemetery salesperson that sells cemetery lots or mausoleum spaces in a cemetery described in item 2.

4) A preneed seller for a cemetery that is affiliated with an organized religious society or a religious society that files an annual certification statement with DORL.

This bill eliminates each of the above exemptions. The bill also requires DORL to investigate to determine whether any person that applies for registration as a cemetery authority, cemetery salesperson or preneed seller, or whether certain business representatives that are related to such a person, have been convicted of an offense the circumstances of which substantially relate to the sale of a cemetery lot, mausoleum space or cemetery merchandise.

Other requirements for cemeteries and the burial of human remains.

Under current law, with certain exceptions, cemetery authorities must submit reports to DORL that include certain financial and other information. The following cemetery authorities are exempt from the reporting requirement: 1) certain cemetery authorities that are exempt from other requirements regarding care and preneed trust funds; 2) cemetery authorities with annual operating budgets of $2,500 or less; 3) cemetery authorities that sell less than ten cemetery lots or mausoleum spaces per year; and 4) cemetery authorities of cemeteries organized or operated by a town, village, city, church, synagogue, mosque, religious, fraternal or benevolent society or incorporated college of a religious order. In addition, cemetery authorities of cemeteries that are affiliated with an organized religious society or a religious society are required to submit an annual certification to DORL, rather than an annual report. This bill eliminates each of these exemptions from the reporting requirement. The bill also requires a cemetery authority affiliated with an organized religious society or a religious society to submit the annual report, rather than the annual certification.

The bill also requires a cemetery authority to include in the annual report information that identifies the location of all human remains that are buried at the cemetery. DORL is required to promulgate rules that establish requirements for providing such information in the report. In addition, the bill requires DORL to provide a copy of the annual report to each city, village or town in which the cemetery is located. Also under the bill, DORL is required to conduct certain financial audits of cemetery authorities. Under current law, DORL is allowed, but not required, to conduct the audits.

In addition, the bill makes certain changes to current law regarding the burial of human remains. Under the bill, a cemetery may not accept human remains for burial unless a tag that identifies the decedent has been attached to the remains and to the exterior of the casket or burial vault or, in the case of remains that have been cremated, attached to the interior and exterior of the cemetery merchandise and mausoleum space that contain the remains. Under the bill, the tags must be attached by the funeral director who prepares the human body for burial or the person who cremates the human remains. Also, the bill prohibits a cemetery authority from prohibiting the burial in a cemetery lot of any of the following: 1) a relative of person with an interest in the lot; 2) the husband or wife of such a person; or 3) a relative of the husband or wife of such a person.

Finally, the bill increases the penalty under current law that is applicable to a cemetery authority that violates certain requirements regarding the reburial of human remains. Under current law, the penalty is a forfeiture of no more than $200. Under the bill, the penalty is a forfeiture of no more than $1,000 or imprisonment for no more than 90 days or both.

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:

AB588, s. 1 Section 1. 20.165 (1) (q) of the statutes is created to read:

AB588,4,4 20.165 (1) (q) Cemetery and mausoleum trustee disbursements. From the cemetery management reserve fund, a sum sufficient to make disbursements to trustees under the rules promulgated under s. 157.117 (4) (a).

AB588, s. 2 Section 2. 25.17 (1) (at) of the statutes is created to read:

AB588,4,6 25.17 (1) (at) Cemetery management reserve fund (s. 25.85);

AB588, s. 3 Section 3. 25.85 of the statutes is created to read:

AB588,5,4 25.85 Cemetery management reserve fund. There is established a separate nonlapsible trust fund designated as the cemetery management reserve fund, to consist of each of the following:

AB588,5,5 (1) The moneys received from death certificate filing fees under s. 69.22 (1) (d).

AB588,5,7 (2) The moneys received from the issuance of copies of death certificates under s. 69.22 (1) (e).

AB588,5,9 (3) The moneys received from surcharges on the sale of cemetery lots and mausoleum spaces under s. 157.105.

AB588, s. 4 Section 4. 69.18 (1) (bm) (intro.) of the statutes is amended to read:

AB588,5,20 69.18 (1) (bm) (intro.) A person required to file a certificate of death under par. (b) shall obtain the information required for the certificate of death from the next of kin or the best qualified person or source available. The person filing the certificate of death shall enter his or her signature on the certificate and include his or her address and the date of signing and shall present or mail the certificate, within 24 hours after being notified of the death, to the physician, coroner or medical examiner responsible for completing and signing the medical certification under sub. (2). Within 2 days after receipt of the medical certification under sub. (2), the person filing the certificate of death shall mail or present the certificate of death, together with the fee required under s. 69.22 (1) (d), in:

AB588, s. 5 Section 5. 69.22 (1) (a) of the statutes is amended to read:

AB588,5,24 69.22 (1) (a) Except as provided under par. (c) pars. (c) and (e), $7 for issuing one certified copy of a vital record and $2 for any additional certified copy of the same vital record issued at the same time.

AB588, s. 6 Section 6. 69.22 (1) (d) and (e) of the statutes are created to read:

AB588,6,3 69.22 (1) (d) Ten dollars for receiving a death certificate filed by a person required to file a certificate of death under s. 69.18 (1) (b), which shall be forwarded to the state treasurer under sub. (1r).

AB588,6,5 (e) Eight dollars for issuing a copy of a death certificate, $1 of which shall be forwarded to the state treasurer under sub. (1r).

AB588, s. 7 Section 7. 69.22 (1r) of the statutes is created to read:

AB588,6,11 69.22 (1r) By the 15th day of the first month following the end of a calendar quarter, the state registrar and any person acting under this subchapter shall forward to the state treasurer the amounts specified in sub. (1) (d) and (e) that are received during the calendar quarter. The state treasurer shall credit all amounts received under this subsection to the cemetery management reserve fund.

AB588, s. 8 Section 8. 157.062 (9) of the statutes is amended to read:

AB588,6,18 157.062 (9) Exemptions for certain nonprofit cemeteries. In lieu of delivering a certification, resolution or copy of proceedings to the department of financial institutions under sub. (1), (2) or (6) (b), a cemetery association that is not required to be registered under s. 440.91 (1) and that is not organized or conducted for pecuniary profit 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.

AB588, s. 9 Section 9. 157.065 (1) (b) 8. of the statutes is created to read:

AB588,6,20 157.065 (1) (b) 8. A trustee appointed under s. 157.117 (2) (b).

AB588, s. 10 Section 10. 157.08 (5) of the statutes is amended to read:

AB588,6,25 157.08 (5) Subsections (1) and (2) (b) do not apply to a religious society organized under ch. 187, and sub. (2) (b) does not apply to a cemetery authority that is not required to be registered under s. 440.91 (1) and that is not organized or conducted for pecuniary profit.

AB588, s. 11 Section 11. 157.10 of the statutes is amended to read:

AB588,7,12 157.10 Alienation and use of cemetery lots. While any person is buried in a cemetery lot, the cemetery lot shall be inalienable, without the consent of the cemetery authority, and on the death of the owner, ownership of the cemetery lot shall descend to the owner's heirs; but any one or more of such heirs may convey to any other heir his or her interest in the cemetery lot. No human remains may be buried in a cemetery lot except the human remains of one having an interest in the cemetery lot, or a relative, or the husband or wife of such person, or his or her relative, except by the consent of all persons having an interest in the cemetery lot. A cemetery authority may not prohibit the burial in a cemetery lot of a relative of a person with an interest in the cemetery lot, husband or wife of such a person, or relative of a husband or wife of such a person.

AB588, s. 12 Section 12. 157.105 of the statutes is created to read:

AB588,7,21 157.105 Surcharge on cemetery lot and mausoleum space sales. A cemetery authority that sells a cemetery lot or a person operating a mausoleum that sells a mausoleum space shall assess a surcharge of $10 on each cemetery lot or mausoleum space sold by the seller. By the 15th day of the first month following the end of a calendar quarter, a cemetery authority or person operating a mausoleum shall forward to the state treasurer the surcharges assessed under this section during the calendar quarter. The state treasurer shall credit all amounts received under this section to the cemetery management reserve fund.

AB588, s. 13 Section 13. 157.11 (11) of the statutes is amended to read:

AB588,7,25 157.11 (11) Exemption for certain nonprofit cemeteries. Subsection (9g) does not apply to a cemetery authority that is not required to be registered under s. 440.91 (1) and that is not organized or conducted for pecuniary profit.

AB588, s. 14 Section 14. 157.115 (1) (b) 1. of the statutes is renumbered 157.115 (1) (b).

AB588, s. 15 Section 15. 157.115 (1) (b) 2. of the statutes is repealed.

AB588, s. 16 Section 16. 157.115 (1) (c) of the statutes is repealed.

AB588, s. 17 Section 17. 157.115 (2) (b) of the statutes is amended to read:

AB588,8,7 157.115 (2) (b) No cemetery authority may resell an abandoned cemetery lot unless the cemetery authority complies with the requirements in this subsection or the cemetery lot is sold by a trustee under s. 157.117.

AB588, s. 18 Section 18. 157.117 of the statutes is created to read:

AB588,8,10 157.117 Trustees for certain cemeteries and mausoleums. (1) Definitions. In this section:

AB588,8,13 (a) "Cemetery" does not include a cemetery the ownership, control or management of which has been assumed by a municipality under s. 157.115 (1) (b) or (c), 1997 stats., or a predecessor statute.

AB588,8,14 (b) "Local governmental unit" means a municipality or county.

AB588,8,15 (c) "Municipality" means a city, village or town.

AB588,8,16 (d) "Trustee" means a trustee appointed under sub. (2) (b).

AB588,8,22 (2) Appointment of trustee. (a) The attorney general, a local governmental unit, or 6 or more residents of a municipality in which a cemetery or mausoleum is located may petition the circuit court for the county in which the cemetery or mausoleum is located for the appointment of a trustee for the cemetery or mausoleum. A petitioner under this subsection shall serve a copy of the petition on the attorney general and the department.

AB588,9,3 (b) A court shall schedule a hearing on a petition filed under par. (a) within 90 days after the petition is filed with the court. If the court finds after a hearing that a cemetery or mausoleum is neglected, abandoned, in disuse, improperly maintained or financially unsound, the court shall appoint as a trustee for the cemetery or mausoleum the department or another capable and competent person to serve as trustee of the cemetery or mausoleum under this section.

AB588,9,10 (c) An owner of a cemetery or mausoleum may petition the court in a proceeding under par. (b) for an order surrendering title to the cemetery or mausoleum if the owner believes itself to be incapable of continuing to operate the cemetery or mausoleum. The court may grant the petition if it finds that the cemetery or mausoleum is neglected, abandoned, in disuse, improperly maintained or financially unsound. If the court grants the petition, it shall transfer title to the cemetery or mausoleum to the state and appoint a trustee under par. (b).

AB588,9,13 (d) All disputes relating to the appointment of a trustee or the actions of a trustee appointed under this section shall be resolved by the court that appointed the trustee.

AB588,9,14 (3) Trustee powers and duties. (a) A trustee shall do each of the following:

AB588,9,16 1. Be responsible for the management, maintenance and operation for each cemetery or mausoleum under trusteeship.

AB588,9,19 2. Comply with the record-keeping, audit and reporting requirements of s. 157.62 (2). A trustee shall provide the court with a copy of all records, audits and reports filed under this subdivision.

AB588,9,21 3. Provide the court with any additional information, records or reports that the court may direct.

AB588,9,23 (b) A trustee may petition the court that appointed the trustee for any of the following:

AB588,10,3 1. Transfer of ownership of a cemetery or mausoleum and all tangible and intangible real and personal property to the state under the management of the trustee.

AB588,10,5 2. Termination of the trusteeship and reversion of ownership and operation of a cemetery or mausoleum to the previous owner.

AB588,10,7 3. Termination of the trusteeship and transfer of ownership and operation of a cemetery or mausoleum to the state or a new owner.

AB588,10,9 4. Removal and reinternment of human remains in accordance with the requirements of this subchapter.

AB588,10,11 5. Termination of the trusteeship and closure of a cemetery or mausoleum after removal and reinternment of human remains under subd. 4.

AB588,10,12 (c) A trustee may do any of the following:

AB588,10,15 1. Seek a new owner or operator of a cemetery or mausoleum, including actively marketing the cemetery or mausoleum and taking any other action necessary or useful to effect the sale of the cemetery or mausoleum.

AB588,10,16 2. Assess cemetery lots for cleaning, care or improvement under s. 157.11 (7).

AB588,10,18 3. Expend funds disbursed from the cemetery management reserve fund for the purpose of exercising its powers or carrying out its duties under this section.

AB588,10,21 4. Employ professional, legal and technical experts, any such other managers, management personnel, agents and employes as may be required to exercise its powers or carry out its duties under this section.