440.90(8)
(8) “Preneed seller" means an individual who sells or solicits the sale of cemetery services and merchandise or an undeveloped space under a preneed sales contract or, if such an individual is employed by or acting as an agent for a cemetery authority or any other person, the cemetery authority or other person.
440.90(13)
(13) “Warehouse" means a place of storage for cemetery merchandise sold under a preneed sales contract.
440.90(14)
(14) “Wholesale cost ratio" means the actual cost to a preneed seller to supply and deliver cemetery services and merchandise or to construct an undeveloped space divided by the price paid by the purchaser, excluding sales tax, finance or interest charges, administrative fees, and insurance premiums.
440.905
440.905
General duties and powers of board. 440.905(1)(1)
In addition to the other duties and powers of the board under this subchapter, the board shall advise the secretary of safety and professional services on matters relating to cemeteries, to this chapter, or to the board.
440.905(2)
(2) The board has rule-making authority and may promulgate rules relating to the regulation of cemetery authorities, cemetery salespersons, and cemetery preneed sellers. The board may determine, by rule, a fee under s.
440.05 (1) (a) and under s.
440.08 (2) (a) 21. that is sufficient to fund the board's operating costs.
440.905 History
History: 2005 a. 25;
2011 a. 32.
440.905 Cross-reference
Cross-reference: See also ch.
CB 1, Wis. adm. code.
440.91
440.91
Cemetery authorities and cemetery salespersons. 440.91(1)(a)
(a) Any cemetery authority that operates a cemetery that has $50,000 or more in trust fund accounts for a cemetery shall apply to the board for a license for that cemetery. A cemetery authority that operates more than one cemetery shall apply for a separate license for each cemetery that has $50,000 or more in trust fund accounts.
440.91(1)(b)
(b) The board shall grant a license to a cemetery authority if all of the following are satisfied:
440.91(1)(b)1.
1. The cemetery authority submits an application for the license to the board on a form provided by the board. The application shall require the cemetery authority to provide the names of the officers of the cemetery authority and to identify a business representative who is primarily responsible for the cemetery authority's compliance with subch.
II of ch. 157 and this subchapter.
440.91(1m)(a)(a) Except as provided in sub.
(6m), any cemetery authority that has less than $50,000 in trust fund accounts for a cemetery shall register with the board. A cemetery authority that operates more than one cemetery shall submit a separate registration to the board for each cemetery that has less than $50,000 in trust fund accounts.
440.91(1m)(b)
(b) The board shall register a cemetery authority if all of the following are satisfied:
440.91(1m)(b)1.
1. The cemetery authority submits an application for registration to the board on a form provided by the board. The application shall require the cemetery authority to provide the names and addresses of the officers of the cemetery authority and to identify a business representative who is primarily responsible for the cemetery authority's compliance with subch.
II of ch. 157 and this subchapter.
440.91(2)
(2) Except as provided in sub.
(10), every individual who sells or solicits the sale of, or that expects to sell or solicit the sale of, 20 or more cemetery lots or mausoleum spaces per year during 2 consecutive calendar years shall be licensed by the board. An individual may not be licensed as a cemetery salesperson except upon the written request of a cemetery authority and the payment of the initial credential fee determined by the department under s.
440.03 (9) (a). The cemetery authority shall certify in writing to the board that the individual is competent to act as a cemetery salesperson. An applicant for licensure as a cemetery salesperson shall furnish to the board, in such form as the board prescribes, all of the following information:
440.91(2)(d)
(d) Any other information which the board may reasonably require to enable it to determine the competency of the salesperson to transact the business of a cemetery salesperson in a manner which safeguards the interest of the public.
440.91(3)
(3) Any cemetery salesperson may transfer to the employment of a cemetery authority, other than the cemetery authority that certified the salesperson under sub.
(2), by filing a transfer form with the board and paying the transfer fee specified in s.
440.05 (7).
440.91(4)
(4) Renewal applications shall be submitted to the board on a form provided by the board on or before the applicable renewal date specified under s.
440.08 (2) (a) and shall include the applicable renewal fee determined by the department under s.
440.03 (9) (a).
440.91(5)
(5) Every cemetery authority requesting the registration or transfer of any cemetery salesperson shall be responsible for the acts of that salesperson while acting as a cemetery salesperson.
440.91(6m)
(6m) A cemetery authority of a cemetery organized, maintained and operated by a town, village, city, church, synagogue or mosque, religious, fraternal or benevolent society or incorporated college of a religious order is not required to be licensed under sub.
(1) or registered under sub.
(1m).
440.91(7)
(7) An individual who solicits the sale of cemetery lots or mausoleum spaces in a cemetery organized, maintained and operated by a town, village, city, church, synagogue or mosque, religious, fraternal or benevolent society or incorporated college of a religious order is not required to be licensed under sub.
(2).
440.91(9)
(9) No cemetery authority or cemetery salesperson licensed under sub.
(1) or
(2) may pay a fee or commission as compensation for a referral or as a finder's fee relating to the sale of cemetery merchandise or a burial space to any person who is not licensed under sub.
(1) or
(2) or who is not regularly and lawfully engaged in the sale of cemetery merchandise or burial spaces in another state or territory of the United States or a foreign country.
440.91(10)
(10) Nothing in this section requires an individual who is licensed as a preneed seller under s.
440.92 (1) to be licensed as a cemetery salesperson under sub.
(2) if the individual only sells or solicits the sale of cemetery services and merchandise or undeveloped spaces under preneed sales contracts.
440.91 Cross-reference
Cross-reference: See also chs.
CB 1 and
2, Wis. adm. code.
440.92
440.92
Cemetery preneed sellers. 440.92(1)(a)(a) Except as provided in subs.
(4),
(9) (a), and
(10), every individual who sells or solicits the sale of cemetery services and merchandise or an undeveloped space under a preneed sales contract and, if the individual is employed by or acting as an agent for a cemetery authority or any other person, that cemetery authority or other person is also required to be licensed under this subsection.
440.92(1)(b)
(b) The board shall issue a certificate of licensure as a cemetery preneed seller to any person who does all of the following:
440.92(1)(b)1.
1. Submits an application to the board on a form provided by the board.
440.92(1)(b)4.
4. Meets any other reasonable requirements established by the board by rule to determine fitness to sell cemetery services and merchandise or an undeveloped space under a preneed sales contract. The rules may not require applicants to meet minimum education, experience, or prior employment requirements or to pass any examination.
440.92(1)(bm)
(bm) If a cemetery authority that is licensed under this subsection notifies the board that it proposes to take an action specified in s.
157.08 (2) (b) and the board does not object to the action under s.
157.08 (2) (b), the board shall revoke the license and require the cemetery authority to reapply for a license under this subsection.
440.92(1)(c)
(c) Renewal applications shall be submitted to the board on a form provided by the board on or before the applicable renewal date specified under s.
440.08 (2) (a) and shall include the applicable renewal fee determined by the department under s.
440.03 (9) (a).
440.92(1)(e)
(e) Nothing in this subsection requires an individual who is licensed as a cemetery salesperson under s.
440.91 (2) to be licensed under this subsection if the individual does not conduct or solicit any sale under a preneed sales contract.
440.92(2)(a)
(a) A preneed sales contract for the sale of cemetery services and merchandise shall provide for the delivery of cemetery merchandise in one of the following ways:
440.92(2)(a)1.
1. By physically delivering the merchandise to the purchaser or the beneficiary named in the preneed sales contract.
440.92(2)(a)2.
2. By affixing the cemetery merchandise to the cemetery lot or mausoleum.
440.92(2)(a)3.
3. By storing the cemetery merchandise in a warehouse that is located on the property of the preneed seller if the preneed seller insures the cemetery merchandise and the preneed sales contract requires the preneed seller to ultimately affix the cemetery merchandise to the cemetery lot or mausoleum without additional charge.
440.92(2)(a)3g.
3g. By storing the cemetery merchandise anywhere on the property of the preneed seller if the property of the preneed seller is located in this state, the preneed seller insures the cemetery merchandise and the preneed sales contract requires the preneed seller to ultimately affix the cemetery merchandise to a cemetery lot, to the outside of or the grounds surrounding a mausoleum or to any other outdoor location without additional charge.
440.92(2)(a)4.
4. By having the cemetery merchandise stored in a warehouse that is not located on the property of the preneed seller if the warehouse has agreed to ship the cemetery merchandise to the preneed seller, purchaser or beneficiary named in the preneed sales contract without additional charge to the purchaser and the preneed sales contract requires that the cemetery merchandise ultimately be affixed to the cemetery lot or mausoleum without additional charge. If the cemetery merchandise is delivered under this subdivision, all of the following apply:
440.92(2)(a)4.a.
a. At the time that the preneed sales contract is entered into, the preneed seller shall provide the purchaser with the name, address and telephone number of the warehouse and inform the purchaser that the warehouse is approved by the board.
440.92(2)(a)4.b.
b. If the name, address, telephone number or approval status of the warehouse changes before the cemetery merchandise is delivered, the preneed seller or warehouse shall notify the purchaser in writing of each change within 30 days after the change.
440.92(2)(a)4.c.
c. The preneed sales contract shall provide for the cemetery merchandise to be delivered within 30 days after the purchaser or beneficiary requests the preneed seller or warehouse to deliver the cemetery merchandise and shall contain the procedure and any requirements for making the request.
440.92(2)(am)
(am) If a preneed sales contract for the sale of cemetery merchandise requires the preneed seller to ultimately affix the cemetery merchandise to a cemetery lot, mausoleum or other location but the purchaser has not informed the preneed seller of the location where the cemetery merchandise is to be affixed and the location where the cemetery merchandise is to be affixed is not specified in the preneed sales contract, the preneed sales contract may provide that the preneed seller may charge the purchaser an additional fee at the time that the cemetery merchandise is affixed not to exceed the additional costs to the preneed seller that are necessitated by the purchaser's choice of location.
440.92(2)(b)
(b) If a preneed sales contract does not require the preneed seller to deliver cemetery merchandise by one of the methods under par.
(a), the preneed seller shall deliver the cemetery merchandise under par.
(a) 2. 440.92(2)(c)
(c) Except as provided in par.
(cm), a preneed sales contract shall provide that if the purchaser voids the preneed sales contract at any time within 10 days after the date of the initial payment the preneed seller shall, within 30 days after the date on which the preneed sales contract is voided, refund all money paid by the purchaser for cemetery merchandise that has not been supplied or delivered and for the mausoleum space.
440.92(2)(cm)
(cm) If a preneed sales contract for the sale of cemetery merchandise requires the preneed seller to physically alter any cemetery merchandise, the preneed sales contract shall provide that if the purchaser voids the preneed sales contract at any time before the preneed seller has physically altered the cemetery merchandise in a manner or to a degree that makes the fair market value of the cemetery merchandise to the general public lower than the sale price of the cemetery merchandise under the preneed sales contract or within 10 days after the date of the initial payment, whichever occurs first, the preneed seller shall, within 30 days after the date on which the preneed sales contract is voided, refund all money paid by the purchaser for cemetery merchandise that has not been supplied or delivered.
440.92(2)(d)
(d) A preneed seller may not sell any undeveloped space unless the plans for the construction of the mausoleum have been submitted to the board for approval under s.
157.12 (2) (a) and the preneed sales contract includes the following language in not less than 10-point boldface type: “THE PLANS FOR CONSTRUCTING THE MAUSOLEUM SPACE HAVE BEEN SUBMITTED TO THE CEMETERY BOARD FOR APPROVAL. THE SELLER IS RESPONSIBLE FOR ALL COSTS REQUIRED TO OBTAIN APPROVAL OF THE PLANS BY THE CEMETERY BOARD, COMPLETE THE CONSTRUCTION, AND OBTAIN CERTIFICATION OF THE CONSTRUCTION BY THE CEMETERY BOARD."
440.92(2)(e)
(e) A preneed sales contract for the sale of an undeveloped space shall provide that the purchaser may void the preneed sales contract if any of the following conditions applies:
440.92(2)(e)2.
2. The construction of the mausoleum does not begin within 3 years after the date of the sale.
440.92(2)(e)3.
3. If the mausoleum is a public mausoleum, the construction of the mausoleum is not certified under s.
157.12 (2) (b) within 6 years after the date of the sale.
440.92(2)(f)
(f) If a preneed sales contract is voided under par.
(e), the preneed seller shall, within 30 days after the date on which the preneed sales contract is voided, refund all money paid by the purchaser, together with interest calculated at the legal rate of interest as provided under s.
138.04.
440.92(2)(g)
(g) A preneed seller may include in a preneed sales contract provisions that do any of the following:
440.92(2)(g)1.
1. Place restrictions on the right of the purchaser to assign his or her interest in any undelivered cemetery merchandise or undeveloped space to any other person, but only if such restrictions are consistent with regulations, established by the cemetery authority of the cemetery in which the cemetery merchandise will ultimately be affixed or in which the undeveloped space is located, that specify who may or may not be buried in the cemetery.
440.92(2)(g)2.
2. Require the purchaser to notify the preneed seller that the purchaser has assigned his or her interest in any undelivered cemetery merchandise or undeveloped space to any other person within a reasonable period of time after the interest has been assigned.
440.92(2)(h)
(h) A provision in a preneed sales contract that purports to waive or is in conflict with any part of this section is void.
440.92(2)(i)
(i) If a preneed sales contract includes provisions for the sale of cemetery merchandise or an undeveloped space that is subject to the trusting requirements under sub.
(3) (a) and
(b) and for the sale of other goods or services that are not subject to the trusting requirements under sub.
(3) (a) and
(b), the sale price of the goods or services that are not subject to the trusting requirements may not be inflated for the purpose of allocating a lower sale price to the cemetery merchandise or undeveloped space that is subject to the trusting requirements.
440.92(2)(j)
(j) A preneed sales contract shall be in writing. The preneed seller shall provide the purchaser with a copy of the preneed sales contract at the time that the preneed sales contract is entered into. A provision in a written preneed sales contract that limits the terms of the transaction to those included in the written preneed sales contract and that disclaims any oral agreements pertaining to the transaction creates a rebuttable presumption that no oral preneed sales contract pertaining to the transaction exists. A preneed sales contract that is not in writing may not be voided by the preneed seller, but may be voided by the purchaser at any time before all of the cemetery merchandise purchased has been delivered, before the plans for constructing the mausoleum have been approved under s.
157.12 (2) (a) or, if the mausoleum is a public mausoleum, before the construction of the mausoleum has been certified under s.
157.12 (2) (b). If a preneed sales contract is voided under this paragraph, the preneed seller shall, within 30 days after the date on which the preneed sales contract is voided, refund all money paid by the purchaser, together with interest calculated at the legal rate of interest as provided under s.
138.04.
440.92(2)(k)
(k) A preneed sales contract shall include the following language in not less than 10-point boldface type: “SECTION 440.92 (2) OF THE WISCONSIN STATUTES SPECIFIES THE RIGHTS OF THE PURCHASER UNDER THIS CONTRACT. DEPENDING ON THE CIRCUMSTANCES, THESE MAY INCLUDE THE RIGHT TO VOID THE CONTRACT AND RECEIVE A REFUND OR THE RIGHT TO ASSIGN AN INTEREST IN THE CONTRACT TO ANOTHER PERSON."
440.92(3)
(3) Deposits in preneed trust fund and care fund. 440.92(3)(a)(a) A preneed seller shall deposit into a preneed trust fund an amount equal to at least 40 percent of each payment of principal that is received from the sale of cemetery merchandise under a preneed sales contract, or the wholesale cost ratio for the cemetery merchandise multiplied by the amount of the payment of principal that is received, whichever is greater. In addition to the amount required to be deposited under this paragraph for the sale of cemetery merchandise and except as provided in par.
(c), if a preneed seller receives payment for the sale of an undeveloped space under a preneed sales contract, the preneed seller shall deposit a percentage of each payment of principal that is received from the sale of the undeveloped space into a preneed trust fund, determined as follows:
440.92(3)(a)1.
1. If the actual cost to the preneed seller of constructing the undeveloped space in accordance with construction plans approved under s.
157.12 (2) (a) has been determined by a registered architect or engineer and accepted in a written construction agreement by both the preneed seller and the person who has agreed to construct the mausoleum, the minimum percentage of each payment of principal that must be deposited into the preneed trust fund is the percentage equal to the wholesale cost ratio for the undeveloped space. In this subdivision, “registered architect or engineer" means a person who is registered as an architect or engineer under ch.
443.
440.92(3)(a)2.
2. If the cost to the preneed seller of constructing the undeveloped space has not been determined as provided in subd.
1., the preneed seller shall deposit at least 40 percent of each payment of principal into the preneed trust fund.
440.92(3)(b)
(b) The preneed seller shall make the deposits required under par.
(a) within 30 business days after the last day of the month in which each payment is received. Preneed trust funds shall be deposited and invested as provided in s.
157.19.
440.92(3)(c)
(c) A preneed seller is not required to make the deposits required under par.
(a) 1. and
2. if any of the following applies:
