(815 ILCS 390/1) (from Ch. 21,
par. 201)
Sec. 1. Purpose. It is the purpose
of this Act to assure adequate protection for those who contract
through pre-need contracts for the purchase of certain cemetery
merchandise and cemetery services and undeveloped interment, entombment
or inurnment space, when the seller may delay delivery or performance
more than 120 days following initial payment on the account.
(Source: P.A. 92-419, eff. 1-1-02.)
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(815 ILCS 390/2) (from Ch. 21,
par. 202)
Sec. 2. This Act applies to all
persons, except religious, municipal, State and federal cemeteries,
that offer for sale or sell cemetery merchandise, cemetery
services, or undeveloped interment, entombment or inurnment
spaces on a pre-need basis.
Nothing in this Act shall be deemed
to apply to pre-arranged funeral programs covered under
the Illinois Funeral or Burial Funds Act.
(Source: P.A. 88-477.)
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(815 ILCS 390/3) (from Ch. 21,
par. 203)
Sec. 3. Short title. This Act may
be cited as the Illinois Pre-Need Cemetery Sales Act.
(Source: P.A. 90-47, eff. 1-1-98.)
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(815 ILCS 390/4) (from Ch. 21,
par. 204)
Sec. 4. Definitions. As used in
this Act, the following terms shall have the meaning specified:
(A) "Pre-need sales
contract" or "Pre-need sales" means any
agreement or contract or series or combination of agreements
or contracts which have for a purpose the sale of cemetery merchandise,
cemetery services or undeveloped interment, entombment or inurnment
spaces where the terms of such sale require payment or payments
to be made at a currently determinable time and where the merchandise,
services or completed spaces are to be provided more than 120
days following the initial payment on the account. An agreement
or contract for a memorial, marker, or monument shall not be
deemed a "pre-need sales contract" or a "pre-need
sale" if the memorial, marker, or monument is delivered
within 180 days following initial payment on the account and
work thereon commences a reasonably short time after initial
payment on the account.
(B) "Delivery" occurs
when:
(1) Physical
possession of the merchandise is
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transferred or the easement for burial
rights in a completed space is executed, delivered
and transferred to the buyer; or
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(2)
Following authorization by a purchaser under a
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pre-need sales contract, title
to the merchandise has been transferred to the
buyer and the merchandise has been paid for and
is in the possession of the seller who has placed
it, until needed, at the site of its ultimate use;
or
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(3)
Following authorization by a purchaser under a
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pre-need sales contract, the merchandise
has been permanently identified with the name of
the buyer or the beneficiary and delivered to a
licensed and bonded warehouse and both title to
the merchandise and a warehouse receipt have been
delivered to the purchaser or beneficiary and a
copy of the warehouse receipt has been delivered
to the licensee for retention in its files; except
that in the case of outer burial containers, the
use of a licensed and bonded warehouse as set forth
in this paragraph shall not constitute delivery
for purposes of this Act. Nothing herein shall
prevent a seller from perfecting a security interest
in accordance with the Uniform Commercial Code
on any merchandise covered under this Act.
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All
warehouse facilities to which sellers deliver
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merchandise pursuant to this Act shall:
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(i)
be either located in the State of Illinois
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or qualify as a foreign warehouse facility
as defined herein;
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(ii)
submit to the Comptroller not less than
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annually, by March 1 of each year, a
report of all cemetery merchandise stored by each
licensee under this Act which is in storage on
the date of the report;
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(iii)
permit the Comptroller or his designee at
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any time to examine stored merchandise
and to examine any documents pertaining thereto;
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(iv)
submit evidence satisfactory to the
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Comptroller that all merchandise stored
by said warehouse for licensees under this Act
is insured for casualty or other loss normally
assumed by a bailee for hire;
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(v)
demonstrate to the Comptroller that the
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warehouse has procured and is maintaining
a performance bond in the form, content and amount
sufficient to unconditionally guarantee to the
purchaser or beneficiary the prompt shipment of
the cemetery merchandise.
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(C) "Cemetery
merchandise" means items of personal property normally
sold by a cemetery authority not covered under the Illinois
Funeral or Burial Funds Act, including but not limited
to:
(1) memorials,
(2) markers,
(3) monuments,
(4) foundations,
and
(5) outer
burial containers.
(D) "Undeveloped interment,
entombment or inurnment spaces" or "undeveloped spaces" means
any space to be used for the reception of human remains that is
not completely and totally constructed at the time of initial payment
therefor in a:
(1) lawn
crypt,
(2) mausoleum,
(3) garden
crypt,
(4) columbarium,
or
(5) cemetery
section.
(E) "Cemetery services" means
those services customarily performed by cemetery or crematory personnel
in connection with the interment, entombment, inurnment or cremation
of a dead human body.
(F) "Cemetery section" means
a grouping of spaces intended to be developed simultaneously for
the purpose of interring human remains.
(G) "Columbarium" means
an arrangement of niches that may be an entire building, a complete
room, a series of special indoor alcoves, a bank along a corridor
or part of an outdoor garden setting that is constructed of permanent
material such as bronze, marble, brick, stone or concrete for the
inurnment of human remains.
(H) "Lawn crypt" means
a permanent underground crypt usually constructed of reinforced
concrete or similar material installed in multiple units for the
entombment of human remains.
(I) "Mausoleum" or "garden
crypt" means a grouping of spaces constructed of reinforced
concrete or similar material constructed or assembled above the
ground for entombing human remains.
(J) "Memorials, markers and
monuments" means the object usually comprised of a permanent
material such as granite or bronze used to identify and memorialize
the deceased.
(K) "Foundations" means
those items used to affix or support a memorial or monument to
the ground in connection with the installation of a memorial, marker
or monument.
(L) "Person" means an
individual, corporation, partnership, joint venture, business trust,
voluntary organization or any other form of entity.
(M) "Seller" means any
person selling or offering for sale cemetery merchandise, cemetery
services or undeveloped interment, entombment, or inurnment spaces
in accordance with a pre-need sales contract.
(N) "Religious cemetery" means
a cemetery owned, operated, controlled or managed by any recognized
church, religious society, association or denomination or by any
cemetery authority or any corporation administering, or through
which is administered, the temporalities of any recognized church,
religious society, association or denomination.
(O) "Municipal cemetery" means
a cemetery owned, operated, controlled or managed by any city,
village, incorporated town, township, county or other municipal
corporation, political subdivision, or instrumentality thereof
authorized by law to own, operate or manage a cemetery.
(O-1) "Outer burial
container" means a container made of concrete, steel, wood,
fiberglass, or similar material, used solely at the interment site,
and designed and used exclusively to surround or enclose a separate
casket and to support the earth above such casket, commonly known
as a burial vault, grave box, or grave liner, but not including
a lawn crypt.
(P) "Sales price" means
the gross amount paid by a purchaser on a pre-need sales
contract for cemetery merchandise, cemetery services or undeveloped
interment, entombment or inurnment spaces, excluding sales taxes,
credit life insurance premiums, finance charges and Cemetery Care
Act contributions.
(Q) (Blank).
(R) "Provider" means
a person who is responsible for performing cemetery services or
furnishing cemetery merchandise, interment spaces, entombment spaces,
or inurnment spaces under a pre-need sales contract.
(S) "Purchaser" or "buyer" means
the person who originally paid the money under or in connection
with a pre-need sales contract.
(T) "Parent company" means
a corporation owning more than 12 cemeteries or funeral homes in
more than one state.
(U) "Foreign warehouse facility" means
a warehouse facility now or hereafter located in any state or territory
of the United States, including the District of Columbia, other
than the State of Illinois.
A foreign warehouse facility shall
be deemed to have appointed the Comptroller to be its true and
lawful attorney upon whom may be served all legal process in any
action or proceeding against it relating to or growing out of this
Act, and the acceptance of the delivery of stored merchandise under
this Act shall be signification of its agreement that any such
process against it which is so served, shall be of the same legal
force and validity as though served upon it personally.
Service of such process shall be
made by delivering to and leaving with the Comptroller, or any
agent having charge of the Comptroller's Department of Cemetery
and Burial Trusts, a copy of such process and such service shall
be sufficient service upon such foreign warehouse facility if notice
of such service and a copy of the process are, within 10 days thereafter,
sent by registered mail by the plaintiff to the foreign warehouse
facility at its principal office and the plaintiff's affidavit
of compliance herewith is appended to the summons. The Comptroller
shall keep a record of all process served upon him under this Section
and shall record therein the time of such service.
(Source: P.A. 91-7, eff. 1-1-00; 91-357,
eff. 7-29-99; 92-16, eff. 6-28-01;
92-419, eff. 1-1-02.)
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(815 ILCS 390/5) (from Ch. 21, par. 205)
Sec. 5. It is unlawful for any
seller directly or indirectly doing business within this State
to engage in pre-need sales without a license issued
by the Comptroller.
(Source: P.A. 92-419, eff. 1-1-02.)
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(815 ILCS 390/6) (from Ch. 21, par. 206)
Sec. 6. License application.
(a) An application for a license
shall be made in writing to the Comptroller on forms prescribed
by him or her, signed by the applicant under oath verified
by a notary public, and accompanied by a non-returnable
$25 application fee. The Comptroller may prescribe abbreviated
application forms for persons holding a license under the Cemetery
Care Act. Applications (except abbreviated applications) must
include at least the following information:
(1) The
full name and address, both residence and
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business, of the applicant if the applicant
is an individual; of every member if applicant
is a partnership; of every member of the Board
of Directors if applicant is an association; and
of every officer, director and shareholder holding
more than 10% of the corporate stock if applicant
is a corporation;
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(2)
A detailed statement of applicant's assets and
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(2.1)
The name and address of the applicant's
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principal place of business at which
the books, accounts, and records are available
for examination by the Comptroller as required
by this Act;
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(2.2)
The name and address of the applicant's branch
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locations at which pre-need sales
will be conducted and which will operate under
the same license number as the applicant's principal
place of business;
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(3)
For each individual listed under (1) above, a
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detailed statement of the individual's
business experience for the 10 years immediately
preceding the application; any present or prior
connection between the individual and any other
person engaged in pre-need sales; any felony
or misdemeanor convictions for which fraud was
an essential element; any charges or complaints
lodged against the individual for which fraud was
an essential element and which resulted in civil
or criminal litigation; any failure of the individual
to satisfy an enforceable judgment entered against
him or her based upon fraud; and any other information
requested by the Comptroller relating to the past
business practices of the individual. Since the
information required by this paragraph may be confidential
or contain proprietary information, this information
shall not be available to other licensees or the
general public and shall be used only for the lawful
purposes of the Comptroller in enforcing this Act;
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(4)
The name of the trustee and, if applicable, the
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names of the advisors to the trustee,
including a copy of the proposed trust agreement
under which the trust funds are to be held as required
by this Act;
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(5)
Where applicable, the name of the corporate
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surety company providing the performance
bond for the construction of undeveloped spaces
and a copy of the bond; and
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(6)
Such other information as the Comptroller may
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reasonably require in order to determine
the qualification of the applicant to be licensed
under this Act.
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(b) Applications
for license shall be accompanied by a fidelity bond executed
by the applicant and a security company authorized to do
business in this State in such amount, not exceeding $10,000,
as the Comptroller may require. The Comptroller may require
additional bond from time to time in amounts equal to one-tenth
of such trust funds but not to exceed $100,000, which bond
shall run to the Comptroller for the use and benefit of
the beneficiaries of such trust funds. Such licensee may
by written permit of the Comptroller be authorized to operate
without additional bond, except such fidelity bond as may
be required by the Comptroller for the protection of the
licensee against loss by default by any of its employees
engaged in the handling of trust funds.
(c) Any application not acted upon
within 90 days may be deemed denied.
(Source: P.A. 92-419, eff. 1-1-02.)
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(815 ILCS 390/7) (from Ch. 21, par. 207)
Sec. 7. The Comptroller may refuse
to issue or may suspend or revoke a license on any of the following
grounds:
(a) The applicant or licensee has
made any misrepresentations or false statements or concealed
any material fact;
(b) The applicant or licensee is
insolvent;
(c) The applicant or licensee has
been engaged in business practices that work a fraud;
(d) The applicant or licensee has
refused to give pertinent data to the Comptroller;
(e) The applicant or licensee has
failed to satisfy any enforceable judgment or decree rendered
by any court of competent jurisdiction against the applicant;
(f) The applicant or licensee has
conducted or is about to conduct business in a fraudulent manner;
(g) The trust agreement is not
in compliance with State or federal law;
(h) The pre-construction
performance bond, if applicable, is not satisfactory to the Comptroller;
(i) The fidelity bond is not satisfactory
to the Comptroller;
(j) As to any individual listed
in the license application as required pursuant to Section 6,
that individual has conducted or is about to conduct any business
on behalf of the applicant in a fraudulent manner, has been convicted
of any felony or misdemeanor an essential element of which is
fraud, has had a judgment rendered against him or her based on
fraud in any civil litigation, has failed to satisfy any enforceable
judgment or decree rendered against him by any court of competent
jurisdiction, or has been convicted of any felony or any theft-related
offense;
(k) The applicant or licensee has
failed to make the annual report required by this Act or to comply
with a final order, decision, or finding of the Comptroller made
pursuant to this Act;
(l) The applicant or licensee,
including any member, officer, or director thereof if the applicant
or licensee is a firm, partnership, association, or corporation
and any shareholder holding more than 10% of the corporate stock,
has violated any provision of this Act or any regulation or order
made by the Comptroller under this Act; or
(m) The Comptroller finds any fact
or condition existing which, if it had existed at the time of
the original application for such license would have warranted
the Comptroller in refusing the issuance of the license.
(Source: P.A. 92-419, eff. 1-1-02.)
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(815 ILCS 390/8) (from Ch. 21, par. 208)
Sec. 8. (a) Every license issued
by the Comptroller shall state the number of the license, the
business name and address of the licensee's principal place
of business, each branch location also operating under the
license, and the licensee's parent company, if any. The license
shall be conspicuously posted in each place of business operating
under the license. The Comptroller may issue additional licenses
as may be necessary for license branch locations upon compliance
with the provisions of this Act governing an original issuance
of a license for each new license.
(b) Individual salespersons representing
a licensee shall not be required to obtain licenses in their
individual capacities but must acknowledge, by affidavit, that
they have been provided a copy of and have read this Act. The
licensee must retain copies of the affidavits of its salespersons
for its records and must make the affidavits available to the
Comptroller for examination upon request.
(c) The licensee shall be responsible
for the activities of any person representing the licensee in
selling or offering a pre-need contract for sale.
(d) Any person not selling on behalf
of a licensee shall be required to obtain his or her own license.
(e) Any person engaged in pre-need
sales, as defined herein, prior to the effective date of this
Act may continue operations until the application for license
under this Act is denied; provided that such person shall make
application for a license within 60 days of the date that application
forms are made available by the Comptroller.
(f) No license shall be transferable
or assignable without the express written consent of the Comptroller.
A transfer of more than 50% of the ownership of any business
licensed hereunder shall be deemed to be an attempted assignment
of the license originally issued to the licensee for which consent
of the Comptroller shall be required.
(g) Every license issued hereunder
shall remain in force until the same has been suspended, surrendered
or revoked in accordance with this Act, but the Comptroller,
upon the request of an interested person or on his own motion,
may issue new licenses to a licensee whose license or licenses
have been revoked, if no factor or condition then exists which
would have warranted the Comptroller in refusing originally the
issuance of such license.
(Source: P.A. 92-419, eff. 1-1-02.)
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(815 ILCS 390/8a)
Sec. 8a. Investigation of unlawful
practices. If it appears to the Comptroller that a person has
engaged in, is engaging in, or is about to engage in any practice
in violation of this Act, the Comptroller may:
(1) require
that person to file on such terms as the
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Comptroller prescribes a statement or
report in writing, under oath or otherwise, containing
all information the Comptroller may consider necessary
to ascertain whether a licensee is in compliance
with this Act, or whether an unlicensed person
is engaging in activities for which a license is
required;
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(2)
examine under oath any person in connection with
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the books and records pertaining to
or having an impact upon the trust funds required
to be maintained pursuant to this Act;
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(3)
examine any books and records of the licensee,
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trustee, or investment advisor that
the Comptroller may consider necessary to ascertain
compliance with this Act; and
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(4)
require the production of a copy of any record,
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book, document, account, or paper that
is produced in accordance with this Act and retain
it in his or her possession until the completion
of all proceedings in connection with which it
is produced.
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(Source: P.A. 92-419, eff. 1-1-02.)
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(815 ILCS 390/8b)
Sec. 8b. Service. Service by the
Comptroller of any notice requiring a person to file a statement
or report shall be made:
(1) personally
by delivery of a duly executed copy
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thereof to the person to be served or,
if that person is not a natural person, in the
manner provided in the Civil Practice Law when
a complaint is filed; or
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(2)
by mailing by certified mail a duly executed
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copy thereof to the person to be served
at his or her last known abode or principal place
of business within this State.
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(Source: P.A. 89-615, eff. 8-9-96.)
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(815 ILCS 390/9) (from Ch. 21, par. 209)
Sec. 9. The Comptroller may upon
his own motion investigate the actions of
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