Chapter 661
AN ACT
HB 2864
Relating to final disposition of human remains; creating new
provisions; amending ORS 65.860, 97.010, 97.220, 97.510, 97.520, 97.810,
97.820, 97.825, 97.865, 97.870, 97.890, 97.900, 97.923, 97.925, 97.927, 97.933,
97.935, 97.937, 97.939, 97.941, 97.943, 97.944 and 646.551; and repealing ORS
59.660, 59.670, 59.680, 59.690 and 59.700.
Be It Enacted by the People of
the State of
SECTION 1.
ORS 97.010 is amended to read:
97.010. As used in ORS
97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920,
97.923 to 97.949 and 97.990 and 97.994:
[(1) “Human remains” or “remains” means the body of a deceased person in
any stage of decomposition or after cremation.]
[(2) “Cemetery” means any place dedicated to and used, or intended to be
used, for the permanent interment of human remains.]
[(3) “Burial park” means a tract of land for the burial of human remains
in the ground used, or intended to be used, and dedicated for cemetery
purposes.]
[(4) “Mausoleum” means a structure for the entombment of human remains
in crypts or vaults in a place used, or intended to be used, and dedicated for
cemetery purposes.]
[(5) “Crematory” means a structure containing a retort for the reduction
of bodies of deceased persons to cremated remains.]
[(6) “Columbarium” means a structure or room containing niches for
permanent inurnment of cremated remains in a place used, or intended to be
used, and dedicated for cemetery purposes.]
[(7) “Interment” means the disposition of human remains by cremation,
inurnment, entombment or burial.]
[(8) “Cremation” means the reduction of a body of a deceased person to
cremated remains in a crematory.]
[(9) “Inurnment” means placing cremated remains in an urn and depositing
it in a niche.]
[(10) “Entombment” means the placement of human remains in a crypt or
vault.]
[(11) “Burial” means the placement of human remains in a grave.]
[(12) “Grave” means a space of ground in a burial park used, or intended
to be used, for burial of the remains of one person.]
[(13) “Crypt” or “vault” means a space in a mausoleum of sufficient size
used, or intended to be used, to entomb uncremated human remains.]
[(14) “Niche” is a recess in a columbarium used, or intended to be used,
for the interment of the cremated remains of one or more persons.]
[(15) “Cemetery authority” includes cemetery corporation, association,
corporation sole or other person or persons owning or controlling cemetery
lands or property.]
[(16) “Cemetery association” means any corporation or association
authorized by its articles to conduct any or all the businesses of a cemetery,
but does not include a corporation sole or a charitable, eleemosynary
association or corporation.]
[(17) “Cemetery business,” “cemetery businesses” and “cemetery purposes”
are used interchangeably and mean any business and purpose requisite or
incident to, or necessary for establishing, maintaining, operating, improving
or conducting a cemetery, interring human remains, and the care, preservation
and embellishment of cemetery property.]
[(18) “Directors” or “governing body” means the board of directors,
board of trustees, or other governing body of a cemetery association.]
[(19) “
[(20) The term “plot owner” or “owner” means any person in whose name a
burial plot stands as owner of the right of sepulture therein in the office of
the cemetery authority, or who holds from such cemetery authority a conveyance
of the right of sepulture or a certificate of ownership of the right of
sepulture in a particular lot, plot or space.]
[(21) “Endowment care” means the general care and maintenance of
developed portions of a cemetery and memorials erected thereon financed from
the income of a trust fund established and maintained pursuant to the
provisions of ORS 97.810 to 97.865. Endowment care cemeteries owned by a city
or a county may supplement their general care and maintenance trust funds from
general revenues.]
[(22) “Special care” is any care in excess of endowed care in accordance
with the specific directions of any donor of funds for such purposes.]
(1) “Burial” means
the placement of human remains in a grave or lawn crypt.
(2) “Burial park” means
a tract of land for the burial of human remains, used, or intended to be used,
and dedicated for cemetery purposes.
(3) “Burial right” means
the right to use a grave, mausoleum, columbarium, ossuary or scattering garden
for the interment or other disposition of human remains.
(4) “Cemetery” means a
place:
(a) Dedicated to and
used, or intended to be used, for the permanent interment of human remains; and
(b) That may contain a
mausoleum, crypt or vault interment, a columbarium, ossuary, scattering garden
or other structure or place used or intended to be used for the interment or
disposition of cremated remains or any combination of these structures or
places.
(5) “Cemetery
association” means a corporation or association authorized by its articles of
incorporation to conduct the business of a cemetery, but does not include a
corporation sole or a charitable, eleemosynary association or corporation.
(6) “Cemetery authority”
means a person who owns or controls cemetery lands or property, including but
not limited to a cemetery corporation, association or corporation sole.
(7) “Cemetery business”
and “cemetery purpose” are used interchangeably and mean any business or
purpose requisite or incident to, or necessary for establishing, maintaining,
operating, improving or conducting a cemetery, interring human remains, and the
care, preservation and embellishment of cemetery property.
(8) “Cemetery
merchandise” means personal property offered for sale or sold for use in
connection with the final disposition, memorialization or interment of human
remains. “Cemetery merchandise” includes, but is not limited to, an outer
burial container and a memorial.
(9) “Cemetery services”
means services provided by a cemetery authority for interment or scattering,
and installation of cemetery merchandise.
(10) “Columbarium” means
a structure or room containing receptacles for permanent inurnment of cremated
remains in a place used, or intended to be used, and dedicated for cemetery
purposes.
(11) “Cremated remains”
means the remains of a cremated human body after completion of the cremation
process.
(12) “Cremation” means
the technical process, using direct flame and heat, that reduces human remains
to bone fragments.
(13) “Crematory” means a
structure containing a retort for the reduction of bodies of deceased persons
to cremated remains.
(14) “Crypt” or “vault”
means a space in a mausoleum of sufficient size used, or intended to be used,
to entomb uncremated human remains.
(15) “Directors” or “governing
body” means the board of directors, board of trustees or other governing body
of a cemetery association.
(16) “Endowment care”
means the general care and maintenance of developed portions of a cemetery and
memorials erected thereon financed from the income of a trust fund.
(17) “Entombment” means
the placement of human remains in a crypt or vault.
(18) “Funeral
merchandise” means personal property offered for sale or sold for use in
connection with funeral services. “Funeral merchandise” includes, but is not
limited to, acknowledgement cards, alternative containers, caskets, clothing,
cremation containers, cremation interment containers, flowers, memory folders,
monuments, outer burial containers, prayer cards, register books and urns.
(19) “Funeral services”
means services customarily provided by a funeral service practitioner
including, but not limited to, care and preparation of human remains for final
disposition, professional services relating to a funeral or an alternative to a
funeral, transportation of human remains, limousine services, use of facilities
or equipment for viewing human remains, visitation, memorial services or
services that are used in connection with a funeral or alternative to a
funeral, coordinating or conducting funeral rites or ceremonies, and other
services provided in connection with a funeral, alternative to a funeral or
final disposition of human remains.
(20) “Grave” means a
space of ground in a burial park used, or intended to be used, for burial of
the remains of one person.
(21) “Human remains” or “remains”
means the body of a deceased person in any stage of decomposition or after
cremation.
(22) “Interment” means
the disposition of human remains by inurnment, entombment or burial.
(23) “Inurnment” means
the placement of cremated remains in a receptacle and the deposit of the
receptacle in a niche.
(24) “
(25) “Mausoleum” means a
structure substantially exposed above ground for the entombment of human
remains in crypts or vaults in a place used, or intended to be used, and
dedicated for cemetery purposes.
(26) “Memorial” means a
product, other than a mausoleum or columbarium, used for identifying an
interment space or for commemoration of the life, deeds or career of a decedent
including, but not limited to, an ossuary, monument, marker, niche plate, urn
garden plaque, crypt plate, cenotaph, marker bench or vase.
(27) “Niche” means a
recess usually in a columbarium used, or intended to be used, for the inurnment
of the cremated remains of one or more persons.
(28) “Ossuary” means a
receptacle used for the communal placement of cremated remains without benefit
of an urn or any other container in which cremated remains may be commingled
with other cremated remains and are nonrecoverable.
(29) “Plot owner” or “owner”
means any person identified in the records of the cemetery authority as owner
of the burial rights to a burial plot, or who holds a certificate of ownership
conveyed from the cemetery authority of the burial rights in a particular lot,
plot or space.
(30) “Scattering” means
the lawful dispersion of cremated remains that need not be associated with an
interment right or issuance of a deed, that may be recorded only as a service
that has taken place and may not be recorded on the permanent records of the
cemetery authority.
(31) “Scattering garden”
means a location set aside within a cemetery that is used for the spreading or
broadcasting of cremated remains that have been removed from their container
and can be mixed with or placed on top of the soil or ground cover or buried in
an underground receptacle on a commingled basis and that are nonrecoverable.
(32) “Special care”
means any care in excess of endowed care in accordance with the specific
directions of a donor of funds.
SECTION 2.
ORS 97.220 is amended to read:
97.220. (1) The remains
of a deceased person interred in a plot in a cemetery may be removed [therefrom] from the plot with the
consent of the cemetery authority and written consent of the person under
ORS 97.130 (2)(a), (b) or (c) who has the right to control the disposition
of the remains of the deceased person. If the consent of any such person or of
the cemetery authority cannot be obtained, permission by the county court [or the board of county commissioners of the
county] where the cemetery is situated is sufficient. Notice of application
to the court for such permission must be given at least 60 days prior thereto,
personally or by mail, to the cemetery authority, to the person not consenting
and to every other person or authority on whom service of notice is required by
the county court [or the board of county
commissioners].
(2) If the payment for
the purchase of an interment space becomes past due and so remains for a period
of 90 days, this section does not apply to or prohibit the removal of any
remains from one plot to another in the same cemetery or the removal of remains
by the cemetery authority from a plot to some other suitable place.
(3) This section does
not apply to the disinterment of remains upon order of court or if ordered
under the provisions of ORS 146.045 (3)(e).
SECTION 3.
ORS 97.510 is amended to read:
97.510. (1) After
filing the map or plat and recording the declaration of dedication, a cemetery
authority may sell and convey plots subject to such rules and regulations as
may be then in effect and subject to such other and further limitations,
conditions and restrictions made a part of the declaration of dedication by
reference or included in the instrument of conveyance of the plot.
(2) Scattering of
cremated remains in a scattering garden is not a sale or conveyance.
SECTION 4.
ORS 97.520 is amended to read:
97.520. [No] A person, firm or corporation
[shall] may not sell or offer
to sell a cemetery plot upon the promise, representation or inducement of
resale at a financial profit, except with the consent and approval of the [Secretary of State] Director of the
Department of Consumer and Business Services. Each violation of this
section constitutes a separate offense.
SECTION 5.
ORS 97.810 is amended to read:
97.810. [(1) An endowment care cemetery is one which
after July 5, 1955, deposits with the trustee or custodian of its endowment
care fund not less than the following amounts for plots sold after that date:]
(1) As used in this
section, “endowment care cemetery” means a cemetery that maintains an endowment
care fund placed in an irrevocable trust fund.
(2) An endowment care
cemetery shall deposit with the trustee or custodian of its endowment care fund
not less than the following amounts received from the sale of plots, niches,
crypts or private mausoleums:
(a) Fifteen percent of
the gross sales price with a minimum of $5 for each grave or, when the gross
sales price is paid in installments, 15 percent of each installment until at
least 15 percent of the gross sales price has been deposited, with a minimum of
$5 for each grave.
(b) Five percent of the
gross sales price for each niche or, when the gross sales price is paid in
installments, five percent of each installment until at least five percent of
the gross sales price has been deposited.
(c) Five percent of the
gross sales price for each crypt or, when the gross sales price is paid in installments,
five percent of each installment until at least five percent of the gross sales
price has been deposited.
(d) Five percent of
the gross sales price for each private mausoleum or, when the gross sales price
is paid in installments, five percent of each installment until at least five
percent of the gross sales price has been deposited.
[(2)] (3) The cemetery authority shall, within 30 days
from the receipt of a payment, deposit with the trustee or custodian of its
endowment care fund any payment received by [it and required by subsection (1) of this section to be paid into such
fund, within 30 days from the receipt of such payment.] the cemetery
authority that is:
(a) Required by
subsection (2) of this section to be paid into the fund; or
(b) A payment for
special care, gifts, grants, contributions, devises or bequests made with
respect to the separate or special care of a particular plot, grave, niche,
crypt, mausoleum, monument or marker or that of a particular family.
[(3)] (4) Within 75 days of the end of its fiscal year, each
endowment care cemetery, except one owned by a city or a county, shall file
with the Director of the Department of Consumer and Business Services a
statement containing the following information pertaining to the endowment care
fund:
(a) The total
amount invested in bonds, securities, mortgages and other investments[,];
(b) The total amount of cash on hand not
invested at the close of the previous calendar or fiscal year[,];
(c) The income earned by investments in the
preceding calendar or fiscal year[,];
(d) The amounts of such income expended for
maintenance in the preceding calendar or fiscal year[,];
(e) The amount paid into the fund in the
preceding calendar or fiscal year; and
(f) Such other
items as the director may from time to time require to show accurately the
complete financial condition of the trust on the date of the statement.
[(4)] (5) All of the information appearing on the statement
shall be verified by an owner or officer of the cemetery authority, and a copy
of the statement shall be maintained in the business office of the cemetery
authority.
[(5)] (6) The director shall have authority to require, as
often as the director deems necessary, the cemetery authority to make under
oath a detailed report of the condition and assets of any cemetery endowment
care fund.
[(6)] (7) At the time of the filing of the statements of its
endowment care fund each cemetery [filing]
authority shall pay to the director an annual fee as follows:
(a) Up to 100 interments
per year, $40.
(b) Over 100 interments
per year, $100.
[(7)] (8) All fees received by the director under this
section shall be immediately turned over to the State Treasurer who shall
deposit the moneys in the Consumer and Business Services Fund created under ORS
705.145.
[(8)] (9) [No] A
cemetery [shall] may not
operate [after July 5, 1955,] as an
endowment care, permanent maintenance or free care cemetery until the
provisions of this section are complied with. There shall be printed or stamped
at the head of all contracts and certificates of ownership or deeds referring
to plots in an endowment care cemetery, the following statement: “This cemetery
is an endowment care cemetery,” in lettering equivalent to at least 10-point
No. 2 black type, and there shall be printed in the body of or stamped upon the
above-described instruments the following statement: “Endowment care means the
general care and maintenance of all developed portions of the cemetery and
memorials erected thereon.”
[(9)] (10) A cemetery [which]
that otherwise complies with this section may be designated an endowment
care cemetery even though it contains a small area [which] that may be sold without endowed care, if it is
separately set off from the remainder of the cemetery. There shall be printed
or stamped at the head of all contracts and certificates of ownership or deeds
referring to plots in this area the phrase “nonendowed care” in lettering
equivalent to at least 10-point No. 2 black type.
[(10)] (11) A nonendowed care cemetery is [one] a cemetery that does not
deposit in an endowment care fund the minimum specified in subsection (1) of
this section.
[(11)] (12) [No] A
cemetery [shall] authority may not
in any way advertise or represent that it operates wholly or partially as an
endowment care[, permanent maintenance or
free care] cemetery, or otherwise advertise or represent that it provides
general care or maintenance of all or portions of the cemetery or memorials
erected thereon, [until] unless
the provisions of this section are complied with.
SECTION 6.
ORS 97.820 is amended to read:
97.820. (1) Every
cemetery authority that operates a cemetery may place its cemetery under
endowed care and establish, maintain and operate an endowment care fund. All
endowed care funds shall be deposited with and held solely by the trustee or
custodian appointed by the cemetery authority. [The provisions of this subsection shall not apply to a city or
county-owned cemetery, unless the city or county has elected to subject itself
to ORS 97.810 to 97.865.]
(2) Endowment care and
special care funds may be commingled for investment and the income therefrom
shall be divided between the endowment care and special care funds in the
proportion that each fund contributed to the principal sum invested. The income
of the endowment care fund may be used only to finance the care of the
cemetery.
(3) The cemetery
authority shall appoint as sole trustee of the endowment care fund a trust
company as defined in ORS 706.008 that is authorized to transact trust business
in this state, or an insured institution as defined in ORS 706.008 that is
authorized to accept deposits in this state. Such trust company or insured
institution shall receive and accept the fund, including any accumulated
endowment care fund in existence at the time of its appointment and perform
such duties as are agreed upon in the agreement between it and the cemetery
authority. An insured institution not qualified to transact trust business in
this state may act as custodian of such endowment care fund provided:
(a) The duties of the
insured institution are essentially custodial or ministerial in nature; and
(b) The insured
institution invests the funds from such plan only in its own time or savings
deposits.
(4) The trustee or
custodian may resign upon written notice to the cemetery authority or the
cemetery authority may remove the trustee or custodian by written notice to it.
In case of the resignation or removal of the trustee or custodian, the cemetery
authority forthwith shall appoint a successor trustee or custodian and provide
for the direct transfer of all endowed care funds and earnings thereon from the
former trustee or custodian to the successor trustee or custodian.
[(5) ORS 294.035 does not apply to funds held by a county or city under
ORS 97.810 to 97.865.]
SECTION 7.
ORS 97.825 is amended to read:
97.825. (1) [Should] If the cemetery authority
[fail] fails to remit to the
trustee or trustees, in accordance with the law, the funds herein
provided for endowment and special care, or [fail] fails to expend [all
such funds] the net income from the funds and generally care for and
maintain any portion of a cemetery entitled to endowment care, any three lot
owners whose lots are entitled to endowment care, or any one lot owner whose
lot is entitled to special care, or the next of kin, heirs at law or personal
representatives of such lot owners, shall have the right, or the district
attorney of any county wherein is situated such lots, shall have the power, by
suit for mandatory injunction or for appointment of a receiver, to sue for, to
take charge of, and to expend such net income. [Such] The suit may be filed in the circuit court of the
county in which said cemetery is located, to compel the expenditure either by
the cemetery authority or by any receiver so appointed by the court, of the net
income from such endowment care fund for the purposes set out in ORS 97.010 to
97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990.
(2) When the Director of
the Department of Consumer and Business Services has reason to believe that a
cemetery endowment care fund does not conform to the requirement of law, or
when the director has reason to believe that any cemetery is operating in
violation of ORS 97.810 or 97.820, or when the director has sent an
endowment care cemetery [fails after 30
days’] a notice of delinquency to make any report to the director
required by ORS 97.810, the director shall, as soon thereafter as
reasonable, give notice of the foregoing to the trustee or trustees of the
cemetery endowment care fund, the cemetery [for
the benefit of which the fund is established] authority, the
Attorney General of Oregon and the State Mortuary and Cemetery Board.
(3) Within [90] 120 days after the receipt of
such notice, the Attorney General shall institute suit in the circuit court of
any county of this state in which such cemetery is located, for a mandatory
injunction against further sales of graves, plots, crypts, niches, burial
vaults, markers or other cemetery merchandise by such cemetery or for the
appointment of a receiver to take charge of the cemetery, unless the Attorney
General shall prior to that time be notified by the director that such failure
to conform to the requirements of the law or to report has been corrected.
(4) The Attorney
General may delay instituting any suit brought under subsection (3) of this
section for no more than an additional 30 days if, in the discretion of the
Attorney General after consulting with the director, it appears to the Attorney
General:
(a) That the failure to
conform to the requirements of the law or to report will be corrected; and
(b) That no harm to the
public will occur during the additional 30 days.
[(3)] (5) If a trustee fails to perform the duties of the
trustee under ORS 97.810 to 97.920, the trustee shall be liable for any damage
resulting from that failure to any lot owners or the next of kin, heirs at law
or personal representatives of such lot owners.
[(4)] (6) The court may award reasonable attorney fees, costs
and disbursements to the prevailing party in an action under this section.
SECTION 8.
ORS 97.865 is amended to read:
97.865. (1) [The] A cemetery authority that
operates a cemetery for any religious or eleemosynary corporation, church,
religious society or denomination, corporation sole administering temporalities
of any church or religious society or denomination and any county or city may
make an irrevocable election to have ORS 97.810 to 97.865 apply to any cemetery
controlled or operated by the cemetery authority, county or city by filing a
written statement indicating such action with the Director of the Department of
Consumer and Business Services. The statement shall be in the form prescribed
by the director and shall contain the information specified by the director.
(2)(a) When a
cemetery authority, county or city files a statement described in this section
with the director, ORS 97.810 to 97.865 [will
apply] applies to a cemetery controlled or operated by the cemetery
authority, county or city beginning on the first day of the fiscal year next
following the filing of the statement.
(b) ORS 294.035 does
not apply to funds held by a county or city under ORS 97.810 to 97.865.
SECTION 9.
ORS 97.870 is amended to read:
97.870. (1) In
all cases where a cemetery authority has owned a site for a cemetery for more
than 40 years and has during that period sold lots, subdivisions of lots,
pieces or parcels of the cemetery for burial purposes and the grantee or party
claiming through the grantee has not used portions of such lots, subdivisions
of lots, pieces or parcels of the cemetery for purposes of burial and has not
kept them free of weeds or brush, but has allowed them to remain entirely
unused for more than 40 years or uncared for and unused for more than 20 years
prior to the adoption of the resolution provided for in ORS 97.880, and such
lots, subdivisions of lots, pieces and parcels of the cemetery are adjacent to
improved parts thereof, and by reason of their uncared-for condition detract from
the appearance of the cemetery and interfere with the harmonious improvement
thereof, and furnish a place for the propagation of weeds and brush, thereby
becoming a menace to adjacent property, such lots, subdivisions of lots, pieces
and parcels of such cemetery, which are unused and uncared for as aforesaid,
hereby are declared to be a common nuisance and contrary to public policy.
(2) The
provisions of this section are not applicable to portions of cemeteries which
have been or are sold with agreements between the cemetery authority or its
successor in interest, or both, and the grantee providing for endowment care,
permanent [care,] maintenance or free
care.
SECTION 10.
ORS 97.890 is amended to read:
97.890. (1) Upon the
adoption of the resolution described in ORS 97.880 the officers of the cemetery
[association] authority may
file a complaint in the circuit court for the county in which the cemetery is
located against the owners, holders or parties interested in such abandoned
portion of its cemetery demanding that the court require such owners, holders
or interested parties to keep the premises clear of weeds and brush and in
condition in harmony with other lots and, if the owners, holders, or interested
parties fail to appear in court and comply with the order of the court,
demanding that the court make a judgment declaring such portions of the
cemetery a common nuisance, directing the governing board to abate the nuisance
by clearing the premises and keeping them clear of weeds and brush, creating a
lien upon such lots and parcels in favor of the cemetery [association or other proprietor] authority, providing that
the lien be foreclosed and the lots and parcels be sold in the same manner as
other sales upon execution are made and authorizing the governing board to
become a purchaser thereof on behalf of the [association or the proprietor] cemetery authority.
(2) In such suit any
number of owners of different lots, subdivisions of lots, pieces or parcels of
the cemetery may be included in the one suit.
(3) It is a sufficient
designation of the property so abandoned and unimproved to give the lot number
or portion thereof, or a description of the piece or parcel having no lot
number, together with the name of the owner thereof, as appears on the record
of the cemetery [association] authority.
(4) In addition to the
names of the persons that appear on the records of the cemetery [association] authority as the
record owners of such unused and unimproved portions of the cemetery, the
plaintiff shall include as a defendant in a complaint the following: “Also all
other persons unknown claiming any right, title, estate, lien or interest in
the unused and unimproved portions of the cemetery described in the complaint.”
SECTION 11.
ORS 97.900 is amended to read:
97.900. (1) Summons
shall be served upon all owners or holders who are residents of this state in
like manner as in service of summons in a civil action if such owners and
holders are known to the sheriff in the county in which the cemetery is located.
If the defendants are not known to the sheriff, it is sufficient to serve the
owners and holders whose names appear on the tax rolls of the county for the
year previous to that in which the suit is started. The plaintiff is not
required to mail a copy of the summons or complaint to nonresident defendants.
(2) All owners and
holders of such unimproved lots whose names do not appear on the tax rolls as
aforesaid as shown by the return of the sheriff may be served by publication in
any legal newspaper published in the county in which the cemetery is located
for four consecutive weeks upon return of the sheriff that such owners and
holders are not known and cannot be served in the jurisdiction of the sheriff.
(3) The published
summons shall contain the names of the record owners, as shown by the records
of the cemetery [association]
authority, and “also all other persons unknown claiming any right, title,
estate, lien or interest in the unused and unimproved portions of the cemetery
described in the complaint,” together with a brief description of the lot, or
subdivisions of lots, pieces or parcels of the cemetery and a statement setting
forth the order and judgment described in ORS 97.890 (1) for which the
plaintiff has applied to the court in the complaint. Such summons shall require
all parties defendant to appear and show cause why an order should not be made
declaring the unused and unimproved portions of the cemeteries to be a common
nuisance, directing the cemetery [association
or other proprietor] authority to abate the nuisance, creating a
lien thereon, providing that it be foreclosed and directing that the unused and
unimproved portion of the cemetery be sold within four weeks from and after the
date of the first publication thereof.
SECTION 12.
ORS 97.923 is amended to read:
97.923. As used in ORS
97.923 to 97.949 and 97.994 unless the context requires otherwise:
(1) “Beneficiary” means
the person, if known, who is to receive the funeral and cemetery merchandise,
funeral and cemetery services or completed interment[, entombment or cremation] spaces.
(2) “Certified provider”
means any person certified under ORS 97.933 to sell or offer for sale
prearrangement sales contracts or preconstruction sales contracts.
(3) “Delivery” occurs
when:
(a) Physical possession
of the funeral [and] or
cemetery merchandise is transferred to the purchaser; or
(b) If authorized by
a purchaser under a purchase agreement:
(A) The title to the funeral [and] or cemetery merchandise has been transferred to the
purchaser, has been paid for, and is in the possession of the seller, who has documented
the sale in the purchaser’s records through use of a serial or other
identifying number and placed [it]
the merchandise, until needed, for storage on the seller’s premises; or
[(c)] (B) The merchandise has been identified for the
purchaser or the beneficiary as documented by the manufacturer’s receipt
placed by the seller in the purchaser’s records and held by the
manufacturer for future delivery.
(4) “Depository” means a
financial institution or trust company, as those terms are defined ORS 706.008,
that is authorized to accept deposits in this state or to transact trust
business in this state.
(5) “Director” means the
Director of the Department of Consumer and Business Services.
[(6) “Funeral and cemetery merchandise” includes nonperishable items of
personal property customarily sold by funeral service establishments,
cemeteries, crematoriums and monument companies, including, but not limited to,
caskets, burial vaults, memorials, markers and foundations, but shall not
include rights of interment or entombment in a cemetery section, lawn crypt
section, mausoleum or columbarium that is in existence at the time of initial
payment on the contract.]
[(7) “Funeral and cemetery services” includes all services customarily
performed:]
[(a) By a funeral service practitioner, embalmer, funeral service
establishment, cemetery or crematorium licensed under ORS chapter 692;]
[(b) In conjunction with an interment, entombment or cremation; and
(c) In conjunction with the sale, installation or erection
of a memorial, marker, monument or foundation.]
[(8)] (6) “Guaranteed contract” means a written
preconstruction sales contract or prearrangement sales contract that guarantees
the beneficiary the specific undeveloped space or spaces or funeral and
cemetery merchandise or funeral and cemetery services contained in the contract
and under which no charges other than the sales price contained in the contract
shall be required upon delivery or performance of the funeral [and] or cemetery merchandise
or services.
[(9)] (7) “Master trustee” means an entity [appointed by a certified provider to
administer moneys received from the certified provider under ORS 97.941 who
acts independently from any certified provider and who] that is not
[also] a certified provider under ORS
97.923 to 97.949 and that has fiduciary responsibility for the uniform
administration of funds including, but not limited to, acceptance,
custodianship, investment and accounting, delivered to it by a certified
provider for the benefit of purchasers of preconstruction sales contracts or
prearrangement sales contracts. “Master trustee” does not include a
financial institution, as defined in ORS 706.008, that acts solely as a
depository under ORS 97.923 to 97.949.
[(10)] (8) “Nonguaranteed contract” means a written
preconstruction sales contract or prearrangement sales contract that guarantees
the beneficiary the specific undeveloped space or spaces or funeral [and] or cemetery merchandise or [funeral and cemetery] services contained
in the contract [and under which
additional charges other than the sales price contained in the contract may be
required at the time of delivery or performance of the funeral and cemetery
services], when the price of the merchandise and services selected has
not been fixed and will be determined by existing prices at the time the
merchandise and services are delivered or provided.
[(11) “Preconstruction sales” or “preconstruction sales contract” means
any sale made to a purchaser, which has as its purpose the furnishing of
undeveloped interment, entombment or cremation spaces and where the sale terms
require payment or payments to be made at a currently determinable time.]
[(12)] (9) “Prearrangement sales” or “prearrangement sales
contract” means any sale, excluding the sale and contemporaneous or subsequent
assignment of a life insurance policy or an annuity contract, made to a
purchaser, that has as its purpose the furnishing of funeral [and] or cemetery merchandise or [funeral and cemetery] services in
connection with the final disposition or commemoration of the memory of a dead
human body, for use at a time determinable by the death of the person or
persons whose body or bodies are to be disposed and where the sale terms
require payment or payments to be made at a currently determinable time.
(10) “Preconstruction
sale” or “preconstruction sales contract” means a sale made to a purchaser, for
the purpose of furnishing undeveloped interment spaces and when the sale terms
require payment or payments to be made at a currently determinable time.
[(13)] (11) “Provider” means any entity that sells and offers
for sale funeral [and] or
cemetery merchandise or [funeral and
cemetery] services.
[(14)] (12) “Purchaser” means a beneficiary or a person
acting on behalf of a beneficiary who enters into a prearrangement sales
contract or a preconstruction sales contract with a certified provider under
which any payment or payments made under the contract are required to be
deposited in trust under ORS 97.941.
[(15)] (13) “Salesperson” means an individual registered
under ORS 97.931 and employed by a certified provider to engage in the sale of
prearrangement or preconstruction sales contracts on behalf of the certified provider.
[(16)] (14) “Sales price” means the gross amount paid by a
purchaser for a prearrangement sales contract or preconstruction sales
contract, excluding sales taxes, credit life insurance premiums and finance
charges.
[(17)] (15) “Trust” means an express trust created under ORS
97.941 whereby a trustee has the duty to administer the amounts specified under
ORS 97.941 received under a prearrangement sales contract or a preconstruction
sales contract for the benefit of the purchaser of a prearrangement sales
contract or preconstruction sales contract.
[(18)] (16) “Undeveloped interment[, entombment or cremation] spaces” or “undeveloped spaces” means
any space to be used for the reception of human remains that is not completely
constructed or developed at the time of initial payment.
SECTION 13.
ORS 97.925 is amended to read:
97.925. It is the
purpose of ORS 97.923 to 97.949, 97.992, 97.994 and 692.180 to assure funds for
performance to those purchasers who contract through prearrangement sales contracts
for the purchase of funeral [and] or
cemetery merchandise [and funeral and
cemetery] or services, and through preconstruction sales contracts
for undeveloped interment[, entombment or
cremation] spaces. It is also the purpose of ORS 97.923 to 97.949, 97.992,
97.994 and 692.180 to provide for the certification or registration of persons
selling or offering for sale prearrangement sales contracts and preconstruction
sales contracts, the creation and administration of prearrangement sales
contract and preconstruction sales contract trust funds, the disbursement and
allocation of trust funds upon the certified provider’s performance of its
contractual obligations and to provide protection for the purchaser upon the
certified provider’s default.
SECTION 14.
ORS 97.927 is amended to read:
97.927. (1) Except as
provided in this section, ORS 97.923 to 97.949, 97.992, 97.994 and 692.180
apply to all certified providers, master trustees and salespersons who sell or
offer for sale prearrangement sales contracts or preconstruction sales
contracts.
(2) ORS 97.923 to
97.949, 97.992, 97.994 and 692.180 do not apply to:
(a) Agreements to sell
or sales made by endowment care cemeteries under ORS 97.929; or
(b) Any nonprofit
memorial society charging less than a $100 membership fee.
(3) Notwithstanding
subsection (2) of this section, ORS 97.937 applies to:
(a) Agreements to sell
or sales made by endowment care cemeteries under ORS 97.929; or
(b) Any nonprofit
memorial society charging less than a $100 membership fee.
SECTION 15.
ORS 97.933 is amended to read:
97.933. (1) A provider
may not engage in prearrangement sales or preconstruction sales unless the
provider is certified by the Director of the Department of Consumer and
Business Services. The director shall:
(a) Establish procedures
for issuing certificates required by this section.
(b) Establish standards
for determining whether a certificate should be issued.
(c) Set certification
and renewal fees.
(d) Require annual
renewal of certification.
(e) Establish standards
for rules of conduct of certified providers.
(2) The fees described
in this section shall be reasonable and shall defray the costs associated with
the administration of ORS 97.923 to 97.949.
(3)(a) Every certified
provider shall file an annual report with the director on forms provided by the
director. The annual report shall contain any information reasonably considered
necessary by the director, including but not limited to:
(A) A disclosure of
changes in trust deposits;
(B) The number of
consecutively numbered prearrangement or preconstruction sales contracts sold
during the reporting period; [and]
(C) A complete
inventory of the funeral merchandise, cemetery merchandise or a combination
thereof delivered in lieu of trust fund requirements under ORS 97.941,
including:
(i) The location of the
merchandise;
(ii) Merchandise serial
numbers or warehouse receipt numbers identified by the name of the purchaser or
the beneficiary; and
(iii) The statement of
the certified provider that each item of merchandise is in the seller’s
possession at the specified location; and
[(C)] (D) The number of withdrawals from or terminations of
any trusts.
(b) If the annual report
is not filed or is filed and shows any material discrepancy, the director may
take appropriate action and send notification of the matter to the State
Mortuary and Cemetery Board.
(c) The director may
relieve a certified provider of the duty to file the annual report upon a
determination that the certified provider has performed all obligations under
the prearrangement sales contract or preconstruction sales contract, or that
such obligations lawfully have been assumed by another or have been discharged
or canceled.
(4) The director may
audit the records of a certified provider that relate to prearrangement sales
or preconstruction sales, as the director may consider appropriate. The
director may refer any matter outside of normal auditing procedures to the
office of the Attorney General for investigation and send notification of the
referral to the State Mortuary and Cemetery Board.
(5) The conduct of
individuals, including salespersons as defined in ORS 97.923, employed by a
certified provider is the direct responsibility of the certified provider.
(6) A certificate
issued to a provider is not transferable. A person that seeks to purchase or
otherwise acquire control of a cemetery or funeral establishment that is a
certified provider shall first apply to the director and obtain approval of the
purchase or change in control.
(7) A certificate issued
to a provider becomes inactive when the certificate is surrendered to the
director. The director retains jurisdiction over the provider as long as trust
funds remain on deposit for prearrangement sales contracts or preconstruction sales
contracts. While the certificate is inactive, the provider shall:
(a) Cease all
prearrangement sales to the public;
(b) Collect and deposit
into trust all installment funds paid toward contracts sold prior to becoming
inactive;
(c) Seek disbursal of trust
funds only in accordance with the requirements of the written contracts and ORS
97.923 to 97.949 until the funds have been exhausted; and
(d) Continue to submit
required annual reports and renewal fees until no trust funds remain on
deposit.
SECTION 16.
ORS 97.935 is amended to read:
97.935. (1) A person may
not operate as a master trustee unless the person is registered with the
Director of the Department of Consumer and Business Services. The director
shall:
(a) Establish procedures
for registering persons under this section.
(b) Establish standards
for master trustees.
(c) Set registration and
renewal fees.
(d) Establish standards
for rules of conduct of master trustees.
(2)(a) Every master
trustee shall file an annual report with the director on forms provided by the
director. The annual report shall contain any information reasonably considered
necessary by the director, including but not limited to:
(A) A disclosure of
changes in trust deposits; and
(B) A list of all
certified providers for which the master trustee holds funds and the total
amount of funds held for each certified provider.
(b) The director may
take appropriate action under ORS 97.948 and 97.949 if a master trustee fails
to file the annual report or the report contains any material discrepancy.
(c) The director may
relieve a master trustee of the duty to file the annual report upon a
determination that the master trustee has performed all obligations under the
trust agreement with each certified provider, or that the master trustee’s
obligations have been lawfully assumed by another person or have been
discharged or canceled.
(3) The director may
conduct an annual audit of a master trustee. The director shall prescribe the
form of audits under this section.
(4) A master trustee who
is audited under this section shall pay all expenses and costs incurred by the
director in conducting the audit.
[(5) The director shall adopt rules necessary to administer this
section. The rules shall identify the specific trust provisions that are the
subject of an audit conducted under this section.]
SECTION 17.
ORS 97.937 is amended to read:
97.937. (1) This section
applies to trust deposits required to be made by endowment care cemeteries
under ORS 97.929.
(2) As used in this
section, “common trust account” means trust funds received by a provider from
two or more purchasers.
(3) All such trust funds
shall be deposited by the provider with a financial institution in the State of
(a) Upon presentation of
proof of the death of the person for whom a prearranged funeral plan is made,
the financial institution shall release [such
trust fund] the principal and accrued income allocable to that person’s
account to the provider.
(b) Upon presentation of
the written request of the purchaser of a revocable trust, the financial institution
shall release [such trust fund] the
principal and accrued income allocable to the purchaser’s account as
directed in such request.
(c) Upon presentation of
proof of the death, dissolution, insolvency or merger with another of the
provider of a revocable trust, the financial institution shall release [such trust fund] the principal and
accrued income allocable to each purchaser’s account to [the] that purchaser.
(d) Upon presentation of
proof of the death, dissolution, insolvency or merger with another of the
provider of an irrevocable trust, the financial institution shall continue to
hold such trust fund subject to the funeral plan trust, and upon appointment of
a successor provider by the purchaser, the purchaser’s legal representative,
the Director of the Department of Consumer and Business Services or a court of
competent jurisdiction, the financial institution shall release such trust fund
to the successor provider only as provided in paragraph (a) of this subsection.
(4) If trust funds are held
in a common trust account under subsection (3) of this section, the provider
shall maintain records showing the purchaser and beneficiary of each individual
trust fund in the account and the allocation to each individual trust fund of
interest earned by the account. The records concerning allocation of
interest must be updated at least annually.
(5) The provider may
appoint a successor depository. The original depository shall only release the
trust funds to the successor depository [except]
as described in subsections (1) to (4) of this section.
(6) The financial
institution [shall in no way be] is
not responsible for the fulfillment of any prearranged funeral plan,
excepting only such financial institution shall release a trust fund as
provided in this section.
(7) The director may
appoint a successor provider upon a determination that the original provider
has ceased to provide the kinds of services and things which the original
provider agreed to provide, that the purchaser or the purchaser’s legal
representative cannot be readily identified or contacted and that the
appointment of a successor provider is appropriate in order to protect the
interests of the trust beneficiaries. Financial institutions holding deposits
of such trust funds shall change their records to reflect such appointment of a
successor provider upon receipt of written notice of the appointment from the
director. Where the director proposes to take such action under this
subsection, the provider being replaced shall be accorded notice and an
opportunity for hearing as provided in ORS chapter 183.
SECTION 18.
ORS 97.939 is amended to read:
97.939. (1) Three copies
of a written sales contract shall be executed for each prearrangement sales
contract or preconstruction sales contract sold by a certified provider. The
certified provider shall retain one copy of the contract and a copy of the
completed contract shall be given to:
(a) The purchaser; and
(b) The depository or
the master trustee, if applicable.
(2) Upon receiving a
trust deposit under ORS 97.941, the master trustee shall sign a copy of the
contract received under subsection (1) of this section, retain a copy for
its files and return the contract to the purchaser.
(3) Each completed
contract shall:
(a) Comply with the plain
language standards described in ORS 180.545 (1);
(b) Be consecutively
numbered;
(c) Have a corresponding
consecutively numbered receipt;
(d) Be preprinted or, if
the certified provider uses a master trustee, be obtained from the master
trustee;
(e) Identify the
purchaser and certified provider who sold the contract;
(f) Specify whether the
contract is a guaranteed contract or a nonguaranteed contract;
(g) Specify the specific
funeral [and] or cemetery
merchandise[, funeral and cemetery] or
services or undeveloped interment[,
entombment or cremation] spaces included and not included in the contract;
and
(h) If a guaranteed
contract, disclose that the certified provider may retain 10 percent of the
sales price.
(4)(a)
Notwithstanding ORS 97.943 (8), in the case of a prearrangement sales contract,
if at the time of [completion of] entering
into the contract, the beneficiary of the contract is a recipient of public
assistance or reasonably anticipates becoming a recipient of public assistance,
the contract may provide that the contract is irrevocable.
(b) The contract
may provide for an election by the beneficiary, or by the purchaser on behalf
of the beneficiary, to make the contract thereafter irrevocable if after the
contract is entered into, the beneficiary becomes eligible or seeks to become
eligible for public assistance.
SECTION 19.
ORS 97.941 is amended to read:
97.941. (1) Upon
receiving anything of value under a prearrangement sales contract or
preconstruction sales contract, the certified provider who sold the contract
shall deposit the following amounts into one or more trust funds maintained
pursuant to ORS 97.923 to 97.949, 97.992, 97.994 and 692.180:
(a) Ninety percent of
the amount received in payment of a guaranteed prearrangement sales contract or
guaranteed preconstruction sales contract. The remaining 10 percent shall be
paid to the provider who sold the contract; or
(b) One hundred percent
of the amount received in payment of a nonguaranteed prearrangement sales
contract or nonguaranteed preconstruction sales contract.
(2) All trust deposits
required by ORS 97.923 to 97.949, 97.992, 97.994 and 692.180 shall be [made] placed in a depository or
delivered to a master trustee within five business days of their receipt.
(3)(a) The trust
deposits [required under ORS 97.923 to
97.949, 97.992, 97.994 and 692.180 shall be placed in a depository as defined
in ORS 97.923. The trust deposits] of a provider that does not use the
services of a master trustee shall be maintained in a depository, except
that the provider [of a prearrangement
sales contract or preconstruction sales contract] may invest the trust
funds in a manner that is, in the opinion of the provider, reasonable and
prudent under the circumstances[,
provided that all investments are].
(b) A provider that
invests trust funds may invest the funds only in:
(A) Certificates of deposit[,];
(B)
(C) Issues of
(D) Guaranteed investment contracts[,]; or
(E) Banker’s acceptances or corporate bonds
rated A or better by Standard & Poor’s Corporation or Moody’s Investors
Service.[, and provided that]
(c) All
investments made under paragraph (b) of this subsection shall be placed
in the custody of the depository in which the trust funds were originally
deposited or any other depository that may qualify under ORS 97.923 to 97.949.
(d)
Prearrangement sales contract trust fund and preconstruction sales contract
trust fund accounts shall be in the name of the provider who sold the contract
under ORS 97.923 to 97.949, 97.992, 97.994 and 692.180.
(4) Funds deposited in
the trust fund account shall be identified in the records of the provider by
the name of the purchaser and beneficiary and adequate records shall be
maintained to allocate all earnings to each prearrangement sales contract or
preconstruction sales contract. Nothing shall prevent the provider from
commingling the deposits in any such trust fund account for purposes of
managing and investing the funds. A common trust fund account shall be
identified by the name of the provider.
(5) When a
prearrangement sales contract or preconstruction sales contract includes rights
of interment[, entombment or cremation,]
and funeral or cemetery merchandise or [funeral
or cemetery] services, the application of payments received under the
contract shall be clearly provided in the contract.
(6) Any person engaging
in prearrangement sales or preconstruction sales who enters into a combination
sale which involves the sale of items subject to trust and any item not subject
to trust shall be prohibited from increasing the sales price of those items not
subject to trust with the purpose of allocating a lesser sales price to items
which require a trust deposit.
(7)(a) A provider may
appoint a successor provider. The depository shall release the trust funds
deposited under ORS 97.923 to 97.949, 97.992, 97.994 and 692.180 and accrued
income only to the successor provider as described in ORS 97.943 and 97.944
or upon presentation of the written request of the purchaser.
(b) If appointing a
successor provider under this subsection, the original provider shall notify
the Director of the Department of Consumer and Business Services of the
proposed change at least 30 days prior to the appointment.
(8)(a) A provider may
appoint a successor depository or a master trustee [that is a depository] as defined in ORS 97.923.
(b) If appointing a
successor depository or master trustee under this subsection, the provider, the
successor depository and the master trustee must notify the director of the
proposed change at least 30 days prior to the appointment.
(9)(a) The director
may appoint a successor certified provider upon a determination that:
(A) The original
certified provider has ceased to provide the services and merchandise that the
original certified provider agreed to provide;
(B) The certificate
issued to the original certified provider has been revoked or surrendered; and
(C) The appointment of a
successor certified provider is appropriate in order to protect the interests
of the purchasers and beneficiaries of prearrangement sales contracts or
preconstruction sales contracts.
(b) Depositories or
master trustees holding deposits of trust funds by the original certified
provider shall change their records to reflect the appointment of a successor
certified provider upon receipt of written notice of the appointment from the
director.
[(9)] (10) The trust fund accounts shall be a single purpose
fund. In the event of the provider’s bankruptcy, the funds and accrued
income shall not be available to any creditor as assets of the provider,
but shall be distributed to the purchasers or managed for their benefit by the
trustee in bankruptcy, receiver or assignee.
[(10)(a)] (11)(a) If the original provider is licensed under
ORS chapter 692 and voluntarily surrenders the license to the State Mortuary
and Cemetery Board, the original provider shall transfer responsibility as
provider under this section to a successor provider who holds a certificate
issued by the director under ORS 97.933.
(b) If the original
provider is not licensed under ORS chapter 692, upon presentation of proof of
the death, dissolution, insolvency or merger with another provider of the
original provider, the depository shall release the prearrangement trust fund
deposits or preconstruction trust fund deposits to the purchaser.
(c) If the original
provider is licensed under ORS chapter 692, upon proof of the death, insolvency
or involuntary surrender of the license of the original provider, the depository
shall release the prearrangement trust fund deposits or preconstruction trust
fund deposits to the purchaser.
[(11)] (12) The purchaser or beneficiary of a prearrangement
sales contract or preconstruction sales contract may be named cotrustee with the
provider with the written consent of the purchaser or beneficiary.
[(12)] (13) A provider who has not appointed a master trustee
shall have an annual audit of all trust account funds performed by an
independent certified public accountant in accordance with generally accepted [audit] accounting procedures. The
provider shall make the audit results available to the director if requested.
[(13)] (14) As used in this section, “common trust fund
account” means trust funds received by a provider from two or more purchasers.
SECTION 20.
ORS 97.943 is amended to read:
97.943. (1) A depository
[shall make no] may not make any
distributions from prearrangement sales contract trust deposits except as
provided in this section.
(2) The principal of a
trust created pursuant to a prearrangement sales contract shall be paid to the
certified provider who sold the contract if the certified provider who sold the
contract swears, by affidavit, that the certified provider has delivered all
merchandise and performed all services required under the prearrangement sales
contract and delivers to the depository one of the following:
(a) A certified death
certificate of the beneficiary; or
(b) A sworn affidavit
signed by the certified provider and by:
(A) One member of the
beneficiary’s family; or
(B) The executor of the
beneficiary’s estate.
(3) The principal of a
trust created pursuant to a prearrangement sales contract shall be paid to the
purchaser if the original provider is no longer qualified to serve as provider
under ORS 97.941 (10).
(4) Upon completion by
the certified provider of the actions described in subsection (2) of this
section, the depository shall pay to the certified provider from the
prearrangement sales contract trust fund an amount equal to the sales price of
the merchandise delivered.
(5) Upon the final
payment to the certified provider of the principal in trust under subsection
(2) of this section, the undistributed earnings of the trust shall be paid to:
(a) The certified
provider who sold the contract if the contract is a guaranteed contract; or
(b) The contract
purchaser, or the purchaser’s estate, if the contract is a nonguaranteed
contract.
(6) The depository may
rely upon the certifications and affidavits made to it under the provisions of
ORS 97.923 to 97.949, 97.992, 97.994 and 692.180, and shall not be liable to
any person for such reliance.
(7) If for any reason a
certified provider who sold the prearrangement sales contract has refused to
comply, or cannot or does not comply with the terms of the prearrangement sales
contract within a reasonable time after the certified provider is required to
do so, the purchaser or heirs or assigns or duly authorized representative of
the purchaser or the beneficiary shall have the right to a refund in the amount
equal to the sales price paid for undelivered merchandise and unperformed
services plus undistributed earnings amounts held in trust attributable to such
contract, within 30 days of the filing of a sworn affidavit with the certified
provider who sold the contract and the depository setting forth the existence
of the contract and the fact of breach. A copy of this affidavit shall be filed
with the Director of the Department of Consumer and Business Services. In the
event a certified provider who has sold a prearrangement sales contract is
prevented from performing by strike, shortage of materials, civil disorder,
natural disaster or any like occurrence beyond the control of the certified
provider, the certified provider’s time for performance shall be extended by
the length of such delay.
(8) Except for an
irrevocable contract described in ORS 97.939 (4), at any time prior to the
death of the beneficiary of a prearrangement sales contract, the purchaser of
the prearrangement sales contract may cancel the contract and shall be entitled
to a refund of all amounts paid on the contract, all amounts in trust
including earnings allocated to the contract that are in excess of all amounts
paid on the contract and unallocated earnings on trust contract amounts from
the date of the last allocation to the date of the refund request, less any
amounts paid for merchandise already delivered or services already performed,
which amounts may be retained by the certified provider as compensation. [100 percent refund of the entire amount paid
on the contract including undistributed earnings attributable to such amount,
but excluding any amount paid for merchandise already delivered, which amount
shall be retained by the certified provider who sold the contract as liquidated
damages.]
(9) Notwithstanding ORS
97.941 (4) and subsection (5) of this section, upon receiving a sworn affidavit
from the master trustee or provider stating that qualifying expenses,
taxes or fees have been incurred, a depository shall allow a master trustee or
provider to pay from earnings of trust fund deposits any expenses, accounting
fees, taxes, depository fees, investment manager fees and other fees as may be
necessary to enable the provider to comply with the reporting required by ORS
97.923 to 97.949, and to perform other services for the trust as may be
authorized by ORS 97.923 to 97.949. Any payment of expenses or fees from
earnings of a trust fund deposit under this subsection shall not:
(a) Exceed an amount
equal to two percent per calendar year of the value of the trust as determined
on the first day of January of each calendar year;
(b) Include the payment
of any fee to the provider in consideration for services rendered as provider;
or
(c) Reduce, diminish or
in any other way lessen the value of the trust fund deposit so that the
services or merchandise provided for under the contract are reduced, diminished
or in any other way lessened.
SECTION 21.
ORS 97.944 is amended to read:
97.944. (1) A depository
[shall make no] may not make any
distributions from preconstruction sales contract trust deposits except as
provided in this section.
(2)(a) The
construction or development of undeveloped interment[, entombment or cremation] spaces shall be commenced on the phase
of construction or development, or the section or sections of spaces in which
sales are made within five years of the date of the first sale. The certified
provider who sold the preconstruction sales contract shall give written notice
including a description of the project to the Director of the Department of
Consumer and Business Services no later than 30 days after the first sale.
(b) Once
commenced, construction or development shall be pursued diligently to
completion. The first phase of construction must be completed within seven
years of the first sale. However, any delay caused by strike, shortage of
materials, civil disorder, natural disaster or any similar occurrence beyond
the control of the certified provider extends the time of completion by the
length of a delay.
(c) If construction or development is not
commenced or completed within the times specified, any contract purchaser may
surrender and cancel the contract and upon cancellation shall be entitled to a
refund of the actual amounts paid toward the purchase price, together with
interest accrued on the amount deposited to the trust. [However, any delay caused by strike,
shortage of materials, civil disorder, natural disaster or any like occurrence
beyond the control of the certified provider shall extend the time of such
completion by the length of such delay.]
(3) Except as otherwise
authorized by this section, every certified provider selling undeveloped spaces
shall provide facilities for temporary interment [or entombment or for cremation] for purchasers or beneficiaries of
contracts who die prior to completion of the space. Such temporary facilities
shall be constructed of permanent materials, and, insofar as practical, be
landscaped and groomed to the extent customary in that community. The heirs,
assigns or personal representative of a purchaser or beneficiary shall not be
required to accept temporary underground interment space where undeveloped
space contracted for was an aboveground entombment or [cremation] inurnment space. In the event that temporary
facilities as described in this subsection are not made available upon the
death of a purchaser or beneficiary, the heirs, assigns or personal
representative is entitled to a refund of the entire sales price paid plus
undistributed interest attributable to such amount while in trust.
(4) If the certified
provider who sold the preconstruction sales contract delivers a completed space
acceptable to the heirs, assigns or personal representative of a purchaser or
beneficiary, other than a temporary facility, in lieu of the undeveloped space
purchased, the certified provider shall provide the depository with a delivery
certificate and all sums deposited under the preconstruction sales contract and
income allocable to that contract shall be paid to the certified provider.
(5) During the
construction or development of interment[,
entombment or cremation] spaces, upon receiving the sworn certification [by] of the certified provider who
sold the preconstruction sales contract and the contractor, the depository shall
disburse from the trust fund the amount equivalent to the cost of performed
labor or delivered materials as certified, not to exceed the amounts
deposited and income allocable to those contracts. A person who executes
and delivers a completion certificate with actual knowledge of a falsity
contained therein shall be considered in violation of ORS 97.923 to 97.949 and
692.180.
(6) Upon completion of
the phase of construction or development, section or sections of the project as
certified to the depository by the certified provider and the contractor, the
trust requirements shall terminate and all funds held in the preconstruction
sales contract trust fund attributable to the completed phase, section or
sections shall be paid to the certified provider who sold the preconstruction
sales contract.
(7) Upon the payment to
a certified provider of preconstruction sales contract trust funds under
subsection (4) or (6) of this section, the undistributed income of the trust
shall be paid to:
(a) The certified provider
who sold the contract if the contract is a guaranteed contract; or
(b) The contract
purchaser, or the purchaser’s estate, if the contract is a nonguaranteed
contract.
(8) If the
preconstruction sales contract purchaser defaults in making payments under an
installment preconstruction sales contract, and default continues for at least
30 days after the purchaser has received written notice of default, the
certified provider who sold the contract may cancel the contract and withdraw
from the trust fund the entire balance of the defaulting purchaser’s account as
[liquidating] liquidated
damages. Upon certification of the default, the depository shall deliver the
balance to the certified provider. The depository may rely on the certification
and affidavits made to it under the provisions of ORS 97.923 to 979.949,
97.992, 97.994 and 692.180 and shall not be liable to any person for such
reliance.
[(9) This section and the trust fund requirements in ORS 97.941 shall
not apply to the sale of undeveloped spaces if there has been any such sale in
the same phase of construction or development or the section or sections of the
project prior to September 27, 1987.]
SECTION 22. Sections
23, 24 and 25 of this 2007 Act are added to and made a part of ORS 97.923 to
97.949.
SECTION 23. (1)
In addition to other actions authorized under ORS 97.948 (2), the Director of
the Department of Consumer and Business Services may:
(a) Issue an emergency
order suspending or restricting a certificate or registration or ordering a
certified provider or master trustee or a person acting as a certified provider
or master trustee to cease and desist from specified conduct; or
(b) Take other action
deemed necessary by the director in the circumstances.
(2) The director shall
promptly provide opportunity for hearing pursuant to ORS chapter 183.
(3) Emergency orders
are:
(a) Effective when
issued;
(b) Reviewable as
provided in ORS 183.480; and
(c) Enforceable in the
courts of this state.
SECTION 24. (1)
The Attorney General, on behalf of the Director of the Department of Consumer
and Business Services, may petition the circuit courts of this state for
appointment of a receiver for a certified provider or person acting as a
certified provider without certification.
(2) If the court
determines that a receivership is necessary or advisable, the court shall
appoint a receiver:
(a) When a receiver
would ensure the orderly and proper conduct of a provider’s professional
business and affairs during or in the aftermath of an administrative proceeding
to revoke or suspend the provider;
(b) When a receiver
would protect the public’s interest and rights in the business, premises or
activities of the provider sought to be placed in receivership;
(c) Upon a showing of
serious and repeated violations of ORS 97.923 to 97.949 demonstrating an
inability or unwillingness to comply with the provisions of ORS 97.923 to
97.949;
(d) When a receiver
would prevent loss, wasting, dissipation, theft or conversion of assets that
should be marshaled and held available for the honoring of obligations under
ORS 97.923 to 97.949; or
(e) When the court
receives proof of other grounds that the court deems good and sufficient for
instituting receivership action concerning the receiver sought to be placed in
receivership.
(3)(a) A receivership
under this section may be temporary or for the winding up and dissolution of a
business, as the director may request and the court determines to be necessary
or advisable in the circumstances.
(b) Venue of
receivership proceedings may be, at the director’s request, in
(c) The director may
expend money from budgeted funds or the Funeral and Cemetery Consumer
Protection Trust Fund to implement a receivership. Any expenditures are a claim
against the estate in the receivership proceedings.
SECTION 25. The
Director of the Department of Consumer and Business Services may adopt rules
that are necessary or appropriate to:
(1) Protect purchasers
of prearrangement sales contracts and preconstruction sales contracts and the
public; and
(2) Administer ORS
97.923 to 97.949.
SECTION 26.
ORS 65.860 is amended to read:
65.860. (1) A nonprofit
corporation organized or existing solely for the purposes of either owning and
operating a cemetery or cremating dead bodies and burying and caring for
incinerate remains may, by its bylaws, provide that a stated percentage of the
money received from the sale of lots and burial space, cremation of bodies,
donations, gifts or other sources of revenue shall constitute an irreducible
fund. Any bylaw enacted for the creation of the irreducible fund cannot be amended
to reduce the fund.
(2) The board of
directors may direct the investment of the money in the irreducible fund, but
all investments of money deposited in the fund on or after January 1, 1972,
shall be in securities in classes and amounts approved by the State Treasurer
and published in a list pursuant to ORS 97.820. If a bank or trust company
qualified to engage in the trust business is directed by the board of directors
to invest the money in the irreducible fund, the bank or trust company shall be
governed by ORS 130.750 to 130.775 and shall not be required to invest the
money according to the list approved by the State Treasurer. An officer of the
corporation shall file with the Director of the Department of Consumer and
Business Services on or before April 15 of each year a verified statement in
duplicate containing the same information pertaining to the irreducible fund as
provided in ORS 97.810 [(3)] (4)
regarding endowment care funds. The director may require the corporation to
file, as often as the director considers it to be necessary, a detailed report
of the conditions and assets of the irreducible fund.
(3) The interest or
income arising from the irreducible fund provided for in this section or by any
bylaws, or so much thereof as is necessary, shall be devoted exclusively to the
preservation and embellishment of the grounds, buildings and property of the
corporation and the lots and space in buildings or grounds sold to the members
of the corporation, or to the payment of the interest or principal of the debts
authorized by subsection (5) of this section for the purchase of land, erecting
buildings, and improvements. Any surplus thereof not needed or used for such
purposes shall be invested as provided in this section and shall become part of
the irreducible fund.
(4) After paying for the
land and the erection of the original buildings and improvements thereon, all
the future receipts and income of the corporation subject to the provisions in
this section relating to the creation of an irreducible fund, whether from the
sale of lots and burial space, cremation of bodies, donations, gifts and other
sources, shall be applied exclusively to laying out, preserving, protecting,
embellishing and beautifying the cemetery or the crematory and grounds thereof,
and the avenues leading thereto, and to the erection of such buildings and
improvements as may be necessary or convenient for cemetery or crematory
purposes, and to pay the necessary expenses of the corporation.
(5) No debts shall be
contracted by such corporation in anticipation of any future receipts, except
for originally purchasing the lands authorized to be purchased by it, laying
out and embellishing the grounds and avenues, erecting buildings and vaults on
such land, and improving them for the purposes of the corporation. The
corporation may issue bonds or notes for debts so contracted and may secure
them by way of mortgage upon any of its lands, buildings, property and
improvements excepting lots or space conveyed to the members.
SECTION 27.
ORS 646.551 is amended to read:
646.551. As used in ORS
646.551 to 646.557, unless the context requires otherwise:
(1) “Telephonic seller”
means a person who, on the person’s own behalf, or on behalf of another person,
causes or attempts to cause a telephone solicitation to be made under the
following circumstances:
(a) The person initiates
telephonic contact with a prospective purchaser and represents or implies any
of the following:
(A) That a prospective
purchaser who buys one or more goods or services unit will receive additional
units, whether or not of the same type as purchased, without further cost. As
used in this subparagraph, “further cost” does not include actual postage or
common carrier delivery charges, if any;
(B) That a prospective purchaser
will receive a prize or gift if the person also encourages the prospective
purchaser to do either of the following:
(i) Purchase or rent any
goods or services; or
(ii) Pay any money,
including, but not limited to a delivery or handling charge;
(C) That a prospective
purchaser who buys goods or services, because of some unusual event or imminent
price increase, will be able to buy these items at prices which are below those
usually charged or will be charged for those items;
(D) That the seller is a
person other than the actual seller;
(E) That the items for
sale or rent are manufactured or supplied by a person other than the actual
manufacturer or supplier; or
(F) That the items for
sale are gold, silver or other precious metals, diamonds, rubies, sapphires or
other precious stones or any interest in oil, gas or mineral fields, wells or
exploration sites; or
(b) The telephone
solicitation is made by the person in response to inquiries from prospective
purchasers generated by advertisement, on behalf of the person and the
solicitation is conducted as described in paragraph (a) of this subsection.
(2) “Telephonic seller”
does not include any of the following:
(a) A person selling a
security as defined in ORS 59.015, or securities which are exempt under ORS
59.025.
(b) A person licensed
pursuant to ORS chapter 696 when the transaction is governed by that chapter.
(c) A person licensed
pursuant to ORS 701.055 when the solicited transaction is governed by ORS
chapter 701.
(d) A person licensed pursuant
to ORS chapter 744 when the solicited transaction is governed by the Insurance
Code.
(e) A person soliciting
the sale of a franchise when the solicited transaction is governed by ORS
650.005 to 650.100.
(f) A person primarily
soliciting the sale of a subscription to or advertising in a newspaper of
general circulation.
(g) A person primarily
soliciting the sale of a magazine or periodical, or contractual plans,
including book or record clubs:
(A) Under which the
seller provides the consumer with a form which the consumer may use to instruct
the seller not to ship the offered merchandise, and which is regulated by the
Federal Trade Commission trade regulation concerning “Use of Negative Option
Plans by Sellers in Commerce”; or
(B) Using arrangements
such as continuity plans, subscription arrangements, standing order
arrangements, supplements and series arrangements under which the seller
periodically ships merchandise to a consumer who has consented in advance to
receive such merchandise on a periodic basis.
(h) A person soliciting
business from prospective purchasers who have previously purchased from the
business enterprise for which the person is calling.
(i) A person soliciting
without the intent to complete and who does not complete the sales presentation
during the telephone solicitation and who only completes the sale presentation
at a later face-to-face meeting between the solicitor and the prospective
purchaser, unless at that later meeting the solicitor collects or attempts to
collect payment for delivery of items purchased.
(j) Any supervised
financial institution or parent, subsidiary, or affiliate thereof. As used in
this paragraph, “supervised financial institution” means any financial
institution or trust company, as those terms are defined in ORS 706.008, or any
personal property broker, consumer finance lender, commercial finance lender or
insurer that is subject to regulation by an official or agency of this state or
the
(k) A person soliciting
the sale of funeral or burial services regulated [by ORS 59.670 and 59.680 or] by ORS chapter 692.
(L) A person soliciting
the sale of services provided by a cable television system operating under
authority of a franchise or permit issued by a governmental agency of this state,
or subdivision thereof.
(m) A person or
affiliate of a person whose business is regulated by the Public Utility
Commission, or a telecommunications utility with access lines of 15,000 or less
or a cooperative telephone association.
(n) A person soliciting
the sale of a farm product, as defined in ORS 79.0102, if the solicitation does
not result in a sale which costs the purchaser in excess of $100.
(o) An issuer or a
subsidiary of an issuer that has a class of securities that is subject to
section 12 of the Securities Exchange Act of 1934 and that is either registered
or exempt from registration under paragraph (A), (B), (C), (E), (F), (G) or (H)
of subsection (g) of that section.
(p) A person soliciting
exclusively the sale of telephone answering services to be provided by that
person or that person’s employer.
(q) A person registered
under the Charitable Solicitations Act.
SECTION 28. ORS
59.660, 59.670, 59.680, 59.690 and 59.700 are repealed.
Approved by the Governor June 27, 2007
Filed in the office of Secretary of State June 27, 2007
Effective date January 1, 2008
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