General Assembly: 81 (2005 Regular GA) - Chapter 128 - Regulation of cemeteries


Published: 2005-05-12

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332LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSIONCH. 128

CH. 128CH. 128

CHAPTER 128

REGULATION OF CEMETERIES

H.F. 836

AN ACT relating to cemeteries and cemetery regulation, providing administration and en- forcement procedures, establishing requirements for interment rights agreements and re- porting, establishing and appropriating fees, and providing penalties.

Be It Enacted by the General Assembly of the State of Iowa:

Section1. Section331.325, subsections 2and3,Code2005, are amended to readas follows: 2. Each county board of supervisorsmayadopt anordinance assuming jurisdiction andcon-

trol of pioneer cemeteries in the county. The board shall exercise the powers and duties of township trustees relating to the maintenance and repair of cemeteries in the county as pro- vided in sections 359.28 through 359.41 359.40 except that the board shall not certify a tax levy pursuant to section 359.30 or 359.33 and except that the maintenance and repair of all ceme- teries under the jurisdiction of the county including pioneer cemeteries shall be paid from the county general fund. Themaintenance and improvement programfor apioneer cemeterymay include restoration and management of native prairie grasses and wildflowers. 3. In lieu of management of the cemeteries, the board of supervisors may create, by ordi-

nance, a cemetery commission to assume jurisdiction and management of the pioneer ceme- teries in the county. The ordinance shall delineate the number of commissioners, the appoint- ing authority, the term of office, officers, employees, organizational matters, rules of pro- cedure, compensation and expenses, and other matters deemed pertinent by the board. The boardmay delegate any power andduties relating to cemeterieswhichmayotherwise be exer- cised by township trustees pursuant to sections 359.28 through 359.41 359.40 to the cemetery commission except the commission shall not certify a tax levy pursuant to section 359.30 or 359.33 and except that the expenses of the cemetery commission shall be paid from the county general fund.

Sec. 2. Section 331.502, subsection 34, Code 2005, is amended to read as follows: 34. Serve as a trustee for funds of a cemetery association as provided in sections 566.12 and

566.13 section 523I.505.

Sec. 3. Section 523A.203, subsection 6, paragraph b, Code 2005, is amended to read as fol- lows: b. Use any funds required to be held in trust under this chapter or chapter 566A to purchase

an interest in any contract or agreement to which a seller is a party.

Sec. 4. Section 523A.812, Code 2005, is amended to read as follows: 523A.812 INSURANCE DIVISION REGULATORY FUND. The insurance divisionmay authorize the creation of a special revenue fund in the state trea-

sury, to be known as the insurance division regulatory fund. The commissioner shall allocate annually from the fees paid pursuant to section 523A.204, twodollars for each purchase agree- ment reported on an establishment permit holder’s annual report for deposit to the regulatory fund. The remainder of the fees collected pursuant to section 523A.204 shall be deposited into the general fund of the state. The commissioner shall also allocate annually the audit fees paid pursuant to section 523A.814 for deposit to the regulatory fund. Themoneys in the regulatory fund shall be retained in the fund. Themoneys are appropriated and, subject to authorization by the commissioner,may be used to pay auditors, audit expenses, investigative expenses, the expenses of mediation ordered by the commissioner, consumer education expenses, the ex- pensesof a toll-free telephone line to receive consumer complaints, and the expensesof receiv-

333 LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSION CH. 128

erships established under section 523A.811. An annual allocation to the regulatory fund shall not be imposed if the current balance of the fund exceeds two hundred thousand dollars.

Sec. 5. NEW SECTION. 523A.814 AUDIT FEE. In addition to the filing feepaidpursuant to section523A.204, subsection5, an establishment

filing an annual report shall pay an audit fee in the amount of five dollars for each purchase agreement subject to a filing fee that is sold between July 1, 2005, and December 31, 2007.

SUBCHAPTER 1 SHORT TITLE, DEFINITIONS, AND APPLICABILITY

Sec. 6. NEW SECTION. 523I.101 SHORT TITLE. This chapter may be cited as the “Iowa Cemetery Act”.

Sec. 7. NEW SECTION. 523I.102 DEFINITIONS. For purposes of this chapter, unless the context otherwise requires: 1. “Authorized to do business within this state”means a person licensed, registered, or sub-

ject to regulation by an agency of the state of Iowa or who has filed a consent to service of pro- cess with the commissioner for purposes of this chapter. 2. “Burial site” means any area, except a cemetery, that is used to inter or scatter remains. 3. “Capital gains” means appreciation in the value of trust assets for which a market value

may be determined with reasonable certainty after deduction of investment losses, taxes, ex- penses incurred in the sale of trust assets, any costs of the operation of the trust, and any annu- al audit fees. 4. “Care fund” means funds set aside for the care of a perpetual care cemetery, including

all of the following: a. Money or real or personal property impressed with a trust by the terms of this chapter. b. Contributions in the form of a gift, grant, or bequest. c. Any accumulated income that the trustee of the fund or the cemetery allocates to princi-

pal. 5. “Casket”meansa rigid containerwhich isdesigned for the encasement of humanremains

and which is usually constructed of wood, metal, fiberglass, plastic, or likematerial and orna- mented and lined with fabric. 6. “Cemetery”means any area that is or was open to use by the public in general or any seg-

ment thereof and is used or is intended to be used to inter or scatter remains. “Cemetery” does not include the following: a. A private burial site where use is restricted tomembers of a family, if the interment rights

are conveyed without a monetary payment, fee, charge, or other valuable form of compensa- tion or consideration. b. A private burial site where use is restricted to a narrow segment of the public, if the inter-

ment rights are conveyed without a monetary payment, fee, charge, or other valuable form of compensation or consideration. c. A pioneer cemetery. 7. “Columbarium”means a structure, room, or space in amausoleumor other building con-

taining niches or recesses for disposition of cremated remains. 8. “Commissioner” means the commissioner of insurance or the deputy administrator au-

thorized in section 523A.801 to the extent the commissioner delegates functions to the deputy administrator. 9. “Commonbusiness enterprise”means a group of two ormore business entities that share

common ownership in excess of fifty percent. 10. “Disinterment” means to remove human remains from their place of final disposition. 11. “Doing business in this state” means issuing or performing wholly or in part any term

of an interment rights agreement executed within the state of Iowa. 12. “Financial institution”meansa state or federally insuredbank, savingsand loanassocia-

334LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSIONCH. 128

tion, credit union, trust department thereof, or a trust company that is authorized to do busi- ness within this state, that has been granted trust powers under the laws of this state or the United States, and that holds funds under a trust agreement. “Financial institution” does not include a cemetery or any person employed by or directly involved with a cemetery. 13. “Garden”means an areawithin a cemetery established by the cemetery as a subdivision

for organizational purposes, not for sale purposes. 14. “Grave space”means a space of ground in a cemetery that is used or intended to be used

for an in-ground burial. 15. “Gross selling price” means the aggregate amount a purchaser is obligated to pay for

interment rights, exclusive of finance charges. 16. “Inactive cemetery” means a cemetery that is not operating on a regular basis, is not of-

fering to sell or provide interments or other services reasonably necessary for interment, and does not provide or permit reasonable ingress or egress for the purposes of visiting interment spaces. 17. “Income” means the return in money or property derived from the use of trust principal

after deduction of investment losses, taxes, and expenses incurred in the sale of trust assets, any cost of the operation of the trust, and any annual audit fees. “Income” includes but is not limited to: a. Rent of real or personal property, including sums received for cancellation or renewal of

a lease and any royalties. b. Interest onmoney lent, including sums received as consideration for prepayment of prin-

cipal. c. Cash dividends paid on corporate stock. d. Interest paid on deposit funds or debt obligations. e. Gain realized from the sale of trust assets. 18. “Insolvent” means the inability to pay debts as they become due in the usual course of

business. 19. “Interment rights” means the rights to place remains in a specific location for use as a

final resting place or memorial. 20. “Interment rights agreement” means an agreement to furnishmemorials, memorializa-

tion, opening and closing services, or interment rights. 21. “Interment space” means a space used or intended to be used for the interment of re-

mains including, but not limited to, a grave space, lawn crypt, mausoleum crypt, and niche. 22. “Lawn crypt” means a preplaced enclosed chamber, which is usually constructed of re-

inforced concrete and poured in place, or a precast unit installed in quantity, either side-by- side or at multiple depths, and covered by earth or sod. 23. “Lot” means an area in a cemetery containing more than one interment space which is

uniquely identified by an alphabetical, numeric, or alphanumerical identification system. 24. “Maintenance fund” means funds set aside for the maintenance of a nonperpetual care

cemetery, including all of the following: a. Money or real or personal property impressed with a trust by the terms of this chapter. b. Contributions in the form of a gift, grant or bequest. c. Any accumulated income that the trustee of the fund or the cemetery allocates to princi-

pal. 25. “Mausoleum”means an aboveground structure designed for the entombment of human

remains. 26. “Mausoleum crypt” means a chamber in a mausoleum of sufficient size to contain cas-

keted human remains. 27. “Memorial” means any product, including any foundation 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, amonument,marker, nicheplate, urn gar- den plaque, crypt plate, cenotaph, marker bench, and vase. 28. “Memorial care”means any care providedor to beprovided for the generalmaintenance

of memorials including foundation repair or replacement, resetting or straightening tipped

335 LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSION CH. 128

memorials, repairing or replacing inadvertently damagedmemorials and any other care clear- ly specified in the purchase agreement. 29. “Memorial dealer” means any person offering or selling memorials retail to the public. 30. “Memorialization” means any permanent system designed to mark or record the name

and other data pertaining to a decedent. 31. “Merchandise” means any personal property offered or sold for use in connection with

the funeral, final disposition, memorialization, or interment of human remains, but which is exclusive of interment rights. 32. “Neglected cemetery” means a cemetery where there has been a failure to cut grass or

weeds or care for graves, memorials or memorialization, walls, fences, driveways, and build- ings, or for which proper records of interments have not been maintained. 33. “Niche” means a recess or space in a columbarium or mausoleum used for placement

of cremated human remains. 34. “Opening and closing services” means one or more services necessarily or customarily

provided in connectionwith the interment or entombment of human remains or a combination thereof. 35. “Operating a cemetery”means offering to sell or selling interment rights, or any service

or merchandise necessarily or customarily provided for a funeral, or for the entombment or cremation of a dead human, or any combination thereof, including but not limited to opening and closing services, caskets, memorials, vaults, urns, and interment receptacles. 36. “Outer burial container” means any container which is designed for placement in the

ground around a casket or an urn including, but not limited to, containers commonly known as burial vaults, urn vaults, grave boxes, grave liners, and lawn crypts. 37. “Perpetual care cemetery” includes all of the following: a. Any cemetery that was organized or commenced business in this state on or after July 1,

1995. b. Any cemetery that has established a care fund in compliance with section 523I.810. c. Any cemetery that represents that it is a perpetual care cemetery in its interment rights

agreement. d. Any cemetery that represents in any othermanner that the cemetery provides perpetual,

permanent, or guaranteed care. 38. “Person” means an individual, firm, corporation, partnership, joint venture, limited li-

ability company, association, trustee, government or governmental subdivision, agency, or other entity, or any combination thereof. 39. “Pioneer cemetery” means a cemetery where there were six or fewer burials in the pre-

ceding fifty years. 40. “Purchaser” means a person who purchases memorials, memorialization, opening and

closing services, scattering services, interment rights, or a combination thereof. A purchaser need not be a beneficiary of the interment rights agreement. 41. “Relative” means a great-grandparent, grandparent, father, mother, spouse, child,

brother, sister, nephew, niece, uncle, aunt, first cousin, second cousin, third cousin, or grand- child connected to a person by either blood or affinity. 42. “Religious cemetery” means a cemetery that is owned, operated, or controlled by a rec-

ognized church or denomination, or a cemetery designated as such in theOfficial Catholic Di- rectory on file with the insurance division or in a similar publication of a recognized church or denomination, or a cemetery that the commissioner determines is operating as a religious cemetery upon reviewof an application by the cemetery that includes a description of the cem- etery’s affiliation with a recognized church or denomination, the extent to which the affiliate organization is responsible for the financial and contractual obligations of the cemetery, or the provision of the Internal Revenue Code, if any, that exempts the cemetery from the payment of federal income tax. 43. “Relocation” means the act of taking remains from the place of interment or the place

where the remains are being held to another designated place. 44. “Remains” means the body of a deceased human or a body part, or limb that has been

336LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSIONCH. 128

removed from a living human, including a body, body part, or limb in any stage of decomposi- tion, or cremated remains. 45. “Scattering services provider” means a person in the business of scattering human cre-

mated remains. 46. “Seller” means a person doing business within this state, including a person doing busi-

ness within this state who advertises, sells, promotes, or offers to furnish memorials, memo- rialization, opening and closing services, scattering services or interment rights, or a combina- tion thereof, whether the transaction is completed or offered in person, through themail, over the telephone, by the internet, or through any other means of commerce. 47. “Special care” means any care provided or to be provided that supplements or exceeds

the requirements of this chapter in accordance with the specific directions of any donor of funds for such purposes. 48. “Undeveloped space” means a designated area or building within a cemetery that has

been mapped and planned for future development but is not yet fully developed.

Sec. 8. NEW SECTION. 523I.103 APPLICABILITY OF CHAPTER. 1. This chapter applies to all of the following: a. All cemeteries, except religious cemeteries that commenced business prior to July 1,

2005. b. All persons advertising or offeringmemorials,memorialization, opening and closing ser-

vices, scattering services at a cemetery, interment rights, or a combination thereof for sale. c. Interments made in areas not dedicated as a cemetery, by a person other than the state

archaeologist. 2. This chapter applieswhenapurchaseagreement is executedwithin this state or anadver-

tisement, promotion, or offer to furnishmemorials,memorialization, opening and closing ser- vices, scattering services, interment rights, or a combination thereof ismade or acceptedwith- in this state. An offer to furnish memorials, memorialization, opening and closing services, scattering services, interment rights, or a combination thereof ismadewithin this state,wheth- er or not either party is then present in this state, when the offer originates from this state or is directed by the offeror to this state and received by the offeree in this state through themail, over the telephone, by the internet, or through any other means of commerce. 3. If a foreign person does not have a registered agent or agents in the state of Iowa, doing

business within this state shall constitute the person’s appointment of the secretary of state of the state of Iowa to be its true and lawful attorney upon whommay be served all lawful pro- cess of original notice in actions or proceedings arising or growing out of any contract or tort.

SUBCHAPTER 2 ADMINISTRATION AND ENFORCEMENT

Sec. 9. NEW SECTION. 523I.201 ADMINISTRATION. 1. This chapter shall be administered by the commissioner. The deputy administrator ap-

pointed pursuant to section 523A.801 shall be the principal operations officer responsible to the commissioner for the routine administration of this chapter and management of the ad- ministrative staff. In the absence of the commissioner, whether because of vacancy in the of- fice due to absence, physical disability, or other cause, the deputy administrator shall, for the time being, have and exercise the authority conferred upon the commissioner. The commis- sioner may by order from time to time delegate to the deputy administrator any or all of the functions assigned to the commissioner in this chapter. The deputy administrator shall em- ploy officers, attorneys, accountants, and other employees as needed for administering this chapter. 2. It is unlawful for the commissioner or any administrative staff to use for personal benefit

any information which is filed with or obtained by the commissioner and which is not made public. This chapter does not authorize the commissioner or any staff member to disclose any such information except among themselves or to other cemetery and funeral administrators,

337 LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSION CH. 128

regulatory authorities, or governmental agencies, orwhen necessary and appropriate in a pro- ceeding or investigation under this chapter or as required by chapter 22. This chapter neither createsnorderogates anyprivileges that exist at common laworotherwisewhendocumentary or other evidence is sought under a subpoena directed to the commissioner or any administra- tive staff.

Sec. 10. NEW SECTION. 523I.202 INVESTIGATIONS AND SUBPOENAS. 1. The commissioner may, for the purpose of discovering a violation of this chapter, or im-

plementing rules or orders issued under this chapter do any of the following: a. Make such public or private investigations within or outside of this state as the commis-

sioner deems necessary to determine whether any person has violated or is about to violate this chapter, or implementing rules or orders issuedunder this chapter, or to aid in the enforce- ment of this chapter, or in the prescribing of rules and forms under this chapter. b. Require or permit any person to file a statement in writing, under oath or otherwise as

the commissioner or attorney general determines, as to all the facts and circumstances con- cerning the matter being investigated. c. Notwithstanding chapter 22, keep confidential the information obtained in the course of

an investigation. However, if the commissioner determines that it is necessary or appropriate in the public interest or for the protection of the public, the commissionermay share informa- tion with other administrators, regulatory authorities, or governmental agencies, or may pub- lish information concerning a violation of this chapter, or implementing rules or orders issued under this chapter. d. Investigate a cemetery and examine the books, accounts, papers, correspondence,mem-

oranda, purchase agreements, files, or other documents or records of the cemetery. e. Administer oaths and affirmations, subpoena witnesses, compel their attendance, take

evidence, and require the production of any books, accounts, papers, correspondence,memo- randa, purchase agreements, files, or other documents or records which the commissioner deems relevant or material to any investigation or proceeding under this chapter and imple- ment rules, all of which may be enforced under chapter 17A. f. Apply to the district court for an order requiring a person’s appearance before the com-

missioner or attorney general, or a designee of either or both, in cases where the person has refused to obey a subpoena issued by the commissioner or attorney general. The person may also be required to produce documentary evidence germane to the subject of the investigation. Failure to obey a court order under this subsection constitutes contempt of court. 2. The commissioner may issue and bring an action in district court to enforce subpoenas

within this state at the request of an agency or administrator of another state, if the activity constituting an alleged violation for which the information is sought would be a violation of this chapter had the activity occurred in this state.

Sec. 11. NEW SECTION. 523I.203 CEASE AND DESIST ORDERS — INJUNCTIONS. If it appears to the commissioner that a person has engaged or is about to engage in an act

or practice constituting a violation of this chapter, or implementing rules or orders issued un- der this chapter, the commissioner or the attorney general may do any of the following: 1. Issue a summary order directed to the person that requires the person to cease and desist

from engaging in such an act or practice. A person may request a hearing within thirty days of issuanceof the summaryorder. If ahearing isnot timely requested, the summary order shall become final by operation of law. The order shall remain effective from the date of issuance until thedate theorderbecomes final by operationof lawor is overturnedbyapresidingofficer following a request for hearing. Section 17A.18A is inapplicable to summary cease and desist orders issued under this section. 2. Bring an action in the district court in any county of the state for an injunction to restrain

a person subject to this chapter and any agents, employees, or associates of the person from engaging in conduct or practices deemed contrary to the public interest. In any proceeding for an injunction, the commissioner or attorney general may apply to the court for a subpoena

338LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSIONCH. 128

to require the appearance of a defendant and the defendant’s agents, employees, or associates and for the production of any books, accounts, papers, correspondence, memoranda, pur- chase agreements, files, or other documents or records germane to the hearing upon the peti- tion for an injunction. Upon a proper showing, a permanent or temporary injunction, restrain- ing order, or writ of mandamus shall be granted and a receiver may be appointed for the defendant or the defendant’s assets. The commissioner or attorney general shall not be re- quired to post a bond.

Sec. 12. NEW SECTION. 523I.204 COURT ACTION FOR FAILURE TO COOPERATE. 1. If a person fails or refuses to file a statement or report or to produce any books, accounts,

papers, correspondence, memoranda, purchase agreements, files, or other documents or rec- ords, or to obey a subpoena issued by the commissioner, the commissionermay refer themat- ter to the attorney general, whomay apply to a district court to enforce compliance. The court may order any or all of the following: a. Injunctive relief restrictingor prohibiting theoffer or sale ofmemorials,memorialization,

opening and closing services, scattering services, interment rights, or a combination thereof. b. Production of documents or records including but not limited to books, accounts, papers,

correspondence, memoranda, purchase agreements, files, or other documents or records. c. Such other relief as may be required. 2. A court order issued pursuant to subsection 1 is effective until the person files the state-

ment or report or produces the documents requested, or obeys the subpoena.

Sec. 13. NEWSECTION. 523I.205 PROSECUTIONFORVIOLATIONSOF LAW—CIVIL PENALTIES. 1. A violation of this chapter or rules adopted or orders issued under this chapter is a viola-

tion of section 714.16, subsection 2, paragraph “a”. The remedies and penalties provided by section 714.16, including but not limited to injunctive relief and penalties, apply to violations of this chapter. 2. If the commissioner believes that grounds exist for the criminal prosecution of persons

subject to this chapter for violations of this chapter or any other law of this state, the commis- sioner may forward to the attorney general or the county attorney the grounds for the belief, including all evidence in the commissioner’s possession, so that the attorney general or the county attorney may proceed with the matter as deemed appropriate. At the request of the attorney general, the county attorney shall appear and prosecute the action when brought in the county attorney’s county. 3. A person who violates a provision of this chapter or rules adopted or orders issued under

this chapter may be subject to civil penalties in addition to criminal penalties. The commis- sioner may impose, assess, and collect a civil penalty not exceeding ten thousand dollars for each violation. For the purposes of computing the amount of each civil penalty, each day of a continuing violation constitutes a separate violation. All civil penalties collected pursuant to this section shall be deposited in the general fund of the state.

Sec. 14. NEW SECTION. 523I.206 COOPERATION WITH OTHER AGENCIES. 1. The commissionermay cooperate with any governmental law enforcement or regulatory

agency to encourage uniform interpretation and administration of this chapter and effective enforcement of this chapter and effective regulation of the sale of memorials, memorializa- tion, and cemeteries. 2. Cooperation with other agencies may include but is not limited to: a. Making a joint examination or investigation. b. Holding a joint administrative hearing. c. Filing and prosecuting a joint civil or administrative proceeding. d. Sharing and exchanging personnel. e. Sharing and exchanging relevant information and documents. f. Formulating, in accordance with chapter 17A, rules or proposed rules onmatters such as

statements of policy, regulatory standards, guidelines, and interpretive opinions.

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Sec. 15. NEW SECTION. 523I.207 RULES, FORMS, AND ORDERS. 1. Under chapter 17A, the commissioner may from time to time make, amend, and rescind

such rules, forms, and orders as are necessary or appropriate for the protection of purchasers and the public and to administer the provisions of this chapter, its implementing rules, and or- ders issued under this chapter. 2. A rule, form, or order shall not bemade, amended, or rescinded unless the commissioner

finds that the action is necessary or appropriate to protect purchasers and the public and is consistent with the policies and provisions of this chapter, its implementing rules, and orders issued under this chapter. 3. A provision of this chapter imposing any liability does not apply to an act done or omitted

in good faith in conformity with any rule, form, or order of the commissioner.

Sec. 16. NEW SECTION. 523I.208 DATE OF FILING — INTERPRETIVE OPINIONS. 1. A document is filed when it is received by the commissioner. 2. Requests for interpretive opinions may be granted in the commissioner’s discretion.

Sec. 17. NEW SECTION. 523I.209 MISLEADING FILINGS. It is unlawful for a person tomake or cause to bemade, in any document filed with the com-

missioner, or in any proceeding under this chapter, any statement of material fact which is, at the time and in the light of the circumstances under which it is made, false or misleading, or, in connection with such statement, to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading.

Sec. 18. NEW SECTION. 523I.210 MISREPRESENTATIONS OF GOVERNMENT AP- PROVAL. It is unlawful for a seller under this chapter to represent or imply in anymanner that the sell-

er has been sponsored, recommended, or approved, or that the seller’s abilities or qualifica- tions have in any respect been passed upon by the commissioner.

Sec. 19. NEW SECTION. 523I.211 FRAUDULENT PRACTICES. A personwho commits any of the following acts commits a fraudulent practicewhich is pun-

ishable as provided in chapter 714: 1. Knowingly fails to comply with any requirement of this chapter. 2. Knowinglymakes, causes tobemade, or subscribes to a false statement or representation

in a report or other document required under this chapter, or implementing rules or orders, or renders such a report or document misleading through the deliberate omission of informa- tion properly belonging in the report or document. 3. Conspires to defraud in connectionwith the sale ofmemorials,memorialization, opening

and closing services, scattering services, interment rights, or a combination thereof under this chapter. 4. Fails to deposit funds under this chapter or withdraws funds in a manner inconsistent

with this chapter. 5. Knowingly sells memorials, memorialization, opening and closing services, scattering

services, interment rights, or a combination thereof without the permits required under this chapter. 6. Deliberately misrepresents or omits a material fact relative to the sale of memorials, me-

morialization, opening and closing services, scattering services, interment rights, or a com- bination thereof.

Sec. 20. NEW SECTION. 523I.212 RECEIVERSHIPS. 1. The commissioner shall notify the attorney general of the potential need for establish-

ment of a receivership if the commissioner finds that a cemetery subject to this chapter meets one or more of the following conditions:

340LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSIONCH. 128

a. Is insolvent. b. Has utilized trust funds for personal or business purposes in a manner inconsistent with

this chapter. c. The amount held in trust in a maintenance fund or care fund is less than the amount re-

quired by this chapter. 2. The commissioner or attorney generalmay apply to the district court in any county of the

state for the establishment of a receivership. Upon proof that any of the conditions described in this section have occurred, the court may grant a receivership.

Sec. 21. NEW SECTION. 523I.213 INSURANCE DIVISION’S ENFORCEMENT FUND. A special revenue fund in the state treasury, to be knownas the insurance division’s enforce-

ment fund, is created under the authority of the commissioner. The commissioner shall allo- cate annually from the audit fees paid pursuant to section 523I.808, an amount not exceeding fifty thousand dollars, for deposit to the insurance division’s enforcement fund. The moneys in the enforcement fund shall be retained in the fund. Themoneys are appropriated and, sub- ject to authorization by the commissioner, shall be used to pay auditors, audit expenses, inves- tigative expenses, the expenses of consumer education, compliance, and education programs for filers and other regulated persons, and educational or compliance programmaterials, the expenses of a toll-free telephone line for consumer complaints, and the expenses of receiver- ships of perpetual care cemeteries established under section 523I.212.

Sec. 22. NEW SECTION. 523I.214 VIOLATIONS OF LAW — REFERRALS TO THE DE- PARTMENT OF PUBLIC HEALTH. If the commissioner discovers a violation of a provision of this chapter or any other state law

or rule concerning the disposal or transportation of human remains, the commissioner shall forward all evidence in the possession of the commissioner concerning such a violation to the department of public health for such proceedings as the department of public health deems appropriate.

SUBCHAPTER 3 CEMETERY MANAGEMENT

Sec. 23. NEW SECTION. 523I.301 DISCLOSURE REQUIREMENTS — PRICES AND FEES. 1. A cemetery shall disclose, prior to the sale of interment rights, whether opening and clos-

ing of the interment space is included in the purchase of the interment rights. If opening and closing services are not included in the sale and the cemetery offers opening and closing ser- vices, the cemeterymust disclose that theprice for this service is subject to changeanddisclose the current prices for opening and closing services provided by the cemetery. 2. The cemetery shall fully disclose all fees required for interment, entombment, or inurn-

ment of human remains. 3. A person owning interment rights may sell those rights to third parties. The cemetery

shall fully disclose, in the cemetery’s rules, any requirements necessary to transfer title of in- terment rights to a third party.

Sec. 24. NEW SECTION. 523I.302 INSTALLATIONOFOUTER BURIAL CONTAINERS. A cemetery shall provide services necessary for the installation of outer burial containers

or other similarmerchandise sold by the cemetery. This section shall not require the cemetery to provide for opening and closing of interment or entombment space, unless an agreement executed by the cemetery expressly provides otherwise.

Sec. 25. NEW SECTION. 523I.303 ACCESS BY FUNERAL DIRECTORS. A cemetery shall not deny access to a licensed funeral director who is conducting funeral

services or supervising the interment or disinterment of human remains.

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Sec. 26. NEW SECTION. 523I.304 RULEMAKING AND ENFORCEMENT. 1. A cemeterymay adopt, amend, and enforce rules for the use, care, control, management,

restriction, and protection of the cemetery, as necessary for the proper conduct of the business of the cemetery, including, but not limited to, the use, care, and transfer of any interment space or right of interment. 2. A cemeterymay restrict and limit the use of all property within the cemetery by rules that

do, but are not limited to doing, all of the following: a. Prohibit the placement of memorials or memorialization, buildings, or other types of

structures within any portion of the cemetery. b. Regulate the uniformity, class, and kind of memorials and memorialization and struc-

tures within the cemetery. c. Regulate the scattering or placement of cremated remains within the cemetery. d. Prohibit or regulate the placement of nonhuman remains within the cemetery. e. Prohibit or regulate the introduction or care of trees, shrubs, and other types of plants

within the cemetery. f. Regulate the right of third parties to open, prepare for interment, and close interment

spaces. g. Prohibit interment in any part of the cemetery not designated as an interment space. h. Prevent the use of space for any purpose inconsistent with the use of the property as a

cemetery. 3. A cemetery shall not adopt or enforce a rule that prohibits interment because of the race,

color, or national origin of a decedent. A provision of a contract or a certificate of ownership or other instrument conveying interment rights that prohibits interment in a cemetery because of the race, color, or national origin of a decedent is void. 4. A cemetery’s rules shall be plainly printed or typewritten and maintained for inspection

in the office of the cemetery or, if the cemetery does not have an office, in another suitable place within the cemetery. The cemetery’s rules shall be provided to owners of interment spaces upon request. 5. A cemetery’s rules shall specify the cemetery’s obligations in the event that interment

spaces, memorials, or memorialization are damaged or defaced by acts of vandalism. The rulesmay specify amultiyear restorationof an interment space, or amemorial ormemorializa- tion when the damage is extensive or when money available from the cemetery’s trust fund is inadequate to complete repairs immediately. The owner of an interment space, or a memo- rial or memorialization that has been damaged or defaced shall be notified by the cemetery by restricted certifiedmail at the owner’s last knownaddresswithin sixty days of thediscovery of the damage or defacement. The rules shall specify whether the owner is liable, in whole or in part, for the cost to repair or replace an interment space or a damaged or defacedmemorial or memorialization. 6. The cemetery shall not approve any rule which unreasonably restricts competition, or

which unreasonably increases the cost to the owner of interment rights in exercising these rights.

Sec. 27. NEW SECTION. 523I.305 MEMORIALS AND MEMORIALIZATION. 1. AUTHORIZATION. A cemetery is entitled to determine whether a person requesting

installation of amemorial is authorized to do so, to the extent that this can be determined from the records of the cemetery, as is consistent with the cemetery’s rules. The owner of an inter- ment space or the owner’s agent may authorize a memorial dealer or independent third party to perform all necessary work related to preparation and installation of a memorial. 2. CONFORMITYWITHCEMETERYRULES. Aperson selling amemorial shall review the

rules of the cemetery where the memorial is to be installed to ensure that the memorial will comply with those rules prior to ordering or manufacturing the memorial. 3. SPECIFICATIONS. Upon request, a cemetery shall provide reasonable written specifi-

cations and instructions governing installation of memorials, which shall apply to all installa- tions whether performed by the cemetery or another person. The written specifications shall

342LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSIONCH. 128

include provisions governing hours of installation or any other relevant administrative re- quirements of the cemetery. A copy of these specifications and instructions shall be provided upon request, without charge, to the owner of the interment space, next of kin, or a personal representative or agent of the owner, including theperson installing thememorial. Theperson installing the memorial shall comply with the cemetery’s written installation specifications and instructions. A cemetery shall not adopt or enforce any rule prohibiting the installation of a memorial by a memorial dealer or independent third party, unless the rule is adopted and enforced uniformly for all memorials installed in the cemetery. 4. WRITTEN NOTICE. A memorial dealer or independent third party shall provide the

cemetery with at least seven business days’ prior written notice of intent to install a memorial at the cemetery, or such lesser notice as the cemetery deems acceptable. The notice shall con- tain the full name, address, and relationshipof thememorial’s purchaser to theperson interred in the interment space or the owner of the interment space, if different. The notice shall also contain the color, type, and size of the memorial, the material, the inscription, and the full name and interment date of the person interred in the interment space. 5. PREPARATION AND INSTALLATION. a. A person installing a memorial shall be responsible to the cemetery for any damage

caused to the cemetery grounds, including roadways, other than normal use during installa- tion of the memorial. b. Installation work shall cease during any nearby funeral procession or committal service. c. Installation work shall be done during the cemetery’s normal weekday hours or at such

other times as may be arranged with the cemetery. d. A memorial must comply with the cemetery’s rules. In the event of noncompliance, the

person installing amemorial is responsible for removal of thememorial and shall pay any rea- sonable expenses incurred by the cemetery in connection with the memorial’s removal. e. The cemetery shall, without charge, provide information as described on the cemetery’s

map or plat necessary to locate the place where a memorial is to be installed and any other essential information the person installing thememorial needs to locate the proper interment space. f. Aperson installingamemorial shall follow the cemetery’s instructions regarding theposi-

tioning of the memorial. g. During the excavation, all sod and dirt shall be carefully removed with no sod or dirt left

on the interment space except the amount needed to fill the space between the memorial and the adjacent lawn. h. A person installing a memorial shall carefully fill in any areas around the memorial with

topsoil or sand, in accordance with the cemetery’s written instructions. i. A person installingamemorial shall remove all equipment andanydebriswhichhas accu-

mulated during installation of the memorial. j. A person installing amemorial shall check to see if any adjacent memorials have become

soiled or dirty during installation of the memorial and, if so, clean the adjacent memorials. k. If the person who is installing a memorial damages any cemetery property, the person

shall notify the cemetery immediately. The person installing the memorial shall then repair the damage as soon as possible, upon approval by the cemetery. The cemetery may require a person installing a memorial to provide current proof of workers’ compensation insurance as required by state law and current proof of liability insurance, sufficient to indemnify the cemetery against claims resulting from installation of the memorial. Proof of liability insur- ance in an amount of one million dollars or more shall preclude the cemetery from requiring a person installing a memorial to obtain a performance bond. l. If a cemetery has an office, a person installing a memorial shall immediately leave notice

at the cemetery office when thememorial has been installed and all work related to the instal- lation is complete. 6. INSPECTION. A cemetery may inspect the installation site of a memorial at any time.

If the cemetery determines that cemetery rules are not being followed during the installation,

343 LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSION CH. 128

the cemeterymay order the installation to stop until the infraction is corrected. The cemetery shall providewritten notice to the installer as soon as possible if the cemetery believes that any of the following have occurred: a. The memorial has not been installed correctly. b. The person installing the memorial has damaged property at the cemetery. c. Other cemetery requirements for installation have not been met, such as removal of de-

bris or equipment. 7. LOCATION AND SERVICE CHARGE. A cemetery may charge a reasonable service

charge for allowing the installation of a memorial purchased or obtained from and installed by a person other than the cemetery or its agents. This service charge shall be based on the cemetery’s actual labor costs, including fringe benefits, of those employees whose normal duty is to inspect the installation of memorials, in accordance with generally accepted ac- counting practices. General administrative and overhead costs and any other functions not related to actual inspection time shall be excluded from the service charge. 8. FAULTY INSTALLATION. If a memorial sinks, tilts, or becomes misaligned within

twelve months of its installation and the cemetery believes the cause is faulty installation, the cemetery shall notify the personwho installed thememorial in writing and the person who in- stalled the memorial shall be responsible to correct the damage, unless the damage is caused by inadequate written specifications and instructions from the cemetery or acts of the ceme- tery and its agents or employees, including but not limited to running a backhoe over the me- morial, carrying a vault or other heavy equipment over the memorial, or opening or closing an interment space adjacent to the memorial. 9. PERPETUAL CARE. A cemetery may require contributions from the purchaser of a me-

morial for perpetual care, if a perpetual care fund deposit is uniformly charged on every me- morial installed in the cemetery.

Sec. 28. NEW SECTION. 523I.306 COMMISSION OR BONUS UNLAWFUL. It shall be unlawful for any organization subject to the provisions of this chapter to pay or

offer topay to, or for anyperson, firm, or corporation to receivedirectly or indirectly a commis- sion or bonus or rebate or other thing of value, for or in connection with the sale of any inter- ment space, lot, or part thereof, in any cemetery. The provisions of this section shall not apply to a person regularly employed and supervised by such organization or to a person, firm, cor- poration, or other entity licensed under chapter 523A that contracts with the cemetery to sell interment spaces or lots. The conduct of any person, firm, corporation, or other entity de- scribed in this section is the direct responsibility of the cemetery.

Sec. 29. NEW SECTION. 523I.307 DISCRIMINATION PROHIBITED. It shall be unlawful for any organization subject to the provisions of this chapter to deny the

privilege of interment of the remains of any deceased person in any cemetery solely because of the race, color, or national origin of such deceased person. Any contract, agreement, deed, covenant, restriction, or charter provision at any time entered into, or bylaw, rule, or regula- tion adopted or put in force, either subsequent or prior to July 4, 1953, authorizing, permitting, or requiring any organization subject to the provisions of this chapter to deny such privilege of interment because of race, color, or national origin of such deceased person is hereby de- clared to be null and void and in conflict with the public policy of this state. An organization subject to the provisions of this chapter or any director, officer, agent, employee, or trustee thereof, shall not be liable for damagesor other relief, or be subjected to any action in any court of competent jurisdiction for refusing to commit any act unlawful under this chapter.

Sec. 30. NEW SECTION. 523I.308 SPECULATION PROHIBITED. A cemetery or any person representing a cemetery in a sales capacity shall not advertise or

represent, in connection with the sale or attempted sale of any interment space, that the same is or will be a desirable speculative investment for resale purposes.

344LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSIONCH. 128

Sec. 31. NEW SECTION. 523I.309 INTERMENT, RELOCATION, OR DISINTERMENT OF REMAINS. 1. Any availablemember of the following classes of persons, in the priority listed, shall have

the right to control the interment, relocation, or disinterment of a decedent’s remains within or from a cemetery: a. The attorney in fact of the decedent pursuant to a durable power of attorney for health

care. b. The surviving spouse of the decedent. c. The decedent’s surviving adult children. If there is more than one surviving adult child,

any adult child who can confirm, in writing, that all other adult children have been notified of the proposed interment, relocation, or disinterment may authorize the interment, relocation, or disinterment, unless the cemetery receives an objection to such action from another adult child of the decedent. d. A surviving parent of the decedent. e. A surviving adult sibling of the decedent. f. A surviving grandparent of the decedent. g. The legal guardian of the decedent at the time of the decedent’s death. 2. A person who represents that the person knows the identity of a decedent and, in order

to procure the interment, relocation, or disinterment of the decedent’s remains, signs an order or statement, other than a death certificate, that warrants the identity of the decedent is liable for all damages that result, directly or indirectly, from that representation. 3. A personmay provide written directions for the interment, relocation, or disinterment of

the person’s own remains in a prepaid funeral or cemetery contract, or written instrument signed and acknowledged by the person. The directions may govern the inscription to be placed on a gravemarker attached to any interment space in which the decedent had the right of interment at the time of death and in which interment space the decedent is subsequently interred. The directionsmay bemodified or revoked only by a subsequent writing signed and acknowledged by the person. A person other than a decedent who is entitled to control the interment, relocation, or disinterment of a decedent’s remains under this section shall faithful- ly carry out the directions of the decedent to the extent that the decedent’s estate or the person controlling the interment, relocation, or disinterment is financially able to do so. 4. A cemetery shall not be liable for carrying out the written directions of a decedent or the

directions of any person entitled to control the interment, relocation, or disinterment of the decedent’s remains. 5. In the event of a dispute concerning the right to control the interment, relocation, or disin-

terment of a decedent’s remains, the disputemay be resolved by a court of competent jurisdic- tion. A cemetery shall not be liable for refusing to accept the decedent’s remains, relocate or disinter, inter or otherwise dispose of the decedent’s remains, until the cemetery receives a court order or other suitable confirmation that the dispute has been resolved or settled. 6. a. If good cause exists to relocate or disinter remains interred in a cemetery, the remains

may be removed from the cemetery pursuant to a disinterment permit as required under sec- tion 144.34, with the written consent of the cemetery, the current interment rights owner and the person entitled by this section to control the interment, relocation, or disinterment of the decedent’s remains. b. If the consent required by this subsection cannot be obtained, the remains may be relo-

cated by permission of the district court of the county inwhich the cemetery is located. Before the date of application to the court for permission to relocate remains under this subsection, notice must be given to the cemetery in which the remains are interred, each person whose consent is required for relocation of the remains under subsection 1, and any other person that the court requires to be served. c. For the purposes of this subsection, personal noticemust be given not later than the elev-

enth day before the date of application to the court for permission to relocate or disinter the

345 LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSION CH. 128

remains, or notice by certifiedmail or restricted certifiedmail must be given not later than the sixteenth day before the date of application. d. This subsection does not apply to the removal of remains from one interment space to

another interment space in the same cemetery to correct an error, or relocation of the remains by the cemetery from an interment space for which the purchase price is past due and unpaid, to another suitable interment space. 7. A person who removes remains from a cemetery shall keep a record of the removal, and

provide a copy to the cemetery, that includes all of the following: a. The date the remains are removed. b. The name of the decedent and age at death if those facts can be conveniently obtained. c. The place to which the remains are removed. d. Thenameof the cemetery and the location of the interment space fromwhich the remains

are removed. 8. A cemetery may disinter and relocate remains interred in the cemetery for the purpose

of correcting an errormade by the cemetery after obtaining a disinterment permit as required by section 144.34. The cemetery shall provide written notice describing the error to the com- missioner and to the person who has the right to control the interment, relocation, or disinter- ment of the remains erroneously interred, by restricted certified mail at the person’s last known address and sixty days prior to the disinterment. The notice shall include the location where the disinterment will occur and the location of the new interment space. A cemetery is not civilly or criminally liable for an erroneouslymade interment that is corrected in compli- ancewith this subsection unless the errorwas the result of gross negligenceor intentionalmis- conduct. 9. Relocations and disinterments of human remains shall be done in compliance with sec-

tions 144.32 and 144.34.

Sec. 32. NEW SECTION. 523I.310 SALE OF INTERMENT RIGHTS. 1. For sales or transfers of interment rights made on or after July 1, 2005, a cemetery shall

issue a certificate of interment rights or other instrument evidencing the conveyance of exclu- sive rights of interment upon payment in full of the purchase price. 2. The interment rights in an interment space that is conveyed by a certificate of ownership

or other instrument shall not be divided without the consent of the cemetery. 3. A conveyance of exclusive rights of interment shall be filed and recorded in the cemetery

office. Any transfer of theownership of interment rights shall be filed and recorded in the cem- etery office. The cemetery may charge a reasonable recording fee to record the transfer of in- terment rights.

Sec. 33. NEW SECTION. 523I.311 RECORDS OF INTERMENT RIGHTS AND INTER- MENT. 1. For sales or transfers of interment rights made on or after July 1, 2005, a cemetery shall

keep complete records identifying the owners of all interment rights sold by the cemetery and historical information regarding any transfers of ownership. The records shall include all of the following: a. The name and last known address of each owner or previous owner of interment rights. b. The date of each purchase or transfer of interment rights. c. Auniquenumeric or alphanumeric identifier that identifies the locationof each interment

space sold by the cemetery. 2. For intermentsmade on or after July 1, 2005, a cemetery shall keep a record of each inter-

ment in a cemetery. The records shall include all of the following: a. The date the remains are interred. b. The name, date of birth, and date of death of the decedent interred, if those facts can be

conveniently obtained. c. A unique numeric or alphanumeric identifier that identifies the location of the interment

space where the remains are interred.

346LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSIONCH. 128

Sec. 34. NEW SECTION. 523I.312 DISCLOSURE REQUIREMENTS — INTERMENT AGREEMENTS. 1. Each nonperpetual care cemetery shall have printed or stamped at the head of all of its

contracts, deeds, statements, letterheads, and advertising material, the legend: “This is a nonperpetual care cemetery”, and shall not sell any lot or interment space in the cemetery un- less the purchaser of the interment space is informed that the cemetery is a nonperpetual care cemetery. 2. An agreement for interment rights under this chapter shall be written in clear, under-

standable language and do all of the following: a. Identify the seller and purchaser. b. Identify the salesperson. c. Specify the interment rights to be provided and the cost of each item. d. State clearly the conditions on which substitution will be allowed. e. Set forth the total purchase price and the terms under which it is to be paid. f. State clearly whether the agreement is revocable or irrevocable, and if revocable, which

parties have the authority to revoke the agreement. g. State the amount or percentage of money to be placed in the cemetery’s care or mainte-

nance fund. h. If the cemetery has a care fund, set forth an explanation that the care fund is an irrevoca-

ble trust, that deposits cannot be withdrawn even in the event of cancellation, and that the trust’s income shall be used by the cemetery for its care. i. Set forth an explanation of any fees or expenses that may be charged. j. Set forth an explanation of whether amounts for perpetual care will be deposited in trust

upon payment in full or on an allocable basis as payments are made. k. Set forth an explanation of whether initial payments on agreements for multiple items

of funeral and cemeterymerchandise or services, or both,will be allocated first to thepurchase of an interment space. If such an allocation is to bemade, the agreement shall provide for the immediate transfer of such interment rights upon payment in full and prominently state that any applicable trust deposits under chapter 523A will not be made until the cemetery has re- ceived payment in full for the interment rights. The transfer of an undeveloped interment space may be deferred until the interment space is ready for interment. l. If the transfer of an undeveloped interment space will be deferred until the interment

space is ready for interment as permitted in paragraph “k”, the agreement shall provide for some form of written acknowledgement upon payment in full, specify a reasonable time peri- od for development of the interment space, describewhat happens in the event of a death prior todevelopment of the interment space, andprovide for the immediate transferof the interment rights when development of the interment space is complete. m. Specify the purchaser’s right to cancel and the damages payable for cancellation, if any. n. State the name and address of the commissioner.

Sec. 35. NEW SECTION. 523I.313 NEW CEMETERIES AND GARDENS AND CEM- ETERY REGISTRY. 1. A person that dedicates property for a new cemetery on or after July 1, 2005, and a ceme-

tery that dedicates an additional garden on or after July 1, 2005, shall: a. In the case of land, survey and subdivide the property into gardens with descriptive

names or numbers and make a map or plat of the cemetery or garden. b. In the case of a mausoleum or a columbarium, make a map or plat of the property delin-

eating sections or other divisions with descriptive names and numbers. c. File the map or plat with the commissioner, including a written certificate or declaration

of dedication of the property delineated by the map or plat, dedicating the property for ceme- tery purposes. 2. A map or plat and a certificate or declaration of dedication that is filed pursuant to this

section dedicates the property for cemetery purposes and constitutes constructive notice of that dedication.

347 LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSION CH. 128

3. The commissioner shallmaintain a registry of perpetual care andnonperpetual care cem- eteries, to the extent that information is available. A cemetery selling interment rights on or after July 1, 2005, shall file a written notice with the commissioner that includes the legal de- scription of the property with boundary lines of the land, the name of the cemetery, the status of the cemetery as either perpetual care or nonperpetual care, the status of the cemetery as either religious or nonreligious, and the cemetery’s ownership in a form approved by the com- missioner. A cemetery shall notify the commissioner of any changes in this informationwithin sixty days of the change.

Sec. 36. NEW SECTION. 523I.314 NEW CONSTRUCTION. 1. A person shall not offer to sell interment rights in amausoleum or columbarium that will

be built or completed in the future unless the person has notified the commissioner of the offer to sell on a form prescribed by the commissioner. 2. The notice of an offer to sell interment rights in such a mausoleum or columbarium shall

include the following information: a. A description of the new facility or the proposed expansion, including a description of the

interment rights to be offered to prospective purchasers. b. A statement of the financial resources available for the project. c. A copy of the proposed interment rights agreement to be used, which shall include the

following: (1) That purchase payments will be held in trust in accordance with the requirements of

chapter 523A until construction of the mausoleum or columbarium is complete. (2) That the purchaser may request a refund of the purchase amount, if construction does

not begin within five years of the purchaser’s first payment. (3) That the new facility will operate as a perpetual care cemetery in compliance with this

chapter, even if the facility is located at a nonperpetual care cemetery. (4) That the purchaserwill receive an ownership certificate upon payment in full or, if later,

when construction is complete. 3. Unless financing has been secured that is adequate in amount and terms to complete the

facility proposed, new construction of a mausoleum or columbarium shall not begin until the notice required by this section has been approved by the commissioner.

Sec. 37. NEWSECTION. 523I.315 UNPAIDCAREASSESSMENTSANDUNOCCUPIED INTERMENT SPACES. 1. FORECLOSURE—UNPAID ASSESSMENTS. Unpaid care assessments for an unoccu-

pied interment space not under perpetual care shall create a lien by the cemetery against the applicable interment space. The cemetery may, following notice, foreclose on the interment space if the amount of the lien exceeds the amount paid for the interment space. If the lien is not paid within one year from the date that notice of foreclosure is served on the owner of record or the owner of record’s heirs, the ownership in or right to the unoccupied interment space shall revert to the cemetery that owns the cemetery in which the unoccupied interment space is located. 2. ABANDONMENT—QUIET TITLEACTION. A cemeterymay file an action to quiet title

to determine whether an interment space has been abandoned if the interment space is unoc- cupied and has not been occupied in the preceding seventy-five years. An action to quiet title shall commence when the cemetery serves notice on the owner of record or the owner of rec- ord’s heirs declaring that the interment space is considered to be abandoned. If the owner of record or the owner of record’s heirs do not respond within three years from the date that no- tice is served, the abandonment is considered to be complete. The ownership in or right to an abandoned interment space shall revert to the cemetery in which the abandoned interment space is located and the cemetery may sell and convey title to the interment space. 3. SERVICEOFNOTICE. Notice under this section shall be served personally on the owner

of record or the owner of record’s heirs, or may be served by mailing notice by certified mail to theowner of record or to theowner of record’s heirs at the last knownaddress. If theaddress

348LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSIONCH. 128

of the owner of record or the owner of record’s heirs cannot be ascertained, notice of abandon- ment shall be given by one publication of the notice in the official newspaper of the county in which the cemetery is located.

Sec. 38. NEW SECTION. 523I.316 PROTECTION OF CEMETERIES AND BURIAL SITES. 1. EXISTENCE OF CEMETERY OR BURIAL SITE — NOTIFICATION. If a governmental

subdivision is notified of the existence of a cemetery, or amarked burial site that is not located in a dedicated cemetery, within its jurisdiction and the cemetery or burial site is not otherwise provided for under this chapter, the governmental subdivision shall, as soon as is practicable, notify the owner of the land uponwhich the cemetery or burial site is located of the cemetery’s or burial site’s existence and location. The notification shall include an explanation of the pro- visions of this section. If there is a basis tobelieve that intermentmayhaveoccurredmore than onehundred fifty years earlier, the governmental subdivision shall alsonotify the state archae- ologist. 2. DISTURBANCE OF INTERMENT SPACES— PENALTY. A person who knowingly and

without authorization damages, defaces, destroys, or otherwise disturbs an interment space commits criminal mischief in the third degree. Criminal mischief in the third degree is an ag- gravated misdemeanor. 3. DUTY TO PRESERVE AND PROTECT. A governmental subdivision having a cemetery,

or a burial site that is not locatedwithin a dedicated cemetery,within its jurisdiction, forwhich preservation is not otherwise provided, shall preserve and protect the cemetery or burial site as necessary to restore ormaintain its physical integrity as a cemetery or burial site. The gov- ernmental subdivisionmay enter into an agreement to delegate the responsibility for the pres- ervation and protection of the cemetery or burial site to a private organization interested in historical preservation. 4. CONFISCATION AND RETURN OF MEMORIALS. A law enforcement officer having

reason to believe that a memorial or memorialization is in the possession of a person without authorization or right to possess the memorial or memorializationmay take possession of the memorial ormemorialization from that personand turn it over to theofficer’s lawenforcement agency. If a law enforcement agency determines that a memorial or memorialization the agency has taken possession of rightfully belongs on an interment space, the agency shall re- turn thememorial or memorialization to the interment space, or make arrangements with the person having jurisdiction over the interment space for its return. 5. BURIAL SITES LOCATEDON PRIVATE PROPERTY. If a person notifies a governmen-

tal subdivision that a burial site of the person’s relative is located on property owned by anoth- er person within the jurisdiction of the governmental subdivision, the governmental subdivi- sion shall notify the property owner of the location of the burial site and that the property owner is required to permit the person reasonable ingress and egress for the purposes of visit- ing the burial site of the person’s relative. 6. DISCOVERY OF HUMAN REMAINS. Any person discovering human remains shall

notify the county or statemedical examiner or a city, county, or state law enforcement agency as soon as is reasonably possible unless the person knows or has good reason to believe that such notice has already been given or the discovery occurs in a cemetery. If there is reason tobelieve that intermentmayhaveoccurredmore thanonehundred fifty years earlier, thegov- ernmental subdivision notified shall also notify the state archaeologist. A personwhodoes not provide notice required pursuant to this subsection commits a serious misdemeanor.

SUBCHAPTER 4 COUNTY CEMETERY COMMISSIONS AND NEGLECTED CEMETERIES

Sec. 39. NEW SECTION. 523I.401 NEGLECTED CEMETERIES. The commissioner shall create a form that interested persons may use to report neglected

cemeteries to the commissioner. The commissioner shall catalog and review the neglected

349 LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSION CH. 128

cemetery reports received on or before December 31, 2007, conduct site visits as warranted to determine the nature or extent of any neglect, and publish a report of findings on or before December 31, 2008.

Sec. 40. NEW SECTION. 523I.402 REMOVAL OF REMAINS. 1. Upon a showing of good cause, a county cemetery commissionmay file suit in the district

court in that county to have remains interred in a cemetery owned and operated by the com- mission removed to another cemetery. All persons in interest, known or unknown, other than the plaintiffs, shall be made defendants to the suit. If any parties are unknown, notice may be givenbypublication. After hearinganda showingof goodcause for the removal, the courtmay order the removal of the remains and the remains shall be properly interred in another ceme- tery, at the expense of the county. The removal and reinterment of the remains shall be done pursuant to a disinterment permit issued under section 144.34 with due care and decency. In deciding whether to order the removal of interred remains, a court shall consider present or future access to the cemetery, the historical significance of the cemetery, and thewishes of the parties concerned if they are brought to the court’s attention, including the desire of any bene- ficiaries to reserve their rights to waive a reservation of rights in favor of removal, and shall exercise the court’s sound discretion in granting or refusing the removal of interred remains. 2. Any heir at law or descendent of a deceased person interred in a neglected cemeterymay

file suit in the district court in the county where the cemetery is located, to have the deceased person’s remains interred in the cemetery removed to another cemetery. The owner of the land, any beneficiaries of any reservation of rights, and any other persons in interest, known or unknown, other than the plaintiffs shall be made defendants. If any parties are unknown, noticemay be given by publication. After hearing and upon a showingof good cause, the court may order removal and the proper interment of the remains in another cemetery, at the ex- pense of the petitioner. The removal and reinterment shall be donewith due care anddecency.

SUBCHAPTER 5 GOVERNMENTAL SUBDIVISIONS

Sec. 41. NEW SECTION. 523I.501 CEMETERY AUTHORIZED. The governing body of a governmental subdivision may purchase, establish, operate, en-

close, improve, or regulate a cemetery. A cemetery owned or operated by a governmental sub- division may sell interment rights subject to the provisions of this chapter.

Sec. 42. NEW SECTION. 523I.502 TRUST FOR CEMETERY. 1. A governmental subdivision that owns or operates a cemetery or has control of cemetery

property may act as a permanent trustee for the perpetual maintenance of interment spaces in the cemetery. 2. To act as a trustee, a majority of the governmental subdivision’s governing body must

adopt an ordinance or resolution stating the governmental subdivision’s willingness and intention to act as a trustee for the perpetual maintenance of cemetery property. When the ordinance or resolution is adopted and the trust is accepted, the trust is perpetual.

Sec. 43. NEW SECTION. 523I.503 AUTHORITY TO RECEIVE GIFTS AND DEPOSITS FOR CARE — CERTIFICATES. 1. A governmental subdivision that is a trustee for the perpetualmaintenance of a cemetery

may adopt reasonable rules governing the receipt of a gift or grant from any source. 2. A governmental subdivision that is a trustee for a person shall accept the amount the gov-

ernmental subdivision requires for permanent maintenance of an interment space on behalf of that person or a decedent. 3. A governmental subdivision’s acceptance of a deposit for permanent maintenance of an

interment space constitutes a perpetual trust for the designated interment space. 4. Upon acceptance of a deposit, a governmental subdivision’s secretary, clerk, or mayor

350LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSIONCH. 128

shall issue a certificate in the nameof the governmental subdivision to the trustee or depositor. The certificate shall state all of the following: a. The depositor’s name. b. The amount and purpose of the deposit. c. The location, with as much specificity as possible, of the interment space to be main-

tained. d. Other information required by the governmental subdivision. 5. An individual, association, foundation, or corporation that is interested in the mainte-

nance of a neglected cemetery in a governmental subdivision’s possession and control may donate funds to the cemetery’s perpetual trust fund to beautify and maintain the entire ceme- tery or burial grounds generally.

Sec. 44. NEW SECTION. 523I.504 APPOINTMENT OF SUCCESSOR TRUSTEE. A district judge of a county in which a cemetery is located shall appoint a suitable successor

or trustee to faithfully execute a trust in accordance with this subchapter if a governmental subdivision renounces a trust assumedunder this subchapter, fails to act as its trustee, a vacan- cy occurs, or the appointment of a successor or trustee is otherwise necessary.

Sec. 45. NEW SECTION. 523I.505 COUNTY AUDITOR AS TRUSTEE. 1. In theabsenceof a trustee for care funds, unlessotherwiseprovidedby law, the care funds

shall be placed in the hands of the county auditor, who shall provide a receipt for, loan, and make annual reports of the care funds. 2. The county auditor shall not be required to post a bond. 3. The county auditor shall serve without compensation, but may, out of the income re-

ceived, pay all proper items of expense incurred in the performance of the auditor’s duties as trustee, if any. 4. The county auditor shallmake a full report of the trustee’s actions and trust funds annual-

ly in January. The net proceeds for care funds received by the county auditor as trustee shall be apportioned and credited to each of any separate care funds assigned to the auditor. 5. The county auditor shall turn over the accrued income from each care fund annually to

the person having control of the cemetery.

Sec. 46. NEW SECTION. 523I.506 COMMINGLING OF CARE FUNDS BY GOVERN- MENTAL SUBDIVISIONS. A governmental subdivision subject to this sectionmay commingle care funds formore than

one cemetery for the purposes of investment and administration and may file a single report, if each cemetery is appropriately identified and separate records aremaintained for each cem- etery.

Sec. 47. NEW SECTION. 523I.507 INVESTMENT OF CARE FUNDS BY GOVERNMEN- TAL SUBDIVISIONS. Notwithstanding section 12B.10, a perpetual care cemetery ownedbyagovernmental subdi-

visionmay invest and reinvest deposits pursuant to the requirements of this chapter. The trust- ee shall use the judgment and care under the circumstances then prevailing that persons of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital. The trustee of the trust funds has a fiduciary duty to make reasonable investment decisions and to properly oversee and manage the funds entrusted to the trust fund.

Sec. 48. NEW SECTION. 523I.508 MANAGEMENT BY GOVERNMENTAL SUBDIVI- SIONS. 1. POLITICAL SUBDIVISIONS AS TRUSTEES. Counties, cities, irrespective of their form

351 LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSION CH. 128

of government, boards of trustees of cities to whom themanagement of municipal cemeteries has been transferred by ordinance, and civil townships wholly outside of any city, are trustees in perpetuity, andare required toaccept, receive, and expendallmoneys andpropertydonated or left to them by bequest for perpetual care, and that portion of interment space sales or per- manent charges made against interment spaces which has been set aside in a perpetual care fund for which there is no other acting trustee, shall be used in caring for the property of the donor or lot owner who by purchase or otherwise has provided for the perpetual care of an interment space in any cemetery, or in accordance with the terms of the donation, bequest, or agreement for sale and purchase of an interment space, and the money or property thus re- ceived shall be used for no other purpose. 2. AUTHORITY TO INVEST FUNDS — CURRENT CARE CHARGE PAYMENTS. The

board of supervisors,mayor and council, or other elected governmental body, as the casemay be, may receive and invest all moneys and property, donated or bequeathed, and that portion of cemetery lot sales and permanent charges made against cemetery lots which have been set aside in a perpetual care fund, and in so investing, shall use the judgment and care under the circumstances then prevailing that persons of prudence, discretion, and intelligence exercise in themanagement of their own affairs not in regard to speculation but in regard to the perma- nent disposition of their funds, considering the probable income aswell as the probable safety of their capital. The trustee of the trust funds has a fiduciary duty to make reasonable invest- ment decisions and to properly oversee andmanage the funds entrusted to the trust fund. The income from the investment shall be used in caring for the property of the donor in any ceme- tery, or as provided in the terms of the gift or donations or agreement for sale and purchase of a cemetery lot. All current care charge payments received shall be allocated to the perpetual care fund or

to the fund paying the costs of cemetery operations. Care charge payments received one year ormore after the date they were incurred shall be used to fund the cost of operating the ceme- tery. Care charge payments received one year or more in advance of their due date shall be deposited in the perpetual care fund. Interest from the perpetual care fund shall be used for themaintenance of both occupied and unoccupied lots or spaces. Any remaining interestmay be used for costs of access roads and paths, fencing, and generalmaintenance of the cemetery. Lots under perpetual care shall be maintained in accordance with the cemetery covenants of sale. 3. RESOLUTION OF ACCEPTANCE — INTEREST. Before any part of the principal may

be invested or used, the county, city, board of trustees of a city to whom the management of amunicipal cemetery has been transferred by ordinance, or civil township shall, by resolution, accept themoneys described in subsection 1 and, by resolution, shall provide for the payment of interest annually to the appropriate fund, or to the cemetery, or the person in charge of the cemetery, to be used in caring for or maintaining the individual property of the donor in the cemetery, or interment spaces which have been sold if provision wasmade for perpetual care, all in accordancewith the termsof the donation or bequest, or the termsof the sale or purchase of an interment space. If there is no person in charge of the cemetery, the income from the fund shall be expended

under thedirection of theboardof supervisors, city council, board of trustees, or civil township trustees, as the case may be, in accordance with the terms of the donation or bequest, or the terms of the sale or purchase of an interment space. 4. DELEGATESTOCONVENTIONS. A township having one ormore cemeteries under its

control may designate, not to exceed two, officials from each cemetery as delegates to attend meetings of cemetery officials, and certain expenses, includingassociationdues, not to exceed twenty-five dollars, of the delegates may be paid out of the cemetery fund of the township. 5. SUBSCRIBING TO PUBLICATIONS. The cemetery officials of every township having a

cemetery under its control may subscribe to one or more publications devoted exclusively to cemetery management, and the subscriptions may be paid out of the cemetery fund of the township.

352LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSIONCH. 128

SUBCHAPTER 6 GENERAL PROVISIONS

Sec. 49. NEW SECTION. 523I.601 SETTLEMENT OF ESTATES — MAINTENANCE FUND. The court in which the estate of a deceased person is administered, before final distribution,

may allow and set apart from the estate a sum sufficient to provide an income adequate to pay for theperpetual careandupkeepof the interment spacesuponwhich thebodyof thedeceased is buried, except where perpetual care has otherwise been provided for. The sum so allowed and set apart shall be paid to a trustee as provided by this chapter.

Sec. 50. NEW SECTION. 523I.602 MANAGEMENT BY TRUSTEE. 1. TRUSTEE APPOINTED— TRUST FUNDS. The owners of, or any party interested in, a

cemetery may, by petition presented to the district court of the county where the cemetery is situated, have a trustee appointedwith authority to receive any andallmoneys or property that may be donated for and on account of the cemetery and to invest, manage, and control the moneys or property under the direction of the court. However, the trustee shall not be autho- rized to receive any gift, exceptwith the understanding that the principal sum is to be a perma- nent fund, and only the net proceeds therefrom shall be used in carrying out the purpose of the trust created, and all such funds shall be exempt from taxation. 2. REQUISITES OF PETITION. The petition shall state the amount proposed to be placed

in such trust fund, themanner of investment thereof, and the provisions made for the disposi- tion of any surplus income not required for the care and upkeep of the property described in such petition. 3. APPROVALOF COURT—SURPLUS FUND. Such provisions shall be subject to the ap-

proval of the court and when so approved the trust fund and the trustee thereof shall, at all times, be subject to the orders and control of the court and such surplus arising from the trust fund shall not be used except for charitable, eleemosynary, or public purposes under thedirec- tion of the court. 4. RECEIPT — CEMETERY RECORD. Every such trustee shall execute and deliver to the

donor a receipt showing the amount of money or other property received, and the use to be made of the net proceeds from the same, duly attested by the clerk of the court granting letters of trusteeship, and a copy thereof, signed by the trustee and so attested, shall be filed with and recorded by the clerk in a book to be known as the cemetery record, inwhich shall be recorded all reports and other papers, including orders made by the court relative to cemetery matters. 5. INVESTMENTS. Any such trustee may receive and invest all moneys and property, so

donated or bequeathed, and that portion of cemetery lot sales and permanent charges made against interment spaceswhich has been set aside in a perpetual care fund, in such authorized investments and in the manner prescribed in section 636.23. 6. BOND — APPROVAL — OATH. Every such trustee before entering upon the discharge

of the trustee’s duties or at any time thereafter when required by the court shall give a bond in an amount as may be required by the court, approved by the clerk, and conditioned for the faithful discharge of the trustee’s duties, and take and subscribe an oath the same in substance as the condition of the bond, which bond and oath must be filed with the clerk. 7. CLERK—DUTY OF. At the time of filing each bond and oath the clerk shall at once ad-

vise the court as to the amount of the principal fund in the hands of such trustee, the amount of the bond filed, and whether it is good and sufficient for the amount given. 8. COMPENSATION — COSTS. Such trustee shall serve without compensation, but may,

out of the income received, pay all proper items of expense incurred in the performance of the trustee’s duties, including cost of the bond, if any. 9. ANNUAL REPORT. Such trustee shall make a full report of the trustee’s doings in the

month of January following appointment and in January of each successive year. In each re- port the trustee shall apportion the net proceeds received from the sum total of the permanent funds assigned to the trustee in trust.

353 LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSION CH. 128

10. REMOVAL—VACANCYFILLED. Any such trusteemaybe removedby the court at any time for cause, and in the event of removal or death, the court shall appoint a new trustee and require the new trustee’s predecessor or the predecessor’s personal representative to make a full accounting.

Sec. 51. NEW SECTION. 523I.603 OWNERS OF INTERMENT RIGHTS. 1. An interment space in which exclusive rights of interment are conveyed is presumed to

be the separate property of the person named as grantee in the certificate of interment rights or other instrument of conveyance. 2. Two or more owners of interment rights may designate a person to represent the inter-

ment space and file notice of the designation of a representative with the cemetery. If notice is not filed, the cemeterymay inter or permit an interment in the interment space at the request or direction of a registered co-owner of the interment space.

Sec. 52. NEW SECTION. 523I.604 LIEN AGAINST CEMETERY PROPERTY. 1. A cemetery, by contract,may incur indebtedness as necessary to conduct its business and

may secure the indebtedness by mortgage, deed of trust, or other lien against its property. 2. Amortgage, deedof trust, or other lienplacedondedicated cemetery property, or on cem-

etery property that is later dedicated with the consent of the holder of the lien, does not affect the dedication and is subject to the dedication. A sale on foreclosure of the lien is subject to the dedication of the property for cemetery purposes.

Sec. 53. NEW SECTION. 523I.605 PRIVATE CARE OF GRAVES. This subchapter does not affect the right of a person who has an interest in an interment

space, orwho is a relative of a decedent interred in a cemetery, to beautify ormaintain an inter- ment space individually or at the person’s own expense in accordance with reasonable rules established by the cemetery.

SUBCHAPTER 7 LAWN CRYPTS

Sec. 54. NEW SECTION. 523I.701 REQUIREMENTS FOR LAWN CRYPTS. A lawn crypt shall not be installed unless all of the following apply: 1. The lawn crypt is constructed of concrete and reinforced steel or other comparable dura-

ble material. 2. The lawn crypt is installed on not less than six inches of rock, gravel, or other drainage

material. 3. The lawn crypt provides a method to drain water out of the lawn crypt. 4. The lawn crypt is capable ofwithstanding theweight of the soil and sod above the top sur-

face and the weight of machinery and equipment normally used in the maintenance of the cemetery. 5. Except as provided by section 523I.702, the lawn crypt is installed inmultiple units of ten

or more. 6. The lawn crypt shall be installed in compliance with any applicable law or rule adopted

by the department of public health.

Sec. 55. NEW SECTION. 523I.702 REQUEST TO INSTALL LAWN CRYPTS IN FEWER THAN TEN UNITS. 1. A lawn cryptmay be installed in fewer than ten units if it is installed in an interment space

pursuant to a written request to the commissioner signed by the owner or owners of the inter- ment space. 2. Thewritten request shall be filedona formprescribedby the commissioner and shall con-

tain substantially all of the following information: a. The owner’s name and address.

354LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSIONCH. 128

b. The name of the cemetery and the owner of the cemetery. c. The number of lawn crypt units to be installed. d. A description of the interment spaces. e. A statement that the lawn crypt meets the requirements of section 523I.701, including all

of the following: (1) A statement that the lawn crypt will be constructed of concrete and reinforced steel or

other comparable durable materials. (2) A statement that the lawn crypt will be installed on not less than six inches of rock, grav-

el, or other drainage material. (3) A statement that the lawn crypt will provide a method to drain water out of the lawn

crypt. (4) A statement that the outside top surface of the lawn crypt at the time of installation will

be capable of withstanding the weight of the soil and sod above the top surface and the weight of machinery and equipment normally used in the maintenance of the cemetery. f. A statement that the space in which the lawn crypt is to be installed is located in a garden. g. The date on which a representative of the cemetery signed the form.

SUBCHAPTER 8 PERPETUAL CARE CEMETERIES — REQUIREMENTS

Sec. 56. NEW SECTION. 523I.801 APPLICABILITY AND CONVERSION BY NONPER- PETUAL CARE CEMETERIES. 1. All cemeteries aredesignatedas either “perpetual care cemeteries” or “nonperpetual care

cemeteries” for the purposes of this chapter. A cemetery that represents that it is offering per- petual care on or after July 1, 2005, is subject to this subchapter. 2. A cemetery that operates a nonperpetual care cemetery may elect to become a perpetual

care cemetery if at all times subsequent to the date of the election, the cemetery complies with the other requirements of this subchapter except section 523I.805.

Sec. 57. NEW SECTION. 523I.802 ADVERTISING. 1. A cemetery shall not advertise, represent, guarantee, promise, or contract to provide or

offer perpetual care or use terms or phrases like permanent care, permanent maintenance, care forever, continuous care, eternal care, or everlasting care to imply that a certain level of care and financial security will be furnished or is guaranteed except in compliance with the provisions of this subchapter. 2. A cemetery or person advertising or selling interment rights shall not represent that the

purchase of the interment rights is or will be a desirable speculative investment for resale pur- poses.

Sec. 58. NEW SECTION. 523I.803 PERPETUAL CARE REGISTRY. 1. A cemetery that operates a perpetual care cemetery shall maintain a registry of individu-

alswhohavepurchased interment rights in the cemetery subject to the care fund requirements of this subchapter. 2. The registry shall include the amount deposited in trust for each interment rights agree-

ment entered into on or after July 1, 1995.

Sec. 59. NEW SECTION. 523I.804 USE OF GIFT FOR SPECIAL CARE. A trustee may accept and hold money or property transferred to the trustee in trust for the

purpose of applying theprincipal or incomeof themoney orproperty transferred for a purpose consistent with the purpose of a perpetual care cemetery, including the following: 1. Improvement or embellishment of any part of the cemetery. 2. Erection, renewal, repair, or preservation of amonument, fence, building, or other struc-

ture in the cemetery. 3. Planting or cultivation of plants in or around the cemetery.

355 LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSION CH. 128

4. Special care of or embellishment of an interment space, section, or building in the ceme- tery.

Sec. 60. NEW SECTION. 523I.805 INITIAL DEPOSIT. 1. A cemetery owned or operated by a political subdivision of this state is not required to

make a minimum initial deposit in a care fund. Any other cemetery commencing business in this state on or after July 1, 2005, shall not sell interment spaces unless the cemetery has a care fund of at least twenty-five thousand dollars in cash. 2. If an initial deposit is made by a cemetery to satisfy subsection 1, the initial twenty-five

thousand dollar depositmay bewithdrawnby the cemeterywhen the care fund balance reach- es one hundred thousand dollars. An affidavit shall be filed with the commissioner providing prior notice of the intended withdrawal of the initial deposit and attesting that the money has not previously been withdrawn. Upon a showing by the cemetery that the initial deposit has not previously beenwithdrawn, the commissioner shall approvewithdrawal of themoney and the withdrawal shall take place within one year after the care fund balance reaches one hun- dred thousand dollars.

Sec. 61. NEW SECTION. 523I.806 IRREVOCABLE TRUST. 1. A perpetual care cemetery shall establish a care fund as an irrevocable trust to provide

for the care of the cemetery,which shall provide for the appointment of a trustee,withperpetu- al succession. 2. The care fund shall beadministeredunder the jurisdictionof thedistrict court of the coun-

ty where the cemetery is located. Notwithstanding chapter 633, annual reports shall not be required unless specifically required by the district court. Reports shall be filed with the court when necessary to receive approval of appointments of trustees, trust agreements and amend- ments, changes in fees or expenses, and other matters within the court’s jurisdiction. A court having jurisdiction over a care fund shall have full jurisdiction to approve the appointment of trustees, the amount of surety bond required, if any, and investment of funds.

Sec. 62. NEW SECTION. 523I.807 CARE FUND DEPOSITS. 1. To continue to operate as a perpetual care cemetery, a cemetery shall set aside anddepos-

it in the care fund an amount equal to or greater than fifty dollars or twenty percent of thegross selling price received by the cemetery for each sale of interment rights, whichever is more. 2. A cemetery may require a contribution to the care fund for perpetual care of a memorial

ormemorialization placed in the cemetery. A cemeterymay establish a separate care fund for this purpose. The contributions shall be nonrefundable and shall not be withdrawn from the trust fund once deposited. The amount charged shall be uniformly charged on every installa- tion of a memorial, based on the height and width of the memorial or the size of the ground surface area used for the memorial. A fee for special care of a memorial may be collected if the terms of the special care items and arrangements are clearly specified in the interment rights agreement. Except as otherwise provided in an interment rights agreement, a cemetery is not liable for repair ormaintenance ofmemorials or vandalism. A cemeterymay use income from a care fund to repair or replace memorials or interment spaces damaged by vandalism or acts of God. 3. Moneys shall be deposited in the care fund no later than the fifteenth day after the close

of the month when the cemetery receives the final payment from a purchaser of interment rights.

Sec. 63. NEW SECTION. 523I.808 AUDIT FEE. An audit fee shall be submittedwith the cemetery’s annual report in an amount equal to five

dollars for each certificate of interment rights issued during the fiscal year covered by the re- port. The cemetery may charge the audit fee directly to the purchaser of the interment rights.

Sec. 64. NEW SECTION. 523I.809 TRUST AGREEMENT PROVISIONS. 1. A trust agreement shall provide for the appointment of at least one trustee,withperpetual

356LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSIONCH. 128

succession, in case the cemetery is dissolved or ceases to be responsible for the cemetery’s care. 2. A cemetery and the trustee or trustees of the care fund may, by agreement, amend the

instrument that established the fund to include any provision that is necessary to comply with the requirements of this chapter. 3. A cemetery is responsible for the deposit of all moneys required to be placed in a care

fund. 4. The commissioner may require the amending of a trust agreement that is not in accord

with the provisions of this chapter.

Sec. 65. NEW SECTION. 523I.810 CARE FUNDS. 1. A trustee of a care fund shall use the judgment and care under the circumstances then

prevailing that persons of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital. The trustee of a care fund has a fiduciary duty to make reasonable investment decisions and to properly oversee and manage the funds entrusted to the care fund. a. A financial institution may serve as a trustee if granted those powers under the laws of

this state or of theUnited States. A financial institution acting as a trustee of a care fund under this chapter shall invest the funds in accordance with applicable law. b. A financial institution acting as a trustee of a care fund under this chapter has a fiduciary

duty to make reasonable investment decisions and to properly oversee and manage the funds entrusted to the financial institution. The commissionermay take enforcement action against a financial institution in its capacity as trustee for a breachof fiduciary duty under this chapter. c. Care fund moneys may be deposited pursuant to a master trust agreement, if each care

fund is treated as a separate beneficiary of the trust and each care fund is separable. Themas- ter trust shallmaintain a separate accountingof principal and income for eachcare fund. Mon- eys deposited under amaster trust agreement may be commingled by the financial institution for investment purposes. d. Subject to a master trust agreement, the cemetery may appoint an independent invest-

ment advisor to advise the financial institution about investment of the care fund. e. Subject to an agreement between the cemetery and the financial institution, the financial

institution may receive a reasonable fee from the care fund for services rendered as trustee. f. If the amount of a care fund exceeds two hundred thousand dollars, the cemetery or any

officer, director, agent, employee, or affiliate of the cemetery shall not serve as trustee unless the cemetery is a cemetery owned or operated by a governmental subdivision of this state. A financial institution holding care funds shall not do any of the following: (1) Be owned, under the control of, or affiliated with the cemetery. (2) Use any funds required to be held in trust under this chapter to purchase an interest in

a contract or agreement to which the cemetery is a party. (3) Otherwise invest care funds, directly or indirectly, in the cemetery’s business opera-

tions. 2. All moneys required to be deposited in the care fund shall be deposited in the name of the

trustee, as trustee, under the terms of a trust agreement and the trustee may invest, reinvest, exchange, retain, sell, and otherwisemanage the care fund trust for the benefit and protection of the cemetery. 3. This section does not prohibit a cemetery frommoving care funds from one financial in-

stitution to another. 4. A care fundmay receive andhold as part of the care fund or as an incident to the care fund

any property contributed to the care fund. 5. A contribution to a care fund is considered to be for charitable purposes if the care fi-

nanced by the care fund is for the following purposes: a. The discharge of a duty due from the cemetery to persons interred and to be interred in

the cemetery.

357 LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSION CH. 128

b. The benefit and protection of the public by preserving and keeping the cemetery in a dig- nified condition so that the cemetery does not become a nuisance or a place of disorder, re- proach, and desolation in the community in which the cemetery is located. 6. A contribution to a care fund is not invalid because of the following: a. Indefiniteness or uncertainty as to the person designated as a beneficiary in the instru-

ment establishing the care fund. b. A violation of the law against perpetuities or the law against the suspension of the power

of alienation of title to or use of property. 7. A care fund shall pay the fund’s operation costs and any annual audit fees. The principal

of a care fund is intended to remain available perpetually as a funding source for care of the cemetery. The principal of a care fund shall not be reduced voluntarily and shall remain invio- lable, except as provided in this section. The trustee or trustees of a care fund shall maintain the principal of the care fund separate from all operating funds of the cemetery. 8. In establishing a care fund, the cemeterymay adopt plans for the care of the cemetery and

installed memorials and memorialization. 9. A cemetery may, by resolution adopted by a vote of at least two-thirds of the members

of its board at any authorized meeting of the board, authorize the withdrawal and use of not more than twenty percent of the principal of the care fund to acquire additional land for ceme- tery purposes, to repair amausoleumor other building or structure intended for cemetery pur- poses, or to build, improve, or repair roads andwalkways in the cemetery. The resolution shall establish a reasonable repayment schedule, not to exceed five years, and provide for interest in anamount comparable to the care fund’s current rate of returnon its investments. However, the care fund shall not bediminishedbelowanamount equal to the greater of twenty-five thou- sand dollars or five thousand dollars per acre of land in the cemetery. The resolution, and ei- ther a bond or proof of insurance to guarantee replenishment of the care fund, shall be filed with the commissioner thirty days prior to the withdrawal of funds.

Sec. 66. NEW SECTION. 523I.811 USE OF DISTRIBUTIONS FROM CARE FUND. 1. Care fund distributionsmay be used in anymanner determined to be in the best interests

of the cemetery if authorized by a resolution, bylaw, or other action or instrument establishing the care fund, includingbut not limited to the general care ofmemorials,memorialization, and any of the following: a. Cutting and trimming lawns, shrubs, and trees at reasonable intervals. b. Maintaining drains, water lines, roads, buildings, fences, and other structures. c. Maintaining machinery, tools, and equipment. d. Compensating maintenance employees, paying insurance premiums, and making pay-

ments to employees’ pension and benefit plans. e. Paying overhead expenses incidental to such purposes. f. Paying expenses necessary tomaintain ownership, transfer, and interment records of the

cemetery. 2. The commissioner may, by rule, establish terms and conditions under which a cemetery

may withdraw capital gains from the care fund.

Sec. 67. NEW SECTION. 523I.812 SUIT BY COMMISSIONER. 1. If the person or persons in control of a cemetery do not care for and maintain the ceme-

tery, the district court of the county in which the cemetery is located may do the following: a. By injunction compel the cemetery to expend the net income of the care fund as required

by this chapter. b. Appoint a receiver to take charge of the care fund and expend the net income of the care

fund as required by this chapter. c. Grant relief on a petition for relief filed pursuant to this section by the commissioner. 2. Inadequate care andmaintenance of a cemetery includes but is not limited to the follow-

ing: a. Failure to adequately mow grass.

358LAWS OF THE EIGHTY-FIRST G.A., 2005 SESSIONCH. 128

b. Failure to adequately edge and trim bushes, trees, and memorials. c. Failure to keep walkways and sidewalks free of obstructions. d. Failure to adequately maintain the cemetery’s equipment and fixtures. This subsection is not intended to prevent the establishment of a cemetery as a nature park

or preserve.

Sec. 68. NEW SECTION. 523I.813 ANNUAL REPORT BY PERPETUAL CARE CEM- ETERIES. 1. A perpetual care cemetery shall file a written report at the end of each fiscal year of the

cemetery that includes all of the following: a. The name and address of the cemetery. b. The name and address of the corporation that owns the cemetery, if any. c. A description of any commonbusiness enterprise or parent company that owns the ceme-

tery, if any. d. The name and address of any owner, officer, or other official of the cemetery, including,

when relevant, the chief executive officer and the members of the board of directors. e. The name and address of any trustee holding trust funds for the cemetery, including the

name and location of the applicable trust account. f. An affidavit that the cemetery is in compliance with this chapter. g. Copies of all sales agreement forms used by the cemetery. h. The amount of the principal of the cemetery’s care funds or maintenance funds, if any,

at the end of the fiscal year. 2. The report shall be filed with the commissioner within four months following the end of

the cemetery’s fiscal year in the form required by the commissioner.

Sec. 69. NEW SECTION. 523I.814 UNIFIED ANNUAL REPORTS. The commissioner shall permit the filing of a unified report in the event of commonly owned

or affiliated cemeteries if each cemetery is separately identified and separate records are maintained for each cemetery.

Sec. 70. Section 602.8102, subsection 81, Code 2005, is amended to read as follows: 81. Carry out duties relating to cemeteries as provided in sections 566.4, 566.7, and 566.8

section 523I.602.

Sec. 71. Section 602.8104, subsection 2, paragraph h, Code 2005, is amended to read as fol- lows: h. A cemetery record as provided in section 566.4 523I.602.

Sec. 72. Section 636.23, subsection 14, Code 2005, is amended to read as follows: 14. LIMITATION AS TO COURT-APPROVED INVESTMENTS. This section does not pro-

hibit investment of such funds in a savings account or time certificate of deposit of a bank or savings and loan association, located within the city or its county of this state and when first approved by the court. However, a city that is the trustee of a cemetery as provided in section 566.14 523I.508may invest perpetual care funds in a savings account or certificates of deposit at a bank or savings and loan association, located in this state without court approval.

Sec. 73. Section 359.41, Code 2005, is repealed.

Sec. 74. Chapters 523I, 566, and 566A, Code 2005, are repealed.

Approved May 12, 2005