2004 Florida Code
TITLE XXXIII REGULATION OF TRADE, COMMERCE, INVESTMENTS, AND SOLICITATIONS
Chapter 497 FUNERAL AND CEMETERY SERVICES  
497.413   Preneed Funeral Contract Consumer Protection Trust Fund.

1497.413  Preneed Funeral Contract Consumer Protection Trust Fund.--

(1)  There is hereby created in the department the Preneed Funeral Contract Consumer Protection Trust Fund to be administered and regulated by the board.

(2)  Within 60 days after the end of each calendar quarter, for each preneed contract written during the quarter and not canceled within 30 days after the date of the execution of the contract, each certificateholder, whether funding preneed contracts by the sale of insurance or by establishing a trust pursuant to s. 497.417 or s. 497.429, shall remit the sum of $2.50 for each preneed contract having a purchase price of $1,500 or less, and the sum of $5 for each preneed contract having a purchase price in excess of $1,500; and each certificateholder utilizing s. 497.423 or s. 497.425 shall remit the sum of $5 for each preneed contract having a purchase price of $1,500 or less, and the sum of $10 for each preneed contract having a purchase price in excess of $1,500.

(3)  In addition to the amounts specified in subsection (2), each remittance shall contain such other additional information as needed by the board to carry out its responsibilities under this chapter and as prescribed by rule of the board.

(4)  All funds received by the board or the department pursuant to this section shall be deposited into the Preneed Funeral Contract Consumer Protection Trust Fund.

(5)  The amounts remitted for deposit into the Preneed Funeral Contract Consumer Protection Trust Fund shall not be deemed proceeds from the sale of a preneed contract within the meaning of this chapter.

(6)  Upon the commencement of a delinquency proceeding pursuant to this chapter against a certificateholder, the board may use up to 50 percent of the balance of the trust fund not already committed to a prior delinquency proceeding solely for the purpose of providing restitution to preneed contract purchasers and their estates due to a certificateholder's failure to provide the benefits of a preneed contract or failure to refund the appropriate principal amount by reason of cancellation thereof. The balance of the trust fund shall be determined as of the date of the delinquency proceeding.

(7)  In any situation in which a delinquency proceeding has not commenced, the board may, in its discretion, use the trust fund for the purpose of providing restitution to any consumer, owner, or beneficiary of a preneed contract or similar regulated arrangement under this chapter entered into after June 30, 1977. If, after investigation, the board determines that a certificateholder has breached a preneed contract by failing to provide benefits or an appropriate refund, or that a provider, who is a former certificateholder or an establishment which has been regulated under this chapter or chapter 470, has sold a preneed contract and has failed to fulfill the arrangement or provide the appropriate refund, and such certificateholder or provider does not provide or does not possess adequate funds to provide appropriate refunds, payments from the trust fund may be authorized by the board. In considering whether payments shall be made or when considering who will be responsible for such payments, the board shall consider whether the certificateholder or previous provider has been acquired by a successor who is or should be responsible for the liabilities of the defaulting entity. With respect to preneed contracts funded by life insurance, payments from the fund shall be made: if the insurer is insolvent, but only to the extent that funds are not available through the liquidation proceeding of the insurer; or if the certificateholder is unable to perform under the contract and the insurance proceeds are not sufficient to cover the cost of the merchandise and services contracted for. In no event shall the board approve payments in excess of the insurance policy limits unless it determines that at the time of sale of the preneed contract, the insurance policy would have paid for the services and merchandise contracted for. Such monetary relief shall be in an amount as the board may determine and shall be payable in such manner and upon such conditions and terms as the board may prescribe. However, with respect to preneed contracts to be funded pursuant to s. 497.417, s. 497.419, s. 497.423, or s. 497.425, any restitution made pursuant to this subsection shall not exceed, as to any single contract or arrangement, the lesser of the gross amount paid under the contract or 4 percent of the uncommitted assets of the trust fund. With respect to preneed contracts funded by life insurance policies, any restitution shall not exceed, as to any single contract or arrangement, the lesser of the face amount of the policy, the actual cost of the arrangement contracted for, or 4 percent of the uncommitted assets of the trust fund. The total of all restitutions made to all applicants under this subsection in a single fiscal year shall not exceed the greater of 30 percent of the uncommitted assets of the trust fund as of the end of the most recent fiscal year or $120,000. The department may use moneys in the trust fund to contract with independent vendors pursuant to chapter 287 to administer the requirements of this subsection.

(8)  All moneys deposited in the Preneed Funeral Contract Consumer Protection Trust Fund together with all accumulated income shall be used only for the purposes expressed in this section and shall not be subject to any liens, charges, judgments, garnishments, or other creditor's claims against the certificateholder, any trustee utilized by the certificateholder, any company providing a surety bond as specified in this chapter, or any purchaser of a preneed contract. No preneed contract purchaser shall have any vested rights in the trust fund.

(9)  If restitution is paid to a preneed contract purchaser or her or his estate in accordance with this section, the amount of restitution paid shall not exceed the gross amount of the principal payments made by the purchaser on its contract.

(10)  Whenever the board makes payments from the trust fund to a purchaser or its estate, the board shall be subrogated to the purchaser's rights under the contract, and any amounts so collected by the board shall be deposited in the Preneed Funeral Contract Consumer Protection Trust Fund.

(11)  No person shall make, publish, disseminate, circulate, or place before the public, or cause, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public, in a newspaper, magazine, or other publication, or in the form of a notice, circular, pamphlet, letter, or poster, or over any radio station or television station, or in any other way, any advertisement, announcement, or statement which uses the existence of the Preneed Funeral Contract Consumer Protection Trust Fund for the purpose of sales, solicitation, or inducement to purchase any form of preneed contract covered under this chapter.

(12)  Notwithstanding the fee structure in subsection (2), the department shall review the status of the trust fund annually, and if it determines that the uncommitted trust fund balance exceeds $1 million, the board may by rule lower the required payments to the trust fund to an amount not less than $1 per preneed contract.

History.--ss. 7, 17, ch. 88-139; s. 67, ch. 89-360; s. 1, ch. 92-97; ss. 96, 122, ch. 93-399; s. 21, ch. 96-400; s. 1148, ch. 97-103; s. 105, ch. 2004-301.

1Note.--Section 105, ch. 2004-301, renumbered s. 497.413 as s. 497.456 and amended the section, effective October 1, 2005, to read:

497.456  Preneed Funeral Contract Consumer Protection Trust Fund.--

(1)  There is hereby created in the department the Preneed Funeral Contract Consumer Protection Trust Fund to be administered and regulated by the licensing authority.

(2)  Within 60 days after the end of each calendar quarter, for each preneed contract written during the quarter and not canceled within 30 days after the date of the execution of the contract, each preneed licensee, whether funding preneed contracts by the sale of insurance or by establishing a trust pursuant to s. 497.458 or s. 497.464, shall remit the sum of $2.50 for each preneed contract having a purchase price of $1,500 or less, and the sum of $5 for each preneed contract having a purchase price in excess of $1,500; and each preneed licensee utilizing s. 497.461 or s. 497.462 shall remit the sum of $5 for each preneed contract having a purchase price of $1,500 or less, and the sum of $10 for each preneed contract having a purchase price in excess of $1,500.

(3)  In addition to the amounts specified in subsection (2), each remittance shall contain such other additional information as needed by the licensing authority to carry out its responsibilities under this chapter and as prescribed by rule.

(4)  All funds received by the licensing authority pursuant to this section shall be deposited into the Preneed Funeral Contract Consumer Protection Trust Fund.

(5)  The amounts remitted for deposit into the Preneed Funeral Contract Consumer Protection Trust Fund shall not be deemed proceeds from the sale of a preneed contract within the meaning of this chapter.

(6)  Upon the commencement of a delinquency proceeding pursuant to this chapter against a preneed licensee, the licensing authority may use up to 50 percent of the balance of the trust fund not already committed to a prior delinquency proceeding solely for the purpose of providing restitution to preneed contract purchasers and their estates due to a preneed licensee's failure to provide the benefits of a preneed contract or failure to refund the appropriate principal amount by reason of cancellation thereof. The balance of the trust fund shall be determined as of the date of the delinquency proceeding.

(7)  In any situation in which a delinquency proceeding has not commenced, the licensing authority may, in its discretion, use the trust fund for the purpose of providing restitution to any consumer, owner, or beneficiary of a preneed contract or similar regulated arrangement under this chapter entered into after June 30, 1977. If, after investigation, the licensing authority determines that a preneed licensee has breached a preneed contract by failing to provide benefits or an appropriate refund, or that a provider, who is a former preneed licensee or an establishment which has been regulated under this chapter, has sold a preneed contract and has failed to fulfill the arrangement or provide the appropriate refund, and such preneed licensee or provider does not provide or does not possess adequate funds to provide appropriate refunds, payments from the trust fund may be authorized by the licensing authority. In considering whether payments shall be made or when considering who will be responsible for such payments, the licensing authority shall consider whether the preneed licensee or previous provider has been acquired by a successor who is or should be responsible for the liabilities of the defaulting entity. With respect to preneed contracts funded by life insurance, payments from the fund shall be made: if the insurer is insolvent, but only to the extent that funds are not available through the liquidation proceeding of the insurer; or if the preneed licensee is unable to perform under the contract and the insurance proceeds are not sufficient to cover the cost of the merchandise and services contracted for. In no event shall the licensing authority approve payments in excess of the insurance policy limits unless it determines that at the time of sale of the preneed contract, the insurance policy would have paid for the services and merchandise contracted for. Such monetary relief shall be in an amount as the licensing authority may determine and shall be payable in such manner and upon such conditions and terms as the licensing authority may prescribe. However, with respect to preneed contracts to be funded pursuant to s. 497.458, s. 497.459, s. 497.461, or s. 497.462, any restitution made pursuant to this subsection shall not exceed, as to any single contract or arrangement, the lesser of the gross amount paid under the contract or 4 percent of the uncommitted assets of the trust fund. With respect to preneed contracts funded by life insurance policies, any restitution shall not exceed, as to any single contract or arrangement, the lesser of the face amount of the policy, the actual cost of the arrangement contracted for, or 4 percent of the uncommitted assets of the trust fund. The total of all restitutions made to all applicants under this subsection in a single fiscal year shall not exceed the greater of 30 percent of the uncommitted assets of the trust fund as of the end of the most recent fiscal year or $120,000. The department may use moneys in the trust fund to contract with independent vendors pursuant to chapter 287 to administer the requirements of this subsection.

(8)  All moneys deposited in the Preneed Funeral Contract Consumer Protection Trust Fund together with all accumulated income shall be used only for the purposes expressly authorized by this chapter and shall not be subject to any liens, charges, judgments, garnishments, or other creditor's claims against the preneed licensee, any trustee utilized by the preneed licensee, any company providing a surety bond as specified in this chapter, or any purchaser of a preneed contract. No preneed contract purchaser shall have any vested rights in the trust fund.

(9)  If restitution is paid to a preneed contract purchaser or her or his estate in accordance with this section, the amount of restitution paid shall not exceed the gross amount of the principal payments made by the purchaser on its contract.

(10)  Whenever the licensing authority makes payments from the trust fund to a purchaser or its estate, the licensing authority shall be subrogated to the purchaser's rights under the contract, and any amounts so collected by the licensing authority shall be deposited in the Preneed Funeral Contract Consumer Protection Trust Fund.

(11)  No person shall make, publish, disseminate, circulate, or place before the public, or cause, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public, in a newspaper, magazine, or other publication, or in the form of a notice, circular, pamphlet, letter, or poster, or over any radio station or television station, or in any other way, any advertisement, announcement, or statement which uses the existence of the Preneed Funeral Contract Consumer Protection Trust Fund for the purpose of sales, solicitation, or inducement to purchase any form of preneed contract covered under this chapter.

(12)  Notwithstanding the fee structure in subsection (2), the department shall review the status of the trust fund annually, and if it determines that the uncommitted trust fund balance exceeds $1 million, the licensing authority may by rule lower the required payments to the trust fund to an amount not less than $1 per preneed contract.

(13)  Regarding the Preneed Funeral Contract Consumer Protection Trust Fund, the licensing authority shall have authority to adopt rules for the implementation of this section, including:

(a)  Forms to be used in filing claims against the trust fund.

(b)  Procedures to be used for filing claims against the trust fund.

(c)  Information and supporting documentation that must be provided by claimants to support claims against the trust fund.

(d)  Procedures for the investigation of claims against the trust fund.

(e)  Criteria to be used in determining whether a claim is allowable and in what amount.

(f)  Forms and procedures to be used by preneed licensees in making remittances to the trust fund required by this chapter.

Note.--Former s. 639.108.