74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
Enrolled
House Bill 2864
Sponsored by Representative GILMAN; Representatives BOONE, CLEM,
KOMP (at the request of Oregon Cemetery Association)
CHAPTER ................
AN ACT
Relating to final disposition of human remains; creating new
provisions; amending ORS 65.860, 97.010, 97.220, 97.510,
97.520, 97.810, 97.820, 97.825, 97.865, 97.870, 97.890, 97.900,
97.923, 97.925, 97.927, 97.933, 97.935, 97.937, 97.939, 97.941,
97.943, 97.944 and 646.551; and repealing ORS 59.660, 59.670,
59.680, 59.690 and 59.700.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 97.010 is amended to read:
97.010. As used in ORS 97.010 to 97.040, 97.110 to 97.450,
97.510 to 97.730, 97.810 to 97.920 { + , 97.923 to 97.949 + } and
97.990 { + and 97.994 + }:
{ - (1) 'Human remains' or 'remains' means the body of a
deceased person in any stage of decomposition or after
cremation. - }
{ - (2) 'Cemetery' means any place dedicated to and used, or
intended to be used, for the permanent interment of human
remains. - }
{ - (3) 'Burial park' means a tract of land for the burial of
human remains in the ground used, or intended to be used, and
dedicated for cemetery purposes. - }
{ - (4) 'Mausoleum' means a structure for the entombment of
human remains in crypts or vaults in a place used, or intended to
be used, and dedicated for cemetery purposes. - }
{ - (5) 'Crematory' means a structure containing a retort for
the reduction of bodies of deceased persons to cremated
remains. - }
{ - (6) 'Columbarium' means a structure or room containing
niches for permanent inurnment of cremated remains in a place
used, or intended to be used, and dedicated for cemetery
purposes. - }
{ - (7) 'Interment' means the disposition of human remains by
cremation, inurnment, entombment or burial. - }
{ - (8) 'Cremation' means the reduction of a body of a
deceased person to cremated remains in a crematory. - }
{ - (9) 'Inurnment' means placing cremated remains in an urn
and depositing it in a niche. - }
{ - (10) 'Entombment' means the placement of human remains in
a crypt or vault. - }
{ - (11) 'Burial' means the placement of human remains in a
grave. - }
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{ - (12) 'Grave' means a space of ground in a burial park
used, or intended to be used, for burial of the remains of one
person. - }
{ - (13) 'Crypt' or 'vault' means a space in a mausoleum of
sufficient size used, or intended to be used, to entomb
uncremated human remains. - }
{ - (14) 'Niche' is a recess in a columbarium used, or
intended to be used, for the interment of the cremated remains of
one or more persons. - }
{ - (15) 'Cemetery authority' includes cemetery corporation,
association, corporation sole or other person or persons owning
or controlling cemetery lands or property. - }
{ - (16) 'Cemetery association' means any corporation or
association authorized by its articles to conduct any or all the
businesses of a cemetery, but does not include a corporation sole
or a charitable, eleemosynary association or corporation. - }
{ - (17) 'Cemetery business,' 'cemetery businesses' and '
cemetery purposes' are used interchangeably and mean any business
and purpose requisite or incident to, or necessary for
establishing, maintaining, operating, improving or conducting a
cemetery, interring human remains, and the care, preservation and
embellishment of cemetery property. - }
{ - (18) 'Directors' or 'governing body' means the board of
directors, board of trustees, or other governing body of a
cemetery association. - }
{ - (19) 'Lot,' 'plot' or 'burial space' means space in a
cemetery owned by one or more individuals, an association or
fraternal or other organization and used, or intended to be used,
for the permanent interment therein of the remains of one or more
deceased persons. Such terms include and apply with like effect
to one, or more than one, adjoining grave, crypt, vault or
niche. - }
{ - (20) The term 'plot owner' or 'owner' means any person in
whose name a burial plot stands as owner of the right of
sepulture therein in the office of the cemetery authority, or who
holds from such cemetery authority a conveyance of the right of
sepulture or a certificate of ownership of the right of sepulture
in a particular lot, plot or space. - }
{ - (21) 'Endowment care' means the general care and
maintenance of developed portions of a cemetery and memorials
erected thereon financed from the income of a trust fund
established and maintained pursuant to the provisions of ORS
97.810 to 97.865. Endowment care cemeteries owned by a city or a
county may supplement their general care and maintenance trust
funds from general revenues. - }
{ - (22) 'Special care' is any care in excess of endowed care
in accordance with the specific directions of any donor of funds
for such purposes. - }
{ + (1) 'Burial' means the placement of human remains in a
grave or lawn crypt.
(2) 'Burial park' means a tract of land for the burial of human
remains, used, or intended to be used, and dedicated for cemetery
purposes.
(3) 'Burial right' means the right to use a grave, mausoleum,
columbarium, ossuary or scattering garden for the interment or
other disposition of human remains.
(4) 'Cemetery' means a place:
(a) Dedicated to and used, or intended to be used, for the
permanent interment of human remains; and
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(b) That may contain a mausoleum, crypt or vault interment, a
columbarium, ossuary, scattering garden or other structure or
place used or intended to be used for the interment or
disposition of cremated remains or any combination of these
structures or places.
(5) 'Cemetery association' means a corporation or association
authorized by its articles of incorporation to conduct the
business of a cemetery, but does not include a corporation sole
or a charitable, eleemosynary association or corporation.
(6) 'Cemetery authority' means a person who owns or controls
cemetery lands or property, including but not limited to a
cemetery corporation, association or corporation sole.
(7) 'Cemetery business' and 'cemetery purpose' are used
interchangeably and mean any business or purpose requisite or
incident to, or necessary for establishing, maintaining,
operating, improving or conducting a cemetery, interring human
remains, and the care, preservation and embellishment of cemetery
property.
(8) 'Cemetery merchandise' means personal property offered for
sale or sold for use in connection with the final disposition,
memorialization or interment of human remains. 'Cemetery
merchandise' includes, but is not limited to, an outer burial
container and a memorial.
(9) 'Cemetery services' means services provided by a cemetery
authority for interment or scattering, and installation of
cemetery merchandise.
(10) 'Columbarium' means a structure or room containing
receptacles for permanent inurnment of cremated remains in a
place used, or intended to be used, and dedicated for cemetery
purposes.
(11) 'Cremated remains' means the remains of a cremated human
body after completion of the cremation process.
(12) 'Cremation' means the technical process, using direct
flame and heat, that reduces human remains to bone fragments.
(13) 'Crematory' means a structure containing a retort for the
reduction of bodies of deceased persons to cremated remains.
(14) 'Crypt' or 'vault' means a space in a mausoleum of
sufficient size used, or intended to be used, to entomb
uncremated human remains.
(15) 'Directors' or 'governing body' means the board of
directors, board of trustees or other governing body of a
cemetery association.
(16) 'Endowment care' means the general care and maintenance of
developed portions of a cemetery and memorials erected thereon
financed from the income of a trust fund.
(17) 'Entombment' means the placement of human remains in a
crypt or vault.
(18) 'Funeral merchandise' means personal property offered for
sale or sold for use in connection with funeral services. '
Funeral merchandise' includes, but is not limited to,
acknowledgement cards, alternative containers, caskets, clothing,
cremation containers, cremation interment containers, flowers,
memory folders, monuments, outer burial containers, prayer cards,
register books and urns.
(19) 'Funeral services' means services customarily provided by
a funeral service practitioner including, but not limited to,
care and preparation of human remains for final disposition,
professional services relating to a funeral or an alternative to
a funeral, transportation of human remains, limousine services,
use of facilities or equipment for viewing human remains,
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visitation, memorial services or services that are used in
connection with a funeral or alternative to a funeral,
coordinating or conducting funeral rites or ceremonies, and other
services provided in connection with a funeral, alternative to a
funeral or final disposition of human remains.
(20) 'Grave' means a space of ground in a burial park used, or
intended to be used, for burial of the remains of one person.
(21) 'Human remains' or 'remains' means the body of a deceased
person in any stage of decomposition or after cremation.
(22) 'Interment' means the disposition of human remains by
inurnment, entombment or burial.
(23) 'Inurnment' means the placement of cremated remains in a
receptacle and the deposit of the receptacle in a niche.
(24) 'Lot,' 'plot' or 'burial space' means space in a cemetery
owned by one or more individuals, an association or fraternal or
other organization and used, or intended to be used, for the
permanent interment therein of the remains of one or more
deceased persons. Such terms include and apply with like effect
to one, or more than one, adjoining grave, crypt, vault or niche.
(25) 'Mausoleum' means a structure substantially exposed above
ground for the entombment of human remains in crypts or vaults in
a place used, or intended to be used, and dedicated for cemetery
purposes.
(26) 'Memorial' means a product, other than a mausoleum or
columbarium, used for identifying an interment space or for
commemoration of the life, deeds or career of a decedent
including, but not limited to, an ossuary, monument, marker,
niche plate, urn garden plaque, crypt plate, cenotaph, marker
bench or vase.
(27) 'Niche' means a recess usually in a columbarium used, or
intended to be used, for the inurnment of the cremated remains of
one or more persons.
(28) 'Ossuary' means a receptacle used for the communal
placement of cremated remains without benefit of an urn or any
other container in which cremated remains may be commingled with
other cremated remains and are nonrecoverable.
(29) 'Plot owner' or 'owner' means any person identified in the
records of the cemetery authority as owner of the burial rights
to a burial plot, or who holds a certificate of ownership
conveyed from the cemetery authority of the burial rights in a
particular lot, plot or space.
(30) 'Scattering' means the lawful dispersion of cremated
remains that need not be associated with an interment right or
issuance of a deed, that may be recorded only as a service that
has taken place and may not be recorded on the permanent records
of the cemetery authority.
(31) 'Scattering garden' means a location set aside within a
cemetery that is used for the spreading or broadcasting of
cremated remains that have been removed from their container and
can be mixed with or placed on top of the soil or ground cover or
buried in an underground receptacle on a commingled basis and
that are nonrecoverable.
(32) 'Special care' means any care in excess of endowed care in
accordance with the specific directions of a donor of funds. + }
SECTION 2. ORS 97.220 is amended to read:
97.220. (1) The remains of a deceased person interred in a plot
in a cemetery may be removed { - therefrom - } { + from the
plot + } with the consent of the cemetery authority and written
consent of the person { + under ORS 97.130 (2)(a), (b) or
(c) + } who has the right to control the disposition of the
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remains of the deceased person. If the consent of any such person
or of the cemetery authority cannot be obtained, permission by
the county court { - or the board of county commissioners of
the county - } where the cemetery is situated is sufficient.
Notice of application to the court for such permission must be
given at least 60 days prior thereto, personally or by mail, to
the cemetery authority, to the person not consenting and to every
other person or authority on whom service of notice is required
by the county court { - or the board of county
commissioners - } .
(2) If the payment for the purchase of an interment space
becomes past due and so remains for a period of 90 days, this
section does not apply to or prohibit the removal of any remains
from one plot to another in the same cemetery or the removal of
remains by the cemetery authority from a plot to some other
suitable place.
(3) This section does not apply to the disinterment of remains
upon order of court or if ordered under the provisions of ORS
146.045 (3)(e).
SECTION 3. ORS 97.510 is amended to read:
97.510. { + (1) + } After filing the map or plat and recording
the declaration of dedication, a cemetery authority may sell and
convey plots subject to such rules and regulations as may be then
in effect and subject to such other and further limitations,
conditions and restrictions made a part of the declaration of
dedication by reference or included in the instrument of
conveyance of the plot.
{ + (2) Scattering of cremated remains in a scattering garden
is not a sale or conveyance. + }
SECTION 4. ORS 97.520 is amended to read:
97.520. { - No - } { + A + } person, firm or corporation
{ - shall - } { + may not + } sell or offer to sell a cemetery
plot upon the promise, representation or inducement of resale at
a financial profit, except with the consent and approval of the
{ - Secretary of State - } { + Director of the Department of
Consumer and Business Services + }. Each violation of this
section constitutes a separate offense.
SECTION 5. ORS 97.810 is amended to read:
97.810. { - (1) An endowment care cemetery is one which after
July 5, 1955, deposits with the trustee or custodian of its
endowment care fund not less than the following amounts for plots
sold after that date: - }
{ + (1) As used in this section, 'endowment care cemetery '
means a cemetery that maintains an endowment care fund placed in
an irrevocable trust fund.
(2) An endowment care cemetery shall deposit with the trustee
or custodian of its endowment care fund not less than the
following amounts received from the sale of plots, niches, crypts
or private mausoleums: + }
(a) Fifteen percent of the gross sales price with a minimum of
$5 for each grave or, when the gross sales price is paid in
installments, 15 percent of each installment until at least 15
percent of the gross sales price has been deposited, with a
minimum of $5 for each grave.
(b) Five percent of the gross sales price for each niche or,
when the gross sales price is paid in installments, five percent
of each installment until at least five percent of the gross
sales price has been deposited.
(c) Five percent of the gross sales price for each crypt or,
when the gross sales price is paid in installments, five percent
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of each installment until at least five percent of the gross
sales price has been deposited.
{ + (d) Five percent of the gross sales price for each
private mausoleum or, when the gross sales price is paid in
installments, five percent of each installment until at least
five percent of the gross sales price has been deposited. + }
{ - (2) - } { + (3) + } The cemetery authority shall { + ,
within 30 days from the receipt of a payment, + } deposit with
the trustee or custodian of its endowment care fund any payment
received by { - it and required by subsection (1) of this
section to be paid into such fund, within 30 days from the
receipt of such payment. - } { + the cemetery authority that
is:
(a) Required by subsection (2) of this section to be paid into
the fund; or
(b) A payment for special care, gifts, grants, contributions,
devises or bequests made with respect to the separate or special
care of a particular plot, grave, niche, crypt, mausoleum,
monument or marker or that of a particular family. + }
{ - (3) - } { + (4) + } Within 75 days of the end of its
fiscal year, each endowment care cemetery, except one owned by a
city or a county, shall file with the Director of the Department
of Consumer and Business Services a statement containing the
following information pertaining to the endowment care fund:
{ + (a) + } The total amount invested in bonds, securities,
mortgages and other investments { - , - } { + ;
(b) + } The total amount of cash on hand not invested at the
close of the previous calendar or fiscal year { - , - } { + ;
(c) + } The income earned by investments in the preceding
calendar or fiscal year { - , - } { + ;
(d) + } The amounts of such income expended for maintenance in
the preceding calendar or fiscal year { - , - } { + ;
(e) + } The amount paid into the fund in the preceding calendar
or fiscal year { + ; + } and
{ + (f) + } Such other items as the director may from time to
time require to show accurately the complete financial condition
of the trust on the date of the statement.
{ - (4) - } { + (5) + } All of the information appearing on
the statement shall be verified by an owner or officer of the
cemetery authority, and a copy of the statement shall be
maintained in the business office of the cemetery authority.
{ - (5) - } { + (6) + } The director shall have authority
to require, as often as the director deems necessary, the
cemetery authority to make under oath a detailed report of the
condition and assets of any cemetery endowment care fund.
{ - (6) - } { + (7) + } At the time of the filing of the
statements of its endowment care fund each cemetery
{ - filing - } { + authority + } shall pay to the director an
annual fee as follows:
(a) Up to 100 interments per year, $40.
(b) Over 100 interments per year, $100.
{ - (7) - } { + (8) + } All fees received by the director
under this section shall be immediately turned over to the State
Treasurer who shall deposit the moneys in the Consumer and
Business Services Fund created under ORS 705.145.
{ - (8) - } { + (9) + } { - No - } { + A + } cemetery
{ - shall - } { + may not + } operate { - after July 5,
1955, - } as an endowment care, permanent maintenance or free
care cemetery until the provisions of this section are complied
with. There shall be printed or stamped at the head of all
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contracts and certificates of ownership or deeds referring to
plots in an endowment care cemetery, the following statement:
'This cemetery is an endowment care cemetery,' in lettering
equivalent to at least 10-point No. 2 black type, and there shall
be printed in the body of or stamped upon the above-described
instruments the following statement: 'Endowment care means the
general care and maintenance of all developed portions of the
cemetery and memorials erected thereon. '
{ - (9) - } { + (10) + } A cemetery { - which - }
{ + that + } otherwise complies with this section may be
designated an endowment care cemetery even though it contains a
small area { - which - } { + that + } may be sold without
endowed care, if it is separately set off from the remainder of
the cemetery. There shall be printed or stamped at the head of
all contracts and certificates of ownership or deeds referring to
plots in this area the phrase 'nonendowed care' in lettering
equivalent to at least 10-point No. 2 black type.
{ - (10) - } { + (11) + } A nonendowed care cemetery is
{ - one - } { + a cemetery + } that does not deposit in an
endowment care fund the minimum specified in subsection (1) of
this section.
{ - (11) - } { + (12) + } { - No - } { + A + } cemetery
{ - shall - } { + authority may not + } in any way advertise
or represent that it operates wholly or partially as an endowment
care { - , permanent maintenance or free care - } cemetery, or
otherwise advertise or represent that it provides general care or
maintenance of all or portions of the cemetery or memorials
erected thereon, { - until - } { + unless + } the provisions
of this section are complied with.
SECTION 6. ORS 97.820 is amended to read:
97.820. (1) Every cemetery authority that operates a cemetery
may place its cemetery under endowed care and establish, maintain
and operate an endowment care fund. All endowed care funds shall
be deposited with and held solely by the trustee or custodian
appointed by the cemetery authority. { - The provisions of this
subsection shall not apply to a city or county-owned cemetery,
unless the city or county has elected to subject itself to ORS
97.810 to 97.865. - }
(2) Endowment care and special care funds may be commingled for
investment and the income therefrom shall be divided between the
endowment care and special care funds in the proportion that each
fund contributed to the principal sum invested. The income of the
endowment care fund may be used only to finance the care of the
cemetery.
(3) The cemetery authority shall appoint as sole trustee of the
endowment care fund a trust company as defined in ORS 706.008
that is authorized to transact trust business in this state, or
an insured institution as defined in ORS 706.008 that is
authorized to accept deposits in this state. Such trust company
or insured institution shall receive and accept the fund,
including any accumulated endowment care fund in existence at the
time of its appointment and perform such duties as are agreed
upon in the agreement between it and the cemetery authority. An
insured institution not qualified to transact trust business in
this state may act as custodian of such endowment care fund
provided:
(a) The duties of the insured institution are essentially
custodial or ministerial in nature; and
(b) The insured institution invests the funds from such plan
only in its own time or savings deposits.
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(4) The trustee or custodian may resign upon written notice to
the cemetery authority or the cemetery authority may remove the
trustee or custodian by written notice to it. In case of the
resignation or removal of the trustee or custodian, the cemetery
authority forthwith shall appoint a successor trustee or
custodian and provide for the direct transfer of all endowed care
funds and earnings thereon from the former trustee or custodian
to the successor trustee or custodian.
{ - (5) ORS 294.035 does not apply to funds held by a county
or city under ORS 97.810 to 97.865. - }
SECTION 7. ORS 97.825 is amended to read:
97.825. (1) { - Should - } { + If + } the cemetery
authority { - fail - } { + fails + } to remit to the trustee
or trustees { + , + } in accordance with the law, the funds
herein provided for endowment and special care, or
{ - fail - } { + fails + } to expend { - all such funds - }
{ + the net income from the funds + } and generally care for and
maintain any portion of a cemetery entitled to endowment care,
any three lot owners whose lots are entitled to endowment care,
or any one lot owner whose lot is entitled to special care, or
the next of kin, heirs at law or personal representatives of such
lot owners, shall have the right, or the district attorney of any
county wherein is situated such lots, shall have the power, by
suit for mandatory injunction or for appointment of a receiver,
to sue for, to take charge of, and to expend such net income.
{ - Such - } { + The + } suit may be filed in the circuit
court of the county in which said cemetery is located, to compel
the expenditure either by the cemetery authority or by any
receiver so appointed by the court, of the net income from such
endowment care fund for the purposes set out in ORS 97.010 to
97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920 and
97.990.
(2) When the Director of the Department of Consumer and
Business Services has reason to believe that a cemetery endowment
care fund does not conform to the requirement of law, or when the
director has reason to believe that any cemetery is operating in
violation of ORS 97.810 or 97.820, or when { + the director has
sent + } an endowment care cemetery { - fails after 30
days' - } { + a + } notice of delinquency to make any report to
the director required by ORS 97.810, the director shall { + , as
soon thereafter as reasonable, + } give notice of the foregoing
to the trustee or trustees of the cemetery endowment care fund,
the cemetery { - for the benefit of which the fund is
established - } { + authority + }, the Attorney General of
Oregon and the State Mortuary and Cemetery Board.
{ + (3) + } Within { - 90 - } { + 120 + } days after the
receipt of such notice, the Attorney General shall institute suit
in the circuit court of any county of this state in which such
cemetery is located, for a mandatory injunction against further
sales of graves, plots, crypts, niches, burial vaults, markers or
other cemetery merchandise by such cemetery or for the
appointment of a receiver to take charge of the cemetery, unless
the Attorney General shall prior to that time be notified by the
director that such failure to conform to the requirements of the
law or to report has been corrected.
{ + (4) The Attorney General may delay instituting any suit
brought under subsection (3) of this section for no more than an
additional 30 days if, in the discretion of the Attorney General
after consulting with the director, it appears to the Attorney
General:
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(a) That the failure to conform to the requirements of the law
or to report will be corrected; and
(b) That no harm to the public will occur during the additional
30 days. + }
{ - (3) - } { + (5) + } If a trustee fails to perform the
duties of the trustee under ORS 97.810 to 97.920, the trustee
shall be liable for any damage resulting from that failure to any
lot owners or the next of kin, heirs at law or personal
representatives of such lot owners.
{ - (4) - } { + (6) + } The court may award reasonable
attorney fees, costs and disbursements to the prevailing party in
an action under this section.
SECTION 8. ORS 97.865 is amended to read:
97.865. (1) { - The - } { + A + } cemetery authority that
operates a cemetery for any religious or eleemosynary
corporation, church, religious society or denomination,
corporation sole administering temporalities of any church or
religious society or denomination and any county or city may make
an irrevocable election to have ORS 97.810 to 97.865 apply to any
cemetery controlled or operated by the cemetery authority, county
or city by filing a written statement indicating such action with
the Director of the Department of Consumer and Business Services.
The statement shall be in the form prescribed by the director and
shall contain the information specified by the director.
(2) { + (a) + } When a cemetery authority, county or city files
a statement described in this section with the director, ORS
97.810 to 97.865 { - will apply - } { + applies + } to a
cemetery controlled or operated by the cemetery authority, county
or city beginning on the first day of the fiscal year next
following the filing of the statement.
{ + (b) ORS 294.035 does not apply to funds held by a county
or city under ORS 97.810 to 97.865. + }
SECTION 9. ORS 97.870 is amended to read:
97.870. { + (1) + } In all cases where a cemetery authority
has owned a site for a cemetery for more than 40 years and has
during that period sold lots, subdivisions of lots, pieces or
parcels of the cemetery for burial purposes and the grantee or
party claiming through the grantee has not used portions of such
lots, subdivisions of lots, pieces or parcels of the cemetery for
purposes of burial and has not kept them free of weeds or brush,
but has allowed them to remain entirely unused for more than 40
years or uncared for and unused for more than 20 years prior to
the adoption of the resolution provided for in ORS 97.880, and
such lots, subdivisions of lots, pieces and parcels of the
cemetery are adjacent to improved parts thereof, and by reason of
their uncared-for condition detract from the appearance of the
cemetery and interfere with the harmonious improvement thereof,
and furnish a place for the propagation of weeds and brush,
thereby becoming a menace to adjacent property, such lots,
subdivisions of lots, pieces and parcels of such cemetery, which
are unused and uncared for as aforesaid, hereby are declared to
be a common nuisance and contrary to public policy.
{ + (2) + } The provisions of this section are not applicable
to portions of cemeteries which have been or are sold with
agreements between the cemetery authority or its successor in
interest, or both, and the grantee providing for endowment care,
permanent
{ - care, - } maintenance or free care.
SECTION 10. ORS 97.890 is amended to read:
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97.890. (1) Upon the adoption of the resolution described in
ORS 97.880 the officers of the cemetery { - association - }
{ + authority + } may file a complaint in the circuit court for
the county in which the cemetery is located against the owners,
holders or parties interested in such abandoned portion of its
cemetery demanding that the court require such owners, holders or
interested parties to keep the premises clear of weeds and brush
and in condition in harmony with other lots and, if the owners,
holders, or interested parties fail to appear in court and comply
with the order of the court, demanding that the court make a
judgment declaring such portions of the cemetery a common
nuisance, directing the governing board to abate the nuisance by
clearing the premises and keeping them clear of weeds and brush,
creating a lien upon such lots and parcels in favor of the
cemetery { - association or other proprietor - } { +
authority + }, providing that the lien be foreclosed and the lots
and parcels be sold in the same manner as other sales upon
execution are made and authorizing the governing board to become
a purchaser thereof on behalf of the { - association or the
proprietor - } { + cemetery authority + }.
(2) In such suit any number of owners of different lots,
subdivisions of lots, pieces or parcels of the cemetery may be
included in the one suit.
(3) It is a sufficient designation of the property so abandoned
and unimproved to give the lot number or portion thereof, or a
description of the piece or parcel having no lot number, together
with the name of the owner thereof, as appears on the record of
the cemetery { - association - } { + authority + }.
(4) In addition to the names of the persons that appear on the
records of the cemetery { - association - } { + authority + }
as the record owners of such unused and unimproved portions of
the cemetery, the plaintiff shall include as a defendant in a
complaint the following: 'Also all other persons unknown claiming
any right, title, estate, lien or interest in the unused and
unimproved portions of the cemetery described in the complaint. '
SECTION 11. ORS 97.900 is amended to read:
97.900. (1) Summons shall be served upon all owners or holders
who are residents of this state in like manner as in service of
summons in a civil action if such owners and holders are known to
the sheriff in the county in which the cemetery is located. If
the defendants are not known to the sheriff, it is sufficient to
serve the owners and holders whose names appear on the tax rolls
of the county for the year previous to that in which the suit is
started. The plaintiff is not required to mail a copy of the
summons or complaint to nonresident defendants.
(2) All owners and holders of such unimproved lots whose names
do not appear on the tax rolls as aforesaid as shown by the
return of the sheriff may be served by publication in any legal
newspaper published in the county in which the cemetery is
located for four consecutive weeks upon return of the sheriff
that such owners and holders are not known and cannot be served
in the jurisdiction of the sheriff.
(3) The published summons shall contain the names of the record
owners, as shown by the records of the cemetery
{ - association - } { + authority + }, and 'also all other
persons unknown claiming any right, title, estate, lien or
interest in the unused and unimproved portions of the cemetery
described in the complaint,' together with a brief description of
the lot, or subdivisions of lots, pieces or parcels of the
cemetery and a statement setting forth the order and judgment
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described in ORS 97.890 (1) for which the plaintiff has applied
to the court in the complaint. Such summons shall require all
parties defendant to appear and show cause why an order should
not be made declaring the unused and unimproved portions of the
cemeteries to be a common nuisance, directing the cemetery
{ - association or other proprietor - } { + authority + } to
abate the nuisance, creating a lien thereon, providing that it be
foreclosed and directing that the unused and unimproved portion
of the cemetery be sold within four weeks from and after the date
of the first publication thereof.
SECTION 12. ORS 97.923 is amended to read:
97.923. As used in ORS 97.923 to 97.949 and 97.994 unless the
context requires otherwise:
(1) 'Beneficiary' means the person, if known, who is to receive
the funeral and cemetery merchandise, funeral and cemetery
services or completed interment { - , entombment or
cremation - } spaces.
(2) 'Certified provider' means any person certified under ORS
97.933 to sell or offer for sale prearrangement sales contracts
or preconstruction sales contracts.
(3) 'Delivery' occurs when:
(a) Physical possession of the funeral { - and - }
{ + or + } cemetery merchandise is transferred to the purchaser;
{ + or + }
(b) { + If authorized by a purchaser under a purchase
agreement:
(A) The + } title to the funeral { - and - } { + or + }
cemetery merchandise has been transferred to the purchaser, has
been paid for, and is in the possession of the seller, who has
{ + documented the sale in the purchaser's records through use
of a serial or other identifying number and + } placed
{ - it - } { + the merchandise + }, until needed, for storage
on the seller's premises; or
{ - (c) - } { + (B) + }The merchandise has been identified
for the purchaser or the beneficiary { + as documented by the
manufacturer's receipt placed by the seller in the purchaser's
records + } and held by the manufacturer for future delivery.
(4) 'Depository' means a financial institution or trust
company, as those terms are defined ORS 706.008, that is
authorized to accept deposits in this state or to transact trust
business in this state.
(5) 'Director' means the Director of the Department of Consumer
and Business Services.
{ - (6) 'Funeral and cemetery merchandise' includes
nonperishable items of personal property customarily sold by
funeral service establishments, cemeteries, crematoriums and
monument companies, including, but not limited to, caskets,
burial vaults, memorials, markers and foundations, but shall not
include rights of interment or entombment in a cemetery section,
lawn crypt section, mausoleum or columbarium that is in existence
at the time of initial payment on the contract. - }
{ - (7) 'Funeral and cemetery services' includes all services
customarily performed: - }
{ - (a) By a funeral service practitioner, embalmer, funeral
service establishment, cemetery or crematorium licensed under ORS
chapter 692; - }
{ - (b) In conjunction with an interment, entombment or
cremation; and
{ - (c) In conjunction with the sale, installation or
erection of a memorial, marker, monument or foundation. - }
Enrolled House Bill 2864 (HB 2864-A) Page 11
{ - (8) - } { + (6) + } 'Guaranteed contract' means a
written preconstruction sales contract or prearrangement sales
contract that guarantees the beneficiary the specific undeveloped
space or spaces or funeral and cemetery merchandise or funeral
and cemetery services contained in the contract and under which
no charges other than the sales price contained in the contract
shall be required upon delivery or performance of the funeral
{ - and - } { + or + } cemetery { + merchandise or + }
services.
{ - (9) - } { + (7) + } 'Master trustee' means an entity
{ - appointed by a certified provider to administer moneys
received from the certified provider under ORS 97.941 who acts
independently from any certified provider and who - }
{ + that + } is not { - also - } a certified provider under
ORS 97.923 to 97.949 { + and that has fiduciary responsibility
for the uniform administration of funds including, but not
limited to, acceptance, custodianship, investment and accounting,
delivered to it by a certified provider for the benefit of
purchasers of preconstruction sales contracts or prearrangement
sales contracts + }. 'Master trustee' does not include a
financial institution, as defined in ORS 706.008, that acts
solely as a depository under ORS 97.923 to 97.949.
{ - (10) - } { + (8) + } 'Nonguaranteed contract' means a
written preconstruction sales contract or prearrangement sales
contract that guarantees the beneficiary the specific undeveloped
space or spaces or funeral { - and - } { + or + } cemetery
merchandise or { - funeral and cemetery - } services contained
in the contract { - and under which additional charges other
than the sales price contained in the contract may be required at
the time of delivery or performance of the funeral and cemetery
services - } { + , when the price of the merchandise and
services selected has not been fixed and will be determined by
existing prices at the time the merchandise and services are
delivered or provided + }.
{ - (11) 'Preconstruction sales' or 'preconstruction sales
contract' means any sale made to a purchaser, which has as its
purpose the furnishing of undeveloped interment, entombment or
cremation spaces and where the sale terms require payment or
payments to be made at a currently determinable time. - }
{ - (12) - } { + (9) + } 'Prearrangement sales' or
'prearrangement sales contract' means any sale, excluding the
sale and contemporaneous or subsequent assignment of a life
insurance policy or an annuity contract, made to a purchaser,
that has as its purpose the furnishing of funeral { - and - }
{ + or + } cemetery merchandise or { - funeral and
cemetery - } services in connection with the final disposition
or commemoration of the memory of a dead human body, for use at a
time determinable by the death of the person or persons whose
body or bodies are to be disposed and where the sale terms
require payment or payments to be made at a currently
determinable time.
{ + (10) 'Preconstruction sale' or 'preconstruction sales
contract' means a sale made to a purchaser, for the purpose of
furnishing undeveloped interment spaces and when the sale terms
require payment or payments to be made at a currently
determinable time. + }
{ - (13) - } { + (11) + } 'Provider' means any entity that
sells and offers for sale funeral { - and - } { + or + }
cemetery merchandise or { - funeral and cemetery - } services.
Enrolled House Bill 2864 (HB 2864-A) Page 12
{ - (14) - } { + (12) + } 'Purchaser' means a beneficiary
or a person acting on behalf of a beneficiary who enters into a
prearrangement sales contract or a preconstruction sales contract
with a certified provider under which any payment or payments
made under the contract are required to be deposited in trust
under ORS 97.941.
{ - (15) - } { + (13) + } 'Salesperson' means an individual
registered under ORS 97.931 and employed by a certified provider
to engage in the sale of prearrangement or preconstruction sales
contracts on behalf of the certified provider.
{ - (16) - } { + (14) + } 'Sales price' means the gross
amount paid by a purchaser for a prearrangement sales contract or
preconstruction sales contract, excluding sales taxes, credit
life insurance premiums and finance charges.
{ - (17) - } { + (15) + } 'Trust' means an express trust
created under ORS 97.941 whereby a trustee has the duty to
administer the amounts specified under ORS 97.941 received under
a prearrangement sales contract or a preconstruction sales
contract for the benefit of the purchaser of a prearrangement
sales contract or preconstruction sales contract.
{ - (18) - } { + (16) + } 'Undeveloped interment { - ,
entombment or cremation - } spaces' or 'undeveloped spaces'
means any space to be used for the reception of human remains
that is not completely constructed or developed at the time of
initial payment.
SECTION 13. ORS 97.925 is amended to read:
97.925. It is the purpose of ORS 97.923 to 97.949, 97.992,
97.994 and 692.180 to assure funds for performance to those
purchasers who contract through prearrangement sales contracts
for the purchase of funeral { - and - } { + or + } cemetery
merchandise { - and funeral and cemetery - } { + or + }
services, and through preconstruction sales contracts for
undeveloped interment { - , entombment or cremation - } spaces.
It is also the purpose of ORS 97.923 to 97.949, 97.992, 97.994
and 692.180 to provide for the certification or registration of
persons selling or offering for sale prearrangement sales
contracts and preconstruction sales contracts, the creation and
administration of prearrangement sales contract and
preconstruction sales contract trust funds, the disbursement and
allocation of trust funds upon the certified provider's
performance of its contractual obligations and to provide
protection for the purchaser upon the certified provider's
default.
SECTION 14. ORS 97.927 is amended to read:
97.927. (1) Except as provided in this section, ORS 97.923 to
97.949, 97.992, 97.994 and 692.180 apply to all certified
providers, master trustees and salespersons who sell or offer for
sale prearrangement sales contracts or preconstruction sales
contracts.
(2) ORS 97.923 to 97.949, 97.992, 97.994 and 692.180 do not
apply to:
(a) Agreements to sell or sales made by endowment care
cemeteries under ORS 97.929; or
(b) Any nonprofit memorial society charging less than a $100
membership fee.
{ + (3) Notwithstanding subsection (2) of this section, ORS
97.937 applies to:
(a) Agreements to sell or sales made by endowment care
cemeteries under ORS 97.929; or
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(b) Any nonprofit memorial society charging less than a $100
membership fee. + }
SECTION 15. ORS 97.933 is amended to read:
97.933. (1) A provider may not engage in prearrangement sales
or preconstruction sales unless the provider is certified by the
Director of the Department of Consumer and Business Services. The
director shall:
(a) Establish procedures for issuing certificates required by
this section.
(b) Establish standards for determining whether a certificate
should be issued.
(c) Set certification and renewal fees.
(d) Require annual renewal of certification.
(e) Establish standards for rules of conduct of certified
providers.
(2) The fees described in this section shall be reasonable and
shall defray the costs associated with the administration of ORS
97.923 to 97.949.
(3)(a) Every certified provider shall file an annual report
with the director on forms provided by the director. The annual
report shall contain any information reasonably considered
necessary by the director, including but not limited to:
(A) A disclosure of changes in trust deposits;
(B) The number of consecutively numbered prearrangement or
preconstruction sales contracts sold during the reporting period;
{ - and - }
{ + (C) A complete inventory of the funeral merchandise,
cemetery merchandise or a combination thereof delivered in lieu
of trust fund requirements under ORS 97.941, including:
(i) The location of the merchandise;
(ii) Merchandise serial numbers or warehouse receipt numbers
identified by the name of the purchaser or the beneficiary; and
(iii) The statement of the certified provider that each item of
merchandise is in the seller's possession at the specified
location; and + }
{ - (C) - } { + (D) + } The number of withdrawals from or
terminations of any trusts.
(b) If the annual report is not filed or is filed and shows any
material discrepancy, the director may take appropriate action
and send notification of the matter to the State Mortuary and
Cemetery Board.
(c) The director may relieve a certified provider of the duty
to file the annual report upon a determination that the certified
provider has performed all obligations under the prearrangement
sales contract or preconstruction sales contract, or that such
obligations lawfully have been assumed by another or have been
discharged or canceled.
(4) The director may audit the records of a certified provider
that relate to prearrangement sales or preconstruction sales, as
the director may consider appropriate. The director may refer any
matter outside of normal auditing procedures to the office of the
Attorney General for investigation and send notification of the
referral to the State Mortuary and Cemetery Board.
(5) The conduct of individuals, including salespersons as
defined in ORS 97.923, employed by a certified provider is the
direct responsibility of the certified provider.
{ + (6) A certificate issued to a provider is not
transferable. A person that seeks to purchase or otherwise
acquire control of a cemetery or funeral establishment that is a
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certified provider shall first apply to the director and obtain
approval of the purchase or change in control.
(7) A certificate issued to a provider becomes inactive when
the certificate is surrendered to the director. The director
retains jurisdiction over the provider as long as trust funds
remain on deposit for prearrangement sales contracts or
preconstruction sales contracts. While the certificate is
inactive, the provider shall:
(a) Cease all prearrangement sales to the public;
(b) Collect and deposit into trust all installment funds paid
toward contracts sold prior to becoming inactive;
(c) Seek disbursal of trust funds only in accordance with the
requirements of the written contracts and ORS 97.923 to 97.949
until the funds have been exhausted; and
(d) Continue to submit required annual reports and renewal fees
until no trust funds remain on deposit. + }
SECTION 16. ORS 97.935 is amended to read:
97.935. (1) A person may not operate as a master trustee unless
the person is registered with the Director of the Department of
Consumer and Business Services. The director shall:
(a) Establish procedures for registering persons under this
section.
(b) Establish standards for master trustees.
(c) Set registration and renewal fees.
(d) Establish standards for rules of conduct of master
trustees.
(2)(a) Every master trustee shall file an annual report with
the director on forms provided by the director. The annual report
shall contain any information reasonably considered necessary by
the director, including but not limited to:
(A) A disclosure of changes in trust deposits; and
(B) A list of all certified providers for which the master
trustee holds funds and the total amount of funds held for each
certified provider.
(b) The director may take appropriate action under ORS 97.948
and 97.949 if a master trustee fails to file the annual report or
the report contains any material discrepancy.
(c) The director may relieve a master trustee of the duty to
file the annual report upon a determination that the master
trustee has performed all obligations under the trust agreement
with each certified provider, or that the master trustee's
obligations have been lawfully assumed by another person or have
been discharged or canceled.
(3) The director may conduct an annual audit of a master
trustee. The director shall prescribe the form of audits under
this section.
(4) A master trustee who is audited under this section shall
pay all expenses and costs incurred by the director in conducting
the audit.
{ - (5) The director shall adopt rules necessary to
administer this section. The rules shall identify the specific
trust provisions that are the subject of an audit conducted under
this section. - }
SECTION 17. ORS 97.937 is amended to read:
97.937. (1) This section applies to trust deposits required to
be made by endowment care cemeteries under ORS 97.929.
(2) As used in this section, 'common trust account' means trust
funds received by a provider from two or more purchasers.
(3) All such trust funds shall be deposited by the provider
with a financial institution in the State of Oregon carrying
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deposit insurance, within 15 days after receipt thereof. A trust
fund shall be held in a separate account in the name of the
provider followed by the words 'funeral plan trust account,' in
trust for the person for whom such prearranged funeral plan is
made, or in a common trust account in the name of the provider in
trust for each person for whom such prearranged funeral plan is
made, until a trust fund is released under any of the following
conditions:
(a) Upon presentation of proof of the death of the person for
whom a prearranged funeral plan is made, the financial
institution shall release { - such trust fund - } { + the
principal and accrued income allocable to that person's
account + } to the provider.
(b) Upon presentation of the written request of the purchaser
of a revocable trust, the financial institution shall release
{ - such trust fund - } { + the principal and accrued income
allocable to the purchaser's account + } as directed in such
request.
(c) Upon presentation of proof of the death, dissolution,
insolvency or merger with another of the provider of a revocable
trust, the financial institution shall release { - such trust
fund - } { + the principal and accrued income allocable to each
purchaser's account + } to { - the - } { + that + }
purchaser.
(d) Upon presentation of proof of the death, dissolution,
insolvency or merger with another of the provider of an
irrevocable trust, the financial institution shall continue to
hold such trust fund subject to the funeral plan trust, and upon
appointment of a successor provider by the purchaser, the
purchaser's legal representative, the Director of the Department
of Consumer and Business Services or a court of competent
jurisdiction, the financial institution shall release such trust
fund to the successor provider only as provided in paragraph (a)
of this subsection.
(4) If trust funds are held in a common trust account under
subsection (3) of this section, the provider shall maintain
records showing the purchaser and beneficiary of each individual
trust fund in the account and the allocation to each individual
trust fund of interest earned by the account. { + The records
concerning allocation of interest must be updated at least
annually. + }
(5) The provider may appoint a successor depository. The
original depository shall only release the trust funds to the
successor depository { - except - } as described in
subsections (1) to (4) of this section.
(6) The financial institution { - shall in no way be - }
{ + is not + } responsible for the fulfillment of any
prearranged funeral plan, excepting only such financial
institution shall release a trust fund as provided in this
section.
(7) The director may appoint a successor provider upon a
determination that the original provider has ceased to provide
the kinds of services and things which the original provider
agreed to provide, that the purchaser or the purchaser's legal
representative cannot be readily identified or contacted and that
the appointment of a successor provider is appropriate in order
to protect the interests of the trust beneficiaries. Financial
institutions holding deposits of such trust funds shall change
their records to reflect such appointment of a successor provider
upon receipt of written notice of the appointment from the
Enrolled House Bill 2864 (HB 2864-A) Page 16
director. Where the director proposes to take such action under
this subsection, the provider being replaced shall be accorded
notice and an opportunity for hearing as provided in ORS chapter
183.
SECTION 18. ORS 97.939 is amended to read:
97.939. (1) Three copies of a written sales contract shall be
executed for each prearrangement sales contract or
preconstruction sales contract sold by a certified provider. The
certified provider shall retain one copy of the contract and a
copy of the completed contract shall be given to:
(a) The purchaser; and
(b) The depository or the master trustee, if applicable.
(2) Upon receiving a trust deposit under ORS 97.941, the master
trustee shall sign a copy of the contract received under
subsection (1) of this section { + , retain a copy for its
files + } and return the contract to the purchaser.
(3) Each completed contract shall:
(a) Comply with the plain language standards described in ORS
180.545 (1);
(b) Be consecutively numbered;
(c) Have a corresponding consecutively numbered receipt;
(d) Be preprinted or, if the certified provider uses a master
trustee, be obtained from the master trustee;
(e) Identify the purchaser and certified provider who sold the
contract;
(f) Specify whether the contract is a guaranteed contract or a
nonguaranteed contract;
(g) Specify the specific funeral { - and - } { + or + }
cemetery merchandise { - , funeral and cemetery - } { + or + }
services or undeveloped interment { - , entombment or
cremation - } spaces included and not included in the contract;
and
(h) If a guaranteed contract, disclose that the certified
provider may retain 10 percent of the sales price.
(4) { + (a) + } Notwithstanding ORS 97.943 (8), in the case of
a prearrangement sales contract, if at the time of
{ - completion of - } { + entering into + } the contract, the
beneficiary of the contract is a recipient of public assistance
or reasonably anticipates becoming a recipient of public
assistance, the contract may provide that the contract is
irrevocable.
{ + (b) + } The contract may provide for an election by the
beneficiary, or by the purchaser on behalf of the beneficiary, to
make the contract thereafter irrevocable if after the contract is
entered into, the beneficiary becomes eligible or seeks to become
eligible for public assistance.
SECTION 19. ORS 97.941 is amended to read:
97.941. (1) Upon receiving anything of value under a
prearrangement sales contract or preconstruction sales contract,
the certified provider who sold the contract shall deposit the
following amounts into one or more trust funds maintained
pursuant to ORS 97.923 to 97.949, 97.992, 97.994 and 692.180:
(a) Ninety percent of the amount received in payment of a
guaranteed prearrangement sales contract or guaranteed
preconstruction sales contract. The remaining 10 percent shall be
paid to the provider who sold the contract; or
(b) One hundred percent of the amount received in payment of a
nonguaranteed prearrangement sales contract or nonguaranteed
preconstruction sales contract.
Enrolled House Bill 2864 (HB 2864-A) Page 17
(2) All trust deposits required by ORS 97.923 to 97.949,
97.992, 97.994 and 692.180 shall be { - made - } { + placed
in a depository or delivered to a master trustee + } within five
business days of their receipt.
(3) { + (a) The + } trust deposits { - required under ORS
97.923 to 97.949, 97.992, 97.994 and 692.180 shall be placed in a
depository as defined in ORS 97.923. The trust deposits - }
{ + of a provider that does not use the services of a master
trustee + } shall be maintained in a depository, except that the
provider { - of a prearrangement sales contract or
preconstruction sales contract - } may invest the trust funds in
a manner that is, in the opinion of the provider, reasonable and
prudent under the circumstances { - , provided that all
investments are - } { + .
(b) A provider that invests trust funds may invest the funds
only in:
(A) + } Certificates of deposit { - , - } { + ;
(B) + } U.S. Treasuries { - , - } { + ;
(C) + } Issues of U.S. government agencies { - , - } { + ;
(D) + } Guaranteed investment contracts { - , - } { + ; or
(E) + } Banker's acceptances or corporate bonds rated A or
better by Standard & Poor's Corporation or Moody's Investors
Service { + . + } { - , and provided that - }
{ + (c) + } All investments { + made under paragraph (b) of
this subsection + }shall be placed in the custody of the
depository in which the trust funds were originally deposited or
any other depository that may qualify under ORS 97.923 to 97.949.
{ + (d) + } Prearrangement sales contract trust fund and
preconstruction sales contract trust fund accounts shall be in
the name of the provider who sold the contract under ORS 97.923
to 97.949, 97.992, 97.994 and 692.180.
(4) Funds deposited in the trust fund account shall be
identified in the records of the provider by the name of the
purchaser and beneficiary and adequate records shall be
maintained to allocate all earnings to each prearrangement sales
contract or preconstruction sales contract. Nothing shall prevent
the provider from commingling the deposits in any such trust fund
account for purposes of managing and investing the funds. A
common trust fund account shall be identified by the name of the
provider.
(5) When a prearrangement sales contract or preconstruction
sales contract includes rights of interment { - , entombment or
cremation, - } { + and + } funeral or cemetery merchandise or
{ - funeral or cemetery - } services, the application of
payments received under the contract shall be clearly provided in
the contract.
(6) Any person engaging in prearrangement sales or
preconstruction sales who enters into a combination sale which
involves the sale of items subject to trust and any item not
subject to trust shall be prohibited from increasing the sales
price of those items not subject to trust with the purpose of
allocating a lesser sales price to items which require a trust
deposit.
(7)(a) A provider may appoint a successor provider. The
depository shall release the trust funds deposited under ORS
97.923 to 97.949, 97.992, 97.994 and 692.180 { + and accrued
income + } only to the successor provider as described in ORS
97.943 and 97.944 or upon presentation of the written request of
the purchaser.
Enrolled House Bill 2864 (HB 2864-A) Page 18
(b) If appointing a successor provider under this subsection,
the original provider shall notify the Director of the Department
of Consumer and Business Services of the proposed change at least
30 days prior to the appointment.
(8)(a) A provider may appoint a successor depository or a
master trustee { - that is a depository - } as defined in ORS
97.923.
(b) If appointing a successor depository or master trustee
under this subsection, the provider, the successor depository and
the master trustee must notify the director of the proposed
change at least 30 days prior to the appointment.
{ + (9)(a) The director may appoint a successor certified
provider upon a determination that:
(A) The original certified provider has ceased to provide the
services and merchandise that the original certified provider
agreed to provide;
(B) The certificate issued to the original certified provider
has been revoked or surrendered; and
(C) The appointment of a successor certified provider is
appropriate in order to protect the interests of the purchasers
and beneficiaries of prearrangement sales contracts or
preconstruction sales contracts.
(b) Depositories or master trustees holding deposits of trust
funds by the original certified provider shall change their
records to reflect the appointment of a successor certified
provider upon receipt of written notice of the appointment from
the director. + }
{ - (9) - } { + (10) + } The trust fund accounts shall be a
single purpose fund. In the event of the provider's bankruptcy,
the funds { + and accrued income + } shall not be available to
any creditor as assets of the provider, but shall be distributed
to the purchasers or managed for their benefit by the trustee in
bankruptcy, receiver or assignee.
{ - (10)(a) - } { + (11)(a) + } If the original provider is
licensed under ORS chapter 692 and voluntarily surrenders the
license to the State Mortuary and Cemetery Board, the original
provider shall transfer responsibility as provider under this
section to a successor provider who holds a certificate issued by
the director under ORS 97.933.
(b) If the original provider is not licensed under ORS chapter
692, upon presentation of proof of the death, dissolution,
insolvency or merger with another provider of the original
provider, the depository shall release the prearrangement trust
fund deposits or preconstruction trust fund deposits to the
purchaser.
(c) If the original provider is licensed under ORS chapter 692,
upon proof of the death, insolvency or involuntary surrender of
the license of the original provider, the depository shall
release the prearrangement trust fund deposits or preconstruction
trust fund deposits to the purchaser.
{ - (11) - } { + (12) + } The purchaser or beneficiary of a
prearrangement sales contract or preconstruction sales contract
may be named cotrustee with the provider with the written consent
of the purchaser or beneficiary.
{ - (12) - } { + (13) + } A provider who has not appointed
a master trustee shall have an annual audit of all trust account
funds performed by an independent certified public accountant in
accordance with generally accepted { - audit - }
{ + accounting + } procedures. The provider shall make the audit
results available to the director if requested.
Enrolled House Bill 2864 (HB 2864-A) Page 19
{ - (13) - } { + (14) + } As used in this section, 'common
trust fund account' means trust funds received by a provider from
two or more purchasers.
SECTION 20. ORS 97.943 is amended to read:
97.943. (1) A depository { - shall make no - } { + may not
make any + } distributions from prearrangement sales contract
trust deposits except as provided in this section.
(2) The principal of a trust created pursuant to a
prearrangement sales contract shall be paid to the certified
provider who sold the contract if the certified provider who sold
the contract swears, by affidavit, that the certified provider
has delivered all merchandise and performed all services required
under the prearrangement sales contract and delivers to the
depository one of the following:
(a) A certified death certificate of the beneficiary; or
(b) A sworn affidavit signed by the certified provider and by:
(A) One member of the beneficiary's family; or
(B) The executor of the beneficiary's estate.
(3) The principal of a trust created pursuant to a
prearrangement sales contract shall be paid to the purchaser if
the original provider is no longer qualified to serve as provider
under ORS 97.941 (10).
(4) Upon completion by the certified provider of the actions
described in subsection (2) of this section, the depository shall
pay to the certified provider from the prearrangement sales
contract trust fund an amount equal to the sales price of the
merchandise delivered.
(5) Upon the final payment to the certified provider of the
principal in trust under subsection (2) of this section, the
undistributed earnings of the trust shall be paid to:
(a) The certified provider who sold the contract if the
contract is a guaranteed contract; or
(b) The contract purchaser, or the purchaser's estate, if the
contract is a nonguaranteed contract.
(6) The depository may rely upon the certifications and
affidavits made to it under the provisions of ORS 97.923 to
97.949, 97.992, 97.994 and 692.180, and shall not be liable to
any person for such reliance.
(7) If for any reason a certified provider who sold the
prearrangement sales contract has refused to comply, or cannot or
does not comply with the terms of the prearrangement sales
contract within a reasonable time after the certified provider is
required to do so, the purchaser or heirs or assigns or duly
authorized representative of the purchaser or the beneficiary
shall have the right to a refund in the amount equal to the sales
price paid for undelivered merchandise and unperformed services
plus undistributed earnings amounts held in trust attributable to
such contract, within 30 days of the filing of a sworn affidavit
with the certified provider who sold the contract and the
depository setting forth the existence of the contract and the
fact of breach. A copy of this affidavit shall be filed with the
Director of the Department of Consumer and Business Services. In
the event a certified provider who has sold a prearrangement
sales contract is prevented from performing by strike, shortage
of materials, civil disorder, natural disaster or any like
occurrence beyond the control of the certified provider, the
certified provider's time for performance shall be extended by
the length of such delay.
(8) { + Except for an irrevocable contract described in ORS
97.939 (4), + } at any time prior to the death of the beneficiary
Enrolled House Bill 2864 (HB 2864-A) Page 20
of a prearrangement sales contract, the purchaser of the
prearrangement sales contract may cancel the contract and shall
be entitled to a { + refund of all amounts paid on the
contract, all amounts in trust including earnings allocated to
the contract that are in excess of all amounts paid on the
contract and unallocated earnings on trust contract amounts from
the date of the last allocation to the date of the refund
request, less any amounts paid for merchandise already delivered
or services already performed, which amounts may be retained by
the certified provider as compensation. + } { - 100 percent
refund of the entire amount paid on the contract including
undistributed earnings attributable to such amount, but excluding
any amount paid for merchandise already delivered, which amount
shall be retained by the certified provider who sold the contract
as liquidated damages. - }
(9) Notwithstanding ORS 97.941 (4) and subsection (5) of this
section, upon receiving a sworn affidavit from the { + master
trustee or + } provider stating that qualifying expenses, taxes
or fees have been incurred, a depository shall allow a
{ + master trustee or + } provider to pay from earnings of trust
fund deposits any expenses, accounting fees, taxes, depository
fees, investment manager fees and other fees as may be necessary
to enable the provider to comply with the reporting required by
ORS 97.923 to 97.949, and to perform other services for the trust
as may be authorized by ORS 97.923 to 97.949. Any payment of
expenses or fees from earnings of a trust fund deposit under this
subsection shall not:
(a) Exceed an amount equal to two percent per calendar year of
the value of the trust as determined on the first day of January
of each calendar year;
(b) Include the payment of any fee to the provider in
consideration for services rendered as provider; or
(c) Reduce, diminish or in any other way lessen the value of
the trust fund deposit so that the services or merchandise
provided for under the contract are reduced, diminished or in any
other way lessened.
SECTION 21. ORS 97.944 is amended to read:
97.944. (1) A depository { - shall make no - } { + may not
make any + } distributions from preconstruction sales contract
trust deposits except as provided in this section.
(2) { + (a) + } The construction or development of undeveloped
interment { - , entombment or cremation - } spaces shall be
commenced on the phase of construction or development, or the
section or sections of spaces in which sales are made within five
years of the date of the first sale. The certified provider who
sold the preconstruction sales contract shall give written notice
including a description of the project to the Director of the
Department of Consumer and Business Services no later than 30
days after the first sale.
{ + (b) + } Once commenced, construction or development shall
be pursued diligently to completion. The first phase of
construction must be completed within seven years of the first
sale. { + However, any delay caused by strike, shortage of
materials, civil disorder, natural disaster or any similar
occurrence beyond the control of the certified provider extends
the time of completion by the length of a delay.
(c) + } If construction or development is not commenced or
completed within the times specified, any contract purchaser may
surrender and cancel the contract and upon cancellation shall be
entitled to a refund of the actual amounts paid toward the
Enrolled House Bill 2864 (HB 2864-A) Page 21
purchase price { + , together with interest accrued on the amount
deposited to the trust + }. { - However, any delay caused by
strike, shortage of materials, civil disorder, natural disaster
or any like occurrence beyond the control of the certified
provider shall extend the time of such completion by the length
of such delay. - }
(3) Except as otherwise authorized by this section, every
certified provider selling undeveloped spaces shall provide
facilities for temporary interment { - or entombment or for
cremation - } for purchasers or beneficiaries of contracts who
die prior to completion of the space. Such temporary facilities
shall be constructed of permanent materials, and, insofar as
practical, be landscaped and groomed to the extent customary in
that community. The heirs, assigns or personal representative of
a purchaser or beneficiary shall not be required to accept
temporary underground interment space where undeveloped space
contracted for was an aboveground entombment or
{ - cremation - } { + inurnment + } space. In the event that
temporary facilities as described in this subsection are not made
available upon the death of a purchaser or beneficiary, the
heirs, assigns or personal representative is entitled to a refund
of the entire sales price paid plus undistributed interest
attributable to such amount while in trust.
(4) If the certified provider who sold the preconstruction
sales contract delivers a completed space acceptable to the
heirs, assigns or personal representative of a purchaser or
beneficiary, other than a temporary facility, in lieu of the
undeveloped space purchased, the certified provider shall provide
the depository with a delivery certificate and all sums deposited
under the preconstruction sales contract { + and income
allocable to that contract + } shall be paid to the certified
provider.
(5) During the construction or development of interment { - ,
entombment or cremation - } spaces, upon receiving the sworn
certification { - by - } { + of + } the certified provider
who sold the preconstruction sales contract and the contractor,
the depository shall disburse from the trust fund the amount
equivalent to the cost of performed labor or delivered materials
as certified { + , not to exceed the amounts deposited and income
allocable to those contracts + }. A person who executes and
delivers a completion certificate with actual knowledge of a
falsity contained therein shall be considered in violation of ORS
97.923 to 97.949 and 692.180.
(6) Upon completion of the phase of construction or
development, section or sections of the project as certified to
the depository by the certified provider and the contractor, the
trust requirements shall terminate and all funds held in the
preconstruction sales contract trust fund attributable to the
completed phase, section or sections shall be paid to the
certified provider who sold the preconstruction sales contract.
(7) Upon the payment to a certified provider of preconstruction
sales contract trust funds under subsection (4) or (6) of this
section, the undistributed income of the trust shall be paid to:
(a) The certified provider who sold the contract if the
contract is a guaranteed contract; or
(b) The contract purchaser, or the purchaser's estate, if the
contract is a nonguaranteed contract.
(8) If the preconstruction sales contract purchaser defaults in
making payments under an installment preconstruction sales
contract, and default continues for at least 30 days after the
Enrolled House Bill 2864 (HB 2864-A) Page 22
purchaser has received written notice of default, the certified
provider who sold the contract may cancel the contract and
withdraw from the trust fund the entire balance of the defaulting
purchaser's account as { - liquidating - } { + liquidated + }
damages. Upon certification of the default, the depository shall
deliver the balance to the certified provider. The depository may
rely on the certification and affidavits made to it under the
provisions of ORS 97.923 to 979.949, 97.992, 97.994 and 692.180
and shall not be liable to any person for such reliance.
{ - (9) This section and the trust fund requirements in ORS
97.941 shall not apply to the sale of undeveloped spaces if there
has been any such sale in the same phase of construction or
development or the section or sections of the project prior to
September 27, 1987. - }
SECTION 22. { + Sections 23, 24 and 25 of this 2007 Act are
added to and made a part of ORS 97.923 to 97.949. + }
SECTION 23. { + (1) In addition to other actions authorized
under ORS 97.948 (2), the Director of the Department of Consumer
and Business Services may:
(a) Issue an emergency order suspending or restricting a
certificate or registration or ordering a certified provider or
master trustee or a person acting as a certified provider or
master trustee to cease and desist from specified conduct; or
(b) Take other action deemed necessary by the director in the
circumstances.
(2) The director shall promptly provide opportunity for hearing
pursuant to ORS chapter 183.
(3) Emergency orders are:
(a) Effective when issued;
(b) Reviewable as provided in ORS 183.480; and
(c) Enforceable in the courts of this state. + }
SECTION 24. { + (1) The Attorney General, on behalf of the
Director of the Department of Consumer and Business Services, may
petition the circuit courts of this state for appointment of a
receiver for a certified provider or person acting as a certified
provider without certification.
(2) If the court determines that a receivership is necessary or
advisable, the court shall appoint a receiver:
(a) When a receiver would ensure the orderly and proper conduct
of a provider's professional business and affairs during or in
the aftermath of an administrative proceeding to revoke or
suspend the provider;
(b) When a receiver would protect the public's interest and
rights in the business, premises or activities of the provider
sought to be placed in receivership;
(c) Upon a showing of serious and repeated violations of ORS
97.923 to 97.949 demonstrating an inability or unwillingness to
comply with the provisions of ORS 97.923 to 97.949;
(d) When a receiver would prevent loss, wasting, dissipation,
theft or conversion of assets that should be marshaled and held
available for the honoring of obligations under ORS 97.923 to
97.949; or
(e) When the court receives proof of other grounds that the
court deems good and sufficient for instituting receivership
action concerning the receiver sought to be placed in
receivership.
(3)(a) A receivership under this section may be temporary or
for the winding up and dissolution of a business, as the director
may request and the court determines to be necessary or advisable
in the circumstances.
Enrolled House Bill 2864 (HB 2864-A) Page 23
(b) Venue of receivership proceedings may be, at the director's
request, in Marion County or the county where the subject of the
receivership is located. The appointed receiver shall be the
director or a person that the director nominates and that the
court approves.
(c) The director may expend money from budgeted funds or the
Funeral and Cemetery Consumer Protection Trust Fund to implement
a receivership. Any expenditures are a claim against the estate
in the receivership proceedings. + }
SECTION 25. { + The Director of the Department of Consumer and
Business Services may adopt rules that are necessary or
appropriate to:
(1) Protect purchasers of prearrangement sales contracts and
preconstruction sales contracts and the public; and
(2) Administer ORS 97.923 to 97.949. + }
SECTION 26. ORS 65.860 is amended to read:
65.860. (1) A nonprofit corporation organized or existing
solely for the purposes of either owning and operating a cemetery
or cremating dead bodies and burying and caring for incinerate
remains may, by its bylaws, provide that a stated percentage of
the money received from the sale of lots and burial space,
cremation of bodies, donations, gifts or other sources of revenue
shall constitute an irreducible fund. Any bylaw enacted for the
creation of the irreducible fund cannot be amended to reduce the
fund.
(2) The board of directors may direct the investment of the
money in the irreducible fund, but all investments of money
deposited in the fund on or after January 1, 1972, shall be in
securities in classes and amounts approved by the State Treasurer
and published in a list pursuant to ORS 97.820. If a bank or
trust company qualified to engage in the trust business is
directed by the board of directors to invest the money in the
irreducible fund, the bank or trust company shall be governed by
ORS 130.750 to 130.775 and shall not be required to invest the
money according to the list approved by the State Treasurer. An
officer of the corporation shall file with the Director of the
Department of Consumer and Business Services on or before April
15 of each year a verified statement in duplicate containing the
same information pertaining to the irreducible fund as provided
in ORS 97.810 { - (3) - } { + (4) + } regarding endowment care
funds. The director may require the corporation to file, as often
as the director considers it to be necessary, a detailed report
of the conditions and assets of the irreducible fund.
(3) The interest or income arising from the irreducible fund
provided for in this section or by any bylaws, or so much thereof
as is necessary, shall be devoted exclusively to the preservation
and embellishment of the grounds, buildings and property of the
corporation and the lots and space in buildings or grounds sold
to the members of the corporation, or to the payment of the
interest or principal of the debts authorized by subsection (5)
of this section for the purchase of land, erecting buildings, and
improvements. Any surplus thereof not needed or used for such
purposes shall be invested as provided in this section and shall
become part of the irreducible fund.
(4) After paying for the land and the erection of the original
buildings and improvements thereon, all the future receipts and
income of the corporation subject to the provisions in this
section relating to the creation of an irreducible fund, whether
from the sale of lots and burial space, cremation of bodies,
donations, gifts and other sources, shall be applied exclusively
Enrolled House Bill 2864 (HB 2864-A) Page 24
to laying out, preserving, protecting, embellishing and
beautifying the cemetery or the crematory and grounds thereof,
and the avenues leading thereto, and to the erection of such
buildings and improvements as may be necessary or convenient for
cemetery or crematory purposes, and to pay the necessary expenses
of the corporation.
(5) No debts shall be contracted by such corporation in
anticipation of any future receipts, except for originally
purchasing the lands authorized to be purchased by it, laying out
and embellishing the grounds and avenues, erecting buildings and
vaults on such land, and improving them for the purposes of the
corporation. The corporation may issue bonds or notes for debts
so contracted and may secure them by way of mortgage upon any of
its lands, buildings, property and improvements excepting lots or
space conveyed to the members.
SECTION 27. ORS 646.551 is amended to read:
646.551. As used in ORS 646.551 to 646.557, unless the context
requires otherwise:
(1) 'Telephonic seller' means a person who, on the person's own
behalf, or on behalf of another person, causes or attempts to
cause a telephone solicitation to be made under the following
circumstances:
(a) The person initiates telephonic contact with a prospective
purchaser and represents or implies any of the following:
(A) That a prospective purchaser who buys one or more goods or
services unit will receive additional units, whether or not of
the same type as purchased, without further cost. As used in this
subparagraph, 'further cost' does not include actual postage or
common carrier delivery charges, if any;
(B) That a prospective purchaser will receive a prize or gift
if the person also encourages the prospective purchaser to do
either of the following:
(i) Purchase or rent any goods or services; or
(ii) Pay any money, including, but not limited to a delivery or
handling charge;
(C) That a prospective purchaser who buys goods or services,
because of some unusual event or imminent price increase, will be
able to buy these items at prices which are below those usually
charged or will be charged for those items;
(D) That the seller is a person other than the actual seller;
(E) That the items for sale or rent are manufactured or
supplied by a person other than the actual manufacturer or
supplier; or
(F) That the items for sale are gold, silver or other precious
metals, diamonds, rubies, sapphires or other precious stones or
any interest in oil, gas or mineral fields, wells or exploration
sites; or
(b) The telephone solicitation is made by the person in
response to inquiries from prospective purchasers generated by
advertisement, on behalf of the person and the solicitation is
conducted as described in paragraph (a) of this subsection.
(2) 'Telephonic seller' does not include any of the following:
(a) A person selling a security as defined in ORS 59.015, or
securities which are exempt under ORS 59.025.
(b) A person licensed pursuant to ORS chapter 696 when the
transaction is governed by that chapter.
(c) A person licensed pursuant to ORS 701.055 when the
solicited transaction is governed by ORS chapter 701.
(d) A person licensed pursuant to ORS chapter 744 when the
solicited transaction is governed by the Insurance Code.
Enrolled House Bill 2864 (HB 2864-A) Page 25
(e) A person soliciting the sale of a franchise when the
solicited transaction is governed by ORS 650.005 to 650.100.
(f) A person primarily soliciting the sale of a subscription to
or advertising in a newspaper of general circulation.
(g) A person primarily soliciting the sale of a magazine or
periodical, or contractual plans, including book or record clubs:
(A) Under which the seller provides the consumer with a form
which the consumer may use to instruct the seller not to ship the
offered merchandise, and which is regulated by the Federal Trade
Commission trade regulation concerning 'Use of Negative Option
Plans by Sellers in Commerce'; or
(B) Using arrangements such as continuity plans, subscription
arrangements, standing order arrangements, supplements and series
arrangements under which the seller periodically ships
merchandise to a consumer who has consented in advance to receive
such merchandise on a periodic basis.
(h) A person soliciting business from prospective purchasers
who have previously purchased from the business enterprise for
which the person is calling.
(i) A person soliciting without the intent to complete and who
does not complete the sales presentation during the telephone
solicitation and who only completes the sale presentation at a
later face-to-face meeting between the solicitor and the
prospective purchaser, unless at that later meeting the solicitor
collects or attempts to collect payment for delivery of items
purchased.
(j) Any supervised financial institution or parent, subsidiary,
or affiliate thereof. As used in this paragraph, ' supervised
financial institution' means any financial institution or trust
company, as those terms are defined in ORS 706.008, or any
personal property broker, consumer finance lender, commercial
finance lender or insurer that is subject to regulation by an
official or agency of this state or the United States.
(k) A person soliciting the sale of funeral or burial services
regulated { - by ORS 59.670 and 59.680 or - } by ORS chapter
692.
(L) A person soliciting the sale of services provided by a
cable television system operating under authority of a franchise
or permit issued by a governmental agency of this state, or
subdivision thereof.
(m) A person or affiliate of a person whose business is
regulated by the Public Utility Commission, or a
telecommunications utility with access lines of 15,000 or less or
a cooperative telephone association.
(n) A person soliciting the sale of a farm product, as defined
in ORS 79.0102, if the solicitation does not result in a sale
which costs the purchaser in excess of $100.
(o) An issuer or a subsidiary of an issuer that has a class of
securities that is subject to section 12 of the Securities
Exchange Act of 1934 and that is either registered or exempt from
registration under paragraph (A), (B), (C), (E), (F), (G) or (H)
of subsection (g) of that section.
(p) A person soliciting exclusively the sale of telephone
answering services to be provided by that person or that person's
employer.
(q) A person registered under the Charitable Solicitations Act.
SECTION 28. { + ORS 59.660, 59.670, 59.680, 59.690 and 59.700
are repealed. + }
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Enrolled House Bill 2864 (HB 2864-A) Page 26
Passed by House May 8, 2007
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate June 6, 2007
...........................................................
President of Senate
Enrolled House Bill 2864 (HB 2864-A) Page 27
Received by Governor:
......M.,............., 2007
Approved:
......M.,............., 2007
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2007
...........................................................
Secretary of State
Enrolled House Bill 2864 (HB 2864-A) Page 28