HOUSE BILL No. 4389


     March 9, 1999, Introduced by Rep. LaSata and referred to the Committee on Family and Civil Law.


        A bill to amend 1986 PA 255, entitled

   "Prepaid funeral contract funding act,"

   by amending sections 4, 5, 6, 8, 11, 20, and 22 (MCL 328.214,

   328.215, 328.216, 328.218, 328.221, 328.230, and 328.232).

               THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 1         Sec. 4.  (1) "Depository" means a state or national bank

 2     which  THAT is a member of the federal deposit insurance corpo-

 3    ration, a state or federal savings and loan association  which 

 4    THAT is a member of the federal savings and loan insurance corpo-

 5    ration, or a state or federally chartered credit union  which 

 6    THAT is insured by the national credit union administration, or a

 7    trust company authorized to do business in this state.

 8    Depository includes the trust department, if any, of an entity

 9    referred to in this subsection.




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 1         (2) "DESIGNEE" MEANS AN EMPLOYEE OF THE REGISTRANT WHO IS

 2    AUTHORIZED TO RECEIVE PRINCIPAL AND INCOME HELD BY THE ESCROW

 3    AGENT ON BEHALF OF THE REGISTRANT.

 4         (3)  (2)  "Escrow agent" means a person who holds, invests,

 5    and disburses principal and income from the funds received under

 6    a prepaid funeral contract.

 7         (4)  (3)  "Funds" means all money or other consideration

 8    actually received from a contract buyer by a contract seller or

 9    provider or an assignee  from  OF the contract buyer in connec-

10    tion with any aspect of the sale of a prepaid funeral contract

11    including finance charges.  , but does  FUNDS DO not include late

12    payment penalties, payments required to be made to a governmental

13    agency at the time the contract is entered into, or a commission

14    authorized by section 12(1).

15         (5)  (4)  "Funeral goods" means items of merchandise sold or

16    offered for sale or lease to consumers  which  THAT will be used

17    in connection with a funeral or an alternative to a funeral or

18    final disposition of human remains  including  AND INCLUDE, but

19    ARE not limited to, caskets, combination units, and catafalques.

20    Funeral goods  shall  DO not include  land  THE FOLLOWING:

21         (A) LAND or interests in land, crypts, lawn crypts, mauso-

22    leum crypts, or niches that are sold by a cemetery  which  THAT

23    complies with the endowment care fund requirements of the ceme-

24    tery regulation act,  Act No. 251 of the Public Acts of 1968,

25     being sections 456.521 to 456.543 of the Michigan Compiled Laws 

26    1968 PA 251, MCL 456.521 TO 456.543.  In addition, funeral goods

27     shall not include cemetery 



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 1         (B) CEMETERY burial vaults or other outside containers,

 2    markers, monuments, urns,  and  OR merchandise items used for the

 3    purpose of memorializing a decedent and placed on or in proximity

 4    to a place of interment or entombment of a casket, catafalque, or

 5    vault or to a place of inurnment which are sold  by a cemetery

 6     which deposits at least 130% of the cost of these items in a mer-

 7     chandise trust account established and operated  AND DEPOSITED IN

 8    A TRUST ACCOUNT in accordance with the cemetery regulation act,

 9     Act No. 251 of the Public Acts of 1968, being sections 456.521

10     to 456.543 of the Michigan Compiled Laws  1968 PA 251, MCL

11    456.521 TO 456.543.

12         (6)  (5)  "Funeral services" means services customarily per-

13    formed by a mortuary science licensee who is licensed pursuant to

14     sections 1801 to 1812  ARTICLE 18 of the occupational code,  Act

15     No. 299 of the Public Acts of 1980, being sections 339.1801 to

16     339.1812 of the Michigan Compiled Laws  1980 PA 299, MCL 339.1801

17    TO 339.1812.  Further, funeral  FUNERAL services  includes 

18    INCLUDE, but  is  ARE not limited to, THE care of dead human

19    remains, embalming, preparation of dead human remains for final

20    disposition, professional services relating to a funeral or an

21    alternative to a funeral or final disposition of dead human

22    remains, transportation of dead human remains, limousine serv-

23    ices, use of facilities or equipment for viewing dead human

24    remains, visitation, memorial services, or services  which  THAT

25    are used in connection with a funeral or AN alternative to a

26    funeral, coordinating or conducting funeral rites or ceremonies,

27    and other services provided in connection with a funeral,



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 1    alternative to a funeral, or final disposition of dead human

 2    remains.

 3         (7)  (6)  "Guaranteed price contract" means a prepaid

 4    funeral contract under which funds received are held pursuant to

 5    an escrow agreement.  The  A GUARANTEED PRICE contract has a

 6    guaranteed fixed price for which specified funeral goods or

 7    funeral services are required to be sold to or made available

 8     for  TO a contract buyer or for a contract beneficiary, regard-

 9    less of the cost or value of the funeral goods or funeral serv-

10    ices at the time of death of the contract beneficiary.  Under the

11    guaranteed price contract, additional consideration  shall  IS

12    not  be  charged for  the originally contracted for  THOSE

13    funeral goods and funeral services.  at the time of delivery of

14     the funeral goods and funeral services contracted for. 

15         (8)  (7)  "Income" means the money earned by the investment

16    of the principal, including, but not limited to, interest, divi-

17    dends, and gains or losses on the sale of, deposit of, or

18    exchange of, property using invested principal amounts.

19         Sec. 5.  (1) "Nonguaranteed price contract" means a prepaid

20    funeral contract under which funds received are held pursuant to

21    an escrow agreement between a contract seller or provider and a

22    contract buyer.  Under the terms of  this  A NONGUARANTEED PRICE

23    contract, a contract seller or provider agrees to apply the prin-

24    cipal and income to the cost of the funeral goods or funeral

25    services  which funeral goods and funeral services  THAT may be

26    selected by the contract buyer at the time the contract is signed

27    or as selected by a person legally authorized to procure funeral



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 1    goods and funeral services at the time of death of the contract

 2    beneficiary.  However, this  A NONGUARANTEED PRICE contract

 3     shall  DOES not obligate the contract beneficiary's estate or

 4    the person  who is  legally entitled to make funeral arrangements

 5    for a deceased contract beneficiary to purchase specific goods

 6    and services  which were  selected before the contract

 7    beneficiary's death  , nor shall this contract  AND DOES NOT

 8    obligate either the contract beneficiary's estate or the person

 9     who is  LEGALLY entitled to make funeral arrangements for a

10    deceased contract beneficiary to expend a specific amount OF

11    MONEY on funeral goods or funeral services.

12         (2) "Person" means an individual, group of individuals, sole

13    proprietorship, partnership, association, corporation, a govern-

14    mental agency, or a combination of these legal entities.

15         (3) "Prepaid funeral contract" means a contract requiring

16    payment in advance for funeral services or for funeral goods,

17    physical delivery and retention of which would occur after death

18    OF THE CONTRACT BENEFICIARY under a guaranteed price contract or

19    a nonguaranteed price contract.  Prepaid funeral  contracts

20     shall  CONTRACT DOES not include a contract for the sale of

21    funeral goods or funeral services  which is  entered into after

22    the death of the  person for whose benefit the goods or services

23     are acquired  CONTRACT BENEFICIARY.

24         (4) "Principal" means the money, finance charges, or other

25    consideration actually deposited in the escrow accounts required

26    by section 12.





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 1         (5) "Provider" means any person who furnishes or agrees to

 2    furnish funeral goods or funeral services pursuant to a prepaid

 3    funeral contract, whether or not that person is the contract

 4    seller.  In the case of funeral goods, provider  shall mean 

 5    MEANS the person who arranges for delivery of the funeral goods

 6    at the time of the death of the contract beneficiary and DOES not

 7    INCLUDE the manufacturer of the FUNERAL goods.  In the case of

 8    funeral services, provider  shall mean  MEANS a person licensed

 9    pursuant to section  1806(3)  1806 of the occupational code,  Act

10     No. 299 of the Public Acts of 1980, being section 339.1806(3) of

11     the Michigan Compiled Laws  1980 PA 299, MCL 339.1806.

12         (6) "Registrant" means a person  who has  registered with

13    the department pursuant to section 6.

14         (7) "SUCCESSOR" MEANS THE SUCCEEDING REGISTRANT WHO HAS

15    AGREED TO ACCEPT THE ASSIGNMENT OF PREPAID FUNERAL CONTRACTS

16    WRITTEN UNDER THE PREVIOUS REGISTRATION.

17         Sec. 6.  (1) A person shall not sell, provide, or agree to

18    provide funeral goods or funeral services pursuant to a prepaid

19    funeral contract unless that person is registered with the

20    department as provided in this section and has received a certif-

21    icate of registration.

22         (2)  A person desiring to  TO receive a certificate of reg-

23    istration under this section, A PERSON shall  make application

24     upon  APPLY ON forms provided by the department and pay an appli-

25    cation fee of $120.00.  The original registration may be

26    renewed.  A certification of registration shall be valid for 3

27     years from the date of its issuance.  A REGISTRATION SHALL EXPIRE



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 1    ON SEPTEMBER 30 AND BE VALID FOR A 3-YEAR PERIOD. An application

 2    form for original registration or renewal shall contain the

 3    following:

 4         (a) The name and business address of the  entity

 5     registering  PERSON APPLYING FOR REGISTRATION.

 6         (b) The names and addresses of persons owning 10% or more

 7    interest in the  entity  PERSON applying for registration.

 8         (c) The business address where books and records pertaining

 9    to prepaid funeral contracts  shall be  ARE maintained for

10    inspection by the department.

11         (d) A list of the names and addresses of any escrow agents

12     in which  WITH WHOM funds have been DEPOSITED or will be depos-

13    ited by the registrant.  which after registration shall be con-

14     stantly updated.  The registrant shall CONSTANTLY UPDATE THE LIST

15    AND SHALL inform the department of any change in this list within

16    30 days  of  AFTER the change by adding to the list the name and

17    address of any new escrow agent or by deleting from the list an

18    escrow agent whose services are no longer being used by the

19    registrant.

20         (e) A SWORN statement  made under oath  INDICATING that the

21    registrant has an agreement with each escrow agent with  which 

22    WHOM it has deposited funds  which  THAT complies with the

23    requirements of section 7.

24         (3) AN APPLICATION SHALL BE ACCOMPANIED BY THE FOLLOWING

25    APPLICABLE OWNERSHIP DOCUMENTATION:

26         (A) ARTICLES OF INCORPORATION.





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 1         (B) CORPORATE CERTIFICATE OF ASSUMED NAME.

 2         (C) CORPORATE CERTIFICATE OF COPARTNERSHIP.

 3         (D) CERTIFICATE OF ASSUMED NAME.

 4         (4)  (3)  The department shall renew the registration of a

 5    person who applies for renewal upon a form provided by the

 6    department and  pays an  DOES THE FOLLOWING:

 7         (A) PAYS THE RENEWAL application fee of $30.00.  provided

 8     that the person has submitted the 

 9         (B) SUBMITS A sworn statement as required by  this section

10     and the  SUBSECTION (2)(E).

11         (C) SUBMITS A special report or sworn statement as required

12    by section  8 at least 60 days prior to the expiration date

13     printed on the certificate of registration  8(2) OR (6).

14         (5) The certificate of registration of a person who fails to

15    file the sworn statement or special report required by  this sec-

16     tion shall expire  SUBSECTION (4) EXPIRES on the date printed on

17    the certificate of registration.  A registrant may reinstate the

18    registration within 60 days of its expiration by submitting the

19    sworn statement or special report and paying a RENEWAL fee of

20     $120.00  $30.00 AND A LATE FEE OF $20.00.  A REGISTRANT MAY

21    REINSTATE THE REGISTRATION WITHIN 60 DAYS AFTER ITS EXPIRATION BY

22    SUBMITTING A SPECIAL REPORT AND PAYING AN APPLICATION FEE OF

23    $120.00 AND A $20.00 LATE FEE.

24         (6)  (4)  The department may deny the registration of a

25    person if it determines any of the following:

26         (a) That the person was previously registered with the

27    department and that registration was revoked or suspended within



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 1    2 years  prior to  BEFORE the date of the current application.

 2     for registration. 

 3         (b) That the person was or is presently an owner with a sub-

 4    stantial interest in the entity, partner, or employee of a person

 5    whose registration was revoked or suspended within 2 years  prior

 6     to  BEFORE the date of the current application  for registration 

 7    and the person engaged or participated in or authorized the mis-

 8    conduct which was the basis for the revocation or suspension.

 9         (C) THAT THE PERSON HAS VIOLATED THIS ACT OR ARTICLE 18 OF

10    THE OCCUPATIONAL CODE, 1980 PA 299, MCL 339.1801 TO 339.1812, OR

11    HAS A LICENSE THAT HAS BEEN SUSPENDED OR REVOKED.

12         (7)  (5) An applicant who registers with the  THE department

13    shall not  receive  ISSUE a certificate of registration  unless

14     the  TO AN applicant  complies  WHO FAILS TO COMPLY with  the

15     conditions in  this section.

16         (8)  (6)  A person  who is  denied registration by the

17    department  pursuant to  UNDER THE GROUNDS DESCRIBED IN this sec-

18    tion may  petition  REQUEST the department  for reconsideration 

19    TO RECONSIDER THE DENIAL.  A person  seeking  REQUESTING recon-

20    sideration  shall be  IS entitled to a hearing conducted in com-

21    pliance with the administrative procedures act of 1969,  Act

22     No. 306 of the Public Acts of 1969, being sections 24.201 to

23     24.328 of the Michigan Compiled Laws  1969 PA 306, MCL 24.201 TO

24    24.328.

25         Sec. 8.  (1) A registrant shall  keep,  MAINTAIN in this

26    state  ,  accurate accounts, books, and records of all

27    transactions and accounts regulated by this act.  Records  shall 



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 1    include, BUT ARE NOT LIMITED TO, copies of all prepaid funeral

 2    contracts, the dates and amounts of payments made and accepted

 3    under these contracts, the name and address of each contract

 4    buyer, the name and address of the contract beneficiaries, the

 5    name and address of each escrow agent, and any other records as

 6    the department may require  to enable it  to determine  whether

 7     the registrant is complying  COMPLIANCE with  the requirements

 8     of  this act.  Records  THE REGISTRANT shall  be kept  MAINTAIN

 9    THE RECORDS DESCRIBED IN THIS SUBSECTION for at least 36 months

10    after performance of all obligations of each prepaid funeral con-

11    tract or FOR AT LEAST 36 MONTHS after the filing of the  final 

12    special report  which  THAT includes  a contract which has  ALL

13    PREPAID FUNERAL CONTRACTS THAT HAVE been performed.

14         (2)  At least once every 3 years  BEGINNING JULY 1, 1998 AND

15    NOT LATER THAN JULY 1 OF EACH SUCCEEDING YEAR, a registrant

16     which  THAT serves as an escrow agent or  which  THAT has depos-

17    ited funds with an escrow agent pursuant to section 12 shall

18     secure a special report of limited review prepared by a licensed

19     independent certified public accountant pertaining to prepaid

20     funeral contract funds.  The special report shall be on forms

21     provided by the department or in any other format considered

22     appropriate by the independent certified public accountant.  The

23     special report shall be prepared and dated within 90 days before

24     the expiration of the registrant's certificate of registration

25     and shall be furnished to the department with the registrant's

26     application for renewal or, if an application for renewal is not

27     filed, before the expiration of the certificate of registration.



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 1    In preparing the special report, the independent certified public

 2     accountant shall not be required to review all prepaid funeral

 3     contracts, escrow agreements, escrow accounts, or records of the

 4     registrant, nor shall the independent certified public accountant

 5  be required to review any receipts or deposits by the registrant

 6     of prepaid funeral contract funds.  The special report of the

 7     independent certified public accountant shall provide the follow-

 8     ing assurances  SUBMIT A SPECIAL REPORT ON THE FORMS PROVIDED BY

 9    THE DEPARTMENT.  THE SPECIAL REPORT SHALL CONTAIN ALL THE

10    FOLLOWING:

11         (a)  That, based either upon a review of the registrant's

12     agreements with escrow agents or depositories which limit invest-

13     ments of the escrow funds by the escrow agents or depositories to

14     those investments permitted by this act, or upon a review of the

15     investments of the escrow accounts, the investment requirements

16     of section 12(4) have been complied with.  INFORMATION NECESSARY

17    TO DETERMINE COMPLIANCE WITH THE REQUIREMENTS OF THIS ACT REGARD-

18    ING THE ESCROWING OF FUNDS.

19         (b)  In the case of escrow accounts where the registrant

20     serves as the escrow agent, that withdrawals, as detailed in the

21     periodic statements of the depositories in which the escrow

22     accounts are maintained, have been made in accordance with this

23     act.  THE NAMES AND ADDRESS OF THE DEPOSITORIES INTO WHICH THE

24    FUNDS ARE DEPOSITED, THE ACCOUNT NUMBERS, AND ESCROW DATES.

25         (c)  That no matters have come to the attention of the inde-

26     pendent certified public accountant during the review of escrow

27     account investments and withdrawals that gave cause to believe



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 1    that the registrant has not complied with this act, or if any

 2     matters have come to his or her attention, the independent certi-

 3     fied public accountant shall include an explanation of the mat-

 4     ters which caused the belief that the registrant has not complied

 5     with this act.  A SIGNED STATEMENT OF A LICENSED INDEPENDENT CER-

 6    TIFIED PUBLIC ACCOUNTANT PROVIDING REASONABLE ASSURANCE THAT THE

 7    ESCROW INFORMATION CONTAINED IN THE SPECIAL REPORT IS FAIRLY

 8    PRESENTED BASED UPON TESTS OF THE RECORDS AND SUCH OTHER PROCE-

 9    DURES AS THE INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT CONSIDERS

10    NECESSARY UNDER THE CIRCUMSTANCES.

11         (3) IF AN APPLICATION FOR RENEWAL IS NOT FILED, A REGISTRANT

12    SHALL SUBMIT THE REPORT BEFORE THE EXPIRATION OF THE CERTIFICATE

13    OF REGISTRATION.

14         (4)  (3)  The department  may  SHALL examine each special

15    report required by  this section and if  SUBSECTION (2).  IF the

16    department determines on the basis of its review that THERE IS

17    REASON TO BELIEVE the registrant or its agent has not held or

18    invested funds in accordance with the requirements of this act or

19    has failed to file a special report as required BY SUBSECTION

20    (2), THE DEPARTMENT SHALL AUDIT THE REPORT IN QUESTION.  IF THE

21    DEPARTMENT DETERMINES FROM THAT AUDIT THAT A REGISTRANT HAS VIO-

22    LATED THIS ACT, the department shall take any appropriate correc-

23    tive ADMINISTRATIVE or penal action authorized by this act.

24         (5)  (4)  The department may examine, review, or audit the

25    books and records of a contract seller or provider pertaining to

26    funds received in payment for prepaid funeral contracts.  An

27    audit may include an examination of the books and financial



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 1    records of the registrant as well as books and financial records

 2    of escrow agents used by the registrant.  A registrant shall

 3    authorize escrow agents to open their records of the registrant

 4    accounts to the department upon request.

 5         (6)  (5) For the purposes of complying with the requirements

 6     of this section, a  A registrant who has not sold, provided, or

 7    agreed to provide funeral goods or funeral services  in accord-

 8     ance with  UNDER a prepaid funeral contract and who has no obli-

 9    gations with respect to an outstanding prepaid funeral contract

10    may submit a sworn statement that a prepaid funeral contract has

11    not been sold, provided, or agreed to and THAT there are no obli-

12    gations outstanding.  This  THE DEPARTMENT SHALL ACCEPT THIS

13    SWORN statement  shall be accepted in lieu  INSTEAD of the spe-

14    cial report.

15         (7) A REGISTRANT WHOSE BOOKS AND RECORDS HAVE BEEN AUDITED

16    BY THE DEPARTMENT SHALL REIMBURSE THE DEPARTMENT FOR THE ACTUAL

17    COST OF ANY AUDIT, EXAMINATION, OR REVIEW OF BOOKS AND RECORDS

18    CONDUCTED UNDER THIS ACT.

19         Sec. 11.  (1) A guaranteed AND NONGUARANTEED price contract

20    shall designate a provider who has agreed to furnish the funeral

21    goods or funeral services specified in the contract upon the

22    death of the contract beneficiary.  If the provider designated is

23    not the contract seller of the contract, the provider shall have

24    previously contracted with the contract seller to provide the

25    goods and services specified in the contract and the contract

26    shall indicate this contractual relationship or the provider

27    shall be made a party to the contract before any consideration is



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 1    paid and the contract shall not be binding on the contract buyer

 2    until the provider has been made a party to the contract.

 3         (2) In addition to the registration otherwise required by

 4    the terms of this act, the provider  which  THAT has agreed to

 5    furnish funeral goods or funeral services pursuant to a guaran-

 6    teed price contract shall, at the time the contract is entered

 7    into, possess any license required in order to provide funeral

 8    goods or funeral services, pursuant to sections 1801 to 1812 of

 9    the occupational code,  Act No. 299 of the Public Acts of 1980,

10     being sections 339.1801 to 339.1812 of the Michigan Compiled

11     Laws  1980 PA 299, MCL 339.1801 TO 339.1812.

12         Sec. 20.  (1) Upon A complaint made by  any  A person, or

13    upon its own initiative, the department may investigate  alleged 

14    violations of this act or rules promulgated under this act

15    ALLEGED TO HAVE BEEN COMMITTED by a registrant or any other

16    person.  The department may examine books, records, contracts,

17    and other documents in possession of or under the control of

18     any  A registrant with or without the consent of that registrant

19    and with or without a warrant authorizing the examination, or of

20    any other person if that person consents to an examination or if

21    the department obtains a warrant authorizing an examination.  If

22    the department determines that reasonable cause exists to believe

23    that a violation has occurred, it shall do 1 of the following:

24         (a) If the alleged violation was committed by a person other

25    than a registrant, the department shall refer the matter to the

26    attorney general or a prosecuting attorney for criminal or civil

27    action as provided in sections 23 and 24.



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 1         (b) If the alleged violation was committed by a registrant,

 2    the department shall do either of the following:

 3         (i) Refer the matter to the attorney general for civil or

 4    criminal prosecution or enforcement.

 5         (ii) Institute ADMINISTRATIVE proceedings  in compliance

 6     with  UNDER the administrative procedures act of 1969,  Act

 7     No. 306 of the Public Acts of 1969, being sections 24.201 to

 8     24.328 of the Michigan Compiled Laws  1969 PA 306, MCL 24.201 TO

 9    24.328.

10         (iii) ISSUE A CEASE AND DESIST ORDER.

11         (2) If, after a hearing, the department determines that a

12    registrant has violated the provisions of this act or  any  A

13    rule promulgated  pursuant to  UNDER this act, the department

14    shall do 1 or more of the following:

15         (a) Suspend or revoke the registration.

16         (b) Impose  a civil  AN ADMINISTRATIVE fine not to exceed

17    $5,000.00 for each violation.  and  THE DEPARTMENT may suspend

18    the registration until the ADMINISTRATIVE fine is paid.

19         (c) Require restitution of funds paid pursuant to a prepaid

20    funeral contract.  and restitution  THE DEPARTMENT may  include

21     suspending  SUSPEND the registration until restitution is made.

22         (d) Impose a period of probation during which the registrant

23    is required to comply with additional conditions imposed by the

24    department in lieu of or in addition to the imposition of other

25    SANCTIONS OR penalties  provided  AVAILABLE under this act.







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 1         (e) Impose restrictions upon the registrant's prepaid

 2    funeral business activities  which  THAT require additional

 3    accountability to the department.

 4         (f) Issue a written warning to the registrant.

 5         Sec. 22.  (1) A person who converts funds paid pursuant to a

 6    prepaid funeral contract to his or her own use or benefit, other

 7    than as authorized by this act,  shall be  IS guilty of a felony

 8     ,  punishable by a fine of  $5,000.00  NOT MORE THAN $25,000.00,

 9    or imprisonment of not more than  5  10 years, or both, for each

10    violation.

11         (2) A person who violates any other provision of this act

12     shall be  IS guilty of a  misdemeanor,  FELONY punishable by a

13    fine of not more than  $1,000.00  $10,000.00, or imprisonment for

14    not more than  1 year  5 YEARS, or both, for each violation.

15         Enacting section 1.  This amendatory act takes effect

16    January 1, 2000.

























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