Georgia
10-14-1 G
*** CODE SECTION *** 12/03/01
10-14-1.
This chapter shall be known as and may be cited as the "Georgia
Cemetery and Funeral Services Act of 2000."
10-14-2 G
*** CODE SECTION *** 12/03/01
10-14-2.
(a) The legislature recognizes that purchasers of preneed burial
rights, funeral or burial merchandise, or funeral services or burial
services may suffer serious economic harm if purchase money is not
set aside for future use as intended by the purchaser and that the
failure to maintain cemetery grounds properly may cause significant
emotional distress. Therefore, it is necessary in the interest of
the public welfare to regulate preneed dealers, licensees,
registrants, and cemetery companies in this state. However,
restrictions shall be imposed only to the extent necessary to
protect the public from significant or discernible harm or damage
and not in a manner which will unreasonably affect the competitive
market.
(b) Subject to certain interests of society, the legislature finds
that every competent adult has the right to control the decisions
relating to his or her own funeral arrangements. Accordingly,
unless otherwise stated in this chapter, it is the legislature's
express intent that nothing contained in this chapter should be
construed or interpreted in any manner as to subject preneed
contract purchasers to federal income taxation under the grantor
trust rules contained in Sections 671 et seq. of the Internal
Revenue Code of 1986, as amended.
(c) Nothing herein is intended to prohibit or restrict the sale or
purchase of life insurance as a funding vehicle for preneed
contracts under this chapter, nor to change the state of the law
prior to July 1, 2000, with respect to prohibiting or restricting
the sale or purchase of life insurance as a funding vehicle for
preneed contracts under this chapter.
10-14-3 G
*** CODE SECTION *** 12/03/01
10-14-3.
As used in this chapter, the term:
(1) "Affiliate" means a person who directly or indirectly owns or
controls, is owned or controlled by, or is under common ownership
or control with another person. Solely for purposes of this
definition, the terms "owns," "is owned," and "ownership" mean
ownership of an equity interest, or the equivalent thereof, of 10
percent or more, and the term "person" means an individual,
partnership, committee, association, corporation, or any other
organization or group of persons.
(2) "Board" means the State Board of Funeral Service as described
and authorized in Chapter 18 of Title 43.
(3) "Burial merchandise," "funeral merchandise," or "merchandise"
means any personal property offered or sold by any person for use
in connection with the final disposition, memorialization,
interment, entombment, or inurnment of human remains.
(4) "Burial right" means the right to use a grave space,
mausoleum, or columbarium for the interment, entombment, or
inurnment of human remains.
(5) "Burial service" means any service other than a funeral
service offered or provided by any person in connection with the
final disposition, memorialization, interment, entombment, or
inurnment of human remains.
(6) "Care and maintenance" means the perpetual process of keeping
a cemetery and its lots, graves, grounds, landscaping, roads,
paths, parking lots, fences, mausoleums, columbaria, vaults,
crypts, utilities, and other improvements, structures, and
embellishments in a well cared for and dignified condition, so
that the cemetery does not become a nuisance or place of reproach
and desolation in the community. As specified in the rules of the
Secretary of State, care and maintenance may include, but is not
limited to, any or all of the following activities: mowing the
grass at reasonable intervals; raking and cleaning the grave
spaces and adjacent areas; pruning of shrubs and trees;
suppression of weeds and exotic flora; and maintenance, upkeep,
and repair of drains, water lines, roads, buildings, and other
improvements. Care and maintenance may include, but is not
limited to, reasonable overhead expenses necessary for such
purposes, including maintenance of machinery, tools, and equipment
used for such purposes. Care and maintenance may also include
repair or restoration of improvements necessary or desirable as a
result of wear, deterioration, accident, damage, or destruction.
Care and maintenance does not include expenses for the
construction and development of new grave spaces or interment
structures to be sold to the public.
(7) "Casket" means a container which is designed for the
encasement and viewing of a dead human body.
(8) "Cemetery" means a place dedicated to and used, or intended to
be used, for permanent interment of human remains. A cemetery may
contain land or earth interments; mausoleum, a vault, crypt
interments; a columbarium or other structure or place used or
intended to be used for the inurnment of cremated human remains;
or any combination of one or more of such structures or places.
Such term shall not include governmentally owned cemeteries,
fraternal cemeteries, cemeteries owned and operated by churches,
synagogues, or communities or family burial plots.
(9) "Cemetery company" means any entity that owns or controls
cemetery lands or property.
(10) "Columbarium" means a structure or building which is
substantially exposed above the ground and which is intended to be
used for the inurnment of cremated human remains.
(11) "Common business enterprise" means a group of two or more
business entities that share common ownership in excess of 50
percent.
(12) "Cremation" includes any mechanical or thermal process
whereby a deceased human being is reduced to ashes. Cremation
also includes any other mechanical or thermal process whereby
human remains are pulverized, burned, recremated, or otherwise
further reduced in size or quantity.
(13) "Crypt" means a chamber of sufficient size to inter the
remains of a deceased human being.
(14) "Entombment" mean the disposition of a dead human body in a
mausoleum but shall not include the opening and closing of a grave
space, crypt, or niche or the installation of a vault.
(15) "Final disposition" means the final disposal of a deceased
human being whether by interment, entombment, inurnment, burial at
sea, cremation, or any other means and includes, but is not
limited to, any other disposition of remains for which a
segregated charge is imposed.
(16) "Funeral director" means any person licensed in this state to
practice funeral directing pursuant to the provisions of Chapter
18 of Title 43.
(17) "Funeral service" means any service relating to the
transportation, embalming, and interment of a deceased human
being, as further described in paragraphs (10), (18), and (19) of
Code Section 43-18-1.
(18) "Grave space" or "lot" means a space of ground in a cemetery
intended to be used for the interment in the ground of human
remains.
(19) "Human remains" means the bodies of deceased human beings and
includes the bodies in any stage of decomposition and the cremated
remains.
(20) "Interment" means the burial of human remains but shall not
include the opening and closing of a grave space, crypt, or niche
or the installation of a vault.
(21) "Inurnment" means the disposition of the cremated remains of
a deceased human being in an urn or other container but shall not
include the opening and closing of a grave space, crypt, or niche
or the installation of a vault.
(22) "Mausoleum" means a structure or building which is
substantially exposed above the ground and which is used, or
intended to be used, for the entombment of human remains.
(23) "Mausoleum section" means any construction unit of a
mausoleum which is acceptable to the Secretary of State and which
a cemetery uses to initiate its mausoleum program or to add to its
existing mausoleum structures.
(24) "Monument" means any product used for identifying or
permanently decorating a grave site, including, without
limitation, monuments, markers, benches, and vases and any base or
foundation on which they rest or are mounted.
(25) "Niche" means a space used, or intended to be used, for the
interment of the cremated remains of one or more deceased human
beings.
(26) "Nonperpetual care" means any cemetery which does not offer
perpetual care as defined in this Code section.
(27) "Outer burial container" or "vault" means an enclosure into
which a casket is placed and includes, but is not limited to,
containers made of concrete, steel, fiberglass, copper or other
metals, sectional concrete enclosures, crypts, and wooden
enclosures.
(28) "Perpetual care" means the care and maintenance and the
reasonable administration of the cemetery grounds and buildings at
the present time and in the future.
(29) "Person" or "entity" means an individual, a corporation, a
limited liability company, a general or limited partnership, an
association, a joint-stock company, a trust, or any type of
incorporated or unincorporated organization.
(30) "Preneed contract" means any arrangement or method, of which
the provider of burial or funeral merchandise or services has
actual knowledge, whereby any person agrees to furnish burial or
funeral merchandise or services in the future.
(31) "Preneed dealer" means every person, other than a salesperson
registered under this chapter, who engages, either for all or part
of his or her time, directly or indirectly, as agent, broker, or
principal in the retail business of offering, selling, or
otherwise dealing in funeral services or burial services or
funeral or burial merchandise which is not attached to realty or
delivered to the purchaser at the time of sale.
(32) "Preneed interment service" or "preneed service" means any
service which is not performed at the time of sale and which is
offered or provided by any person in connection with the interment
of human remains, except those services offered regarding
mausoleums and the normal and customary installation charges on
burial or funeral merchandise.
(33) "Sale" or "sell" means and shall include every contract of
sale or disposition of burial rights, grave spaces, burial
services, funeral services, or burial or funeral merchandise for
value. The term "offer to sell," "offer for sale," or "offer"
shall include any attempt or offer to dispose of, or solicitation
of an offer to buy, grave spaces, burial rights, burial or funeral
services, or burial or funeral merchandise for value. This
definition shall not include wholesalers of burial or funeral
merchandise.
(34) "Salesperson" or "sales agent" means an individual employed
or appointed or authorized by a cemetery, cemetery company, or
preneed dealer to sell grave spaces, burial rights, burial or
funeral merchandise, burial or funeral services, or any other
right or thing of value in connection with the final disposition
of human remains. The owner of a cemetery, the executive
officers, and general partners of a cemetery company shall not be
deemed to be salespersons within the meaning of this definition
unless they are paid a commission for the sale of said property,
lots, rights, burial or funeral merchandise, or burial or funeral
services.
(35) "Secretary of State" means the Secretary of State of the
State of Georgia.
(36) "Solicitation" means any communication in the context of an
offer or sale of grave spaces, burial or funeral merchandise, or
burial or funeral services which directly or implicitly requests a
response from the recipient.
10-14-4 G
*** CODE SECTION *** 12/03/01
10-14-4.
(a)(1) Unless exempt under this chapter, it shall be unlawful for
any person to offer for sale or to sell any cemetery burial
rights, mausoleum interment rights, columbarium inurnment rights,
grave spaces, or other physical locations for the final
disposition of human remains in this state unless such person is
registered as or employed by and acting on behalf of and under the
direction of a person registered as a cemetery owner pursuant to
this Code section.
(2) Unless exempt under this chapter, it shall be unlawful for any
person to offer for sale or sell burial or funeral merchandise or
burial services in this state unless such person is registered as
or employed by and acting on behalf of and under the direction of
a person registered as a cemetery owner under this Code section, a
funeral director under Chapter 18 of Title 43, or a burial or
funeral merchandise dealer under this Code section.
(3) Unless exempt under this chapter, it shall be unlawful for any
person to offer for sale or to sell any preneed burial or funeral
merchandise or preneed burial services in this state unless such
person is registered as a preneed dealer or preneed sales agent
pursuant to this Code section.
(4) It shall be unlawful for any person to offer for sale or to
sell any funeral services in this state unless such person is
licensed as a funeral director under the provisions of Chapter 18
of Title 43.
(b)(1) Every person desiring to be a registered cemetery owner
shall file with the Secretary of State a separate registration
application for each cemetery owned in a form prescribed by the
Secretary of State, executed and duly verified under oath by the
applicant, if the applicant is an individual, or by an executive
officer or general partner, if the applicant is a corporation or
partnership, or by an individual of similar authority, if the
applicant is some other entity, and containing the following
information:
(A) The name, mailing address, and telephone number of the
applicant, which for the purposes of this Code section shall be
the legal owner of the land upon which the cemetery is located;
(B) The location and, if different from the information
submitted for subparagraph (A) of this paragraph, the mailing
address and telephone number of the cemetery;
(C) The location of all records of the applicant which relate to
the cemetery;
(D) If the applicant is not a natural person, the names of the
president, secretary, and registered agent if the applicant is a
corporation, of each general partner if the applicant is a
partnership, or of individuals of similar authority if the
applicant is some other entity and their respective addresses
and telephone numbers; the name and address of each person who
owns 10 percent or more of any class of ownership interest in
the applicant and the percentage of such interest; and the date
of formation and the jurisdiction of organization of the
applicant;
(E) A copy of cemetery rules and regulations, a certified copy
of a certificate of existence or certificate of authority issued
in accordance with Code Section 14-2-128 if the applicant is a
corporation, and any amendments to such documents or any
substantially equivalent documents. Any such document once
filed with the Secretary of State pursuant to this chapter shall
be deemed to be on file and incorporated into any subsequent
renewal or filing of such cemetery registration; provided,
however, that each applicant and registrant is under a
continuing duty to update such filing and to notify the
Secretary of State regarding any changes or amendments to the
articles of incorporation, bylaws, cemetery rules and
regulations, or substantially equivalent documents, and
provided, further, that any applicant or registrant shall
furnish to the Secretary of State additional copies of any such
document upon request;
(F) A description of any judgment or pending litigation to which
the applicant or any affiliate of the applicant is a party and
which involves the operation of the cemetery or could materially
affect the business or assets of the applicant;
(G) Whether the applicant or any affiliate of the applicant owns
any other entities in Georgia regulated by this chapter and, if
so, the location, mailing address, telephone number, and type of
registration of such other entities;
(H) A consent to service of process meeting the requirements of
Code Section 10-14-24 for actions brought by the State of
Georgia;
(I) The name and business address of each individual employed,
appointed, or authorized by the applicant to offer for sale or
to sell any grave lots, burial rights, burial or funeral
merchandise, or burial services on behalf of the cemetery;
(J) A balance sheet of the applicant dated as of the end of the
most recent fiscal year and in no event dated more than 15
months prior to the date of filing, which the Secretary of State
shall treat as confidential and not open to public inspection;
(K) Evidence satisfactory to the Secretary of State that the
applicant owns for the cemetery unencumbered fee simple title to
contiguous land in the minimum acreage required by this chapter
or by rules issued by the Secretary of State in accordance with
this chapter, properly zoned for use as a cemetery, and
dedicated for such use, and a copy of a plat of survey thereto,
provided that nothing herein shall prohibit the encumbrance of
the undeveloped portion of cemetery property for the purpose of
securing debt incurred for the purpose of developing or
improving such property;
(L) Evidence satisfactory to the Secretary of State that the
applicant has recorded, in the public land records of the county
in which the land described in subparagraph (K) of this
paragraph is located, a notice that contains the following
language:
NOTICE
The property described herein shall not be sold, conveyed,
leased, mortgaged, or encumbered except as provided by the
prior written approval of the Secretary of State, as provided
in the Georgia Cemetery and Funeral Services Act of 2000.
Such notice shall have been clearly printed in boldface type of
not less than ten points and may be included on the face of the
deed of conveyance to the applicant or may be contained in a
separate recorded instrument that contains a legal description
of the property.
(M) The name, address, location, and telephone number of the
perpetual care trust account depository or depositories, the
names of the accounts, and the account numbers;
(N) The name, address, and telephone number of each trustee;
(O) A copy of a perpetual care trust fund agreement executed by
the applicant and accepted by the trustee, and evidence
satisfactory to the Secretary of State of the deposit into such
account of the amount of the initial required deposit, the trust
agreement being conditioned only upon issuance of a certificate
of registration;
(P) Such other information and documents as the Secretary of
State may require by rule; and
(Q) A filing fee of $100.00.
(2) Every person desiring to be a registered preneed dealer shall
file with the Secretary of State a registration application in a
form prescribed by the Secretary of State, executed and duly
verified under oath by the applicant, if the applicant is an
individual, or by an executive officer or general partner, if the
applicant is a corporation or partnership, or by an individual of
similar authority, if the applicant is some other entity, and
containing the following information:
(A) The name of the applicant;
(B) The location, mailing address, and telephone number of the
applicant's principal business location in Georgia and the same
information for other locations where business is conducted,
together with any trade names associated with each location;
(C) All locations of the records of the applicant which relate
to preneed sales in Georgia;
(D) If the applicant is not a natural person, the names of the
president, secretary, and registered agent if the applicant is a
corporation, of each general partner if the applicant is a
partnership, or of individuals of similar authority, if the
applicant is some other entity and their respective addresses
and telephone numbers; the name and address of each person who
owns 10 percent or more of any class of ownership interest in
the applicant and the percentage of such interest; and the date
of formation and the jurisdiction of organization of the
applicant;
(E) A certified copy of a certificate of existence or
certificate of authority issued in accordance with Code Section
14-2-128 if the applicant is a corporation;
(F) A description of any judgment or pending litigation to which
the applicant or any affiliate of the applicant is a party and
which involves the operation of the applicant's preneed business
in Georgia or which could materially affect the business or
assets of the applicant;
(G) Whether the applicant or any affiliate of the applicant owns
any other entities in Georgia regulated by this chapter and, if
so, the location, mailing address, telephone number, and type of
registration of such other entities;
(H) A consent to service of process meeting the requirements of
Code Section 10-14-24 for actions brought by the State of
Georgia;
(I) A list of each individual employed, appointed, or authorized
by the applicant to offer for sale or to sell any grave lots,
burial rights, burial or funeral merchandise, or burial services
on behalf of the applicant;
(J) A balance sheet of the applicant dated as of the end of the
most recent fiscal year and in no event dated more than 15
months prior to the date of filing, which the Secretary of State
shall treat as confidential and not open to public inspection;
(K) The name, address, location, and telephone number of the
preneed escrow account depository or depositories, the names of
the accounts, and the account numbers;
(L) An executed copy of the escrow agreement required by Code
Section 10-14-7;
(M) The name, address, and telephone number of the escrow agent;
(N) Such other information and documents as the Secretary of
State may require by rule; and
(O) A filing fee of $250.00.
(3) Every person desiring to be a registered burial or funeral
merchandise dealer shall file with the Secretary of State a
registration application in a form prescribed by the Secretary of
State, executed and duly verified under oath by the applicant, if
an individual, or by an executive officer or general partner, if
the applicant is a corporation or partnership, or by an individual
of similar authority, if the applicant is some other entity, and
containing the following information:
(A) The name of the applicant;
(B) The location, mailing address, and telephone number of the
applicant's principal business location in Georgia and the same
information for other locations where business is conducted,
together with any trade names associated with each location;
(C) All locations of the records of the applicant which relate
to funeral or burial merchandise sales in Georgia;
(D) If the applicant is not a natural person, the names of the
president, secretary, and registered agent if the applicant is a
corporation, of each general partner if the applicant is a
partnership, or of individuals of similar authority if the
applicant is some other entity and their respective addresses
and telephone numbers; the name and address of each person who
owns 10 percent or more of any class of ownership interest in
the applicant and the percentage of such interest; and the date
of formation and the jurisdiction of organization of the
applicant;
(E) A certified copy of a certificate of existence or
certificate of authority issued in accordance with Code Section
14-2-128 if the applicant is a corporation;
(F) A description of any judgment or pending litigation to which
the applicant or any affiliate of the applicant is a party and
which involves the operation of the applicant's funeral or
burial merchandise business in Georgia or which could materially
affect the business or assets of the applicant;
(G) Whether the applicant or any affiliate of the applicant owns
any other entities in Georgia regulated by this chapter and, if
so, the location, mailing address, telephone number, and type of
registration of such other entities;
(H) A consent to service of process meeting the requirements of
Code Section 10-14-24 for actions brought by the State of
Georgia;
(I) The name and business address of each individual employed,
appointed, or authorized by the applicant to offer for sale or
to sell any burial or funeral merchandise on behalf of the
applicant;
(J) A balance sheet of the applicant dated as of the end of the
most recent fiscal year and in no event dated more than 15
months prior to the date of filing, which the Secretary of State
shall treat as confidential and not open to public inspection;
(K) Such other information and documents as the Secretary of
State may require by rule;
(L) A filing fee of $100.00; and
(M) A bond, if required by the rules and regulations of the
Secretary of State.
(c) The Secretary of State may approve an application only after he
or she has conducted an investigation of the applicant and
determined that such applicant is qualified by character,
experience, and financial responsibility to conduct the business for
which the applicant is seeking registration in a legal and proper
manner. A registration application filed under this Code section
shall become effective upon the issuing of a certificate of
registration by the Secretary of State or at such earlier time as
the Secretary of State determines.
(d) Every registration under this subsection shall expire on the
first day of August of each year. The registration must be renewed
with the Secretary of State each year by the submission of a renewal
application containing the information required in an application
for initial registration to the extent that such information had not
been included in an application or renewal application previously
filed together with a sworn statement that all information not
provided remains accurate. The filing fee for renewal of
registration shall be $50.00 for each cemetery of cemetery owners,
$100.00 for preneed dealers, and $50.00 for burial or funeral
merchandise dealers.
(e) The Secretary of State, by rule, may provide for exceptions from
registration for cemeteries when the Secretary of State determines
that the public interest does not require registration, provided
that such cemeteries are in existence on or before July 1, 2000,
consist of less than 25 acres, and are operated by nonprofit
entities.
(f) Notwithstanding any provision to the contrary contained in this
Code section, the following shall be exempt from registration as a
burial or funeral merchandise dealer:
(1) Any registered cemetery owner;
(2) The owner of any cemetery exempt from registration with
respect to sales of burial or funeral merchandise sold for use at
such cemetery;
(3) Any licensed funeral director;
(4) Any person providing interment and disinterment services
exclusively at cemeteries exempt from registration;
(5) Any monument manufacturer or dealer which does not install
monuments in cemeteries required to be registered by this Code
section;
(6) Any person who does not offer for sale or sell burial or
funeral services or merchandise to the general public; and
(7) Any registered preneed dealer.
In addition, the Secretary of State, by rule, may provide for other
exceptions from registration.
(g)(1) Any cemetery in operation on August 1, 1986 which offers
perpetual care for some designated sections of its property but
does not offer perpetual care to other designated sections shall
be considered a perpetual care cemetery for purposes of this
chapter. No cemetery formed or created on or after July 1, 2000,
may fail to offer perpetual care for any part of such cemetery.
(2) Any nonperpetual care cemetery which was registered with the
Secretary of State prior to August 1, 1986, may continue to be
operated as such after that date and a renewal of such
registration shall not be required.
(3) Any nonperpetual care cemetery which is shown to be of
historical significance and is operated solely for historical
nonprofit purposes shall be exempt from registration.
(4) Except as specifically authorized under paragraphs (2) and (3)
of this subsection, from and after August 1, 1986, it shall be
unlawful for any person to operate or establish a nonperpetual care cemetery.
10-14-5 G
*** CODE SECTION *** 12/03/01
10-14-5.
(a) All individuals who offer preneed contracts to the public, or
who execute preneed contracts on behalf of any entity required to be
registered as a preneed dealer, and all individuals who offer, sell,
or sign contracts for the preneed sale of burial rights shall be
registered with the Secretary of State as preneed sales agents,
pursuant to this Code section, unless such individuals are exempted
under this chapter or individually own a controlling interest in a
preneed dealer registered under this chapter.
(b) All preneed sales agents must be employed by a registered
preneed dealer.
(c) A preneed dealer shall be liable for the activities of all
preneed sales agents who are employed by the preneed dealer or who
perform any type of preneed related activity on behalf of the
preneed dealer. If a preneed sales agent violates any provision of
this chapter, such preneed sales agent and each preneed dealer who
employs such preneed sales agent shall be subject to the penalties
and remedies set out in Code Sections 10-14-11, 10-14-19, 10-14-20,
and 10-14-21.
(d) A preneed sales agent may be authorized to sell, offer, and
execute preneed contracts on behalf of all entities owned or
operated by the agent's sponsoring preneed dealer.
(e) If the application for his or her registration is sent by
certified mail, return receipt requested, an individual may begin
functioning as a preneed sales agent as soon as a completed
application for registration, as set forth in subsection (g) of this
Code section, is mailed to the Secretary of State, provided that, if
any such sales agent fails to meet the qualifications set forth in
this chapter, the preneed dealer shall immediately upon notification
by the Secretary of State cause such agent to cease any sales
activity on its behalf.
(f) The qualifications for a preneed sales agent are as follows:
(1) The applicant must be at least 18 years of age;
(2) The applicant must not be subject to any order of the
Secretary of State that restricts his or her ability to be
registered as a preneed sales agent; and
(3) The applicant must not have been adjudicated, civilly or
criminally, to have committed fraud or to have violated any law of
any state involving fair trade or business practices, have been
convicted of a misdemeanor of which fraud is an essential element
or which involves any aspect of the funeral or cemetery business,
or have been convicted of a felony.
(g) An application for registration as a preneed sales agent shall
be submitted to the Secretary of State with an application fee of
$100.00 by the preneed dealer on a form that has been designated by
the Secretary of State and shall contain, at a minimum, the
following:
(1) The name, address, social security number, and date of birth
of the applicant and such other information as the Secretary of
State may reasonably require of the applicant;
(2) The name, address, and license number of the sponsoring
preneed dealer;
(3) A representation, signed by the applicant, that the applicant
meets the requirements set forth in subsection (f) of this Code
section;
(4) A representation, signed by the preneed dealer, that the
applicant is authorized to offer, sell, and sign preneed contracts
on behalf of the preneed dealer and that the preneed dealer has
informed the applicant of the requirements and prohibitions of
this chapter relating to preneed sales, the provisions of the
preneed dealer's preneed contract, and the nature of the
merchandise, services, or burial rights sold by the preneed
dealer;
(5) A statement indicating whether the applicant has any type of
working relationship with any other preneed dealer or insurance
company; and
(6) A signed agreement by the applicant consenting to an
investigation of his or her background with regard to the matters
set forth in this Code section, including, without limitation, his
or her criminal history.
(h) An individual may be registered as a preneed sales agent on
behalf of more than one preneed dealer, provided that the individual
has received the written consent of all such preneed dealers.
(i) A preneed dealer who has registered a preneed sales agent shall
notify the Secretary of State within three business days of a change
in such individual's status as a preneed sales agent with such
preneed dealer or upon the occurrence of any other event which would
disqualify the individual as a preneed sales agent.
(j) Upon receipt and review of an application that complies with all
of the requirements of this Code section, the Secretary of State
shall register the applicant. The department shall by rule provide
for annual renewal of registration and a renewal fee of $50.00.
(k) Each cemetery registered under this chapter shall maintain in
its files for a period of five years a properly completed and
executed application for employment in a form prescribed by the
Secretary of State for each employee, officer, independent
contractor, or other agent directly or indirectly involved in
cemetery or preneed sales or any person occupying a similar status
or performing similar functions. If a request is made, said forms
shall be made available for inspection by authorized representatives
of the Secretary of State.
10-14-6 G
*** CODE SECTION *** 12/03/01
10-14-6.
(a)(1) Each cemetery or cemetery company required to be registered
by this chapter shall establish and maintain an irrevocable trust
fund for each cemetery owned.
(2) For trust funds established on or after July 1, 2000, the
initial deposit to said irrevocable trust fund shall be the sum of
$10,000.00 and the deposit of said sum shall be made before
selling or contracting to sell any burial right. No such initial
deposit shall be required with respect to any cemetery for which
there is an existing perpetual care account on July 1, 2000. The
trust fund shall apply to sales or contracts for sale of lots,
grave spaces, niches, mausoleums, columbaria, urns, or crypts in
which perpetual care has been promised or guaranteed.
(3) The initial corpus of the trust fund and all subsequent
required deposits shall be deposited in a state bank, state
savings and loan institution, savings bank, national bank, or
federal savings and loan institution, whose deposits are insured
by the Federal Deposit Insurance Corporation or other governmental
agency, or a state or federally chartered credit union insured
under 12 U.S.C. Section 1781 of the Federal Credit Union Act, or
other depository or trustee which is approved by the Secretary of
State or which meets the standards contained in the rules and
regulations promulgated by the Secretary of State.
(4) Each perpetual care trust fund established on or after July 1,
2000, shall be named "The ___________ Cemetery ____________
Perpetual Care Trust Fund" with the first blank being filled by
the name of the cemetery and the second blank being filled by the
month and year of the establishment of such trust fund. If a
cemetery has a perpetual care trust fund existing on July 1, 2000,
and the perpetual care trust fund agreement permits, the cemetery
may make additional deposits to such a trust fund on the condition
that the entire corpus of the trust fund, any income earned by the
trust fund, and any subsequent deposits to the trust fund are
thereafter governed by the provisions of this chapter, the
"Georgia Cemetery and Funeral Services Act of 2000," as it existed
on July 1, 2000, except for the amount of the initial deposit to
the trust fund. If a cemetery owner or company elects to
establish a new perpetual care trust fund subject to the
provisions of this chapter, the "Georgia Cemetery and Funeral
Services Act of 2000," as it existed on July 1, 2000, any
perpetual care trust fund which existed on July 1, 2000, is
subject to the provisions of law in effect on the date of its
establishment, and deposits for sales transacted on or after July
1, 2000, shall be deposited in the trust fund established on or
after July 1, 2000. If a cemetery existing on July 1, 2000, has
an existing perpetual care trust fund which complies with
provisions of law in effect on the date of its establishment, a
new trust fund created in compliance with this chapter shall not
require an initial deposit.
(b) Whenever any burial right, cemetery lot, grave space, niche,
mausoleum, columbarium, urn, or crypt wherein perpetual care or
endowment care is promised or contracted for or guaranteed is sold
by any cemetery, the cemetery shall make deposits to the trust fund
that equal 15 percent of the sales price of the burial right or 7.5
percent of the total sales price of any mausoleums, niches,
columbaria, urns, or crypts, provided that the minimum deposit for
each burial right shall be $50.00; provided, further, that on July
1, 2003, and every three years thereafter, the amount of said
minimum deposit shall be adjusted by the rate of change in the
Consumer Price Index as reported by the Bureau of Labor Statistics
of the United States Department of Labor. The Secretary of State
shall adopt such adjustment to the amount of said minimum deposit by
rule. Deposits to the trust fund shall be made not later than 30
days following the last day of the month in which payment therefor
is made, or, in the case of a free space, the month in which the
space is given. In the event any sale is made on an installment
basis, not less than a pro rata share of the principal portion of
each payment made and allocated to the lot, grave, space, niche,
mausoleum, columbarium, urn, or crypt shall be allocated to the
required trust fund deposit, provided that all deposits to the trust
fund shall be completed within six years from the date of the
signing of the perpetual care contract. The manner of any such
allocation shall be clearly reflected on the books of the
registrant.
(c) The initial $10,000.00 corpus of the perpetual care trust fund
shall not be counted as part of the required periodic deposits and
shall be considered to be corpus or principal.
(d) The income earned by the trust fund shall be retained by the
trust fund. At such time as either:
(1) The cemetery owner is not licensed and has not been licensed
for 90 or more consecutive days to sell burial rights;
(2) The cemetery is under the management of a receiver; or
(3) Less than 50 percent of available lots are unsold,
95 percent of the income from the trust fund shall be paid to the
owner or receiver exclusively for covering the costs of care and
maintenance of the cemetery, including reasonable administrative
expenses incurred in connection therewith. The income of the trust
fund shall be paid to the owner or receiver at intervals agreed upon
by the recipient and the trustee, but in no case shall the income be
paid more often than monthly.
(e) There shall be no withdrawals from the trust fund except
pursuant to the provisions of this chapter or by court order.
(f)(1) The assets of a trust fund shall be invested and reinvested
subject to all the terms, conditions, limitations, and
restrictions imposed by the laws of the State of Georgia upon
executors and trustees regarding the making and depositing of
investments with trust moneys pursuant to Code Sections 53-8-1
through 53-8-4 of the "Pre-1998 Probate Code," if applicable, or
Code Section 53-8-1 and Code Section 53-12-287 of the "Revised
Probate Code of 1998." Subject to said terms, conditions,
limitations, and restrictions, the trustee of the perpetual care
trust fund shall have full power to hold, purchase, sell, assign,
transfer, reinvest, and dispose of any of the securities and
investments in which any of the assets of said fund are invested,
including proceeds of investments.
(2) Any state bank, national bank, or other financial institution
authorized to act in a fiduciary capacity in this state, which
presently or in the future serves as a fiduciary or cofiduciary of
the trust fund of a perpetual care cemetery, may invest part or
all of such trust fund held by it for investment in interests or
participation in one or more common trust funds established by
that state bank, national bank, or other financial institution for
collective investment, if such investment is not expressly
prohibited by the instrument, judgment, decree, or order creating
the fiduciary relationship and if, in the case of cofiduciaries
the trust institution procures the consent of its cofiduciary or
cofiduciaries to such investment, and notwithstanding the fact
that such common trust funds are not invested and reinvested
subject to all the terms, conditions, limitations, and
restrictions imposed by the laws of the State of Georgia upon
executors and trustees in the making and disposing of their
investments.
(3) Notwithstanding any other provision of this subsection, the
Secretary of State shall establish rules and regulations for
investments of a trust fund established on or after July 1, 2000,
or otherwise governed by this chapter, the "Georgia Cemetery and
Funeral Services Act of 2000," as it existed on July 1, 2000, as
necessary to preserve the corpus and income of such a fund and for
determining what restrictions are necessary for such purpose.
(4) At any time, in the event that the perpetual care trust fund
contains an amount less than the amount required by this Code
section, the cemetery owner shall, within 15 days after the
earlier of becoming aware of such fact or having been so notified
by the Secretary of State, deposit into the perpetual care trust
fund an amount equal to such shortfall. In the event that the
Secretary of State and the cemetery owner disagree regarding the
amount of such shortfall, no penalty shall be imposed upon the
cemetery owner for any failure to comply with this paragraph
unless such failure occurs after notice and opportunity for a
hearing as provided in Code Section 10-14-23.
(g) Moneys of the perpetual care trust fund shall not be invested in
or loaned to any business venture controlled by the cemetery owner,
a person who owns a controlling interest of a cemetery owner that is
not a natural person, or an affiliate of any of these persons or
entities.
(h) The trustee shall furnish yearly to the Secretary of State a
financial report in a form designated by the Secretary of State with
respect to the perpetual care trust fund.
(i) Upon a finding by a court of competent jurisdiction of failure
to deposit or maintain funds in the trust account as required by
this chapter or of fraud, theft, or misconduct by the owners of the
cemetery or the officers or directors of a cemetery company which
has wasted or depleted such funds, the cemetery owners or the
officers or directors of a cemetery company may be held jointly and
severally liable for any deficiencies in the trust account as
required in this chapter. 10-14-7 G
*** CODE SECTION *** 12/03/01
10-14-7.
(a)(1) Each preneed dealer which sells burial or funeral
merchandise on a preneed basis or preneed burial or funeral
services shall establish and maintain a preneed escrow account.
(2) With respect to each monument and outer burial container, and
except as otherwise provided in paragraph (3) of this subsection,
the amount to be deposited to said escrow account shall be not
less than 35 percent of the sales price of such monument or outer
burial container; in no event shall the amount deposited be less
than 110 percent of the wholesale price of such monument or outer
burial container. For any other burial or funeral merchandise,
the amount to be deposited to said escrow account shall be not
less than 100 percent of the sales price of such merchandise; in
no event shall the amount deposited be less than 110 percent of
the wholesale price of such merchandise. If the contract of sale
shall include grave spaces or items not deemed to be burial or
funeral merchandise, the portion of the sales price attributable
to the sale of the burial or funeral merchandise shall be
determined, and it shall only be as to such portion of the total
contract as constitutes burial or funeral merchandise that the
deposit described in this paragraph shall be required. In the
event that the sale of burial or funeral merchandise is under an
installment contract, the required trust deposit shall be a pro
rata part of the principal portion of each installment payment,
such deposit only being required as payments are made by the
purchaser for such burial or funeral merchandise. In the event
the installment contract is discounted or sold to a third party,
the seller shall be required to deposit an amount equal to the
undeposited portion of the required deposit of the sales price of
such burial or funeral merchandise at such time as if the contract
were paid in full.
(3) With respect to a monument or outer burial container the
itemized sales price of which does not include the installation of
such item, 100 percent of the installation cost shall be deposited
in the escrow account.
(4) With respect to cash advance items and the sale of preneed
funeral or burial services, the amount to be deposited to said
escrow account shall be 100 percent of the sales price of such
funeral or burial services or the full amount of a cash advance
item. The time and manner of deposit shall be the same as that
specified for deposit of burial or funeral merchandise sale funds
to the escrow account.
(b) The deposit specified in paragraphs (2) and (3) of subsection
(a) of this Code section shall be made not later than 30 days
following the last day of the month in which any payment is
received.
(c) The preneed escrow account shall be established and maintained
in a state bank, state savings and loan institution, savings bank,
national bank, federal savings and loan association, whose deposits
are insured by the Federal Deposit Insurance Corporation or other
governmental agency, or a state or federally chartered credit union
insured under 12 U.S.C. Section 1781 of the Federal Credit Union
Act, or other organization approved by the Secretary of State which
is located and doing business in this state.
(d)(1) Funds may be released from the escrow account when the
burial or funeral merchandise is delivered at the time of need or
to the purchaser at the purchaser's request or, in the case of a
monument, attached to realty, or at such times as described in the
rules and regulations promulgated by the Secretary of State. A
preneed dealer is prohibited from requiring preneed delivery to
the consumer as a condition of the sale. Outer burial containers
may not be delivered prior to need. Deposits made from funds
received in payment of preneed services shall remain in the escrow
account until such services are performed, at which time said
funds may be released to the preneed dealer. The trustee may
require certification by the preneed dealer of delivery of
merchandise or performance of services before release of funds.
(2) The funds on deposit under the terms of this subsection shall
be deemed and regarded as escrow funds pending delivery of the
burial or funeral merchandise concerned and said funds may not be
pledged, hypothecated, transferred, or in any manner encumbered by
the escrow agent nor may said funds be offset or taken for the
debts of the preneed dealer until such time as the merchandise has
been delivered or the services performed; but after delivery of
the burial or funeral merchandise concerned.
(e) At any time, in the event that the preneed escrow account
contains an amount less than the amount required by this Code
section, the preneed dealer shall, within 15 days after the earlier
of becoming aware of such fact or having been so notified by the
Secretary of State, deposit into the preneed account an amount equal
to such shortfall. In the event that the Secretary of State and the
preneed dealer disagree regarding the amount of such shortfall, no
penalty shall be imposed upon the preneed dealer for any failure to
comply with this provision unless such failure occurs after notice
and opportunity for a hearing as provided in Code Section 10-14-23.
(f) Upon a finding by a court of competent jurisdiction of failure
to deposit or maintain funds in the preneed escrow account as
required by this chapter or of fraud, theft, or other misconduct by
the preneed dealer or the officers or directors of the preneed
dealer which has wasted or depleted such funds, the preneed dealer
or the officers or directors of the preneed dealer may be held
jointly and severally liable for any deficiencies in the preneed
escrow account. 10-14-8 G
*** CODE SECTION *** 12/03/01
10-14-8.
(a) The Secretary of State, by order, may prohibit a person who is
an employee, officer, independent contractor, or other agent
directly involved in the sale of burial rights, burial or funeral
merchandise, or burial or funeral services from employment or other
association with a registrant under this chapter if the Secretary of
State finds that such is in the public interest and that said
person:
(1) Has willfully made or caused to be made, in any documents
filed with the Secretary of State under this chapter, or in any
hearings conducted by the Secretary of State, any statement which,
at the time and in the light of the circumstances under which it
was made, was false or misleading with respect to any material
fact, or has willfully omitted to state in any application any
material fact which is required to be stated therein or necessary
in order to make the statements made, in light of the
circumstances under which they were made, not misleading;
(2) Has willfully violated or willfully failed to comply with any
provision of this chapter or a predecessor law or any regulation
or order promulgated or issued under this chapter or any
predecessor law;
(3) Has been adjudicated, civilly or criminally, to have committed
fraud or to have violated any law of any state involving fair
trade or business practices, has been convicted of a misdemeanor
of which fraud is an essential element or which involves any
aspect of the funeral or cemetery business, or has been convicted
of a felony;
(4) Has engaged in any unethical or dishonest practices in the
funeral or cemetery business; or
(5) Is permanently or temporarily enjoined, suspended, or barred
by any court of competent jurisdiction or by any state or other
jurisdiction from engaging in or continuing any conduct or
practice involving any aspect of the funeral or cemetery business.
(b) Where the Secretary of State finds that there are grounds for
the prohibition from employment provided in this Code section, he or
she may issue an order prohibiting an employee, officer, independent
contractor, or other agent directly or indirectly involved in
cemetery or preneed sales or any person occupying a similar status
or performing similar functions from employment with a registered
cemetery or preneed dealer. Such an order shall not be effective
until notice and opportunity for hearing are provided in accordance
with Code Section 10-14-23 and until the Secretary of State shall
issue a written order in accordance with Code Section 10-14-23; but
the Secretary of State may, if he or she finds that the public
safety or welfare requires emergency action, immediately issue an
order prohibiting such person from such employment. Such an order
of immediate prohibition will expire automatically if the Secretary
of State fails to afford notice and opportunity for hearing pursuant
to Code Section 10-14-23. 10-14-9 G
*** CODE SECTION ***
12/03/01
10-14-9.
(a) A registration application may be amended by filing with the
Secretary of State an amended application signed by the persons
required to sign the original application under Code Section 10-14-4
or 10-14-5.
(b) Every applicant registered pursuant to Code Section 10-14-4 or
10-14-5 shall agree to deliver in Georgia, on demand of the
Secretary of State, all records and documents concerning funds,
accounts, transactions, and activities of said applicant or said
applicant shall agree to pay the expenses incurred in sending an
auditor approved by the Secretary of State to wherever such records
and documents are located for the purpose of conducting an audit
pursuant to the provisions of this chapter.
(c) When any cemetery or preneed dealer registered under Code
Section 10-14-4 is sold or the ownership is otherwise transferred,
or a controlling interest is sold or transferred, the vendor or the
transferor of such cemetery, preneed dealer, or interest shall
remain liable for any funds that should have been deposited prior to
the date of such sale or transfer in the perpetual care trust fund
or the preneed escrow account, or both.
(1) Prior to such sale or transfer, the vendor or transferor shall
notify the Secretary of State of the proposed transfer and submit
to the Secretary of State any document or record the Secretary of
State may require in order to demonstrate that said vendor or
transferor is not indebted to the perpetual care trust fund or the
preneed escrow account, or both. After the transfer of ownership
or control and the presentation of proof of currency of the
perpetual care trust fund or the preneed escrow account, or both,
by the vendor or transferor, the Secretary of State may require
the presentation of proof of the continued current status of the
perpetual care trust fund or the preneed escrow account, or both,
by the vendee or transferee. The Secretary of State is authorized
to recover from such vendor, transferor, vendee, or transferee,
for the benefit of the perpetual care trust fund or the preneed
escrow account, or both, all sums which the vendor, transferor,
vendee, or transferee has not properly accounted for and paid into
the trust fund.
(2) When the vendee or transferee has complied with the provisions
of this subsection, he or she shall submit to the Secretary of
State an application for registration and appropriate fees
pursuant to Code Section 10-14-4. The Secretary of State shall
then issue a certificate of registration to said vendee or
transferee.
10-14-10 G
*** CODE SECTION *** 12/03/01
10-14-10.
(a) Except as otherwise provided in subsections (b) and (c) of this
Code section, every cemetery initially registered according to the
provisions of this chapter on or after July 1, 2000, shall consist
of not less than ten acres of land.
(b) The following cemeteries shall not be subject to the requirement
of subsection (a) of this Code section:
(1) All cemeteries registered according to this chapter prior to
August 1, 1986; or
(2) Cemeteries initially registered on or after August 1, 1986,
but before July 1, 2000, which shall consist of not less than 25
acres of land, except for cemeteries subject to a provision of
previous law, which allowed cemeteries consisting of not less than
ten acres of land dedicated solely for burial purposes and located
in counties having a population of less than 10,000 according to
the United States decennial census of 1990 or any future such
census.
(c) The Secretary of State may provide by rule or regulation for a
smaller minimum size for a cemetery which consists solely of one or
more columbaria.
10-14-11 G
*** CODE SECTION *** 12/03/01
10-14-11.
(a) The Secretary of State may issue a stop order denying
effectiveness to, or suspending or revoking the effectiveness of,
any registration and shall give notice of such issuance pursuant to
Code Section 10-14-23 if he or she finds that the order is in the
public interest and that:
(1) The registration as of its effective date, or as of any
earlier date in the case of an order denying effectiveness,
contains an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading;
(2) The applicant has failed to file financial reports required by
subsection (h) of Code Section 10-14-12;
(3) The applicant has failed to pay the filing fees required by
Code Section 10-4-4;
(4) The person or entity registered or sought to be registered or
the individual owner, corporate owner, or person who owns a
controlling interest of the corporate owner has been adjudicated,
civilly or criminally, to have committed fraud or to have violated
any law of any state involving fair trade or business practices,
has been convicted of a misdemeanor of which fraud is an essential
element or which involves any aspect of the funeral or cemetery
business, or has been convicted of a felony;
(5) The trustee for the perpetual care trust fund or the escrow
agent for the preneed escrow account has failed to file financial
reports required by subsection (h) of Code Section 10-14-6 or
subsection (g) of Code Section 10-14-29;
(6) The person or entity registered or seeking to be registered
has become insolvent or has filed a voluntary petition for
protection from creditors; or
(7) Any provision of this chapter or any rule, order, or condition
lawfully imposed under this chapter has been willfully violated
by:
(A) The person filing the registration application;
(B) The registrant's individual owner, corporate owner, or
person who owns a controlling interest of the corporate owner;
or
(C) The trustee or escrow agent of a trust fund or escrow
account established and maintained pursuant to the provisions of
this chapter.
(b) The Secretary of State may deny registration or refuse to grant
renewal of registration if he or she finds that such refusal or
denial is in the public interest and that:
(1) The registration application does not contain a current list
of preneed sales agents and accompanying information as required
by Code Section 10-14-4;
(2) The applicant has not paid filing fees or renewal fees as
required by Code Section 10-14-4; or
(3) The applicant has not filed the financial reports required by
Code Section 10-14-4 or subsection (h) of Code Section 10-14-12.
(c) In addition to the actions authorized in subsections (a) and (b)
of this Code section, the Secretary of State shall be authorized to
impose a penalty fee not to exceed $500.00 for the late filing of an
application for a renewal registration or late filing of financial
reports required by this chapter, or both. However, the penalty fee
or fees imposed for the late filing of an application for renewal of
registration or financial reports may be waived by the Secretary of
State upon a showing to the Secretary of the State that such late
filing was due to circumstances beyond the control of the applicant
or registrant despite the exercise by the applicant or registrant of
due diligence in the timely filing of the application or report.
(d) The Secretary of State may by order summarily postpone or
suspend the effectiveness of the registration or refuse to register
any applicant pending final determination of any proceeding under
this Code section. Upon the entry of the order, the Secretary of
State shall promptly notify the applicant or registrant of the order
and the reasons for the order and that, within 15 days after the
receipt of a written request, the matter will be heard. If no
hearing is requested and none is ordered by the Secretary of State,
the order will remain in effect until it is modified or vacated by
the Secretary of State. If a hearing is requested or ordered, the
Secretary of State, after notice of an opportunity for hearing to
the persons affected, may modify or vacate the order or extend it
until final determination.
(e) The Secretary of State may vacate or modify a stop order if he
or she finds that the conditions which prompted its entry have
changed or that it is otherwise in the public interest to do so.
(f) No stop order issued under any part of this Code section, except
the first sentence of subsection (d) of this Code section, shall
become effective until and unless the Secretary of State has
complied with the provisions of Code Section 10-14-23.
10-14-12 G
*** CODE SECTION *** 12/03/01
10-14-12.
(a) Each registrant under paragraph (1) or (2) of subsection (b), or
both, of Code Section 10-14-4 shall establish and maintain a
separate and distinct account for the perpetual care trust fund for
each cemetery and for the preneed escrow account. There shall be no
commingling, codeposits, or transfers of funds between the accounts,
except pursuant to court order and with the knowledge and consent of
the Secretary of State.
(b) Each registrant shall keep and maintain separate books, records,
accounts, and documents regarding the transaction of its business.
The books, records, accounts, and documents related to the keeping
of funds pursuant to the provisions of this chapter and the rules
and regulations promulgated under this chapter shall be kept and
maintained by the registrant separately from the other books,
records, accounts, and documents related to the transaction of
business.
(c) A cemetery owner or an officer or director of a cemetery company
may be a trustee of the perpetual care trust fund of a cemetery
which the individual or cemetery company owns upon approval of the
Secretary of State.
(d) The Secretary of State shall have the authority to prescribe or
approve the form of the perpetual care trust agreement and shall
have the authority to approve or disapprove any amendments to said
trust agreement as of July 1, 1983.
(e) The Secretary of State shall have the authority to prescribe or
approve the form of the preneed escrow account agreement and shall
have the authority to approve or disapprove any amendments to said
escrow account agreement as of July 1, 1983.
(f) A trustee or escrow agent of a registrant may be removed
pursuant to the provisions of Code Section 10-14-19 or by other
means provided by the laws of this state.
(g) Each perpetual care cemetery and preneed dealer shall file a
report concerning the perpetual care trust and the preneed escrow
account annually with the Secretary of State, provided that, after
notice and a hearing, the Secretary of State may order more frequent
reports in the event any such report is not filed in a timely manner
or if the report filed contains errors and deficiencies. The report
shall be on a form prescribed by the Secretary of State.
10-14-13 G
*** CODE SECTION *** 12/03/01
10-14-13.
For the purposes of venue for any civil or criminal action under
this chapter, any violation of this chapter or of any rule,
regulation, or order promulgated under this chapter shall be
considered to have been committed in any county in which any act was
performed in furtherance of the transaction which violated this
chapter, in the county of any violator's principal place of business
in this state, in the county of the cemetery's or preneed dealer's
or burial or funeral merchandise dealer's location or residence in
this state, and in any county in which any violator had control or
possession of any proceeds of said violation or of any books,
records, documents, or other material or objects which were used in
furtherance of said violation.
10-14-14 G
*** CODE SECTION *** 12/03/01
10-14-14.
(a) The administration of the provisions of this chapter shall be
vested in the Secretary of State, who may delegate such of his or
her powers and duties under this chapter to a subordinate of the
office as he or she shall deem appropriate.
(b) The Secretary of State shall keep a record of all proceedings
related to his or her duties under this chapter and shall keep
records in which shall be entered the names of all cemeteries,
preneed dealers, preneed sales agents, and burial or funeral
merchandise dealers to whom certificates of registration are issued,
which records shall be open at all times for public inspection.
(c) The Secretary of State shall have the authority to administer
oaths in, and to prescribe forms for, all matters arising under this
chapter.
(d) The Secretary of State shall have authority to employ examiners,
clerks and stenographers, and other employees as the administration
of this law may require. The Secretary of State shall also have
authority to appoint and employ investigators who shall have, in any
case in which there is a reason to believe a violation of this
chapter has occurred or is about to occur, the right and power to
serve subpoenas and to swear out and execute search warrants and
arrest warrants.
(e) The Secretary of State shall have the power to make such rules
and regulations from time to time as he or she may deem necessary
and proper for the enforcement of this chapter including, without
limitation, rules regarding the solicitation of burial or funeral
rights, merchandise, or services. The Secretary of State shall
regulate such solicitation to protect the public from solicitation
which is intimidating, overreaching, vexatious, fraudulent, or
misleading; which utilizes undue influence; or which takes undue
advantage of a person's ignorance or emotional vulnerability. Such
rules and regulations shall be adopted, promulgated, and contested
as provided in Chapter 13 of Title 50.
10-14-15 G
*** CODE SECTION *** 12/03/01
10-14-15.
(a) The Secretary of State, at his or her discretion:
(1) May make such public or private investigations or examinations
inside or outside this state as he or she deems necessary to
determine whether any person has violated or is about to violate
any provision of this chapter or any rule, regulation, or order
under this chapter or to aid in the enforcement of this chapter or
in the prescribing of rules and regulations under this chapter;
and
(2) May require or permit any person to file a statement in
writing, under oath or otherwise as the Secretary of State
determines, as to all the facts and circumstances concerning the
matter to be investigated.
(b) For the purpose of conducting any investigation as provided in
this Code section, the Secretary of State shall have the power to
administer oaths, to call any party to testify under oath at such
investigations, to require the attendance of witnesses and the
production of books, records, and papers, and to take the
depositions of witnesses; and, for such purposes, the Secretary of
State is authorized to issue a subpoena for any witness or a
subpoena for the production of documentary evidence to compel the
production of any books, records, or papers. Said subpoenas may be
served by certified mail or statutory overnight delivery, return
receipt requested, to the addressee's business mailing address or by
investigators appointed by the Secretary of State or shall be
directed for service to the sheriff of the county where such witness
resides or is found or where such person in custody of any books,
records, or papers resides or is found. The fees and mileage of the
sheriff, witness, or person shall be paid from the funds in the
state treasury for the use of the Secretary of State in the same
manner that other expenses of the Secretary of State are paid.
(c) In case of refusal to obey a subpoena issued under any Code
section of this chapter to any person, a superior court of
appropriate jurisdiction, upon application by the Secretary of
State, may issue to the person an order requiring him or her to
appear before the court to show cause why he or she should not be
held in contempt for refusal to obey the subpoena. Failure to obey
a subpoena may be punished by the court as contempt of court.
(d) The Secretary of State is authorized to hold investigative
hearings with respect to any matter under this chapter. A hearing
as provided for in this Code section may be conducted by any person
designated by the Secretary of State for that purpose. A transcript
of the testimony and evidence resulting from such hearing may, but
need not, be transcribed by the Secretary of State. A report of the
investigative hearing shall be included in the investigative report
prepared for the Secretary of State. Any recommendations of the
designated representative of the Secretary of State shall be
advisory only and shall not have the effect of an order of the
Secretary of State.
(e) The Secretary of State shall have the authority to inspect and
review or cause to be reviewed the books of each registrant under
this chapter. Said inspection or review may be conducted by the
Secretary of State as frequently as the Secretary of State may deem
appropriate.
10-14-16 G
*** CODE SECTION *** 12/03/01
10-14-16.
(a) The owner of every cemetery may make, adopt, and enforce rules
and regulations for the use, care, control, management, restriction,
and protection of such cemetery and of all parts and subdivisions
thereof; for restricting, limiting, and regulating the use of all
property within such cemetery; for regulating and preventing the
introduction and care of plants or shrubs within such grounds; for
regulating the conduct of persons and preventing improper
assemblages therein; and for all other purposes deemed necessary by
the owner of the cemetery for the proper conduct of the business of
the cemetery and the protection of safeguarding the premises and the
principles, plans, and ideas on which the cemetery was organized.
From time to time, the owner may amend, add to, revise, change,
modify, or abolish such rules and regulations. Such rules and
regulations shall be plainly printed or typewritten, posted
conspicuously, and maintained, subject to inspection and copy, at
the usual place for transacting the regular business of the
cemetery; provided, however, that no cemetery to which the
provisions of this chapter are applicable shall have the power to
adopt any rule or regulation in conflict with any of the provisions
of this chapter or in derogation of the contract rights of lot
owners or owners of burial rights. Upon request, the registrant
shall provide a copy of said rules and regulations to any person who
requests it.
(b) The owner of every cemetery shall have the further right to
establish reasonable rules and regulations regarding the type
material, design, composition, finish, and specifications of any and
all merchandise to be used or installed in the cemetery. Subject to
the provisions of this Code section and rules of the Secretary of
State, reasonable rules may further be adopted regarding the
installing by the cemetery or others of all merchandise to be
installed in the cemetery. Such rules and regulations shall be
posted conspicuously and maintained, subject to inspection and copy,
at the usual place for transacting the regular business of the
cemetery. Upon request, the registrant shall provide a copy of said
rules and regulations to any person requesting it. No cemetery
owner shall have the right to prevent the use of any merchandise
purchased by a lot owner or owner of a burial right, his or her
representative, his or her agent, or his or her heirs or assigns
from any source, provided the merchandise meets all rules and
regulations.
(c) All registrants shall have a full and complete schedule of all
charges for grave lots, burial rights, burial or funeral
merchandise, and burial or funeral services provided by the
registrant plainly printed or typewritten, posted conspicuously, and
maintained, subject to inspection and copy, at the usual place for
transacting the regular business of the cemetery. Upon request, the
registrant shall provide a copy of said schedule of charges to any
person requesting it.
10-14-17 G
*** CODE SECTION *** 12/03/01
10-14-17.
(a) It shall be unlawful for any person:
(1) To sell or offer to sell any burial rights, burial or funeral
services, or burial or funeral merchandise by means of any oral or
written untrue statement of a material fact or any omission to
state a material fact necessary in order to make the statements
made, in the light of the circumstances under which they are made,
not misleading, the buyer not knowing of the untruth or omission,
if such person shall not sustain the burden of proof that he did
not know, and in the exercise of reasonable care could not have
known, of the untruth or omission;
(2) To sell or offer to sell any, burial rights, burial or funeral
services, or burial or funeral merchandise in violation of any
provision of this chapter or rule, regulation, or order
promulgated or issued by the Secretary of State under any
provision of this chapter;
(3) Except as otherwise provided in paragraph (4) of this
subsection, in connection with the sale of preneed merchandise or
services requiring funds to be deposited into a preneed escrow
account, to fail to refund, within three business days of the
request of the purchaser or the purchaser's heirs or assigns, the
sales prices plus applicable interest as determined according to
rules promulgated by the Secretary of State, provided that such
request is made prior to the earlier of:
(A) The delivery of the merchandise or services; or
(B) The death of the person for whose interment or inurnment the
merchandise or services are intended to be used.
Certain solicitations during a person's last illness relating to
refunds shall be a violation of Part 2 of Article 15 of Chapter 1
of this title, the "Fair Business Practices Act of 1975," as set
out in Code Section 10-1-393.7;
(4) In connection with the sale of monuments or vaults, to fail to
refund within three business days of the request of the purchaser
or the purchaser's heirs or assigns the full sales price, without
interest, provided that such request is made prior to the earlier
of:
(A) The delivery of the merchandise or services; or
(B) The death of the person for whose interment or inurnment the
monument or vault is intended to be used.
Certain solicitations during a person's last illness relating to
refunds shall be a violation of Part 2 of Article 15 of Chapter 1
of this title, the "Fair Business Practices Act of 1975," as set
out in Code Section 10-1-393.7;
(5) To misappropriate, convert, illegally withhold, or fail to
account for any trust funds, escrow funds, or other funds
established or maintained pursuant to this chapter;
(6) Knowingly to cause to be made, in any document filed with the
Secretary of State or in any proceeding under this chapter, any
statement which is, at the time it is made and in the light of the
circumstances under which it is made, false or misleading in any
material respect;
(7) To sell, offer to sell, solicit offers to buy, or otherwise
engage in the sale of funeral services if such person is not a
licensed funeral director; or
(8) To sell any grave space which has not been platted and pinned.
(b) It shall be unlawful for any person in connection with the
ownership, offer, sale, or purchase of any burial rights, burial or
funeral services, or burial or funeral merchandise, directly or
indirectly:
(1) To employ any device, scheme, or artifice to defraud; or
(2) To engage in any transaction, act, practice, or course of
business which operates or would operate as a fraud or deceit upon
the purchaser or seller.
(c) In connection with the sale or installation of merchandise, it
shall be unlawful for a cemetery company to:
(1) Impose any condition upon the installation of merchandise
obtained from a third party, other than to require installation by
a registrant under this chapter or as may be otherwise permitted
by the rules and regulations of the Secretary of State;
(2) Charge a fee for the installation of merchandise purchased or
obtained from and to be installed by a person or firm other than
the cemetery company or its agents, provided that the cemetery
owner may charge a fee not to exceed $50.00 to reimburse the
cemetery owner for its actual costs incurred in assisting in the
siting of a monument on the lot on which it is to be installed,
supervision and inspection of the installation to ensure
compliance with the rules and regulations of the cemetery, and any
administrative functions associated with the installation;
provided, further, any such fee is properly disclosed and
published as required by this chapter and charged regardless of
whether the installer is or is not the cemetery owner or
affiliated therewith;
(3) Refuse to mark the place on the grave where the merchandise is
to be installed and inspect the installation when completed to
ensure compliance with cemetery rules and regulations;
(4) Require any person or firm that installs, places, or sets
merchandise to pay any fee other than any fee charged pursuant to
paragraph (2) of this subsection;
(5) Tie the purchase of any grave space or burial right to the
purchase of merchandise from or through the seller or any other
designated person or corporation;
(6) Refuse to provide care or maintenance for any portion of a
grave site on which a monument has been placed, provided that
installation has been in accordance with lawful rules and
regulations of the cemetery;
(7) Attempt to waive liability with respect to damage caused by
cemetery employees or agents to merchandise after installation,
where merchandise or installation service is not purchased from
the cemetery company providing grave space or from or through any
other person or corporation designated by the person authorized to
sell grave space or the cemetery company providing grave space;
provided, however, that no cemetery company may be held liable for
the improper installation of merchandise where merchandise is not
installed by the cemetery company or its agents;
(8) After the promulgation of rules and regulations relating to
the subject matter of this subsection by the Secretary of State,
to require any person who installs, places, or sets merchandise to
obtain any form of insurance, bond, or surety or make any form of
pledge, deposit, or monetary guarantee as a condition of entry or
access to cemetery property or the installation of merchandise
thereon, other than as may be in accordance with said rules and
regulations.
(d) Other than the fees for the sale of burial rights, burial or
funeral merchandise, and burial or funeral services, no other fee
may be directly or indirectly charged, contracted for, or received
by a cemetery company as a condition for a customer to use any
burial right, burial or funeral merchandise, or burial or funeral
service, except for:
(1) Charges paid for opening and closing a grave and vault
installation;
(2) Charges paid for transferring burial rights from one purchaser
to another; however, no such fee may exceed $50.00 and such fee
must have been disclosed in writing to the owner at the time of
the initial purchase of the burial right from the cemetery;
(3) Charges for sales, documentary, excise, and other taxes
actually and necessarily paid to a public official, which charges
must be supported in fact;
(4) Charges for credit life and credit disability insurance, but
only as requested by the purchaser, and the premiums for which do
not exceed the applicable premium chargeable in accordance with
the rates filed with the Insurance Commissioner; or
(5) Charges for interest on unpaid balances in accordance with
applicable law.
Nothing herein shall prohibit a cemetery company from charging a
reasonable fee for services it provides in connection with a lawful
disinterment, provided such charges do not exceed the greater of the
cemetery company's normal and customary charges for interment or the
actual costs incurred by the cemetery directly attributable to such
disinterment. Nothing herein shall prohibit a cemetery from
charging a reasonable fee for actual costs it incurs due to the
commencement of a funeral service at a time other than previously
agreed by the cemetery company, the funeral establishment, and the
owner of the burial rights, or his or her heirs and assigns,
provided such charges are calculated in a manner which is disclosed
and published as required by this chapter and that such charges are
directly attributable to extra costs incurred by the cemetery
company due to such late commencement.
(e) In connection with the sale of burial rights, burial or funeral
merchandise, or burial or funeral services, it shall be unlawful for
any person to fail to comply with the provisions of Article 1 of
Chapter 1 of this title, "The Georgia Retail Installment and Home
Solicitation Sales Act" or Part 2 of Article 15 of Chapter 1 of this
title, the "Fair Business Practices Act of 1975." For the purposes
of this subsection, burial rights, burial or funeral services, and
burial or funeral merchandise shall constitute goods as that term is
used in said article and said part.
(f) In connection with the installation of a monument:
(1) It shall be unlawful for any person installing said monument
to fail to comply with the lawful rules and regulations of the
cemetery regarding monument installation, provided that said rules
and regulations are provided in writing to the installer prior to
the installation. In the event such installation is not in
conformity with said rules and regulations, the installer shall be
liable to the cemetery for the actual cost of correcting such
installation so it will be in conformity, provided that:
(A) The cemetery has notified the installer by certified mail,
return receipt requested, of the reasons for the nonconformity
not later than one year after the date of the installation; and
(B) The installer, provided it is registered under this chapter,
shall have had not less than 30 days from its receipt of such
notice to correct such nonconformity; and
(2) An installer of a monument shall be liable to the cemetery, to
its customers, and to third persons for damages to their
respective property and for other damages arising due to the
negligence or intentional act of such installer, which liability
may not be waived by contract.
(g) No program offering free burial rights may be conditioned on any
requirement to purchase additional burial rights, burial or funeral
merchandise, or burial or funeral services.
(h) The contract rights of any purchaser of preneed merchandise
shall be freely transferable without fee.
(i) It shall be unlawful for any owner or operator of a perpetual
care cemetery to fail to provide care and maintenance for the
cemetery.
10-14-18 G
*** CODE SECTION *** 12/03/01
10-14-18.
(a) A registrant offering to provide burial rights, burial or
funeral merchandise, or burial or funeral services to the public
shall:
(1) Provide by telephone, upon request, accurate information
regarding the retail prices of burial or funeral merchandise and
services offered for sale by the registrant;
(2) Fully disclose all regularly offered services and merchandise
prior to the selection of burial rights, burial or funeral
services, or burial or funeral merchandise. The full disclosure
required shall identify the prices of all burial or rights, burial
or funeral services, and burial or funeral merchandise provided by
the registrant;
(3) Not make any false or misleading statements of the legal
requirement as to the necessity of a casket or outer burial
container;
(4) Provide a good faith estimate of all fees and costs the
customer will incur to use any burial rights, merchandise, or
services purchased;
(5) Provide to the customer a current copy of the rules and
regulations of the registrant;
(6) Provide the registrant's policy on cancellation and refunds to
each customer;
(7) Provide refunds if burial or funeral merchandise is not
delivered as represented; and
(8) Provide the customer, upon the purchase of any burial right or
burial or funeral merchandise or service, a written contract, the
form of which has been filed with the Secretary of State.
(b) In a manner established by rule of the Secretary of State, the
written contract shall provide on the signature page of the
contract, clearly and conspicuously in boldface ten-point type or
larger, the following:
(1) The words "purchase price" together with the sum of all items
set out in the contract in accordance with subsection (d) of this
Code section;
(2) The amount to be placed in trust;
(3) Either:
(A) A statement that no further expenses will be incurred at the
time of need; or
(B) A statement that additional expenses will be incurred at the
time of need, the registrant's current price for each such
expense, and a statement that such prices may be expected to
increase in the future; and
(4) The telephone number designated by the Secretary of State for
questions and complaints.
(c) The written contract shall be completed prior to the signing of
the contract by the customer and a copy of the contract shall be
provided to the customer.
(d) The written contract shall provide an itemization of the amounts
charged for all burial rights, burial or funeral services, burial or
funeral merchandise, cash advances, and fees and other charges,
which itemization shall be clearly and conspicuously segregated from
everything else on the written contract.
(e) The written contract shall contain a description of the burial
or funeral merchandise covered by the contract to include, when
applicable, size, materials from which the burial or funeral
merchandise is made, and other relevant specifications as may be
required by the Secretary of State.
(f) The written contract shall disclose the location at which
funeral services are to be provided and the space number of each lot
or grave space.
10-14-19 G
*** CODE SECTION *** 12/03/01
10-14-19.
(a) Whenever it may appear to the Secretary of State that any person
has engaged in, or is engaging in, or is about to engage in any act
or practice or transaction which is prohibited by this chapter or by
any rule, regulation, or order of the Secretary of State promulgated
or issued pursuant to any Code section of this chapter or which is
declared to be unlawful under this chapter, the Secretary of State
may, at his or her discretion, act under any or all of the following
paragraphs:
(1) Issue an order, if he or she deems it to be appropriate in the
public interest or for the protection of consumers, prohibiting
such person from continuing such act, practice, or transaction,
subject to the right of such person to a hearing as provided in
Code Section 10-14-23;
(2) Apply to any superior court of competent jurisdiction in this
state for an injunction restraining such person and such person's
agents, employees, partners, officers, and directors from
continuing such act, practice, or transaction or engaging therein
or doing any acts in furtherance thereof, and for appointment of a
receiver or an auditor and such other and further relief as the
facts may warrant; or
(3) Transmit such evidence as may be available concerning such
act, practice, or transaction to any district attorney or to the
Attorney General, who may, at his or her individual discretion,
institute the necessary criminal proceedings.
(b) In any proceedings for an injunction, the Secretary of State may
apply for and be entitled to have issued the court's subpoena
requiring the appearance forthwith of any defendant and its agents,
employees, partners, officers, or directors, and the production of
such documents, books, and records as may appear necessary for the
hearing upon the petition for an injunction. Upon proof of any of
the offenses described in this Code section, the court may grant
such injunction and appoint a receiver or an auditor and issue such
other orders for the protection of the public as the facts may
warrant.
(c) In any criminal proceeding, either the district attorney or the
Attorney General, or both, may apply for and be entitled to have
issued the court's subpoena requiring the appearance forthwith of
any defendant or its agents, employees, partners, officers, or
directors and the production of such documents, books, and records
as may appear necessary for the prosecution of such criminal
proceedings.
(d) In any civil proceeding brought under this Code section, if the
Secretary of State shall establish that a perpetual care trust fund
or preneed escrow account has not been established and maintained as
required, the assets of the cemetery, cemetery company, or preneed
dealer may be seized and sold by the state under orders of the court
to the extent necessary to provide said perpetual care trust fund or
preneed escrow account and set up the same. In addition, where the
registration has been revoked, the whole company property may be
ordered sold after the perpetual care trust fund and preneed escrow
account have been established so that the purchaser of the cemetery
may continue to operate the same and maintain it under the terms of
this chapter.
(e) The Secretary of State shall have the authority to petition a
court of competent jurisdiction to remove a trustee or escrow agent
for violation of the provisions of this chapter, the rules and
regulations promulgated under this chapter, or for other unlawful
acts and practices.
(f) In addition to any other penalties that may be imposed, any
person willfully violating any provisions of Code Section 10-14-17
or 10-14-18 or of Code Section 10-14-11 or any rule, regulation, or
order of the Secretary of State made pursuant to Code Section
10-14-17, 10-14-18, or 10-14-11 shall be subject to a civil penalty
not to exceed $10,000.00 for a single violation and not exceeding
$100,000.00 for multiple violations in a single proceeding or a
series of related proceedings. The Secretary of State shall be
authorized in his or her discretion to decline to impose a penalty
or to impose any lesser penalty that he or she may deem to be
sufficient and appropriate in any particular case. The amount of
such penalty may be collected by the Secretary of State in the same
manner that money judgments are now enforced in the superior courts
of this state, except that the order or finding of the Secretary of
State as to such penalty may be appealed according to the provisions
of Code Section 10-14-22.
10-14-20 G
*** CODE SECTION *** 12/03/01
10-14-20.
(a) Except as otherwise provided in subsection (b) of this Code
section, any person who shall willfully violate any provision of
this chapter shall be guilty of a misdemeanor and, upon conviction
thereof, shall be subject to a fine of not more than $1,000.00 or
imprisonment not to exceed 12 months, or both.
(b) Any person who shall willfully violate Code Section 10-14-17,
Code Section 10-14-18, or any provision of this chapter regarding
the establishment, maintenance, or reporting of any trust, reserve,
or escrow funds mandated by this chapter shall be guilty of a felony
and, upon conviction thereof, shall be punished by a fine of not
more than $10,000.00 or imprisonment for not less than one and not
more than five years, or both.
(c) Nothing in this chapter shall limit any statutory or common-law
right of the state to punish any person for violation of any
provision of any law.
10-14-21 G
*** CODE SECTION *** 12/03/01
10-14-21.
(a) Any person who violates any provision of subsection (a) of Code
Section 10-14-17 shall be liable to the person buying such burial
lot, burial right, burial merchandise, or burial service; and such
buyer may bring action in any court of competent jurisdiction to
recover the consideration paid in cash for the burial lot, burial
right, burial merchandise, or burial service together with interest
at the legal rate from the date of such payment, and reasonable
attorney's fees and costs.
(b) In addition to the remedy set forth in subsection (a) of this
Code section, a purchaser may apply to a court of competent
jurisdiction in this state for an order authorizing the recovery of
the preneed escrow deposit if a registrant fails to deliver burial
merchandise or perform preneed burial services in accordance with
the terms of the preneed sales contract.
(c) No person may bring action under this Code section more than two
years from the date of the scheduled completion of the contract for
sale or from the date of the sale if there is no contract for sale.
(d) Every cause of action under this chapter survives the death of
any person who might have been a plaintiff or defendant.
(e) Nothing in this chapter shall limit any statutory or common-law
right of any person in any court for any act involving the sale of a
burial lot, burial right, burial merchandise, or burial services.
10-14-22 G
*** CODE SECTION *** 12/03/01
10-14-22.
(a) An appeal may be taken from any order of the Secretary of State
resulting from a hearing held in accordance with the provisions of
Code Section 10-14-23 by any person adversely affected thereby to
the Superior Court of Fulton County, Georgia, by serving on the
Secretary of State, within 20 days after the date of entry of such
order, a written notice of appeal, signed by the appellant, stating:
(1) The order from which the appeal is taken;
(2) The ground upon which a reversal or modification of such order
is sought; and
(3) A demand for a certified transcript of the record of such
order.
(b) Upon receipt of such notice of appeal, the Secretary of State
shall, within ten days thereafter, make, certify, and deliver to the
appellant a transcript of the record of the order from which the
appeal is taken, provided that the appellant shall pay the
reasonable costs of such transcript. The appellant shall, within
five days after receipt of such transcript, file such transcript and
a copy of the notice of appeal with the clerk of the court. Said
notice of appeal and transcript of the record shall constitute
appellant's complaint. Said complaint shall thereupon be entered on
the trial calendar of the court in accordance with the court's
normal procedures.
(c) If the order of the Secretary of State shall be reversed, the
court shall by its mandate specifically direct the Secretary of
State as to his or her further action in the matter, including the
making and entering of any order or orders in connection therewith
and the conditions, limitations, or restrictions to be contained
therein.
10-14-23 G
*** CODE SECTION *** 12/03/01
10-14-23.
(a) Where the Secretary of State has issued any order forbidding the
sale of burial lots, burial rights, burial merchandise, or burial
services under any provision of this chapter, he or she shall
promptly send to the cemetery owner, cemetery company, burial or
funeral merchandise dealer, or preneed dealer and to the persons who
have filed such application for registration a notice of opportunity
for hearing. Before entering an order refusing to register any
person or entity and after the entering of any order for revocation
or suspension, the Secretary of State shall promptly send to such
person or entity a notice of opportunity for hearing. Hearings
shall be conducted by the Secretary of State pursuant to this Code
section.
(b) Notices of opportunity for hearing shall be served by
investigators appointed by the Secretary of State or sent by
certified mail or statutory overnight delivery, return receipt
requested, to the addressee's business mailing address, and such
notice shall state:
(1) The order which has issued or which is proposed to be issued;
(2) The ground for issuing such order or proposed order; and
(3) That the person to whom such notice is sent will be afforded a
hearing upon request if such request is made within ten days after
receipt of the notice.
(c) Whenever a person requests a hearing in accordance with the
provisions of this Code section, there shall immediately be set a
date, time, and place for such hearing, and the person requesting
such hearing shall forthwith be notified thereof. The date set for
such hearing shall be within 15 days, but not earlier than five days
after the request for hearing has been made, unless otherwise agreed
to by the issuer of the notice and the person requesting such
hearing.
(d) For the purpose of conducting any hearing as provided in this
Code section, the Secretary of State shall have the power to
administer oaths, to call any party to testify under oath at such
hearings, to require the attendance of witnesses and the production
of books, records, and papers, and to take the depositions of
witnesses; and for such purposes the Secretary of State is
authorized, at the request of the person requesting such hearing or
upon the official's own initiative, to issue a subpoena for any
witnesses or a subpoena for the production of documentary evidence
to compel the production of any books, records, or papers. Said
subpoenas may be served by certified mail or statutory overnight
delivery, return receipt requested, to the addressee's business
mailing address or by investigators appointed by the Secretary of
State or shall be directed for service to the sheriff of the county
where such witness resides or is found or where such person in
custody of any books, records, or papers resides or is found. The
fees and mileage of the sheriff, witness, or person shall be paid
from the funds in the state treasury for the use of the Secretary of
State in the same manner that other expenses of the Secretary of
State are paid.
(e) At any hearing conducted under this Code section, a party or an
affected person may appear in his or her own behalf or may be
represented by an attorney. A stenographic record of the testimony
and other evidence submitted shall be taken unless the Secretary of
State and the person requesting such hearing shall agree that such a
stenographic record of the testimony shall not be taken. A
transcript of the proceeding shall be made available to a party upon
the payment of reasonable costs. The Secretary of State shall pass
upon the admissibility of such evidence, but a party may at any time
make objections to such rulings thereon; and, if the Secretary of
State refuses to admit evidence, the party offering the same shall
make a proffer thereof and such proffer shall be made a part of the
record of such hearing.
(f) If the Secretary of State does not receive a request for a
hearing within the prescribed time, he or she may permit an order
previously entered to remain in effect or he or she may enter a
proposed order. If a hearing is requested and conducted as provided
in this Code section, the Secretary of State shall issue a written
order which shall set forth his or her findings with respect to the
matters involved and enter an order in accordance with the
Secretary's findings.
10-14-24 G
*** CODE SECTION *** 12/03/01
10-14-24.
When consent to service of process is required under this chapter,
such consent to service of process shall be in the form prescribed
by the Secretary of State, shall be irrevocable, and shall provide
that actions brought by the State of Georgia arising out of or
founded upon the sale of burial lots, burial rights, burial
services, or burial merchandise in violation of this chapter may be
commenced in any court of competent jurisdiction with proper venue
within this state by the service of process or pleadings upon the
Secretary of State against the person executing such consent.
Notwithstanding any provision in any other law to the contrary,
service of any such process or pleadings in any such action against
a person who has filed a consent to service with the Secretary of
State shall, if made on the Secretary of State, be by duplicate
copies, one of which shall be filed in the office of the Secretary
of State and the other shall immediately be forwarded by the
Secretary of State by certified mail or statutory overnight delivery
to the person against whom such process or pleadings are directed at
such person's latest address on file in the office of the Secretary
of State.
10-14-25 G
*** CODE SECTION *** 12/03/01
10-14-25.
Any condition, stipulation, or provision binding any person
acquiring any burial lot, burial right, burial merchandise, or
burial services to waive:
(1) Compliance with any provision of this chapter or of the rules
and regulations promulgated under this chapter;
(2) Any rights provided by this chapter or by the rules and
regulations promulgated under this chapter; or
(3) Any defenses arising under this chapter or under the rules and
regulations promulgated under this chapter
shall be void.
10-14-26 G
*** CODE SECTION *** 12/03/01
10-14-26.
For any action taken or any proceeding had under the provisions of
this chapter or under color of the law, the Secretary of State shall
be immune from liability and action to the same extent that any
judge of any court of general jurisdiction in this state would be
immune.
10-14-27 G
*** CODE SECTION *** 12/03/01
10-14-27.
(a) In any action, civil or criminal, a certificate signed and
sealed by the Secretary of State, stating compliance or
noncompliance with the provisions of this chapter, shall constitute
prima-facie evidence of such compliance or noncompliance with the
provisions of this chapter and shall be admissible in any such
action.
(b) In any action, civil or criminal, copies, photostatic or
otherwise, certified by the Secretary of State of any documents
filed in his or her office and of any of his or her records shall be
admissible with the same effect as the original of such documents or
records would have if actually produced.
10-14-28 G
*** CODE SECTION *** 12/03/01
10-14-28.
(a) Prior law exclusively governs all actions, prosecutions, or
proceedings which are pending or may be initiated on the basis of
facts or circumstances occurring before July 1, 2000, except that no
civil action may be maintained to enforce any liability under prior
law unless brought within any period of limitation which applied
when the cause of action accrued and, in any event, no later than
July 1, 2000.
(b) All effective registrations under prior law, all administrative
orders relating to such registrations, and all conditions imposed
upon such registrations remain in effect. They shall be deemed to
have been filed, entered, or imposed under this chapter but are
governed by prior law.
(c) Judicial review of all administrative orders as to which review
proceedings have not been instituted by July 1, 2000, are governed
by Code Section 10-14-22, except that no review proceeding may be
instituted unless the petition is filed within any period of
limitation which applied to a review proceeding when the order was
entered and, in any event, no later than August 1, 2000.
10-14-29 G
*** CODE SECTION *** 12/03/01
10-14-29.
(a) A cemetery company shall start construction of that section of a
mausoleum or columbarium in which sales, contracts for sales,
reservations for sales, or agreements for sales are being made
within four years after the date of the first such sale or 50
percent of the mausoleum or columbarium has been sold and the
purchase price has been received, whichever occurs first. The
construction shall be completed within five years after the date of
the first sale made. If the units have not been completely
constructed at the earlier of time of need or the time specified in
this subsection, all moneys paid shall be refunded upon request,
plus interest earned thereon for that portion of the moneys
deposited in the preneed escrow account and an amount equal to the
interest that would have been earned on that portion of the moneys
that were not so deposited.
(b) A cemetery company that plans to offer for sale space in a
section of a mausoleum or columbarium prior to construction shall
establish a preconstruction trust fund by written instrument. The
preconstruction trust fund shall be administered by a corporate
trustee approved by the Secretary of State and not affiliated with
the cemetery company and operated in conformity with applicable
provisions of Code Section 10-14-7. The preconstruction trust fund
shall be separate from any other trust funds that may be required by
this chapter.
(c) Before a sale, contract for sale, reservation for sale, or
agreement for sale in a mausoleum section or columbarium may be
made, the cemetery company shall compute the amount to be deposited
to the preconstruction trust fund. The total amount to be deposited
in the fund for each unit of the project shall be computed by
dividing the cost of the project plus 10 percent of the cost, as
computed by a licensed contractor, engineer, or architect, by the
number of crypts or niches in the mausoleum or columbarium. When
payments are received in installments, the percentage of the
installment payment placed in trust must be identical to the
percentage which the payment received bears to the total cost of the
contract, including other burial or funeral merchandise and services
purchased. Preconstruction trust fund payments shall be made within
30 days after the end of the month in which payment is received.
(d) When the cemetery company delivers a completed crypt, mausoleum,
columbarium, or niche acceptable to the purchaser in lieu of the
crypt or niche purchased prior to construction, all sums deposited
to the preconstruction trust fund for that purchaser shall be paid
to the cemetery company.
(e) Upon completion of the mausoleum section or columbarium, the
cemetery company shall certify completion to the trustee and shall
be entitled to withdraw all funds deposited to the account of such
mausoleum section or columbarium.
(f) If the mausoleum section or columbarium is not completed within
the time limits set out in this Code section, the trustee shall
contract for and cause the project to be completed and pay therefor
from the trust funds deposited to the project's account, paying any
balance, less cost and expenses, to the cemetery company. The
cemetery company shall be liable for any difference between the
amount necessary to complete construction and the amount of trust
funds.
(g) On or before January 31 of each year, the trustee shall file
with the Secretary of State in the form prescribed by the Secretary
of State, a full and true statement as to the activities of any
trust established pursuant to this Code section for the preceding
calendar year.
10-14-30 G
*** CODE SECTION *** 12/03/01
10-14-30.
The Secretary of State, by rule, may adopt minimum standards for
interment of human remains, including, without limitation, standards
for depth of burial, composition of vaults, caskets, and other
containers, siting and marking of burial lots, and minimum standards
for construction of mausoleums and columbaria. In addition, the
Secretary of State may, by rule, provide for the minimum standards
for or prohibition of aboveground burial containers.
