South Carolina General Assembly
111th Session, 1995-1996

Bill 4541


Indicates Matter Stricken
Indicates New Matter


                    Current Status

Bill Number:                       4541
Type of Legislation:               General Bill GB
Introducing Body:                  House
Introduced Date:                   19960206
Primary Sponsor:                   Simrill
All Sponsors:                      Simrill, Moody-Lawrence and
                                   Kirsh 
Drafted Document Number:           gjk\22280sd.96
Residing Body:                     House
Date of Last Amendment:            19960515
Subject:                           Human remains, unlawful
                                   destruction of



History


Body    Date      Action Description                       Com     Leg Involved
______  ________  _______________________________________  _______ ____________

House   19960523  Continued the Bill
Senate  19960515  Amended, read third time, 
                  returned to House with amendment
Senate  19960509  Amended, read second time, 
                  ordered to third reading 
                  with notice of general amendments
Senate  19960508  Committee report: Favorable with         11 SJ
                  amendment
Senate  19960429  Introduced, read first time,             11 SJ
                  referred to Committee
House   19960425  Read third time, sent to Senate
House   19960424  Amended, read second time
House   19960418  Committee report: Favorable with         25 HJ
                  amendment
House   19960206  Introduced, read first time,             25 HJ
                  referred to Committee

View additional legislative information at the LPITS web site.


(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

Indicates Matter Stricken
Indicates New Matter

AS PASSED BY THE SENATE

May 15, 1996

H. 4541

Introduced by REPS. Simrill, Moody-Lawrence and Kirsh

S. Printed 5/15/96--S.

Read the first time April 29, 1996.

A BILL

TO AMEND SECTION 16-17-600, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE UNLAWFUL DESTRUCTION OR DESECRATION OF HUMAN REMAINS OR REPOSITORIES AND THE PENALTIES THEREFOR, SO AS TO INCREASE THE MONETARY PENALTIES FOR CERTAIN VIOLATIONS.

Amend Title To Conform

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Section 16-17-600 of the 1976 Code, as last amended by Section 34, Act 184 of 1993, is further amended to read:

"Section 16-17-600. (A) It is unlawful for a person wilfully and knowingly, and without proper legal authority to:

(1) destroy or damage the remains of a deceased human being;

(2) remove a portion of the remains of a deceased human being from a burial ground where human skeletal remains are buried, a grave, crypt, vault, mausoleum, or other repository; or

(3) desecrate human remains.

A person violating the provisions of subsection (A) is guilty of a felony and, upon conviction, must be fined not more than two five thousand dollars and or imprisoned not less than one year nor more than ten years, or both.

A crematory operator shall be held blameless and harmless for the cremation of a body which has been incorrectly identified by the funeral director or person bringing the deceased to the crematory or which the funeral director has obtained incorrect authorization to cremate.

(B) It is unlawful for a person wilfully and knowingly, and without proper legal authority to:

(1) obliterate, vandalize, or desecrate a burial ground where human skeletal remains are buried, a grave, graveyard, tomb, mausoleum, or other repository of human remains;

(2) deface, vandalize, injure, or remove a gravestone or other memorial monument or marker commemorating a deceased person or group of persons, whether located within or outside of a recognized cemetery, memorial park, or battlefield; or

(3) obliterate, vandalize, or desecrate a park or other area clearly designated to preserve and perpetuate the memory of a deceased person or group of persons.

A person violating the provisions of subsection (B) is guilty of a felony and, upon conviction, must be imprisoned not more than ten years or fined not more than two ten thousand dollars, or both.

(C) It is unlawful for a person wilfully, knowingly, and without proper legal authority to destroy, tear down, or injure only fencing, plants, trees, shrubs, or flowers located upon or around a repository for human remains, or within a human graveyard or memorial park.

A person violating the provisions of subsection (C) is guilty of a felony and, upon conviction, must be fined in the discretion of the court not more than five thousand dollars or imprisoned not more than five years, or both. Injury or loss of property less than two hundred dollars is a misdemeanor triable in magistrate's court. Upon conviction, the person must be fined, imprisoned, or both, not more than is permitted by law, without presentment or indictment by the grand jury."

SECTION 2. The 1976 Code is amended by adding:

"Section 16-17-601. It is unlawful for a person wilfully, knowingly, and without proper legal authority to destroy, tear down, or injure a public repository for animal remains or an animal graveyard including any markers or gravestones therein or fencing, plants, trees, or shrubs located upon or around a public repository for animal remains or an animal graveyard. To be found guilty of a violation of this section, the public repository for animal remains or the animal graveyard must be clearly marked as such, or the person committing the violation must have personal knowledge that the location was a public repository for animal remains or an animal graveyard. Notice to a purchaser of real property that a public repository for animal remains or an animal graveyard exists on the property must be given in the deed to the property.

Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned not more than thirty days, or both."

SECTION 3. Chapter 55, Title 39, as amended, of the 1976 Code is amended to read:

"CHAPTER 55

Cemeteries

Section 39-55-15. The provisions of this chapter are known and may be cited as the `South Carolina Cemetery Act of 1984'.

Section 39-55-25. It is found to be necessary in the public interest that cemeteries, burial grounds, and any agreement or contract which has for a purpose the furnishing or delivering of any person, property, or merchandise of any nature in connection with the final disposition of a dead human body, must be subject to sufficient regulation by the State to ensure that sound business practices are followed by all entities subject to the provisions of this chapter.

Section 39-55-35. As used in this chapter, unless otherwise stated or unless the context clearly indicates otherwise:

1. `Board' means the South Carolina Cemetery Board.

2. `Cemetery' means a place used, dedicated, or designated for cemetery purposes including any one or combination of:

(a) perpetual care cemeteries;

(b) burial parks for earth interment;

(c) mausoleums;

(d) columbariums.

3. `Cemetery company' means any legal entity that owns or controls cemetery lands or property and conducts the business of a cemetery, including all cemeteries owned and operated by cemetery sales organizations or cemetery management organizations or any other legal entity.

4. `Columbarium' means a structure or building substantially exposed aboveground intended to be used for the interment of the cremated remains of a deceased person.

5. `Grave space' means a space of ground in a cemetery intended to be used for the interment in the ground of the remains of a deceased person.

6. `Human remains' or `remains' means the body of a deceased person and includes the body in any stage of decomposition.

7. `Mausoleum' means a structure or building substantially exposed aboveground, intended to be used for the entombment of the remains of a deceased person.

8. `Perpetual care' means the maintenance and the reasonable administration of the cemetery grounds and buildings in keeping with a properly maintained cemetery. In the event that a cemetery offers perpetual care for some designated sections of its property but does not offer perpetual care to other designated sections, the cemetery must be considered a perpetual care cemetery for the purposes of this chapter.

9. `Person' means an individual, corporation, partnership, joint venture, or association.

10. `Vault' means a crypt or underground receptacle which is used for interment in the ground and is designed to encase and protect caskets or similar burial devices. For the purposes of this chapter a vault is a preneed item until delivery to the purchaser at the selling cemetery.

11. `Memorial' means a bronze marker set approximately level with the turf for the purpose of identification, or interchanged to mean upright markers in garden sections which are plotted and specified for the use of upright markers. The term 'marker' is herein interchanged with the term "memorial".

12. `Merchandise' means items used in connection with grave space, niches, mausoleum crypts, granite, memorials, or vaults; provided, however, merchandise shall expressly exclude burial caskets, clothing, cremation urns, professional services, facilities used for preparation, viewing, or services, and automotive equipment and transportation. Items expressly excluded under the definition of merchandise in this provision shall be governed by Chapter 7 of Title 32.

13. `Trust institution' means any state or national bank, state or federal savings and loan association, or trust company authorized to act in a fiduciary capacity in this State.

Section 39-55-45. For the purposes of administering the provisions of this chapter, there is established in the Office of the Secretary of State a South Carolina Cemetery Board with the power and duty to promulgate regulations to carry out the provisions of this chapter.

Section 39-55-55. The board consists of seven members, six of whom must be appointed by the Governor. The Secretary of State is a member ex officio and shall serve as chairman of the board. Two members must be public members who have no financial interest in and are not involved in management of any cemetery or funeral related business, two members must be owners or managers of cemeteries in this State, and two members must be selected from four nominees submitted by the South Carolina Cemetery Association. The Governor may reject any or all of the nominees submitted by the Cemetery Association upon satisfactory showing of unfitness of those rejected. If the Governor declines to appoint any of the nominees so submitted, additional nominees must be submitted in the same manner. Of the six appointed members, two of the initial board must be appointed for a term of two years, two for a term of three years, and two for a term of four years. At the end of their respective terms, successors must be selected in the same manner and appointed for terms of four years and until their successors are appointed and qualify. Any appointment to fill a vacancy on the board created by the resignation, dismissal, death, or disability of a member is for the balance of the unexpired term.

Section 39-55-65. The principal office of the board is in the office of the Secretary of State. Notice of all regular meetings may be advertised in three newspapers having general circulation in the State ten or more days in advance of the meetings. Each member of the board shall receive the usual mileage, per diem, and subsistence as provided by law for members of state boards, committees, and commissions. All expenses of the board must be paid from fees received by the board.

Section 39-55-75. The board must meet at least semiannually and may hold special meetings at any time and place within the State at the call of the chairman or upon written request of at least four members.

Section 39-55-85. The board shall prepare an annual budget and shall collect the sums of money required for the budget from yearly fees and any other sources provided for in this chapter. On or before July first of each year, each licensed cemetery shall pay a license fee of at least one hundred dollars.

Section 39-55-95. (a) No legal entity may engage in the business of operating a cemetery company, except as authorized by this chapter, without first obtaining a license from the board.

(b) Any legal entity wishing to establish a cemetery shall file a written application for authority to do so with the board on forms prescribed and provided by it.

(c) Upon receipt of the application and a nonrefundable filing fee of at least four hundred dollars the board shall cause an investigation to be made to establish the following criteria for approval of the application:

(1) The creation of a legal entity to conduct a cemetery business and the proposed financial structure.

(2) An irrevocable care and maintenance trust fund agreement must be established and maintained with a trust institution doing business in this State, with an initial deposit of not less than fifteen thousand dollars and a bank cashier's or certified check attached for the amount and payable to the trustee with the trust executed by the applicant and accepted by the trustee, conditioned only upon the approval of the application.

(3) A plat of the land to be used for a cemetery showing the county or municipality and the names of roads and access streets or ways.

(4) Designation by the legal entity, wishing to establish a cemetery, of a general manager who must be a person having had not less than two years' experience in cemetery business.

(5) Development plans sufficient to ensure the community that the cemetery will provide adequate cemetery services and that the property is suitable for use as a cemetery.

(d) The board, after receipt of the investigating report and within ninety days after receipt of the application, shall grant or refuse to grant the authority to organize a cemetery.

(e) If the board intends to deny an application, it shall give written notice to the applicant of its intention to deny. The notice shall state a time and place for a hearing before the board and a summary statement of the reasons for the proposed denial. The notice of intent must be mailed by certified mail to the applicant at the address stated in the application at least fifteen days prior to the scheduled hearing date. Notwithstanding any other provision of law, any appeal from the board's decision must be to the circuit court.

(f) If the board intends to grant the authority it shall give written notice that the authority to organize a cemetery has been granted and that a license to operate will be issued upon the completion of the following:

(1) Establishment of the irrevocable care and maintenance trust fund and receipt by the board of a certificate from the trust institution certifying receipt of the initial deposit required under this chapter.

(2) Development, ready for burial, of not less than two acres, certified by inspection of the board or its representative.

(3) A description, by metes and bounds, of the acreage tract of the proposed cemetery, together with evidence, by title insurance policy or certificate or certification by an attorney at law, that the applicant is the owner in fee simple of the tract of land, which must contain not less than thirty acres and that the fee simple title of the tract of not less than thirty acres is free and clear of all encumbrances. In counties with a population of less than thirty-five thousand inhabitants according to the latest official United States census the tract need be only fifteen acres.

(4) Submit to the board for its approval a copy of regulations as defined in Section 39-55-125.

Section 39-55-100. (A) Where the excavation can be accomplished without drilling or the use of equipment other than a shovel, funeral vaults must be at least ten inches below the earth's surface. As used in this section, section `funeral vaults" means caskets, grave liners, or other outer burial containers. It does not include markers, monuments, or crypts constructed in a mausoleum or columbarium.

(B) This section does not apply to cemeteries located in the coastal/lowland areas which are subject to tidal or surface flooding or have a high-level water table, except that vaults may be placed level with the ground in coastal/lowland cemeteries where the water table is at least two feet below ground level and which cemeteries are not subject to tidal or surface water flooding.

(C) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for not more than thirty days.

Section 39-55-105. In any case where a person proposes to purchase or acquire control of an existing cemetery either by purchasing the outstanding capital stock of any cemetery company or the interest of the owner and, thereby to change the control of the cemetery company, the person must make application on a form prescribed and provided by the board for a license change. The application shall contain the name and address of the proposed new owner. The application for a license change must be accompanied by an initial filing fee of one hundred dollars to cover an investigation, if required.

Section 39-55-115. In addition to other powers conferred by this chapter upon the board, the board also has the following powers and duties:

(1) Prior to the change of control of any cemetery company, to examine the licensee's records, and, if the board considers it advisable, to assess applicable fees provided for in this chapter or by regulation.

(2) At any time the board finds it necessary to bring an action in the name of the State in the circuit court of the county in which the licensed place of business is located against any person who is the director, the owner, or an officer of a cemetery company to enjoin the person from engaging in or continuing any violation of this chapter or of any regulation or order promulgated pursuant to it. In any action of this nature an order or judgment may be entered by the court awarding a temporary restraining order, temporary injunction, or permanent injunction, as is considered proper. Before this action may be brought, the board shall give the person at least thirty days' notice in writing, stating the alleged violation and giving the person an opportunity within that period to correct the violation or to request by certified mail a hearing before the board. In addition to all other powers under provisions of law governing the issuance and the enforcement of a temporary restraining order, temporary injunction, or a permanent injunction, the court has the power and jurisdiction to impound and appoint a receiver for the property and business of the person, including books, papers, documents, and records, or so much of these as the court considers reasonably necessary to prevent further violation of this chapter or of any regulation or order promulgated pursuant to it through or by means of the use of the property and business. The board may institute proceedings against the cemetery or its officers or owners where, after an examination, pursuant to this chapter, a shortage in the care and maintenance trust fund is discovered so as to recover the shortage.

Section 39-55-125. A. A record must be kept of every lot owner and every burial in the cemetery showing the date of purchase, date of burial, name of the person buried and of the lot owner, and space in which the burial was made. All sales, trust funds, accounting records, and other records of the licensee must be available at the licensee's principal place of business and must be readily available at all reasonable times for examination by an authorized representative of the board. In addition, the owner of a perpetual care cemetery shall have the records of the perpetual care cemetery examined annually by a licensed public accountant and shall submit a copy of the report to the board.

B. A record must be kept of each written complaint received, action taken, and disposition of complaint. These records must be available for examination by representatives of the board.

C.

(1) The owner of every cemetery shall adopt, and enforce regulations for the use, care, control, management, restriction, and protection of the cemetery and of all parts and subdivisions thereof; for regulating the use of all property within a cemetery; for regulating the introduction and care of plants or shrubs within the grounds; for regulating the conduct of persons and preventing improper assemblages therein; and for all other purposes considered necessary by the owner of the cemetery for the proper conduct of the business of the cemetery and the protection of the premises and the principles on which the cemetery was organized. The owner may amend or abolish such regulations. The regulations must be plainly printed or typewritten, posted conspicuously, and maintained subject to inspection at the usual place for transacting the regular business of the cemetery. However, no cemetery licensed under the provisions of this chapter may adopt any regulation in conflict with any of the provisions of this chapter or in derogation of the contract rights of lot owners.

(2) The owner of every cemetery shall have the further right to establish reasonable regulations regarding the type material, design, composition, finish, and specifications of any and all merchandise to be used or installed in the cemetery. Reasonable regulations may further be adopted regarding the installing by the cemetery or others of all merchandise to be installed in the cemetery. These regulations must be posted conspicuously and maintained, subject to inspection, at the usual place for transacting the regular business of the cemetery. No cemetery owner may prevent the use of any merchandise purchased by a lot owner, his representative, agent, or heirs or assigns from any source, if the merchandise meets all cemetery regulations.

(3) All regulations established by a cemetery pursuant to this subsection must be submitted to the board for its approval.

Section 39-55-135. No cemetery company is permitted to establish a perpetual care cemetery or to operate an already-established perpetual care cemetery without providing for the future care and maintenance of the cemetery, for which a trust fund must be established to be known as `the care and maintenance trust fund of (Name of licensee)'. If any perpetual care cemetery company refuses or otherwise fails to provide or maintain an adequate care and maintenance trust fund in accordance with the provisions of this chapter, the board, after reasonable notice, must proceed to enforce compliance. The trust fund agreement shall contain the name, location, and address of both the licensee and the trustee, showing the date of the trust agreement and the deposit in the trust of the required funds. No person may transfer the corpus of the care and maintenance trust fund without first obtaining written consent from the board.

Section 39-55-145. At the time of making a sale or receiving the initial deposit on the sale of grave space, niche, or mausoleum crypt, the cemetery company shall deliver to the person to whom the sale is made, or who makes the deposit, an instrument in writing which shall specifically state that the net income of the care and maintenance trust fund must be used solely for the care and maintenance of the cemetery, for reasonable costs of administering the care and maintenance and for reasonable costs of administering the trust fund. This information may be included in the sales contract.

Section 39-55-155. No cemetery may cause or permit advertising of a perpetual care fund in connection with the sale or offer for sale of its property unless the amount deposited in the care and maintenance trust fund is equal to not less than twenty dollars or ten percent of the sale price, whichever is greater, per grave space and niche and fifty dollars per mausoleum crypt sold or five percent of the sales price, whichever is greater. Also, for any memorial or grave marker for installation in a cemetery wherein perpetual care is promised or guaranteed, the cemetery shall transmit to the care and maintenance trust fund an amount equal to eight cents per square inch of the memorial's or the marker's base. All deposits must be made within sixty days upon receipt of final payment.

Section 39-55-165. Within ninety days after the end of the calendar or fiscal year of the cemetery company, the trustee shall furnish adequate financial reports with respect to the care and maintenance trust fund on forms prescribed and provided by the board. The board may require the trustee to make any additional financial reports the board considers advisable.

Section 39-55-175. The care and maintenance trust fund must be invested and reinvested by the trustee in the same manner as provided by law for the investment of other trust funds. The fees and other expenses of the trust fund must be paid by the trustee from the net income of the trust fund and may not be paid from the corpus. To the extent that the net income is not sufficient to pay the fees and other expenses, they must be paid by the cemetery company.

Section 39-55-185. (A) Any person receiving funds from the sale of merchandise for use in a cemetery in connection with the burial or commemoration of a deceased human being when the use of the merchandise is not immediately requested or required shall deposit the funds in a merchandise trust fund administered by a trust institution.

The cemetery company shall maintain a record of each deposit into any such account and shall identify the name of the purchaser, the amount of the actual cost to the seller and the amount of money to be deposited, and a copy of the contract for the merchandise. Nothing contained herein prohibits the trustee from commingling the deposits in any trust fund of this kind for purposes of the management and investment of funds.

(B) When any memorial, mausoleum crypt, or other merchandise is sold in advance of need and not installed until a later date, one hundred percent of actual cost to the seller at time of deposit must be placed in a trust institution within sixty days after completion of the contract, with interest to accrue, and may not be withdrawn without the consent of the purchaser until the time of delivery or construction.

(C)

(1) The funds must be held in a merchandise trust fund both as to principal and income earned and must remain intact, except that the cost of the operation of the trust may be deducted from the income until delivery of the merchandise is made by the cemetery company or other entity. Upon delivery of the merchandise, the cemetery company or other entity shall certify these facts to the trustee. Upon this certification, the amount of money on deposit to the credit of that particular contract, including principal and income, must be paid to the cemetery company, or other entity. The trustee may rely upon all certifications of this kind and is not liable to anyone for this reliance.

(2) If for any reason a cemetery company or other entity which has entered into a contract for the sale of merchandise cannot or does not provide within a reasonable time the merchandise that has been fully paid for and called for by the contract after request in writing to do so, the purchaser or his heirs or assigns or duly authorized representative is entitled to receive the entire amount paid on the contract and any income earned by the merchandise trust fund for that particular item. Reasonable time excludes riots, strikes, acts of war, or any delays beyond the control of the cemetery company or other entity.

(D) At any time after payment in full and prior to delivery of merchandise, a purchaser may make written demand for a refund of the amount deposited in the merchandise trust fund to the credit of the purchaser, and, within thirty days of receipt of the written demand, the trustee shall refund to the purchaser the amount on deposit to his credit, less reasonable commission fees and administrative costs, together with all interest, dividends, increases, or accretions earned on the fund. Upon such refund, the cemetery company is relieved from any further liability for this merchandise.

(E) The trustee shall, annually and within ninety days after the end of the calendar year, file a financial report of the merchandise trust fund with the board on forms provided by the board, setting forth the principal, investments, and payments made and the income earned and disbursed. The board may require the trustee to make additional financial reports as the board considers advisable.

(F) The board may examine the business of any cemetery company or other entity writing contracts for the sale of the property or services described in this section. The written report of the examination must be filed in the office of the board. Any person or entity being examined shall produce the records of the company needed for the examination.

(G) Any provision of any contract for the sale of merchandise described in this section which provides that the purchaser or beneficiary may waive any of the provisions of this section is void.

(H) All cemetery owners shall have a full and complete schedule of all charges for services provided by the cemetery plainly printed or typewritten, posted conspicuously, and maintained, subject to inspection and copying at the usual place for transacting the regular business of the cemetery.

(I) Any cemetery company or other entity failing to make required contributions to a care and maintenance trust fund or to a merchandise trust fund is guilty of a misdemeanor and, upon conviction, must be punished as provided in Section 39-55-265.

(J) If any report is not received within the time stipulated herein, the board may levy and collect a penalty of twenty-five dollars per day for each day of delinquency.

Section 39-55-195. Application for renewal of licenses must be submitted on or before July first of each year in the case of an existing cemetery company. Before any sale of cemetery property may take place in the case of a new cemetery company or in the case of a change of ownership or control, as provided in Sections 39-55-105 and 39-55-115, an application for a license must be submitted and a license must have been issued.

Section 39-55-205. No license issued under this chapter is transferrable or assignable and no licensee may develop or operate any cemetery authorized by this chapter under any name or any location other than that contained in the license.

Section 39-55-215. (a) Each licensee shall set aside a minimum of thirty acres of land for use as a cemetery, except as may otherwise be provided in this chapter, and may not sell, mortgage, lease, or encumber it.

(b) The fee simple title in any lands owned by the licensee and dedicated for use by the licensee as a cemetery, which lands are continuous, adjoining or adjacent to the minimum acreage described in subsection (a), may be sold, conveyed, or disposed of by the licensee for use by the new owner for purposes other than as a cemetery if no bodies have been previously interred and if any titles, interests, or burial rights which may have been sold or contracted to be sold in these lands are reconveyed to the licensee prior to the consummation of any conveyance.

(c) Any licensee may convey and transfer to a municipality or county its real and personal property, together with monies deposited with the trustee, if the municipality or county accepts responsibility for maintenance and prior written approval of the board is obtained.

(d) The provisions of subsections (a) and (b) relating to a requirement for minimum acreage do not apply to those cemeteries licensed by the board on or before July 1, 1984, which cemeteries own or control a total of less than the minimum acreage, but these cemeteries may not dispose of any of the lands.

Section 39-55-225. (a) A cemetery company is required to start construction of that section of a mausoleum or bank of belowground crypts in which sales, contracts for sale, reservations for sales, or agreements for sales are being made within thirty-six months after the date of the first sale, or refund the money. The construction of the mausoleum section or bank of belowground crypts must be completed within five years after the date of the first sale. Extensions for completion, not to exceed one year, may be granted by the board for good reasons shown.

(b) After construction has begun on the mausoleum section or bank of belowground crypts, the cemetery company shall certify the progress and expenditures to the trustee and is entitled to withdraw all funds deposited to the trust account.

(c) If the mausoleum section or bank of belowground crypts is not completed within the time limits set out in this section, the trustee must contract for and cause the project to be completed and paid for from the trust funds deposited to the project's account. Any balance, less costs and expenses, must be paid to the cemetery company. If not enough funds have been deposited to the escrow trust fund to complete the project, the cemetery company shall be liable for any shortage.

(d) In lieu of the payments to the escrow trust fund the cemetery company may deliver to the board a performance bond in an amount and by surety companies acceptable to the board.

Section 39-55-235. All cemeteries in this State, except family burial grounds, shall display a sign at each entrance, containing letters not less than six inches in height, stating `Perpetual Care' or `Endowment Care' or `No Perpetual Care' or `No Endowment Care', depending upon which method of operation the cemetery is using. Those cemeteries which furnish perpetual care to some portions and no perpetual care to other portions shall display these signs on the appropriate sections of the cemetery to which the sign applies. Portions designated `Perpetual Care' cannot be changed to `No Perpetual Care' once the designation is made.

Section 39-55-245. Any cemetery company which offers free burial rights to any person or group of persons must, at the time of the offer, clearly state all conditions upon which the offer is made. Cemeteries must be maintained to present a cared for appearance including, but not limited to, shrubs and trees pruned and trimmed, flower beds weeded, drives maintained, and lawns mowed when needed equivalent to once per week during the grass growing season with ample rainfall.

Section 39-55-255. Cemetery companies may provide by their bylaws, regulations, contracts, or deeds the designation of parts of cemeteries for the specific use of persons whose religious code requires isolation.

Section 39-55-265. Any officer, director, or person occupying a similar status licensed to operate a cemetery company who fails to make required contributions to the care and maintenance trust fund or any other trust fund required to be established and maintained by this chapter and any other person violating any other provision of this chapter or order or regulation promulgated under the provisions of this chapter is guilty of a misdemeanor and upon conviction must be fined not more than five thousand dollars or imprisoned for not more than two years. Each violation constitutes a separate offense.

Section 39-55-275. The board has authority to adjust license and filing fees through regulations promulgated pursuant to the Administrative Procedures Act and to employ examiners, clerks, and stenographers and other employees as the administration of this chapter may require. The board also has 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 or of any order or regulation promulgated under the provisions 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.

Section 39-55-285. The board has the authority to make regulations pursuant to the Administrative Procedures Act and to issue orders from time to time as the board considers necessary for the enforcement of this chapter.

Section 39-55-295. The provisions of this chapter do not apply to governmental cemeteries, church cemeteries, or family burial grounds, with the exception of the provisions of Sections 39-55-235 and 39-55-265.

Section 39-55-305. Any cemetery company lawfully operating on the effective date of this act may continue to operate and must be granted a license by the South Carolina Cemetery Board but must hereafter be operated in accordance with the provisions of Chapter 55 of Title 39 of the 1976 Code. This act shall not apply retroactively to any cemetery company lawfully operating on the effective date of this chapter.

Section 39-55-10. For the purposes of administering this chapter, there is established a South Carolina Perpetual Care Cemetery Board with the power and duty to promulgate regulations, approved by the Director of the Department of Labor, Licensing and Regulation, to carry out this chapter as provided for by Section 40-1-10. The provisions of this chapter are known and may be cited as the `South Carolina Perpetual Care Cemetery Act'.

Cemeteries, burial grounds, and any agreement or contract which has for a purpose the furnishing or delivering of a person, property, or merchandise of any nature in connection with the final disposition of a dead human body, must be subject to sufficient regulation by the State to ensure that sound business practices are followed by all entities subject to this chapter.

Section 39-55-20. As used in this chapter, unless otherwise stated or unless the context clearly indicates otherwise:

(1) `Administrator' means the individual, appointed by the director, to whom the director has delegated authority to administer the programs of the South Carolina Perpetual Care Cemetery Board.

(2) `Authorization to operate' or `operation authorization' means the approval to operate a cemetery which has been granted by the South Carolina Perpetual Care Cemetery Board. This authorization is granted in the form of a license.

(3) `Board' means the South Carolina Perpetual Care Cemetery Board.

(4) `Cemetery' means a place used, dedicated, or designated for cemetery purposes including any one or combination of:

(a) perpetual care cemeteries;

(b) burial parks for earth interment;

(c) mausoleums;

(d) columbariums.

(5) `Cemetery company' means a legal entity that owns or controls cemetery lands or property and conducts the business of a cemetery, including all cemeteries owned and operated by cemetery sales organizations or cemetery management organizations or any other entity.

(6) `Columbarium' means a structure or building substantially exposed aboveground intended to be used for the interment of the cremated remains of a deceased person.

(7) `Department' means the Department of Labor, Licensing and Regulation.

(8) `Director' means the Director of the Department of Labor, Licensing and Regulation, or the director's official designee.

(9) `Grave space' means a space of ground in a cemetery intended to be used for the interment in the ground of the remains of a deceased person.

(10) `Human remains' or `remains' means the body of a deceased person and includes the body in any stage of decomposition.

(11) `Licensee' means a person granted an authorization to operate pursuant to this chapter and refers to a person holding a license, permit, certification, or registration granted pursuant to this chapter.

(12) `Mausoleum' means a structure or building substantially exposed aboveground, intended to be used for the entombment of the remains of a deceased person.

(13) `Memorial' means a bronze marker set approximately level with the turf for the purpose of identification, or interchanged to mean upright markers in garden sections which are plotted and specified for the use of upright markers. The term `marker' is interchanged with the term `memorial' in this chapter.

(14) `Merchandise' means items used in connection with grave space, niches, mausoleum crypts, granite, memorials, grave liners, and vaults; however, merchandise shall expressly exclude caskets and cremation urns, burial clothing, facilities used for preparation, viewing, and automotive equipment and transportation. Items expressly excluded under the definition of merchandise in this provision must be governed by Chapter 7 of Title 32.

(15) `Outer burial container' means the following:

(a) Category I - Protective Outer Burial Container - An outer burial container (vault) in which a casket or similar burial device is placed for in-ground interment and is designed and constructed to support the weight of the earth and standard cemetery maintenance equipment and to prevent the grave from collapsing while resisting the entrance of water or any other element found in the soil in which it is interred.

(b) Category II - Non-protective Outer Burial Container - A non-sealing outer burial container (graveliner) in which a casket or similar burial device is placed for in-ground interment and is designed and constructed to support the weight of the earth and standard cemetery maintenance equipment and to prevent the grave from collapsing.

(16) `Perpetual care' means the maintenance and the reasonable administration of the cemetery grounds and buildings in keeping with a properly maintained cemetery. In the event that a cemetery offers perpetual care for some designated sections of its property but does not offer perpetual care to other designated sections, the cemetery must be considered a perpetual care cemetery for the purposes of this chapter.

(17) `Person' means an individual, corporation, partnership, joint venture, or association.

(18) `Trust institution' means a state or national bank, state or federal savings and loan association, or trust company authorized to act in a fiduciary capacity in this State.

Section 39-55-30. No entity may engage in the business of operating a cemetery company, except as authorized by this chapter, without first obtaining a license from the board. A license issued under this chapter is not transferable or assignable and a licensee may not develop or operate a cemetery authorized by this chapter under a name or a location other than that contained in the license.

No entity may hold itself out to be a perpetual care cemetery without an authorization to operate as such by the South Carolina Cemetery Board.

Those cemeteries which furnish perpetual care to some portions and no perpetual care to other portions shall identify the appropriate sections of the cemetery at application and shall designate each section by a sign on the premises. Portions designated `Perpetual Care' may not be changed to `No Perpetual Care' once the designation is made.

Section 39-55-40. The board consists of seven members. Two appointed members must be public members who have no financial interest in and are not involved in the management of a cemetery or funeral-related business; four members must be owners or managers of cemeteries in this State who may be selected from nominees submitted by the South Carolina Cemetery Association; and one member must be a monument dealer in this State who may be selected from nominees submitted by the Monument Builders of the Carolinas. Of the seven members, three of the initial board members must be appointed for a term of two years, two for a term of three years, and two for a term of four years. At the end of their respective terms, successors must be selected in the same manner and appointed for terms of four years and until their successors are appointed and qualify. Nominations for appointment for professional members must be received by the Governor from the South Carolina Cemetery Association. If the Governor does not approve the nominations, the association shall provide the Governor with another list of nominees and the Governor may select a nominee from the list provided or appoint another suitable candidate of his choice. The Governor may replace any board member at any time for cause. An appointment to fill a vacancy on the board is for the balance of the unexpired term in the manner of the original appointment.

Section 39-55-50. The board shall elect annually a chairman, vice-chairman, and a secretary-treasurer. Notice of all regular meetings shall be advertised in three newspapers having general circulation in the State ten or more days in advance of the meetings. Each member of the board shall receive the usual mileage, per diem, and subsistence as provided by law for members of state boards, committees, and commissions. All expenses of the board must be paid from fees received by the board.

The board shall meet at least semiannually and may hold special meetings at any time and place within the State at the call of the chairman or upon written request of at least four members.

Section 39-55-60. In addition to the powers and duties included in Sections 40-1-70 through 40-1-100, the board shall establish policies and procedures consistent with this chapter, shall have the full power to regulate the issuance of licenses, and shall discipline licensees in any manner permitted by this chapter or under the provisions of Sections 40-1-110 through 40-1-150.

Section 39-55-65. The board shall have and use an official seal bearing the name of the board.

Section 39-55-70. Fees must be assessed, collected, and adjusted on behalf of the board by the Department of Labor, Licensing and Regulation in accordance with this chapter and the provisions of Section 40-1-50(D).

(A) Initial fees are:

(1) a license fee of $960.00, biennially;

(2) a filing fee of $400.00;

(3) a license change and investigation fee of $100.00.

(B) The license period is from January 1 through December 31.

(C) Failure to renew a license, permit, or registration by the December 31 renewal date renders the license invalid. The license may be reinstated upon receipt of an application postmarked not later than January 31. Delinquent renewal requests not postmarked on or before January 31 require that a new application be submitted under the guidelines in effect for the current period.

(D) All fees are nonrefundable.

Section 39-55-80. (A) A legal entity wishing to establish a cemetery shall file a written application for authority to do so with the board on forms prescribed and provided by the board.

(1) Upon receipt of the application and a nonrefundable filing fee of at least four hundred dollars the board shall cause an investigation to be made to establish the following criteria for approval of the application:

(a) creation of a legal entity to conduct a cemetery business and the proposed financial structure;

(b) establishment and maintenance of an irrevocable care and maintenance trust fund agreement with a trust institution doing business in this State, with an initial deposit of not less than fifteen thousand dollars and a bank cashier's or certified check attached for the amount and payable to the trustee with the trust executed by the applicant and accepted by the trustee, conditioned only upon the approval of the application;

(c) presentation of a plat of the land to be used for a cemetery showing the county or municipality and the names of roads and access streets or ways;

(d) designation by the legal entity, wishing to establish a cemetery, of a general manager who must be a person having had not less than one year's experience in the cemetery business;

(e) presentation of development plans sufficient to ensure the community that the cemetery shall provide adequate cemetery services and that the property is suitable for use as a cemetery.

(2) The board, after receipt of the investigating report and within ninety days after receipt of the application, shall grant or refuse to grant the authority to organize a cemetery;

(3) If the board intends to deny an application, it shall give written notice to the applicant of its intention to deny. The notice shall state a time and place for a hearing before the board and a summary statement of the reasons for the proposed denial. The notice of intent must be mailed by certified mail to the applicant at the address stated in the application at least fifteen days before the scheduled hearing date. An appeal from the board's decision must be made in accordance with the Administrative Procedures Act;

(4) If the board intends to grant the authority, it shall give written notice that the authority to organize a cemetery has been granted and that a license to operate must be issued upon the completion of the following:

(a) establishment of the irrevocable care and maintenance trust fund and receipt by the board of a certificate from the trust institution certifying receipt of the initial deposit required under this chapter;

(b) development, ready for burial, of not less than two acres, certified by inspection of the board or its representative;

(c) presentation of a description, by metes and bounds, of the acreage tract of the proposed cemetery, with evidence, by title insurance policy or certificate or certification by an attorney at law, that the applicant is the owner in fee simple of the tract of land which must contain not less than thirty acres, and may not sell, mortgage, lease, or encumber it. In counties with a population of less than thirty-five thousand inhabitants according to the latest official United States census, the tract needs to be only fifteen acres;

(d) submission to the board for its approval a copy of rules and regulations as defined in this chapter.

(B) In any case where a person proposes to purchase or acquire control of an existing cemetery either by purchasing the outstanding capital stock of any cemetery company or the interest of the owner and thereby to change the control of the cemetery company, the person shall make application on a form prescribed and provided by the board for a license change. The application shall contain the name and address of the proposed new owner. The application for a license change must be accompanied by an initial filing fee of four hundred dollars to cover an investigation, if required.

Section 39-55-90. (A) A record must be kept of every lot owner and every burial in the cemetery showing the date of purchase, date of burial, name of the person buried and of the lot owner, and space in which the burial was made. Sales, trust funds, accounting records, and other records of the licensee must be available at the licensee's principal place of business at reasonable times for examination by the chairman or other authorized representative of the board. In addition, the owner of a perpetual care cemetery shall have the records of the perpetual care cemetery examined annually by a licensed public accountant and shall submit a copy of the report to the board.

(B) A record must be kept of each written complaint received, action taken, and disposition of the complaint. These records must be available for examination by the chairman or other authorized representative of the board.

(C) The owner of a cemetery shall adopt and enforce regulations for the use, care, control, management, restriction, and protection of the cemetery and its parts and subdivisions, the use of property within a cemetery, the introduction and care of plants or shrubs within the grounds, the conduct of persons and prevention of improper assemblages, and other purposes considered necessary by the owner of the cemetery for the proper conduct of the business of the cemetery and the protection of the premises and the principles on which the cemetery was organized. The owner may amend or abolish the regulations pursuant to Section 39-55-90(H). The regulations must be printed or typewritten plainly, posted conspicuously, and maintained subject to inspection at the usual place for transacting the regular business of the cemetery. However, a cemetery licensed under this chapter may not adopt a regulation in conflict with this chapter or in derogation of the contract rights of lot owners.

(D) The owner of a cemetery shall establish reasonable regulations regarding the type material, design, composition, finish, specifications, and installation of merchandise to be used in the cemetery. However, a regulation may not be promulgated which:

(1) requires the owner or purchaser of a lot to purchase a monument or marker or the actual installation of a monument or marker from the cemetery company;

(2) restricts the right of the owner or purchaser of a lot to purchase a monument or marker or the actual installation of a monument from the vendor of his choice;

(3) charges the owner or purchaser of a lot a fee for purchasing a monument or marker or the actual installation of a monument from a vendor or charges a vendor a fee for delivering or installing the monument;

(4) discriminates against an owner or a purchaser of a lot who has purchased a monument or services related to installation of a monument from a vendor.

(E) Section 39-55-90(D) does not prohibit the cemetery from charging the owner or purchaser of a lot a reasonable fee for services actually performed by the cemetery relating to the installation, care, and maintenance of a monument or marker including, but not limited to, the survey, recording, and supervision of the monument or marker, whether or not it is purchased from a cemetery or an outside vendor.

(F) These regulations must be posted conspicuously and maintained, subject to inspection, at the usual place for transacting the regular business of the cemetery. A cemetery owner may not prevent the use of merchandise purchased by a lot owner or his representative, agent, heirs, or assigns from any source if the merchandise meets cemetery regulations.

(G) When a cemetery lot is sold, the cemetery shall disclose on the sales contract cemetery services for which there may be a later charge. When a monument, marker, or memorial is sold by a cemetery company, the cemetery shall provide on the sales contract an itemized statement of the fees charged for installation, care, and maintenance of the monument, marker, or memorial. Fees charged for installation, care, and maintenance of a monument, marker, or memorial must be shown on the statement as charges separate from its price, and the statement shall disclose the amount of fees to be placed in trust by the cemetery company. The board shall promulgate regulations for the disclosure of fees and services.

(H) Regulations established, amended, or abolished by a cemetery pursuant to this subsection must be submitted to the board for its approval.

Section 39-55-100. (A) A cemetery company is not permitted to establish a perpetual care cemetery or to operate an already-established perpetual care cemetery without providing for the future care and maintenance of the cemetery, for which a trust fund must be established to be known as `The Care and Maintenance Trust Fund of (name of licensee)'. If a perpetual care cemetery company refuses or otherwise fails to provide or maintain an adequate care and maintenance trust fund in accordance with the provisions of this chapter, the board, after reasonable notice, shall proceed to enforce compliance. The trust fund agreement shall contain the name, location, and address of both the licensee and the trustee, showing the date of the trust agreement and the deposit in the trust of the required funds. No person shall transfer the corpus of the care and maintenance trust fund without first obtaining written consent from the board.

(B) At the time of making a sale or receiving the initial deposit on the sale of grave space, niche, or mausoleum crypt, the cemetery company shall deliver to the person to whom the sale is made, or who makes the deposit, an instrument in writing which shall specifically state that the net income of the care and maintenance trust fund must be used solely for the care and maintenance of the cemetery, for reasonable costs of administering the care and maintenance, and for reasonable costs of administering the trust fund. This information shall be included in the sales contract.

(C) No cemetery shall cause or permit advertising of a perpetual care fund in connection with the sale or offer for sale of its property unless the amount deposited in the care and maintenance trust fund is equal to not less than twenty dollars or a minimum of ten percent of the sale price, whichever is greater, per grave space and niche, and fifty dollars per mausoleum crypt sold or a minimum of five percent of the sales price, whichever is greater. Also, for a memorial or grave marker for installation in a cemetery where perpetual care is promised or guaranteed, the cemetery shall transmit to the care and maintenance trust fund an amount equal to a minimum of eight cents per square inch of the memorial's or the marker's base. All deposits must be made within sixty days upon receipt of final payment.

(D) Within ninety days after the end of the calendar or fiscal year of the cemetery company, the trustee shall furnish adequate financial reports with respect to the care and maintenance trust fund on forms prescribed and provided by the board. The board shall require the trustee to make any additional financial reports the board considers advisable.

(E) The care and maintenance trust fund must be invested and reinvested by the trustee in the same manner as provided by law for the investment of other trust funds. The fees and other expenses of the trust fund must be paid from the corpus. To the extent that the net income is not sufficient to pay the fees and other expenses, they must be paid by the cemetery company.

(F) (1) Upon payment in full, a licensee receiving funds from the sale of merchandise for use in a cemetery in connection with the burial or commemoration of a deceased human being when the use of contracted merchandise is not requested or required immediately shall store or warehouse the contracted merchandise, or bond or deposit the funds in a merchandise account with a financial institution licensed to do business in this State. Notwithstanding any other provision of law, all funds deposited in the merchandise account must be held in trust for the benefit of the purchaser of the merchandise. Any such merchandise account must be subject to Section 39-55-100(G).

The cemetery company shall maintain a record of each deposit into the account, identify the name of the purchaser, the amount of the actual costs to the seller, and the amount of money to be deposited, and maintain a copy of the contract for the merchandise. This section does not prohibit the trustee from commingling the deposits in a trust fund of this kind to manage and invest the funds.

(2) When a memorial, a mausoleum crypt, or other merchandise is sold in advance of need and not installed, delivered, or bonded until a later date, seventy-five percent of the purchase price paid to the seller at the time of deposit must be placed in a merchandise account within sixty days after completion of the contract with interest to accrue and must not be withdrawn without the consent of the purchaser until the time of delivery or construction.

(3) The funds must be held in a merchandise account as to principal and income earned and must remain intact, until delivery of the merchandise is made by the cemetery company or other entity; however, any service fees charged by the administering financial institution may be deducted from the income. Upon delivery of the merchandise, the cemetery company or other entity shall certify these facts. Upon this certification, the amount of money on deposit to the credit of that particular contract, including principal and income, must be paid to the cemetery company or other entity.

(4) After payment in full and before delivery of merchandise, a purchaser may make written demand for a refund of the amount deposited in the merchandise account to the credit of the purchaser, and, within ninety days of receipt of the written demand, the licensee shall deliver the merchandise or refund to the purchaser the amount on deposit to his credit. Upon the refund or delivery of merchandise the cemetery company is relieved from further liability for this merchandise.

(G) The licensee, annually and within ninety days after the end of the calendar year, shall file a financial report, signed by a licensed accountant, of the merchandise account fund with the board on forms provided by the board setting forth the principal, investments, and payments made and the income earned and disbursed. The board may require the licensee to make additional financial reports the board considers advisable.

(H) The board may cause the examination of the business of a cemetery company or other entity writing contracts for the sale of the property or services described in this section. The written report of the examination must be filed in this office of the board. A person or an entity being examined shall produce the records of the company needed for the examination.

(I) A provision of a contract for the sale of merchandise described in this section which provides that the purchaser or beneficiary may waive this section is void.

(J) Cemetery owners shall have a full and complete schedule of charges for services provided by the cemetery plainly printed or typewritten, posted conspicuously, and maintained subject to inspection and copying at the usual place for transacting the regular business of the cemetery.

(K) A cemetery company or other entity failing to make required contributions to a care and maintenance trust fund or to a merchandise account fund is guilty of a misdemeanor and, upon conviction, must be punished pursuant to Section 39-55-220.

(L) If a report is not received within the required time, the board may levy and collect a penalty of twenty-five dollars a day for each day of delinquency.

(M) Notwithstanding any other provision of law, when a cemetery vault or other merchandise is installed by an installer other than the manufacturer, the installer shall provide the customer for whom the vault or other merchandise is installed a warranty which must be equivalent to the warranty offered by the manufacturer for vaults or merchandise of the type installed.

Section 39-55-110. (A) Each licensee shall set aside a minimum of thirty acres of land for use as a cemetery, except as may otherwise be provided in this chapter, and may not sell, mortgage, lease, or encumber it.

(B) The fee simple title in any lands owned by the licensee as a cemetery, which lands are contiguous, adjoining or adjacent to the minimum acreage described in subsection (A), may be sold, conveyed, or disposed of by the licensee for use by the new owner or purposes other than as a cemetery if no bodies have been previously interred and if any titles, interests, or burial rights which may have been sold or contracted to be sold or contracted to be sold in these lands are reconveyed to the licensee before the consummation of any conveyance.

(C) A licensee may convey and transfer to a municipality or county its real and personal property, together with monies deposited with the trustee, if the municipality or county accepts responsibility for maintenance and prior written approval of the board is obtained.

(D) The provisions of subsections (A) and (B) relating to a requirement for minimum acreage do not apply to those cemeteries in existence prior to the effective date of this act. Where a cemetery owns or controls a total of less than the minimum acreage, this cemetery may not dispose of any of the lands.

Section 39-55-120 (A) (1) A cemetery company is required to start construction of that section of a mausoleum or bank of below ground crypts in which sales, contracts for sale, reservations for sales, or agreements for sales are being made within thirty-six months after the date of the first sale, or refund the money. The construction of the mausoleum section or bank of below ground crypts must be completed within five years after the date of the first sale. Extensions for completion, not to exceed one year, may be granted by the board for good reasons shown.

(2) After construction has begun on the mausoleum section or bank of below ground crypts, the cemetery company shall certify the progress and expenditures and is entitled to withdraw all funds deposited to the mausoleum account.

(3) If the mausoleum section or bank of below ground crypts is not completed within the time limits set out in this section, the board shall contract for and cause the project to be completed and paid for from the funds deposited to the project and the cemetery company must be liable for any shortage.

(4) In lieu of the payments to the mausoleum account the cemetery company may deliver to the board a performance bond in an amount and by surety companies acceptable to the board.

(B) (1) Where the excavation can be accomplished without drilling or the use of equipment other than a shovel or other `hand tools', burial vaults must be at least ten inches below the earth's surface. As used in this section, `burial vaults' includes caskets, grave liners, or other outer burial containers. It does not include markers, monuments, or crypts constructed in a mausoleum or columbarium.

(2) This section does not apply to cemeteries located in the coastal and lowland areas which are subject to tidal or surface flooding or have a high-level water table, except that vaults may be placed level with the ground in coastal and lowland cemeteries where the water table is at least two feet below ground level and where cemeteries are not subject to tidal or surface flooding.

Section 39-55-130. All cemeteries in this State, except family burial grounds, shall display a sign at each entrance containing letters not less than six inches in height stating `Perpetual Care' or `Endowment Care' or `No Perpetual Care' or `No Endowment Care' depending upon which method of operation the cemetery is using.

Those cemeteries which furnish perpetual care to some portions and no perpetual care to other portions shall display these signs on the appropriate sections of the cemetery to which the sign applies. Portions designated `Perpetual Care' cannot be changed to `No Perpetual Care' once the designation is made.

Section 39-55-140. Application for renewal of licenses must be submitted on or before July first of each year in the case of an existing cemetery company. Before a sale of cemetery property may take place in the case of a new cemetery company or in the case of a change of ownership or control, as provided in Section 39-55-80, an application for a license must be submitted and a license must have been issued.

Section 39-55-150. Applications may be denied pursuant to the provisions of Section 40-1-130.

Section 39-55-160. Investigations and hearings must be conducted in accordance with the provisions of Sections 40-1-80, 40-1-90 and 40-1-190.

Section 39-55-170. Restraining orders and cease and desist orders must be issued in accordance with the provisions of Section 40-1-100.

Section 39-55-180. In addition to grounds for disciplinary actions as set forth in Section 40-1-110 and in accordance with Section 39-55-190, the board shall take disciplinary action against a licensee who:

(1) fails to pay the required fees;

(2) fails to make required reports;

(3) fails to remit to the care and maintenance trust fund or merchandise trust fund the required amounts;

(4) knowingly makes a false statement intended to influence or persuade;

(5) knowingly and continually makes flagrant misrepresentations or knowingly condones false promises by its cemetery agents or salesmen;

(6) wilfully violates this chapter or regulations promulgated by the board;

(7) acts in a fraudulent manner, whether of the same or a different character than specified in this section;

(8) fails to make required contributions to the care and maintenance trust fund or any other funds required to be established and maintained by this chapter.

Section 39-55-190. Upon a determination by the board that one or more of the grounds for disciplining a licensee exist, as provided for in Sections 39-55-180 and 40-1-110, the board may, in addition to the actions as provided for in Section 40-1-120 impose a fine not to exceed ten thousand dollars. All final orders which are made public must be mailed to local and state professional associations, all firms and facilities with which the respondent is associated, states where the person has a license known to the board, and to any other source to which the board wishes to furnish this information.

Section 39-55-200. A licensee who is under investigation for any of the grounds provided for in Section 39-55-180 for which the board may take disciplinary action shall voluntarily surrender his license to the board in accordance with the provisions of Section 40-1-150.

Section 39-55-210. A person aggrieved by any action of the board may seek review of the decision in accordance with the provisions of Section 40-1-160.

Section 39-55-220. (A) A person who operates a cemetery in this State in violation of this chapter or who knowingly submits false information to the board for the purpose of obtaining a license is guilty of a misdemeanor and, upon conviction, must be fined not less than two hundred fifty dollars or more than ten thousand dollars or imprisoned not less than thirty days or more than twelve months, or both.

(B) A person violating any other provision of this chapter is guilty of a misdemeanor and, upon conviction, must be fined not less than one hundred fifty dollars or more than five thousand dollars or imprisoned not less than ten days or more than six months, or both.

Section 39-55-230. The provisions of this chapter do not apply to governmental cemeteries, church cemeteries, or family burial grounds, with the exception of the provisions of Sections 39-55-130 and 39-55-220.

Section 39-55-240. (A) A cemetery company licensed by the South Carolina Cemetery Board and operating in good standing on June 30, 1991, shall continue to operate and must be granted a license by the South Carolina Perpetual Care Cemetery Board and is exempt from any filing fee as set forth in Section 39-55-70 (A).

(B) A cemetery company established between July 1, 1991, and the effective date of this act shall continue to operate and must be granted a license by the South Carolina Perpetual Care Cemetery Board, provided an Irrevocable Care and Maintenance Trust Fund Agreement with a trust institution doing business in this State has been properly entered into by the cemetery company and a copy of the same has been filed with the board.

(C) Beginning with the first renewal after the effective date of this act, all cemetery companies must be operated in accordance with the provisions of this chapter.

Section 39-55-250. (A) A cemetery company which offers free burial rights to a person or group of persons shall, at the time of the offer, clearly state all conditions upon which the offer is made. Cemeteries must be maintained to present a cared-for appearance including, but not limited to, shrubs and trees pruned and trimmed, flower bed weeded, drives maintained, and lawns mowed when needed equivalent to once a week during grass growing season with ample rainfall.

(B) Cemetery companies may provide by their bylaws, regulations, contracts, or deeds the designations of parts of cemeteries for the specific use of persons whose religious code requires isolation.

Section 39-55-260. If any provision of this statute or the application of this statute to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of this statute which can be given effect without the invalid provision or application, and to this end the provisions of this statute are severable."

SECTION 4. Notwithstanding any other provision of law, seventy-five percent of any fee paid for funeral services pursuant to a funeral service contract must be placed in escrow by the service provider to defray costs associated with preparing the grave.

SECTION 5. A. There is hereby established on the grounds of the State House an African-American History Monument. The design and placement of the monument shall be determined by the commission appointed pursuant to subsection B of this section. The commission shall make reasonable efforts to incorporate all eras of African-American history in the design. The monument shall be erected as soon as is reasonably possible after it is approved by the General Assembly by concurrent resolution and the State House Renovation Project is completed.

B. (1) An African-American History Monument Commission is created to determine the design of the monument and to determine the placement of the monument on the State House grounds. The commission is empowered and directed to raise private funds and to receive gifts and grants to carry out the purpose for which it is created. By January 1, 1997, the commission shall report the proposed design of the monument to the State House Committee for its approval. After action by the committee approving the design, the State House Committee shall cause to be introduced the concurrent resolution serving as the instrument of approval as provided in subsection A of this section. The State shall ensure proper maintenance of the monument as is done for other historical monuments on the State House grounds.

Four members must be appointed by the President Pro Tempore of the Senate, four members must be appointed by the Speaker of the House of Representatives, and one member must be appointed by the Governor. Notwithstanding Section 8-13-770 of the 1976 Code, members of the General Assembly may be appointed to this commission. One of the members appointed by the President Pro Tempore must be a Senator and one of the members appointed by the Speaker must be a member of the House of Representatives.

Commission members are not entitled to receive the subsistence, mileage, and per diem otherwise provided by law for members of state boards, committees, and commissions.

(2) The commission also shall study the feasibility of establishing an African-American History Museum analogous to the Confederate Relic Room and make recommendations with respect to its findings on this subject to the State House Committee. This new museum would collect and display historical artifacts and other items reflecting African-American history in this State. A preliminary report on this study must be made to the State House Committee no later than January 1, 1997, with a final report and recommendations due as soon as practicable thereafter.

(3) The commission established pursuant to this section is dissolved on the later of the dedication of the African-American History Monument or the final report of the commission on the feasibility of establishing an African-American History Museum.

C. The monument placed on the State House Grounds pursuant to this section, along with all other monuments located on the State House Grounds, shall receive the protections from desecration and destruction provided in Section 16-17-600.

SECTION 6. This act takes effect upon approval by the Governor except that Section 3 takes effect on January 1, 1997.

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