(1) There is hereby created in the department the Preneed Funeral Contract Consumer Protection Trust Fund to be administered and regulated by the licensing authority.
(2) Within 60 days after the end of each calendar quarter, for each preneed contract written during the quarter and not canceled within 30 days after the date of the execution of the contract, each preneed licensee, whether funding preneed contracts by the sale of insurance or by establishing a trust pursuant to s. 497.458 or s. 497.464, shall remit the sum of $2.50 for each preneed contract having a purchase price of $1,500 or less, and the sum of $5 for each preneed contract having a purchase price in excess of $1,500; and each preneed licensee utilizing s. 497.462 shall remit the sum of $5 for each preneed contract having a purchase price of $1,500 or less, and the sum of $10 for each preneed contract having a purchase price in excess of $1,500.
(3) In addition to the amounts specified in subsection (2), each remittance shall contain such other additional information as needed by the licensing authority to carry out its responsibilities under this chapter and as prescribed by rule.
(4) All funds received by the licensing authority pursuant to this section shall be deposited into the Preneed Funeral Contract Consumer Protection Trust Fund.
(5) The amounts remitted for deposit into the Preneed Funeral Contract Consumer Protection Trust Fund shall not be deemed proceeds from the sale of a preneed contract within the meaning of this chapter.
(6) Upon the commencement of a delinquency proceeding pursuant to this chapter against a preneed licensee, the licensing authority may use up to 50 percent of the balance of the trust fund not already committed to a prior delinquency proceeding for the purpose of establishing a receivership and providing restitution to preneed contract purchasers and their estates due to a preneed licensee’s failure to provide the benefits of a preneed contract or failure to refund the appropriate principal amount by reason of cancellation thereof. The balance of the trust fund shall be determined as of the date of the delinquency proceeding.
(7) In any situation in which a delinquency proceeding has not commenced, the licensing authority may, in its discretion, use the trust fund for the purpose of providing restitution to any consumer, owner, or beneficiary of a preneed contract or similar regulated arrangement under this chapter entered into after June 30, 1977. If, after investigation, the licensing authority determines that a preneed licensee has breached a preneed contract by failing to provide benefits or an appropriate refund, or that a provider, who is a former preneed licensee or an establishment which has been regulated under this chapter, has sold a preneed contract and has failed to fulfill the arrangement or provide the appropriate refund, and such preneed licensee or provider does not provide or does not possess adequate funds to provide appropriate refunds, payments from the trust fund may be authorized by the licensing authority. In considering whether payments shall be made or when considering who will be responsible for such payments, the licensing authority shall consider whether the preneed licensee or previous provider has been acquired by a successor who is or should be responsible for the liabilities of the defaulting entity. With respect to preneed contracts funded by life insurance, payments from the fund shall be made: if the insurer is insolvent, but only to the extent that funds are not available through the liquidation proceeding of the insurer; or if the preneed licensee is unable to perform under the contract and the insurance proceeds are not sufficient to cover the cost of the merchandise and services contracted for. In no event shall the licensing authority approve payments in excess of the insurance policy limits unless it determines that at the time of sale of the preneed contract, the insurance policy would have paid for the services and merchandise contracted for. Such monetary relief shall be in an amount as the licensing authority may determine and shall be payable in such manner and upon such conditions and terms as the licensing authority may prescribe. However, with respect to preneed contracts to be funded pursuant to s. 497.458, s. 497.459, or s. 497.462, any restitution made pursuant to this subsection may not exceed, as to any single contract or arrangement, the lesser of the gross amount paid under the contract or 4 percent of the uncommitted assets of the trust fund. With respect to preneed contracts funded by life insurance policies, any restitution may not exceed, as to any single contract or arrangement, the lesser of the face amount of the policy, the actual cost of the arrangement contracted for, or 4 percent of the uncommitted assets of the trust fund. The total of all restitutions made to all applicants under this subsection in a single fiscal year may not exceed the greater of 30 percent of the uncommitted assets of the trust fund as of the end of the most recent fiscal year or $120,000. The department may use moneys in the trust fund to contract with independent vendors pursuant to chapter 287 to administer the requirements of this subsection.
(8) All moneys deposited in the Preneed Funeral Contract Consumer Protection Trust Fund together with all accumulated appreciation shall be used only for the purposes expressly authorized by this chapter and may not be subject to any liens, charges, judgments, garnishments, or other creditor’s claims against the preneed licensee, any trustee utilized by the preneed licensee, any company providing a surety bond as specified in this chapter, or any purchaser of a preneed contract. No preneed contract purchaser shall have any vested rights in the trust fund.
(9) If restitution is paid to a preneed contract purchaser or her or his estate in accordance with this section, the amount of restitution paid shall not exceed the gross amount of the principal payments made by the purchaser on its contract.
(10) Whenever the licensing authority makes payments from the trust fund to a purchaser or its estate, the licensing authority shall be subrogated to the purchaser’s rights under the contract, and any amounts so collected by the licensing authority shall be deposited in the Preneed Funeral Contract Consumer Protection Trust Fund.
(11) No person shall make, publish, disseminate, circulate, or place before the public, or cause, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public, in a newspaper, magazine, or other publication, or in the form of a notice, circular, pamphlet, letter, or poster, or over any radio station or television station, or in any other way, any advertisement, announcement, or statement which uses the existence of the Preneed Funeral Contract Consumer Protection Trust Fund for the purpose of sales, solicitation, or inducement to purchase any form of preneed contract covered under this chapter.
(12) Notwithstanding the fee structure in subsection (2), the department shall review the status of the trust fund annually, and if it determines that the uncommitted trust fund balance exceeds $1 million, the licensing authority may by rule lower the required payments to the trust fund to an amount not less than $1 per preneed contract.
(13) Regarding the Preneed Funeral Contract Consumer Protection Trust Fund, the licensing authority shall have authority to adopt rules for the implementation of this section, including:
(a) Forms to be used in filing claims against the trust fund, which may require that the claims be sworn to or affirmed, and that the forms be signed, before a notary public.
Terms Used In Florida Statutes 497.456
- Affirmed: In the practice of the appellate courts, the decree or order is declared valid and will stand as rendered in the lower court.
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- Contract: A legal written agreement that becomes binding when signed.
- Department: means the Department of Financial Services. See Florida Statutes 497.005
- Fiscal year: The fiscal year is the accounting period for the government. For the federal government, this begins on October 1 and ends on September 30. The fiscal year is designated by the calendar year in which it ends; for example, fiscal year 2006 begins on October 1, 2005 and ends on September 30, 2006.
- Liabilities: The aggregate of all debts and other legal obligations of a particular person or legal entity.
- Licensee: means the person or entity holding any license or other authorization issued under this chapter, except where expressly indicated otherwise. See Florida Statutes 497.005
- 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 or cremated remains, including, but not limited to, caskets, outer burial containers, alternative containers, cremation containers, cremation interment containers, urns, monuments, private mausoleums, flowers, benches, vases, acknowledgment cards, register books, memory folders, prayer cards, and clothing. See Florida Statutes 497.005
- Person: when used without qualification such as "natural" or "individual" includes both natural persons and legal entities. See Florida Statutes 497.005
- Preneed contract: means any arrangement or method, of which the provider of funeral merchandise or services has actual knowledge, whereby any person agrees to furnish funeral merchandise or service in the future. See Florida Statutes 497.005
- Principal: means and includes the sole proprietor of a sole proprietorship; all partners of a partnership; all members of a limited liability company; regarding a corporation, all directors and officers, and all stockholders controlling more than 10 percent of the voting stock; and all other persons who can exercise control over the person or entity. See Florida Statutes 497.005
- Purchaser: means a person who executes a preneed or an at-need contract with a licensee for merchandise or services. See Florida Statutes 497.005
- Restitution: The court-ordered payment of money by the defendant to the victim for damages caused by the criminal action.
- Rules: refers to rules adopted under this chapter unless expressly indicated to the contrary. See Florida Statutes 497.005
- Solicitation: means any communication that directly or implicitly requests an immediate oral response from the recipient. See Florida Statutes 497.005
- Trustee: A person or institution holding and administering property in trust.
(b) Procedures to be used for filing claims against the trust fund.
(c) Information and supporting documentation that must be provided by claimants to support claims against the trust fund.
(d) Procedures for the investigation of claims against the trust fund.
(e) Criteria to be used in determining whether a claim is allowable and in what amount.
(f) Forms and procedures to be used by preneed licensees in making remittances to the trust fund required by this chapter.