Powers and duties of cemetery authorities; inheritance of cemetery lots in which human remains are buried; exemption of cemeteries from certain requirements concerning excavation; the powers and duties of the Cemetery Board, the Department of Safety and Professional Services, and the Department of Financial institutions; requiring the exercise of rule-making authority; and providing a penalty. (FE)

Under current law, the Department of Safety and Professional Services (DSPS) and the Department of Financial Institutions (DFI) administer certain laws governing cemeteries not currently administered by the Cemetery Board (board).

The laws administered by DSPS include the following:

1. The construction of mausoleums.

2. Various reporting requirements for cemetery authorities.

3. The certification of certain cemetery authorities as religious associations, which are subject, in part, to different rules than other cemetery authorities.

4. The audit of a cemetery authority's records, trust funds, and accounts.

5. The licensure and regulation of cemetery salespersons.

6. The licensure and regulation of preneed sellers, the regulation of preneed sales contracts, and the regulation and audit of preneed trust funds.

7. The promulgation of certain rules implementing laws concerning cemeteries and the enforcement of those rules and laws.

With limited exceptions, the bill transfers the administration of the laws governing cemeteries currently administered by DSPS, including all of the functions specified above, to the board.

Under current law, seven or more residents of a county may form a cemetery association for the election of trustees to manage cemetery land owned by the cemetery association. A cemetery association is also a kind of cemetery authority.

Currently, the organization and certain other aspects, including reporting requirements, of a cemetery association's functions are governed by DFI. The bill transfers all regulation of cemetery associations from DFI to the board.

Disposition of occupied cemetery lots and mausoleum spaces.

Under current law, ownership of a cemetery lot in which human remains are buried may not be transferred to another person who is not already an owner of the cemetery lot, unless the cemetery authority consents to the transfer. Upon the death of the owner of a cemetery lot, ownership descends to the owner's heirs. Current law does not specify who qualifies as an heir.

This bill establishes specific rules for the disposition of a cemetery lot or mausoleum space in which human remains are buried. Under the bill, upon the death of the last owner of a cemetery lot or mausoleum space, ownership of the cemetery lot or mausoleum space descends as follows:

1. To the owner's surviving spouse or domestic partner.

2. If there is no living spouse or domestic partner, to the owner's children.

3. If there is no living spouse, domestic partner, or child, to the owner's grandchildren.

4. If there is no living spouse, domestic partner, child, or grandchild, to the cemetery authority for the cemetery in which the cemetery lot or mausoleum space is located.

The bill provides that a cemetery authority is to be held harmless for any decision made by a majority of the owners of a cemetery lot or mausoleum space.

Changes to cemetery authority licensure requirements.

The board licenses cemetery authorities. Under current law, subject to certain exceptions, a cemetery authority must be licensed for each cemetery the cemetery authority operates that is at least five acres in size or for which the cemetery authority has at least $100,000 in trust fund accounts or sells at least 20 cemetery lots or mausoleum spaces in one year. A cemetery authority must be registered for any cemetery the cemetery authority operates that does not satisfy at least one of those conditions.

Under the bill, subject to certain exceptions, a cemetery authority must be licensed for each cemetery it operates that has at least three acres of land platted for use as a cemetery or for which the cemetery has at least $50,000 in trust fund accounts. A cemetery authority must be registered for each cemetery it operates that does not satisfy at least one of those conditions. The bill also eliminates an option for a cemetery authority to be relieved of its obligation to renew a license under certain circumstances.

Changes to cemetery salesperson licensure requirements.

The board also licenses cemetery salespersons. Under current law, with one exception, an individual must be a licensed cemetery salesperson if the individual sells or solicits the sale of, or expects to sell or solicit the sale of, 20 or more cemetery lots or mausoleum spaces per year for two consecutive years. Under the bill, an individual must be a licensed cemetery salesperson if the individual sells or solicits the sale of, or expects to sell or solicit the sale of, a cemetery lot or mausoleum space, without regard to the quantity or frequency of sales.

Religious associations.

Under current law a cemetery authority that is a church, synagogue, or mosque, or a religious society organized under Wisconsin law, is a religious association for purposes of the laws governing cemeteries. Under the bill, a religious association also includes any corporation whose articles of organization provide, subject to Wisconsin law, that the corporation is under the supervision and control of a church, synagogue, mosque, or religious society.

Also under the bill, certain exemptions from the laws governing cemeteries that are applicable to a religious association are also applicable to a cemetery authority of a cemetery that is affiliated with a religious association, for that cemetery.

No deposit of care funds with county or city.

Current law regulates how a cemetery authority may deposit or invest funds it receives in trust for the care of a cemetery. One option under current law authorizes a cemetery authority to deposit the care funds with the treasurer of the county or city in which the cemetery is located. The bill eliminates that option for the deposit of care funds.

Changes to certain penalties.

Under current law, any person who opens or makes any highway, town way, or private way or constructs anything in the nature of a public easement over, through, in, or upon a cemetery, unless authorized by consent or by law, is punishable by a fine not to exceed $300 or imprisonment in the county jail not to exceed one year. Under the bill, such a violation is punishable by a fine not to exceed $3,000 and by imprisonment in the county jail not to exceed one year.

The bill also increases the potential fine for certain violations of the laws governing cemeteries, including laws governing preneed sellers and the investment of preneed trust funds, from $1,000 to $5,000 for a first offense, and the bill provides that a subsequent violation of such laws is punishable by a fine not to exceed $10,000 or imprisonment not to exceed nine months or both.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report concerning the proposed penalty and the costs or savings that are likely to result if the bill is enacted.