Chapter 440

440.92(3)(a)1. 1. If the actual cost to the preneed seller of constructing the undeveloped space in accordance with construction plans approved under s. 157.12 (2) (a) has been determined by a registered architect or engineer and accepted in a written construction agreement by both the preneed seller and the person who has agreed to construct the mausoleum, the minimum percentage of each payment of principal that must be deposited into the preneed trust fund is the percentage equal to the wholesale cost ratio for the undeveloped space. In this subdivision, “registered architect or engineer” means a person who is registered as an architect or engineer under ch. 443.

440.92(3)(a)2. 2. If the cost to the preneed seller of constructing the undeveloped space has not been determined as provided in subd. 1., the preneed seller shall deposit at least 40 percent of each payment of principal into the preneed trust fund.

440.92(3)(b) (b) The preneed seller shall make the deposits required under par. (a) within 30 business days after the last day of the month in which each payment is received. Preneed trust funds shall be deposited and invested as provided in s. 157.19.

440.92(3)(c) (c) A preneed seller is not required to make the deposits required under par. (a) 1. and 2. if any of the following applies:

440.92(3)(c)1. 1. The mausoleum is certified under s. 157.12 (2) (b) within 30 business days after the payment is received.

440.92(3)(c)2. 2. The undeveloped space is located in a mausoleum or project of mausoleums in which at least one mausoleum space was sold before November 1, 1991. In this subdivision, “project of mausoleums” means a group of mausoleums that have been or are intended to be built and arranged in a cemetery according to a single construction plan approved under s. 157.12 (2) (a).

440.92(3)(c)3. 3. The preneed seller files with the board a bond furnished by a surety company authorized to do business in this state or files with the board and maintains an irrevocable letter of credit from a financial institution and the amount of the bond or letter of credit is sufficient to secure the cost to the cemetery authority of constructing the mausoleum.

440.92(3)(d) (d) If payments are received under a preneed sales contract for an undeveloped space, the preneed seller shall make deposits into the care fund required under s. 157.12 (3) in addition to any deposits required under par. (a).

440.92(4) (4) Exceptions to registration requirement.

440.92(4)(a) (a) Any person who sells or solicits the sale of cemetery merchandise under a preneed sales contract is not required to be licensed under sub. (1) and the requirements of sub. (3) (a) and (b) do not apply to the sale if all payments received under the preneed sales contract are trusted as required under s. 445.125 (1) (a) 1. or if all of the following conditions are met:

440.92(4)(a)1. 1. The preneed seller guarantees that the cemetery merchandise will be delivered not more than 180 days after the date of the sale.

440.92(4)(a)2. 2. The cemetery merchandise is delivered or the preneed sales contract is voided not more than 180 days after the date of the sale.

440.92(4)(b) (b) If any preneed seller who is not licensed under sub. (1) accepts a payment under a preneed sales contract and the merchandise is not delivered within 180 days after the date of the sale, the preneed seller shall immediately notify the purchaser that the purchaser is entitled to a refund of all money paid by the purchaser, together with interest calculated at the legal rate of interest as provided under s. 138.04, at any time before the merchandise is delivered.

440.92(5) (5) Use of preneed trust funds to cover costs of construction or partial performance.

440.92(5)(a) (a) Before the construction of a mausoleum for which a preneed trust fund has been established is certified under s. 157.12 (2) (b), the trustee of the preneed trust fund shall, upon receipt of a written request for the release of a specified amount of the funds from the preneed seller and the person who is constructing the mausoleum, release the specified amount of the funds, but only if the request is accompanied by a sworn statement, signed by the preneed seller and the person who is constructing the mausoleum, certifying that the specified amount does not exceed the amount charged to the preneed seller by the person who is constructing the mausoleum for labor that has actually been performed and materials that have actually been used in the construction of the mausoleum, and does not include any cost for which preneed trust funds have been previously released under this paragraph.

440.92(5)(b) (b) Before all of the terms of a preneed sales contract for the sale of cemetery merchandise are fulfilled, the trustee of the preneed trust fund shall, upon receipt of a written request for the release of a specified amount of the funds from the preneed seller, release the specified amount of the funds, but only if the request is accompanied by a sworn statement, signed by the preneed seller, certifying that the specified amount does not exceed the actual cost to the preneed seller for any cemetery merchandise that has actually been supplied or delivered and for any cemetery services that have actually been performed, and does not include any cost for which preneed trust funds have been previously released under this paragraph.

440.92(6) (6) Reporting; record keeping; audits.

440.92(6)(a) (a) Every preneed seller licensed under sub. (1) shall file an annual report with the board. The report shall be made on a form prescribed and furnished by the board. The report shall be made on a calendar-year basis unless the board, by rule, provides for other reporting periods. The report is due on or before the 60th day after the last day of the reporting period.

440.92(6)(b) (b) The preneed seller shall include all of the following in the annual report under par. (a):

440.92(6)(b)1. 1. If the preneed seller is a corporation that is required to file a report under s. 180.1622 or 181.0214, a copy of that report and the name, residence address and business address of each shareholder who beneficially owns, holds or has the power to vote 5 percent or more of any class of securities issued by the corporation.

440.92(6)(b)2. 2. An accounting of amounts deposited in, amounts withdrawn from, income accruing to and the balance at the close of the reporting period of each preneed trust fund for which the preneed seller is the trustee.

440.92(6)(c) (c) A preneed seller who is the trustee of any trust fund under s. 445.125 (1) shall include in the report required under par. (a) an accounting of amounts deposited in, amounts withdrawn from, income accruing to and the balance at the close of the reporting period of such trust funds.

440.92(6)(d) (d) All records described under pars. (b) 2. and (c) and maintained by the board are confidential and are not available for inspection or copying under s. 19.35 (1). This paragraph does not apply to any information regarding the name, address or employer of or financial information related to an individual that is requested under s. 49.22 (2m) by the department of children and families or a county child support agency under s. 59.53 (5).

440.92(6)(e) (e) The board shall review each report filed under par. (a) to determine whether the preneed seller is complying with this section.

440.92(6)(f) (f) The preneed seller shall keep a copy of the report required under par. (a) at its principal place of business and, except for those records described under pars. (b) 2. and (c), shall make the report available for inspection, upon reasonable notice, by any person with an interest in purchasing cemetery merchandise or a mausoleum space from the preneed seller or by any person who has entered into or is the beneficiary of a preneed sales contract with the preneed seller.

440.92(6)(g) (g) The preneed seller shall maintain all of the following:

440.92(6)(g)1. 1. The records needed to prepare the reports required under par. (a).

440.92(6)(g)2. 2. Records that show, for each deposit in a trust fund or account specified in pars. (b) 2. and (c), the name of the purchaser or beneficiary of the preneed sales contract relating to the deposit and the item purchased.

440.92(6)(g)3. 3. A copy of each preneed sales contract.

440.92(6)(h) (h) The records under par. (b) 1. shall be permanently maintained by the preneed seller. The records under par. (b) 2. shall be maintained for not less than 3 years after all of the obligations of the preneed sales contract have been fulfilled. The board may promulgate rules to establish longer time periods for maintaining records under this paragraph.

440.92(6)(i) (i) The board may promulgate rules requiring preneed sellers licensed under sub. (1) to maintain other records and establishing minimum time periods for the maintenance of those records.

440.92(6)(j) (j) The board may audit, at reasonable times and frequency, the records, trust funds and accounts of any preneed seller licensed under sub. (1), including records, trust funds and accounts pertaining to services provided by a preneed seller which are not otherwise subject to the requirements under this section. The board may conduct audits under this paragraph on a random basis, and shall conduct all audits under this paragraph without providing prior notice to the preneed seller.

440.92(6)(k) (k) The board may promulgate rules establishing a filing fee to accompany the report required under par. (a). The filing fee shall be based on the approximate cost of regulating preneed sellers.

440.92(7) (7) Approval of warehouses. No person may own or operate a warehouse unless the warehouse is approved by the board. Upon application, the board shall approve a warehouse that is located in this state if the person who operates the warehouse is licensed as a public warehouse keeper by the department of agriculture, trade and consumer protection under ch. 99, but may not approve a warehouse that is located in this state unless the person is so licensed. The board shall promulgate rules establishing the requirements for approval of warehouses that are located outside this state. The rules shall require warehouses that are located outside this state to file with the board a bond furnished by a surety company authorized to do business in this state in an amount that is sufficient to guarantee the delivery of cemetery merchandise to purchasers under preneed sales contracts. The board shall compile and keep a current list of the names and addresses of all warehouses approved under this subsection and shall make the list available for public inspection during the times specified in s. 230.35 (4) (f).

440.92(9) (9) Exemptions; certification of compliance of cemetery affiliated with religious association.

440.92(9)(a) (a) If the cemetery authority of a cemetery that is affiliated with a religious association or that religious association files an annual certification with the board as provided in this subsection, neither the cemetery authority nor any employee of the cemetery is required to be licensed as a cemetery preneed seller under sub. (1) during the period for which the certification is effective.

440.92(9)(b) (b) A certification under this subsection shall be made on a form prescribed and furnished by the board and include all of the following:

440.92(9)(b)1. 1. The name and address of each cemetery to which the certification applies.

440.92(9)(b)2. 2. The name, address and social security number of each employee of the cemetery who sold or solicited the sale of cemetery merchandise or an undeveloped space under a preneed sales contract for the cemetery during the 12-month period immediately preceding the date on which the certification is filed with the board.

440.92(9)(b)3. 3. A statement of a person who is legally authorized to act on behalf of the religious association under this subsection that, during the 12-month period immediately preceding the date on which the certification is filed with the board, each employee specified under subd. 2. and the cemetery authority have either fully complied or have substantially complied with subs. (2), (3) (a) and (b) and (5).

440.92(9)(c) (c) If the statement under par. (b) 3. includes a statement of substantial compliance, the statement of substantial compliance must also specify those instances when the employee or cemetery authority did not fully comply with sub. (2), (3) (a) or (b) or (5).

440.92(9)(d) (d) A certification under this subsection is effective for the 12-month period immediately following the date on which the certification is filed with the board.

440.92(9)(e) (e) During the effective period specified under par. (d), the board may not audit the preneed trust funds or any records or accounts relating to the preneed trust funds of the cemetery authority or any employee of the cemetery to which a certification under this subsection applies.

440.92(9)(f) (f) The religious association that is affiliated with a cemetery to which a certification under this subsection applies is liable for the damages of any person that result from the failure of any employee specified under par. (b) 2. or the cemetery authority to fully comply with sub. (2), (3) (a) or (b) or (5) during the 12-month period for which such compliance has been certified under this subsection.

440.92(10) (10) Exemptions; certain cemeteries. This section does not apply to a cemetery authority that is not required to be licensed under s. 440.91 (1) or registered under s. 440.91 (1m).

440.92 History History: 1989 a. 307; 1991 a. 16, 32, 39, 269; 1993 a. 16; 1995 a. 27 ss. 6605, 9116 (5); 1995 a. 295; 1997 a. 79, 191; 1999 a. 9; 2005 a. 25, 213, 254; 2007 a. 20, 174; 2011 a. 32; 2015 a. 237; 2017 a. 329; 2021 a. 258.

440.92 Cross-reference Cross-reference: See also chs. CB 1, 2, and 3, Wis. adm. code.

440.93 440.93 Disciplinary actions and proceedings.

440.93(1) (1) The board may reprimand a licensee or deny, limit, suspend, or revoke a certificate of licensure of a cemetery authority, cemetery salesperson, or preneed seller if it finds that the applicant or licensee, or, if the applicant or licensee is an association, partnership, limited liability company, or corporation, any officer, director, trustee, member, or shareholder who beneficially owns, holds, or has the power to vote 5 percent or more of any class of security issued by the applicant or licensee, has done any of the following:

440.93(1)(a) (a) Made a material misstatement in an application for a certificate or for renewal of a certificate.

440.93(1)(b) (b) Made a substantial misrepresentation or false promise to an individual to influence the individual to purchase a cemetery lot, cemetery merchandise or mausoleum space.

440.93(1)(c) (c) Engaged in any practice relating to the sale of a cemetery lot, cemetery merchandise or mausoleum space which clearly demonstrates a lack of knowledge or ability to apply professional principles or skills.

440.93(1)(d) (d) Subject to ss. 111.321, 111.322 and 111.335, been convicted of an offense the circumstances of which substantially relate to the sale of a cemetery lot, cemetery merchandise or mausoleum space.

440.93(1)(e) (e) Advertised in a manner that is false, deceptive or misleading.

440.93(1)(f) (f) Subject to ss. 111.321, 111.322 and 111.34, engaged in any practice relating to the sale of a cemetery lot, cemetery merchandise or mausoleum space while the person’s ability to practice was impaired by alcohol or other drugs.

440.93(1)(g) (g) Violated this subchapter or any rule promulgated under this subchapter.

440.93(2) (2) The board shall determine in each case the period that a limitation, suspension or revocation of a certificate is effective. This subsection does not apply to a limitation or suspension under s. 440.13 (2) (a).

440.93 History History: 1989 a. 307; 1993 a. 112; 1997 a. 191; 2005 a. 25; 2015 a. 237.

440.945 440.945 Cemetery monuments.

440.945(1) (1) Definitions. In this section:

440.945(1)(a) (a) “Installed” means permanently affixed to a cemetery lot.

440.945(1)(b) (b) “Monument” means any object made of granite, bronze, marble, stone, cement or other permanent material that is installed or intended to be installed to identify or memorialize human remains.

440.945(1)(c) (c) “Vendor” means a person who sells, delivers, installs or cares for a monument, other than the cemetery authority of the cemetery in which the monument is installed.

440.945(2) (2) Cemetery authority powers. A cemetery authority may do any of the following:

440.945(2)(a) (a) Adopt regulations, consistent with this section and with standards that the cemetery authority uses for its own monument installations, prescribing requirements and procedures for the sale, delivery, installation or care of monuments, including requirements that each vendor provide reasonable advance notice to the cemetery authority of the date on which the vendor desires to install a monument; that each vendor carry worker’s compensation insurance and a minimum amount of comprehensive general liability insurance, such minimum amount not to exceed $300,000; and that each owner of a cemetery lot pay all fees and other amounts due the cemetery authority to satisfy any encumbrances pertaining to the cemetery lot before a monument is installed.

440.945(2)(b) (b) Assist a vendor in marking the location for a monument and inspect the installation of the monument to ensure that it is properly installed by the vendor.

440.945(2)(c) (c) Charge either the owner of a cemetery lot or a vendor a reasonable fee to cover the cemetery authority’s labor costs. In this paragraph, “labor costs” means the amount, calculated in accordance with generally accepted accounting principles and practices, that is payable to employees of the cemetery authority for wages and fringe benefits for the period that the employees were engaged in marking the location for and inspecting the installation of the monument to ensure that it was properly installed, and may include any general administrative or overhead costs of the cemetery authority or any other costs that are directly related to marking the location for and inspecting the installation of the monument to ensure that it was properly installed.

440.945(3) (3) Disclosure of information to consumers.

440.945(3)(a) (a) Every cemetery authority shall keep on file and make available for inspection and copying to owners and prospective purchasers of cemetery lots and to other interested persons all of the following information:

440.945(3)(a)1. 1. An itemized list of the amounts charged for any services provided by the cemetery authority relating to the finishing, installation or care of monuments.

440.945(3)(a)2. 2. Any regulations adopted under sub. (2) (a).

440.945(3)(b) (b) Upon the request of any person who is interested in purchasing a monument from a cemetery authority or a vendor, the cemetery authority or vendor shall provide the person with an itemized list of the amount charged for each finished monument in which the person is interested and for any services that may be provided by the cemetery authority or vendor relating to the installation or care of the monument.

440.945(4) (4) Prohibited conduct.

440.945(4)(a) (a) A cemetery authority may not do any of the following:

440.945(4)(a)1. 1. Require the owner or purchaser of a cemetery lot to purchase a monument or services related to the installation of a monument from the cemetery authority.

440.945(4)(a)2. 2. Restrict the right of the owner or purchaser of a cemetery lot to purchase a monument or services related to the installation of a monument from the vendor of his or her choice.

440.945(4)(a)3. 3. Except as provided in sub. (2) (c), charge the owner or purchaser of a cemetery lot a fee for purchasing a monument or services related to the installation of a monument from a vendor, or charge a vendor a fee for delivering or installing the monument. Nothing in this subdivision shall be construed to prohibit a cemetery authority from charging the owner or purchaser of a cemetery lot a reasonable fee for services relating to the care of a monument.

440.945(4)(a)4. 4. Discriminate against any owner or purchaser of a cemetery lot who has purchased a monument or services related to the installation of a monument from a vendor.

440.945(4)(b) (b) A vendor may not falsely represent to any person any regulations adopted by a cemetery authority under sub. (2) (a) or falsely represent to any person the vendor’s relationship with a cemetery authority.

440.945(5) (5) Enforcement.

440.945(5)(a) (a) If the board has reason to believe that any person is violating this section and that the continuation of that activity might cause injury to the public interest, the board may investigate.

440.945(5)(b) (b) The department of justice or any district attorney, upon informing the department of justice, may commence an action in circuit court in the name of the state to restrain by temporary or permanent injunction any violation of this section. The court may, prior to entry of final judgment, make such orders or judgments as may be necessary to restore to any person any pecuniary loss suffered because of the acts or practices involved in the action, if proof of such loss is submitted to the satisfaction of the court. The department of justice may subpoena persons and require the production of books and other documents, and may request the board to exercise its authority under par. (a) to aid in the investigation of alleged violations of this section.

440.945(5)(c) (c) In lieu of instituting or continuing an action under this subsection, the department of justice may accept a written assurance of discontinuance of any act or practice alleged to be a violation of this section from the person who has engaged in the act or practice. An assurance entered into under this paragraph shall not be considered evidence of a violation of this section, but a violation of the assurance shall be treated as a violation of this section.

440.945 History History: 1989 a. 95; 1989 a. 307 ss. 84, 86; Stats. 1989 s. 440.945; 2011 a. 32; 2015 a. 237.

440.947 440.947 Disclosures and representations for certain sales.

440.947(1) (1) In this section:

440.947(1)(a) (a) “Cash advance item” means personal property or a service that is obtained by a person from a 3rd party and that is paid for by the person on behalf of, and subject to reimbursement from, a buyer of a casket, outer burial container or cemetery merchandise from the person. “Cash advance item” includes cemetery or crematory services, pallbearers, public transportation, clergy honoraria, flowers, musicians or vocalists, nurses, obituary notices, gratuities and death certificates.

440.947(1)(b) (b) “Direct cremation service” means the disposition of human remains by cremation without any formal viewing, visitation or ceremony in which the body of the deceased is present.

440.947(1)(c) (c) “Outer burial container” has the meaning given in s. 157.061 (11g).