South Carolina Code of Regulations
(Unannotated)
Current through State Register Volume 31, Issue 9, effective September 28, 2007.
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CHAPTER 21.
SOUTH CAROLINA CEMETERY BOARD
(Statutory Authority: 1976 Code Chapter 55 of Title 39, as amended)
The South Carolina Cemetery Board is located in Columbia, South Carolina, in the Office of the Secretary of State. The mailing address for the Cemetery Board is Post Office Box 11350, Columbia, South Carolina 29211.
The Cemetery Board has the power and duty to adopt Rules and Regulations to be followed in the enforcement of Chapter 55 of Title 39 of the 1976 Code, as amended.
The principal function of the Cemetery Board is to conduct examinations of all licensed Cemeteries. In addition to its examination function, the Cemetery Board authorizes the establishment of cemeteries and the licensing of those cemeteries.
The Cemetery Board will, as often as it deems necessary, make a physical examination of each cemetery, to insure there is compliance with Chapter 55 of Title 39 of the 1976 Code, as amended.
The Cemetery Board is established within the Office of the Secretary of State of South Carolina by Code Section . The Cemetery Board consists of six members, appointed by the Governor pursuant to Code Section and the Secretary of State who is a member ex officio and shall serve as Chairman of the Board.
The Cemetery Board shall meet at least semiannually, and more often upon the call of the Chairman or upon written request of at least four members of the Board.
The Cemetery Board requires a report of deposits to the Care and Maintenance Trust Fund to be completed and mailed to its office in Columbia annually on forms provided by the Cemetery Board.
No person will be allowed to withdraw or transfer all of any portion of the corpus of the Care and Maintenance Trust Funds of any Cemetery to any depository outside the State of South Carolina. Also, the Board will not approve the creation of a new Care and Maintenance Trust Fund as called for under Code Section unless same is deposited with a trust institution in the State of South Carolina.
Any Cemetery which desires to transfer its Care and Maintenance Trust Funds must make written request to the Cemetery Board and provide the Cemetery Board with a copy of the new proposed Care and Maintenance Trust Fund Agreement. The Cemetery Board will then notify the Cemetery, in writing, after study of the request and proposal, either authority for the transfer or the denial of the request.
The Trustees of Care and Maintenance Trust Funds may commingle the deposits in all such trusts for purposes of the management and investment of the funds.
The Cemetery Board requires a report of deposits to the Merchandise Trust Fund to be completed and mailed to its office in Columbia annually on forms provided by the Cemetery Board.
The Cemetery Board will not approve the creation of a Merchandise Trust Fund unless same is deposited with a Trust Institution in the State of South Carolina.
No person shall offer to enter into, or enter into a contract, for the sale of a memorial, mausoleum crypt, or other cemetery merchandise that is to be used in connection with the interment of a deceased human being, wherein the memorial or other cemetery merchandise is not delivered or the mausoleum crypt is not constructed until the death, or at some future time, of the person for whose interment such personal property is to be furnished, except as provided below:
(a) Any person entering into any such contract as the seller shall deposit into a merchandise trust fund, established for that purpose with a Trust Institution in South Carolina, as Trustee, one hundred percent of the actual cost, at time of deposit, of the personal property sold for future need.
(b) The deposit required to be made into such Merchandise Trust Fund shall be made within sixty days after the seller has received final payment of the purchase price provided for under such contract.
(c) The term "Mausoleum Crypt" as used in Code Section (B) shall mean a private, family Mausoleum as opposed to a public mausoleum which is governed by Code Section of the South Carolina Cemetery Act of 1984.
The funds held in trust shall remain intact, together with all interest accrued thereon, except as provided herein, until the Memorial or other Cemetery merchandise has been delivered, or in the case of a private, family mausoleum, the same has been constructed, and until delivery or completion of construction has been certified to the Trustee.
(a) The costs for administering the Merchandise Trust Fund may be paid from, and only from, the income earned by the Trust.
(b) For the purpose of Code Section , only (1) the installation of said merchandise in the Cemetery, or (2) the warehousing of said merchandise on the Cemetery Property, or (3) the deposit of one hundred percent of the cost of said merchandise in the Merchandise Trust Fund, or (4) another type of warehousing of said merchandise that has prior approval of the Cemetery Board, will constitute the delivery of said merchandise.
The Cemetery Board requires a report of deposits to the Pre-Construction Trust Fund to be completed and mailed to its office in Columbia annually on forms provided by the Cemetery Board.
(a) Any person who enters into a contract for the sale of a space in a Mausoleum or bank of Underground Crypts prior to the completed construction thereof shall establish a Trust Fund entitled "Pre-Construction Trust Fund" with a Trust Institution in South Carolina. The Pre-Construction Trust Fund shall be administered and operated in the same manner as the Merchandise Trust Fund provided for in Code Section , and shall be exclusive of the Merchandise Trust Fund or other Trust Funds that may be required by law.
(b) The sellers cost of a space in a Mausoleum or in a Bank of Underground Crypts shall be determined by the contract and plans between the Cemetery Company and the Building Contractor.
(c) 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.
21-42. Withdrawals from Pre-Construction Trust Fund.
The seller shall be entitled to withdraw all funds from the Pre-Construction Trust Fund after the Trustee is satisfied that construction has been completed; provided, however, during construction of the Mausoleum or Bank of Underground Crypts, the Trustee shall authorize a specific percentage of the funds to be withdrawn when the Cemetery Company certifies that at least an equivalent percentage of construction has been completed.
Any legal entity wishing to establish and operate a Cemetery Company, as defined in Code Section ) must first obtain a license from the Cemetery Board. The legal entity shall file written application with the Cemetery Board on the Board's Application for Certificate of Authority. This form provides a space for the name of the Corporation and the Cemetery, the names of the Directors and officers of the Corporation, the mailing address of the Corporation and the address of the Cemetery. A filing fee of Four Hundred Dollars ($400.00) must accompany the Application. Application for Certificate of Authority forms are available from the Office of the Cemetery Board.
Upon proper application for a Cemetery Company License, and where it appears after investigation that the criteria set forth in Code Section (c)(1) through (5) have been met, the Cemetery Board shall issue said License to the applicant, provided that the required license fee has been paid.
Any entity wishing to purchase or acquire control of an existing Cemetery Company shall first make written application to the Cemetery Board on the Board's Application for Change of Control. This form provides space for the name and address of the present and the proposed new owner, along with the name of the Corporation and the name of the Cemetery. This form is available from the Office of the Cemetery Board. This form must be accompanied by a One Hundred Dollar ($100.00) filing fee. The Board also requires the following:
(1) an examination be made to establish compliance to the Trust Fund requirements;
(2) a certificate signed by the purchaser assuming liabilities of the existing Cemetery Company;
(3) the financial structure of the existing Cemetery Company;
Each Cemetery that was licensed as of June 28, 1984, shall submit to the Cemetery Board a copy of its Rules and Regulations for approval on or before January 1, 1985. After the Cemetery Board has approved the Rules and Regulations for a licensed Cemetery, the Cemetery, must before modifying, changing, or amending said Rules and Regulations, submit proposed amendments or changes to the Cemetery Board for approval.
(a) Any person wishing to submit a petition requesting the adoption, amendment, or repeal of a rule by the Cemetery Board shall address a petition to the Cemetery Board at its Office in Columbia.
(b) The petition shall contain the following information:
(1) draft of the proposed rule or a summary of its contents;
(2) reason for the proposal;
(3) effect on existing rules or orders;
(4) data supporting the proposal;
(5) names of those most likely to be affected by the proposed rule, with addresses if reasonably known;
(6) name(s) and address(es) of petitioner(s);
(7) a description as to how the petitioner(s) is (are) directly or substantially affected by the proposed rule.
(c) The Cemetery Board will determine, based on a study of the facts stated in the petition, whether the public interest will be served by granting the petition. They will consider all the contents of the submitted petition, plus any additional information they deem relevant.
(d) Within sixty (60) days of receipt of the petition, the Cemetery Board will render a final decision. If the decision is to deny the petition, the Board will notify the petitioner in writing, stating the reason therefor. If the decision is to grant the petition, the Board, within sixty (60) days of submission, will initiate a rule-making proceeding by issuing a rule-making notice as provided in the rules.
(a) Upon a determination to hold a rule-making proceeding, either in response to a petition or otherwise, the Cemetery Board will give Twenty (20) days notice to all interested parties of a public hearing on the proposed rule.
(b) Any person or agency desiring to be placed on the mailing list for Cemetery Board rule-making notices may file a request, in writing, furnishing names and mailing address to the Cemetery Board at its Office in Columbia.
(c) In addition to notices sent to persons requesting them, notice of the rule-making proceedings will usually be sent to the South Carolina Cemetery Board and to all state-licensed Cemeteries.
(a) Unless otherwise stated in the particular rule-making notice, hearings before the South Carolina Cemetery Board will be held at the offices of Secretary of State of South Carolina, Columbia, South Carolina.
(b) Any person desiring to present oral data, views, or arguments on the proposed rule must, at least ten (10) days before the hearing, file a written notice with Cemetery Board at its Office in Columbia. Notice of this presentation may be waived or a failure to give notice may be excused, by the Board, for good cause. Any person permitted to make an oral presentation is encouraged to submit a written copy of the presentation to the Cemetery Board prior to or at the hearing.
(c) A request to make an oral presentation must contain a brief summary of the individual's views with respect thereto, and a statement of the length of time the individual wants to speak. Presentations may not exceed fifteen (15) minutes unless, upon request, either before or at the hearing, the Cemetery Board grants an extension of time, for good cause.
(d) Upon receipt of a request to make an oral presentation, the Cemetery Board will acknowledge receipt of the request, and inform the requesting person of the imposition of any limitation deemed necessary to the end that a full and effective public hearing on the proposed rules may be held.
(e) Any person may file a written submission containing data, comments, or arguments, after publication of a rule-making notice, up to and including, the day of the hearing. Written submissions, except when otherwise stated in the particular rule-making notice must be sent to the Cemetery Board at its Office in Columbia. Such submission must clearly state the rule(s) or proposed rule(s) to which the comments are addressed.
(f) Upon receipt of such written comments, prompt acknowledgment will be made including a statement that the comments therein will be considered fully by the Cemetery Board.
(g) The Chairman of the Board, or his designate, shall have complete control of the hearing proceedings, including: extension of any time requirements, recognition of speakers, time allotments for presentation, direction of the flow of the discussion, and the time management of the hearing. The Chairman, or his designate, at all times, shall take care that each person participating in the hearing is given a fair opportunity to present views, data and comments.
(h) Any person desiring a statement of the principal reason(s) for and against the adoption of a rule by the Cemetery Board and the factors that led to the overruling of the consideration urged for or against its adoption, must submit a request addressed to the Cemetery Board at its Office in Columbia.
(1) For the purpose of this rule an "interested person" shall be any person whose right, duties, or privileges might be affected by the rule in question, or any group or organization representing any person(s) whose rights, duties, or privileges might be affected by the rule.
(2) Requests must be in writing and submitted either prior to the adoption of the rule or within thirty (30) days thereafter.
(i) A record of all rule-making proceedings will be maintained in the Cemetery Board Office for as long as the regulation is in effect, and for two years thereafter, following filing of the regulation with the Legislative Council. This record will contain: the original petition, if the hearing is in response to a petition; the notice; all written memoranda and information submitted; a record or summary of oral presentation, if any; and the statement explaining the Cemetery Board ruling, if made.
The South Carolina Cemetery Board shall have the power to issue emergency rules when required by reason of imminent peril to the public health, safety, and welfare. They shall issue such notice by written, telegraphic, or telephonic, or other means, and allow such comments oral or written, as time permits. An emergency rule shall continue for the duration of the emergency or for such time as shall be specified, but in no event shall the period be in excess of One Hundred Twenty (120) days.
(a) Any person substantially affected by a statute administered, or rule promulgated, by the Cemetery Board may request a Declaratory Ruling as to:
(1) whether, and if so, how, the statute or rule applies to a given factual situation, or,
(2) whether a particular agency rule is valid.
(b) The Cemetery Board will have the sole power to make such Declaratory Rulings. All requests for Declaratory Rulings shall be written and mailed to the Office of the Cemetery Board in Columbia.
(c) All requests for a Declaratory Ruling must include the following information:
(1) name and address of petitioner;
(2) statute or rule to which petition relates;
(3) concise statement of the manner in which the petitioner is aggrieved by the statute or rule, or its potential application to him;
(4) a statement of whether an oral hearing is desired, and if so, the reasons for such an oral hearing.
(d) Whenever the Cemetery Board believes for good cause that the issuance of a Declaratory Ruling is undesirable, it may refuse to do so. When good cause for refusing to issue a Declaratory Ruling is deemed to exist, the Cemetery Board will notify the petitioner of its decision in writing, stating reasons for the denial of a Declaratory Ruling.
(e) Where a Declaratory Ruling is deemed appropriate, the Cemetery Board will issue the ruling within sixty (60) days of receipt of the petition.
(f) A Declaratory Ruling procedure may consist of written submissions, oral hearings, or such other procedures as may be appropriate in a particular case.
