(1) A cemetery owner may require that any
person engaged in the retail sale of merchandise or merchandise services to
consumers who wishes to install, place or set merchandise provide the cemetery
with evidence that the person has a valid registration with the Secretary of
State. No cemetery owner may refuse to allow a merchandise dealer to install
merchandise due to any failure to provide such evidence unless and until the
cemetery has obtained confirmation from the Secretary of State that such person
is not registered. If a cemetery wishes to require proof that a merchandise
dealer has obtained all necessary local or occupational licenses, then the
cemetery may require copies of such licenses. No merchandise dealer, as a
condition of installing merchandise in a perpetual care cemetery, may be
required by the cemetery owner or any other person to provide proof of
registration with the Secretary of State or other licenses more frequently than
once per year. Provided, however, a cemetery may by rule require a merchandise
dealer to provide proof of a change in registration with the Secretary of State
or the status of other licenses five (5) days prior to the installation of
merchandise in the cemetery.
(2)
Rules and Regulations.
(a) A cemetery may
adopt rules and regulations setting forth reasonable standards for merchandise
installed in the cemetery, provided that if a cemetery does adopt such rules
and regulations, those rules and regulations shall include:
1. The style and size of merchandise or its
foundation;
2. The content and
material of which the merchandise and/or foundation is to be
constructed;
3. The locations or
gardens in which different merchandise may be installed;
4. The manner of installation of either a
flat or upright monument;
5. The
specific location on the grave for the installation of either flat or upright
monuments;
6. The requirements for
the removal and replacement of merchandise in the path that any installation
equipment must take to install specific merchandise;
7. The clean-up necessary after installation;
and
8. Any limitations on the date
or time of installations.
(b) In all cases, a cemetery must comply with
its own minimum standards and rules and regulations, or those standards and
rules and regulations shall be deemed waived as to any other person. Rules and
regulations adopted by the cemetery pursuant to this Rule shall be incorporated
in the rules and regulations required to be filed with the Secretary of State
pursuant to section
10-14-4(b)(1)(E)
of the Act and shall be subject to all other requirements and restrictions
imposed by the Act or Rules promulgated thereunder.
(c) If a cemetery has a location on its
property where it places or stores excess dirt, the installer or merchandise
dealer shall be permitted to place excess dirt resulting from an installation
in that cemetery at that location.
(d) Nothing in this rule shall be construed
to allow a cemetery owner or its affiliates to have exclusive rights to
merchandise construction or installation within the cemetery or any part of the
cemetery, nor shall any rule or regulation set up requirements that have the
effect of so providing.
(3) Approval of Merchandise.
(a) A cemetery owner may require that a
person, not later than six (6) business days prior to a request for
installation of merchandise in the cemetery, submit an application, on a form
approved by the Secretary of State, for approval of merchandise to the cemetery
reasonably depicting or describing the foundation, design, style, size, and
content and material of the merchandise to be installed. A business day is
defined as any day other than Saturday, Sunday or legal holiday. The cemetery
owner may require the application to be accompanied by a sketch of the proposed
merchandise with the proposed lettering. The cemetery may require the written
approval of the owner(s) of the burial rights or his or her executor,
administrator, or other legal representative to be on the application form
submitted by the installer. Immediately following the execution of the purchase
agreement, the application shall be transmitted to the cemetery for approval.
The cemetery must notify the merchandise dealer of any nonconformity of the
proposed merchandise within five (5) business days from the date that the
completed application was received. If this approval is submitted by the
installer with the application, the cemetery shall accept the signature of the
owner(s) of the burial rights or his or her executor, administrator, or other
legal representative if the signature is witnessed by the merchandise dealer or
an agent or employee thereof. A cemetery may not require any other form be
signed by the property owner, merchandise dealer or installer for the
installation of the merchandise.
(b) If a cemetery does not by rule require
submission of an application for approval of merchandise as permitted herein, a
merchandise dealer or any person proposing to install merchandise in a cemetery
may require any cemetery to approve or disapprove any proposed merchandise by
submitting an application for approval of merchandise on a form approved by the
Secretary of State.
(c) If, in the
opinion of the cemetery owner, the merchandise depicted on an application for
approval of merchandise submitted pursuant to this rule is not in compliance
with the rules and regulations of the cemetery, the cemetery owner must so
notify the merchandise dealer, in writing, postmarked within five (5) business
days of the date that the completed application was received by the cemetery
owner, setting forth each reason why the proposed merchandise is not in
compliance.
(d) A cemetery may not
refuse to allow installation of any merchandise presented for installation
based upon a claim of noncompliance with the lawful rules of the cemetery
unless:
1. an application for approval of
merchandise was not submitted as required by cemetery rule or as permitted
under subsection (b) hereof;
2. an
application for approval of merchandise was submitted, but the cemetery
notified the merchandise dealer of the reasons for noncompliance of the
merchandise in the manner and within the time provided in subsection (c) hereof
and the cemetery has proof of receipt by the merchandise dealer of such
notification;
3. an application for
approval of merchandise was submitted and approved, either affirmatively or by
the failure to notify the merchandise dealer of noncompliance, but the
merchandise presented for installation does not conform with the description of
the merchandise contained in the application or with the depiction of the
merchandise on the sketch submitted with the application, and the merchandise
fails to conform to the valid rules of the cemetery in effect at the time of
application;
4. the merchandise
dealer contends that an application for approval of merchandise was submitted
and approved, either affirmatively or by the failure to notify the merchandise
dealer of noncompliance, but the merchandise dealer does not have either proof
of affirmative approval or proof of receipt of the application by the cemetery;
or
5. an application for approval
of merchandise was approved by the cemetery, either affirmatively or by failure
to notify of noncompliance, but the merchandise fails to conform to the valid
rules of the cemetery in effect at the time of application, provided the
cemetery owner immediately reimburse the purchaser for the full price of any
merchandise ordered that cannot be returned and any other costs incurred by the
purchaser in connection with the installation of the merchandise.
(e) If a cemetery has a facsimile
machine available for general business purposes, it shall, if requested by the
merchandise dealer or other person proposing to install merchandise, accept an
application for approval of merchandise or a request for installation and
accompanying documents via facsimile, send a confirmation of receipt of any
such application or request by facsimile by 5:00 p.m. the following business
day, and notify the requesting party of any nonconformity of the proposed
merchandise by facsimile within five (5) business days of the date that the
completed application was received. If requested by a cemetery, a merchandise
dealer shall send a confirmation of receipt of any notice of nonconformity by
facsimile to the cemetery.
(f) A
cemetery owner may not request that any person sign a contract or agreement or
other similar document as a condition or prerequisite of allowing installation
of merchandise by someone other than the cemetery, except an acknowledgement by
the merchandise dealer or installer of receipt of the cemetery's rules and
regulations and, unless provided on the application submitted by the installer,
a statement by the owner(s) of the burial rights or his or her executor,
administrator or other legal representative that he or she has approved
merchandise and has authorized installation by a particular merchandise dealer
or installer.
(g) The process of
reviewing any application for approval of merchandise submitted pursuant to
this Rule shall be considered an administrative function associated with the
installation of the merchandise, and the cemetery may charge a fee to reimburse
the cemetery for its actual costs incurred in processing the application as
allowed by O.C.G.A. §
10-14-17(c)(2).
(4) The cemetery owner shall be
the scheduling agent for all activities conducted within the cemetery. The
scheduling of burials takes priority over all other activities. Within two (2)
business days of a request for installation by the installing person, the
cemetery shall schedule the installation of merchandise to occur within five
(5) business days, provided all the proper authorizations and other
requirements have been delivered to and approved by the cemetery. The cemetery
owner may require that the time of installation be set so that the installation
and the clean up can be accomplished prior to the normal closing time of the
cemetery. Any installation limitation imposed by a cemetery shall be
reasonable; any limitation which restricts the days or times during which
installation will be permitted will be presumed to be unreasonable if the
cemetery does not permit installations during at least twenty (20) hours during
the course of a work week, which is defined as Monday through Friday from 9:00
a.m. to 5:00 p.m., for the scheduling of installations by persons other than
the cemetery. This presumption may be rebutted by proof of circumstances
demonstrating the reasonableness of the limitation. Once the installation has
been scheduled, the cemetery shall not require the merchandise dealer or
installer to obtain confirmation from the cemetery of the scheduled
installation. A scheduled installation shall be subject to change by the
cemetery, with reasonable notice being given by the cemetery to the installer
of the need to reschedule the installation, in the event it received
notification of a death of an owner of burial rights located in such a location
that the installation of the merchandise would interfere with the burial.
Anything less than twenty-four (24) hours notice will be presumed unreasonable.
This presumption may be rebutted by proof of circumstances demonstrating the
reasonableness of the notice.
(5)
In the event a burial is taking place and in the determination of the cemetery
the installation of merchandise will be considered an interference with the
burial, the installing persons shall be required by the cemetery to withdraw
until the funeral being conducted has concluded and those in attendance have
left the cemetery at which time the installation of the merchandise may be
continued.
(6) Prior to the
scheduled time of merchandise installation, the cemetery shall mark the place
on the grave where the merchandise is to be installed by placing a flag, or
other marker, thereon. Nothing in this rule is intended to imply or require
that a cemetery shall have to perform any design work or labor associated with
installing merchandise at the gravesite. If the cemetery is requested by the
merchandise installer to perform any design work or labor associated with
installing merchandise at the gravesite, and the cemetery provides such
service, the fee for such service shall be disclosed on the cemetery's schedule
of charges.
(7) The cemetery owner
shall not be liable for improper installation of merchandise not installed by
the cemetery.
(8) Nothing in this
rule shall be construed as requiring a cemetery to replace stolen merchandise
or portions thereof, or to replace or repair merchandise that is damaged due to
vandalism or other causes beyond the cemetery's control.
(9) Installation Fee.
(a) The cemetery may not require payment of
the fee allowed by Sec.
10-14-17(c)(2)
of the Act, with the exception of the costs permitted by Subsection (3)(g) of
this Rule, prior to the time of the installation request.
(b) For purposes of determining the fee
charged pursuant to Sec.
10-14-17(c)(2)
of the Act, the cemetery owner may charge a fee of up to $50 relating to each
contemporaneous installation by a third party of merchandise on a single grave
lot or contiguous group of lots. The number of individual pieces in any
monument or group of monuments shall be irrelevant in the determination of the
fee that the cemetery owner may charge, except where the cemetery owner can
establish that the multiplicity of pieces has resulted in the incurring by the
cemetery owner of greater actual costs.
O.C.G.A. Secs.
10-14-14, 10-14-17.
