Prohibits the unsolicited sale of memorials and monuments unless such offer has first been solicited by the individual to which it is sent; provides an exception where such an offer is permissible where, in large, bold-face type at the top of such offer, "SOLICITATION" is clearly printed; imposes civil penalties for violations thereof.
TITLE OF BILL: An act to amend the general business law, in relation to the sale of monuments and memorials
PURPOSE: This bill is meant to ensure that unsolicited offers for monuments and memorials are clearly marked as solicitations and that the offer contains all pertinent details with regard to the monument or memorial being offered.
SUMMARY OF PROVISIONS: Section 1 of the bill amends section 454 of the General Business Law (GBL) to require that a contract for a memorial or monument include a certificate of quality.
Section 2 of the bill creates a new section 454-a of the GBL (Unsolicited offers for monuments or memorials) which requires that unsolicited offers be clearly labeled as solicitations and that the offer includes all pertinent details with regard to the monument or memorial; additionally, the attorney general is authorized to take action to enforce these provisions.
EXISTING LAW: Section 454 of the GBL requires information such as dimensions, wording, layout, total price, etc. be included in a contract for a monument or memorial; there is no such analogous requirement for offers for monuments or memorials.
JUSTIFICATION: The purpose of this bill is to assure that the families of the recently deceased are able to recognize the nature and details of the sometimes numerous offers for monuments or memorials which arrive unsolicited after a death. This bill would require virtually the same information be included within such an offer as is required currently for a completed contract. Additionally, the fact that the offer is a solicitation would be required to be conspicuously noted. These simple requirements will provide families with all the information necessary to recognize the nature of and to assess the value of offers of this type.
LEGISLATIVE HISTORY: 2012: Rules Committee (S.7373A/A.10375A)
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect on the ninetieth day after becoming law.
STATE OF NEW YORK ________________________________________________________________________ 777 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________Introduced by Sen. FUSCHILLO -- read twice and ordered printed, and when printed to be committed to the Committee on Consumer Protection AN ACT to amend the general business law, in relation to the sale of monuments and memorials THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 2 of section 454 of the general business law, as amended by chapter 390 of the laws of 2007, is amended to read as follows: 2. Each sale of a memorial shall only be evidenced by a written contract which shall be signed by all the parties to the contract, which shall be dated, and which shall be completely separate and may not be included in any other contract, agreement, purchase order, price list, itemization of funeral services and merchandise selected or like docu- ment reflecting the purchase by a consumer of any other real or personal property or service related to the burial, cremation, or other disposi- tion of the remains of a deceased person. For purposes of this section, the pourer of a foundation shall not be considered the seller of a foun- dation. Such separate contract shall be prepared, completed and main- tained in accordance with this section for every memorial sale, includ- ing a foundation therefor, and shall be the only contractual document prepared in connection with such sale. Provided however in the case of the sale of a monument or memorial made at the same time as a preneed sale of funeral goods or services, a one page document summarizing the transaction shall be given to the consumer in addition to, but not in lieu of, the separate contract required by this section. A full and complete copy of such contract shall be given to the consumer by the seller at the time of purchase of such memorial, and shall be retained by the seller for a period of at least three years from the date of sale. Said contract shall contain at least the following:EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01458-01-3 S. 777 2
(a) the name, address and telephone number of the seller of the memo- rial; (b) the name, address and telephone number of the consumer; (c) the full name of the individual to be memorialized and, if known, the date of such individual's death; (d) a full description of the memorial, including the material to be provided, the dimensions of the finished memorial, a sketch or drawing of the proposed memorial, the wording of any inscription on such memori- al including the approximate layout thereof,
[and]the method of SAND- BLASTING OR engraving of such inscription, AND A CERTIFICATE OF QUALITY, DETAILING COUNTRY OR STATE OF ORIGIN; (e) the approximate date when the memorial is expected to be completed; (f) the name of the cemetery in which the memorial is to be placed, together with the location of the plot or grave, if known, AND THE NAME OF THE OWNER OF THE PLOT; and (g) a full disclosure of each of the following: the price of the memo- rial; applicable sales tax, if any; the charge made by the cemetery for the foundation; any charges for additional work, provided that such additional work is clearly described in the contract and such charges are itemized; the total price as contracted; and the schedule for payment, if any. S 2. The general business law is amended by adding a new section 454-a to read as follows: S 454-A. UNSOLICITED OFFERS FOR MONUMENTS OR MEMORIALS. 1. (A) EXCEPT AS PROVIDED IN PARAGRAPH (B) OF THIS SUBDIVISION, IT SHALL BE UNLAWFUL TO PROVIDE ANY OFFER FOR MONUMENTS OR MEMORIALS UNLESS SUCH OFFER HAS FIRST BEEN SOLICITED BY THE INDIVIDUAL TO WHICH IT IS SENT. (B) PROVIDED, HOWEVER, SUCH AN OFFER IS PERMISSIBLE WHERE, IN LARGE, BOLD-FACE TYPE AT THE TOP OF SUCH OFFER, "SOLICITATION" IS CLEARLY PRINTED. 2. AN OFFER PROVIDED PURSUANT TO PARAGRAPH (B) OF SUBDIVISION ONE OF THIS SECTION WHICH OFFERS FOR SALE A SPECIFIC MONUMENT OR MEMORIAL OR CHOICE OF SPECIFIC MONUMENTS OR MEMORIALS SHALL ADDITIONALLY PROVIDE: A FULL DESCRIPTION OF THE MONUMENT OR MEMORIAL, INCLUDING THE MATERIAL TO BE PROVIDED, THE DIMENSIONS OF THE FINISHED MONUMENT OR MEMORIAL, A SKETCH OR DRAWING OF THE PROPOSED MONUMENT OR MEMORIAL, THE METHOD OF SAND BLASTING OR ENGRAVING OF ANY INSCRIPTION, AND A CERTIFICATE OF QUALITY DETAILING COUNTRY OR STATE OF ORIGIN, AS WELL AS A FULL DISCLO- SURE OF EACH OF THE FOLLOWING: THE TOTAL PRICE OF THE MONUMENT OR MEMO- RIAL AS OFFERED; APPLICABLE SALES TAX AS OFFERED, IF ANY; THE CHARGE MADE BY THE CEMETERY FOR THE FOUNDATION IF THE CEMETERY IS KNOWN; ANY CHARGES FOR ADDITIONAL WORK, PROVIDED THAT SUCH ADDITIONAL WORK IS CLEARLY DESCRIBED IN THE OFFER AND SUCH CHARGES ARE ITEMIZED; AND THE SCHEDULE FOR PAYMENT, IF ANY. 3. WHENEVER THERE SHALL BE A VIOLATION OF THE PROVISIONS OF THIS SECTION, AN APPLICATION MAY BE MADE BY THE ATTORNEY GENERAL IN THE NAME OF THE PEOPLE OF THE STATE OF NEW YORK TO A COURT OR JUSTICE HAVING JURISDICTION TO ISSUE AN INJUNCTION, AND UPON NOTICE TO THE DEFENDANT OF NOT LESS THAN FIVE DAYS, TO ENJOIN AND RESTRAIN THE CONTINUANCE OF THE VIOLATION. IF IT SHALL APPEAR TO THE SATISFACTION OF THE COURT OR THE JUSTICE THAT THE DEFENDANT HAS VIOLATED THIS SECTION, AN INJUNCTION MAY BE ISSUED BY THE COURT OR JUSTICE, ENJOINING AND RESTRAINING ANY FURTHER VIOLATION, WITHOUT REQUIRING PROOF THAT ANY PERSON HAS, IN FACT BEEN INJURED OR DAMAGED THEREBY. IN ANY SUCH PROCEEDING, THE COURT MAY MAKE ALLOWANCES TO THE ATTORNEY GENERAL AS PROVIDED IN PARAGRAPH SIX OFS. 777 3
SUBDIVISION (A) OF SECTION EIGHT THOUSAND THREE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES AND DIRECT RESTITUTION. IN CONNECTION WITH ANY SUCH PROPOSED APPLICATION, THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE PROOF AND MAKE A DETERMINATION OF THE RELEVANT FACTS AND TO ISSUE SUBPOENAS IN ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES. WHENEVER THE COURT SHALL DETERMINE THAT A VIOLATION OF THIS SECTION HAS OCCURRED, THE COURT MAY IMPOSE A CIVIL PENALTY OF UP TO FIVE HUNDRED DOLLARS FOR THE FIRST VIOLATION AND UP TO ONE THOUSAND DOLLARS FOR THE SECOND OR SUBSEQUENT VIOLATION WITHIN AN EIGHTEEN MONTH PERIOD. 4. THE PROVISIONS OF THIS SECTION SHALL NOT BE CONSTRUED TO APPLY TO A SOLICITED OFFER FOR SALE MADE BY ANY FIRM, CORPORATION OR OTHER ENTITY OWNED BY AN INDIVIDUAL LICENSED OR REGISTERED UNDER ARTICLE THIRTY-FOUR OF THE PUBLIC HEALTH LAW AS PART OF A FUNERAL PREARRANGEMENT OR AS PART OF A PRENEED CONTRACT PURSUANT TO SECTION FOUR HUNDRED FIFTY-THREE OF THIS ARTICLE. 5. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO CEMETERY CORPO- RATIONS AS DEFINED AND REGULATED BY ARTICLE FIFTEEN OF THE NOT-FOR-PRO- FIT CORPORATION LAW AND THE REGULATIONS PROMULGATED THEREUNDER. S 3. This act shall take effect on the ninetieth day after it shall have become a law.