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As Reported by House Commerce & Labor Committee
123rd General Assembly
Regular Session
1999-2000 | Sub. H. B. No. 18 |
REPRESENTATIVES SCHULER-ALLEN-BUCHY-TERWILLEGER-TAYLOR-
WESTON-CLANCY-KREBS-OGG-CATES-ROMAN-WILLAMOWSKI-SALERNO-
O'BRIEN-MOTTLEY-BRITTON-PRINGLE-JAMES-VANVYVEN-JOLIVETTE-
KRUPINSKI-VERICH-CORBIN
A BILL
To amend sections 517.23, 517.24, 759.01, 1111.19, 1151.345, 1161.59,
1319.12, 1345.21, 1721.01, 1721.06, 1721.21, 1721.211, 1733.51,
2117.25, 2925.01, 4735.01, 4735.02, 4735.051,
4735.07, 4735.10, 4735.141,
4735.18, 4735.32, 4735.57, 4767.02, 4767.04, 4767.06, 4767.08,
and 4767.99, to enact
section 4767.031, and to repeal sections 2117.251 and
4735.091 of the Revised
Code to revise laws dealing with the operation and
registration of cemeteries
and with preneed burial vault
contracts.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections
517.23, 517.24, 759.01, 1111.19, 1151.345, 1161.59,
1319.12, 1345.21, 1721.01, 1721.06, 1721.21, 1721.211, 1733.51,
2117.25, 2925.01, 4735.01, 4735.02, 4735.051, 4735.07, 4735.10, 4735.141,
4735.18, 4735.32, 4735.57, 4767.02, 4767.04, 4767.06, 4767.08, and 4767.99 be
amended
and section 4767.031 of the Revised Code be enacted to read as follows:
Sec. 517.23. (A) Subject to divisions (B), (D), and (E) of this section, the
board of township trustees, the
trustees or directors of a cemetery association, or the other
officers having control and management of a cemetery OR THE OFFICER OF A
MUNICIPAL CORPORATION WHO HAS CONTROL AND MANAGEMENT OF A MUNICIPAL
CEMETERY shall disinter or grant
permission to disinter any remains buried in the cemetery in either of the
following circumstances:
(1) If the surviving spouse of the decedent is eighteen years of age or
older, on WITHIN THIRTY DAYS AFTER THE FILING OF AN application
of the surviving spouse made in accordance with division
(A) of section 517.24 of the Revised Code and payment by the applicant of the
reasonable costs and expense of disinterment;
(2) On order of a probate court issued under division (B) of
section 517.24 of the Revised Code and payment by the person who applied for
the order under
that division of the reasonable costs and expense of disinterment.
(B) No disinterment shall be made pursuant to this section and
section 517.24 of the Revised Code if
the decedent died
of a contagious or infectious disease until a permit has been
issued by the board of health of a general health district or of
a city health district.
(C) Upon disinterment of remains under division (A)(1)
or (2) of this section, the involved board, trustees, directors, or
other
officers, OR OFFICER OF THE MUNICIPAL CORPORATION shall deliver
or cause to be delivered the disinterred remains to the
applicant surviving spouse or, if the disinterment was pursuant to court order
issued under division (B) of section 517.24 of the Revised Code, to the
person who applied for the order under that division.
(D) The board of township trustees, the trustees or directors of
a cemetery association, or the other officers having control and management of
a
cemetery OR THE OFFICER OF A MUNICIPAL CORPORATION WHO HAS CONTROL AND
MANAGEMENT OF A MUNICIPAL CEMETERY may disinter or grant permission to
disinter and, if appropriate,
may reinter or grant permission to reinter any remains buried in the cemetery
to correct an interment error in the cemetery if the board, trustees,
directors,
or other officers, OR OFFICER OF THE MUNICIPAL
CORPORATION
comply with the internal rules of the cemetery pertaining to
disinterments and if the board, trustees, directors, or other
officers, OR OFFICER OF THE MUNICIPAL CORPORATION provide
notice of the disinterment to the decedent's last known next of kin. The
board,
trustees, directors, or other officers, OR OFFICER OF THE
MUNICIPAL CORPORATION may
correct an interment error under
this division without a court order or an
application by a person.
(E)(1) A person who is an interested party and who is eighteen
years of age or older
and of sound mind may apply to the probate court of the county in which the
decedent is buried for an order to prevent the decedent's surviving spouse
from having the remains of the decedent disinterred. An application to
prevent the
disinterment of the remains of the decedent shall be in writing, subscribed
and verified by oath, and include all of the following:
(a) If applicable, a statement that the applicant assumed
financial responsibility for the funeral and burial expenses of the decedent;
(b) If division (E)(1)(a) of this section
is inapplicable relative to the applicant, a statement that the applicant did
not assume financial responsibility for the funeral and burial expenses of the
decedent;
(c) A statement that the applicant is eighteen years of age or
older and of sound mind;
(d) The relationship of the applicant to the decedent;
(e) A statement of the applicant's reasons to oppose the
disinterment of the remains of the decedent.
(2) An applicant for an order to prevent the disinterment of the remains
of
the decedent under division (E) of this section promptly shall give
notice of the filing of the
application by certified mail, return receipt requested, to the decedent's
surviving spouse. The notice
shall indicate that the applicant has filed an application for an order to
prevent the disinterment of the remains of the decedent.
(F) As used in this section and in section 517.24
of the Revised Code:
(1) "Cemetery" and "interment" have the same meanings as in section
1721.21 of the Revised Code.
(2) "Disinterment" means the recovery of human remains by exhumation,
disentombment, or disinurnment. "Disinterment" does not include the raising
and lowering of remains to accommodate two interments within a single grave
and does not include the repositioning of an outside burial container that
encroaches an adjoining burial space.
Sec. 517.24. (A) An application by a surviving spouse for
disinterment under section 517.23 of the
Revised Code shall be in writing and shall state that the applicant is the
surviving spouse of the decedent,
that the applicant is eighteen years of age or older and
of sound mind, the
disease of which the decedent died, and
the place at which the remains shall be reinterred. The application shall be
subscribed and verified by oath.
(B)(1) A person who is eighteen years of age or older and of
sound mind and who is not the surviving spouse of the decedent involved may
obtain a court order under this division for the disinterment of the remains
of the decedent. Any person who is eighteen years of age or older and of
sound mind, including, but not limited to, the person who assumed financial
responsibility for the funeral and
burial expenses of the decedent, and who wishes to obtain a court order for
the
disinterment of the remains of the decedent may file an application in the
probate court of the county in which the decedent is buried requesting the
court to issue an order for the disinterment of the remains of the decedent.
The application shall be in writing, subscribed and verified by oath, and
include all of the following:
(a) If applicable, a statement that the applicant assumed
financial responsibility for the funeral and burial expenses of the decedent;
(b) If division (B)(1)(a) of this section
is inapplicable relative to the applicant, a statement that the applicant did
not assume financial responsibility for the funeral and burial expenses of the
decedent;
(c) A statement that the applicant is eighteen years of age or
older and of sound mind;
(d) The relationship of the applicant to the decedent;
(e) A statement of the place at which the remains will be
reinterred;
(f) The name, the relationship to the decedent, and the address
of the decedent's surviving spouse, of all persons who would have been
entitled to inherit from the decedent under Chapter 2105. of the Revised Code
if the decedent had died intestate, and, if the decedent had a will, of all
legatees and devisees named in the decedent's will.
(2)(a) Subject to division (B)(2)(b) of
this section, upon the filing of an application for an order for disinterment
of remains under division (B) of this section, the applicant promptly
shall give notice as
described in this division by certified mail, return receipt requested, to the
decedent's surviving
spouse,; to all persons who would have been entitled to inherit
from the
decedent under Chapter 2105. of the Revised Code if the decedent had died
intestate, and,; if the decedent had a will, to all legatees and
devisees named
in the decedent's
will; AND TO THE BOARD OF TOWNSHIP TRUSTEES, THE TRUSTEES OR
DIRECTORS OF A CEMETERY ASSOCIATION, OR THE OTHER OFFICERS HAVING CONTROL AND
MANAGEMENT OF THE CEMETERY IN WHICH THE REMAINS OF THE DECEDENT ARE INTERRED
OR TO THE OFFICER OF A MUNICIPAL CORPORATION WHO HAS CONTROL AND MANAGEMENT OF
A MUNICIPAL CEMETERY IN WHICH THE REMAINS OF THE DECEDENT ARE INTERRED.
The notice shall indicate that an application for
disinterment of the
remains of the decedent has been filed.
(b) A person entitled to be given the notice described in
division (B)(2)(a) of this section may waive the
right to receive the notice by filing a written waiver of that right in the
probate court.
(c) The fact that the notice required by division
(B)(2)(a) of this section has been given, subject to
division (B)(2)(d) of this section, to all persons
described in division (B)(2)(a) of this section who
have not waived their right to receive the notice and, if applicable, the fact
that certain persons described in that division have waived their right to
receive the notice in accordance with division (B)(2)(b)
of this section shall be evidenced by an affidavit of the applicant for the
order for disinterment, and the applicant shall file the affidavit in the
probate court.
(d) An applicant for an order for disinterment is not required to
give a notice pursuant to division (B)(2)(a) of this
section to persons whose names or places of residence are unknown and cannot
with reasonable diligence be ascertained, and the applicant shall file an
affidavit in the probate court specifying any persons who were not given
notice pursuant to division (B)(2)(a) of this
section and the reason for not giving notice to those persons.
(3)(a) Except as otherwise provided in division
(B)(3)(b) of this section, upon the filing of an application
for disinterment of remains and the giving of the required notice under
division (B)(2) of this section, the probate court promptly shall
conduct a hearing to determine whether to issue an order for disinterment of
the remains of the decedent. Except as otherwise provided in division
(B)(3)(a) of this section, at the hearing, the court, in its discretion, may
issue an order for disinterment of the decedent's remains IF GOOD CAUSE FOR
DISINTERMENT IS SHOWN. If a person who is
an interested party and who is eighteen years of age or older and of sound
mind
establishes by a preponderance of the evidence at the hearing that the
issuance of an order for disinterment of the decedent's remains under division
(B)(3) of this section would be against the decedent's religious
beliefs OR ASCERTAINABLE DESIRES, the court shall not issue the
requested order UNLESS THE COURT FINDS A COMPELLING REASON TO ISSUE IT.
If the court is not
so prohibited from issuing the requested order and exercises its discretion to
issue the requested order for disinterment
of the decedent's remains under IN ACCORDANCE WITH division
(B)(3) of this section, the
court promptly shall deliver the order to
the applicant. AN ORDER OF THE COURT FOR DISINTERMENT OF THE DECEDENT'S
REMAINS SHALL SPECIFY THAT THE BOARD OF TOWNSHIP TRUSTEES, THE TRUSTEES OR
BOARD OF THE CEMETERY ASSOCIATION, OR OTHER OFFICERS HAVING CONTROL AND
MANAGEMENT OF THE CEMETERY OR THE OFFICER OF A MUNICIPAL CORPORATION WHO HAS
CONTROL AND MANAGEMENT OF THE MUNICIPAL CEMETERY SHALL HAVE A PERIOD OF AT
LEAST THIRTY DAYS FROM THE RECEIPT OF THE ORDER TO PERFORM THE ORDERED
DISINTERMENT.
(b) The court is not required to conduct a hearing
under division (B)(3)(a) of this section if each
person entitled to be given the notice described
in division (B)(2)(a) of this section has
waived that right by filing a written waiver of the right to receive the
notice in the probate court.
Sec. 759.01. Any municipal corporation may provide public cemeteries and
crematories for burial or incineration of the dead and regulate public and
private cemeteries and crematories. Any cemetery established by a municipal
corporation shall register with the division of real estate in the department
of commerce pursuant to section 4767.03 of the Revised Code. ANY
CEMETERY OF THAT NATURE IS SUBJECT TO CHAPTER 4767. AND TO SECTIONS
517.23 TO 517.25
AND 1721.211 OF THE REVISED CODE IN ADDITION TO BEING
SUBJECT TO THIS CHAPTER.
Sec. 1111.19. (A) As used in this section:
(1) "Financial institution" means a bank, savings bank, or savings
association located in this state and insured by the federal deposit insurance
corporation or a credit union authorized to do business in this state.
(2) "Preneed funeral contract" means a written agreement, contract, or
series
of contracts to sell or otherwise provide any funeral services, funeral goods,
or any combination thereof, to be used in connection with the funeral or final
disposition of a dead human body, where payment for the goods or services is
made either outright or on an installment basis, prior to the death of the
person purchasing them or for whom they are purchased. A preneed funeral
contract that includes funeral services may be sold only by a funeral director
licensed pursuant to Chapter 4717. of the Revised Code. FOR THE PURPOSE OF
THIS SECTION, "FUNERAL GOODS" INCLUDES CASKETS. "Preneed funeral
contract"
does not include any preneed burial vault CEMETERY MERCHANDISE AND
SERVICES contract, OR any agreement, contract,
or
series of contracts pertaining to the sale of any burial lot, burial or
interment right, entombment right, or columbarium right with respect to which
either an endowment care fund is established or is not required to
be
established EXEMPT FROM ESTABLISHMENT pursuant to section 1721.21
of the Revised Code, or any agreement, contract, or
series of contracts pertaining to the sale of cemetery interment rights made
by
a person licensed as a limited real estate broker or limited real estate
salesman pursuant to section 4735.091 of the Revised
Code.
(B) Any preneed funeral contract that involves the payment of
money shall be in writing and in compliance with the laws and rules of this
state. One hundred per cent of all payments for funeral goods and services
made under a preneed funeral contract shall remain intact and held in trust
for the benefit of the person for whose benefit the contract is made. No
money
in a preneed funeral contract trust shall be distributed from the trust except
as provided in this section. Any purchaser on initially entering into a
preneed funeral contract may, within seven days, rescind the contract and
request and receive from the seller one hundred per cent of all payments made
under the contract.
(C) Within thirty days after the seller of funeral goods or
services
receives any payment under a preneed funeral contract, the seller shall
deliver
the moneys received and not returned to the purchaser as provided in division
(B) of this section, to the
trustee designated in the preneed funeral contract or an amendment to it.
(D) The trustee of each preneed funeral contract trust shall be a
financial institution or a natural person not required by this chapter
to be
licensed to do trust business. A natural person acting as trustee of a
preneed
funeral contract trust shall be bonded by a corporate surety bond in an amount
not less than one hundred per cent of the funds in all of the preneed funeral
contract trusts the person serves as trustee.
(E)(1) A trustee shall establish a separate preneed funeral
contract trust for the moneys paid under each preneed funeral contract, unless
the purchaser under a preneed funeral contract authorizes the trustee to place
the moneys paid in a combined preneed funeral contract trust. The trustee of
a
combined preneed funeral contract trust shall keep exact records of the
corpus,
income, expenses, and disbursements with regard to each beneficiary of a
preneed funeral contract for whom moneys are held in the trust. The terms of a
preneed funeral contract trust shall be governed by this section.
(2) A trustee may charge a fee for managing a preneed funeral contract
trust. The fee shall not exceed the amount regularly or usually charged for
similar services rendered by the financial institution when serving as a
trustee, and shall be paid only from the income on that trust.
(F) No preneed funeral contract shall restrict the purchaser from
making the contract irrevocable. On the purchase by an individual of an
irrevocable preneed funeral contract, the selling funeral director assumes the
legal obligation to provide for the funeral of the individual pursuant to the
terms of the contract.
(G) The purchaser of a preneed funeral contract that is not
irrevocable may, on not less than fifteen days' notice, cancel the contract
and
request and receive from the trustee payments made under the contract and any
income earned up to the time of cancellation, less fees, distributions, and
expenses made pursuant to this section; except, if a preneed funeral contract
stipulates a firm or fixed or guaranteed price for funeral services and goods
for future use at a time determined by the death of the beneficiary of the
preneed funeral contract, the purchaser, on not less than fifteen days'
notice,
may cancel the contract and receive from the trustee ninety per cent of the
principal paid pursuant to the preneed funeral contract, not less than eighty
per cent of any interest earned up to the time of cancellation, and not less
than eighty per cent of any income earned on the funds since the funds were
paid to the seller and up to the time of cancellation less any fees,
distributions, and expenses. On cancellation, after the funds have been
distributed to the purchaser pursuant to this division, the trustee shall
distribute all remaining funds attributable to the canceled preneed funeral
contract to the seller. If more than one purchaser enters into the contract,
all of those purchasers must request cancellation for it to be effective under
this division, and the trustee shall refund to each purchaser only those funds
that purchaser has paid under the contract and a proportionate amount of any
income earned on those funds, less any fees, distributions, and expenses.
(H) A certified copy of the certificate of death or other
evidence
of death satisfactory to the trustee shall be furnished to the trustee as
evidence of death, and the trustee shall promptly pay the accumulated payments
and income, if any, according to the preneed funeral contract. The payment of
the accumulated payments and income pursuant to this section and, when
applicable, the preneed funeral contract, shall relieve the trustee of any
further liability on the accumulated payments and income.
(I) For purposes of this section, the seller is deemed to have
delivered funeral goods pursuant to a preneed funeral contract when either of
the following occurs:
(1) The seller makes actual delivery of the goods to the beneficiary;
(2) The seller does all of the following:
(a) Receives delivery of the goods on behalf of the beneficiary;
(b) Stores the goods upon the real property of a funeral home
licensed in this state;
(c) Notifies the beneficiary of receipt of the goods and
identifies the specific location of the goods;
(d) At the time of the purchaser's final payment, provides the
beneficiary with evidence of ownership in the beneficiary's name showing the
goods to be free and clear of any liens or other encumbrances.
(J) The seller of funeral goods or services under a preneed
funeral contract annually shall submit to the board of embalmers and funeral
directors the reports the board requires.
(K) The general assembly intends this section to be construed as
a limitation on the manner in which a person is permitted to accept funds in
prepayment for funeral services to be performed in the future, or funeral
goods
to be used in connection with the funeral or final disposition of human
remains, to the end that at all times members of the public may have an
opportunity to arrange and pay for funerals for themselves and their families
in advance of need while at the same time providing all possible safeguards to
ensure that prepaid funds cannot be dissipated, whether intentionally or not,
but remain available for payment for funeral goods and services in connection
with the funeral or final disposition of dead human bodies.
(L) This section does not apply when the seller of funeral goods
or services under a preneed funeral contract is an established and legally
cognizable church or denomination that is exempt from federal income taxation
under section 501(c)(3) of the "Internal
Revenue
Code of 1986," 100 Stat. 2085, 26
U.S.C.A. 501, as amended, and the preneed
funeral contract pertains to a cemetery owned and operated entirely and
exclusively by the church or denomination; provided the church or denomination
adopts, on a voluntary basis, rules and other measures to safeguard and secure
all funds received under any preneed funeral contract.
(M) THIS SECTION DOES NOT PROHIBIT PERSONS WHO ARE NOT LICENSED
FUNERAL DIRECTORS FROM SELLING FUNERAL GOODS PURSUANT TO A PRENEED FUNERAL
CONTRACT; HOWEVER, ALL SELLERS OF
FUNERAL GOODS PURSUANT TO A PRENEED FUNERAL CONTRACT SHALL COMPLY
WITH THIS SECTION UNLESS THE SELLER IS SPECIFICALLY EXEMPT FROM
COMPLIANCE BY THIS SECTION.
Sec. 1151.345. A savings and loan association may, in accordance with
sections 1111.19 and 1721.211 of the Revised Code,
MAY receive and hold on deposit
moneys under a preneed funeral contract or a preneed burial CEMETERY
MERCHANDISE AND SERVICES contract.
Sec. 1161.59. In accordance with sections 1111.19 and
1721.211 of the Revised
Code, a savings bank may receive and hold on deposit moneys under a preneed
funeral contract or a preneed burial CEMETERY MERCHANDISE AND
SERVICES contract.
Sec. 1319.12. (A)(1) As used in this
section, "collection agency" means any person who, for
compensation, contingent or otherwise, or for other valuable
consideration, offers services to collect an alleged debt
asserted to be owed to another.
(2) "Collection agency" does not mean a person whose
collection activities are confined to and directly related to
the operation of another business, including, but not limited
to, the following:
(a) Any bank, including the trust
department of a bank, trust company, savings and loan
association, savings bank, credit union, or fiduciary as defined
in section
1339.03 of the Revised
Code, except those that own or
operate a collection agency;
(b) Any real estate broker, OR real
estate salesperson, limited real estate broker, or limited real
estate salesperson, as these persons are defined in section 4735.01
of the Revised Code;
(c) Any retail seller collecting its
own accounts;
(d) Any insurance company authorized to do business in this state under
Title XXXIX of the Revised Code or a health insuring corporation
authorized to operate in this
state under Chapter 1751. of the Revised Code;
(e) Any public officer or judicial officer acting under order of a court;
(f) Any licensee as defined either in section 1321.01 or 1321.71 of the
Revised Code, or any registrant as defined in section 1321.51 of the Revised
Code;
(g) Any public utility;
(h) ANY PERSON REGISTERED TO SELL INTERMENT RIGHTS UNDER SECTION
4767.031 of the Revised Code.
(B) A collection agency
with a place of business in this
state may take assignment of another person's accounts, bills,
or other evidences of indebtedness in its own name for the
purpose of billing, collecting, or filing suit in its own name
as the real party in interest.
(C) No collection agency
shall commence litigation for the collection of an assigned
account, bill, or other evidence of indebtedness unless it has
taken the assignment in accordance with all of the following
requirements:
(1) The assignment was voluntary, properly executed, and
acknowledged by the person transferring title to the collection
agency.
(2) The collection agency did not require the assignment
as a condition to listing the account, bill, or other evidence
of indebtedness with the collection agency for collection.
(3) The assignment was manifested by a written agreement
separate from and in addition to any document intended for the
purpose of listing the account, bill, or other evidence of
indebtedness with the collection agency. The written agreement
must SHALL state the effective date of the assignment and the
consideration paid or given, if any, for the assignment, and
must SHALL expressly authorize the collection agency to refer
the
assigned account, bill, or other evidence of indebtedness to an
attorney admitted to the practice of law in this state for the
commencement of litigation. The written agreement must also
SHALL disclose that the
collection agency may CONSOLIDATE, for purposes of filing an action,
consolidate the
assigned account, bill, or other evidence of indebtedness with those of other
creditors against an individual debtor or co-debtors.
(4) Upon the effective date of the assignment to the
collection agency, the creditor's account maintained by the
collection agency in connection with the assigned account, bill,
or other evidence of indebtedness was canceled.
(D) A collection agency shall commence litigation
for the collection of an assigned account, bill, or other
evidence of indebtedness in a court of competent jurisdiction
located in the county in which the debtor resides, or in the case
of co-debtors, a county in which at least one of the co-debtors
resides.
(E) No collection agency
shall commence any litigation authorized by this section unless
the agency appears by an attorney admitted to the practice of
law in this state.
(F) This section does not affect the powers and duties of any person
described in division (A)(2) of this section.
(G) Nothing in this section relieves a collection agency from complying with
the "Fair Debt Collection Practices Act," 91 Stat. 874 (1977), 15 U.S.C. 1692,
as amended, or deprives any debtor of the right to assert defenses as
provided in section 1317.031 of the Revised Code and 16 C.F.R.
433, as amended.
(H) For purposes of
filing an action, a collection agency that has taken an
assignment or assignments pursuant to this section may
consolidate the assigned accounts, bills, or other evidences of
indebtedness of one or more creditors against an individual
debtor or co-debtors. Each separate assigned account, bill, or evidence of
indebtedness must be separately identified and pled in any consolidated action
authorized by this section. If a debtor or co-debtor raises a good
faith dispute concerning
any account, bill, or other evidence of indebtedness, the court
shall separate each disputed account, bill, or other evidence of
indebtedness from the action and hear the disputed account,
bill, or other evidence of indebtedness on its own merits in a
separate action. The court shall charge the filing fee of the
separate action to the losing party.
Sec. 1345.21. As used in sections 1345.21 to 1345.28 of
the Revised Code:
(A) "Home solicitation sale" means a sale of consumer
goods or services in which the seller or a person acting for him
THE SELLER engages in a personal solicitation of the sale at a
residence of
the buyer, including solicitations in response to or following an
invitation by the buyer, and the buyer's agreement or offer to
purchase is there given to the seller or a person acting for him THE
SELLER,
or in which the buyer's agreement or offer to purchase is made at
a place other than the seller's place of business. It does not
include a transaction or transactions in which:
(1) The total purchase price to be paid by the buyer,
whether under single or multiple contracts, is less than
twenty-five dollars;
(2) The transaction was conducted and consummated entirely
by mail or by telephone if initiated by the buyer, and without
any other contact between the seller or his THE SELLER'S
representative prior
to the delivery of goods or performance of the service;
(3) The final agreement is made pursuant to prior
negotiations in the course of a visit by the buyer to a retail
business establishment having a fixed permanent location where
the goods are exhibited or the services are offered for sale on a
continuing basis;
(4) The buyer initiates the contact between the parties
for the purpose of negotiating a purchase and the seller has a
business establishment at a fixed location in this state where
the goods or services involved in the transaction are regularly
offered or exhibited for sale;.
Advertisements by such a seller in newspapers, magazines,
catalogues, radio, or television do not constitute the seller
initiation of the contact.
(5) The buyer initiates the contact between the parties,
the goods or services are needed to meet a bona fide immediate
personal emergency of the buyer which will jeopardize the
welfare, health, or safety of natural persons, or endanger
property which the buyer owns or for which he THE BUYER is
responsible, and
the buyer furnishes the seller with a separate, dated, and signed
statement in the buyer's handwriting describing the situation
requiring immediate remedy and expressly acknowledging and
waiving the right to cancel the sale within three business days;
(6) The buyer has initiated the contact between the
parties and specifically requested the seller to visit his THE
BUYER'S home
for the purpose of repairing or performing maintenance upon the
buyer's personal property. If, in the course of such a visit,
the seller sells the buyer additional services or goods other
than replacement parts necessarily used in performing the
maintenance or in making the repairs, the sale of those
additional goods or services does not fall within this exclusion.
(7) The buyer is accorded the right of rescission by the
"Consumer Credit Protection Act," (1968) 82 Stat. 152, 15 U.S.C.
1635, or regulations adopted pursuant to it.
(B) "Sale" includes a lease or rental.
(C) "Seller" includes a lessor or any one ANYONE offering goods
for rent.
(D) "Buyer" includes a lessee or anyone who gives a
consideration for the privilege of using goods.
(E) "Consumer goods or services" means goods or services
purchased, leased, or rented primarily for personal, family, or
household purposes, including courses or instruction or training
regardless of the purpose for which they are taken.
(F) "Consumer goods or services" do DOES not include goods or
services pertaining to any of the following:
(1) Sales or rentals of real property by a real estate
broker or salesman, other than limited real estate
brokers or
salesmen SALESPERSON, or by a foreign real estate dealer or
salesman SALESPERSON, who is
licensed by the Ohio real estate commission under Chapter 4735.
of the Revised Code;
(2) The sale of securities or commodities by a
broker-dealer registered with the securities and exchange
commission;
(3) The sale of securities or commodities by a securities
dealer or salesman SALESPERSON licensed by the division of
securities under
Chapter 1707. of the Revised Code;
(4) The sale of insurance by a person licensed by the
superintendent of insurance;
(5) Goods sold or services provided by automobile dealers
and salesmen SALESPERSONS licensed by the registrar of motor
vehicles under
Chapter 4517. of the Revised Code;
(6) The sale of property at an auction by an auctioneer
licensed by the department of commerce under Chapter 4707. of the
Revised Code.
(G) "Purchase price" means the total cumulative price of
the consumer goods or services, including all interest and
service charges.
(H) "Place of business" means the main office, or a
permanent branch office or permanent local address of a seller.
(I) "Business day" means any calendar day except Sunday,
or the following business holidays: New Year's day, Washington's
birthday PRESIDENTS' DAY, Memorial day,
Independence day, Labor day, Columbus
day, Veteran's VETERANS day, Thanksgiving day, and
Christmas day.
Sec. 1721.01. A company or association incorporated for
cemetery purposes may appropriate or otherwise acquire, and may
hold, not more than six hundred forty acres of land AT ANY ONE
LOCATION, which shall
be exempt from execution, from being appropriated for any public
purpose, except as otherwise provided in this section, and from
taxation, if held exclusively for cemetery or burial purposes,
and with no view to profit. A COMPANY OR ASSOCIATION OF THAT NATURE MAY
OWN LAND AT
MULTIPLE
LOCATIONS, AND AS MANY AS SIX HUNDRED FORTY ACRES OWNED AT
EACH LOCATION IN ACCORDANCE WITH THIS SECTION ARE ENTITLED TO
THE EXEMPTIONS SPECIFIED IN THIS SECTION.
Lands of cemetery associations not containing graves or not
containing graves that are in use as such on the date a written
notice, as provided in this section, is served upon the officers
of a cemetery, shall be subject to appropriation for highway or
street purposes if an appropriation commences within four years
of the serving of the notice. For such purposes said lands shall
be subject to the exercise of the right of eminent domain by the
municipal corporation in which such lands are located, by the
board of county commissioners of the county in which such lands
are located, or by the director of transportation under the same
conditions and in the same manner as any private property; and,
if any burial occurs within the area specifically designated in
the written notice, the appropriating agency shall have the same
powers with respect to such burial as are given to a board of
township trustees by section 517.21 of the Revised Code and shall
pay any costs resulting from the exercise of these powers. This
section shall not be construed as authorizing an appropriating
agency to exercise the powers specified by section 517.21 of the
Revised Code in any part of a cemetery other than the area
specifically designated in the written notice.
The appropriating agency shall serve upon the officers or
agents having control of a cemetery a written notice that a
specifically designated area of the cemetery may be needed for
highway purposes. No such notice may be served more than once.
Such appropriation proceedings shall be made in the manner
provided for in sections 163.01 to 163.22 of the Revised Code or,
if by the director of transportation, as otherwise provided by
law.
The board of trustees of such company or association,
whenever in its opinion any portion of such lands is unsuitable
for burial purposes, may sell and convey by deed in fee simple,
in such manner, and upon such terms, as are provided by
resolution of such board, any such portion of said lands, and
apply the proceeds thereof to the general purposes of the company
or association; but on such sale being made, the lands so sold
shall be returned by the board to the auditor of the proper
county and placed by him THAT AUDITOR upon the grand duplicate
for taxation.
Such company or association may also take, set aside, or
hold any personal property received by it from any source for
cemetery purposes; and if such company or association is
incorporated not for profit, all personal property, including the
income therefrom, owned or held by it, or for its use, for
cemetery purposes and with no view to profit, shall be exempt
from execution, from being appropriated for any public purpose,
and from taxation, and no tax shall be assessed upon any personal
property or the income therefrom expressly exempted under this
section.
THIS CHAPTER DOES NOT AUTHORIZE THE EXEMPTION OF REAL PROPERTY USED FOR A
FUNERAL HOME OR ANY OTHER ACTIVITY NOT PERMITTED TO BE CONDUCTED BY A CEMETERY
ASSOCIATION EXEMPT FROM TAXATION UNDER SECTION 501(c)(13) OF
THE "INTERNAL REVENUE CODE OF 1954," 26 U.S.C.A. 501,
OR ANY SUCCESSOR PROVISION.
All exemptions from taxation provided for in this section
shall be in addition to such other exemptions from taxation as a
company or association incorporated for cemetery purposes, or its
real or personal property, has under any other provisions of the
Revised Code.
Sec. 1721.06. After paying for its land, a cemetery company or association
shall apply all its receipts and income, whether from sale of lots, from
donations, or otherwise, exclusively to laying out, preserving, protecting,
and embellishing the cemetery and avenues within it or leading to it, to the
erection of buildings necessary OR APPROPRIATE for cemetery purposes,
and to paying the
necessary expenses of the cemetery company or association. No debts shall be
incurred by such THE CEMETERY company or association except for
purchasing, laying out,
inclosing, and embellishing the ground, buildings necessary OR
APPROPRIATE for cemetery
purposes, and avenues, for which purposes it may contract debts to be paid out
of future receipts. FOR PURPOSES OF THIS SECTION, BUILDINGS APPROPRIATE
FOR
CEMETERY PURPOSES INCLUDE, BUT ARE NOT LIMITED TO, BUILDINGS FOR
CREMATORY FACILITIES, FUNERAL HOMES, AND OTHER BUILDINGS
INTENDED TO PRODUCE INCOME FOR THE CEMETERY COMPANY OR
ASSOCIATION.
No part of the funds of a cemetery company or association, or of the proceeds
of land sold by it, shall ever be divided among its stockholders or lot
owners, and all its funds must SHALL be used exclusively for the
purposes of the company or association as specified in this section, or
invested in a fund the income of which shall be so used and appropriated.
Sec. 1721.21. (A) As used in this section:
(1) "Person" means any corporation, company, partnership,
individual, or other entity owning or operating a cemetery for
the disposition of human remains.
(2) "Cemetery" means any one or a combination of more than
one of the following:
(a) A burial ground for earth interments;
(b) A mausoleum for crypt entombments;
(c) A columbarium for the deposit of cremated remains;
(d) A SCATTERING GROUND FOR THE SPREADING OF CREMATED
REMAINS.
(3) "Interment" means the disposition of human remains by
earth burial, entombment, or inurnment.
(4) "Burial right" means the right of earth interment.
(5) "Entombment right" means the right of entombment in a
mausoleum.
(6) "Columbarium right" means the right of inurnment in a
columbarium for cremated remains.
(B) No person shall operate or continue to operate any
cemetery in Ohio unless an endowment care fund TRUST is
established and
maintained as required by this section.
(C) Any person desiring to operate any cemetery
that is organized or developed after July 1, 1970, before offering to
sell or selling any burial lot, burial right, entombment right,
or columbarium right in that cemetery, shall first
establish an
endowment care fund TRUST, segregated from other assets, and
place
in that fund a minimum of fifty thousand dollars in
cash or in bonds
of the United States, this state, or any county or municipal
corporation of this state.
Whenever any person described in this division has placed
another fifty thousand
dollars in the endowment care fund TRUST out of gross sales
proceeds,
in addition to the deposit required by this division,
that person, after
submitting proof of this fact to its trustee THE TRUSTEES OF THE
ENDOWMENT CARE TRUST, may withdraw BE PAID A DISTRIBUTION IN
the
sum of fifty thousand dollars from the endowment care fund
TRUST.
(D) Any person desiring to operate or to continue to
operate any cemetery after July 1, 1970, shall place into the
endowment care fund TRUST as required by this section not less
than ten
per cent of the gross sales proceeds received from the sale of
any burial lot, burial right, entombment right, or columbarium
right. This percentage shall be placed in the endowment care
fund TRUST no later than thirty days following the month in
which the
entire gross sales are received, except that in the event that a
cemetery receives installment payments from any purchaser of a
burial lot, burial right, entombment right, or columbarium right,
during any six-month period, which would require a deposit of one
thousand dollars or more under this section had the full purchase
price been paid, then the cemetery shall forthwith place the
amount required under this section in its limited real estate
broker's escrow fund. Upon receipt of the final installment
payment, the cemetery shall transfer the total amount required
under this section to the endowment care fund no later than
thirty days following the month in which the final payment is
received.
(E) The custodians TRUSTEES
of the endowment care fund TRUST shall
consist of at least three individuals who have been residents of
the county in which the cemetery is located for at least one
year, or a bank located in the state
TRUST COMPANY LICENSED UNDER CHAPTER 1111. of the Revised Code OR A NATIONAL BANK
OR FEDERAL SAVINGS ASSOCIATION THAT HAS SECURITIES PLEDGED IN ACCORDANCE WITH
SECTION 1111.04 of the Revised Code.
IF A PERSON OR
ENTITY OTHER THAN A FINANCIAL INSTITUTION IS DESIGNATED AS
TRUSTEE, THE PERSON OR ENTITY SHALL BE BONDED BY A CORPORATE
SURETY BOND IN AN AMOUNT NOT LESS THAN ONE HUNDRED PER CENT OF
THE FUNDS HELD BY THE TRUSTEE. THE TRUSTEE OR ITS AGENT SHALL,
ON A CONTINUOUS BASIS, KEEP EXACT RECORDS AS TO THE AMOUNT OF
FUNDS UNDER ANY JOINT ACCOUNT OR TRUST INSTRUMENT BEING HELD FOR
THE INDIVIDUAL BENEFICIARIES SHOWING THE AMOUNT PAID, THE AMOUNT
DEPOSITED AND INVESTED, AND ACCRUALS AND INCOME.
The funds of the endowment care trust shall be held and
invested in the manner in which trust funds are permitted to be
held and invested pursuant to sections 2109.37 and 2109.371 of
the Revised Code.
The income from the endowment care fund shall be used only
for the maintenance, supervision, improvement, and preservation
of the grounds, lots, buildings, equipment, statuary, and other
real and personal property of the cemetery.
Annual reports of all the assets and investments of the
endowment care fund shall be prepared and maintained and shall
be available for inspection at reasonable times by any owner of
interment rights in the cemetery.
(F) Any person offering to sell or selling any burial lot,
burial right, entombment right, or columbarium right shall give
to the purchaser of the lot or right, at the time of sale, a
written agreement that identifies and unconditionally
guarantees to the purchaser the specific location of the lot or the specific
location to which the right applies.
(G) No person shall open or close any grave,
crypt, or niche for the interment of human remains in a cemetery
without the permission of the cemetery association or other
entity having control and management of the cemetery.
(H) Except as provided in division (G) of
this section, this section does not apply to any cemetery
that is owned and operated entirely and exclusively by churches,
religious societies, established fraternal organizations,
municipal corporations, or other political subdivisions of the state or to a
national cemetery.
(I) THE DIVIDEND AND
INTEREST INCOME FROM THE ENDOWMENT CARE TRUST SHALL BE USED ONLY
FOR THE MAINTENANCE, SUPERVISION, IMPROVEMENT, AND PRESERVATION
OF THE GROUNDS, LOTS, BUILDINGS, EQUIPMENT, STATUARY, AND OTHER
REAL AND PERSONAL PROPERTY OF THE CEMETERY.
(J)(1) ANNUAL REPORTS
OF ALL THE ASSETS AND INVESTMENTS OF THE ENDOWMENT CARE TRUST
SHALL BE PREPARED AND MAINTAINED, AND SHALL BE AVAILABLE FOR
INSPECTION AT REASONABLE TIMES BY ANY OWNER OF INTERMENT RIGHTS
IN THE CEMETERY.
(2) EVERY CEMETERY REQUIRED TO ESTABLISH AND MAINTAIN
AN ENDOWMENT CARE TRUST SHALL FILE AN AFFIDAVIT ANNUALLY WITH THE
DIVISION OF REAL ESTATE OF THE DEPARTMENT OF COMMERCE,
IN A FORM PRESCRIBED BY THE DIVISION, CERTIFYING UNDER OATH EACH OF THE
FOLLOWING:
(a) THAT THE CEMETERY HAS DEPOSITED, AT
THE TIME SPECIFIED IN DIVISION
(D) OF THIS SECTION, THE
AMOUNTS REQUIRED BY THAT DIVISION IN THE CEMETERY'S ENDOWMENT
CARE TRUST;
(b) THAT ONLY DIVIDEND AND INTEREST
INCOME HAVE BEEN PAID FROM THE ENDOWMENT CARE TRUST, AND THE
CEMETERY USED THE AMOUNTS WITHDRAWN ONLY FOR THE PURPOSES
SPECIFIED IN DIVISION (I) OF
THIS SECTION;
(c) THAT ALL PRINCIPAL AND
CAPITAL GAINS HAVE REMAINED IN THE ENDOWMENT CARE TRUST;
(d) THAT THE ENDOWMENT CARE TRUST HAS
NOT BEEN USED TO COLLATERALIZE OR GUARANTEE LOANS AND HAS NOT
OTHERWISE BEEN SUBJECTED TO ANY CONSENSUAL LIEN;
(e) THAT THE ENDOWMENT CARE TRUST IS
INVESTED IN COMPLIANCE WITH THE INVESTING STANDARDS SET FORTH IN
SECTIONS 2109.37 AND 2109.371 OF THE
REVISED CODE.
Sec. 1721.211. (A) As used in this section, "preneed
burial vault
CEMETERY MERCHANDISE AND SERVICES contract" means a
written agreement, contract, or
series of contracts to sell or otherwise provide a AN OUTER
burial vault CONTAINER,
MONUMENT, MARKER, URN, OTHER TYPE OF MERCHANDISE CUSTOMARILY SOLD BY
CEMETERIES,
OR
OPENING AND CLOSING SERVICES
to be used OR PROVIDED in connection with the final disposition of a
dead
human body, where payment for the vault CONTAINER, MONUMENT,
MARKER, URN,
OTHER TYPE OF MERCHANDISE CUSTOMARILY SOLD BY CEMETERIES, OR OPENING AND
CLOSING SERVICES is
made either
outright
or on an installment basis, prior to the death of the person so
purchasing it or for whom it is SO purchased. "Preneed
burial vault CEMETERY MERCHANDISE AND SERVICES
contract" does not include any preneed funeral contract, OR any
agreement, contract, or series of contracts pertaining to the
sale of any burial lot, burial or interment right, entombment
right, or columbarium right with respect to which an endowment
care fund is established or is exempt from establishment pursuant
to section 1721.21 of the Revised Code, or any agreement,
contract, or series of contracts pertaining to the sale of
cemetery interment rights made by a person licensed as a limited
real estate broker or limited real estate salesman pursuant to
section 4735.091 of the Revised Code.
As used in this section, "financial
institution" means a
bank in this state insured by the federal deposit insurance
corporation, or a savings and loan association in this state
insured by the federal deposit insurance corporation,
or a credit union authorized to
do business in this state.
(B) Subject to the limitations and restrictions contained
in Chapters 1101. to 1127. of the Revised Code, a
financial
institution has TRUST COMPANY LICENSED UNDER CHAPTER 1111.
of the Revised Code OR A NATIONAL BANK OR FEDERAL SAVINGS ASSOCIATION THAT PLEDGES SECURITIES
IN ACCORDANCE WITH SECTION 1111.04 of the Revised Code OR THE INDIVIDUALS DESCRIBED IN
DIVISION
(C)(2) OF THIS SECTION HAVE the power AS TRUSTEE to
receive and TO hold on deposit AND INVEST IN ACCORDANCE WITH
SECTIONS 2109.37 AND 2109.371 of the Revised Code moneys
under a preneed burial vault CEMETERY MERCHANDISE AND SERVICES
contract.
(C) Sixty per cent of all payments for burial vaults made
under a preneed burial vault (1) THE GREATER OF ONE HUNDRED
TEN PER CENT OF
THE SELLER'S ACTUAL COST OR THIRTY PER CENT OF THE SELLER'S RETAIL PRICE OF
THE MERCHANDISE AND SEVENTY PER CENT OF THE SELLER'S RETAIL PRICE
OF THE SERVICES TO BE PROVIDED UNDER A PRENEED CEMETERY
MERCHANDISE AND SERVICES
contract shall remain intact as a
fund until the death of the person for whose benefit the
agreement CONTRACT is made or the burial vaults are
MERCHANDISE IS
delivered as set forth
in division (K) of this section. However, any deposit made MONEYS
HELD
pursuant to this section shall be released upon demand of the
person for whose benefit such deposit THE CONTRACT was made or
upon the demand
of the seller for its share of the deposited funds MONEYS HELD
and earned
interest if the contract has been canceled as set forth in
division (G) of this section.
(2) THE TRUSTEE OF THE FUND DESCRIBED IN DIVISION
(C)(1) OF THIS SECTION SHALL BE A TRUST COMPANY LICENSED UNDER
CHAPTER 1111. of the Revised Code OR A NATIONAL BANK OR FEDERAL SAVINGS ASSOCIATION
THAT PLEDGES SECURITIES IN ACCORDANCE WITH SECTION 1111.04 of the Revised Code OR AT LEAST
THREE INDIVIDUALS WHO HAVE BEEN RESIDENTS OF THE COUNTY IN WHICH THE SELLER IS
LOCATED FOR AT LEAST ONE YEAR,
EACH OF WHOM SHALL BE BONDED
BY A CORPORATE SURETY IN AN AMOUNT THAT IS AT LEAST EQUAL TO THE AMOUNT
DEPOSITED IN THE FUND OF WHICH THOSE
PERSONS SERVE AS TRUSTEE.
AMOUNTS IN THE FUND SHALL BE HELD AND INVESTED
IN THE MANNER IN WHICH TRUST FUNDS ARE PERMITTED TO BE HELD AND INVESTED
PURSUANT TO SECTIONS 2109.37 AND 2109.371
of the Revised Code.
(D) Within thirty days of AFTER the last
business day of the
month in which the seller of burial vaults CEMETERY MERCHANDISE OR
SERVICES receives final
contractual payment under a preneed burial vault CEMETERY
MERCHANDISE AND SERVICES contract, the
seller shall deposit the funds in a financial institution
DELIVER THE GREATER OF ONE HUNDRED TEN PER CENT OF THE SELLER'S ACTUAL COST
OR THIRTY PER CENT OF THE SELLER'S RETAIL PRICE OF
THE MERCHANDISE AND SEVENTY PER CENT OF THE SELLER'S CURRENT
RETAIL PRICE OF THE SERVICES AS OF THE TIME THE FINAL
CONTRACTUAL PAYMENT IS RECEIVED
TO A TRUSTEE OR TO TRUSTEES AS DESCRIBED IN DIVISION
(C)(2) OF THIS SECTION, and
the funds MONEYS
and accruals or income thereon ON THE MONEYS shall be held in
an
account A FUND AND DESIGNATED for the person for whose benefit the
fund was
established
as a preneed burial vault CEMETERY MERCHANDISE AND SERVICES
contract account FUND.
(E) The funds to be deposited MONEYS RECEIVED from more than
one
preneed
burial vault CEMETERY MERCHANDISE AND SERVICES contract may, at
the option of the persons for whose
benefit the deposits CONTRACTS are made, be placed in a common
or pooled
trust fund in this state under a single trust instrument or in a
joint account provided that if the funds are placed
in a
common
or pooled trust fund, a financial institution, if designated as
trustee, shall have previously qualified for and received trust
powers from the comptroller of the currency or the superintendent
of financial institutions if the trustee is a bank, or
from the federal home loan
bank board or the superintendent of financial
institutions if the
trustee is a savings and loan association. If a person or
entity other than a financial institution is THREE INDIVIDUALS ARE
designated as
trustee THE TRUSTEES AS PROVIDED IN DIVISION (C)(2) OF THIS
SECTION, the person or entity THEY shall be bonded by a
corporate
surety bond in an amount not less than one hundred per cent of
the funds held by the trustee THEM AS TRUSTEES. The trustee or
its agent shall,
on a continuous basis, keep exact records as to the amount of
funds under any joint account or A SINGLE trust instrument being
held for
the individual beneficiaries showing the amount paid, the amount
deposited and invested, and accruals and income.
(F) The seller or provider of burial vaults MERCHANDISE OR
SERVICES under a
preneed burial vault CEMETERY MERCHANDISE AND SERVICES contract
shall annually submit to the Ohio
real estate commission such reports as the commission requires
DIVISION OF REAL ESTATE OF THE DEPARTMENT OF COMMERCE AN
AFFIDAVIT IN A FORM PRESCRIBED BY THE DIVISION, SWORN UNDER
OATH, SPECIFYING EACH OF THE FOLLOWING:
(1) THAT WITHIN THE TIME SPECIFIED IN
DIVISION (D) OF THIS SECTION,
THE AMOUNTS REQUIRED BY THAT DIVISION WERE DEPOSITED IN AN
APPROPRIATE FUND;
(2) THAT THE FUND HAS NOT BEEN USED TO COLLATERALIZE
OR GUARANTEE LOANS AND HAS NOT OTHERWISE BEEN SUBJECTED TO ANY
CONSENSUAL LIEN;
(3) THAT THE FUND IS INVESTED IN COMPLIANCE WITH THE
INVESTING STANDARDS SET FORTH IN SECTIONS 2109.37 AND 2109.371
OF THE REVISED CODE;
(4) THAT NO MONEYS HAVE BEEN REMOVED FROM THE FUND,
EXCEPT AS PROVIDED FOR IN THIS SECTION.
(G) Any THIS DIVISION IS SUBJECT TO DIVISION (I) OF THIS
SECTION.
ANY person upon initially entering into a preneed
burial vault CEMETERY MERCHANDISE AND SERVICES contract may,
within seven days, cancel the contract
and request and receive from the seller one hundred per cent of
all payments made under the contract. After the expiration of
the above period, any person who has entered into a preneed
burial vault CEMETERY MERCHANDISE AND SERVICES contract may, on
not less than fifteen days' notice,
cancel the contract and request and receive from the seller sixty
per cent of the payments made under the contract which have been
deposited in a fund pursuant to divisions (C) and (D) of this
section PAID up to the time of cancellation; except that, if
a
preneed
burial vault CEMETERY MERCHANDISE AND SERVICES contract
stipulates a firm or fixed or guaranteed
price for the burial vault MERCHANDISE OR SERVICES for future
use at a time determined by
the death of the person on behalf of whom payments are made, the
person who has entered into the contract may, if the burial vault
MERCHANDISE
has not been delivered OR THE SERVICES HAVE NOT BEEN PERFORMED as set
forth in division (K) OR (L) of this
section, on not less than fifteen days' notice, cancel the
contract and receive from the seller sixty per cent of the
principal paid pursuant to division (C) of this section THE
CONTRACT and not
less than eighty per cent of any interest paid, up to the time of
cancellation, and not less than eighty per cent of any accrual or
income earned while the funds MONEYS have remained on
deposit BEEN HELD pursuant
to divisions (C) and (D) of this section, up to the time of
cancellation. Upon cancellation, after the funds MONEYS have
been
distributed to the beneficiary pursuant to this division, all
funds remaining on deposit MONEYS BEING HELD pursuant to
divisions (C) and (D) of
this section shall be paid to the seller. If more than one
person enters into the contract, all of those persons must
request cancellation for it to be effective under this division.
In such a case, the seller shall refund to each person only those
funds MONEYS that each person has paid under the contract.
(H) Upon receipt of a certified copy of the certificate of
death or evidence of delivery of the burial vaults MERCHANDISE OR
PERFORMANCE OF THE SERVICES pursuant to
division (K) OR (L) of this section, the financial
institution TRUSTEE DESCRIBED IN DIVISION (C)(2) OF THIS
SECTION or its
agent, shall forthwith pay the funds FUND and accumulated
interest, if
any, to the person entitled thereto TO THEM under the preneed
burial vault CEMETERY MERCHANDISE AND SERVICES contract. The
payment of such funds THE FUND and accumulated
interest pursuant to this section, either to a provider SELLER
or person
making the payments, shall relieve the financial institution
TRUSTEE of
any further liability on such funds THE FUND or accumulated
interest.
(I) No preneed burial vault contract shall restrict any
contract buyer from making his contract irrevocable
NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, ANY
PRENEED CEMETERY MERCHANDISE AND SERVICES CONTRACT MAY SPECIFY
THAT IT IS IRREVOCABLE.
ALL IRREVOCABLE PRENEED CEMETERY MERCHANDISE AND SERVICES CONTRACTS SHALL
INCLUDE A CLEAR AND CONSPICUOUS DISCLOSURE OF IRREVOCABILITY IN THE CONTRACT
AND ANY PERSON ENTERING INTO AN IRREVOCABLE PRENEED CEMETERY MERCHANDISE AND
SERVICES CONTRACT SHALL SIGN A SEPARATE ACKNOWLEDGMENT OF THE PERSON'S WAIVER
OF THE RIGHT TO REVOKE. IF A CONTRACT SATISFIES THE REQUIREMENTS OF THIS
DIVISION, DIVISION
(G) OF THIS SECTION DOES NOT
APPLY TO THAT CONTRACT.
(J) Any preneed burial vault CEMETERY MERCHANDISE AND SERVICES
contract that involves the
payment of money must SHALL be in writing and in compliance with
the
laws and rules of this state.
(K) For purposes of this section, the seller is deemed
CONSIDERED to
have delivered burial vaults MERCHANDISE pursuant to a preneed
burial vault CEMETERY MERCHANDISE AND SERVICES
contract when EITHER OF THE FOLLOWING OCCUR:
(1) The seller makes actual delivery of the vault MERCHANDISE
to the
beneficiary OR THE SELLER PAYS FOR THE MERCHANDISE AND IDENTIFIES
IT AS BEING STORED FOR THE BENEFIT OF THE BENEFICIARY AT A MANUFACTURER'S
WAREHOUSE; or
(2)(a) The seller receives delivery of the vault
MERCHANDISE on
behalf
of the beneficiary; and ALL OF THE FOLLOWING OCCUR:
(b)(a) The vault MERCHANDISE is permanently
affixed to or stored
upon the
real property of a cemetery located in this state; and.
(c)(b) The seller notifies the beneficiary of receipt of the
vault MERCHANDISE and identifies the specific location of the
vault MERCHANDISE; and.
(d)(c) The seller at the time of the beneficiary's final
payment, provides the beneficiary with evidence of ownership in
the beneficiary's name showing the burial vaults MERCHANDISE to
be free and
clear of any liens or other encumbrances.
(L) FOR PURPOSES OF THIS SECTION, A SELLER IS CONSIDERED TO
HAVE PERFORMED SERVICES PURSUANT TO A PRENEED CEMETERY
MERCHANDISE AND SERVICES CONTRACT WHEN THE BENEFICIARY'S NEXT OF
KIN SIGNS A WRITTEN STATEMENT THAT THE SERVICES HAVE BEEN
PERFORMED OR, IF NO NEXT OF KIN OF THE BENEFICIARY CAN BE LOCATED THROUGH
REASONABLE DILIGENCE, WHEN THE OWNER OR OTHER PERSON RESPONSIBLE FOR THE
OPERATION OF THE CEMETERY SIGNS A STATEMENT OF THAT NATURE.
(M) Notwithstanding any other provision of this chapter,
any trust may be charged a trustee's fee, which is to be deducted
from the earned income or accruals on that trust. The fee shall
not exceed the amount which THAT is regularly or usually charged
for
similar services rendered by the financial institution TRUSTEE
DESCRIBED IN DIVISION (C)(2) OF THIS SECTION when
serving as a trustee.
(M)(N) The general assembly intends that this section be
construed as a limitation upon the manner in which a person is
permitted to accept funds MONEYS in prepayment for burial
vaults
MERCHANDISE AND SERVICES to be
delivered OR PROVIDED in the future, or burial vaults
MERCHANDISE AND SERVICES to be used OR PROVIDED in
connection with the final disposition of human remains, to the
end that at all times members of the public may have an
opportunity to arrange and pay for burial vaults MERCHANDISE AND
SERVICES for themselves
and their families in advance of need while at the same time
providing all possible safeguards whereunder the prepaid funds
MONEYS
cannot be dissipated, whether intentionally or not, so as to be
available for the payment of burial vaults FOR MERCHANDISE AND
SERVICES and the providing of
burial vaults MERCHANDISE AND SERVICES used OR PROVIDED
in connection with the final disposition of
dead human bodies.
(N)(O) This section does not apply when the seller or
provider of burial vaults MERCHANDISE OR SERVICES under a
preneed burial vault CEMETERY MERCHANDISE AND SERVICES contract
is an established and legally cognizable church or denomination
that is exempt from federal income taxation under section
501(c)(3) of the "Internal Revenue Code of 1954," 26 U.S.C.A.
501, and the preneed burial vault CEMETERY MERCHANDISE AND
SERVICES contract pertains to a cemetery
which THAT is owned and operated entirely and exclusively by the
church or denomination; provided that the church or denomination
adopts, on a voluntary basis, rules and other measures to
safeguard and secure all funds MONEYS received under a preneed
burial
vault CEMETERY MERCHANDISE AND SERVICES contract.
(P) THIS SECTION DOES NOT PROHIBIT PERSONS OTHER THAN CEMETERY
CORPORATIONS OR ASSOCIATIONS FROM SELLING OUTER BURIAL CONTAINERS, MONUMENTS,
MARKERS, URNS, OR OTHER
TYPES OF MERCHANDISE CUSTOMARILY SOLD BY CEMETERIES PURSUANT TO A
PRENEED CEMETERY MERCHANDISE AND SERVICES CONTRACT; HOWEVER ALL
SELLERS OF MERCHANDISE PURSUANT TO A PRENEED CEMETERY MERCHANDISE
AND SERVICES CONTRACT SHALL COMPLY WITH THIS SECTION UNLESS THE
SELLER IS SPECIFICALLY EXEMPT FROM THIS SECTION.
(Q) ANY CONTRACT FOR PRENEED SERVICES OR MERCHANDISE ENTERED INTO
WITH A CEMETERY NOT REGISTERED UNDER SECTION 4767.03 of the Revised Code IS VOIDABLE.
Sec. 1733.51. A credit union may, subject to sections
1111.19 and 1721.211 of
the Revised Code, receive and hold on deposit moneys under a preneed funeral
contract or preneed burial CEMETERY MERCHANDISE AND SERVICES
contract.
Sec. 2117.25. Every executor or administrator shall
proceed with diligence to pay the debts of the decedent, and
shall apply the assets in the following order:
(A) Costs and expenses of administration;
(B) Except as provided in section 2117.251 of the Revised
Code, an AN amount, not exceeding two thousand dollars, for funeral
and burial expenses that are included in the bill of a funeral
director, and funeral expenses other than those in the bill of a
funeral director that are approved by the probate court;,AND
AN AMOUNT, NOT EXCEEDING TWO
THOUSAND DOLLARS, FOR BURIAL AND CEMETERY EXPENSES,
INCLUDING THAT PORTION OF THE FUNERAL DIRECTOR'S BILL ALLOCATED TO
CEMETERY EXPENSES THAT HAVE BEEN PAID TO THE CEMETERY BY THE
FUNERAL DIRECTOR.
FOR PURPOSES OF THIS DIVISION, BURIAL AND CEMETERY
EXPENSES SHALL BE LIMITED TO THE FOLLOWING:
(1) THE PURCHASE OF A PLACE OF INTERMENT;
(2) MONUMENTS OR OTHER MARKERS;
(3) THE OUTER BURIAL CONTAINER;
(4) THE COST OF OPENING AND CLOSING THE PLACE OF
INTERMENT;
(5) THE URN.
(C) The allowance for support made to the surviving
spouse, minor children, or both under section 2106.13 of the
Revised Code;
(D) Debts entitled to a preference under the laws of the
United States;
(E) Expenses of the last sickness of the decedent;
(F) Except as provided in section 2117.251 of the Revised
Code, if IF the total bill of a funeral director for funeral and
burial expenses exceeds two thousand dollars, then, in addition
to the amount described in division (B) of this section, an
amount, not exceeding one thousand dollars, for funeral and
burial expenses that are included in the bill and that exceed two
thousand dollars;
(G) Personal property taxes and obligations for which the
decedent was personally liable to the state or any of its
subdivisions;
(H) Debts for manual labor performed for the decedent
within twelve months preceding the decedent's death, not
exceeding three hundred dollars to any one person;
(I) Except as provided in section 2117.251 of the Revised
Code, other OTHER debts for which claims have been presented and
finally allowed.
The part of the bill of a funeral director that
exceeds the total of three thousand dollars as described in
divisions (B) and (F) of this section, and the part of a claim
included in division (H) of this section that exceeds three
hundred dollars shall be included as a debt under division (I) or
(J) of this section, depending upon the time when the claim for
the additional amount is presented.
Chapters 2113. to 2125. of the Revised Code, relating to
the manner in which and the time within which claims shall be
presented, shall apply to claims set forth in divisions (B), (F),
and (H) of this section. Claims for an expense of administration
or for the allowance for support need not be presented. The
executor or administrator shall pay debts included in divisions
(D) and (G) of this section, of which he THE EXECUTOR OR
ADMINISTRATOR has knowledge, regardless of presentation.
The giving of written notice to an executor or
administrator of a motion or application to revive an action
pending against the decedent at the date of death shall be
equivalent to the presentation of a claim to the executor or
administrator for the purpose of determining the order of payment
of any judgment rendered or decree entered in such an action.
No payments shall be made to creditors of one class until
all those of the preceding class are fully paid or provided for.
If the assets are insufficient to pay all the claims of one
class, the creditors of that class shall be paid ratably.
If it appears at any time that the assets have been
exhausted in paying prior or preferred charges, allowances, or
claims, such payments shall be a bar to an action on any claim
not entitled to such priority or preference.
Sec. 2925.01. As used in this chapter:
(A) "Administer," "controlled substance," "dispense,"
"distribute," "hypodermic,"
"manufacturer," "official written order," "person,"
"pharmacist," "pharmacy," "sale,"
"schedule I," "schedule II," "schedule III," "schedule IV,"
"schedule V," and "wholesaler" have the same meanings as in
section 3719.01 of the Revised Code.
(B) "Drug dependent person" and "drug of abuse" have the
same meanings as in section 3719.011 of the Revised Code.
(C) "Drug," "dangerous drug," "licensed health professional authorized to
prescribe
drugs," and "prescription" have the same meanings as in section
4729.01 of the Revised Code.
(D) "Bulk amount" of a controlled substance means any of
the following:
(1) For any compound, mixture, preparation, or substance
included in schedule I, schedule II, or schedule III,
with the exception of marihuana, cocaine, L.S.D., heroin, and hashish and
except as provided in division (D)(2) or (5) of this
section, whichever of the following is applicable:
(a) An amount equal to or exceeding ten grams or
twenty-five unit doses of a compound, mixture, preparation, or
substance that is or contains any amount of a schedule I opiate
or opium derivative;
(b) An amount equal to or exceeding ten grams
of a
compound, mixture, preparation, or substance that is or contains
any amount of raw or gum opium;
(c) An amount equal to or exceeding thirty
grams or ten
unit doses of a compound, mixture, preparation, or substance that
is or contains any amount of a schedule I hallucinogen other than
tetrahydrocannabinol or
lysergic acid
amide, or a schedule I stimulant or
depressant;
(d) An amount equal to or exceeding twenty
grams or five
times the maximum daily dose in the usual dose range specified in
a standard pharmaceutical reference manual of a compound,
mixture, preparation, or substance that is or contains any amount
of a schedule II opiate or opium derivative;
(e) An amount equal to or exceeding five grams or ten unit
doses of a compound, mixture, preparation, or substance that is
or contains any amount of phencyclidine;
(f) An amount equal to or exceeding one hundred twenty
grams or thirty times the maximum daily dose in the usual dose
range specified in a standard pharmaceutical reference manual of
a compound, mixture, preparation, or substance that is or
contains any amount of a schedule II stimulant that is in a final
dosage form manufactured by a person authorized by the "Federal
Food, Drug, and Cosmetic Act," 52 Stat. 1040 (1938), 21
U.S.C.A. 301, as amended, and the federal drug abuse control
laws, as defined in section 3719.01 of the Revised Code, that is or contains
any amount of a schedule II depressant
substance or a schedule II hallucinogenic substance;
(g) An amount equal to or exceeding three
grams of a
compound, mixture, preparation, or substance that is or contains
any amount of a schedule II stimulant, or any of its salts or
isomers, that is not in a final dosage form manufactured by a
person authorized by the Federal Food, Drug, and Cosmetic Act and
the federal drug abuse control laws.
(2) An amount equal to or exceeding one
hundred twenty
grams or thirty times the maximum daily dose in the usual dose
range specified
in a standard pharmaceutical reference manual of a compound,
mixture,
preparation, or substance that is or contains any amount of a
schedule
III or IV substance other than an anabolic
steroid or a schedule III opiate or opium derivative;
(3) An amount equal to or exceeding twenty grams or five times the maximum
daily dose in the usual dose range specified in a standard pharmaceutical
reference manual of a compound, mixture,
preparation, or substance that is
or contains any amount of a schedule III opiate or opium derivative;
(4) An amount equal to or exceeding two hundred fifty
milliliters or two hundred fifty grams of a compound, mixture,
preparation, or substance that is or contains any amount of a
schedule V substance;
(5) An amount equal to or exceeding two
hundred solid
dosage units, sixteen grams, or sixteen milliliters of a
compound, mixture, preparation, or substance that is or contains
any amount of a schedule III anabolic steroid.
(E) "Unit dose" means an amount or unit of a compound,
mixture, or preparation containing a controlled substance that is
separately identifiable and in a form that
indicates that it is the amount or unit by which
the controlled substance is separately administered to or taken by an
individual.
(F) "Cultivate" includes planting, watering, fertilizing,
or tilling.
(G) "Drug abuse offense" means any of the following:
(1) A violation of division (A) of section 2913.02 that
constitutes theft of drugs, or a violation of section 2925.02,
2925.03, 2925.04, 2925.05, 2925.06, 2925.11, 2925.12, 2925.13,
2925.22, 2925.23, 2925.31,
2925.32, 2925.36, or 2925.37 of the Revised Code;
(2) A violation of an existing or former law of this or
any other state or of the United States that is substantially
equivalent to any section listed in division (G)(1) of this
section;
(3) An offense under an existing or former law of this or
any other state, or of the United States, of which planting,
cultivating, harvesting, processing, making, manufacturing,
producing, shipping, transporting, delivering, acquiring,
possessing, storing, distributing, dispensing, selling, inducing
another to use, administering to another, using, or otherwise
dealing with a controlled substance is an element;
(4) A conspiracy to commit, attempt to commit, or complicity in
committing or attempting to commit any offense under division
(G)(1), (2), or (3) of this section.
(H) "Felony drug abuse offense" means any drug abuse
offense that would constitute a felony under the laws of this
state, any other state, or the United States.
(I) "Harmful intoxicant" does not include beer or
intoxicating liquor but means any compound, mixture,
preparation, or substance the gas, fumes, or vapor of which when
inhaled can induce intoxication, excitement, giddiness,
irrational behavior, depression, stupefaction, paralysis,
unconsciousness, asphyxiation, or other harmful physiological
effects, and includes, but is not limited to, any of the
following:
(1) Any volatile organic solvent, plastic cement, model
cement, fingernail polish remover, lacquer thinner, cleaning
fluid, gasoline, or other preparation containing a volatile
organic solvent;
(2) Any aerosol propellant;
(3) Any fluorocarbon refrigerant;
(4) Any anesthetic gas.
(J) "Manufacture" means to plant, cultivate, harvest,
process, make, prepare, or otherwise engage in any part of the
production of a drug, by propagation, extraction, chemical
synthesis, or compounding, or any combination of the same, and
includes packaging, repackaging, labeling, and other activities
incident to production.
(K) "Possess" or "possession" means having control over a
thing or substance, but may not be inferred solely from mere
access to the thing or substance through ownership or occupation
of the premises upon which the thing or substance is found.
(L) "Sample drug" means a drug or pharmaceutical
preparation that would be hazardous to health or safety if used
without the supervision of a licensed health
professional authorized to prescribe drugs, or a drug of abuse,
and that, at one time, had been placed in a container plainly
marked as a sample by a manufacturer.
(M) "Standard pharmaceutical reference manual" means the
current edition, with cumulative changes if any, of any of the
following reference works:
(1) "The National Formulary";
(2) "The United States Pharmacopeia," prepared by
authority of the United States Pharmacopeial Convention, Inc.;
(3) Other standard references that are approved by the
state board of pharmacy.
(N) "Juvenile" means a person under eighteen years of age.
(O) "Counterfeit controlled substance" means any of the
following:
(1) Any drug that bears, or whose container or label
bears, a trademark, trade name, or other identifying mark used
without authorization of the owner of rights to that trademark,
trade name, or identifying mark;
(2) Any unmarked or unlabeled substance that is
represented to be a controlled substance manufactured, processed,
packed, or distributed by a person other than the person that
manufactured, processed, packed, or distributed it;
(3) Any substance that is represented to be a controlled
substance but is not a controlled substance or is a different
controlled substance;
(4) Any substance other than a controlled substance that a
reasonable person would believe to be a controlled substance
because of its similarity in shape, size, and color, or its
markings, labeling, packaging, distribution, or the price for
which it is sold or offered for sale.
(P) An offense is "committed in the vicinity of a school" if the
offender commits the offense on school premises, in a school building, or
within one thousand feet of the boundaries of any school premises.
(Q) "School" means any school operated by a board of
education or any school for which the state board of education
prescribes minimum standards under section 3301.07 of the Revised
Code, whether or not any instruction, extracurricular activities,
or training provided by the school is being conducted at the time
a criminal offense is committed.
(R) "School premises" means either of the following:
(1) The parcel of real property on which any school is
situated, whether or not any instruction, extracurricular
activities, or training provided by the school is being conducted
on the premises at the time a criminal offense is committed;
(2) Any other parcel of real property that is owned or
leased by a board of education of a school or the governing body
of a school for which the state board of education prescribes
minimum standards under section 3301.07 of the Revised Code and
on which some of the instruction, extracurricular activities, or
training of the school is conducted, whether or not any
instruction, extracurricular activities, or training provided by
the school is being conducted on the parcel of real property at
the time a criminal offense is committed.
(S) "School building" means any building in which any of
the instruction, extracurricular activities, or training provided
by a school is conducted, whether or not any instruction,
extracurricular activities, or training provided by the school is
being conducted in the school building at the time a criminal
offense is committed.
(T) "Disciplinary counsel" means the disciplinary counsel
appointed by the board of commissioners on grievances and
discipline of the supreme court under the Rules for the
Government of the Bar of Ohio.
(U) "Certified grievance committee" means a duly
constituted and organized committee of the Ohio state bar
association or of one or more local bar associations of the state
of Ohio that complies with the criteria set forth in Rule V,
section 6 of the Rules for the Government of the Bar of Ohio.
(V) "Professional license" means any license, permit,
certificate, registration, qualification, admission, temporary
license, temporary permit, temporary certificate, or temporary
registration that is described in divisions (W)(1) to (35) of
this section and that qualifies a person as a professionally
licensed person.
(W) "Professionally licensed person" means any of the
following:
(1) A person who has obtained a license as a manufacturer
of controlled substances or a wholesaler of controlled substances
under Chapter 3719. of the Revised Code;
(2) A person who has received a certificate or temporary
certificate as a certified public accountant or who has
registered as a public accountant under Chapter 4701. of the
Revised Code and who holds an Ohio permit issued under that
chapter;
(3) A person who holds a certificate of qualification to
practice architecture issued or renewed and registered under
Chapter 4703. of the Revised Code;
(4) A person who is registered as a landscape architect
under Chapter 4703. of the Revised Code or who holds a permit as
a landscape architect issued under that chapter;
(5) A person licensed as an auctioneer or apprentice
auctioneer or licensed to operate an auction company under
Chapter 4707. of the Revised Code;
(6) A person who has been issued a certificate of
registration as a registered barber under Chapter 4709. of the
Revised Code;
(7) A person licensed and regulated to engage in the
business of a debt pooling company by a legislative authority,
under authority of Chapter 4710. of the Revised Code;
(8) A person who has been issued a cosmetologist's
license, manicurist's license, esthetician's license, managing
cosmetologist's license, managing manicurist's license, managing
esthetician's license, cosmetology instructor's license,
manicurist instructor's license, esthetician instructor's
license, or tanning facility permit under Chapter 4713. of the
Revised Code;
(9) A person who has been issued a license to practice
dentistry, a general anesthesia permit, a conscious intravenous
sedation permit, a limited resident's license, a limited teaching
license, a dental hygienist's license, or a dental hygienist's
teacher's certificate under Chapter 4715. of the Revised Code;
(10) A person who has been issued an embalmer's license, a
funeral director's license, a funeral home license, or a crematory license, or
who has been registered for an embalmer's or funeral director's apprenticeship
under Chapter 4717. of the Revised Code;
(11) A person who has been licensed as a registered nurse
or practical nurse, or who has been issued a certificate for the
practice of nurse-midwifery under Chapter 4723. of the Revised
Code;
(12) A person who has been licensed to practice optometry
or to engage in optical dispensing under Chapter 4725. of the
Revised Code;
(13) A person licensed to act as a pawnbroker under
Chapter 4727. of the Revised Code;
(14) A person licensed to act as a precious metals dealer
under Chapter 4728. of the Revised Code;
(15) A person licensed as a pharmacist, a pharmacy
intern, a wholesale distributor of dangerous drugs, or a terminal
distributor of dangerous drugs under Chapter 4729. of the Revised
Code;
(16) A person who is authorized to practice as a physician assistant under
Chapter 4730. of the Revised Code;
(17) A person who has been issued a certificate to
practice medicine and surgery, osteopathic medicine and surgery,
a limited branch of medicine, or podiatry under
Chapter 4731. of the Revised Code;
(18) A person licensed as a psychologist or school
psychologist under Chapter 4732. of the Revised Code;
(19) A person registered to practice the profession of
engineering or surveying under Chapter 4733. of the Revised Code;
(20) A person who has been issued a license to
practice chiropractic under Chapter 4734. of the Revised Code;
(21) A person licensed to act as a real estate broker, OR
real estate salesperson, limited real estate broker, or limited real
estate salesperson under Chapter 4735. of the Revised Code;
(22) A person registered as a registered sanitarian under
Chapter 4736. of the Revised Code;
(23) A person licensed to operate or maintain a junkyard
under Chapter 4737. of the Revised Code;
(24) A person who has been issued a motor vehicle salvage
dealer's license under Chapter 4738. of the Revised Code;
(25) A person who has been licensed to act as a steam
engineer under Chapter 4739. of the Revised Code;
(26) A person who has been issued a license or temporary
permit to practice veterinary medicine or any of its branches, or
who is registered as a graduate animal technician under Chapter
4741. of the Revised Code;
(27) A person who has been issued a hearing aid dealer's
or fitter's license or trainee permit under Chapter 4747. of the
Revised Code;
(28) A person who has been issued a class A, class B, or
class C license or who has been registered as an investigator or
security guard employee under Chapter 4749. of the Revised Code;
(29) A person licensed and registered to practice as a
nursing home administrator under Chapter 4751. of the Revised
Code;
(30) A person licensed to practice as a speech-language
pathologist
or audiologist under Chapter 4753. of the Revised Code;
(31) A person issued a license as an occupational
therapist or physical therapist under Chapter 4755. of the
Revised Code;
(32) A person who is licensed as a professional clinical counselor or
professional counselor, licensed as a social worker or independent social
worker, or registered as a social work
assistant under Chapter 4757. of the Revised Code;
(33) A person issued a license to practice dietetics under
Chapter 4759. of the Revised Code;
(34) A person who has been issued a license or
limited permit to practice respiratory therapy under Chapter 4761. of
the
Revised Code;
(35) A person who has been issued a real estate appraiser
certificate under Chapter 4763. of the Revised Code.
(X) "Cocaine" means any of the following:
(1) A cocaine salt, isomer, or derivative, a salt of a
cocaine isomer or derivative, or the base form of cocaine;
(2) Coca leaves or a salt, compound, derivative, or
preparation of coca leaves, including ecgonine, a salt, isomer,
or derivative of ecgonine, or a salt of an isomer or derivative
of ecgonine;
(3) A salt, compound, derivative, or preparation of a
substance identified in division
(X)(1) or (2) of this section
that is chemically equivalent to or identical with any of those
substances, except that the substances shall not include
decocainized coca leaves or extraction of coca leaves if the
extractions do not contain cocaine or ecgonine.
(Y) "L.S.D." means
lysergic acid diethylamide.
(Z) "Hashish" means the resin or a preparation of the resin
contained in marihuana, whether in solid form or in a liquid concentrate,
liquid extract, or liquid distillate form.
(AA) "Marihuana" has the same meaning as in section
3719.01 of the Revised Code,
except that it does not include hashish.
(BB) An offense is "committed in the vicinity of a
juvenile" if
the offender commits the offense within one hundred feet of a juvenile or
within the view of a juvenile, regardless of whether the
offender knows the age of the juvenile, whether the offender knows the offense
is being committed within one hundred feet of or within view of the juvenile,
or whether the juvenile actually views the commission of the offense.
(CC) "Presumption for a prison term" or "presumption that a
prison term shall be imposed" means a presumption, as described in division
(D) of section 2929.13 of the Revised Code, that a prison term is a necessary
sanction for a felony in order to comply with the purposes and principles of
sentencing under section 2929.11 of the Revised Code.
(DD) "Major drug offender" has the same meaning as in section
2929.01 of the Revised Code.
(EE) "Minor drug possession offense" means either of the
following:
(1) A violation of section 2925.11 of the Revised Code as
it existed prior to July 1, 1996;
(2) A violation of section 2925.11 of the Revised Code as it exists on and
after July 1, 1996, that is a misdemeanor or a felony of the fifth
degree.
(FF) "Mandatory prison term" has the same meaning as
in section 2929.01 of the Revised Code.
(GG) "Crack cocaine" means a compound, mixture, preparation, or
substance that is or contains any amount of cocaine that is analytically
identified as the base form of cocaine or that is in a form that resembles
rocks or pebbles generally intended for individual use.
Sec. 4735.01. As used in this chapter:
(A) "Real estate broker" includes any person, partnership,
association, or corporation, foreign or domestic, who for
another, whether pursuant to a power of attorney or otherwise,
and who for a fee, commission, or other valuable consideration,
or with the intention, or in the expectation, or upon the promise
of receiving or collecting a fee, commission, or other valuable
consideration:
(1) Sells, exchanges, purchases, rents, or leases, or
negotiates the sale, exchange, purchase, rental, or leasing of
any real estate;
(2) Offers, attempts, or agrees to negotiate the sale,
exchange, purchase, rental, or leasing of any real estate;
(3) Lists, or offers, attempts, or agrees to list, or
auctions, or offers, attempts, or agrees to auction, any real
estate;
(4) Buys or offers to buy, sells or offers to sell, or
otherwise deals in options on real estate;
(5) Operates, manages, or rents, or offers or attempts to
operate, manage, or rent, other than as custodian, caretaker, or
janitor, any building or portions of buildings to the public as
tenants;
(6) Advertises or holds self out as engaged in the
business of selling, exchanging, purchasing, renting, or leasing
real estate;
(7) Directs or assists in the procuring of prospects or
the negotiation of any transaction, other than mortgage
financing, which does or is calculated to result in the sale,
exchange, leasing, or renting of any real estate;
(8) Is employed by or on behalf of the owner of lots, or
other parcels of real estate, at a stated salary, or upon a
commission, or upon a salary and commission basis or otherwise,
to sell such real estate, or any parts of it, in lots or other
parcels, and who sells, exchanges, or offers, attempts, or agrees
to negotiate the sale or exchange of any such lot or parcel of
real estate;
(9) Is engaged in the business of charging an advance fee
or contracting for collection of a fee in connection with any
contract whereby the broker undertakes primarily to promote
the sale,
exchange, purchase, rental, or leasing of real estate through its
listing in a publication issued primarily for such purpose, or
for referral of information concerning such real estate to
brokers, or both, except that this division does not apply to a
publisher of listings or compilations of sales of real estate by
their owners;
(10) Collects rental information for purposes of referring
prospective tenants to rental units or locations of such units
and charges the prospective tenants a fee.
(B) "Real estate" includes leaseholds as well as any and
every interest or estate in land situated in this state, whether
corporeal or incorporeal, whether freehold or nonfreehold, and
the improvements on the land, but does not include cemetery
interment rights.
(C) "Real estate salesperson" means any person associated
with a licensed real estate broker to do or to deal in any acts
or transactions set out or comprehended by the definition of a
real estate broker, for compensation or otherwise.
(D) "Limited real estate broker" includes any person,
partnership, association, or corporation, foreign or domestic,
who for another and for a fee, commission, or other valuable
consideration, or who with the intention or in the expectation or
upon the promise of receiving or collecting a fee, commission, or
other valuable consideration engages in the sale of cemetery
interment rights and whose license is limited to the sale of
cemetery interment rights.
(E) "Limited real estate salesperson" means any person
associated with a licensed real estate broker or a licensed
limited real estate broker to do or to deal in any acts or
transactions set out or comprehended by the definition of a
limited real estate broker, for compensation or otherwise.
(F) "Institution of higher education" means either of the following:
(1) A nonprofit institution as defined in section 1713.01
of the Revised Code that actually awards, rather than intends to
award, degrees for fulfilling requirements of academic work
beyond high school;
(2) An institution operated for profit that otherwise
qualifies under the definition of an institution in section
1713.01 of the Revised Code and that actually awards, rather than
intends to award, degrees for fulfilling requirements of academic
work beyond high school.
(G)(E) "Foreign real estate" means real estate not situated
in this state and any interest in real estate not situated in
this state.
(H)(F) "Foreign real estate dealer" includes any person,
partnership, association, or corporation, foreign or domestic,
who for another, whether pursuant to a power of attorney or
otherwise, and who for a fee, commission, or other valuable
consideration, or with the intention, or in the expectation, or
upon the promise of receiving or collecting a fee, commission, or
other valuable consideration, does or deals in any act or
transaction specified or comprehended in division (A) of this
section with respect to foreign real estate.
(I)(G) "Foreign real estate salesperson" means any
person
associated with a licensed foreign real estate dealer to do or
deal in any act or transaction specified or comprehended in
division (A) of this section with respect to foreign real estate,
for compensation or otherwise.
(J)(H) Any person, partnership, association, or corporation,
who, for another, in consideration of compensation, by fee,
commission, salary, or otherwise, or with the intention, in the
expectation, or upon the promise of receiving or collecting a
fee, does, or offers, attempts, or agrees to engage in, any
single act or transaction contained in the definition of a real
estate broker or foreign real estate dealer, whether an act is an
incidental part of a transaction, or the entire transaction,
shall be constituted a real estate broker or real estate
salesperson or a foreign real estate dealer or foreign real estate
salesperson under this chapter.
(K)(I) The terms "real estate broker," "real estate
salesperson," "foreign real estate dealer," and
"foreign real estate salesperson" do not include a
person, partnership, association, or
corporation, or the regular employees thereof or limited real
estate broker or limited real estate salesperson, who
performs PERFORM any
of the acts or transactions specified or comprehended in division
(A) of this section, whether or not for, or with the intention,
in expectation, or upon the promise of receiving or collecting a
fee, commission, or other valuable consideration:
(1) With reference to real estate situated in this state
or any interest in it owned by such person, partnership,
association, or corporation, or acquired on its own account
in
the regular course of, or as an incident to the management of the
property and the investment in it;
(2) As receiver or trustee in bankruptcy, as guardian,
executor, administrator, trustee, assignee, commissioner, or any
person doing the things mentioned in this section, under
authority or appointment of, or incident to a proceeding in, any
court, or as a public officer, or as executor, trustee, or other
bona fide fiduciary under any trust agreement, deed of trust,
will, or other instrument creating a like bona fide fiduciary
obligation;
(3) As a public officer while performing the officer's
official duties;
(4) As an attorney at law in the performance of the
attorney's duties.
(L)(J) "Physically handicapped licensee" means a person
licensed pursuant to this chapter who is under a severe physical
disability which is of such a nature as to prevent the person
from being able to attend any classroom instruction lasting at
least three hours in duration.
(M)(K) "Division of real
estate" may be used interchangeably with, and for all purposes
has the same meaning as, "division of real estate and
professional licensing."
(N)(L) "Superintendent"
or "superintendent of real estate" means the superintendent of
the division of real estate and professional licensing of this
state. Whenever the division or superintendent of real estate
is referred to or designated in any statute, rule, contract, or
other document, the reference or designation shall be deemed to
refer to the division or superintendent of real estate and
professional licensing, as the case may be.
Sec. 4735.02. No person, partnership, association, or
corporation shall act as a real estate broker, OR real estate
salesman, limited real estate broker, or limited
real estate salesman SALESPERSON, or advertise or assume to act
as such, without first
being licensed as provided in this chapter. Nothing contained in this chapter
shall be construed as authorizing a real estate
broker or salesman SALESPERSON to perform any service
constituting the practice of law.
No partnership, association, or corporation holding a real
estate license shall employ as an officer, director, manager, or
a principal employee any person previously holding a license as a
real estate broker, real estate salesman, limited
real estate broker, limited real estate salesman SALESPERSON,
foreign real estate dealer, or foreign real estate salesman
SALESPERSON, whose license has beenterminated BEEN TERMINATED by
failure to file a certificate of continuation, by revocation, or by
suspension, and who has not thereafter been relicensed.
Sec. 4735.051. (A) Within five business days after a
person files a signed written complaint against a licensed real
estate broker, OR licensed real estate salesperson, licensed
limited
real estate broker, or licensed limited real estate salesperson with
the division of real estate, the superintendent of real estate
shall acknowledge receipt of the complaint and send a notice to
the licensee describing the acts complained of. The
acknowledgment to the complainant and the notice to the licensee
shall state that an informal meeting will be held with the
complainant, the licensee, and an investigator from the
investigation and audit section of the division if the
complainant and licensee both file a request for such a meeting
within ten business days thereafter on a form provided by the
superintendent.
(B) If the complainant and licensee both file with the
division requests for an informal meeting, the superintendent
shall notify the complainant and licensee of the date of the
meeting, which shall be within twenty business days thereafter,
except that any party may request an extension of up to fifteen
business days for good cause shown. If the parties reach an
accommodation at an informal meeting, the investigator shall so
report to the superintendent and the parties and the complaint
file shall be closed, unless, based upon the investigator's
report, the superintendent finds evidence that the licensee has
violated section 4735.18 of the Revised Code.
(C) If the parties fail to agree to an informal meeting or
fail to reach an accommodation, or if the
superintendent finds evidence of a violation of section 4735.18
of the Revised Code, the superintendent shall, within five business
days of such
determination, so notify the parties and shall investigate the
conduct of the licensee against whom the complaint is filed.
(D) Within sixty business days after receipt of the
complaint, or, if an informal meeting is held, within sixty days
of such meeting, the investigator shall file a written report of
the results of the investigator's investigation with the
superintendent. Within
ten business days thereafter, the superintendent shall review the
report and determine whether there exists reasonable and
substantial evidence of a violation of section 4735.18 of the
Revised Code by the licensee. If the superintendent finds such
evidence exists, within five business days of the determination,
the superintendent shall notify the parties of the date of a
hearing to be held by a hearing examiner pursuant to Chapter 119.
of the Revised Code within fifteen days but not prior to seven
days thereafter, except that any party may request an extension
of up to thirty business days for good cause shown. If the
superintendent finds that such evidence does not exist, within
five business days thereafter, the superintendent shall so notify
the parties of the superintendent's determination and the basis for
the determination. Within fifteen business days after the
superintendent notifies the parties that such evidence does not
exist, the complainant may file with the division a request that
the commissioners review the determination. If the complainant
files such request, the commissioners shall review the
determination at the next regularly scheduled meeting held at
least fifteen business days after the request is filed. The
commission shall hear the testimony of either party at such
meeting upon the request of the party. If the commissioners
affirm the determination of the superintendent, the
superintendent shall so notify the complainant and the licensee
within five business days thereafter. If the commissioners
reverse the determination of the superintendent, a hearing shall
be held and the parties notified as provided in this division.
(E) Within twenty-five business days after the conclusion
of formal hearings, the hearing examiner shall file a report of
findings of fact and conclusions of law with the superintendent,
the commission, and the parties.
(F) The commissioners shall review the hearing examiner's
report and the parties' evidence at the next regularly scheduled
commission meeting held at least fifteen business days after
receipt of the hearing examiner's report. The commission shall
hear the testimony of any party upon request. If the complainant
is the Ohio civil rights commission, the complaint shall be
reviewed by the commissioners directly upon request.
(G) The commission shall decide whether to impose disciplinary sanctions
upon a licensee for a violation of section 4735.18 of the Revised Code. The
commission shall decide within sixty days of the
filing of the hearing examiner's report or within sixty days of
the filing of an Ohio civil rights commission complaint. The
commission shall maintain a transcript of the proceedings and
issue a written opinion to all the parties, citing its findings
and grounds for any action taken. The commission shall notify
the complainant and any other party who may have suffered
financial loss because of the licensee's violations, that the
complainant or other party may
sue for recovery under section 4735.12 of the Revised Code.
(H) An investigation under this section is subject to
section 4735.32 of the Revised Code.
(I) The commission may impose the following sanctions upon
a licensee for a violation of section 4735.18 of the Revised
Code:
(1) Revoke a license issued under Chapter 4735. of the
Revised Code;
(2) Suspend a license for a term set by the commission;
(3) Impose a fine, not exceeding two thousand five hundred dollars per
violation;
(4) Issue a public reprimand;
(5) Require the completion of additional continuing education
course work. Any continuing education course work imposed pursuant
to this section shall not count toward the continuing education
requirements set forth in section 4735.14 of the Revised Code.
All fines imposed pursuant to division (I)(3) of this section
shall be credited to the real estate operating fund, which is created in the
state treasury under section 4735.211 of the Revised Code.
Sec. 4735.07. (A) The superintendent of real estate, with
the consent of the Ohio real estate commission, may enter into
agreements with recognized national testing services to
administer the real estate broker's examination under his THE
SUPERINTENDENT'S supervision and control, consistent with the requirements
of this
chapter as to the contents of such examination.
(B) No person shall take the broker's examination who has
not established to the satisfaction of the superintendent that
he THE PERSON:
(1) Is honest, truthful, and of good reputation;
(2)(a) Has not been convicted of a felony or crime of
moral turpitude, or if he THE PERSON has been so convicted, the
superintendent has disregarded the conviction because the
applicant has proven to the superintendent, by a preponderance of
the evidence, that his THE APPLICANT'S activities and employment
record since the
conviction show that he THE APPLICANT is honest, truthful, and
of good
reputation, and there is no basis in fact for believing that he THE
APPLICANT again will violate the laws involved;
(b) Has not been finally adjudged by a court to have
violated any municipal, state, or federal civil rights laws
relevant to the protection of purchasers or sellers of real
estate or, if he THE PERSON has been so adjudged, at least two
years have
passed since the court decision and the superintendent has
disregarded the adjudication because the applicant has proven, by
a preponderance of the evidence, that his THE APPLICANT'S
activities and employment record since the adjudication show that he
THE APPLICANT is honest, truthful, and of good reputation, and there is
no basis in fact for believing that he THE APPLICANT will again
violate the laws involved;.
(3) Has not, during any period in which he THE PERSON was
licensed
under this chapter, violated any provision of, or any rule
adopted pursuant to, this chapter, or, if he THE PERSON has
violated any such provision or rule, has established to the satisfaction of
the superintendent that he THE PERSON will not again violate
such provision or rule;
(4) Is at least eighteen years of age;
(5) Has been a licensed real estate broker or salesman
SALESPERSON for at least two years; during at least two of the five
years
preceding his application, has worked as a licensed real estate
broker or salesman SALESPERSON for an average of at least thirty
hours per week; and has completed one of the following:
(a) At least twenty real estate transactions, in which
property was sold for another by the applicant while acting in
his THE capacity as OF a real estate broker or
salesman SALESPERSON;
(b) Such equivalent experience as is defined by rules
adopted by the commission;.
(6)(a) If licensed as a real estate salesman SALESPERSON prior
to January 1, 1990, successfully has completed at an institution of higher
education all of the following:
(i) Thirty hours of classroom instruction in real estate
practice;
(ii) Thirty hours of classroom instruction that includes
the subjects of Ohio real estate law, municipal, state, and
federal civil rights law, new case law on housing discrimination,
desegregation issues, and methods of eliminating the effects of
prior discrimination. If feasible, the classroom instruction in
Ohio real estate law shall be taught by a member of the faculty
of an accredited law school. If feasible, the classroom
instruction in municipal, state, and federal civil rights law,
new case law on housing discrimination, desegregation issues, and
methods of eliminating the effects of prior discrimination shall
be taught by a staff member of the Ohio civil rights commission
who is knowledgeable with respect to those subjects. The
requirements of this division do not apply to an applicant who is
admitted to practice before the supreme court.
(iii) Thirty hours of classroom instruction in real estate
appraisal;
(iv) Thirty hours of classroom instruction in real estate
finance;
(v) Three quarter hours, or its equivalent in semester
hours, in financial management;
(vi) Three quarter hours, or its equivalent in semester
hours, in human resource or personnel management;
(vii) Three quarter hours, or its equivalent in semester
hours, in applied business economics;
(viii) Three quarter hours, or its equivalent in semester
hours, in business law.
(b) Division (B)(6)(a) of this section does not apply to
any applicant who holds a valid real estate salesman's
SALESPERSON'S license issued prior to January 2, 1972, or to
applicants
for a limited
real estate broker's or salesman's license.
Divisions (B)(6)(a)(v), (vi), (vii), and (viii) of this section do not
apply to any applicant who holds a valid real estate salesman's
SALESPERSON'S license issued prior to January 3, 1984.
(7) If licensed as a real estate salesman SALESPERSON on or
after January 3, 1984, satisfactorily has completed a minimum of two
years of post-secondary education, or its equivalent in semester
or quarter hours, at an institution of higher education, and has
fulfilled the requirements of division (B)(6)(a) of this section.
The requirements of division (B)(6)(a) of this section may be
included in the two years of post-secondary education, or its
equivalent in semester or quarter hours, that is required by this
division.
(C) Each applicant for a broker's license shall be
examined in the principles of real estate practice, Ohio real
estate law, and financing and appraisal, and as to the duties of
real estate brokers and real estate salesmen SALESPERSONS, the
applicant's knowledge of real estate transactions and instruments relating to
them, and the canons of business ethics pertaining to them. The
commission from time to time shall promulgate such canons and
cause them to be published in printed form.
Each applicant for a limited real estate broker's or
limited real estate salesman's license shall be
examined only in the areas specified in section 4735.091 of the Revised
Code.
(D) Examinations shall be given entirely in writing,
except that they shall be administered orally or in braille to
the blind, as defined in section 5109.15 of the Revised Code, or
orally to an individual whose physical disability, as supported
by a physician's statement, renders it impossible to take a
written examination. The contents of an examination shall be
consistent with the requirements of division (B)(6)(a) of this
section and with the other specific requirements of this section.
An applicant who has completed the requirements of division
(B)(6)(a) of this section at the time of application may be
examined at the next regularly scheduled examination after he THE
APPLICANT is notified of his admission to the examination.
(E) The superintendent may waive the requirement of
examination in the case of an application from a nonresident real
estate broker of a state having similar requirements and under
the laws of which similar recognition is extended to licensed
real estate brokers and real estate salesmen SALESPERSONS of
this state.
(F) There shall be no limit placed on the number of times
an applicant may retake the examination.
(G) The superintendent in his THE SUPERINTENDENT'S discretion
may waive the
requirement of examination if the applicant has been licensed as
a real estate broker by the superintendent or commission at some
time during the two-year period immediately preceding the date of
the current application.
(H)(1) Within twelve months from the date of issuance of
any real estate broker's license issued on or after January 1,
1990, the licensee successfully shall complete, at an institution
of higher education or any other institution that is approved by
the commission, ten hours of classroom instruction in real estate
brokerage. That instruction shall include, but not be limited
to, current issues in managing a real estate company or office.
Upon completion of the instruction, the licensee shall cause to
be filed with the superintendent a certificate from the
institution showing that he THE LICENSEE successfully has
completed the requirements of this division.
If the instruction is not successfully completed within
twelve months, the license of the real estate broker is suspended
automatically without the taking of any action by the commission.
The broker then shall have one year after the date of the
suspension of his THE BROKER'S license to successfully complete
the
instruction required under this division, and his THE BROKER'S
license shall not be reinstated by the superintendent until it is established,
to the satisfaction of the superintendent, that the requirements
of this division have been met.
(2) If the license of a real estate broker is suspended
pursuant to division (H)(1) of this section, the license of a
real estate salesman SALESPERSON associated with that broker
correspondingly
is suspended pursuant to division (B) of section 4735.20 of the
Revised Code. However, the suspended license of the associated
real estate salesman SALESPERSON shall be reinstated and no fee
shall be charged or collected for that reinstatement if all of the
following occur:
(a) That broker subsequently submits satisfactory proof to
the superintendent that he THE BROKER has complied with the
requirements of
division (H)(1) of this section and requests that his THE
BROKER'S license as a real estate broker be reinstated;
(b) The superintendent then reinstates his THE BROKER'S license
as a real estate broker;
(c) The associated real estate salesman SALESPERSON intends to
continue to be associated with that broker and otherwise is in
compliance with this chapter.
Sec. 4735.10. (A)(1) The Ohio real estate commission may
adopt reasonable rules in accordance with Chapter 119. of the Revised Code,
necessary for implementing the provisions of this chapter relating, but not
limited to, the following:
(a) The form and manner of filing applications for
license;
(b) Times and form of examination for license;
(c) Placing an existing broker's license in escrow for an indefinite period
upon good cause shown.
(2) The commission shall adopt reasonable rules in accordance with
Chapter 119. of the Revised Code, for implementing the provisions
of this chapter relating to the following:
(a) The issuance, renewal, suspension, revocation of
licenses, other sanctions that may be imposed for violations of this
chapter,
and the conduct of hearings related to these actions;
(b) Standards for the approval of courses of study
required for licenses, or offered in preparation for license
examinations, or required as continuing education for licenses. The rules
shall specify that no standard for the approval of
a course of study required as continuing education for licensees shall require
that licensees pass an examination as a condition for the successful
completion of a continuing education requirement. A person providing a
continuing education course may administer examinations for the purpose of
evaluating the effectiveness of the course.
(c) Guidelines to ensure that continuing education
classes are open to all persons licensed under this
chapter. The rules shall
specify that an organization that sponsors a continuing
education class may offer its members a reasonable reduction in
the fees charged for the class.
(d) Requirements for trust accounts and property
management accounts. The rules shall specify that:
(i) Brokerages engaged in the management of
property for another may, pursuant to a written contract with
the property owner, exercise signatory authority for withdrawals
from property management accounts maintained in the name of the
property owner. The exercise of authority for withdrawals does
not constitute a violation of any provision of division
(A) of section 4735.18 of the
Revised
Code.
(ii) The interest earned on property management
trust accounts maintained in the name of the property owner or the broker
shall be payable to the property owner unless otherwise specified in a written
contract.
(e) Annual certificates of continuation in business and
filing deadlines based on a staggered system of renewal with deadlines
distributed throughout the year.
(B) The commission shall adopt rules in accordance with Chapter 119. of the
Revised Code establishing standards and
guidelines with which the superintendent of real estate shall
comply in the exercise of the following powers:
(1) Appointment and recommendation of ancillary trustees under section
4735.05 of the Revised Code;
(2) Rejection of names proposed to be used by
partnerships, associations, and corporations, under division (A)
of section 4735.06 of the Revised Code;
(3) Acceptance and rejection of applications to take the
broker and salesman SALESPERSON examinations and licensure, with
waiver of examination, under sections 4735.07 and 4735.09 of the Revised
Code;
(4) Approval of applications of brokers to place their
licenses on deposit and to become salespersons under
section 4735.13 of the Revised Code;
(5) Appointment of hearing examiners under section 119.09
of the Revised Code;
(6) Acceptance and rejection of applications to take the
foreign real estate dealer and salesperson examinations and
licensure, with waiver of examination, under sections 4735.27 and 4735.28 of
the Revised Code;
(7) Qualification of foreign real estate under section
4735.25 of the Revised Code.
If at any time there is no rule in effect establishing a
guideline or standard required by this division, the
superintendent shall adopt a rule in accordance with Chapter 119. of the
Revised Code for such purpose.
(C) The commission or superintendent may hear testimony in
matters relating to the duties imposed upon them, and the
president of the commission and superintendent may administer
oaths. The commission or superintendent may require other proof
of the honesty, truthfulness, and good reputation of any person
named in an application for a real estate broker's, OR real
estate
salesperson's, limited real estate broker's, or limited real estate
salesperson's license before admitting the applicant to the examination or
issuing a license.
Sec. 4735.141. (A) Except as otherwise provided in this
division, on or before January 31, 1983, and on or before the thirty-first
day of January of every third year thereafter, each licensee who was licensed
by the state prior to January 1, 1980, as a real estate broker or
salesperson shall submit proof satisfactory to the
superintendent of real estate that the
licensee has satisfactorily completed, during the preceding three years,
thirty classroom hours of continuing education as prescribed by
the Ohio real estate commission pursuant to section 4735.10 of
the Revised Code. Persons licensed as real estate salespersons within the
state on or after January 1, 1980, shall submit the
proof to the superintendent on or before the last day of the
month of the third year directly following the filing of the
certificate prescribed in division (G) of section 4735.09 of the
Revised Code, and every third year thereafter. Persons licensed
as real estate salespersons who subsequently become licensed real
estate brokers, shall continue to submit proof of continuing
education on the schedule established when they were licensed
real estate salespersons. The requirements of this section
shall not apply to persons licensed under section 4735.091 of the Revised
Code
or to any physically handicapped licensee as provided in division (E) of
this
section.
Each licensee who is seventy years of age or older on the effective date
of this amendment JUNE 13, 1996, and
each licensee who will be seventy years of age or older
within three years after the effective date of this amendment
JUNE 13, 1996, shall submit
proof satisfactory to the superintendent that the licensee has satisfactorily
completed during the three-year period commencing on the effective date of
this amendment JUNE 13, 1996, and every
three-year period thereafter, a total of nine
classroom hours of continuing education, including instruction in
Ohio real estate law; recently enacted state
and federal laws affecting the real estate industry; municipal,
state, and
federal civil rights law; and canons of ethics for the real estate industry as
adopted by the commission. The commission shall adopt reasonable rules in
accordance with Chapter 119. of the Revised Code
to carry out the purposes of this paragraph.
A person providing any course of continuing education may
administer examinations to licensees for the purpose of
evaluating the effectiveness of the course, but passage of an
examination by a licensee shall not be a condition for successful
completion of the continuing education requirements of this
section.
(B) The continuing education requirements of this section
shall be completed in schools, seminars, and educational
institutions approved by the commission. Such approval shall be
given according to rules established by the commission under the
procedures of Chapter 119. of the Revised Code, and shall not be
limited to institutions providing two-year or four-year degrees.
Each school, seminar, or educational institution approved under
this division shall be open to all licensees on an equal basis.
(C) If the requirements of this section are not met by a
licensee within the period specified, the licensee's license shall
be suspended automatically without the taking of any action by the
superintendent. The superintendent shall notify the licensee of
the license suspension. Any license so suspended shall
remain suspended until it is reinstated by the superintendent.
No such license shall be reinstated until it is established, to
the satisfaction of the superintendent, that the requirements of
this section have been met. If the requirements of this section
are not met within two years from the date the license was
suspended, the license shall be revoked automatically without the
taking of any action by the commission. A person whose license
has been revoked and whose revoked license was issued prior to
January 1, 1980, may have the person's license reinstated by the
superintendent at any time after it has been revoked upon
submitting proof satisfactory to the superintendent that the person has
satisfactorily completed during the period since the revocation
of the person's license thirty classroom hours of continuing
education as prescribed by the commission pursuant to section 4735.10 of the
Revised Code. Upon reinstatement of the person's license, the licensee
shall comply with the educational requirements of division (A) of this
section.
(D) If the license of a real estate broker is suspended
pursuant to division (C) of this section, the license of a real
estate salesperson associated with that broker
correspondingly is
suspended pursuant to division (B) of section 4735.20 of the
Revised Code. However, the suspended license of the associated
real estate salesperson shall be reinstated and no fee
shall be
charged or collected for that reinstatement if all of the
following occur:
(1) That broker subsequently submits proof to the
superintendent that the broker has complied with the requirements of
this section and requests that the broker's license as a real estate
broker be reinstated;
(2) The superintendent then reinstates the broker's license as a
real estate broker;
(3) The associated real estate salesperson intends to
continue to be associated with that broker, has complied with the
requirements of this section, and otherwise is in compliance with
this chapter.
(E) Any licensee who is a physically handicapped licensee
at any time during the last three months of the third year of the licensee's
continuing education reporting period may receive an extension of
time to submit proof to the superintendent that the licensee has
satisfactorily completed the required thirty hours of continuing
education. To receive an extension of time, the licensee shall
submit a request to the division of real estate for the extension
and proof satisfactory to the commission that the licensee was a physically
handicapped licensee at some time during the last three months of
the three-year reporting period. The proof shall include, but is
not limited to, a signed statement by the licensee's attending
physician describing the physical disability, certifying that the
licensee's disability is of such a nature as to prevent the licensee from
attending any classroom instruction lasting at least three hours
in duration, and stating the expected duration of the physical
disability. The licensee shall request the extension and provide
the physician's statement to the division no later than one month
prior to the end of the licensee's three-year continuing
education reporting period, unless the physical disability did
not arise until the last month of the three-year reporting
period, in which event the licensee shall request the extension
and provide the physician's statement as soon as practical after
the occurrence of the physical disability. A licensee granted an
extension pursuant to this division who is no longer a physically
handicapped licensee and who submits proof of completion of the
continuing education during the extension period, shall submit,
for future continuing education reporting periods, proof of
completion of the continuing education requirements according to
the schedule established in division (A) of this section.
Sec. 4735.18. (A) Subject to section 4735.32 of the
Revised Code, the superintendent of real estate, upon the superintendent's own
motion, may investigate the conduct of any licensee. Subject to
section 4735.32 of the Revised Code, the Ohio real estate commission shall,
pursuant to section 4735.051 of the Revised Code, impose disciplinary
sanctions upon any licensee who, whether or not acting in the licensee's
capacity as a real estate broker or salesperson, or limited real estate
broker
or salesperson, or in handling the licensee's own property, is found to
have
been convicted of
a felony or a crime of moral turpitude, and shall, pursuant to
section 4735.051 of the Revised Code, impose disciplinary sanctions upon any
licensee who, in the licensee's capacity as a real
estate broker or salesperson, or limited real estate
broker or salesperson, or in handling the licensee's own property, is
found
guilty of:
(1) Knowingly making any misrepresentation;
(2) Making any false promises with intent to influence,
persuade, or induce;
(3) A continued course of misrepresentation or the making
of false promises through agents, salespersons, advertising, or otherwise;
(4) Acting for more than one party in a transaction
except as permitted by and in compliance with section 4735.71 of the
Revised Code.;
(5) Failure within a reasonable time to account for or to
remit any money coming into the licensee's possession which belongs
to others;
(6) Dishonest or illegal dealing, gross negligence,
incompetency, or misconduct;
(7)(a) By final adjudication by a court, a violation of
any municipal or federal civil rights law relevant to the
protection of purchasers or sellers of real estate or, by final
adjudication by a court, any unlawful discriminatory practice
pertaining to the purchase or sale of real estate prohibited by
Chapter 4112. of the Revised Code, provided that such violation
arose out of a situation wherein parties were engaged in bona
fide efforts to purchase, sell, or lease real estate, in the licensee's
practice as a licensed real estate broker or salesperson;
(b) A second or subsequent violation of any unlawful
discriminatory practice pertaining to the purchase or sale of
real estate prohibited by Chapter 4112. of the Revised Code or
any second or subsequent violation of municipal or federal civil
rights laws relevant to purchasing or selling real estate whether
or not there has been a final adjudication by a court, provided
that such violation arose out of a situation wherein parties were
engaged in bona fide efforts to purchase, sell, or lease real
estate. For any second offense under this division, the
commission shall suspend for a minimum of two months or revoke
the license of the broker or salesperson. For any subsequent
offense, the commission shall revoke the license of the broker or
salesperson.
(8) Procuring a license under this chapter, for the licensee or any
salesperson by fraud, misrepresentation, or deceit;
(9) Having violated or failed to comply with any provision of sections
4735.51 to 4735.74 of the Revised Code or having willfully disregarded or
violated any other provisions of this chapter;
(10) As a real estate broker or limited real estate
broker, having demanded, without reasonable cause, other than
from a broker licensed under this chapter, a commission to which
the licensee is not entitled, or, as a real estate
salesperson or limited real estate salesperson, having demanded,
without
reasonable cause, a commission to which the licensee is not entitled;
(11) Having paid commissions or fees to, or divided
commissions or fees with, anyone not licensed as a real estate
broker or salesperson;
(12) Having falsely represented membership in any real
estate professional association of which the licensee is not a
member;
(13) Having accepted, given, or charged any undisclosed
commission, rebate, or direct profit on expenditures made for a
principal;
(14) Having offered anything of value other than the
consideration recited in the sales contract as an inducement to a
person to enter into a contract for the purchase or sale of real
estate or having offered real estate or the improvements on real
estate as a prize in a lottery or scheme of chance;
(15) Having acted in the dual capacity of real estate
broker and undisclosed principal, or real estate
salesperson and undisclosed principal, in any transaction;
(16) Having guaranteed, authorized, or permitted any
person to guarantee future profits which may result from the
resale of real property or cemetery interment rights;
(17) Having placed a sign on any property offering it for
sale or for rent without the consent of the owner or the owner's
authorized agent;
(18) Having induced any party to a contract of sale or
lease to break such contract for the purpose of substituting in
lieu of it a new contract with another principal;
(19) Having negotiated the sale, exchange, or lease of any
real property directly with an owner, purchaser, lessor, or tenant knowing
that such owner, purchaser, lessor, or tenant had a written outstanding
contract granting exclusive agency in connection with such property to another
real estate broker;
(20) Having offered real property for sale or for lease
without the knowledge and consent of the owner or the owner's authorized
agent, or on any terms other than those authorized by the owner or the owner's
authorized agent;
(21) Having published advertising, whether printed, radio,
display, or of any other nature, which was misleading or
inaccurate in any material particular, or in any way having
misrepresented any properties, terms, values, policies, or
services of the business conducted;
(22) Having knowingly withheld from or inserted in any
statement of account or invoice any statement that made it
inaccurate in any material particular;
(23) Having published or circulated unjustified or
unwarranted threats of legal proceedings which tended to or had
the effect of harassing competitors or intimidating their
customers;
(24) Having failed to keep complete and accurate records
of all transactions for a period of three years from the date of
the transaction, such records to include copies of listing forms,
earnest money receipts, offers to purchase and acceptances of
them, and records of receipts and disbursements of all funds
received by the licensee as broker and incident to the licensee's transactions
as
such, and any other instruments or papers related to the
performance of any of the acts set forth in the definition of a
real estate broker;
(25) Failure of a real estate broker or salesperson to
furnish all parties involved in a real estate transaction true
copies of all listings and other agreements to which they are a
party, at the time each party signs them;
(26) Failure to maintain at all times a special or trust
bank account in a depository located in this state. The account
shall be noninterest-bearing, separate and distinct from any
personal or other account of the broker, and, except as
provided in division (A)(27) of this section, shall be used for the deposit
and maintenance of all escrow funds, security deposits, and other moneys
received by the broker in a fiduciary capacity. The name, account number, if
any, and location of the depository wherein such special or trust
account is maintained shall be submitted in writing to the
superintendent. Checks drawn on such special or trust bank accounts are
deemed to meet the conditions imposed by section 1349.21 of the Revised Code.
(27) Failure to maintain at all times a special or trust bank account in a
depository in this state, to be used exclusively for the deposit and
maintenance of all rents, security deposits, escrow funds, and other moneys
received by the broker in a fiduciary capacity in the course of managing real
property. This account shall be separate and distinct from any other account
maintained by the broker. The name, account number, and location of the
depository shall be submitted in writing to the superintendent. This account
may earn interest, which shall be paid to the property owners on a pro rata
basis.
Division (A)(27) of this section does not apply to brokers who are
not engaged in the management of real property on behalf of real property
owners.
(28) Having failed to put definite expiration dates in all
written agency agreements to which the broker is a party;
(29) Having an unsatisfied final judgment in any court of
record against the licensee arising out of his THE LICENSEE'S
conduct as a licensed broker or salesman SALESPERSON;
(30) Failing to render promptly upon demand a full and
complete statement of the expenditures by the broker or
salesperson of funds advanced by or on behalf of a party to a real
estate transaction to the broker or salesperson for the purpose of performing
duties as a licensee under this chapter in conjunction with the real estate
transaction;
(31) Failure within a reasonable time, after the receipt
of the commission by the broker, to render an accounting to and
pay a real estate salesperson the salesperson's earned share of it;
(32) Failure to notify the real estate salesperson that the licensee does not
intend to list such salesperson on the continuation in business form;
(33) Performing any service for another constituting the
practice of law, as determined by any court of law;
(34) Having been adjudicated incompetent for the purpose
of holding the license by a court, as provided in section
5122.301 of the Revised Code. A license revoked or suspended
under this division shall be reinstated upon proof to the
commission of the removal of the disability.
(35) Having authorized or permitted a person to act as an
agent in the capacity of a real estate broker or limited real
estate broker, or a real estate salesperson or limited
real estate salesperson, who was not then licensed as a real estate
broker,
limited real estate broker, OR real estate salesperson, or
limited real estate
salesperson under this chapter.
(B) Whenever the commission, pursuant to section 4735.051
of the Revised Code, imposes disciplinary sanctions for any violation of this
section, the commission also may impose such sanctions upon the broker with
whom the salesperson is affiliated if the commission finds that the broker had
knowledge of the salesperson's actions that violated this section.
(C) The commission shall, pursuant to section 4735.051 of the Revised Code,
impose disciplinary sanctions upon any foreign real estate dealer or
salesperson who, in that capacity or in handling the dealer's or salesperson's
own property, is found guilty of any of the acts or omissions specified or
comprehended in division (A) of this section insofar as the acts or omissions
pertain to foreign real estate. If the commission imposes such sanctions upon
a foreign real estate salesperson for a violation of this
section, the commission also may suspend or revoke the license of
the foreign real estate dealer with whom the
salesperson is affiliated if the commission finds that the dealer had
knowledge of the salesperson's actions that violated this section.
(D) The commission may suspend, in whole or in part, the
imposition of the penalty of suspension of a license under this
section.
(E) The commission immediately shall notify the real
estate appraiser board of any disciplinary action taken under
this section against a licensee who also is a state-certified
real estate appraiser under Chapter 4763. of the Revised Code.
Sec. 4735.32. (A)(1) The Ohio real estate commission or
the superintendent of real estate may commence, at any time
within three years from the date on which an alleged violation of
a provision of this or another chapter of the Revised Code
occurred, any investigation that relates to the conduct of a
licensed real estate broker, real estate salesman, limited real
estate broker, limited real estate salesman SALESPERSON, foreign
real estate
dealer, or foreign real estate salesman SALESPERSON, that is
authorized
pursuant to section 1349.11, 4735.051, or 4735.18, or any other
section of the Revised Code, and that is for purposes of
determining whether the licensee has violated a provision of this
or another chapter of the Revised Code and whether, as a
consequence, his THE LICENSEE'S license should be suspended or
revoked, or other disciplinary action taken, as provided in this or another
chapter of the Revised Code. If such an investigation is not commenced
within the three-year period, it shall be barred, and neither the
commission nor the superintendent shall suspend or revoke the
license of any licensee, or take other disciplinary action
against any licensee, because of the alleged violation of a
provision of this or another chapter of the Revised Code that
could have been the subject of the barred investigation.
(2) For purposes of division (A)(1) of this section, if an
investigation that is authorized by section 4735.051 of the
Revised Code is involved, it shall be considered to be commenced
as of the date on which a person files a complaint with the
division of real estate pursuant to division (A) of that section.
(B) This section does not affect any criminal or civil
liability that a licensed real estate broker, real estate
salesman, limited real estate broker, limited real
estate salesman SALESPERSON, foreign real estate dealer, or
foreign real estate salesman SALESPERSON, or any unlicensed
person, may have under this or another chapter of the Revised Code or under
the common law of
this state.
Sec. 4735.57. (A) The superintendent of real estate, with the
approval of the Ohio real estate commission, shall establish by rule the
agency disclosure statement, which shall specify the duties of a licensee in a
real estate transaction pursuant to this chapter. The agency disclosure
statement shall
contain a place for the licensee and the parties to the transaction to sign
and date the statement and shall contain sections for the disclosure or
explanation of all of the following:
(1) The permissible agency relationships a licensee may
establish under section 4735.53 of the Revised Code and an explanation of the
duties the licensee owes the client in each type of relationship;
(2) Whether the brokerage may act as a dual agent and if so, the
possibility that different licensees affiliated with the
brokerage might represent the separate interests of a purchaser or a seller in
the same transaction. The disclosure shall
contain an explanation that when different licensees affiliated with the same
brokerage represent
both the purchaser and seller in a transaction, each licensee
represents only the interests of that licensee's client. The disclosure shall
contain an explanation that when different
licensees affiliated with the same brokerage represent different clients in a
transaction, the brokerage and the management level licensees in the brokerage
are dual agents of both the seller and purchaser and have supervisory duties
and limitations as dual agents. The disclosure also shall state that the
broker
shall take steps to preserve the confidential information of the client.
(3) Unless confidential, the names of all parties the licensee represents
in the transaction;
(4) That the signature of the client indicates the client consents to the
agency relationship and that if the client does not understand the agency
disclosure statement, the client should consult an attorney.
(B) The agency disclosure
statement prescribed under division (A) of
this section does not limit the duties of a real estate agent to those listed
in division (A) of this section, and the agent
is obligated to perform all duties imposed on a real estate agent at common
law except to the extent the duties are inconsistent with the duties
prescribed in this chapter or are otherwise modified by agreement.
(C) The disclosure requirements of this section do not apply in any of the
following situations:
(1) The rental or leasing of residential premises as defined in
section 5321.01 of the Revised Code, if the rental or lease
agreement can be performed in eighteen months or less;
(2) The referral of a prospective buyer, tenant, seller,
or landlord to another licensee;
(3) Transactions involving the sale, lease, or exchange
of foreign real estate as defined in division (G)(E) of
section 4735.01 of the
Revised Code;
(4) Transactions involving the sale of a cemetery lot or a
cemetery interment right.
Sec. 4767.02. (A) Except as otherwise provided in
division (C) of this section, no person, church, religious
society, established fraternal organization, or political
subdivision of the state shall own, operate, or maintain a
cemetery unless the cemetery is registered pursuant to section
4767.03 of the Revised Code.
(B) The division of real estate in the department of
commerce shall perform all of the following duties:
(1) Adopt, amend, and rescind rules in accordance with
Chapter 119. of the Revised Code to carry out sections 4767.02 to
4767.04 of the Revised Code governing the registration of
cemeteries;
(2) Prescribe the form and content of all applications to
be used for registration and renewal of registration pursuant to
section 4767.03 of the Revised Code;
(3) Review applications for registration and issue
registration certificates to cemeteries that meet the
qualifications for registration pursuant to sections 4767.03 and
4767.04 of the Revised Code;
(4) Collect all fees related to the registration and
renewal of registration certificates for cemeteries;
(5) Maintain a written record of each cemetery registered
with the division, which shall include such documentation as
required in division (A) of section 4767.04 of the Revised Code.
The record shall be available for inspection by the public and
copies shall be made available pursuant to division (B) of
section 149.43 of the Revised Code.
(6) REVOKE THE REGISTRATION OF ANY CEMETERY OWNER OR OPERATOR
CONVICTED OF A
VIOLATION OF SECTION 1721.21 OR 1721.211
of the Revised Code IMMEDIATELY UPON RECEIPT OF NOTICE OF THE CONVICTION PURSUANT TO SECTION
119.06 of the Revised Code;
(7) HIRE ALL DIVISION PERSONNEL NECESSARY TO IMPLEMENT
THIS CHAPTER;
(8) PROHIBIT THE SALE OF THE ASSETS OR STOCK OF A
CEMETERY BY REFUSING TO ISSUE A REGISTRATION CERTIFICATE TO THE
PURCHASER UNTIL THE DISPUTE RESOLUTION COMMISSION HAS RECEIVED
AUDITED FINANCIAL STATEMENTS AUDITED BY A CERTIFIED PUBLIC ACCOUNTANT SHOWING
TO THE COMMISSION'S
SATISFACTION THAT ALL CURRENT FUNDS REQUIRED TO BE DEPOSITED AND
MAINTAINED PURSUANT TO SECTIONS 1721.21 AND 1721.211 OF THE
REVISED CODE HAVE BEEN DEPOSITED AND
MAINTAINED;
(9) WITH THE DISPUTE RESOLUTION COMMISSION'S ADVICE
AND CONSENT, SUBPOENA CEMETERY PERSONNEL TO ATTEND HEARINGS
BEFORE THE COMMISSION.
(C) Sections 4767.02 to 4767.04 of the Revised Code do not
apply to or affect a family cemetery or a cemetery in which there
have been no interments during the previous twenty-five calendar
years. As used in this division, "family cemetery" means a
cemetery containing the human remains of persons, at least
three-fourths of whom have a common ancestor or who are the
spouse or adopted child of that common ancestor.
Sec. 4767.031. (A) THE OWNER OR THE PERSON
RESPONSIBLE FOR THE OPERATION OF EACH CEMETERY REQUIRED TO
REGISTER UNDER SECTION 4767.03 OF THE
REVISED CODE SHALL PROVIDE THE DIVISION
OF REAL ESTATE IN THE DEPARTMENT OF COMMERCE, ON A FORM
PRESCRIBED BY THE DIVISION, AT THE SAME TIME THE OWNER OR OTHER
PERSON APPLIES FOR REGISTRATION OR RENEWAL OF REGISTRATION AS
REQUIRED BY SECTION 4767.03 OF THE
REVISED CODE, A LIST OF THE NAMES AND
RESIDENCE ADDRESSES OF ALL PERSONS EMPLOYED OR OTHERWISE
ENGAGED BY THE CEMETERY TO SELL INTERMENT RIGHTS. THE PROVISION OF THIS
INFORMATION CONSTITUTES THE REGISTRATION OF THESE PERSONS TO SELL INTERMENT
RIGHTS.
IN ORDER FOR AN INDEPENDENT CONTRACTOR TO SELL INTERMENT RIGHTS FOR A
CEMETERY, THE CEMETERY SHALL SPONSOR AND REGISTER THE INDEPENDENT CONTRACTOR
WITH THE DIVISION. MORE THAN ONE CEMETERY MAY SPONSOR AND REGISTER THE SAME
INDEPENDENT CONTRACTOR.
(B) THE OWNER OR THE
PERSON RESPONSIBLE FOR THE OPERATION OF EACH CEMETERY REQUIRED
TO REGISTER UNDER SECTION 4767.03 OF THE
REVISED CODE SHALL PROVIDE THE DIVISION
WITH A REVISED LIST OF THE NAMES AND RESIDENCE ADDRESSES OF ALL
PERSONS EMPLOYED OR OTHERWISE ENGAGED BY THE CEMETERY TO SELL
INTERMENT RIGHTS WITHIN THE CALENDAR QUARTER IMMEDIATELY FOLLOWING THE DATE OF
THE TERMINATION OF THE
CEMETERY'S RELATIONSHIP WITH AN EXISTING SALESPERSON OR THE
COMMENCEMENT OF A RELATIONSHIP WITH A NEW SALESPERSON. AS USED IN THIS
DIVISION, "CALENDAR QUARTER" MEANS THE THREE-MONTH PERIOD THAT COMMENCES ON
THE FIRST DAY OF EACH JANUARY, APRIL, JULY, AND
OCTOBER.
Sec. 4767.04. (A) To qualify a cemetery for a certificate
of registration, the applicant shall submit to the division of
real estate the following information:
(1) The name of the cemetery;
(2) The street address, city, village, or township, and
county where the cemetery is located and the mailing address if
different from the street address;
(3) The name and address of the person who owns the
cemetery;
(4) The name and address of the person responsible for the
operation and maintenance of the cemetery;
(5) A list of persons, if any, employed by or otherwise
affiliated with the owner or operator of the cemetery who hold a
limited real estate broker's license or a limited real estate
salesman's license pursuant to section 4735.091 of
the Revised
Code;
(6) A copy of the most recent annual report of the
cemetery if required by the Ohio real estate commission pursuant
to section 1721.211 of the Revised Code. If the cemetery is
owned by a cemetery company or association, a copy of the annual
report for the previous year of all of the assets and investments
of the endowment care funds of the association as prepared
pursuant to section 1721.21 of the Revised Code shall be
submitted to the division.
(B) If any of the information required in division (A) of
this section changes at any time, the person responsible for the
operation and maintenance of the cemetery shall submit written
notification of the change to the division within thirty days of
the change occurring.
Sec. 4767.06. The Ohio cemetery dispute resolution
commission shall perform all of the following duties:
(A) Adopt, amend, and rescind such rules in accordance
with Chapter 119. of the Revised Code as are necessary in
carrying out sections 4767.05 to 4767.08 of the Revised Code,
including rules relative to the following:
(1) Transacting the commission's business and managing its
affairs;
(2) Establishing procedures for receiving, reviewing, and
responding to complaints filed pursuant to section 4767.07 of the
Revised Code;
(3) Conducting investigations in response to complaints
filed pursuant to division (A) of section 4767.07 of the Revised
Code;
(4) Resolving complaints by using informal techniques of
mediation, conciliation, and persuasion, including requiring the
parties involved in a complaint to be given prompt notice of any
offers to resolve disputes and responses thereto;
(5) Advising all parties making a complaint, or who are
the subject of a complaint, of any recommendations or findings of
fact made by the commission with respect to the complaint;
(6) Requesting the party who has filed a complaint or is
the subject of a complaint, and is affected by recommendations of
the commission made with respect to the complaint, to notify the
commission within a time specified by the
commission of any action
the party has taken in response to the commission's
recommendations;
(7) Conducting nonpublic hearings and maintaining
commission proceedings and records as confidential,
notwithstanding sections 121.22 and 149.43 of the Revised Code
when the commission determines that the nature of the
complaints merits that action;
(8) Determining the method to be used in serving notices
as required by section 4767.07 of the Revised Code.
(B) Publicize information concerning the existence and
duties of the commission and the procedure for filing complaints
pursuant to section 4767.07 of the Revised Code;
(C) Conduct hearings on complaints pursuant to section
4767.07 of the Revised Code;
(D) Submit at least annually by the thirty-first day of
March a report on the commission's activities of the immediately
preceding calendar year to the governor and the majority and
minority leaders of the senate and house of representatives. The
report shall indicate the total number of complaints received,
initiated, and investigated under sections 4767.07 and 4767.08 of
the Revised Code; the total number of complaints for which
hearings were held; and the total number of referrals made to
prosecuting attorneys, the attorney general, and the real estate
commission pursuant to section 4767.08 of the Revised Code.
(E) Review, at least once each year, all actions taken by
the prosecuting attorneys, the attorney general, and the real
estate commission in response to referrals made to them by the
cemetery dispute resolution commission or by the
superintendent of the division of real estate
in the department of commerce. The commission shall include
in the report required in division (D) of this section information
regarding the nature of the inappropriate conduct alleged in each
referral and the status or disposition made of each referral
occurring during the preceding two years.
(F) Perform all functions as are necessary in
administering and enforcing sections 4767.05 to 4767.08 of the
Revised Code, INCLUDING THE RENDERING OF ALL ADVICE NECESSARY UNDER
DIVISIONS (B)(6) TO (12) OF SECTION 4767.02 of the Revised Code;
(G) REVIEW ALL
PROPOSED TRANSFERS THAT WOULD TRANSFER SUBSTANTIALLY ALL OF THE ASSETS OR
STOCK
OF A CEMETERY, REQUIRE AN AUDIT OF THE CEMETERY'S FUNDS ON
DEPOSIT UNDER SECTIONS 1721.21 AND 1721.211 OF THE
REVISED CODE, AND FORMULATE AN AGREED
PLAN PURSUANT TO WHICH THE BUYER AND THE SELLER OF THE CEMETERY
WILL CAUSE THOSE FUNDS TO BE PROPERLY FUNDED;
(H) ADOPT AND PUBLISH SUGGESTED MAINTENANCE GUIDELINES FOR ALL
CEMETERIES REGISTERED IN THE STATE OF OHIO UNDER CHAPTER
4767. of the Revised Code.
Sec. 4767.08. (A) The cemetery dispute resolution
commission, on its own motion or as a result of a complaint
received pursuant to section 4767.07 of the Revised Code and with
good cause shown, shall investigate or cause to be investigated
alleged violations of sections 1721.19, 1721.20, 1721.21,
1721.211, 4735.02, 4735.22, and 4765.03 of the Revised Code. If
the commission or the superintendent of the division of real
estate in the department of commerce believes that a violation
has occurred, the commission or superintendent shall request DO ALL
OF THE FOLLOWING:
(1) REVIEW THE FINANCIAL RECORDS OF THE CEMETERY TO ENSURE COMPLIANCE WITH
SECTIONS 1721.21 AND 1721.211 of the Revised Code;
(2) REQUEST the
prosecuting attorney of the county in which the alleged violation
occurred to initiate such proceedings as are appropriate.
(B) If, as a result of an investigation, the commission or
the superintendent believes that a person has violated Chapter
1345. of the Revised Code, the commission or superintendent shall
report the findings to the attorney general.
(C) If, as a result of an investigation, the commission or
the superintendent believes that a limited real estate broker or
limited real estate salesman has violated Chapter 4735. of the
Revised Code, the commission or superintendent shall report
the findings to the real estate commission, which may initiate such
proceedings as are appropriate.
(D) The commission, at any time, may dismiss a complaint if
it determines there is not good cause shown for the complaint.
If the commission dismisses a complaint, it shall notify the
person who filed the complaint within twenty days of reaching its
decision and identify the reason why the complaint was dismissed.
(E)(D) When necessary for the division of real estate in the
department of commerce to perform the duties required by sections
4767.07 and 4767.08 of the Revised Code, the superintendent of
the division, after consultation with at least a majority of the
members of the cemetery dispute resolution commission, may
issue subpoenas and compel the production of books, papers, records,
and other forms of evidence.
Sec. 4767.99. Whoever violates division (A) of section 4767.02 of the Revised
Code is guilty of a misdemeanor of the fourth THIRD degree.
Section 2. That existing sections 517.23, 517.24, 759.01, 1111.19, 1151.345,
1161.59, 1319.12, 1345.21, 1721.01, 1721.06, 1721.21, 1721.211,
1733.51, 2117.25, 2925.01, 4735.01, 4735.02, 4735.051, 4735.07, 4735.10,
4735.141, 4735.18, 4735.32, 4735.57, 4767.02, 4767.04, 4767.06, 4767.08, and
4767.99
and sections 2117.251 and 4735.091 of the Revised Code are hereby repealed.
Section 3. Not more than two years after the effective date of this act the
Cemetery Dispute Resolution Commission shall provide a written report to the
Governor, the Speaker of the House of Representatives, and the President of
the Senate on the effectiveness of the Ohio cemetery law. The report shall
include recommendations for modification of the Ohio cemetery law in light of
consumer complaints and industry problems.
Section 4. Section 2925.01 of the Revised Code is presented in this act
as a composite of the section as amended by
both Sub. H.B. 606 and Sub. S.B. 200 of the
122nd General Assembly, with the new language of
neither of the acts shown in capital letters. This is in
recognition of the principle stated in division (B) of section
1.52 of the Revised Code that such amendments are to be
harmonized where not substantively irreconcilable and constitutes
a legislative finding that such is the resulting version in
effect prior to the effective date of this act.
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