BILL REQ. #:  S-2104.1 

READ FIRST TIME 02/25/09.   

     AN ACT Relating to consolidating and modifying the duties of the cemetery board and the board of funeral directors and embalmers; amending RCW 18.39.010, 18.39.173, 18.39.175, 18.39.217, 18.235.020, 68.04.190, 68.05.020, 68.05.095, 68.05.100, 68.05.105, 68.05.175, 68.05.205, 68.24.090, 68.40.040, 68.44.115, 68.44.150, 68.46.010, 68.46.090, 68.46.130, 68.50.230, 68.60.030, 68.60.050, and 68.60.060; adding a new section to chapter 18.39 RCW; creating a new section; repealing RCW 18.39.800, 68.05.040, 68.05.050, 68.05.060, 68.05.080, and 68.05.285; providing an effective date; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 18.39.010 and 2005 c 365 s 1 are each amended to read as follows:
     The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Funeral director" means a person engaged in the profession or business of providing for the care, shelter, transportation, and arrangements for the disposition of human remains that may include arranging and directing funeral, memorial, or other services.
     (2) "Embalmer" means a person engaged in the profession or business of disinfecting and preserving human remains for transportation or final disposition.
     (3) "Two-year college course" means the completion of sixty semester hours or ninety quarter hours of college credit, including the satisfactory completion of certain college courses, as set forth in this chapter.
     (4) "Funeral establishment" means a place of business licensed in accordance with RCW 18.39.145, that provides for any aspect of the care, shelter, transportation, embalming, preparation, and arrangements for the disposition of human remains and includes all areas of such entity and all equipment, instruments, and supplies used in the care, shelter, transportation, preparation, and embalming of human remains.
     (5) "Director" means the director of licensing.
     (6) "Board" means the ((state)) funeral and cemetery board ((of funeral directors and embalmers)) created pursuant to RCW 18.39.173.
     (7) "Prearrangement funeral service contract" means any contract under which, for a specified consideration, a funeral establishment promises, upon the death of the person named or implied in the contract, to furnish funeral merchandise or services.
     (8) "Funeral merchandise or services" means those services normally performed and merchandise normally provided by funeral establishments, including the sale of burial supplies and equipment, but excluding the sale by a cemetery of lands or interests therein, services incidental thereto, markers, memorials, monuments, equipment, crypts, niches, or vaults.
     (9) "Public depositary" means a public depositary defined by RCW 39.58.010 or a state or federally chartered credit union.
     (10) "Licensee" means any person or entity holding a license, registration, endorsement, or permit under this chapter issued by the director.
     Words used in this chapter importing the singular may be applied to the plural of the person or thing, words importing the plural may be applied to the singular, and words importing the masculine gender may be applied to the female.

Sec. 2   RCW 18.39.173 and 2005 c 365 s 13 are each amended to read as follows:
     ((There is hereby established a state board of funeral directors and embalmers to be composed of five members, four professional and one public member, appointed by the governor in accordance with this section. Each professional member of the board shall be licensed in this state as a funeral director and embalmer and a resident of the state of Washington for a period of at least five years next preceding appointment, during which time such member shall have been continuously engaged in the profession)) (1) A funeral and cemetery board is created. The initial appointments to the board include all members from the existing funeral directors and embalmers board and existing cemetery board with their year of expiration of term remaining the same. Subsequent to the initial appointments the board will consist of seven members to be appointed by the governor in accordance with this section.
     (2) Three members of the board must be persons who have had experience in the active administrative management of a cemetery authority or as a member of the board of directors of a cemetery authority for a period of five years preceding appointment. Three members of the board must each be licensed in this state as funeral directors and embalmers and must have been continuously engaged in the practice as funeral directors and embalmers for a period of five years preceding appointment. One member must represent the general public and may not have a connection with the funeral or cemetery industry. Board members must be a resident of the state of Washington.
     (3) All members of the board ((of funeral directors and embalmers)) shall be appointed to serve for a term of ((five)) four years, to expire on July 1st of the year of termination of their term, and until their successors have been appointed. In case of a vacancy occurring on the board, the governor shall appoint a qualified member for the remainder of the unexpired term of the vacant office. Any member of the board ((of funeral directors and embalmers)) who fails to properly discharge the duties of a member may be removed by the governor.
     (4) The board shall meet once annually to conduct its business and to elect a chair, vice-chair, and ((secretary and take official board action on pending matters by majority vote of all the members of the board of funeral directors and embalmers)) other officers as the board determines, and at other times when called by the director, the chair, or a majority of the members. A majority of the members of the board shall at all times constitute a quorum. A quorum of the board to consider any charges brought under this chapter must include two of the funeral director and embalmer members of the board. A quorum of the board to consider any charges brought under Title 68 RCW must include two of the members who have had experience in the active administrative management of a cemetery authority. If board members cannot serve due to a conflict of interest, a quorum constituting a majority of the members must preside over the hearing.
     (5) Each member of the board must be compensated in accordance with RCW 43.03.240 and must receive travel expenses in accordance with RCW 43.03.050 and 43.03.060.

Sec. 3   RCW 18.39.175 and 2005 c 365 s 14 are each amended to read as follows:
     ((Each member of the board of funeral directors and embalmers shall be compensated in accordance with RCW 43.03.240 and shall be reimbursed for travel expenses in connection with board duties in accordance with RCW 43.03.050 and 43.03.060.))
     The board shall have the following duties and responsibilities under this chapter:
     (1) To be responsible for the preparation, conducting, and grading of examinations of applicants for funeral director and embalmer licenses;
     (2) To certify to the director the results of examinations of applicants and certify the applicant as having "passed" or "failed";
     (3) To make findings and recommendations to the director on any and all matters relating to the enforcement of this chapter;
     (4) To adopt and enforce reasonable rules((. Rules regulating the cremation of human remains shall be adopted in consultation with the cemetery board));
     (5) To examine or audit or to direct the examination and audit of prearrangement funeral service trust fund records for compliance with this chapter and rules adopted by the board; and
     (6) To adopt rules establishing mandatory continuing education requirements to be met by persons applying for license renewal.

Sec. 4   RCW 18.39.217 and 2005 c 365 s 18 are each amended to read as follows:
     (1) A license or endorsement issued by the board or under chapter 68.05 RCW is required in order to operate a crematory or conduct a cremation.
     (2) Conducting a cremation without a license or endorsement is a misdemeanor. Each such cremation is a separate violation.
     (((3) Crematories owned or operated by or located on property licensed as a funeral establishment shall be regulated by the board. Crematories not affiliated with a funeral establishment shall be regulated by the cemetery board.))

Sec. 5   RCW 18.235.020 and 2008 c 119 s 21 are each amended to read as follows:
     (1) This chapter applies only to the director and the boards and commissions having jurisdiction in relation to the businesses and professions licensed under the chapters specified in this section. This chapter does not apply to any business or profession not licensed under the chapters specified in this section.
     (2)(a) The director has authority under this chapter in relation to the following businesses and professions:
     (i) Auctioneers under chapter 18.11 RCW;
     (ii) Bail bond agents and bail bond recovery agents under chapter 18.185 RCW;
     (iii) Camping resorts' operators and salespersons under chapter 19.105 RCW;
     (iv) Commercial telephone solicitors under chapter 19.158 RCW;
     (v) Cosmetologists, barbers, manicurists, and estheticians under chapter 18.16 RCW;
     (vi) Court reporters under chapter 18.145 RCW;
     (vii) Driver training schools and instructors under chapter 46.82 RCW;
     (viii) Employment agencies under chapter 19.31 RCW;
     (ix) For hire vehicle operators under chapter 46.72 RCW;
     (x) Limousines under chapter 46.72A RCW;
     (xi) Notaries public under chapter 42.44 RCW;
     (xii) Private investigators under chapter 18.165 RCW;
     (xiii) Professional boxing, martial arts, and wrestling under chapter 67.08 RCW;
     (xiv) Real estate appraisers under chapter 18.140 RCW;
     (xv) Real estate brokers and salespersons under chapters 18.85 and 18.86 RCW;
     (xvi) Security guards under chapter 18.170 RCW;
     (xvii) Sellers of travel under chapter 19.138 RCW;
     (xviii) Timeshares and timeshare salespersons under chapter 64.36 RCW;
     (xix) Whitewater river outfitters under chapter 79A.60 RCW; and
     (xx) Home inspectors under chapter 18.280 RCW.
     (b) The boards and commissions having authority under this chapter are as follows:
     (i) The state board of registration for architects established in chapter 18.08 RCW;
     (ii) ((The cemetery board established in chapter 68.05 RCW;
     (iii))) The Washington state collection agency board established in chapter 19.16 RCW;
     (((iv))) (iii) The state board of registration for professional engineers and land surveyors established in chapter 18.43 RCW governing licenses issued under chapters 18.43 and 18.210 RCW;
     (((v))) (iv) The ((state board of)) funeral ((directors and embalmers)) and cemetery board established in chapter 18.39 RCW governing licenses issued under chapters 18.39 and 68.05 RCW;
     (((vi))) (v) The state board of registration for landscape architects established in chapter 18.96 RCW; and
     (((vii))) (vi) The state geologist licensing board established in chapter 18.220 RCW.
     (3) In addition to the authority to discipline license holders, the disciplinary authority may grant or deny licenses based on the conditions and criteria established in this chapter and the chapters specified in subsection (2) of this section. This chapter also governs any investigation, hearing, or proceeding relating to denial of licensure or issuance of a license conditioned on the applicant's compliance with an order entered under RCW 18.235.110 by the disciplinary authority.

Sec. 6   RCW 68.04.190 and 2005 c 365 s 39 are each amended to read as follows:
     "Cemetery authority" means an entity that has obtained a certificate of authority to operate a cemetery from the funeral and cemetery board, or any other entity that operates a cemetery that is not under the jurisdiction of the funeral and cemetery board.

Sec. 7   RCW 68.05.020 and 1953 c 290 s 27 are each amended to read as follows:
     The term "board" used in this chapter means the funeral and cemetery board.

Sec. 8   RCW 68.05.095 and 1987 c 331 s 8 are each amended to read as follows:
     ((The board shall elect annually a chairman and vice chairman and such other officers as it shall determine from among its members.)) The director, in consultation with the board, may employ and prescribe the duties of the ((executive secretary)) program administrator or manager. The ((executive secretary shall)) program administrator or manager must have a minimum of five years' experience in either cemetery or funeral management, or both, unless this requirement is waived by the board.

Sec. 9   RCW 68.05.100 and 2005 c 365 s 52 are each amended to read as follows:
     The board may establish necessary rules for the enforcement of this title and the laws subject to its jurisdiction. The board shall prescribe the application forms and reports provided for in this title. ((Rules regulating the cremation of human remains and establishing requirements shall be adopted in consultation with the state board of funeral directors and embalmers.))

Sec. 10   RCW 68.05.105 and 2005 c 365 s 53 are each amended to read as follows:
     In addition to the authority in RCW 18.235.030, the board has the following authority under this chapter:
     (1) To adopt, amend, and rescind rules necessary to carry out this title; and
     (2) To adopt standards of professional conduct or practice.

Sec. 11   RCW 68.05.175 and 1987 c 331 s 13 are each amended to read as follows:
     A permit or endorsement issued by the ((cemetery)) board or under chapter 18.39 RCW is required in order to operate a crematory or conduct a cremation. ((Crematories owned or operated by or located on property licensed as a funeral establishment shall be regulated by the board of funeral directors and embalmers. Crematories not affiliated with a funeral establishment shall be regulated by the cemetery board.))

Sec. 12   RCW 68.05.205 and 1993 c 43 s 4 are each amended to read as follows:
     The director with the consent of the ((cemetery)) board shall set all fees for chapters 68.05, 68.20, 68.24, 68.28, 68.32, 68.36, 68.40, 68.44, and 68.46 RCW in accordance with RCW 43.24.086, including fees for licenses, certificates, regulatory charges, permits, or endorsements, and the department shall collect the fees.

Sec. 13   RCW 68.24.090 and 2005 c 365 s 75 are each amended to read as follows:
     Property dedicated to cemetery purposes shall be held and used exclusively for cemetery purposes, unless and until the dedication is removed from all or any part of it by an order and decree of the superior court of the county in which the property is situated, in a proceeding brought by the cemetery authority for that purpose and upon notice of hearing and proof satisfactory to the court:
     (1) That no placements of human remains were made in or that all placements of human remains have been removed from that portion of the property from which dedication is sought to be removed.
     (2) That the portion of the property from which dedication is sought to be removed is not being used for placement of human remains.
     (3) That notice of the proposed removal of dedication has been given in writing to both the funeral and cemetery board and the ((office)) department of archaeology and historic preservation. This notice must be given at least sixty days before filing the proceedings in superior court. The notice of the proposed removal of dedication shall be recorded with the auditor or recording officer of the county where the cemetery is located at least sixty days before filing the proceedings in superior court.

Sec. 14   RCW 68.40.040 and 1987 c 331 s 37 are each amended to read as follows:
     A cemetery authority not exempt under this chapter shall file in its principal office for review by plot owners the previous seven fiscal years' endowment care reports as filed with the funeral and cemetery board in accordance with RCW 68.44.150.

Sec. 15   RCW 68.44.115 and 1987 c 331 s 44 are each amended to read as follows:
     To be considered qualified as a trustee, each trustee of an endowment care fund appointed in accordance with this chapter shall file with the board a statement of acceptance of fiduciary responsibility, on a form approved by the board, before assuming the duties of trustee. The trustee shall remain in the trustee's fiduciary capacity until such time as the trustee advises the funeral and cemetery board in writing of the trustee's resignation of trusteeship.

Sec. 16   RCW 68.44.150 and 2005 c 365 s 123 are each amended to read as follows:
     The cemetery authority or the trustees in whose names the funds are held shall, annually, and within ninety days after the end of the calendar or fiscal year of the cemetery authority, file in its office and with the funeral and cemetery board endowment care trust fund, a report showing the actual financial condition of the funds. The report must be signed by an officer of the cemetery authority or one or more of the trustees. The report must be maintained for a period of seven years.

Sec. 17   RCW 68.46.010 and 2005 c 365 s 125 are each amended to read as follows:
     The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Prearrangement contract" means a contract for purchase of cemetery merchandise or services, unconstructed crypts or niches, or undeveloped graves to be furnished at a future date for a specific consideration which is paid in advance by one or more payments in one sum or by installment payments.
     (2) "Cemetery merchandise or services" and "merchandise or services" mean those services normally performed by cemetery authorities, including the sale of monuments, markers, memorials, nameplates, liners, vaults, boxes, urns, vases, interment services, or any one or more of them.
     (3) "Prearrangement trust fund" means all funds required to be maintained in one or more funds for the benefit of beneficiaries by either this chapter or by the terms of a prearrangement contract, as herein defined.
     (4) "Board" means the funeral and cemetery board established under ((chapter 68.05)) RCW 18.39.173 or its authorized representative.
     (5) "Undeveloped grave" means any grave in an area which a cemetery authority has not landscaped, groomed, or developed to the extent customary in the cemetery industry.

Sec. 18   RCW 68.46.090 and 2005 c 365 s 135 are each amended to read as follows:
     Any cemetery authority selling prearrangement merchandise or other prearrangement services shall file in its office and with the ((cemetery)) board a written report upon forms prepared by the ((cemetery)) board which shall state the amount of the principle of the prearrangement trust fund, the depository of such fund, and cash on hand which is or may be due to the fund as well as other information the board may deem appropriate. All information appearing on such written reports shall be revised at least annually. These reports shall be verified by the president, or the vice president, and one other officer of the cemetery authority, the accountant or auditor who prepared the report, and, if required by the board for good cause, a certified public accountant in accordance with generally accepted auditing standards.

Sec. 19   RCW 68.46.130 and 1979 c 21 s 43 are each amended to read as follows:
     The ((cemetery)) board may grant an exemption from any or all of the requirements of this chapter relating to prearrangement contracts to any cemetery authority which:
     (1) Sells less than twenty prearrangement contracts per year; and
     (2) Deposits one hundred percent of all funds received into a trust fund under RCW 68.46.030, as now or hereafter amended.

Sec. 20   RCW 68.50.230 and 2005 c 365 s 146 are each amended to read as follows:
     Whenever any human remains shall have been in the lawful possession of any person, firm, corporation, or association for a period of ninety days or more, and the relatives of, or persons interested in, the deceased person shall fail, neglect, or refuse to direct the disposition, the human remains may be disposed of by the person, firm, corporation, or association having such lawful possession thereof, under and in accordance with rules adopted by the funeral and cemetery board ((and the board of funeral directors and embalmers)), not inconsistent with any statute of the state of Washington or rule adopted by the state board of health.

Sec. 21   RCW 68.60.030 and 2005 c 365 s 150 are each amended to read as follows:
     (1)(a) The ((archaeological and historical division of the department of community, trade, and economic development)) department of archaeology and historic preservation may grant by nontransferable certificate authority to maintain and protect an abandoned cemetery upon application made by a preservation organization which has been incorporated for the purpose of restoring, maintaining, and protecting an abandoned cemetery. Such authority shall be limited to the care, maintenance, restoration, protection, and historical preservation of the abandoned cemetery, and shall not include authority to make burials. In order to activate a historical cemetery for burials, an applicant must apply for a certificate of authority to operate a cemetery from the ((state)) funeral and cemetery board.
     (b) Those preservation and maintenance corporations that are granted authority to maintain and protect an abandoned cemetery shall be entitled to hold and possess burial records, maps, and other historical documents as may exist. Maintenance and preservation corporations that are granted authority to maintain and protect an abandoned cemetery shall not be liable to those claiming burial rights, ancestral ownership, or to any other person or organization alleging to have control by any form of conveyance not previously recorded at the county auditor's office within the county in which the abandoned cemetery exists. Such organizations shall not be liable for any reasonable alterations made during restoration work on memorials, roadways, walkways, features, plantings, or any other detail of the abandoned cemetery.
     (c) Should the maintenance and preservation corporation be dissolved, the ((archaeological and historical division of the department of community, trade, and economic development)) department of archaeology and historic preservation shall revoke the certificate of authority.
     (d) Maintenance and preservation corporations that are granted authority to maintain and protect an abandoned cemetery may establish care funds.
     (2) Except as provided in subsection (1) of this section, the department of ((community, trade, and economic development)) archaeology and historic preservation may, in its sole discretion, authorize any Washington nonprofit corporation that is not expressly incorporated for the purpose of restoring, maintaining, and protecting an abandoned cemetery, to restore, maintain, and protect one or more abandoned cemeteries. The authorization may include the right of access to any burial records, maps, and other historical documents, but shall not include the right to be the permanent custodian of original records, maps, or documents. This authorization shall be granted by a nontransferable certificate of authority. Any nonprofit corporation authorized and acting under this subsection is immune from liability to the same extent as if it were a preservation organization holding a certificate of authority under subsection (1) of this section.
     (3) The department of ((community, trade, and economic development)) archaeology and historic preservation shall establish standards and guidelines for granting certificates of authority under subsections (1) and (2) of this section to assure that any restoration, maintenance, and protection activities authorized under this subsection are conducted and supervised in an appropriate manner.

Sec. 22   RCW 68.60.050 and 1999 c 67 s 1 are each amended to read as follows:
     (1) Any person who knowingly removes, mutilates, defaces, injures, or destroys any historic grave shall be guilty of a class C felony punishable under chapter 9A.20 RCW. Persons disturbing historic graves through inadvertence, including disturbance through construction, shall reinter the human remains under the supervision of the ((office)) department of archaeology and historic preservation. Expenses to reinter such human remains are to be provided by the ((office)) department of archaeology and historic preservation to the extent that funds for this purpose are appropriated by the legislature.
     (2) This section does not apply to actions taken in the performance of official law enforcement duties.
     (3) It shall be a complete defense in a prosecution under subsection (1) of this section if the defendant can prove by a preponderance of evidence that the alleged acts were accidental or inadvertent and that reasonable efforts were made to preserve the remains accidentally disturbed or discovered, and that the accidental discovery or disturbance was properly reported.

Sec. 23   RCW 68.60.060 and 1990 c 92 s 5 are each amended to read as follows:
     Any person who violates any provision of this chapter is liable in a civil action by and in the name of the ((state cemetery board)) department of archaeology and historic preservation to pay all damages occasioned by their unlawful acts. The sum recovered shall be applied in payment for the repair and restoration of the property injured or destroyed and to the care fund if one is established.

NEW SECTION.  Sec. 24   A new section is added to chapter 18.39 RCW to read as follows:
     The funeral and cemetery account is created in the custody of the state treasurer. All receipts from fines and fees collected under this chapter and chapter 68.05 RCW must be deposited in the account. Expenditures from the account may be used only to carry out the duties required for the operation and enforcement of this chapter and chapter 68.05 RCW. Only the director of licensing or the director's designee may authorize expenditures from the account. The account is subject to the allotment procedures under chapter 43.88 RCW, but an appropriation is not required for expenditures.

NEW SECTION.  Sec. 25   Any residual balance of funds remaining in the funeral directors and embalmers account and the cemetery account must be transferred to the funeral and cemetery account established in section 24 of this act. The treasurer shall make the transfer after being notified by the office of financial management that it has completed the financial statement for fiscal year 2009, and no later than December 31, 2009.

NEW SECTION.  Sec. 26   The following acts or parts of acts are each repealed:
     (1) RCW 18.39.800 (Funeral directors and embalmers account) and 2005 c 365 s 25, 1996 c 217 s 9, & 1993 c 43 s 2;
     (2) RCW 68.05.040 (Cemetery board created -- Appointments -- Terms) and 2005 c 365 s 48, 1987 c 331 s 5, 1977 ex.s. c 351 s 1, & 1953 c 290 s 31;
     (3) RCW 68.05.050 (Qualifications of members) and 2005 c 365 s 49, 1979 c 21 s 5, 1977 ex.s. c 351 s 2, & 1953 c 290 s 32;
     (4) RCW 68.05.060 (Compensation and travel expenses) and 1984 c 287 s 102, 1975-'76 2nd ex.s. c 34 s 156, & 1953 c 290 s 33; and
     (5) RCW 68.05.080 (Meetings) and 2005 c 365 s 50, 1987 c 331 s 6, & 1953 c 290 s 35; and
     (6) RCW 68.05.285 ("Cemetery account.") and 2005 c 365 s 67 & 1953 c 290 s 29.

NEW SECTION.  Sec. 27   This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 2009.