§ 497.005 — Definitions

Florida § 497.005

• Jurisdiction: Florida
• Title: XXXIII
• Ch. 497: FUNERAL, CEMETERY, AND CONSUMER SERVICES

Text

As used in this chapter, the term:

(1) “Alternative container” means an unfinished wood box or other nonmetal receptacle or enclosure, without ornamentation or a fixed interior lining, that is designed for the encasement of human remains and that is made of fiberboard, pressed wood, composition materials (with or without an outside covering), or like materials.

(2) “At-need solicitation” means any uninvited contact by a licensee or her or his agent for the purpose of the sale of burial services or merchandise to the family or next of kin of a person after her or his death has occurred.

(3) “Bank of belowground crypts” means any construction unit of belowground crypts that is acceptable to the department and that a cemetery uses to initiate its belowground crypt program or to add to existing belowground crypt structures.

(4) “Belowground crypts” consist of interment space in preplaced chambers, either side by side or multiple depth, covered by earth and sod and known also as “lawn crypts,” “westminsters,” or “turf-top crypts.”

(5) “Beneficiary” means a natural person expressly identified in a preneed contract as the person for whom funeral merchandise or services are intended.

(6) “Board” means the Board of Funeral, Cemetery, and Consumer Services.

(7) “Burial merchandise,” “funeral merchandise,” or “merchandise” means any personal property offered or sold by any person for use in connection with the final disposition, memorialization, interment, entombment, or inurnment of human remains or cremated remains, including, but not limited to, caskets, outer burial containers, alternative containers, cremation containers, cremation interment containers, urns, monuments, private mausoleums, flowers, benches, vases, acknowledgment cards, register books, memory folders, prayer cards, and clothing.

(8) “Burial right” means the right to use a grave space, mausoleum, columbarium, ossuary, or scattering garden for the interment, entombment, inurnment, or other disposition of human remains or cremated remains.

(9) “Burial service” or “service” means any service offered or provided in connection with the final disposition, memorialization, interment, entombment, or inurnment of human remains or cremated remains. Such service is required to be offered or provided by an individual or entity licensed under this chapter.

(10) “Capital gain” or “capital loss” means a change in the value of a capital asset, such as investment or real estate, which gives the asset a different worth than the purchase price. The gain or loss is not realized until the asset is sold.

(11) “Care and maintenance” means the perpetual process of keeping a cemetery and its lots, graves, grounds, landscaping, roads, paths, parking lots, fences, mausoleums, columbaria, vaults, crypts, utilities, and other improvements, structures, and embellishments in a well-cared-for and dignified condition, so that the cemetery does not become a nuisance or place of reproach and desolation in the community. As specified in the rules of the licensing authority, “care and maintenance” may include, but is not limited to, any or all of the following activities: mowing the grass at reasonable intervals; raking and cleaning the grave spaces and adjacent areas; pruning of shrubs and trees; suppression of weeds and exotic flora; and maintenance, upkeep, and repair of drains, water lines, roads, buildings, and other improvements. “Care and maintenance” may include, but is not limited to, reasonable overhead expenses necessary for such purposes, including maintenance of machinery, tools, and equipment used for such purposes. “Care and maintenance” may also include repair or restoration of improvements necessary or desirable as a result of wear, deterioration, accident, damage, or destruction. “Care and maintenance” does not include expenses for the construction and development of new grave spaces or interment structures to be sold to the public.

(12) “Casket” means a rigid container that is designed for the encasement of human remains and that is usually constructed of wood or metal, ornamented, and lined with fabric.

(13) “Cemetery” means a place dedicated to and used or intended to be used for the permanent interment of human remains or cremated remains. A cemetery may contain land or earth interment; mausoleum, vault, or crypt interment; a columbarium, ossuary, scattering garden, or other structure or place used or intended to be used for the interment or disposition of cremated remains; or any combination of one or more of such structures or places.

(14) “Cemetery company” means any legal entity that owns or controls cemetery lands or property.

(15) “Centralized embalming facility” means a facility in which embalming takes place that operates independently of a funeral establishment licensee and that offers embalming services to funeral directors for a fee.

(16) “Cinerator” means a facility where dead human bodies are subjected to cremation.

(17) “Closed container” means any container in which cremated remains can be placed and closed in a manner so as to prevent leakage or spillage of the remains.

(18) “Columbarium” means a structure or building that is substantially exposed above the ground and that is intended to be used for the inurnment of cremated remains.

(19) “Common business enterprise” means a group of two or more business entities that share common ownership in excess of 50 percent.

(20) “Control” means the possession, directly or indirectly, through the ownership of voting shares, by contract, arrangement, understanding, relationship, or otherwise, of the power to direct or cause the direction of the management and policies of a person or entity. However, a person or entity shall not be deemed to have control if the person or entity holds voting shares, in good faith and not for the purpose of circumventing this definition, as an agent, bank, broker, nominee, custodian, or trustee for one or more beneficial owners who do not individually or as a group have control.

(21) “Cremated remains” means all the remains of the human body recovered after the completion of the cremation process, including processing or pulverization that leaves only bone fragments reduced to unidentifiable dimensions and may include the residue of any foreign matter, including casket material, bridgework, or eyeglasses that were cremated with the human remains.

(22) “Cremation” means any mechanical or thermal process whereby a dead human body is reduced to ashes and bone fragments. Cremation also includes any other mechanical or thermal process whereby human remains are pulverized, burned, recremated, or otherwise further reduced in size or quantity.

(23) “Cremation chamber” means the enclosed space within which the cremation process takes place. Cremation chambers covered by these procedures shall be used exclusively for the cremation of human remains.

(24) “Cremation container” means the casket or alternative container in which the human remains are transported to and placed in the cremation chamber for a cremation. A cremation container should meet substantially all of the following standards: (a) Be composed of readily combustible or consumable materials suitable for cremation. (b) Be able to be closed in order to provide a complete covering for the human remains. (c) Be resistant to leakage or spillage. (d) Be rigid enough to be handled with ease. (e) Be able to provide protection for the health, safety, and personal integrity of crematory personnel.

(25) “Cremation interment container” means a rigid outer container that, subject to a cemetery’s rules and regulations, is composed of concrete, steel, fiberglass, or some similar material in which an urn is placed prior to being interred in the ground and that is designed to support the earth above the urn.

(26) “Department” means the Department of Financial Services.

(27) “Direct disposal establishment” means a facility licensed under this chapter where a direct disposer practices direct disposition.

(28) “Direct disposer” means any person licensed under this chapter to practice direct disposition in this state.

(29) “Direct supervision” means supervision by a licensed: (a) Funeral director who provides initial direction and periodic inspection of the arrangements and who is physically present or on the premises of the funeral establishment at all times when the tasks, functions, and duties relating to funeral directing are performed; or (b) Embalmer who provides initial direction and instruction regarding the preservation of a dead human body in its entirety or in part and who is physically present or on the premises of the funeral establishment or embalming facility at all times when the tasks, functions, and duties relating to embalming are performed.

(30) “Director” means the director of the Division of Funeral, Cemetery, and Consumer Services.

(31) “Disinterment” means removal of a dead human body from earth interment or aboveground interment.

(32) “Division” means the Division of Funeral, Cemetery, and Consumer Services within the Department of Financial Services.

(33) “Embalmer” means any person licensed under this chapter to practice embalming in this state.

(34) “Fair market value” means the fair market value of assets held by a trust as of a specific date, assuming all assets of the trust are sold on that specific date.

(35) “Final disposition” means the final disposal of a dead human body by earth interment, aboveground interment, cremation, burial at sea, anatomical donation, or delivery to a medical institution for lawful dissection if the medical institution or entity receiving the anatomical donation assumes responsibility for disposition after use pursuant to s. 406.60. The term does not include the disposal or distribution of cremated remains and residue of cremated remains.

(36) “Funeral” or “funeral service” means the observances, services, or ceremonies held to commemorate the life of a specific deceased human being and at which the human remains are present.

(37) “Funeral director” means any person licensed under this chapter to practice funeral directing in this state.

(38) “Funeral establishment” means a facility licensed under this chapter where a funeral director or embalmer practices funeral directing or embalming.

(39) “General supervision” means supervision by a licensed: (a) Funeral director who is reasonably available and in a position to provide direction and guidance by being physically present, being on the premises of the funeral establishment, or being in proximity to the funeral establishment and available telephonically or by electronic communication at all times when the tasks, functions, and duties relating to funeral directing are performed; or (b) Embalmer who is reasonably available and in a position to provide direction and guidance by being physically present, being on the premises of the funeral establishment or embalming facility, or being in proximity to the funeral establishment or embalming facility and available telephonically or by electronic communication at all times when the tasks, functions, and duties relating to embalming are performed.

(40) “Grave space” means a space of ground in a cemetery intended to be used for the interment in the ground of human remains.

(41) “Human remains” or “remains,” or “dead human body” or “dead human bodies,” means the body of a deceased human person for which a death certificate or fetal death certificate is required under chapter 382 and includes the body in any stage of decomposition.

(42) “Income” means earnings on trust assets, including interest, dividends, and other income earned on the principal.

(43)(a) “Legally authorized person” means, in the priority listed: 1. The decedent, when written inter vivos authorizations and directions are provided by the decedent; 2. The person designated by the decedent as authorized to direct disposition pursuant to Pub. L. No. 109-163, s. 564, as listed on the decedent’s United States Department of Defense Record of Emergency Data, DD Form 93, or its successor form, if the decedent died while in military service as described in 10 U.S.C. s. 1481(a)(1)-(8) in any branch of the United States Armed Forces, United States Reserve Forces, or National Guard; 3. The surviving spouse; 4. A son or daughter who is 18 years of age or older; 5. A parent; 6. A brother or sister who is 18 years of age or older; 7. A grandchild who is 18 years of age or older; 8. A grandparent; or 9. Any person in the next degree of kinship. (b) In addition, the term legally authorized person may include, if no family member exists or is available from paragraph (a), the guardian of the dead person at the time of death; the personal representative of the deceased; the attorney in fact of the dead person at the time of death; the health surrogate of the dead person at the time of death; a public health officer; the medical examiner, county commission, or administrator acting under part II of chapter 406 or other public administrator; a representative of a nursing home or other health care institution in charge of final disposition; or a friend or other person, including a member of a representative community organization, not listed in this subsection who is willing to assume the responsibility as the legally authorized person. Where there is a person in any priority class listed in this subsection, the funeral establishment shall rely upon the authorization of any one legally authorized person of that class if that person represents that she or he is not aware of any objection to the cremation of the deceased’s human remains by others in the same class of the person making the representation or of any person in a higher priority class. No person who has been arrested for committing against the deceased an act of domestic violence as defined in s. 741.28, or any act that resulted in or contributed to the death of the deceased shall be accorded any legally recognizable interest under this section consistent with s. 732.802.

(44) “License” includes all authorizations required or issued under this chapter, except where expressly indicated otherwise, and shall be understood to include authorizations previously referred to as registrations or certificates of authority in chapters 470 and 497 as those chapters appeared in the 2004 edition of the Florida Statutes.

(45) “Licensee” means the person or entity holding any license or other authorization issued under this chapter, except where expressly indicated otherwise.

(46) “Mausoleum” means a structure or building that is substantially exposed above the ground and that is intended to be used for the entombment of human remains.

(47) “Mausoleum section” means any construction unit of a mausoleum that is acceptable to the department and that a cemetery uses to initiate its mausoleum program or to add to its existing mausoleum structures.

(48) “Monument” means any product used for identifying a grave site and cemetery memorials of all types, including monuments, markers, and vases.

(49) “Monument establishment” means a facility that operates independently of a cemetery or funeral establishment and that offers to sell monuments or monument services to the public for placement in a cemetery.

(50) “Net assets” means the amount by which the total assets of a licensee, excluding goodwill, franchises, customer lists, patents, trademarks, and receivables from or advances to officers, directors, employees, salespersons, and affiliated companies, exceed total liabilities of the licensee. For purposes of this definition, the term “total liabilities” does not include the capital stock, paid-in capital, or retained earnings of the licensee.

(51) “Net income” means, in relation to a trust, ordinary income minus any income distributions for items such as trust expenses. For purposes of this subsection, “ordinary income” means, in relation to a trust, any earnings on trust assets, including interest and dividends received on property derived from the use of the trust principal, but does not include capital gains or capital losses.

(52) “Net worth” means total assets minus total liabilities pursuant to generally accepted accounting principles.

(53) “Niche” means a compartment or cubicle for the memorialization or permanent placement of a container or urn containing cremated remains.

(54) “Ossuary” means a receptacle used for the communal placement of cremated remains without benefit of an urn or any other container in which cremated remains may be commingled with other cremated remains and are nonrecoverable. It may or may not include memorialization.

(55) “Outer burial container” means an enclosure into which a casket is placed and includes, but is not limited to, vaults made of concrete, steel, fiberglass, or copper; sectional concrete enclosures; crypts; and wooden enclosures.

(56) “Person,” when used without qualification such as “natural” or “individual,” includes both natural persons and legal entities.

(57) “Personal residence” means any residential building in which one temporarily or permanently maintains her or his abode, including, but not limited to, an apartment or a hotel, motel, nursing home, convalescent home, home for the aged, or a public or private institution.

(58) “Practice of direct disposition” means the cremation of human remains without preparation of the human remains by embalming and without any attendant services or rites such as funeral or graveside services or the making of arrangements for such final disposition.

(59) “Practice of embalming” means disinfecting or preserving or attempting to disinfect or preserve dead human bodies by replacing certain body fluids with preserving and disinfecting chemicals.

(60) “Practice of funeral directing” means the performance by a licensed funeral director of any of those functions authorized by s. 497.372.

(61) “Preneed” means any arrangement or method, of which the provider of funeral merchandise or services has actual knowledge, whereby any person agrees to furnish funeral merchandise or service in the future.

(62) “Preneed contract” means any arrangement or method for which the provider of funeral merchandise or services receives any payment in advance for funeral or burial merchandise and services after the death of the contract beneficiary. The term excludes a transportation protection agreement and any payments received on a transportation protection agreement. As used in this subsection, the term “transportation protection agreement” means an agreement that exclusively provides or arranges for services related to the preparation for the purpose of transportation and subsequent transportation of human remains or cremated remains. The Florida Insurance Code, as defined in s. 624.01, does not apply to any transportation protection agreement sold by any licensee under this chapter.

(63) “Preneed sales agent” means any person who is licensed under this chapter to sell preneed burial or funeral service and merchandise contracts or direct disposition contracts in this state.

(64) “Principal” means and includes the sole proprietor of a sole proprietorship; all partners of a partnership; all members of a limited liability company; regarding a corporation, all directors and officers, and all stockholders controlling more than 10 percent of the voting stock; and all other persons who can exercise control over the person or entity.

(65) “Processing” means the reduction of identifiable bone fragments after the completion of the cremation process to unidentifiable bone fragments by manual means.

(66) “Profession” and “occupation” are used interchangeably in this chapter. The use of the word “profession” in this chapter with respect to any activities regulated under this chapter shall not be deemed to mean that such activities are not occupations for other purposes in state or federal law.

(67) “Pulverization” means the reduction of identifiable bone fragments after the completion of the cremation and processing to granulated particles by manual or mechanical means.

(68) “Purchaser” means a person who executes a preneed or an at-need contract with a licensee for merchandise or services.

(69) “Refrigeration facility” means a facility that is operated independently of a funeral establishment, crematory, or direct disposal establishment, that maintains space and equipment for the storage and refrigeration of dead human bodies, and that offers its service to funeral directors, funeral establishments, direct disposers, direct disposal establishments, or crematories for a fee.

(70) “Religious institution” means an organization formed primarily for religious purposes that has qualified for exemption from federal income tax as an exempt organization under the provisions of s. 501(c)(3) of the Internal Revenue Code of 1986, as amended.

(71) “Removal service” means any service that operates independently of a funeral establishment or a direct disposal establishment, that handles the initial removal of dead human bodies, and that offers its service to funeral establishments and direct disposal establishments for a fee.

(72) “Rules” refers to rules adopted under this chapter unless expressly indicated to the contrary.

(73) “Scattering garden” means a location set aside, within a cemetery, that is used for the spreading or broadcasting of cremated remains that have been removed from their container and can be mixed with or placed on top of the soil or ground cover or buried in an underground receptacle on a commingled basis and that are nonrecoverable. It may or may not include memorialization.

(74) “Servicing agent” means any person acting as an independent contractor whose fiduciary responsibility is to assist both the trustee and licensee in administrating their responsibilities pursuant to this chapter.

(75) “Solicitation” means any communication that directly or implicitly requests an immediate oral response from the recipient.

(76) “Statutory accounting” means generally accepted accounting principles, except as modified by this chapter.

(77) “Temporary container” means a receptacle for cremated remains usually made of cardboard, plastic, or similar material designated to hold the cremated remains until an urn or other permanent container is acquired.

(78) “Total return withdrawal percentage” means a percentage, not to exceed 5 percent, of the fair market value of a trust.

(79) “Urn” means a receptacle designed to permanently encase cremated remains.

Legislative History

s. 3, ch. 59-363; s. 1, ch. 65-288; ss. 12, 35, ch. 69-106; s. 210, ch. 71-377; ss. 1, 2, ch. 72-78; s. 3, ch. 76-168; s. 2, ch. 76-251; s. 1, ch. 77-457; ss. 4, 39, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 3, ch. 85-16; s. 2, ch. 85-202; s. 1, ch. 89-8; ss. 40, 122, ch. 93-399; s. 3, ch. 96-400; s. 1142, ch. 97-103; s. 2, ch. 98-268; s. 2, ch. 2000-195; s. 2, ch. 2001-120; s. 550, ch. 2003-261; s. 6, ch. 2004-301; s. 2, ch. 2005-155; s. 2, ch. 2009-219; s. 1, ch. 2010-125; s. 17, ch. 2013-138; s. 121, ch. 2014-17; s. 1, ch. 2016-172; s. 2, ch. 2023-109; s. 3, ch. 2023-142; s. 7, ch. 2023-144.