20-17-1012. Permit — Transfer of ownership — Definition.

20-17-1012. Permit — Transfer of ownership — Definition. (a) As used in this section, “controlling interest” means the direct or indirect power to direct the management and policies of a perpetual care cemetery or cemetery company by contract or otherwise, other than as an officer or employee of the perpetual care cemetery or cemetery company. (b)(1)(A) If a change is proposed in the controlling interest of a perpetual care cemetery or a cemetery company or an organization that, directly or indirectly owns a controlling interest in the perpetual care cemetery or cemetery company, the cemetery company that holds the current permit and the individual or organization proposing to gain the controlling interest shall file an application for the issuance of a new permit with the State Board of Embalmers, Funeral Directors, Cemeteries, and Burial Services. (B) A controlling interest is presumed to exist if an individual or entity directly or indirectly: (i) Owns or controls fifty-one percent (51%) or more of the aggregate number of the issued or outstanding ownership interest of a perpetual care cemetery or cemetery company; or (ii) Holds proxies with the power to vote or voting rights to proxies representing fifty-one percent (51%) or more of the aggregate number of the issued or outstanding ownership interest of a perpetual care cemetery or cemetery company. (2) The application shall be accompanied by: (A) A fee of one thousand five hundred dollars ($1,500); (B) A statement of changes, if any, in the survey and map of the cemetery; (C) A set of rules and regulations for the use, care, management, and protection of the cemetery; (D) The proposed method of continuing the permanent maintenance fund for the cemetery; (E) A statement of the proposed transfer; (F) A copy of a current title opinion by an Arkansas-licensed attorney or title insurance policy that reflects that the current permit holder has good and merchantable title to the land covered by the permit; (G) A notarized statement from the seller and purchaser disclosing any current or future lien or mortgage on the land covered by the permit; (H) A notarized statement from each current or future lienholder or mortgage holder on the land covered by the permit that all paid-in-full burial spaces will be released from the lien or mortgage at least semiannually; (I)(i) A current detailed accounting of all paid-in-full merchandise contracts or accounts of the permit holder for which the merchandise has not been delivered to the purchaser or placed in inventory for the benefit of the purchaser. (ii) The accounting shall be on an individual contract or account basis and contain the name of the purchaser, the contract or account number, the date of the contract, the gross amount of the contract, a description of the merchandise purchased, the date the contract or account was paid in full, and the specific location where the merchandise is stored; (J) A current notarized statement from the permit holder that the application contains a complete and accurate accounting of all of his or her outstanding accounts receivable, discounted notes, and paid-in-full merchandise accounts or contracts for which the merchandise has not been delivered to the purchaser or placed in inventory for the benefit of the purchaser; (K) A current notarized statement from the purchaser or organization gaining a controlling interest that it will assume the responsibility and liability for the accounts, notes, and contracts of the permit holder contained in the accountings and schedules filed with the application; (L) The financial statement of the purchaser required by rule of the board showing that the purchaser has a minimum net worth of twenty thousand dollars ($20,000); (M) A copy of the sales contract, transaction documents, or conveyance documents; and (N) Any additional information required by the board or the Insurance Commissioner. (3) The board may for good cause waive all or part of an application requirement if the purchaser of a perpetual care cemetery is a state, city, or municipal government or a nonprofit organization as defined by § 501(c)(3) of the Internal Revenue Code, 26 U.S.C. § 501(c)(3). (4) Each permit holder of an interest in the cemetery company is liable for any funds and transactions up to the date of the sale or transfer. (c)(1) Before the sale or transfer, the permit holder shall notify the board of the proposed sale or transfer and shall submit to the board, under oath, any document or record the board may require in order to demonstrate that the permit holder is not indebted to the permanent maintenance fund. (2) After the transfer of ownership or a controlling interest, the permit holder shall present to the board proof that payments into the permanent maintenance fund are current. (3) The board may require proof of the status of the permanent maintenance fund by the purchaser for a reasonable period of time as necessary in the public interest. (4) The board may recover from the permit holder or purchaser for the benefit of the permanent maintenance fund: (A) All sums that the permit holder or purchaser has not properly accounted for and paid into the trust fund; and (B) Reasonable expenses incurred by the board if suit is filed or other collection action is taken. (d) A cemetery company that has been issued a permit to operate a cemetery under this subchapter remains liable for the care and maintenance of the cemetery and all amounts owed to the permanent maintenance fund until a new permit is issued to the purchaser. (e) A new permit shall not be issued to the purchaser of any cemetery until the purchaser complies with this subchapter and the board orders a new permit to be issued to the purchaser. (f) A permit holder or purchaser that violates this section is guilty of a violation and upon conviction shall be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500) for the violation.