Unofficial Opinion U2017-4

November 6, 2017
To: 

Representative, District 145

Re: 

The Georgia Cemetery and Funeral Services Act requires a cemetery to make deposits to a perpetual care trust fund based on a percentage of the sales price of any burial right, cemetery lot, grave space, niche, mausoleum, columbarium, urn, or crypt sold by a cemetery and prohibits a cemetery from charging an additional fee or add-on to the customer.

You have requested my unofficial opinion regarding the deposits required to be made by a cemetery to a perpetual care trust fund pursuant to O.C.G.A. § 10‑14‑6(c) (Supp. 2017) of the Georgia Cemetery and Funeral Services Act of 2000 (the “Act”), O.C.G.A. §§ 10‑14‑1 through 30 (Supp. 2017).  Specifically, you asked whether the deposit to the perpetual care trust fund is a portion of the sales price or an “additional add-on” to the customer.  I construe your use of the term “additional add-on” to mean a charge to the customer that is separate from the sales price.  Based upon my review of the applicable law, I conclude that the Act requires a cemetery to make deposits to a perpetual care trust fund based on a percentage of the sales price of any burial right, cemetery lot, grave space, niche, mausoleum, columbarium, urn, or crypt sold by a cemetery, provided that there is a minimum deposit requirement for each burial right.  It further prohibits a cemetery from charging an additional fee – which you characterized as an “additional add-on” – to the customer equal to the amount of any deposit that a cemetery is required to make to the perpetual care trust fund.

“The cardinal rule of statutory construction is first, to ascertain the legislative intent and purpose in enacting the law and then to give it that construction which will effectuate the legislative intent and purpose.”  Albany Surgical, P.C. v. Dept. of Community Health, 257 Ga. App. 636, 639 (2002).  The statement of legislative intent in the Act warns that “purchasers of preneed burial rights, funeral or burial merchandise, or funeral services or burial services may suffer serious economic harm if purchase money is not set aside for future use as intended by the purchaser and that the failure to maintain cemetery grounds properly may cause significant emotional distress.”  O.C.G.A. § 10‑14‑2(a) (Supp. 2017) (emphasis added).  In order to maintain cemetery grounds properly, the Act requires a cemetery to establish a perpetual care trust fund and to deposit funds into it based on a percentage of the sales price of certain enumerated items sold by a cemetery.  O.C.G.A. § 10‑14‑6(b)(1).  Specifically,

Whenever any burial right, cemetery lot, grave space, niche, mausoleum, columbarium, urn, or crypt wherein perpetual care or endowment care is promised or contracted for or guaranteed is sold by any cemetery, the cemetery shall make deposits to the trust fund that equal 15 percent of the sales price of the burial right or 7.5 percent of the total sales price of any mausoleums, niches, columbaria, urns, or crypts, provided that the minimum deposit for each burial right shall be $50.00; . . .

O.C.G.A. § 10‑14‑6 (c) (Supp. 2017).  See also Ga. Comp. R. & Regs. 590-3-3-.05 (Perpetual Care Trust Fund).

It is a fundamental rule of statutory construction that “‘when a statute contains clear and unambiguous language, such language will be given its plain meaning and will be applied accordingly.’”  McKinney v. Fuciarelli, 298 Ga. 873, 874 (2016) (quoting Opensided MRI of Atlanta LLC v. Chandler, 287 Ga. 406, 407 (2010)).  The plain language of O.C.G.A. § 10‑14‑6(c) requires a cemetery to “make deposits to the trust that equal” a specified percentage of the “sales price” of the item or items sold, but it does not directly address whether a cemetery can then charge a customer an “additional add-on” equal to the amount of the deposit to a perpetual care trust fund.  Nevertheless, O.C.G.A. § 10‑14‑6(c) does not stand alone, as it is a part of the Act “whose key components were enacted contemporaneously.”  See Hartley v. Agnes Scott College, 295 Ga. 458, 462 (2014) (“When we consider the meaning of a statutory provision, we do not read it in isolation, but rather, we read it in the context of the other statutory provisions of which it is a part.”).  Construed together with other provisions of the Act, it does not appear that the legislature intended for customers to be charged an “additional add-on” equal to the amount of the deposit to a perpetual care trust fund, and a cemetery is, therefore, prohibited from doing so.  Id.  (“‘All statutes relating to the same subject matter are to be construed together, and harmonized wherever possible.’”) (quoting Hendry v. Hendry, 292 Ga. 1, 3 (2012).

Construing O.C.G.A. § 10‑14‑6(c) (Supp. 2017) with other provisions of the Act, except for certain enumerated fees, a cemetery owner may only charge a customer fees for the processing and for the sale[1] of burial rights, burial or funeral merchandise, and burial or funeral services:

Other than fees for the processing and for the sale of burial rights, burial or funeral merchandise, and burial or funeral services, no other fee may be directly or indirectly charged, contracted for, or received by a cemetery company as a condition for a customer to use any burial right, burial or funeral merchandise, or burial or funeral service, except for:

(1) Charges paid for opening and closing a grave and vault installation;

(2) Charges paid for transferring burial rights from one purchaser to another; . . .

(3) Charges for sales, documentary, excise, and other taxes actually and necessarily paid to a public official, which charges must be supported in fact;

(4) Charges for credit life and credit disability insurance, but only as requested by the purchaser, and the premiums for which do not exceed the applicable premium chargeable in accordance with the rates filed with the Insurance Commissioner; or

(5) Charges for interest on unpaid balances in accordance with applicable law.

O.C.G.A. § 10‑14‑17(d)(1‑5) (Supp. 2017).  This Code section further provides that it does not prohibit the imposition of reasonable fees for services in connection with a lawful disinterment or for costs due to commencing a funeral service at a time other than previously agreed upon.  Id.  The legislature’s omission from this Code section of any reference to allowing a cemetery to charge a customer a fee or “additional add-on” equal to the amount of a deposit to a perpetual care trust fund must be considered deliberate, and the imposition of such a charge to customers is, therefore, prohibited by O.C.G.A. § 10‑14‑17(d) (Supp. 2017).  See C. Brown Trucking, Inc. v. Rushing, 265 Ga. App. 676, 677 (2004) (Court must regard legislature’s omission of words “and their employees” in statute as deliberate).

The above conclusion is further supported by the requirements in the Act for a written contract for sale of burial rights, burial or funeral merchandise, or burial or funeral services.  Specifically, when making a sale, a cemetery must provide a written contract with the term “purchase price” in bold print together with an “itemization of the amounts charged for all burial rights, burial or funeral services, burial or funeral merchandise, cash advances, and fees and other charges, which itemization shall be clearly and conspicuously segregated from everything else on the written contract.”  O.C.G.A. § 10-14-18(b)(1) and (d).  See also Ga. Comp. R. & Regs. 590-3-1-.13 (Sales Contracts).  Notably, the “amount to be placed in trust” is to be listed separately on the written contract, and it is, therefore, not a part of the “itemization” of the fees and charges to the customer for the sale of any burial rights, burial or funeral merchandise, or burial or funeral services.  O.C.G.A. § 10-14-18(b)(2) (Supp. 2017); Rule 590-3-1-.13(1)(a-c).

Therefore, it is my unofficial opinion that the Georgia Cemetery and Funeral Services Act of 2000 requires a cemetery to make deposits to a perpetual care trust fund based on a percentage of the sales price of any burial right, cemetery lot, grave space, niche, mausoleum, columbarium, urn, or crypt sold by a cemetery, provided that there is a minimum deposit requirement for each burial right.  It further prohibits a cemetery from charging an additional fee/add-on to the customer equal to the amount of any deposit that a cemetery is required to make to the perpetual care trust fund.

Prepared by:

Jeffrey W. Stump

Senior Assistant Attorney General

[1] As used in the Act, the term “sale” or “sell” means and includes “every contract of sale or disposition of burial rights, grave spaces, burial services, funeral services, or burial or funeral merchandise for value.”  O.C.G.A. § 10‑14‑3(33) (Supp. 2017).