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A00309 Summary:

BILL NO    A00309A

SAME AS    SAME AS S00777-A

SPONSOR    Dinowitz

COSPNSR    

MLTSPNSR   

Amd S454, add S454-a, Gen Bus L

Prohibits the unsolicited sale of memorials and monuments unless such offer has
first been solicited by the individual to which it is sent; provides an
exception where such an offer is permissible where, in large, bold-face type at
the top of such offer, "SOLICITATION" is clearly printed; imposes civil
penalties for violations thereof.
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A00309 Actions:

BILL NO    A00309A

01/09/2013 referred to consumer affairs and protection
06/05/2013 amend and recommit to consumer affairs and protection
06/05/2013 print number 309a
06/12/2013 reported referred to codes
06/17/2013 reported referred to rules
06/18/2013 reported 
06/18/2013 rules report cal.399
06/18/2013 substituted by s777a
           S00777  AMEND=A  FUSCHILLO
           01/09/2013 REFERRED TO CONSUMER PROTECTION
           04/29/2013 1ST REPORT CAL.440
           04/30/2013 2ND REPORT CAL.
           05/01/2013 ADVANCED TO THIRD READING 
           06/10/2013 AMENDED ON THIRD READING 777A
           06/17/2013 PASSED SENATE
           06/17/2013 DELIVERED TO ASSEMBLY
           06/17/2013 referred to codes
           06/18/2013 substituted for a309a
           06/18/2013 ordered to third reading rules cal.399
           06/20/2013 passed assembly
           06/20/2013 returned to senate
           11/01/2013 DELIVERED TO GOVERNOR
           11/14/2013 SIGNED CHAP.469
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A00309 Votes:

There are no votes for this bill in this legislative session.
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A00309 Memo:

BILL NUMBER:A309A      REVISED MEMO 06/13/2013

TITLE OF BILL:  An act to amend the general business law, in relation
to the sale of monuments and memorials

PURPOSE OR GENERAL IDEA OF BILL:

This bill is meant to ensure that unsolicited offers for monuments and
memorials are clearly marked as solicitations and that the offer
contains all pertinent details with regard to the monument or memorial
being offered.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1 of the bill amends section 454 of the General Business Law
(GBL) to require that a contract for a memorial or monument include a
certificate of quality

Section 2 of the bill creates a new section 454-a of the GBL
(Unsolicited offers for monuments or memorials) which requires that
unsolicited offers be clearly labeled as solicitations and that the
offer includes all pertinent details with regard to the monument or
memorial; additionally, the attorney general is authorized to take
action to enforce these provisions.

EXISTING LAW:

Section 454 of the GBL requires information such as dimensions,
wording, layout, total price, etc, be included in a contract for a
monument or memorial; there is no such analogous requirement for
offers for monuments or memorials

JUSTIFICATION:

The purpose of this bill is to assure that the families of the
recently deceased are able to recognize the nature and details of the
sometimes numerous offers for monuments or memorials which arrive
unsolicited after a death. The fact that the offer is a solicitation
would be required to be conspicuously noted. These simple requirements
will provide families with all the information necessary to recognize
the nature of and to assess the value of offers of this type.

PRIOR LEGISLATIVE HISTORY:

2011-12- A 1 0375A - Referred to Consumer Protection/S.7373A- Referred
to Rules

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None

EFFECTIVE DATE:

This act shall take effect 90 days after it has become law.
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A00309 Text:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                        309--A

                              2013-2014 Regular Sessions

                                 I N  A S S E M B L Y

                                      (PREFILED)

                                    January 9, 2013
                                      ___________

       Introduced by M. of A. DINOWITZ -- read once and referred to the Commit-
         tee  on  Consumer Affairs and Protection -- committee discharged, bill
         amended, ordered reprinted as amended and recommitted to said  commit-
         tee

       AN  ACT  to  amend  the general business law, in relation to the sale of
         monuments and memorials

         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:

    1    Section  1.  Subdivision 2 of section 454 of the general business law,
    2  as amended by chapter 390 of the laws of 2007, is  amended  to  read  as
    3  follows:
    4    2.  Each  sale  of  a  memorial  shall  only be evidenced by a written
    5  contract which shall be signed by all the parties to the contract, which
    6  shall be dated, and which shall be completely separate and  may  not  be
    7  included  in  any other contract, agreement, purchase order, price list,
    8  itemization of funeral services and merchandise selected or  like  docu-
    9  ment reflecting the purchase by a consumer of any other real or personal
   10  property  or service related to the burial, cremation, or other disposi-
   11  tion of the remains of a deceased person. For purposes of this  section,
   12  the pourer of a foundation shall not be considered the seller of a foun-
   13  dation.  Such  separate  contract shall be prepared, completed and main-
   14  tained in accordance with this section for every memorial sale,  includ-
   15  ing  a  foundation  therefor, and shall be the only contractual document
   16  prepared in connection with such sale. Provided however in the  case  of
   17  the  sale  of  a monument or memorial made at the same time as a preneed
   18  sale of funeral goods or services, a one page document  summarizing  the
   19  transaction  shall  be  given to the consumer in addition to, but not in
   20  lieu of, the separate contract required by this section.    A  full  and
   21  complete  copy  of  such  contract shall be given to the consumer by the
   22  seller at the time of purchase of such memorial, and shall  be  retained
   23  by  the  seller  for  a  period of at least three years from the date of
   24  sale. Said contract shall contain at least the following:

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD01458-05-3
       A. 309--A                           2

    1    (a) the name, address and telephone number of the seller of the  memo-
    2  rial;
    3    (b) the name, address and telephone number of the consumer;
    4    (c)  the full name of the individual to be memorialized and, if known,
    5  the date of such individual's death;
    6    (d) a full description of the memorial, including the material  to  be
    7  provided,  the  dimensions of the finished memorial, a sketch or drawing
    8  of the proposed memorial, the wording of any inscription on such memori-
    9  al including the approximate layout thereof, [and] the method of engrav-
   10  ing of such inscription AND THE COUNTRY OR STATE OF ORIGIN OF SUCH MONU-
   11  MENT OR MEMORIAL PROVIDED BY THE MANUFACTURER;
   12    (e)  the  approximate  date  when  the  memorial  is  expected  to  be
   13  completed;
   14    (f)  the  name  of the cemetery in which the memorial is to be placed,
   15  together with the location of the plot or grave, if known; and
   16    (g) a full disclosure of each of the following: the price of the memo-
   17  rial; applicable sales tax, if any; the charge made by the cemetery  for
   18  the  foundation;  any  charges  for  additional work, provided that such
   19  additional work is clearly described in the contract  and  such  charges
   20  are  itemized;  the  total  price  as  contracted;  and the schedule for
   21  payment, if any.
   22    S 2. The general business law is amended by adding a new section 454-a
   23  to read as follows:
   24    S 454-A. UNSOLICITED OFFERS FOR MONUMENTS OR MEMORIALS. 1. (A)  EXCEPT
   25  AS  PROVIDED  IN PARAGRAPH (B) OF THIS SUBDIVISION, IT SHALL BE UNLAWFUL
   26  TO PROVIDE ANY OFFER FOR MONUMENTS OR  MEMORIALS  BY  MAIL  UNLESS  SUCH
   27  OFFER HAS FIRST BEEN SOLICITED BY THE INDIVIDUAL TO WHICH IT IS SENT.
   28    (B)  PROVIDED,  HOWEVER, SUCH AN OFFER IS PERMISSIBLE WHERE, IN LARGE,
   29  BOLD-FACE TYPE AT THE TOP  OF  SUCH  OFFER,  "SOLICITATION"  IS  CLEARLY
   30  PRINTED.
   31    2.  WHENEVER  THERE  SHALL  BE  A  VIOLATION OF THE PROVISIONS OF THIS
   32  SECTION, AN APPLICATION MAY BE MADE BY THE ATTORNEY GENERAL IN THE  NAME
   33  OF  THE  PEOPLE  OF  THE  STATE OF NEW YORK TO A COURT OR JUSTICE HAVING
   34  JURISDICTION TO ISSUE AN INJUNCTION, AND UPON NOTICE TO THE DEFENDANT OF
   35  NOT LESS THAN FIVE DAYS, TO ENJOIN AND RESTRAIN THE CONTINUANCE  OF  THE
   36  VIOLATION.  IF  IT  SHALL APPEAR TO THE SATISFACTION OF THE COURT OR THE
   37  JUSTICE THAT THE DEFENDANT HAS VIOLATED THIS SECTION, AN INJUNCTION  MAY
   38  BE ISSUED BY THE COURT OR JUSTICE, ENJOINING AND RESTRAINING ANY FURTHER
   39  VIOLATION,  WITHOUT  REQUIRING  PROOF  THAT ANY PERSON HAS, IN FACT BEEN
   40  INJURED OR DAMAGED THEREBY. IN ANY SUCH PROCEEDING, THE COURT  MAY  MAKE
   41  ALLOWANCES  TO  THE  ATTORNEY  GENERAL  AS  PROVIDED IN PARAGRAPH SIX OF
   42  SUBDIVISION (A) OF SECTION EIGHT THOUSAND THREE  HUNDRED  THREE  OF  THE
   43  CIVIL  PRACTICE LAW AND RULES AND DIRECT RESTITUTION. IN CONNECTION WITH
   44  ANY SUCH PROPOSED APPLICATION, THE ATTORNEY  GENERAL  IS  AUTHORIZED  TO
   45  TAKE  PROOF  AND MAKE A DETERMINATION OF THE RELEVANT FACTS AND TO ISSUE
   46  SUBPOENAS IN ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES.  WHENEVER
   47  THE COURT SHALL DETERMINE THAT A VIOLATION OF THIS SECTION HAS OCCURRED,
   48  THE COURT MAY IMPOSE A CIVIL PENALTY OF UP TO FIVE HUNDRED  DOLLARS  FOR
   49  THE  FIRST  VIOLATION  AND  UP TO ONE THOUSAND DOLLARS FOR THE SECOND OR
   50  SUBSEQUENT VIOLATION WITHIN AN EIGHTEEN MONTH PERIOD.
   51    3. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO  CEMETERY  CORPO-
   52  RATIONS  AS DEFINED AND REGULATED BY ARTICLE FIFTEEN OF THE NOT-FOR-PRO-
   53  FIT CORPORATION LAW AND THE REGULATIONS PROMULGATED THEREUNDER.
   54    S 3. This act shall take effect on the ninetieth day  after  it  shall
   55  have become a law.
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