Chapter 97 — Rights
and Duties Relating to Cemeteries, Human Bodies and Anatomical Gifts
2011 EDITION
CEMETERIES, HUMAN BODIES AND ANATOMICAL
GIFTS
PROPERTY RIGHTS AND TRANSACTIONS
GENERAL PROVISIONS
97.010 Definitions
97.020 Exemption
of certain organizations and cemeteries from certain sections of chapter
97.030 Vested
rights not acquired
97.040 Private
family burial grounds
AUTOPSIES
97.082 Consent
for certain autopsies; form
DISPOSITION OF HUMAN BODIES
97.110 Human
remains not to be attached
97.120 Human
remains to be deposited in accordance with ORS 97.010 to 97.040, 97.110 to
97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990
97.130 Right
to control disposition of remains; delegation
97.145 Liability
for failure to conform to written instrument directing control of remains
97.150 Disposition
of cremated remains; procedures; notice; limitations on liability of cemetery
authority, crematory operator or funeral service provider
97.153 Diagnostic
or therapeutic radioisotopes in body
97.160 Duty
of hospital or sanitarium to notify before sending remains to undertaker;
procedures
97.170 Disposition
of unclaimed body of deceased person; rules
97.180 Period
within which body may not be used
97.190 Post-mortem
examination of body
97.200 Disposition
of remains after educational use thereof
97.210 Exceptions
to application of ORS 97.170 to 97.200; rules
97.220 Disinterment
DEDICATION TO CEMETERY PURPOSES; PLATTINGS
97.310 Survey
and subdivision of land; map or plat of mausoleum or columbarium; access
easement
97.320 Filing
map or plat and declaration of dedication of land to cemetery purposes
97.330 When
dedication is complete
97.340 Effect
of dedication
97.350 Dedication
to cemetery purposes not invalid
97.360 Resurvey
and alteration in shape or size; vacation of streets, walks, driveways and
parks and replatting into lots
97.370 Fixing
date of hearing; notice
97.380 Hearing;
order allowing replatting
97.390 Assessment
of benefits and damages
97.400 Disposal
of newly created lots; disposition and use of proceeds from sale; failure of
owner to perform duties
97.410 Right
of adjacent lot owner upon vacation of way
97.420 Effect
of failure to object
97.430 Declaration
of exercise of police power and right of eminent domain
97.440 Removal
of dedication
97.445 Vacating
county interest in cemetery real property
97.450 Discontinuance
of cemetery and removal of remains and markers
97.460 Requirements
for establishment of cemetery or burial park
SALES AND RIGHTS IN RESPECT OF CEMETERY
PLOTS
97.510 Sale
and conveyance of plots by cemetery authority
97.520 Sale
or offer to sell cemetery plot upon promise of resale at financial profit
97.530 Commission,
bonus or rebate for sale of plot or services
97.540 Commission,
bonus or rebate for recommendation of cemetery
97.550 Plots
are indivisible
97.560 Presumption
of sole ownership in grantee of plot
97.570 Spouse
has vested right of interment
97.580 Divestiture
of spouse’s right of interment
97.590 Transfer
of plot or right of interment
97.600 Descent
of plot
97.610 Determining
occupant of burial plot having co-owners
97.620 Death
of co-owner; authorization to use plot under directions of surviving owners
97.630 Family
plots; order of occupation
97.640 Waiver
or termination of vested right of interment
97.650 Limitations
upon vested right of interment
NONPROFIT CORPORATIONS
97.660 Lands
of cemetery or crematory corporation; exemption from execution, taxation and
condemnation
97.665 Revenues;
restrictions on uses of revenue
97.670 Selling
land unsuited for burials
97.675 Burial
lots or space; use; exemption from taxation, execution and liens; lien for
purchase price of gravestone
97.680 Recording
plan; power to improve and regulate grounds
CEMETERY MANAGEMENT
97.710 Power
of cemetery to make rules and regulations
97.720 Record
of interments and cremations; inspection
97.730 Gifts
and bequests in trust for cemeteries
INDIAN GRAVES AND PROTECTED OBJECTS
97.740 Definitions
for ORS 97.740 to 97.760
97.745 Prohibited
acts; application; notice
97.750 Permitted
acts; notice
97.760 Civil
action by Indian tribe or member; time for commencing action; venue; damages;
attorney fees
OREGON COMMISSION ON HISTORIC CEMETERIES
97.772 Definition
of “historic cemetery”
97.774 Oregon
Commission on Historic Cemeteries; terms
97.776 Commission
members; nominations
97.778 Chairperson;
quorum; meetings
97.780 Duties
97.782 Listing
of historic cemeteries; form
97.784 Executive
secretary; support services
CEMETERY CARE
97.810 Endowment
care and nonendowed care cemeteries
97.820 Placing
cemetery under endowed care; deposit; commingling endowment and special care
funds; trustee or custodian of fund
97.825 Suits
to enforce endowed care statutes; attorney fees
97.830 Investment
and reinvestment of principal of endowed care funds; use and application of
income
97.835 Limitation
of duties and liability of trustee
97.840 Cemetery
authority authorized to receive and hold gifts of property; disposition of
gifts
97.850 Endowment
and special care funds are charitable
97.860 Agreements
for care
97.865 Application
of ORS 97.810 to 97.865 to religious, county and city cemeteries
97.870 Unused
and uncared for portions of cemetery declared common nuisances
97.880 Resolution
declaring a nuisance
97.890 Complaint
97.900 Summons
97.910 Disuse
as prima facie evidence of abandonment
97.920 Judgment
declaring nuisance, authorizing abatement and creating and foreclosing lien
PREARRANGEMENT SALES AND PRECONSTRUCTION
SALES
97.923 Definitions
for ORS 97.923 to 97.949
97.925 Purpose
97.926 Rulemaking
authority
97.927 Applicability
of ORS 97.923 to 97.949
97.929 Exceptions
to ORS 97.923 to 97.949
97.931 Registration
of salesperson for endowment care cemeteries, preconstruction sales and
prearrangement sales; rules; background check; civil penalties
97.933 Certification
of provider of prearrangement or preconstruction sales; annual reports; audits;
fees
97.935 Registration
of master trustees; annual reports; annual audits; fees
97.936 Emergency
orders of suspension or restriction
97.937 Deposit
of trust funds made by endowment care cemeteries
97.939 Prearrangement
or preconstruction sales contracts; contents; delivery
97.941 Prearrangement
or preconstruction trust fund deposits
97.942 Appointment
of receiver; criteria
97.943 Distributions
from prearrangement trust fund deposits
97.944 Distributions
from preconstruction trust fund deposits
97.945 Funeral
and Cemetery Consumer Protection Trust Fund; fee; rules
97.946 Advertising
and marketing prohibitions
97.947 Examination
of providers and master trustees by director; subpoena power; depositions
97.948 Grounds
for discipline by director for violation of ORS 97.923 to 97.949; suspension
and revocation of certificate or registration; civil penalties; notification of
board
97.949 Notification
by director to appropriate federal, state or local law enforcement officer of
violation of ORS 97.923 to 97.949
REVISED UNIFORM ANATOMICAL GIFT ACT
97.951 Short
title
97.953 Definitions
97.955 Purpose
of anatomical gift; persons authorized to make gift
97.957 Methods
of making anatomical gift before death of donor
97.959 Revocation
or amendment of anatomical gift by donor or agent or guardian of donor
97.961 Refusal
to make anatomical gift; effect of refusal
97.963 Effect
of making, amending or revoking anatomical gift
97.965 Persons
authorized to make anatomical gift of body or body part of decedent
97.967 Methods
for making, amending or revoking anatomical gift of body or body part of
decedent by authorized person
97.969 Authorized
recipients of anatomical gifts; purposes for which gift may be used
97.970 Search
for document of anatomical gift or refusal; duty to send document or refusal to
hospital
97.971 Delivery
of document of gift or refusal not required; right to examine
97.972 Rights
and duties of procurement organizations and others; authorized examinations
97.973 Coordination
of procurement and use of anatomical gifts
97.974 Immunity
of persons acting in accordance with ORS 97.951 to 97.982
97.976 Law
governing validity of document of gift; presumption of validity
97.977 Donor
registry; duty of Department of Transportation to cooperate with donor registry
97.978 Resolution
of conflict between potential anatomical gift and advance directive
97.979 Cooperation
between medical examiner and procurement organization
97.980 Facilitation
of anatomical gift from decedent whose body is under jurisdiction of medical
examiner
97.981 Purchase
or sale of body parts prohibited
97.982 Alteration
of document of anatomical gift prohibited
97.983 Relation
to Electronic Signatures in Global and National Commerce Act
ANATOMICAL GIFTS
97.984 Liability
of executor who carries out anatomical gift
97.985 Transplants
not covered by implied warranty
FEDERAL AID FOR CEMETERIES
97.987 Department
of Transportation use of federal moneys for cemetery care
PENALTIES
97.990 Penalties
97.992 Penalties
for ORS 97.937
97.994 Penalties
for ORS 97.931, 97.933 and 97.941
GENERAL PROVISIONS
97.010 Definitions.
As used in ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to
97.920, 97.923 to 97.949, 97.990 and 97.994:
(1)
“Burial” means the placement of human remains in a grave or lawn crypt.
(2)
“Burial park” means a tract of land for the burial of human remains, used, or
intended to be used, and dedicated for cemetery purposes.
(3)
“Burial right” means the right to use a grave, mausoleum, columbarium, ossuary
or scattering garden for the interment or other disposition of human remains.
(4)
“Cemetery” means a place:
(a)
Dedicated to and used, or intended to be used, for a permanent memorial or the
permanent interment of human remains; and
(b)
That may contain a mausoleum, crypt or vault interment, a columbarium, an
ossuary, a cenotaph, a scattering garden, any other structure or place used or
intended to be used for the interment or disposition of human remains or any
combination of these structures or places.
(5)
“Cemetery association” means a corporation or association authorized by its
articles of incorporation to conduct the business of a cemetery, but does not
include a corporation sole or a charitable, eleemosynary association or
corporation.
(6)
“Cemetery authority” means a person who owns or controls cemetery lands or
property, including but not limited to a cemetery corporation, association or
corporation sole.
(7)
“Cemetery business” and “cemetery purpose” are used interchangeably and mean
any business or purpose requisite or incident to, or necessary for
establishing, maintaining, operating, improving or conducting a cemetery,
interring human remains, and the care, preservation and embellishment of
cemetery property.
(8)
“Cemetery merchandise” means personal property offered for sale or sold for use
in connection with the final disposition, memorialization
or interment of human remains. “Cemetery merchandise” includes, but is not
limited to, an outer burial container and a memorial.
(9)
“Cemetery services” means services provided by a cemetery authority for
interment or scattering, and installation of cemetery merchandise.
(10)
“Cenotaph” means a place, the primary purpose of which is to provide an area
where a person may pay to establish a memorial to honor a person whose remains
may be interred elsewhere or whose remains cannot be recovered.
(11)
“Columbarium” means a structure or room containing receptacles for permanent
inurnment of cremated remains in a place used, or intended to be used, and
dedicated for cemetery purposes.
(12)
“Cremated remains” means the remains of a cremated human body after completion
of the cremation process.
(13)
“Cremation” means the technical process, using direct flame and heat, that
reduces human remains to bone fragments.
(14)
“Crematory” means a structure containing a retort for the reduction of bodies
of deceased persons to cremated remains.
(15)
“Crypt” or “vault” means a space in a mausoleum of sufficient size used, or
intended to be used, to entomb uncremated human
remains.
(16)
“Directors” or “governing body” means the board of directors, board of trustees
or other governing body of a cemetery association.
(17)
“Endowment care” means the general care and maintenance of developed portions
of a cemetery and memorials erected thereon financed from the income of a trust
fund.
(18)
“Entombment” means the placement of human remains in a crypt or vault.
(19)
“Funeral merchandise” means personal property offered for sale or sold for use
in connection with funeral services. “Funeral merchandise” includes, but is not
limited to, acknowledgment cards, alternative containers, caskets, clothing,
cremation containers, cremation interment containers, flowers, memory folders,
monuments, outer burial containers, prayer cards, register books and urns.
(20)
“Funeral services” means services customarily provided by a funeral service
practitioner including, but not limited to, care and preparation of human
remains for final disposition, professional services relating to a funeral or
an alternative to a funeral, transportation of human remains, limousine services,
use of facilities or equipment for viewing human remains, visitation, memorial
services or services that are used in connection with a funeral or alternative
to a funeral, coordinating or conducting funeral rites or ceremonies, and other
services provided in connection with a funeral, alternative to a funeral or
final disposition of human remains.
(21)
“Grave” means a space of ground in a burial park used, or intended to be used,
for burial of the remains of one person.
(22)
“Human remains” or “remains” means the body of a deceased person in any stage
of decomposition or after cremation.
(23)
“Interment” means the disposition of human remains by inurnment, entombment or
burial.
(24)
“Inurnment” means the placement of cremated remains in a receptacle and the
deposit of the receptacle in a niche.
(25)
“Lot,” “plot” or “burial space” means space in a cemetery owned by one or more
individuals, an association or fraternal or other organization and used, or
intended to be used, for the permanent interment therein of the remains of one
or more deceased persons. Such terms include and apply with like effect to one,
or more than one, adjoining grave, crypt, vault or niche.
(26)
“Mausoleum” means a structure substantially exposed above ground for the entombment
of human remains in crypts or vaults in a place used, or intended to be used,
and dedicated for cemetery purposes.
(27)
“Memorial” means a product, other than a mausoleum or columbarium, used for
identifying an interment space or for commemoration of the life, deeds or
career of a decedent including, but not limited to, an ossuary, monument,
marker, niche plate, urn garden plaque, crypt plate, cenotaph, marker bench or
vase.
(28)
“Niche” means a recess usually in a columbarium used, or intended to be used,
for the inurnment of the cremated remains of one or more persons.
(29)
“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.
(30)
“Plot owner” or “owner” means any person identified in the records of the
cemetery authority as owner of the burial rights to a burial plot, or who holds
a certificate of ownership conveyed from the cemetery authority of the burial
rights in a particular lot, plot or space.
(31)
“Scattering” means the lawful dispersion of cremated remains that need not be
associated with an interment right or issuance of a deed, that may be recorded
only as a service that has taken place and may not be recorded on the permanent
records of the cemetery authority.
(32)
“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.
(33)
“Special care” means any care in excess of endowed care in accordance with the
specific directions of a donor of funds. [Amended by 1955 c.545
§1; 1965 c.396 §1; 2007 c.661
§1; 2009 c.709 §10]
97.020 Exemption of certain organizations
and cemeteries from certain sections of chapter.
(1) The provisions of ORS 97.030, 97.120, 97.310 to 97.350, 97.360 (1), 97.510
and 97.550 relating to private cemeteries do not apply to:
(a)
Any religious or eleemosynary corporation, church, religious society or
denomination, corporation sole administering temporalities of any church or
religious society or denomination or any cemetery that such entity organizes,
controls or operates.
(b)
Any county or city cemetery.
(c)
A historic cemetery, as defined in ORS 97.772, operated and maintained by a
nonprofit organization described in section 501(c)(3) of the Internal Revenue
Code that is exempt from income tax under section 501(a) of the Internal
Revenue Code.
(2)
The provisions of ORS 97.810 to 97.865 relating to private cemeteries do not
apply to:
(a)
Any religious or eleemosynary corporation, church, religious society or
denomination, corporation sole administering temporalities of any church or
religious society or denomination or any cemetery that such entity organizes,
controls or operates, unless the cemetery authority for an entity described in
this paragraph elects to subject itself to ORS 97.810 to 97.865.
(b)
Any county or city cemetery, unless the county or city elects to subject itself
to ORS 97.810 to 97.865.
(c)
A historic cemetery, as defined in ORS 97.772, operated and maintained by a
nonprofit organization described in section 501(c)(3) of the Internal Revenue
Code that is exempt from income tax under section 501(a) of the Internal
Revenue Code. [Amended by 1955 c.473 §1; 1997 c.167 §1; 2011 c.162 §1]
97.030 Vested rights not acquired.
No cemetery authority or person having a right of sepulture or any other right
under ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to
97.920 and 97.990 acquires any vested right by virtue thereof which the
Legislative Assembly may not subsequently amend, alter or repeal.
97.040 Private family burial grounds.
Except for ORS 97.730, 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730,
97.810 to 97.920 and 97.990 do not apply to private family burial grounds where
lots are not offered for sale.
97.050 [1977 c.183 §1; 1983 c.526 §4; 1985 c.747 §49; 1987 c.660 §16; 1989 c.1034 §8; renumbered 127.605 in 1989]
97.055 [1977 c.183 §2; 1979 c.211 §1; 1983 c.526 §5; renumbered 127.610 in 1989]
97.060 [1977 c.183 §3; renumbered 127.615 in 1989]
97.065 [1977 c.183 §4; renumbered 127.620 in 1989]
97.070 [1977 c.183 §5; renumbered 127.625 in 1989]
97.075 [1977 c.183 §6; repealed by 1983 c.526 §7]
97.080 [1977 c.183 §7; renumbered 127.630 in 1989]
AUTOPSIES
97.082 Consent for certain autopsies;
form. (1) Except as provided in subsection
(2) of this section, whenever a person dies and no autopsy is ordered by a
medical examiner or district attorney pursuant to ORS 146.117, an autopsy may
not be conducted without the prior written consent of a person within the first
applicable class of the following listed classes:
(a)
The spouse of the decedent;
(b)
A son or daughter of the decedent 18 years of age or older;
(c)
Either parent of the decedent;
(d)
A brother or sister of the decedent 18 years of age or older;
(e)
A guardian of the decedent at the time of death;
(f)
A person in the next degree of kindred to the decedent;
(g)
The personal representative of the estate of the decedent; or
(h)
The person nominated as the personal representative of the decedent in the
decedent’s last will.
(2)(a)
Consent required under subsection (1) of this section must be granted on a
written autopsy consent form developed pursuant to subsection (3) of this
section.
(b)
If the person authorized by subsection (1) of this section to grant written
consent to conduct an autopsy is not available to grant written consent in
person, the authorized person may grant consent by completing the required
consent form and returning the signed form, by facsimile or other electronic
transmission, to the party requesting permission.
(3)
The Public Health Officer, in consultation with the State Medical Examiner,
shall develop and make available a standardized written autopsy consent form
that:
(a)
Grants the person specified in subsection (1) of this section the authority to:
(A)
Grant permission to conduct an unlimited autopsy;
(B)
Grant permission to conduct a limited autopsy and to specify what limitations
are imposed upon the autopsy; or
(C)
Refuse permission to conduct an autopsy.
(b)
Provides a section for the person specified in subsection (1) of this section
to submit specific instructions with respect to tests to be performed during
the autopsy and to the disposition of organs and tissue removed for purposes of
a limited autopsy.
(c)
Provides that the consent signature be accompanied by the signature of a
witness. [2003 c.416 §1]
Note: 97.082
was enacted into law by the Legislative Assembly but was not added to or made a
part of ORS chapter 97 or any series therein by legislative action. See Preface
to Oregon Revised Statutes for further explanation.
97.083 [1983 c.526 §1; renumbered 127.635 in 1989]
97.084 [1983 c.526 §2; renumbered 127.640 in 1989]
97.085 [1977 c.183 §§8,9,10; renumbered 127.645 in 1989]
97.090 [1977 c.183 §11; renumbered 127.650 in 1989]
DISPOSITION OF HUMAN BODIES
97.110 Human remains not to be attached.
No person shall attach, detain or claim to detain any human remains for any
debt or demand or upon any pretended lien or charge.
97.120 Human remains to be deposited in
accordance with ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810
to 97.920 and 97.990. A cemetery authority shall
deposit or dispose of human remains as provided by ORS 97.010 to 97.040, 97.110
to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990.
97.130 Right to control disposition of
remains; delegation. (1) Any individual of sound mind
who is 18 years of age or older, by completion of a written signed instrument
or by preparing or prearranging with any funeral service practitioner licensed
under ORS chapter 692, may direct any lawful manner of disposition of the
individual’s remains. Except as provided under subsection (6) of this section,
disposition directions or disposition prearrangements that are prepaid or that
are filed with a funeral service practitioner licensed under ORS chapter 692
are not subject to cancellation or substantial revision.
(2)
A person within the first applicable listed class among the following listed
classes that is available at the time of death, in the absence of actual notice
of a contrary direction by the decedent as described under subsection (1) of
this section or actual notice of opposition by completion of a written
instrument by a member of the same class or a member of a prior class, may
direct any lawful manner of disposition of a decedent’s remains by completion
of a written instrument:
(a)
The spouse of the decedent.
(b)
A son or daughter of the decedent 18 years of age or older.
(c)
Either parent of the decedent.
(d)
A brother or sister of the decedent 18 years of age or older.
(e)
A guardian of the decedent at the time of death.
(f)
A person in the next degree of kindred to the decedent.
(g)
The personal representative of the estate of the decedent.
(h)
The person nominated as the personal representative of the decedent in the
decedent’s last will.
(i) A public health officer.
(3)(a)
The decedent or any person authorized in subsection (2) of this section to
direct the manner of disposition of the decedent’s remains may delegate such
authority to any person 18 years of age or older.
(b)
Delegation of the authority to direct the manner of disposition of remains must
be made by completion of:
(A)
The written instrument described in subsection (7) of this section; or
(B)
A written instrument recognized by the Armed Forces of the United States, as
that term is defined in ORS 348.282, if the decedent died while serving in the
Armed Forces of the United States.
(c)
The person to whom the authority is delegated has the same authority under
subsection (2) of this section as the person delegating the authority.
(4)
If a decedent or the decedent’s designee issues more than one authorization or
direction for the disposal of the decedent’s remains, only the most recent
authorization or direction is binding.
(5)
A donation of anatomical gifts under ORS 97.951 to 97.982 takes priority over
directions for the disposition of a decedent’s remains under this section only
if the person making the donation is of a priority under subsection (1) or (2)
of this section the same as or higher than the priority of the person directing
the disposition of the remains.
(6)
If the decedent directs a disposition under subsection (1) of this section and
those financially responsible for the disposition are without sufficient funds
to pay for such disposition or the estate of the decedent has insufficient
funds to pay for the disposition, or if the direction is unlawful, the
direction is void and disposition shall be in accordance with the direction
provided by the person given priority in subsection (2) of this section and who
agrees to be financially responsible.
(7)
The signature of the individual delegating the authority to direct the manner
of disposition is required for the completion of the written instrument
required in subsection (3)(b)(A) of this section. The following form or a form
substantially similar shall be used by all individuals:
______________________________________________________________________________
APPOINTMENT OF
PERSON
TO MAKE
DECISIONS
CONCERNING
DISPOSITION
OF REMAINS
I,
__________________, appoint__________________, whose address is _______________
and whose telephone number is (___)_________, as the person to make all
decisions regarding the disposition of my remains upon my death for my burial
or cremation. In the event ____________ is unable to act, I appoint____________,
whose address is __________________ and whose telephone number is (___)_________,
as my alternate person to make all decisions regarding the disposition of my
remains upon my death for my burial or cremation.
It
is my intent that this Appointment of Person to Make Decisions Concerning
Disposition of Remains act as and be accepted as the written authorization presently
required by ORS 97.130 (or its corresponding future provisions) or any other
provision of Oregon Law, authorizing me to name a person to have authority to
dispose of my remains.
DATED
this ___ day of______,_____.
__________________
(Signature)
DECLARATION OF
WITNESSES
We
declare that ____________ is personally known to us, that he/she signed this
Appointment of Person to Make Decisions Concerning Disposition of Remains in
our presence, that he/she appeared to be of sound mind and not acting under
duress, fraud or undue influence, and that neither of us is the person so
appointed by this document.
Witnessed By:
_______________ Date: _____
Witnessed By:
_______________ Date: _____
______________________________________________________________________________
(8) Subject to the provisions of ORS
97.951 to 97.982, if disposition of the remains of a decedent has not been
directed and authorized under this section within 10 days after the date of the
death of the decedent, a public health officer may direct and authorize
disposition of the remains.
(9) Notwithstanding subsection (2) of this
section, a person arrested for or charged with criminal homicide by reason of
the death of the decedent may not direct the disposition of the decedent’s remains.
The disposition of the decedent’s remains shall be made in accordance with the
directions of an eligible person within the first applicable class established
under subsection (2) of this section.
(10) Notwithstanding subsections (2) and
(3) of this section, if the person who has the authority to direct the manner
of disposition of cremated remains pursuant to subsection (1) or (2) of this
section transfers any portion of the cremated remains to another person, the
recipient of the cremated remains has the authority to direct the manner of
disposition of the cremated remains in the recipient’s possession. [Amended by
1969 c.175 §10; 1969 c.591 §279;
1973 c.823 §97; 1995 c.717 §10;
1997 c.472 §1; 1999 c.201 §5;
2007 c.373 §1; 2007 c.681 §24;
2011 c.154 §1; 2011 c.164 §1]
97.132
[1961 c.674 §1; repealed by 1969 c.175
§12]
97.134
[1961 c.674 §§2,3; repealed by 1969 c.175 §12]
97.140
[Repealed by 1957 c.423 §1 (97.141 and 97.145 enacted
in lieu of 97.140)]
97.141
[1957 c.423 §2 (97.141 and 97.145 enacted in lieu of
97.140); repealed by 1997 c.472 §13]
97.145
Liability for failure to conform to written instrument directing control of
remains. No cemetery authority, crematory
operator or licensed funeral service practitioner interring or cremating remains
pursuant to a written instrument signed by the decedent or a person described
in ORS 97.130 (2) shall be liable for any failure to conform to the priority of
control of remains provided in ORS 97.130, except when it shall have received
two or more conflicting written instruments prior to interment or cremation of
said remains. [1957 c.423 §3 (97.141 and 97.145
enacted in lieu of 97.140); 1997 c.472 §2]
97.150
Disposition of cremated remains; procedures; notice; limitations on liability
of cemetery authority, crematory operator or funeral service provider.
(1)(a) If the cemetery authority, crematory operator or licensed funeral
service practitioner has been authorized to cremate remains of a decedent
pursuant to ORS 97.130, the authorization must also contain further
instructions to the cemetery authority, crematory operator or licensed funeral
service practitioner as to the final disposition of the cremated remains.
(b) If the cremated remains are left in
the possession of the cemetery authority, crematory operator or licensed
funeral service practitioner and no instructions for final disposition are
given to the cemetery authority, crematory operator or licensed funeral service
practitioner within 180 days after the date of cremation, the cemetery authority,
crematory operator or licensed funeral service practitioner shall make a
reasonable effort to notify the person who has the authority to direct
disposition of the cremated remains under ORS 97.130 (2). The notice must state
that the cemetery authority, crematory operator or licensed funeral service
practitioner intends to dispose of the cremated remains unless the person who
has the authority to direct disposition of the cremated remains gives
instructions to the contrary to the cemetery authority, crematory operator or
licensed funeral service practitioner within 30 days after the date of the
notice.
(c) Reasonable effort to notify includes,
but is not limited to, notice, delivered personally or by certified mail,
return receipt requested, to the person who has the authority to direct
disposition of the cremated remains at the address of the person in the records
of the cemetery authority, crematory operator or licensed funeral service
practitioner.
(d) If the person who has the authority to
direct the disposition of the cremated remains has not given instructions for
the disposition of the cremated remains within 30 days after the date of the
notice, the cemetery authority, crematory operator or licensed funeral service
practitioner may dispose of the cremated remains as is legally practicable.
(2) A cemetery authority, crematory
operator or licensed funeral service practitioner is not liable in any civil or
criminal proceeding relating to cremated remains that have been left in the
possession of the cemetery authority, crematory operator or licensed funeral
service practitioner for a period of 180 days or more unless:
(a) The cemetery authority, crematory
operator or licensed funeral service practitioner has failed to make a
reasonable effort to notify the person who has the authority to direct
disposition of the cremated remains as described in subsection (1) of this
section;
(b) A written contract has been entered
into with the cemetery authority, crematory operator or licensed funeral
service practitioner for care of the cremated remains; or
(c) Permanent interment has been made.
(3) A cemetery authority is not liable in
any civil or criminal proceeding relating to cremated remains that have been
interred, scattered, placed in an ossuary or disposed of in any other manner
within the cemetery if the person who physically possesses the cremated remains
consents to the disposition.
(4) A cemetery authority is not liable in
any civil or criminal proceeding relating to cremated remains that have been
scattered within the cemetery without the knowledge of the cemetery authority.
The cemetery authority may dispose of cremated remains that have been scattered
within the cemetery without the knowledge of the cemetery authority as is
legally practicable.
(5) If the cemetery authority, crematory
operator or licensed funeral service practitioner has complied with this
section, then the cemetery authority, crematory operator or licensed funeral
service practitioner may dispose of the remains as is legally practicable. [Amended
by 1989 c.669 §1; 1997 c.472
§3; 2011 c.164 §2]
97.153
Diagnostic or therapeutic radioisotopes in body.
Notwithstanding section 14, chapter 653, Oregon Laws 1991, or ORS 469.525,
diagnostic or therapeutic radioisotopes remaining inside the uncremated body of a deceased person may be buried,
entombed or otherwise disposed of in a cemetery or other lawful place for the
burial, entombment or other disposal of the uncremated
body of the deceased person even though the body contains low-level radioactive
waste as defined under 42 U.S.C. 2021(b) as of
January 1, 1995, by-product material as defined under 42 U.S.C.
2014 as of January 1, 1995, or special nuclear material exempted by the United
States Nuclear Regulatory Commission as of January 1, 1995, under authority of
42 U.S.C. 2077(d). [1995 c.252
§1]
Note:
97.153 was enacted into law by the Legislative Assembly but was not added to or
made a part of ORS chapter 97 or any series therein by legislative action. See
Preface to Oregon Revised Statutes for further explanation.
97.160
Duty of hospital or sanitarium to notify before sending remains to undertaker;
procedures. (1) No hospital or sanitarium, or the
employees, agents or representatives thereof, shall send or cause to be sent to
any funeral service practitioner, undertaker, mortician or embalmer the remains
of any decedent without having complied with this section before final
disposition of the remains.
(2) If the admitting record contains the
name of a relative, friend or other person identified by the decedent in the
admitting record, or if the hospital or sanitarium is aware of the name of any
other person chargeable with the funeral expenses of the decedent, the hospital
or the sanitarium must notify the relative, friend or other person personally
or by certified mail, return receipt requested.
(3) If a hospital or sanitarium is unable
to give actual notice to a relative, friend or other person under the
provisions of subsection (2) of this section, the hospital or sanitarium must
publish a notice of death at least one time in a newspaper of general
circulation in the county where the death occurred, or, if there is no such
newspaper, in a newspaper most likely to give notice of the death to relatives
and friends of the decedent. The notice must contain the name of the decedent
and the address and phone number for the hospital or sanitarium.
(4) If the remains of the decedent are not
claimed within 10 days after the giving of notice under subsection (2) of this
section, or within 10 days after publication under subsection (3) of this
section if publication is made under subsection (3) of this section, the
hospital or sanitarium may arrange for the disposal of the remains of the
decedent without further notice in the manner specified by ORS 97.170 to
97.200.
(5) Nothing in this section limits or
governs the authority of any administrator or executor, trustee or other person
having a fiduciary relationship with the deceased or to the state, counties,
cities or towns in the disposition of the remains of a deceased person. [Amended
by 1993 c.92 §1]
97.170
Disposition of unclaimed body of deceased person; rules.
(1) As used in this section, “indigent person” means a deceased person who does
not have a death or final expense benefit or insurance policy that pays for
disposition of the deceased person’s body or other means to pay for disposition
of the deceased person’s body and who has no relative or other person with the
legal right to direct and the means to pay for disposition of the deceased
person’s body.
(2)(a) The Oregon Health and Science
University shall appoint a Demonstrator of Anatomy from the staff of the
university.
(b) The Demonstrator of Anatomy shall
maintain a list of institutions that may accept or process bodies for education
or research purposes.
(3) A medical examiner as defined in ORS
146.003 or a health care facility as defined in ORS 442.015 that has charge of
an unclaimed body of a deceased person shall promptly attempt to locate and
notify the relatives of the deceased person or other persons who have an
interest in the deceased person and shall arrange with any person who will pay
the expenses to make disposition of the body. If the medical examiner or health
care facility cannot locate a person who will pay the expenses of disposition
of the body, the medical examiner or health care facility may transfer the body
to a licensed funeral service practitioner.
(4)(a) A licensed funeral service
practitioner who takes custody of the unclaimed body of a deceased person shall
promptly verify that a medical examiner or health care facility attempted to
locate relatives and interested persons as provided in subsection (3) of this
section.
(b) If a medical examiner or health care
facility has not attempted to locate relatives and interested persons as
provided in subsection (3) of this section, the funeral service practitioner
shall, within five days after taking custody of the body, attempt to locate and
notify relatives and interested persons and shall arrange with any person who
will pay the expenses to make disposition of the body.
(c) If no one claims the body within five
days after the funeral service practitioner takes custody of the body, or if
the persons notified acquiesce, the funeral service practitioner may transfer
the body to an institution approved by the Demonstrator of Anatomy under
subsection (2) of this section that desires the body for education or research
purposes. The funeral service practitioner shall arrange with an institution
that desires the body to pay for care, preparation and transportation of the
body to the institution.
(d) If no relative, interested person or
institution claims the body as provided in paragraphs (b) and (c) of this
subsection, the funeral service practitioner may cremate or bury the body
without the consent of persons listed in ORS 97.130 and is indemnified from any
liability arising from having made such disposition. The method of disposition
must be in the least costly and most environmentally sound manner that complies
with law, and that does not conflict with known wishes of the deceased. If the
deceased person is an indigent person, the Department of Human Services shall
reimburse the funeral service practitioner for the costs of disposition under
subsection (6) of this section.
(5) When the deceased person is a child
over whom the department held guardianship at the time of death, the department
shall promptly attempt to locate and notify the relatives of the deceased child
or any other person who has an interest in the deceased child and shall arrange
with any person who will pay the expenses to make disposition of the body. If
no relatives or interested persons claim the body, the department may transfer
the body to an institution that is on the list maintained by the Demonstrator
of Anatomy under subsection (2) of this section that desires the body for
education or research purposes, or may authorize burial or cremation of the
body. The department shall pay expenses related to burial or cremation
authorized by the department under this subsection.
(6) Upon receipt of an itemized statement
of expenses and proof as required by the department by rule that the deceased
person is an indigent person, the department shall reimburse a funeral service
practitioner the reasonable costs for disposition of the body of any unclaimed
deceased indigent person. The method of disposition must be in the least costly
and most environmentally sound manner that complies with law. The department
may adopt rules establishing the process for reimbursement and setting the
maximum amount that may be reimbursed to a funeral service practitioner under
this subsection. [Amended by 1973 c.842 §1; 1985 c.704 §1; 1993 c.345 §4; 1995 c.162 §62; 2009 c.709 §8]
97.180
Period within which body may not be used. Upon
receipt of any body by a school or college pursuant to ORS 97.170, it shall be
properly embalmed for anatomical purposes, but shall be retained 30 days before
being used or dismembered. If it is claimed by any relative or friend within that
period, it shall be delivered to the claimant.
97.190
Post-mortem examination of body. Unless
required by a medical examiner to determine the cause of death or specifically
authorized and ordered by the superintendent of the hospital or institution in
which any person coming under the provisions of ORS 97.170 may die, no such
body as is mentioned in ORS 97.170 is subject to post-mortem examination,
except by consent of the Demonstrator of Anatomy. [Amended by 1959 c.629 §43; 1965 c.221 §13; 1977 c.582 §1]
97.200
Disposition of remains after educational use thereof.
The remains of any corpse used for the purposes authorized by ORS 97.170 shall,
upon completion of such use, be decently buried or cremated and the ashes, in
case of cremation, shall be delivered to any relative who claims them, after
establishing relationship. All expenses incident to burial and cremation and
the delivery of ashes to any relative shall be borne by the educational
institution which used the body for educational purposes.
97.210
Exceptions to application of ORS 97.170 to 97.200; rules.
The body of any person who died of smallpox, diphtheria, scarlet fever or other
disease that the Oregon Health Authority, by rule, may prescribe, shall not be
subject to the provisions of ORS 97.170 to 97.200. [Amended by 1977 c.582 §2; 2009 c.595 §62]
97.220
Disinterment. (1) The remains of a deceased person
interred in a plot in a cemetery may be removed from the plot with the consent
of the cemetery authority and written consent of:
(a) The person under ORS 97.130 (2)(a),
(b) or (c) who has the authority to direct disposition of the remains of the
deceased person; or
(b) If the remains are cremated remains,
the person who had possession of the cremated remains and authorized the
interment of the cremated remains.
(2) If the consent of a person described
in subsection (1) of this section or of the cemetery authority cannot be
obtained, permission by the county court of the county where the cemetery is
situated is sufficient. Notice of application to the court for such permission
must be given at least 60 days prior thereto, personally or by mail, to the
cemetery authority, to the person not consenting and to every other person or
authority on whom service of notice is required by the county court.
(3) If the payment for the purchase of an
interment space is past due for a period of 90 days or more, this section does
not apply to or prohibit the removal of any remains from one plot to another in
the same cemetery or the removal of remains by the cemetery authority from a
plot to some other suitable place.
(4) This section does not apply to the
disinterment of remains upon order of court or if ordered under the provisions
of ORS 146.045 (3)(e). [Amended by 1977 c.582 §3;
2007 c.661 §2; 2011 c.164 §3]
97.230
[Repealed by 1973 c.286 §1]
97.250
[1969 c.175 §1; repealed by 1995 c.717
§9]
97.255
[1969 c.175 §3; repealed by 1995 c.717
§9]
97.260
[1969 c.175 §2; repealed by 1995 c.717
§9]
97.265
[1969 c.175 §4; 1973 c.823 §§98,157;
1993 c.218 §1; repealed by 1995 c.717
§9]
97.268
[1985 c.379 §1; repealed by 1995 c.717
§9]
97.270
[1969 c.175 §5; repealed by 1995 c.717
§9]
97.275
[1969 c.175 §6; 1969 c.591 §278a; 1975 c.215 §1; repealed by
1995 c.717 §9]
97.280
[1969 c.175 §7; repealed by 1995 c.717
§9]
97.285
[1969 c.175 §8; repealed by 1995 c.717
§9]
97.290
[1969 c.175 §9; repealed by 1995 c.717
§9]
97.295
[Formerly 116.115; 1995 c.717 §11; renumbered 97.966
in 1995]
97.300
[1969 c.271 §1; 1995 c.717 §12;
renumbered 97.968 in 1995]
DEDICATION
TO CEMETERY PURPOSES; PLATTINGS
97.310
Survey and subdivision of land; map or plat of mausoleum or columbarium; access
easement. (1) Every cemetery authority, from time
to time as its property may require for cemetery purposes, shall:
(a) In case of land, survey and subdivide
it into sections, blocks, plots, avenues, walks or other subdivisions and make
a good and substantial map or plat showing them, with descriptive names or
numbers. In all instances this shall be done in compliance with ORS 92.010 to
92.192 except that ORS 92.090 (2)(a) and (b) shall not be applicable to
streets, alleys, ways and footpaths located wholly within a cemetery.
(b) In case of a mausoleum or columbarium,
make a good substantial map or plat on which are delineated the sections,
halls, rooms, corridors, elevation and other divisions, with descriptive names
or numbers. In all instances this shall be done in compliance with the state
building code.
(2) Every lot in a cemetery subdivision
shall include an access easement across the lot for the benefit of adjacent
lots. Designated areas between lots for the purpose of providing access to
separate lots are not required to approve a subdivision under this section. A
cemetery authority must disclose to a potential purchaser of a lot in the
cemetery the existence of the access easement across the lot. [Amended by 1965 c.396 §2; 1979 c.57 §1; 1985 c.582 §3; 1999 c.381 §1]
97.320
Filing map or plat and declaration of dedication of land to cemetery purposes.
In case of a cemetery lot, the cemetery authority shall file the map or plat in
the office of the recording officer of the county in which all or a portion of
the property is situated, and it forthwith shall file for record in that
officer’s office a written declaration dedicating the property delineated on
the plat or map exclusively to cemetery purposes.
97.330
When dedication is complete. Upon the
filing of the map or plat and of the declaration for record, the dedication is
complete for all purposes, and thereafter the property shall be held, occupied
and used exclusively for cemetery purposes.
97.340
Effect of dedication. After property is dedicated to
cemetery purposes pursuant to ORS 97.310 to 97.330 and 97.360 (1), neither the
dedication nor the title of a plot owner shall be affected by the dissolution
of the cemetery authority by nonuser on its part, by alienation of the
property, by any encumbrances, by sale under execution or otherwise, except as
provided in ORS 97.310 to 97.350, 97.360 (2), 97.440, 97.510 to 97.650, 97.710,
97.720 and 97.810 to 97.865.
97.350
Dedication to cemetery purposes not invalid.
Dedication to cemetery purposes pursuant to ORS 97.010 to 97.040, 97.110 to
97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990 is not invalid as violating
any laws against perpetuities or the suspension of the power of alienation of
title to or use of property, and is deemed to be in respect for the dead, and
is a provision for the interment of human remains and is a duty to, and for the
benefit of, the general public.
97.360
Resurvey and alteration in shape or size; vacation of streets, walks, driveways
and parks and replatting into lots.
(1) Any part or subdivision of the property so mapped and platted may, by order
of the directors and consent of the lot owners, be resurveyed and altered in
shape and size and an amended map or plat filed, so long as such change does
not disturb any interred remains.
(2) Whenever a majority of the lots as
platted or laid out in any cemetery established before March 3, 1927, or any
part thereof, has been sold without the owners or persons in control of the
cemetery having made provision for the establishment of an adequate endowment
fund for the perpetual maintenance, upkeep and beautification of the cemetery
and of the lots therein, the avenues, streets, alleys, walks, driveways and
parks therein may be vacated or altered and replatted
into lots which may be sold for burial purposes in the manner provided in this
subsection and in ORS 97.370 to 97.430. Application for the vacation or
alteration of any avenues, streets, alleys, walks, driveways or parks, and for
the replatting of the same, or any portion thereof,
for cemetery lots in any such cemetery shall be made to the county court or
board of county commissioners in the county where the cemetery is situated. The
application may be by the owners or persons in control of the cemetery or by a
group of 20 or more persons owning lots or having relatives buried therein. The
application shall be verified and shall specify the lots owned by each
petitioner in which are buried bodies of relatives in which the petitioner is
interested and shall state the reason for the proposed change and what
provisions have theretofore been made for the perpetual upkeep, maintenance and
beautification of the cemetery, and there shall be presented therewith a plat of the cemetery, together with the proposed replat, which shall have clearly indicated thereon the proposed changes.
97.370
Fixing date of hearing; notice. When any
application mentioned in ORS 97.360 (2) is filed, the court or board shall fix
the time for the hearing of it and notice of the time thereof shall be given by
publication in a paper of general circulation published in the town in which
the cemetery is situated or in the town to which it is nearest once a week for
a period of six successive weeks prior to the date of the hearing and a copy of
such notice shall be posted for a like period at three public and conspicuous
places in the cemetery. Such notice shall be addressed to all persons owning
lots or having an interest in the cemetery, but need not name them, and shall
set forth in a general way the proposed changes, the reason stated in the
application for making it, the time when the hearing of the application will be
had, and shall state that a plat showing the proposed changes is on file with
the county clerk of the county in which the cemetery is situated.
97.380
Hearing; order allowing replatting.
At the hearing mentioned in ORS 97.370 the court or board shall consider and
hear any evidence introduced in favor of the proposed change and all objections
thereto and, after a full hearing thereon, may allow the proposed change and replat in whole or in part. If the proposed change is
allowed, either in whole or in part, an order allowing it shall be made
providing that title to any new lot created by the alteration or vacation of
any avenues, streets, alleys, driveways, walks or parks, or any part thereof,
shall be vested in the owner of the fee of the part of the cemetery sought to
be vacated in trust for burial purposes, or vested in any association which may
be formed for the purpose of taking over the cemetery and operating and
maintaining it in accordance with the provisions of ORS 97.400. [Amended by
1985 c.582 §4; 1999 c.381 §2]
97.390
Assessment of benefits and damages. If any
damages are claimed by the owner of any lot in any such cemetery as is
mentioned in ORS 97.360 (2), which lot is adjacent to the avenues, streets,
alleys, driveways or parks vacated as provided in ORS 97.380, they shall be
ascertained by the county court or board of county commissioners and offset
against the benefits accruing to the lot owner on account of the upkeep and
beautification of the cemetery in the manner provided in ORS 97.400. Any person
feeling aggrieved at the amount of damages so assessed by the board may appeal
from such order of allowance to the circuit court of the county in which the
cemetery is situated in the same manner as is provided by statute for appeal
from the assessment of damages by the exercise of eminent domain in locating a
county road and on such appeal the jury, in assessing the amount of damages to
be allowed to the appellant, shall offset against such damages the benefits
accruing to the appellant as in this section above provided.
97.400
Disposal of newly created lots; disposition and use of proceeds from sale;
failure of owner to perform duties. Any owner or
association accepting the trust of handling and disposing of lots newly created
pursuant to ORS 97.380 shall by the acceptance thereof agree to dispose of the
lots only for burial purposes and at a price not less than that fixed by the
county court or board of county commissioners. The net funds derived from the
sale of the lots remaining after the payment of the reasonable expenses
incident to the vacation and of the sale shall be placed in an irreducible and
perpetual fund and the interest therefrom shall be used for the perpetual
upkeep and beautification of the cemetery and the lots therein situated. The
fund shall be placed in some reliable trust company specified by the court or
board, which trust company shall invest the same and pay the income therefrom
to the owner or association charged with the disposal of such lots. Any owner
or association taking over the sale of the lots shall comply with such
provisions as the court or board may require of it in the upkeep,
beautification and care of the cemetery with the income thereof, and if such
owner or association for any reason fails to perform such duties, the court or
board may, on its own motion, from time to time, appoint some other association
or individual to perform them. The restrictions of this section shall not apply
to the sale of lots obtained by replatting cemeteries
owned and maintained by any county.
97.410
Right of adjacent lot owner upon vacation of way.
The vacation of an avenue, street, alley, driveway, walk or park adjacent to a
cemetery lot shall vest in the owner of such lot no interest in the vacated
portion thereof; but the adjacent owner shall, for 30 days after the date of
such an order of vacation, have the right to purchase any new lot adjacent to
the lot of the owner at the price fixed by the court or board at which the lots
are to be sold, and if there is more than one adjacent lot owner, the new lot
shall be sold to the one offering the highest price therefor.
97.420
Effect of failure to object. Any owner of
such cemetery as is mentioned in ORS 97.360 (2), or of any lot therein, or any
relative or heir of any deceased person buried in such cemetery who fails to
appear and file written objection to any proposed replat,
alteration or vacation, authorized by ORS 97.360 (2), shall be deemed to have
consented to the proposed change and shall be forever barred from claiming any
right to use and have open for traffic or passageway any streets, alleys,
driveways or parks vacated, or any right, title or interest therein, except as
provided in ORS 97.360 (2) and 97.370 to 97.410.
97.430
Declaration of exercise of police power and right of eminent domain.
The enactment of ORS 97.360 (2) and 97.370 to 97.430 is hereby declared to be a
necessary exercise of the police powers of the state in order to preserve and
keep existing cemeteries as resting places for the dead and to preserve old and
historic cemeteries from becoming unkempt and places of reproach and desolation
in the communities in which they are located. The taking of avenues, streets,
alleys, walks, driveways and parks for the purpose and by the method specified
in ORS 97.360 (2) and 97.370 to 97.420 is hereby declared an exercise of the
right of eminent domain in behalf of the public health, safety, comfort,
pleasure and historic instruction.
97.440
Removal of dedication. (1) Property dedicated to
cemetery purposes shall be held and used exclusively for cemetery purposes
until the dedication is removed from all or any part of it by an order and
decree of the county court or board of county commissioners 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 that:
(a) The portion of the property from which
dedication is sought to be removed is not being used for interment of human
remains; or
(b) The Oregon Commission on Historic
Cemeteries has received notice of and had the opportunity to comment on the
removal from the dedicated property of all human remains and markers dated
prior to February 14, 1909.
(2) The notice of hearing required by this
section must:
(a) Be given by publication once a week
for at least four consecutive weeks in a newspaper of general circulation in
the county where the cemetery is located and by publication twice in a
newspaper with statewide circulation;
(b) Be posted in three conspicuous places
on that portion of the property from which the dedication is to be removed;
(c) Describe the portion of the cemetery
property sought to be removed from dedication;
(d) State that all remains and markers
have been removed or that no interments have been made in the portion of the
cemetery property sought to be removed from dedication; and
(e) Specify the time and place of the
hearing. [Amended by 2003 c.237 §1]
97.445
Vacating county interest in cemetery real property.
Consistent with the provisions of ORS 368.326 to 368.366, a county may vacate
any real property interests the county may own in a cemetery. Consistent with
ORS 368.366 (2), the county may vacate its real property interests in favor of
a private nonprofit organization provided the organization states its intent to
provide for the continuing maintenance and care of the cemetery and associated
facilities. [1997 c.747 §2]
97.450
Discontinuance of cemetery and removal of remains and markers.
(1)(a) Whenever any cemetery that is within the limits of any county, city or
town has been abandoned, or it is desirable to abandon such cemetery, the
governing body of any county, if the cemetery is owned by the county, or the
corporate authorities of the city or town, if the cemetery is owned by the city
or town, or the trustees or directors, if the cemetery is owned by an
association or corporation, may order that such burial ground be discontinued,
have the remains of all persons interred in the cemetery moved to some other suitable
place and provide for the removal and reerection of
all stones and monuments marking said graves. Each removal must be made in an
appropriate manner and in accordance with the directions of the Director of the
Oregon Health Authority. Prior to any removal authorized under this section,
written notice must be given to the family, or next of kin of the deceased, if
known, and if unknown, notice of the removal shall be published for at least
four successive weeks in a newspaper of general circulation in the county in
which the cemetery is located and twice in a newspaper with statewide
circulation.
(b) Any removal and the costs of the
proceedings under this section shall be at the expense of the county, city or
town, individual, corporation or association owning the cemetery to be moved.
(2) Notwithstanding subsection (1)(a) of
this section, a cemetery or burial ground containing human remains that were
interred before February 14, 1909, may not be discontinued or declared
abandoned or have remains removed from the burial ground or cemetery without
prior notice to and comment by the Oregon Commission on Historic Cemeteries.
When commenting on a request to discontinue or declare abandoned a cemetery or
burial ground, the commission shall consider:
(a) The listing of the cemetery or burial
ground under ORS 97.782;
(b) The historic significance of the
cemetery or graves included in the request; and
(c) The findings of any archaeological
survey of the cemetery or burial ground. [Amended by 1955 c.472
§1; 2003 c.237 §2; 2009 c.595
§63]
97.460
Requirements for establishment of cemetery or burial park.
(1) A person may not lay out, open up or use any property for cemetery or
burial park purposes unless the person:
(a) Is the owner of the property;
(b) Has the written consent of the
planning commission of the county or city having jurisdiction under ORS 92.042
or, if there is no such commission in such county or city, the governing body
of such county or city;
(c) Agrees to maintain records of the
disposition of human remains on the property as required by the planning
commission or governing body of the county or city having jurisdiction under
ORS 92.042; and
(d) Agrees to disclose the disposition of
human remains upon sale of the property. Failure to disclose the disposition of
human remains does not invalidate the sale of the property.
(2) A planning commission of a county or
city or, if there is no planning commission in a county or city, the governing
body of the county or city, shall provide to the State Mortuary and Cemetery
Board a list of the requirements for laying out, opening up or using property
in the county or city for cemetery or burial park purposes. [Formerly 64.060;
1965 c.396 §3; 2009 c.709 §9]
SALES
AND RIGHTS IN RESPECT OF CEMETERY PLOTS
97.510
Sale and conveyance of plots by cemetery authority.
(1) After filing the map or plat and recording the declaration of dedication, a
cemetery authority may sell and convey plots subject to such rules and
regulations as may be then in effect and subject to such other and further
limitations, conditions and restrictions made a part of the declaration of
dedication by reference or included in the instrument of conveyance of the
plot.
(2) Scattering of cremated remains in a
scattering garden is not a sale or conveyance. [Amended by 2007 c.661 §3]
97.520
Sale or offer to sell cemetery plot upon promise of resale at financial profit.
A person, firm or corporation may not sell or offer to sell a cemetery plot
upon the promise, representation or inducement of resale at a financial profit,
except with the consent and approval of the Director of the Department of
Consumer and Business Services. Each violation of this section constitutes a
separate offense. [Amended by 1989 c.171 §13; 2007 c.661 §4]
97.530
Commission, bonus or rebate for sale of plot or services.
No cemetery authority shall pay or offer to pay, and no person, firm or
corporation shall receive, directly or indirectly, a commission, bonus, rebate
or other thing of value for the sale of a plot or services. This does not apply
to a person regularly employed by the cemetery authority for such purpose. Each
violation of this section constitutes a separate offense.
97.540
Commission, bonus or rebate for recommendation of cemetery.
No person shall pay, cause to be paid or offer to pay, and no person, firm or
corporation shall receive, directly or indirectly, except as provided in ORS
97.530, any commission, bonus, rebate or other thing of value in consideration
of recommending or causing a dead human body to be disposed of in any cemetery.
Each violation of this section constitutes a separate offense.
97.550
Plots are indivisible. All plots, the use of which has
been conveyed by deed or certificate of ownership as a separate plot, are
indivisible except with the consent of the cemetery authority, or as provided
by law.
97.560
Presumption of sole ownership in grantee of plot.
All plots conveyed to individuals are presumed to be solely and separately
owned by the person named in the instrument of conveyance.
97.570
Spouse has vested right of interment. (1) The
spouse of an owner of any plot containing more than one interment space has a
vested right of interment of the remains of the spouse in the plot, and any
person thereafter becoming the spouse of the owner has a vested right of
interment of the remains of the person in the plot if more than one interment
space is unoccupied at the time the person becomes the spouse of the owner.
(2) The purchase by a married person of
more than one interment space shall create in the spouse a right of interment
therein.
97.580
Divestiture of spouse’s right of interment. No
conveyance or other action of the owner without the written consent or joinder of the spouse of the owner divests the spouse of
the vested right of interment, except that a judgment of divorce between them
terminates the right unless otherwise provided in the judgment. [Amended by
2003 c.576 §357]
97.590
Transfer of plot or right of interment. No transfer
of any plot, heretofore or hereafter made, or any right of interment is
complete or effective until recorded on the books of the cemetery authority.
97.600
Descent of plot. Upon the death of the owner,
unless the owner has disposed of the plot either by specific direction in the
will of the owner or by a written declaration filed and recorded in the office
of the cemetery authority, if no interment has been made in an interment plot
which has been transferred by deed or certificate of ownership to an individual
owner or if all remains previously interred are lawfully removed, the plot
descends to the heirs at law of the owner, subject to the rights of interment
of the decedent and the surviving spouse of the decedent.
97.610
Determining occupant of burial plot having co-owners.
When there are two or more owners of a burial plot or of rights of interment
therein, such owners may designate one or more persons to designate the burials
to be made in the plot and file written notice of such designation with the
cemetery association. In the absence of such notice or of written objection to
its so doing, the cemetery association is not liable to any owner for interring
or permitting an interment therein upon the request or direction of any
registered co-owner of the plot.
97.620
Death of co-owner; authorization to use plot under directions of surviving
owners. An affidavit by any person having
knowledge of the fact, setting forth the fact of the death of one owner and
establishing the identity of the surviving owners named in the deed to any plot,
when filed with the cemetery authority operating the cemetery in which the plot
is located, is authorization to the cemetery authority to permit the use of the
unoccupied portion of the plot in accordance with the directions of the
surviving owners or their successors in interest.
97.630
Family plots; order of occupation. (1) Whenever
an interment of the remains of a member or of a
relative of a member of the family of the record owner, or of the remains of
the record owner, is made in a plot transferred by deed or certificate of
ownership to an individual owner, and the owner dies without making disposition
of the plot, either by direction in the owner’s will, or by a written
declaration filed and recorded in the office of the cemetery authority, the plot
thereby becomes inalienable and shall be held as the family plot of the owner,
and occupied in the following order:
(a) One grave, niche or crypt may be used
for the owner’s interment; one for the owner’s surviving spouse, if there is
one, who by ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to
97.920 and 97.990 has a vested right of interment in it; and in those
remaining, if any, the children of the deceased owner in order of death may be
interred without the consent of any person claiming any interest in the plot.
(b) If no child survives, the right of
interment goes in order of death to the spouse of any child of the record
owner.
(2) Any surviving spouse, child or child’s
spouse who has a right of interment in a family plot may waive such right in
favor of any other relative or spouse of a relative of either the deceased
owner or of the deceased owner’s spouse, and upon such waiver the remains of
the person in whose favor the waiver is made may be interred in the plot.
(3) Notwithstanding subsection (1) of this
section, the personal representative of the deceased owner of a family plot may
sell unoccupied interment spaces in the plot as property of the estate of the
deceased owner when there are no existing rights of interment in those spaces
or all existing rights of interment in those spaces have been waived and
thereby terminated.
(4) Whenever a plot is transferred by deed
or certificate of ownership to an individual owner and the transfer is recorded
on the books of the cemetery authority, the cemetery authority shall provide to
the individual owner a written statement, in a form approved by the State
Mortuary and Cemetery Board, containing a clear explanation of the provisions
of subsections (1) and (2) of this section and of the rights of interment
established thereby. [Amended by 1985 c.652 §1]
97.640
Waiver or termination of vested right of interment.
A vested right of interment may be waived and is terminated upon the interment
elsewhere of the remains of the person in whom it is vested.
97.650
Limitations upon vested right of interment. No
vested right of interment gives to any person the right to have the remains of
the person interred in any interment space in which the remains of any deceased
person having equal or prior vested right of interment have been interred; nor
does it give any person the right to have the remains of more than one deceased
person interred in a single interment space in violation of the rules and
regulations of the cemetery in which the interment space is located.
NONPROFIT
CORPORATIONS
97.660
Lands of cemetery or crematory corporation; exemption from execution, taxation
and condemnation. A nonprofit corporation
organized and existing solely for the purposes of either owning and operating a
cemetery or cremating dead bodies and burying and caring for incinerate
remains, may purchase or take, by gift or devise, and own and hold lands for
the sole purpose of either a cemetery or a crematory and burial place for
incinerate remains. Such lands shall be exempt from execution, and from any
appropriation for public purposes, and lots or portions of such land and space
in any buildings thereon may be sold, if intended to be used exclusively for
burial purposes, and in no wise with a view to the profit of the members of
such corporation. The land so held for cemetery purposes shall not exceed 600
acres, but if the land already held for such purpose by the corporation is all
practically used, the amount thereof may be increased by adding thereto not more
than 20 acres at any one time. The land so held for the purposes of a crematory
and the burial of incinerate remains shall not exceed 30 acres, but if the land
already held for such purposes by the corporation is all practically used, the
amount thereof may be increased by adding thereto not more than 10 acres at any
one time. Lands held for the purposes described in this section shall be exempt
from taxation as provided in ORS 307.150. [Formerly 65.855]
Note:
97.660 to 97.680 [formerly 65.855 to 65.875] were made a part of ORS chapter 65
by legislative action but were not added to ORS chapter 97 or any smaller
series therein. See Preface to Oregon Revised Statutes for further explanation.
97.665
Revenues; restrictions on uses of revenue. (1) A
nonprofit corporation organized or existing solely for the purposes of either
owning and operating a cemetery or cremating dead bodies and burying and caring
for incinerate remains may, by its bylaws, provide that a stated percentage of
the money received from the sale of lots and burial space, cremation of bodies,
donations, gifts or other sources of revenue shall constitute an irreducible
fund. Any bylaw enacted for the creation of the irreducible fund cannot be
amended to reduce the fund.
(2) The board of directors may direct the
investment of the money in the irreducible fund, but all investments of money
deposited in the fund on or after January 1, 1972, shall be in securities in
classes and amounts approved by the State Treasurer and published in a list pursuant
to ORS 97.820. If a bank or trust company qualified to engage in the trust
business is directed by the board of directors to invest the money in the
irreducible fund, the bank or trust company shall be governed by ORS 130.750 to
130.775 and shall not be required to invest the money according to the list
approved by the State Treasurer. An officer of the corporation shall file with
the Director of the Department of Consumer and Business Services on or before
April 15 of each year a verified statement in duplicate containing the same
information pertaining to the irreducible fund as provided in ORS 97.810 (4)
regarding endowment care funds. The director may require the corporation to
file, as often as the director considers it to be necessary, a detailed report
of the conditions and assets of the irreducible fund.
(3) The interest or income arising from
the irreducible fund provided for in this section or by any bylaws, or so much
thereof as is necessary, shall be devoted exclusively to the preservation and
embellishment of the grounds, buildings and property of the corporation and the
lots and space in buildings or grounds sold to the members of the corporation,
or to the payment of the interest or principal of the debts authorized by
subsection (5) of this section for the purchase of land, erecting buildings,
and improvements. Any surplus thereof not needed or used for such purposes
shall be invested as provided in this section and shall become part of the
irreducible fund.
(4) After paying for the land and the
erection of the original buildings and improvements thereon, all the future
receipts and income of the corporation subject to the provisions in this
section relating to the creation of an irreducible fund, whether from the sale
of lots and burial space, cremation of bodies, donations, gifts and other
sources, shall be applied exclusively to laying out, preserving, protecting,
embellishing and beautifying the cemetery or the crematory and grounds thereof,
and the avenues leading thereto, and to the erection of such buildings and
improvements as may be necessary or convenient for cemetery or crematory
purposes, and to pay the necessary expenses of the corporation.
(5) No debts shall be contracted by such
corporation in anticipation of any future receipts, except for originally
purchasing the lands authorized to be purchased by it, laying out and
embellishing the grounds and avenues, erecting buildings and vaults on such
land, and improving them for the purposes of the corporation. The corporation may
issue bonds or notes for debts so contracted and may secure them by way of
mortgage upon any of its lands, buildings, property and improvements excepting
lots or space conveyed to the members. [Formerly 65.860]
Note:
See note under 97.660.
97.670
Selling land unsuited for burials. If in the
board of directors’ opinion, any portion of the lands of a nonprofit
corporation organized and existing solely for the purposes of either owning or
operating a cemetery or the cremation of dead bodies and the burial and care of
incinerate remains is unsuitable for burial purposes or other purposes of the
corporation, the board of directors may sell such portion and apply the
proceeds to the general purposes of such corporation in the same proportion and
manner as provided by ORS 97.660 to 97.680. [Formerly 65.865]
Note:
See note under 97.660.
97.675
Burial lots or space; use; exemption from taxation, execution and liens; lien
for purchase price of gravestone. Burial lots
or space for burial of incinerate remains in buildings or grounds sold by a
nonprofit corporation organized and existing solely for the purposes of either
owning and operating a cemetery or cremating dead bodies and burying and caring
for incinerate remains shall be for the sole purpose of interment or deposit
and safekeeping of incinerate remains. Such lots or space shall be exempt from
execution, attachment or other lien or process, if used as intended by the
purchaser thereof from such corporation, or the assigns or representatives of
the purchaser, exclusively for burial purposes, and in no wise with a view to
profit. Such lots or space shall be exempt from taxation as provided in ORS
307.150. The vendor of any gravestone, however, shall not be prevented from
having and enforcing a lien thereon for all or part of its purchase price. If a
suit is brought to enforce such a lien, the judgment therein is enforceable
thereafter; and, for the purpose of enabling the lien to be had and enforced,
the gravestone shall be deemed personal property and may be severed and
removed, under execution and order of sale, from the lot where it is situated
and may be sold in the same manner as any other personal property. [Formerly
65.870]
Note:
See note under 97.660.
97.680
Recording plan; power to improve and regulate grounds.
(1) As used in this section, “plan” means a document indicating the placement
of lots or burial spaces, and of the niches or inurnment spaces in the
buildings erected thereon, as established and authorized by the cemetery
authority.
(2) A nonprofit corporation organized and
existing solely for the purposes of owning and operating a cemetery or
cremating dead bodies and burying and caring for incinerate remains shall cause
a plan of its land and grounds and of the lots laid out by it and of the niches
or burial space in the buildings erected thereon to be made and recorded in the
county in which such grounds and land are located, such lots or spaces to be
numbered by regular consecutive numbers. Such corporation may enclose, improve,
and adorn the grounds, buildings, and avenues, prescribe rules for the
designation, improvement and adorning of lots and burial spaces and for
erecting monuments, and prohibit any use, division, improvement or adornment of
a lot or burial space which it may deem improper. [Formerly 65.875]
Note:
See note under 97.660.
CEMETERY
MANAGEMENT
97.710
Power of cemetery to make rules and regulations.
(1) The cemetery authority may make and enforce rules and regulations for:
(a) The use, care, control, management,
restriction and protection of its cemetery;
(b) Restricting and limiting the use of
all property within its cemetery;
(c) Regulating the uniformity, class and
kind of all markers, monuments and other structures within its cemetery;
(d) Prohibiting the erection of monuments,
markers or other structures in or upon any portion of its property;
(e) Regulating or preventing the erection
of monuments, effigies and structures within any portion of the cemetery
grounds and for the removal thereof;
(f) Regulating the care or preventing the
introduction of plants or shrubs within such grounds;
(g) Preventing the interment in any part
thereof of a body not entitled to interment therein;
(h) Preventing the use of burial plots for
purposes violative of its restrictions;
(i) Regulating
the conduct of persons and preventing improper assemblages therein; and
(j) All other purposes deemed necessary by
the cemetery authority for the proper conduct of its business and the
protection and safeguarding of the premises and the principles, plans and
ideals on which the cemetery was organized.
(2) The cemetery authority from time to
time may amend, add to, revise, change or modify such rules and regulations.
(3) Such rules and regulations shall be
plainly printed or typewritten and maintained, subject to inspection, in the
office of the cemetery authority.
97.720
Record of interments and cremations; inspection.
(1) The person in charge of any premises on which interments or cremations are
made shall keep a record of all remains interred or cremated on the premises
under the person’s charge, in each case stating the name of each deceased
person, the date of interment or cremation, and the name and address of the
funeral service practitioner. The interment records shall be open to inspection
by survivors of the decedent during the customary office hours of the cemetery
authority.
(2) A record shall be kept of the
ownership of all plots in the cemetery which have been conveyed by the cemetery
authority and of all transfers of plots in the cemetery.
97.730
Gifts and bequests in trust for cemeteries. Gifts,
grants and bequests of personal property in trust for the purpose of providing
perpetual care and maintenance, improvement or embellishment of private burial
lots in or outside of cemeteries and of the walks, fences, monuments,
structures or tombs thereon, are permitted and shall be deemed to be for
perpetual and benevolent uses. They are not invalid by reason of any
indefiniteness or uncertainty of the persons designated as beneficiaries in the
instrument creating the trust; nor are they invalid as violating any existing
laws against perpetuities or suspension of the power of alienation of title to
property. But nothing in this section affects any existing authority or cause
to pass upon the reasonableness of the amount of such gift, grant or bequest.
Any cemetery association may act as trustee of and execute any such trust with
respect to lots, walks, fences, monuments, structures or tombs, both within or
outside its own cemetery limits, but within the county where such cemetery
association has its principal office and place of business, whether such power
is otherwise included in its corporate powers or not.
INDIAN
GRAVES AND PROTECTED OBJECTS
97.740
Definitions for ORS 97.740 to 97.760. For the
purposes of ORS 97.740 to 97.760:
(1) “Burial” has the meaning given that
term in ORS 358.905.
(2) “Funerary object” has the meaning
given that term in ORS 358.905.
(3) “Human remains” has the meaning given
that term in ORS 358.905.
(4) “Indian tribe” means any tribe of
Indians recognized by the Secretary of the Interior or listed in the Klamath
Termination Act, 25 U.S.C. 3564 et seq., or listed in
the Western Oregon Indian Termination Act, 25 U.S.C.
3691 et seq., if the traditional cultural area of the tribe includes Oregon
lands.
(5) “Object of cultural patrimony” has the
meaning given that term in ORS 358.905.
(6) “Professional archaeologist” means a
person who has extensive formal training and experience in systematic,
scientific archaeology.
(7) “Sacred object” has the meaning given
that term in ORS 358.905. [1977 c.647 §1; 1981 c.442 §3; 1985 c.198 §2; 1993 c.459 §9; 1997 c.249 §34]
97.745
Prohibited acts; application; notice. (1) Except as
provided in ORS 97.750, no person shall willfully remove, mutilate, deface,
injure or destroy any cairn, burial, human remains, funerary object, sacred
object or object of cultural patrimony of any native Indian. Persons disturbing
native Indian cairns or burials through inadvertence, including by
construction, mining, logging or agricultural activity, shall at their own
expense reinter the human remains or funerary object under the supervision of
the appropriate Indian tribe.
(2) Except as authorized by the
appropriate Indian tribe, no person shall:
(a) Possess any native Indian artifacts,
human remains or funerary object having been taken from a native Indian cairn
or burial in a manner other than that authorized under ORS 97.750.
(b) Publicly display or exhibit any native
Indian human remains, funerary object, sacred object or object of cultural
patrimony.
(c) Sell any native Indian artifacts,
human remains or funerary object having been taken from a native Indian cairn
or burial or sell any sacred object or object of cultural patrimony.
(3) This section does not apply to:
(a) The possession or sale of native
Indian artifacts discovered in or taken from locations other than native Indian
cairns or burials; or
(b) Actions taken in the performance of
official law enforcement duties.
(4) Any discovered human remains suspected
to be native Indian shall be reported to the state police, the State Historic
Preservation Officer, the appropriate Indian tribe and the Commission on Indian
Services. [1977 c.647 §2; 1979 c.420
§1; 1981 c.442 §4; 1985 c.198
§1; 1993 c.459 §10]
97.750
Permitted acts; notice. (1) Any proposed excavation by a
professional archaeologist of a native Indian cairn or burial shall be
initiated only after prior written notification to the State Historic
Preservation Officer and the state police, as defined in ORS 358.905, and with
the prior written consent of the appropriate Indian tribe in the vicinity of
the intended action. Failure of a tribe to respond to a request for permission
within 30 days of its mailing shall be deemed consent. All associated material
objects, funerary objects and human remains removed during such an excavation
shall be reinterred at the archaeologist’s expense under the supervision of the
Indian tribe.
(2) In order to determine the appropriate
Indian tribe under this section and ORS 97.745, a professional archaeologist or
other person shall consult with the Commission on Indian Services which shall
designate the appropriate tribe. [1977 c.647 §3; 1979
c.420 §2; 1981 c.442 §5;
1993 c.459 §11]
97.760
Civil action by Indian tribe or member; time for commencing action; venue;
damages; attorney fees. (1) Apart from any criminal
prosecution, an Indian tribe or enrolled member thereof shall have a civil
action to secure an injunction, damages or other appropriate relief against any
person who is alleged to have violated ORS 97.745. The action must be brought
within two years of the discovery of the violation by the plaintiff. The action
may be filed in the circuit court of the county in which the subject grave,
cairn, remains or artifacts are located, or within which the defendant resides.
(2) Any conviction pursuant to ORS 97.990
(5) shall be prima facie evidence of a violation of ORS 97.745 in an action
brought under this section.
(3) If the plaintiff prevails:
(a) The court may grant injunctive or such
other equitable relief as is appropriate, including forfeiture of any artifacts
or remains acquired or equipment used in the violation. The court shall order
the disposition of any items forfeited as it sees fit, including the reinterment of any human remains in accordance with ORS
97.745 (1);
(b) The plaintiff shall recover imputed
damages in an amount not to exceed $10,000 or actual damages, whichever is
greater. Actual damages include special and general damages, which include
damages for emotional distress;
(c) The plaintiff may recover punitive
damages upon proof that the violation was willful. Punitive damages may be
recovered without proof of actual damages. All punitive damages shall be paid by
the defendant to the Commission on Indian Services for the purposes of Indian
historic preservation; and
(d) An award of imputed or punitive
damages may be made only once for a particular violation by a particular
person, but shall not preclude the award of such damages based on violations by
other persons or on other violations.
(4) The court may award reasonable
attorney fees to the prevailing party in an action under this section. [1981 c.442 §2; 1995 c.543 §1; 1995 c.618 §55]
97.770
[1995 c.457 §7; repealed by 1999 c.731
§14]
97.771
[1995 c.457 §1; 1997 c.632 §1;
repealed by 1999 c.731 §14]
OREGON
COMMISSION ON HISTORIC CEMETERIES
97.772
Definition of “historic cemetery.” For purposes
of ORS 97.772 to 97.784, “historic cemetery” means any burial place that
contains the remains of one or more persons who died before February 14, 1909. [1999
c.731 §1; 2003 c.173 §1]
Note:
97.772 to 97.784 were enacted into law by the Legislative Assembly but were not
added to or made a part of ORS chapter 97 or any series therein by legislative
action. See Preface to Oregon Revised Statutes for further explanation.
97.773
[1995 c.457 §3; repealed by 1999 c.731
§14]
97.774
Oregon Commission on Historic Cemeteries; terms.
(1) There is established within the State Parks and Recreation Department the
Oregon Commission on Historic Cemeteries consisting of seven members appointed
by the State Parks and Recreation Director.
(2) The term of office of each member is
four years, but a member serves at the pleasure of the director. Before the
expiration of the term of a member, the director shall appoint a successor
whose term begins on July 1 next following. A member is eligible for
reappointment. If there is a vacancy for any cause, the director shall make an
appointment to become immediately effective for the unexpired term.
(3) A member of the commission is entitled
to compensation and expenses as provided in ORS 292.495. [1999 c.731 §2; 2003 c.173 §2]
Note:
See note under 97.772.
97.775
[1995 c.457 §4; repealed by 1999 c.731
§14]
97.776
Commission members; nominations. The members
of the Oregon Commission on Historic Cemeteries must be citizens of this state
who are well informed on the restoration and maintenance of historic
cemeteries. The State Parks and Recreation Director shall select members from
nominations made by organizations of local historic cemeteries, organizations
of nonprofit cemeteries, the State Mortuary and Cemetery Board and statewide
cemetery associations. The director shall try to appoint individuals to the
commission who represent or are knowledgeable concerning Native American burial
places, rural cemeteries, family burial places and metropolitan cemeteries. [1999
c.731 §4; 2003 c.173 §3]
Note:
See note under 97.772.
97.777
[1995 c.457 §5; repealed by 1999 c.731
§14]
97.778
Chairperson; quorum; meetings. (1) The
Oregon Commission on Historic Cemeteries shall select one of its members as
chairperson and another as vice chairperson for such terms and with duties and
powers necessary for the performance of the functions of such offices as the
commission determines.
(2) A majority of the members of the
commission constitutes a quorum for the transaction of business.
(3) The commission shall meet at least
once every three months at a place, day and hour determined by the commission.
The commission also shall meet at other times and places specified by the call
of the chairperson or of a majority of the members of the commission. [1999 c.731 §5; 2003 c.173 §4]
Note:
See note under 97.772.
97.779
[1995 c.457 §6; repealed by 1999 c.731
§14]
97.780
Duties. The Oregon Commission on Historic
Cemeteries shall:
(1) Maintain a listing of all historic
cemeteries in this state.
(2) Assist in coordination of restoration,
renovation and maintenance of Oregon’s historic cemeteries.
(3) Make recommendations to the State
Parks and Recreation Director for projects and funding to help maintain and
improve Oregon’s historic cemeteries.
(4) Obtain grant funding and seek
legislative appropriations for individual historic cemeteries and groups of
historic cemeteries.
(5) Make recommendations to the
Legislative Assembly for changes in law that will help protect historic
cemeteries as part of Oregon’s heritage.
(6) Assist the director in locating and listing
historic cemeteries.
(7) Assist cemeteries listed as historic
cemeteries with the commission to rehabilitate and maintain those cemeteries
and to promote public education relating to historic cemeteries.
(8) Establish a process to obtain advice
from authorities on the subject of the care of old grave markers and graveyards
as part of any restoration process. [1999 c.731 §6;
2003 c.173 §5]
Note:
See note under 97.772.
97.782
Listing of historic cemeteries; form. A historic
cemetery that is not an operating cemetery, as defined in ORS 692.010, shall be
listed with the Oregon Commission on Historic Cemeteries. An owner or any other
person or association of individuals that maintains such a historic cemetery
shall list the historic cemetery with the Oregon Commission on Historic
Cemeteries on a form provided by the commission. No fee shall be required from
a historic cemetery for listing. [1999 c.731 §7; 2003
c.173 §6]
Note:
See note under 97.772.
97.784
Executive secretary; support services. The State
Parks and Recreation Department shall provide support services to the Oregon
Commission on Historic Cemeteries. One staff person of the department shall be
the executive secretary of the commission. [1999 c.731
§8; 2003 c.173 §7]
Note:
See note under 97.772.
CEMETERY
CARE
97.810
Endowment care and nonendowed care cemeteries.
(1) As used in this section:
(a) “Endowment care cemetery” means a
cemetery that maintains an endowment care fund placed in an irrevocable trust
fund.
(b) “Grave liner” means a burial
receptacle designed to be installed in a grave, as defined in ORS 97.010, to
assist in preventing the ground from collapsing.
(2) An endowment care cemetery shall
deposit with the trustee or custodian of its endowment care fund the following
amounts received from the sale of plots, niches, crypts or private mausoleums:
(a) At least 15 percent of the gross sales
price with a minimum of $5 for each grave sold without a grave liner installed
at the time of sale or, when the gross sales price is paid in installments, at
least 15 percent of each installment until at least 15 percent of the gross
sales price has been deposited, with a minimum of $5 for each grave sold
without a grave liner installed at the time of sale.
(b) At least nine percent of the gross
sales price for each grave sold with a grave liner installed at the time of
sale or, when the gross sales price is paid in installments, at least nine
percent of each installment until at least nine percent of the gross sales
price has been deposited.
(c) At least five percent of the gross
sales price for each niche or, when the gross sales price is paid in
installments, at least five percent of each installment until at least five
percent of the gross sales price has been deposited.
(d) At least five percent of the gross
sales price for each crypt or, when the gross sales price is paid in
installments, at least five percent of each installment until at least five
percent of the gross sales price has been deposited.
(e) At least five percent of the gross
sales price for each private mausoleum or, when the gross sales price is paid
in installments, at least five percent of each installment until at least five
percent of the gross sales price has been deposited.
(3) The cemetery authority shall, within
30 days from the receipt of a payment, deposit with the trustee or custodian of
its endowment care fund any payment received by the cemetery authority that is:
(a) Required by subsection (2) of this
section to be paid into the fund; or
(b) A payment for special care, gifts,
grants, contributions, devises or bequests made with respect to the separate or
special care of a particular plot, grave, niche, crypt, mausoleum, monument or
marker or that of a particular family.
(4) Within 75 days of the end of its
fiscal year, each endowment care cemetery, except one owned by a city or a
county, shall file with the Director of the Department of Consumer and Business
Services a statement containing the following information pertaining to the
endowment care fund:
(a) The total amount invested in bonds,
securities, mortgages and other investments;
(b) The total amount of cash on hand not
invested at the close of the previous calendar or fiscal year;
(c) The income earned by investments in
the preceding calendar or fiscal year;
(d) The amounts of such income expended
for maintenance in the preceding calendar or fiscal year;
(e) The amount paid into the fund in the
preceding calendar or fiscal year; and
(f) Such other items as the director may
from time to time require to show accurately the complete financial condition
of the trust on the date of the statement.
(5) All of the information appearing on
the statement must be verified by an owner or officer of the cemetery
authority, and the cemetery authority shall maintain a copy of the statement in
the business office of the cemetery authority.
(6) The director may require, as often as
the director deems necessary, the cemetery authority to make under oath a
detailed report of the condition and assets of any cemetery endowment care
fund.
(7) At the time of the filing of the
statements of its endowment care fund each cemetery authority shall pay to the
director an annual fee as follows:
(a) Up to 100 interments per year, $40.
(b) Over 100 interments per year, $100.
(8) All fees received by the director
under this section shall be immediately turned over to the State Treasurer who
shall deposit the moneys in the Consumer and Business Services Fund created
under ORS 705.145.
(9) A cemetery may not operate as an
endowment care, permanent maintenance or free care cemetery until the
provisions of this section are complied with.
(10) The head of all contracts and
certificates of ownership or deeds referring to plots in an endowment care
cemetery must contain the following statement: “This cemetery is an endowment
care cemetery,” in at least 10-point black type.
(11) All contracts and certificates of
ownership or deeds referring to plots in an endowment care cemetery must
contain the following statement: “Endowment care means the general care and
maintenance of all developed portions of the cemetery and memorials erected
thereon.”
(12) A cemetery that otherwise complies
with this section may be designated an endowment care cemetery even though it
contains a small area that may be sold without endowed care, if it is
separately set off from the remainder of the cemetery. The head of all
contracts and certificates of ownership or deeds referring to plots in this
area must contain the phrase “nonendowed care” in at
least 10-point black type.
(13) A nonendowed
care cemetery is a cemetery that does not deposit in an endowment care fund the
minimum amounts specified in subsection (2) of this section.
(14) A cemetery authority may not in any
way advertise or represent that it operates wholly or partially as an endowment
care cemetery, or otherwise advertise or represent that it provides general
care or maintenance of all or portions of the cemetery or memorials erected
thereon, unless the provisions of this section are complied with. [Amended by
1955 c.545 §2; 1965 c.396 §4;
1967 c.213 §1; 1987 c.295 §1;
1995 c.144 §4; 1999 c.66 §1;
2001 c.796 §23; 2007 c.661 §5;
2011 c.163 §1]
97.820
Placing cemetery under endowed care; deposit; commingling endowment and special
care funds; trustee or custodian of fund. (1)
Every cemetery authority that operates a cemetery may place its cemetery under
endowed care and establish, maintain and operate an endowment care fund. All
endowed care funds shall be deposited with and held solely by the trustee or
custodian appointed by the cemetery authority.
(2) Endowment care and special care funds
may be commingled for investment and the income therefrom shall be divided
between the endowment care and special care funds in the proportion that each
fund contributed to the principal sum invested. The income of the endowment
care fund may be used only to finance the care of the cemetery.
(3) The cemetery authority shall appoint
as sole trustee of the endowment care fund a trust company as defined in ORS
706.008 that is authorized to transact trust business in this state, or an
insured institution as defined in ORS 706.008 that is authorized to accept
deposits in this state. Such trust company or insured institution shall receive
and accept the fund, including any accumulated endowment care fund in existence
at the time of its appointment and perform such duties as are agreed upon in
the agreement between it and the cemetery authority. An insured institution not
qualified to transact trust business in this state may act as custodian of such
endowment care fund provided:
(a) The duties of the insured institution
are essentially custodial or ministerial in nature; and
(b) The insured institution invests the
funds from such plan only in its own time or savings deposits.
(4) The trustee or custodian may resign
upon written notice to the cemetery authority or the cemetery authority may
remove the trustee or custodian by written notice to it. In case of the
resignation or removal of the trustee or custodian, the cemetery authority
forthwith shall appoint a successor trustee or custodian and provide for the
direct transfer of all endowed care funds and earnings thereon from the former
trustee or custodian to the successor trustee or custodian. [Amended by 1955 c.545 §3; 1965 c.396 §5; 1985 c.450 §1; 1987 c.295 §2; 1993 c.18 §19; 1993 c.229 §22; 1993 c.318 §11; 1997 c.167 §2; 1997 c.631 §395; 2007 c.661 §6]
97.825
Suits to enforce endowed care statutes; attorney fees.
(1) If the cemetery authority fails to remit to the trustee or trustees, in
accordance with the law, the funds herein provided for endowment and special
care, or fails to expend the net income from the funds and generally care for
and maintain any portion of a cemetery entitled to endowment care, any three
lot owners whose lots are entitled to endowment care, or any one lot owner
whose lot is entitled to special care, or the next of kin, heirs at law or
personal representatives of such lot owners, shall have the right, or the
district attorney of any county wherein is situated such lots, shall have the
power, by suit for mandatory injunction or for appointment of a receiver, to
sue for, to take charge of, and to expend such net income. The suit may be
filed in the circuit court of the county in which said cemetery is located, to
compel the expenditure either by the cemetery authority or by any receiver so
appointed by the court, of the net income from such endowment care fund for the
purposes set out in ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730,
97.810 to 97.920 and 97.990.
(2) When the Director of the Department of
Consumer and Business Services has reason to believe that a cemetery endowment
care fund does not conform to the requirement of law, or when the director has
reason to believe that any cemetery is operating in violation of ORS 97.810 or
97.820, or when the director has sent an endowment care cemetery a notice of
delinquency to make any report to the director required by ORS 97.810, the
director shall, as soon thereafter as reasonable, give notice of the foregoing
to the trustee or trustees of the cemetery endowment care fund, the cemetery
authority, the Attorney General of Oregon and the State Mortuary and Cemetery
Board.
(3) Within 120 days after the receipt of
such notice, the Attorney General shall institute suit in the circuit court of
any county of this state in which such cemetery is located, for a mandatory
injunction against further sales of graves, plots, crypts, niches, burial
vaults, markers or other cemetery merchandise by such cemetery or for the
appointment of a receiver to take charge of the cemetery, unless the Attorney
General shall prior to that time be notified by the director that such failure
to conform to the requirements of the law or to report has been corrected.
(4) The Attorney General may delay
instituting any suit brought under subsection (3) of this section for no more
than an additional 30 days if, in the discretion of the Attorney General after
consulting with the director, it appears to the Attorney General:
(a) That the failure to conform to the
requirements of the law or to report will be corrected; and
(b) That no harm to the public will occur
during the additional 30 days.
(5) If a trustee fails to perform the
duties of the trustee under ORS 97.810 to 97.920, the trustee shall be liable
for any damage resulting from that failure to any lot owners or the next of
kin, heirs at law or personal representatives of such lot owners.
(6) The court may award reasonable
attorney fees, costs and disbursements to the prevailing party in an action
under this section. [1955 c.545 §5; 1965 c.396 §6; 1985 c.450 §2; 1999 c.67 §1; 2001 c.796 §24; 2007 c.661 §7]
97.830
Investment and reinvestment of principal of endowed care funds; use and
application of income. (1) The principal of all funds
for endowed care shall be invested, from time to time reinvested and kept
invested. If a trust agreement imposes upon the trustee or custodian the duty
to direct the investment or reinvestment of endowed care funds, the trustee or
custodian shall perform this duty governed by ORS 130.750 to 130.775.
Otherwise, the cemetery authority, governed by ORS 130.750 to 130.775, shall
direct the investment and reinvestment of endowed care funds in the time or
savings deposits of the custodian bank or savings association.
(2) The principal of invested endowed care
funds shall never be voluntarily reduced, but shall be maintained separate and
distinct by the trustee or custodian from all other funds except that it shall
be proper to commingle endowment care funds with special care funds. The
payment of charges chargeable against principal under ORS chapter 129 or of
other expenses necessarily incurred in the administration of the trust in
accordance with subsection (1) of this section shall not constitute a voluntary
reduction of principal. The net income earned shall be used solely for the
general care and maintenance of the cemetery property entitled to endowment
care, as stipulated in the resolution, bylaw and other action or instrument by
which the fund was established, and in such manner as the cemetery authority
may from time to time determine to be in the best interests of such endowed
property. Such net income shall never be used for the improvement or
embellishment of undeveloped property offered for sale. [Amended by 1955 c.545 §4; 1985 c.450 §3; 1987 c.295 §3; 1995 c.157 §24; 1995 c.297 §1; 2003 c.279 §32; 2005 c.348 §125]
97.835
Limitation of duties and liability of trustee.
The trustee shall have no duty whatsoever to operate, maintain or to supervise
the general maintenance of any endowment fund cemetery, and the trustee shall
have no duty whatsoever to enforce collection of any of the trust funds either
from the purchasers of lots, or from the cemetery authority, and the trustee
shall have no duty whatsoever to see to the application of the net income after
payment of the net income to the cemetery authority. The trustee shall be
entitled to rely without liability upon the affidavit of the cemetery authority
showing the amount payable to the trustee as endowment care funds. [1955 c.545 §6]
97.840
Cemetery authority authorized to receive and hold gifts of property;
disposition of gifts. A cemetery authority which has
established an endowment care fund may take, receive and hold any property,
real, personal or mixed, bequeathed, devised, granted, given or otherwise
contributed to it for its endowment care fund. Within 30 days of the receipt of
such contributions, the cemetery authority shall deposit, with the trustee or custodian
of the fund to which the property was contributed, all moneys and all documents
or instruments of title or conveyance evidencing the contribution. As soon as
practicable, the cemetery authority shall provide for the sale of all property
for fair market value and, within 30 days of the receipt of the proceeds
thereof, shall deposit the proceeds with the trustee or custodian. The trustee
or custodian shall execute all documents necessary to effect the sale,
consistent with the purposes of this section. [Amended by 1987 c.295 §4]
97.850
Endowment and special care funds are charitable.
The endowment and special care funds and all payments or contributions to them
are expressly permitted as and for charitable and eleemosynary purposes.
Endowment care is a provision for the discharge of a duty from the persons
contributing to the persons interred and to be interred in the cemetery and a
provision for the benefit and protection of the public by preserving and
keeping cemeteries from becoming unkempt and places of reproach and desolation
in the communities in which they are situated.
97.860
Agreements for care. (1) Upon payment of the purchase
price, including the amount fixed as a proportionate contribution for endowed
care, there may be included in the deed of conveyance, or by separate
instrument, an agreement to care, in accordance with the plan adopted, for the
cemetery and its appurtenances to the proportionate extent the income received
by the cemetery authority from the contribution permits.
(2) Upon the application of an owner of
any plot, and upon the payment by the owner of the amount fixed as a reasonable
and proportionate contribution for endowed care, a cemetery authority may enter
into an agreement with the owner for the care of the plot of the owner and its
appurtenances.
97.865
Application of ORS 97.810 to 97.865 to religious, county and city cemeteries.
(1) A cemetery authority that operates a cemetery for any religious or
eleemosynary corporation, church, religious society or denomination,
corporation sole administering temporalities of any church or religious society
or denomination and any county or city may make an irrevocable election to have
ORS 97.810 to 97.865 apply to any cemetery controlled or operated by the
cemetery authority, county or city by filing a written statement indicating
such action with the Director of the Department of Consumer and Business
Services. The statement shall be in the form prescribed by the director and
shall contain the information specified by the director.
(2)(a) When a cemetery authority, county
or city files a statement described in this section with the director, ORS
97.810 to 97.865 applies to a cemetery controlled or operated by the cemetery
authority, county or city beginning on the first day of the fiscal year next
following the filing of the statement.
(b) ORS 294.035 does not apply to funds
held by a county or city under ORS 97.810 to 97.865. [1997 c.167
§4; 2001 c.796 §25; 2007 c.661
§8]
97.870
Unused and uncared for portions of cemetery declared common nuisances.
(1) In all cases where a cemetery authority has owned a site for a cemetery for
more than 40 years and has during that period sold lots, subdivisions of lots,
pieces or parcels of the cemetery for burial purposes and the grantee or party
claiming through the grantee has not used portions of such lots, subdivisions
of lots, pieces or parcels of the cemetery for purposes of burial and has not
kept them free of weeds or brush, but has allowed them to remain entirely
unused for more than 40 years or uncared for and unused for more than 20 years
prior to the adoption of the resolution provided for in ORS 97.880, and such
lots, subdivisions of lots, pieces and parcels of the cemetery are adjacent to
improved parts thereof, and by reason of their uncared-for condition detract
from the appearance of the cemetery and interfere with the harmonious
improvement thereof, and furnish a place for the propagation of weeds and
brush, thereby becoming a menace to adjacent property, such lots, subdivisions
of lots, pieces and parcels of such cemetery, which are unused and uncared for
as aforesaid, hereby are declared to be a common nuisance and contrary to
public policy.
(2) The provisions of this section are not
applicable to portions of cemeteries which have been or are sold with
agreements between the cemetery authority or its successor in interest, or
both, and the grantee providing for endowment care, permanent maintenance or
free care. [Amended by 1965 c.396 §7; 2007 c.661 §9]
97.880
Resolution declaring a nuisance. The governing
board of a cemetery authority described in ORS 97.870 may adopt a resolution
declaring such unused and unimproved portion of its cemetery as is described in
ORS 97.870 a common nuisance and an abandoned and unused portion of such
cemetery, and may direct its officers to file the complaint described in ORS
97.890. [Amended by 1983 c.740 §9]
97.890
Complaint. (1) Upon the adoption of the resolution
described in ORS 97.880 the officers of the cemetery authority may file a complaint
in the circuit court for the county in which the cemetery is located against
the owners, holders or parties interested in such abandoned portion of its
cemetery demanding that the court require such owners, holders or interested
parties to keep the premises clear of weeds and brush and in condition in
harmony with other lots and, if the owners, holders, or interested parties fail
to appear in court and comply with the order of the court, demanding that the
court make a judgment declaring such portions of the cemetery a common
nuisance, directing the governing board to abate the nuisance by clearing the
premises and keeping them clear of weeds and brush, creating a lien upon such
lots and parcels in favor of the cemetery authority, providing that the lien be
foreclosed and the lots and parcels be sold in the same manner as other sales
upon execution are made and authorizing the governing board to become a
purchaser thereof on behalf of the cemetery authority.
(2) In such suit any number of owners of different
lots, subdivisions of lots, pieces or parcels of the cemetery may be included
in the one suit.
(3) It is a sufficient designation of the
property so abandoned and unimproved to give the lot number or portion thereof,
or a description of the piece or parcel having no lot number, together with the
name of the owner thereof, as appears on the record of the cemetery authority.
(4) In addition to the names of the
persons that appear on the records of the cemetery authority as the record
owners of such unused and unimproved portions of the cemetery, the plaintiff
shall include as a defendant in a complaint the following: “Also all other
persons unknown claiming any right, title, estate, lien or interest in the
unused and unimproved portions of the cemetery described in the complaint.” [Amended
by 2003 c.576 §358; 2007 c.661
§10]
97.900
Summons. (1) Summons shall be served upon all
owners or holders who are residents of this state in like manner as in service
of summons in a civil action if such owners and holders are known to the
sheriff in the county in which the cemetery is located. If the defendants are
not known to the sheriff, it is sufficient to serve the owners and holders
whose names appear on the tax rolls of the county for the year previous to that
in which the suit is started. The plaintiff is not required to mail a copy of
the summons or complaint to nonresident defendants.
(2) All owners and holders of such
unimproved lots whose names do not appear on the tax rolls as aforesaid as
shown by the return of the sheriff may be served by publication in any legal
newspaper published in the county in which the cemetery is located for four
consecutive weeks upon return of the sheriff that such owners and holders are
not known and cannot be served in the jurisdiction of the sheriff.
(3) The published summons shall contain
the names of the record owners, as shown by the records of the cemetery
authority, and “also all other persons unknown claiming any right, title,
estate, lien or interest in the unused and unimproved portions of the cemetery
described in the complaint,” together with a brief description of the lot, or
subdivisions of lots, pieces or parcels of the cemetery and a statement setting
forth the order and judgment described in ORS 97.890 (1) for which the
plaintiff has applied to the court in the complaint. Such summons shall require
all parties defendant to appear and show cause why an order should not be made
declaring the unused and unimproved portions of the cemeteries to be a common nuisance,
directing the cemetery authority to abate the nuisance, creating a lien
thereon, providing that it be foreclosed and directing that the unused and
unimproved portion of the cemetery be sold within four weeks from and after the
date of the first publication thereof. [Amended by 2003 c.576
§359; 2007 c.661 §11]
97.910
Disuse as prima facie evidence of abandonment.
In all cases arising under ORS 97.870 to 97.900, the fact that the owner,
holder or interested party, of the unused and unimproved portion of the
cemetery has not, for a term of 20 years or more, used the plot and has failed
to keep it clear of weeds or brush is prima facie evidence that the owner,
holder or interested party has abandoned it.
97.920
Judgment declaring nuisance, authorizing abatement and creating and foreclosing
lien. Upon the failure of the owner of the
premises to comply with the order of the court requiring proper care of the
premises or upon the failure of any of the defendants to appear and answer the
complaint or upon the trial of the cause, if the court finds that the
allegations of the complaint are supported by the evidence and that the summons
has been served as provided in ORS 97.900, the court may enter a judgment in
accordance with the allegations of the complaint and the provisions of ORS
97.890 (1). [Amended by 2003 c.576 §360]
PREARRANGEMENT
SALES AND PRECONSTRUCTION SALES
97.923
Definitions for ORS 97.923 to 97.949. As used in
ORS 97.923 to 97.949 and 97.994 unless the context requires otherwise:
(1) “Beneficiary” means the person, if
known, who is to receive the funeral and cemetery merchandise, funeral and
cemetery services or completed interment spaces.
(2) “Certified provider” means any person
certified under ORS 97.933 to sell or offer for sale prearrangement sales
contracts or preconstruction sales contracts.
(3) “Delivery” occurs when:
(a) Physical possession of the funeral or
cemetery merchandise is transferred to the purchaser; or
(b) If authorized by a purchaser under a
purchase agreement:
(A) The title to the funeral or cemetery
merchandise has been transferred to the purchaser, has been paid for, and is in
the possession of the seller, who has documented the sale in the purchaser’s
records through use of a serial or other identifying number and placed the
merchandise, until needed, for storage on the seller’s premises; or
(B) The merchandise has been identified
for the purchaser or the beneficiary as documented by the manufacturer’s
receipt placed by the seller in the purchaser’s records and held by the
manufacturer for future delivery.
(4) “Depository” means a financial
institution or trust company, as those terms are defined ORS 706.008, that is
authorized to accept deposits in this state or to transact trust business in
this state.
(5) “Director” means the Director of the
Department of Consumer and Business Services.
(6) “Guaranteed contract” means a written
preconstruction sales contract or prearrangement sales contract that guarantees
the beneficiary the specific undeveloped space or spaces or funeral and
cemetery merchandise or funeral and cemetery services contained in the contract
and under which no charges other than the sales price contained in the contract
shall be required upon delivery or performance of the funeral or cemetery merchandise
or services.
(7) “Master trustee” means an entity that
is not a certified provider under ORS 97.923 to 97.949 and that has fiduciary
responsibility for the uniform administration of funds including, but not
limited to, acceptance, custodianship, investment and accounting, delivered to
it by a certified provider for the benefit of purchasers of preconstruction
sales contracts or prearrangement sales contracts. “Master trustee” does not
include a financial institution, as defined in ORS 706.008, that acts solely as
a depository under ORS 97.923 to 97.949.
(8) “Nonguaranteed contract” means a
written preconstruction sales contract or prearrangement sales contract that
guarantees the beneficiary the specific undeveloped space or spaces or funeral
or cemetery merchandise or services contained in the contract, when the price
of the merchandise and services selected has not been fixed and will be
determined by existing prices at the time the merchandise and services are
delivered or provided.
(9) “Prearrangement sales” or “prearrangement
sales contract” means any sale, excluding the sale and contemporaneous or
subsequent assignment of a life insurance policy or an annuity contract, made
to a purchaser, that has as its purpose the furnishing of funeral or cemetery
merchandise or services in connection with the final disposition or
commemoration of the memory of a dead human body, for use at a time
determinable by the death of the person or persons whose body or bodies are to
be disposed and where the sale terms require payment or payments to be made at
a currently determinable time.
(10) “Preconstruction sale” or “preconstruction
sales contract” means a sale made to a purchaser, for the purpose of furnishing
undeveloped interment spaces and when the sale terms require payment or
payments to be made at a currently determinable time.
(11) “Provider” means any entity that
sells and offers for sale funeral or cemetery merchandise or services.
(12) “Purchaser” means a beneficiary or a
person acting on behalf of a beneficiary who enters into a prearrangement sales
contract or a preconstruction sales contract with a certified provider under
which any payment or payments made under the contract are required to be
deposited in trust under ORS 97.941.
(13) “Salesperson” means an individual
registered under ORS 97.931 and employed by a certified provider to engage in
the sale of prearrangement or preconstruction sales contracts on behalf of the
certified provider.
(14) “Sales price” means the gross amount
paid by a purchaser for a prearrangement sales contract or preconstruction
sales contract, excluding sales taxes, credit life insurance premiums and
finance charges.
(15) “Trust” means an express trust
created under ORS 97.941 whereby a trustee has the duty to administer the
amounts specified under ORS 97.941 received under a prearrangement sales
contract or a preconstruction sales contract for the benefit of the purchaser
of a prearrangement sales contract or preconstruction sales contract.
(16) “Undeveloped interment spaces” or “undeveloped
spaces” means any space to be used for the reception of human remains that is
not completely constructed or developed at the time of initial payment. [Formerly
128.400; 2003 c.362 §1; 2007 c.661
§12]
Note:
97.923 to 97.949 were enacted into law by the Legislative Assembly but were not
added to or made a part of ORS chapter 97 or any series therein by legislative
action. See Preface to Oregon Revised Statutes for further explanation.
97.925
Purpose. It is the purpose of ORS 97.923 to
97.949, 97.992, 97.994 and 692.180 to assure funds for performance to those
purchasers who contract through prearrangement sales contracts for the purchase
of funeral or cemetery merchandise or services, and through preconstruction
sales contracts for undeveloped interment spaces. It is also the purpose of ORS
97.923 to 97.949, 97.992, 97.994 and 692.180 to provide for the certification
or registration of persons selling or offering for sale prearrangement sales
contracts and preconstruction sales contracts, the creation and administration
of prearrangement sales contract and preconstruction sales contract trust
funds, the disbursement and allocation of trust funds upon the certified
provider’s performance of its contractual obligations and to provide protection
for the purchaser upon the certified provider’s default. [Formerly 128.405;
2007 c.661 §13]
Note:
See note under 97.923.
97.926
Rulemaking authority. The Director of the Department
of Consumer and Business Services may adopt rules that are necessary or
appropriate to:
(1) Protect purchasers of prearrangement
sales contracts and preconstruction sales contracts and the public; and
(2) Administer ORS 97.923 to 97.949. [2007
c.661 §25]
Note:
See note under 97.923.
97.927
Applicability of ORS 97.923 to 97.949. (1) Except as
provided in this section, ORS 97.923 to 97.949, 97.992, 97.994 and 692.180
apply to all certified providers, master trustees and salespersons who sell or
offer for sale prearrangement sales contracts or preconstruction sales
contracts.
(2) ORS 97.923 to 97.949, 97.992, 97.994
and 692.180 do not apply to:
(a) Agreements to sell or sales made by
endowment care cemeteries under ORS 97.929; or
(b) Any nonprofit memorial society
charging less than a $100 membership fee.
(3) Notwithstanding subsection (2) of this
section, ORS 97.937 applies to:
(a) Agreements to sell or sales made by
endowment care cemeteries under ORS 97.929; or
(b) Any nonprofit memorial society
charging less than a $100 membership fee. [Formerly 128.407; 2003 c.362 §2; 2007 c.661 §14]
Note:
See note under 97.923.
97.929
Exceptions to ORS 97.923 to 97.949. (1) The
provisions of ORS 97.923 to 97.949, 97.992, 97.994 and 692.180 do not apply to:
(a) Agreements to sell or sales of graves,
crypts or niches where such graves, crypts or niches are in existence at the
time of the sale or agreement to sell and are located in an endowment care
cemetery as defined in ORS 97.810.
(b) Agreements to sell or sales of crypts
or niches where such crypts or niches are not in existence at the time of the
sale or agreement to sell and are to be located in an endowment care cemetery,
provided that:
(A) Thirty-five percent of the sales price
of each crypt or niche described in this paragraph is deposited in accordance with
the provisions of ORS 97.937; or
(B) Such endowment care cemetery deposits
a bond with a corporate surety authorized to do business in this state, or an
irrevocable letter of credit issued by an insured institution, as defined in
ORS 706.008. The bond or letter of credit shall be in an amount equal to 35
percent of the total sales price of all crypts or niches described in this
paragraph that have been sold by the endowment care cemetery and that have not
yet been completed.
(c) Agreements to sell or sales of burial
vaults or markers for installation in an endowment care cemetery, provided
that:
(A) Sixty-six and two-thirds percent of
the sale price of such vaults or markers is deposited in accordance with the
provisions of ORS 97.937;
(B) Such endowment care cemetery is at the
time of the sale or agreement to sell and for not less than 24 months before
such sale or agreement has been in continuous operation as an endowment care
cemetery and has assumed the obligation to supply and install the vault or
marker and maintain it as part of its endowment care program; and
(C) Such endowment care cemetery deposits
with the Director of the Department of Consumer and Business Services:
(i) A bond in a
form approved by the director in the amount of $10,000 issued by a corporate
surety authorized to do business in this state; or
(ii) An irrevocable letter of credit in a
form approved by the director in the amount of $10,000 issued by an insured
institution, as defined in ORS 706.008.
(2) Notwithstanding the exception provided
in subsection (1) of this section, a person who would otherwise have a claim
against a certified provider, a master trustee or a salesperson under the
provisions of ORS 97.923 to 97.949 or ORS chapter 692 shall have a right
against the bond or letter of credit described in subsection (1)(b) and (c) of
this section. [Formerly 128.412; 2003 c.271 §1]
Note:
Section 2, chapter 68, Oregon Laws 1999, provides:
Sec.
2. (1) The amendments to ORS 128.412
[renumbered 97.929] by section 1 of this 1999 Act apply only to agreements to
sell crypts or niches entered into on or after the effective date of this 1999
Act [October 23, 1999], and sales of crypts and niches made on or after the
effective date of this 1999 Act.
(2) An endowment care cemetery that
deposited a bond or an irrevocable letter of credit under the provisions of ORS
128.412 (2)(b) (1997 Edition) before the effective date of this 1999 Act must
continue to maintain the bond or irrevocable letter of credit in the amount
provided by ORS 128.412 (2)(b) (1997 Edition) until such time as all the crypts
and niches that were part of the development covered by the bond or letter of
credit are completed. Any endowment care cemetery that maintains a bond or
letter of credit pursuant to this subsection is not required to maintain a bond
or letter of credit in the amount required by ORS 128.412 (2)(b) [renumbered
97.929 (2)(b)], as amended by section 1 of this 1999 Act, for the purpose of
crypts and niches located in the development covered by the bond or letter of
credit maintained under the provisions of this subsection, but the endowment
care cemetery must maintain a bond or letter of credit in the amount required
by ORS 128.412 (2)(b) [renumbered 97.929 (2)(b)], as amended by section 1 of
this 1999 Act, for sales of, and agreements to sell, crypts or niches located
in any development commenced on or after the effective date of this 1999 Act.
[1999 c.68 §2]
Note:
97.929 was enacted into law by the Legislative Assembly but was not added to or
made a part of ORS chapter 97 or any series therein by legislative action. See
Preface to Oregon Revised Statutes for further explanation.
97.930
[1977 c.715 §§2,3; renumbered 97.975 in 2001]
97.931
Registration of salesperson for endowment care cemeteries, preconstruction
sales and prearrangement sales; rules; background check; civil penalties.
(1) A salesperson may not engage in prearrangement sales made by endowment care
cemeteries under ORS 97.929 or in preconstruction sales or prearrangement sales
unless the salesperson is registered with the State Mortuary and Cemetery Board
or holds a current funeral service practitioner license, embalmer license,
funeral service practitioner apprentice registration or embalmer apprentice
registration. The board by rule shall:
(a) Establish procedures for issuing
salesperson registrations under this subsection;
(b) Establish standards for determining
whether a salesperson registration should be issued;
(c) Set renewal and salesperson
registration fees; and
(d) Require biennial renewal of
salesperson registrations.
(2) The board may conduct a background
check of any salesperson applying for registration under subsection (1) of this
section. The background check may include information solicited from the
Department of State Police. After consideration of information obtained from
any background check and any other information in its possession, the board
shall determine whether to register the salesperson.
(3)(a) The board may impose a civil
penalty of up to $1,000 per violation or suspend, revoke or refuse to issue or
renew the registration of a salesperson described in subsection (1) of this
section upon a determination that the applicant or holder has not complied with
the provisions of ORS 97.923 to 97.949 or ORS chapter 692, or any rules adopted
thereunder. When the board proposes to take such action, the person affected by
the action shall be accorded notice and an opportunity for hearing as provided
by ORS chapter 183. The board shall notify the Director of the Department of
Consumer and Business Services of its intent to take action against a
salesperson or person acting as a salesperson.
(b) The board shall suspend, revoke or
refuse to issue or renew the registration of a salesperson if the director
requests the board to take such action.
(4) Fees and other moneys received by the
board under this section shall be deposited into the State Mortuary and
Cemetery Board Account established in ORS 692.375. [Formerly 128.414; 2005 c.726 §2]
Note:
See note under 97.923.
97.933
Certification of provider of prearrangement or preconstruction sales; annual
reports; audits; fees. (1) A provider may not engage in
prearrangement sales or preconstruction sales unless the provider is certified
by the Director of the Department of Consumer and Business Services. The
director shall:
(a) Establish procedures for issuing
certificates required by this section.
(b) Establish standards for determining
whether a certificate should be issued.
(c) Set certification and renewal fees.
(d) Require annual renewal of
certification.
(e) Establish standards for rules of
conduct of certified providers.
(2) The fees described in this section
shall be reasonable and shall defray the costs associated with the
administration of ORS 97.923 to 97.949.
(3)(a) Every certified provider shall file
an annual report with the director on forms provided by the director. The
annual report shall contain any information reasonably considered necessary by
the director, including but not limited to:
(A) A disclosure of changes in trust
deposits;
(B) The number of consecutively numbered
prearrangement or preconstruction sales contracts sold during the reporting
period;
(C) A complete inventory of the funeral
merchandise, cemetery merchandise or a combination thereof delivered in lieu of
trust fund requirements under ORS 97.941, including:
(i) The location
of the merchandise;
(ii) Merchandise serial numbers or
warehouse receipt numbers identified by the name of the purchaser or the
beneficiary; and
(iii) The statement of the certified
provider that each item of merchandise is in the seller’s possession at the
specified location; and
(D) The number of withdrawals from or
terminations of any trusts.
(b) If the annual report is not filed or
is filed and shows any material discrepancy, the director may take appropriate
action and send notification of the matter to the State Mortuary and Cemetery
Board.
(c) The director may relieve a certified
provider of the duty to file the annual report upon a determination that the
certified provider has performed all obligations under the prearrangement sales
contract or preconstruction sales contract, or that such obligations lawfully
have been assumed by another or have been discharged or canceled.
(4) The director may audit the records of
a certified provider that relate to prearrangement sales or preconstruction
sales, as the director may consider appropriate. The director may refer any
matter outside of normal auditing procedures to the office of the Attorney General
for investigation and send notification of the referral to the State Mortuary
and Cemetery Board.
(5) The conduct of individuals, including
salespersons as defined in ORS 97.923, employed by a certified provider is the
direct responsibility of the certified provider.
(6) A certificate issued to a provider is
not transferable. A person that seeks to purchase or otherwise acquire control
of a cemetery or funeral establishment that is a certified provider shall first
apply to the director and obtain approval of the purchase or change in control.
(7) A certificate issued to a provider
becomes inactive when the certificate is surrendered to the director. The
director retains jurisdiction over the provider as long as trust funds remain
on deposit for prearrangement sales contracts or preconstruction sales
contracts. While the certificate is inactive, the provider shall:
(a) Cease all prearrangement sales to the
public;
(b) Collect and deposit into trust all
installment funds paid toward contracts sold prior to becoming inactive;
(c) Seek disbursal of trust funds only in
accordance with the requirements of the written contracts and ORS 97.923 to
97.949 until the funds have been exhausted; and
(d) Continue to submit required annual
reports and renewal fees until no trust funds remain on deposit. [2001 c.796 §1; 2003 c.362 §3; 2007 c.661 §15]
Note:
See note under 97.923.
97.935
Registration of master trustees; annual reports; annual audits; fees.
(1) A person may not operate as a master trustee unless the person is
registered with the Director of the Department of Consumer and Business
Services. The director shall:
(a) Establish procedures for registering
persons under this section.
(b) Establish standards for master
trustees.
(c) Set registration and renewal fees.
(d) Establish standards for rules of
conduct of master trustees.
(2)(a) Every master trustee shall file an
annual report with the director on forms provided by the director. The annual
report shall contain any information reasonably considered necessary by the
director, including but not limited to:
(A) A disclosure of changes in trust
deposits; and
(B) A list of all certified providers for
which the master trustee holds funds and the total amount of funds held for
each certified provider.
(b) The director may take appropriate
action under ORS 97.948 and 97.949 if a master trustee fails to file the annual
report or the report contains any material discrepancy.
(c) The director may relieve a master
trustee of the duty to file the annual report upon a determination that the
master trustee has performed all obligations under the trust agreement with
each certified provider, or that the master trustee’s obligations have been
lawfully assumed by another person or have been discharged or canceled.
(3) The director may conduct an annual
audit of a master trustee. The director shall prescribe the form of audits
under this section.
(4) A master trustee who is audited under
this section shall pay all expenses and costs incurred by the director in conducting
the audit. [2001 c.796 §2; 2003 c.362
§4; 2007 c.661 §16]
Note:
See note under 97.923.
97.936
Emergency orders of suspension or restriction.
(1) In addition to other actions authorized under ORS 97.948 (2), the Director
of the Department of Consumer and Business Services may:
(a) Issue an emergency order suspending or
restricting a certificate or registration or ordering a certified provider or
master trustee or a person acting as a certified provider or master trustee to
cease and desist from specified conduct; or