Rule 590-3-5-.02 - Installation of Merchandise(1) A cemetery owner may require that any person engaged in the retail sale of merchandise or merchandise services to consumers who wishes to install, place or set merchandise provide the cemetery with evidence that the person has a valid registration with the Secretary of State. No cemetery owner may refuse to allow a merchandise dealer to install merchandise due to any failure to provide such evidence unless and until the cemetery has obtained confirmation from the Secretary of State that such person is not registered. If a cemetery wishes to require proof that a merchandise dealer has obtained all necessary local or occupational licenses, then the cemetery may require copies of such licenses. No merchandise dealer, as a condition of installing merchandise in a perpetual care cemetery, may be required by the cemetery owner or any other person to provide proof of registration with the Secretary of State or other licenses more frequently than once per year. Provided, however, a cemetery may by rule require a merchandise dealer to provide proof of a change in registration with the Secretary of State or the status of other licenses five (5) days prior to the installation of merchandise in the cemetery.(2) Rules and Regulations. (a) A cemetery may adopt rules and regulations setting forth reasonable standards for merchandise installed in the cemetery, provided that if a cemetery does adopt such rules and regulations, those rules and regulations shall include: 1. The style and size of merchandise or its foundation;2. The content and material of which the merchandise and/or foundation is to be constructed;3. The locations or gardens in which different merchandise may be installed;4. The manner of installation of either a flat or upright monument;5. The specific location on the grave for the installation of either flat or upright monuments;6. The requirements for the removal and replacement of merchandise in the path that any installation equipment must take to install specific merchandise;7. The clean-up necessary after installation; and8. Any limitations on the date or time of installations.(b) In all cases, a cemetery must comply with its own minimum standards and rules and regulations, or those standards and rules and regulations shall be deemed waived as to any other person. Rules and regulations adopted by the cemetery pursuant to this Rule shall be incorporated in the rules and regulations required to be filed with the Secretary of State pursuant to section 10-14-4(b)(1)(E) of the Act and shall be subject to all other requirements and restrictions imposed by the Act or Rules promulgated thereunder.(c) If a cemetery has a location on its property where it places or stores excess dirt, the installer or merchandise dealer shall be permitted to place excess dirt resulting from an installation in that cemetery at that location.(d) Nothing in this rule shall be construed to allow a cemetery owner or its affiliates to have exclusive rights to merchandise construction or installation within the cemetery or any part of the cemetery, nor shall any rule or regulation set up requirements that have the effect of so providing.(3) Approval of Merchandise. (a) A cemetery owner may require that a person, not later than six (6) business days prior to a request for installation of merchandise in the cemetery, submit an application, on a form approved by the Secretary of State, for approval of merchandise to the cemetery reasonably depicting or describing the foundation, design, style, size, and content and material of the merchandise to be installed. A business day is defined as any day other than Saturday, Sunday or legal holiday. The cemetery owner may require the application to be accompanied by a sketch of the proposed merchandise with the proposed lettering. The cemetery may require the written approval of the owner(s) of the burial rights or his or her executor, administrator, or other legal representative to be on the application form submitted by the installer. Immediately following the execution of the purchase agreement, the application shall be transmitted to the cemetery for approval. The cemetery must notify the merchandise dealer of any nonconformity of the proposed merchandise within five (5) business days from the date that the completed application was received. If this approval is submitted by the installer with the application, the cemetery shall accept the signature of the owner(s) of the burial rights or his or her executor, administrator, or other legal representative if the signature is witnessed by the merchandise dealer or an agent or employee thereof. A cemetery may not require any other form be signed by the property owner, merchandise dealer or installer for the installation of the merchandise.(b) If a cemetery does not by rule require submission of an application for approval of merchandise as permitted herein, a merchandise dealer or any person proposing to install merchandise in a cemetery may require any cemetery to approve or disapprove any proposed merchandise by submitting an application for approval of merchandise on a form approved by the Secretary of State.(c) If, in the opinion of the cemetery owner, the merchandise depicted on an application for approval of merchandise submitted pursuant to this rule is not in compliance with the rules and regulations of the cemetery, the cemetery owner must so notify the merchandise dealer, in writing, postmarked within five (5) business days of the date that the completed application was received by the cemetery owner, setting forth each reason why the proposed merchandise is not in compliance.(d) A cemetery may not refuse to allow installation of any merchandise presented for installation based upon a claim of noncompliance with the lawful rules of the cemetery unless:1. an application for approval of merchandise was not submitted as required by cemetery rule or as permitted under subsection (b) hereof;2. an application for approval of merchandise was submitted, but the cemetery notified the merchandise dealer of the reasons for noncompliance of the merchandise in the manner and within the time provided in subsection (c) hereof and the cemetery has proof of receipt by the merchandise dealer of such notification;3. an application for approval of merchandise was submitted and approved, either affirmatively or by the failure to notify the merchandise dealer of noncompliance, but the merchandise presented for installation does not conform with the description of the merchandise contained in the application or with the depiction of the merchandise on the sketch submitted with the application, and the merchandise fails to conform to the valid rules of the cemetery in effect at the time of application;4. the merchandise dealer contends that an application for approval of merchandise was submitted and approved, either affirmatively or by the failure to notify the merchandise dealer of noncompliance, but the merchandise dealer does not have either proof of affirmative approval or proof of receipt of the application by the cemetery; or5. an application for approval of merchandise was approved by the cemetery, either affirmatively or by failure to notify of noncompliance, but the merchandise fails to conform to the valid rules of the cemetery in effect at the time of application, provided the cemetery owner immediately reimburse the purchaser for the full price of any merchandise ordered that cannot be returned and any other costs incurred by the purchaser in connection with the installation of the merchandise.(e) If a cemetery has a facsimile machine available for general business purposes, it shall, if requested by the merchandise dealer or other person proposing to install merchandise, accept an application for approval of merchandise or a request for installation and accompanying documents via facsimile, send a confirmation of receipt of any such application or request by facsimile by 5:00 p.m. the following business day, and notify the requesting party of any nonconformity of the proposed merchandise by facsimile within five (5) business days of the date that the completed application was received. If requested by a cemetery, a merchandise dealer shall send a confirmation of receipt of any notice of nonconformity by facsimile to the cemetery.(f) A cemetery owner may not request that any person sign a contract or agreement or other similar document as a condition or prerequisite of allowing installation of merchandise by someone other than the cemetery, except an acknowledgement by the merchandise dealer or installer of receipt of the cemetery's rules and regulations and, unless provided on the application submitted by the installer, a statement by the owner(s) of the burial rights or his or her executor, administrator or other legal representative that he or she has approved merchandise and has authorized installation by a particular merchandise dealer or installer.(g) The process of reviewing any application for approval of merchandise submitted pursuant to this Rule shall be considered an administrative function associated with the installation of the merchandise, and the cemetery may charge a fee to reimburse the cemetery for its actual costs incurred in processing the application as allowed by O.C.G.A. § 10-14-17(c)(2).(4) The cemetery owner shall be the scheduling agent for all activities conducted within the cemetery. The scheduling of burials takes priority over all other activities. Within two (2) business days of a request for installation by the installing person, the cemetery shall schedule the installation of merchandise to occur within five (5) business days, provided all the proper authorizations and other requirements have been delivered to and approved by the cemetery. The cemetery owner may require that the time of installation be set so that the installation and the clean up can be accomplished prior to the normal closing time of the cemetery. Any installation limitation imposed by a cemetery shall be reasonable; any limitation which restricts the days or times during which installation will be permitted will be presumed to be unreasonable if the cemetery does not permit installations during at least twenty (20) hours during the course of a work week, which is defined as Monday through Friday from 9:00 a.m. to 5:00 p.m., for the scheduling of installations by persons other than the cemetery. This presumption may be rebutted by proof of circumstances demonstrating the reasonableness of the limitation. Once the installation has been scheduled, the cemetery shall not require the merchandise dealer or installer to obtain confirmation from the cemetery of the scheduled installation. A scheduled installation shall be subject to change by the cemetery, with reasonable notice being given by the cemetery to the installer of the need to reschedule the installation, in the event it received notification of a death of an owner of burial rights located in such a location that the installation of the merchandise would interfere with the burial. Anything less than twenty-four (24) hours notice will be presumed unreasonable. This presumption may be rebutted by proof of circumstances demonstrating the reasonableness of the notice.(5) In the event a burial is taking place and in the determination of the cemetery the installation of merchandise will be considered an interference with the burial, the installing persons shall be required by the cemetery to withdraw until the funeral being conducted has concluded and those in attendance have left the cemetery at which time the installation of the merchandise may be continued.(6) Prior to the scheduled time of merchandise installation, the cemetery shall mark the place on the grave where the merchandise is to be installed by placing a flag, or other marker, thereon. Nothing in this rule is intended to imply or require that a cemetery shall have to perform any design work or labor associated with installing merchandise at the gravesite. If the cemetery is requested by the merchandise installer to perform any design work or labor associated with installing merchandise at the gravesite, and the cemetery provides such service, the fee for such service shall be disclosed on the cemetery's schedule of charges.(7) The cemetery owner shall not be liable for improper installation of merchandise not installed by the cemetery.(8) Nothing in this rule shall be construed as requiring a cemetery to replace stolen merchandise or portions thereof, or to replace or repair merchandise that is damaged due to vandalism or other causes beyond the cemetery's control.(9) Installation Fee. (a) The cemetery may not require payment of the fee allowed by Sec. 10-14-17(c)(2) of the Act, with the exception of the costs permitted by Subsection (3)(g) of this Rule, prior to the time of the installation request.(b) For purposes of determining the fee charged pursuant to Sec. 10-14-17(c)(2) of the Act, the cemetery owner may charge a fee of up to $50 relating to each contemporaneous installation by a third party of merchandise on a single grave lot or contiguous group of lots. The number of individual pieces in any monument or group of monuments shall be irrelevant in the determination of the fee that the cemetery owner may charge, except where the cemetery owner can establish that the multiplicity of pieces has resulted in the incurring by the cemetery owner of greater actual costs.Ga. Comp. R. & Regs. R. 590-3-5-.02
O.C.G.A. Secs. 10-14-14, 10-14-17.
Original Rule entitled "Installation of Monuments" adopted. F. July 26, 2000; eff. August 15, 2000. Amended: Rule repealed and a new Rule entitled "Installation of Merchandise" adopted. F. Jan. 17, 2002; eff. Feb. 6, 2002. Repealed: New Rule of same title adopted. F. May 19, 2005; eff. June 8, 2005.