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LAWS
OF THE
STATE OF DELAWARE
ONE HUNDRED AND TWENTY- SIXTH
GENERAL ASSEMBLY
FIRST SESSION COMMENCED AND HELD AT DOVER
On Tuesday, January 5, A. D.
1971
SECOND SESSION COMMENCED AND HELD AT DOVER
On Tuesday, January II, A. D.
1972
PART II
VOLUME LVIII
Object Description
| Rating | |
| Title | Laws of the State of Delaware - Volume 58 - Part 2 |
| Description | Laws of the State of Delaware |
| Creator | Delaware |
| Creator2 | Delaware General Assembly |
| Publisher | Department of State |
| Type | Text |
| Format | |
| Full Text | LAWS OF THE STATE OF DELAWARE ONE HUNDRED AND TWENTY-SIXTH GENERAL ASSEMBLY FIRST SESSION COMMENCED AND HELD AT DOVER On Tuesday, January 5, A. D. 1971 SECOND SESSION COMMENCED AND HELD AT DOVER On Tuesday, January II, A. D. 1972 PART II VOLUME LVIII CHAPTER 403 FORMERLY SENATE BILL NO. 612 AN ACT TO AMEND AN ACT ENTITLED "AN ACT TO INCORPORATE THE TOWN OF OCEAN VIEW IN SUSSEX COUNTY, DELAWARE", THE SANE, BEING CHAPTER 649, VOLUME 18, LAWS OF DELAWARE, AS AMENDED, BY INCREASING THE AMOUNT OF MONEY WHICH MAY BE RAISED EACH YEAR BY TAXATION. Be it enacted by the General Assembly of the State of Delaware (two-thirds of all the members elected to each house thereof concurring therein): Section 1. Chapter 649, Volume 18, Laws of Delaware, as amended, is hereby further amended by striking the first sentence of Section 23 and inserting in lieu therof the following: Section 23. The Council of said town shall have the right to raise by taxation such sums of money as it shall deem necessary, which shall in no single year exceed Thirty Thousand Dollars ($30,000.00). Approved May 24, 1972. 1201 1202 CHAPTER 404 FORMERLY SENATE BILL NO. 630 AN ACT EXTENDING THE REVERSION DATE OF STATE FUNDS USED FOR SALARIES IN THE THREE-YEAR PERIOD OF EXPERIMENTAL EDUCATIONAL PRO-GRAMS WHICH WERE AUTHORIZED BY CHAPTER 202, VOLUME 57 LAWS OF DELAWARE.i, WHEREAS, Chapter 202, Volume 57, decreed that all unexpended funds are to revert on June 30, 1972; and WHEREAS, State funds for salaries cannot ordinarily be carried over from one fiscal year to the next; and WHEREAS, some school personnel hired to work in this program may choose to receive an annual salary based on 20 or 24 payments per year and thus some salaries could be paid through August 31, 1972. NOW, THEREFORE: Be it enacted by the General Assembly of the State of Delaware: Section 1. Amend Section 11 of Chapter 202, Volume 57, Laws of Delaware, by striking said section in its entirety and substituting a new Section 11 to read as follows: Section 11. Any funds remaining unexpended on Septe-mber 15, 1972 shall revert to the General Fund of the State. No unexpended funds remaining beyond June 30, 1972 shall be expended except for salaries to be paid in accordance with Section 1317, Title 14, Delaware Code. Approved May 24, 1972. CHAPTER 405 FORMERLY SENATE BILL NO. 634 AN ACT TO AMEND CHAPTER 90, PART VIII, TITLE 16 OF THE DELAWARE CODE RELATING TO HOSPITAL CON-STRUCTION AND IMPROVEMENTS, AND PROVIDING A METHOD OF REPAYMENT FOR HOSPITAL CON-STRUCTION LOANS. Be it enacted by the General Assembly of the State of Delaware: Section 1. Amend Subsection (c), Section 9005, Chapter 90, Title 16 of the Delaware Code, by adding the following sentence at the end of said subsection (c): The repayment schedules shall provide the hospitals with the option of amortizing the principal and the interest of the loan in equal annual installments over the life of the loan, and the repayment of any loans heretofore granted may be renegotiated in accordance with the provisions of this Section. Approved May 24, 1972. 1203 1204 CHAPTER 406 FORMERLY SENATE BILL NO. 635 AS AMENDED BY SENATE AMENDMENT NO. 1 AN ACT TO AMEND PART II, TITLE 9, DELAWARE CODE, RELATING TO THE GOVERNMENT OF NEW CASTLE COUNTY. Be it enacted by the General Assembly of the State of Delaware: Section 1. Section 1166 (b), Title 9, Delaware Code, is amended to read as follows: In order to stagger the term of the county councilmen, the councilmanic districts are divided into three categories. One category shall consist of Councilmanic Districts 1, 2, and 3; and the second category shall consist of councilmanic districts, 4, 5, and 6, and the third category shall consist of councilmanic district 7. Section 2. Section 1166, (c), Title 9, Delaware Code, is amended to read as follows: The first councilmen elected in councilmanic districts 1,2, and 3 after the redistricting following the 1970 federal decennial census shall serve until the first Tuesday in January, 1977. Councilmen elected in said districts other than those elected immediately following redistricting shall serve a term of four years, except as provided in Sections 1147 and 1165. The first councilmen elected in said councilmanic districts after the redistricting following each odd numbered federal decennial census shall serve a term of four years. The first councilmen elected in said councilmanic districts after the redistricting following each even numbered federal decennial census shall serve a term of two years. Section 3. Section 1166 (d), Title 9, Delaware Code, is amended to read as follows: Chapter 406 1205 The first councilmen elected in councilmanic districts 4, 5 and 6 after the redistricting following the 1970 federal decennial census shall serve until the first Tuesday in January, 1975. Councilmen elected in said districts other than those elected immediately following a redistricting shall serve a term of four years, except as provided in Sections 1147 and 1165. The first councilmen elected in said councilmanic districts after the redistricting following each odd numbered federal decennial census shall serve a term of two years. The first councilmen elected in said councilmanic districts after the redistricting following each even numbered federal decennial census shall serve a term of four years. Section 4. Section 1166, Title 9, Delaware Code, is amend-ed by changing the designations of subsection (e), (f), and (g) to read (f), (g), and (h), respectively and by inserting a new subsection (e) as follows: The councilman in councilmanic district seven (7) shall be elected at the general election in November, 1972, and shall serve until the first Tuesday in January, 1977, and the councilmen subsequently elected to district seven (7) shall serve a term of four years and shall be elected in even numbered and presidential election years. Section 5. Section 1165 (e) Title 9, Delaware Code, is amended to read as follows: (e) The terms of councilmen elected in councilmanic districts 1,2,3,4,5, and 6 shall terminate on the first Tuesday in January following the election of councilmen immed-iately following each redistricting pursuant to this section. As used in this section, the phrase "odd numbered federal decennial census" shall refer to the decades whose first digit is an odd number, for example, 1970, 1990, 2010; and the phrase "even numbered federal decennial census" shall refer to the decades whose first digit is an even number, for example 1980, 2000, 2020. Section 6. The foregoing provisions shall be effective on the first Tuesday of January, 1973, except that those provisions relating to the election of councilmen shall be effective for the general election in November, 1972. Approved May 24, 1972. 1206 CHAPTER 407 FORMERLY SENATE BILL NO. 640 AN ACT TO AMEND CHAPTER 182, VOLUME 58, LAWS OF DELAWARE ENTITLED "AN ACT MAKING APPRO-PRIATIONS FOR THE EXPENSE OF THE STATE GOVERNMENT FOR THE FISCAL YEAR ENDING JUNE 30, 1972" BY AUTHORIZING A TRANSFER OF FUNDS BY THE DEPARTMENT OF HEALTH AND SOCIAL SERVICES. Be it enacted by the General Assembly of the State of Delaware: Section 1. Amend Chapter 182, Volume 58, Laws of Delaware, by authorizing the transfer of funds by the Department of Health and Social Services so as to reduce the item entitled "(16.85) Salaries and Wages of Employees (23)" under "Social Service Payments" by $5,516 and to increase the item entitled "Salary of Secretary" under "Office of the Secretary" by $5,516. Approved May 24, 1972. CHAPTER 408 FORMERLY HOUSE BILL NO. 423 AS AMENDED BY SENATE AMENDMENT NO. 2 AN ACT TO AMEND SECTION 6913, TITLE 29, DELAWARE CODE BY PROVIDING PROVISIONS FOR THE FAILURE TO PAY PREVAILING WAGE RATES. Be it enacted by the General Assembly of the State of Delaware: Section 1. Section 6913, Title 29, Delaware Code, is amended by designating the first paragraph as (a) and by adding new paragraphs (b), (c) and (d) as follows: The Department of Labor shall investigate all claims that the prevailing wage rates as provided for under this section are not being or have not been paid. Upon his finding that a contractor or subcontractor has not paid nor is not paying the prevailing wage rates, the Secretary of Labor shall notify the contractor or subcontractor thereof and make an effort to obtain compliance. Upon failure to obtain compliance, the Secretary of Labor shall notify the contractor or subcontractor by registered mail that the said contractor or subcontractor has violated the provisions of this Section. If the contractor or subcontractor does not comply within fifteen days of receipt of said registered mail, then thereafter the Secretary may terminate all rights of the contractor or subcontractor to proceed with the work under the public construction contract, and the contractor or subcontractor shall be responsible for all damages resulting therefrom. Any contractor or subcontractor who wilfully fails or refuses to pay the prevailing wage rates provided for under this section shall for each such failure or refusal, upon conviction thereof, be fined not less than $500 or not more than $2,000, and upon such conviction no public construction contract in this State shall be awarded to or received by such contractor or sub-contractor, or, to any person, firm, partnership, or corporation in which such contractor or subcontractor has an interest, until three years have elapsed from the date of such conviction. The Superior Court shall have exclusive jurisdiction of offenses under this section. 1207 1208 Chapter 408 (d) Any laborer or mechanic employedetb ,y any contractor or subcontractor who is paid in a sum less than the prevailing wage rates provided for under this section shall have a right of action against the contractor or subcontractor in the Superior Court to recover the difference between the amount so paid and the prevailing wage rate plus interest at six percentum per annum. Such action shall, at the request of the laborer or mechanic, be brought by the Department of Justice acting for the Department of Labor in the name and for the benefit of the laborer or mechanic. It shall not be a defense to such action that the underpayment was received by the laborer or mechanic without protest, either oral or in writing, against the amount thereof, and the lack or failure of protest shall not be a bar to recovery. In the event that there is a wilful failure or refusal by the contractor or subcontractor to pay the prevailing wage rate, the contractor or subcontractor shall pay treble the difference between the amount so paid and the prevailing wage rate and shall pay, in addition, a reasonable attorney's fee in an amount to be set by the Superior Court for services rendered in that court and on any appeal. Upon the filing of an action under this section, the contractor or subcontractor shall post suitable bond approved by the Superior Court for the damages which may be recoverable hereunder. The party bringing in action under this section shall not be required to pay court costs. Approved May 24,1972. -11=11. 1209 CHAPTER 409 FORMERLY SENATE BILL NO. 530 AS AMENDED BY SENATE AMENDMENT NO. 1 AND HOUSE AMENDMENT NO. 1 AN ACT TO AMEND SUBCHAPTER IV, OF CHAPTER 51, TITLE 30, DELAWARE CODE RELATING TO STREET AID FOR MUNICIPALITIES BY INCREASING THE PUR-POSES FOR WHICH THE FUNDS MAY BE EXPENDED. Be it enacted by the General Assembly of the State of Delaware: Section 1. Amend Section 5165 (a) (2), subchapter IV of Chapter 51, Title 30, Delaware Code, by striking all of said section 5165 (a) (2) and substituting in lieu thereof a new 5165 (a) (2) to read as follows: (2) Funds available under Section 5163 (b) (2) of this title shall be used as follows: (1) Not more than fifty (50) per cent of the funds received under Section 5163 (b) (2) of this Title may be used for: The construction, installation, repair, maintenance or replacement of water mains or sewer mains. The preparation or revision of comprehensive plans for urban renewal. The payment of principal and interest on any bonds issued for the construction, installation, repair, maintenance or replacement of any water mains or sewer mains notwithstanding that such indebtedness may have been incurred prior to the passage of this Act. The construction or reconstruction or repair of side-walks necessary for pedestrian safety. (2) At least fifty (50) per cent of the funds received under Section 5163 (b) (2) of this Title shall be used for: 1210 Chapter 409 Street improvements, including the expenses for main-taining the streets. Payment of principal and interest on any bonds issued for street improvements. Purchase and repair of street construction and main-tenance equipment. Section 2. The effective date of this Act is January 1, 1972. Approved May 27, 1972. AIMMEMINI 1211 CHAPTER 410 FORMERLY SENATE SUBSTITUTE NO. 2 FOR SENATE BILL NO. 550 AS AMENDED BY SENATE AMENDMENT NO. 1 AN ACT TO AMEND CHAPTER 43, TITLE 21 OF THE DELAWARE CODE, RELATING TO VEHICLE REAR WHEEL FLAPS OR PROTECTORS. Be it enacted by the General Assembly of the State of Delaware: Section 1. Amend Section 4359, Chapter 43, Title 21 of the Delaware Code, by striking said section in its entirety and substituting in lieu thereof a new Section 4359, which shall read as follows: § 4359. Protectors of flaps behind rear wheels of vehicles No person shall operate, cause or permit to be operated any bus or commercial motor vehicle having a gross weight of 8000 lbs. or more, including semi-trailers and trailers, upon the highways of this State unless it is equipped with suitable metal protectors or substantial flexible flaps behind the rear-most wheels of the vehicle or combination to prevent the projection of rocks, dirt, water or other substances to the rear and to minimize side spray. The flap, shield, or other device shall extend down from the vehicle's body to not more than eight (8) inches above the road surface, but not more than fifteen (15) inches when the vehicle is in an unloaded condition. The protector or flap shall extend laterally at least the width of the tire being protected. If any bus or commercial motor vehicle, including semi-trailers and trailers, is so designed or constructed that the objectives in subsection (a) of the section are accomplished by reason of fender or body construction or other means of enclosure, either permanent or temporary, then the requirements of this section have been satisfied. 1212 Chapter 410 This section shall not apply to any farm tractor or to uncoupled truck tractors or other vehicles where the construction is such that complete freedom around the wheel area is necessary to secure the designed use of the vehicle. The Director of the Division of Motor Vehicles shall set and adopt such regulations as are necessary to implement this section. Approved May 27, 1972. CHAPTER 411 FORMERLY SENATE BILL NO. 578 AN ACT TO AMEND CHAPTER 10 OF TITLE 14, DELAWARE CODE, RELATING TO QUALIFICATIONS OF VOTERS IN SCHOOL ELECTIONS. Be it enacted by the General Assembly of the State of Delaware: Section 1. Amend Section 1077, Title 14, Delaware Code, by striking the figure "21" as the same appears in the first sentence and substitute in lieu thereof the figure "18". Approved May 27, 1972. 1213 1214 CHAPTER 412 FORMERLY SENATE BILL NO. 621 AN ACT to AMEND CHAPTER 99, TITLE 10, DELAWARE CODE, RELATING TO APPEALS BY THE STATE IN CRIMINAL CASES... Be it enacted by the General Assembly of the State of Delaware: Section 1. Section 9902, Title 10, Delaware Code, as heretofor enacted shall be denominated subsection (a) and new subsections (b) and (c) are added as follows: When any order is entered before trial in any Court suppressing or excluding substantial and material evidence, the Court, upon certification by the Attorney General that the evidence is essential to the prosecution of the case, shall dismiss the complaint, indictment or information or any count thereof to the proof of which the evidence suppressed or excluded is essential. Upon ordering the complaint, indictment or information or any count thereof dismissed pursuant to the Attorney General's certification, the reasons of the dismissal shall be set forth in the order entered upon the record. The State shall have an absolute right of appeal to an appellate court from an order entered pursuant to subsection (b) of this section and if the appellate court upon review of the order suppressing evidence shall reverse the dismissal, the defendant may be subjected to trial. Section 2. Amend § 9903, Chapter 99, Title 10 of the Delaware Code, by striking said section in its entirety, and substituting in lieu thereof a new § 9903, which shall read as follows: § 9903. Appeal in the discretion of the appellate court The State may apply to the appellate court to permit an appeal to determine a substantial question of law or procedure, and the appellate court may permit the appeal in its absolute Chapter 412 1215 discretion. The appellate court shall have the power to adopt rules governing the allowance of the appeal; but, in no event of such appeals shall the decision or result of the appeal affect the rights of the defendant and he shall not be obligated to defend the appeal, but the Court may require the Public Defender of this State to defend the appeal and to argue the cause. Approved May 27, 1972. 1216 CHAPTER 413 FORMERLY SENATE BILL NO. 626 AS AMENDED BY SENATE AMENDMENT NO. 1 AND HOUSE AMENDMENT NOS. 1 & 2 AN ACT TO AMEND TITLE 29 OF THE DELAWARE CODE BY CREATING A PART VIII, CHAPTERS 91 and 92, TO PROVIDE FOR UNIFORM AND EQUITABLE TREAT-MENT OF PERSONS DISPLACED FROM THEIR HOMES, BUSINESS OR FARMS AS A RESULT OF THE ACQUISI-TION FOR FEDERAL OR STATE-SPONSORED CON-STRUCTION PROGRAMS OF REAL PROPERTY AND TO AMEND CHAPTER 19 OF TITLE 17, DELAWARE CODE. WHEREAS, the Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 establishes a new and different program of relocation assistance and uniform real property acquisition policy; and WHEREAS, the declared purpose of this program is to insure that a few individuals do not suffer disproportionate injuries as a result of a displacement caused by Federal construction programs and projects; and WHEREAS, continued eligibility of the State of Delaware for various types of Federal aid is made contingent upon compliance with the terms and provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970; and WHEREAS, the General Assembly hereby finds and declares that it is in the public interest to establish a uniform policy for the fair equitable treatment for persons displaced by the acquisition of real property by State and local land acquisition programs, by building code enforcement activities, or by a program of voluntary rehabilitation of buildings or other improvements conducted pursuant to governmental supervision; and WHEREAS, the General Assembly further finds and declares that relocation assistance and assistance in the acquisition of replacement housing are proper costs of any State or federally financed program or project. Chapter 413 NOW, THEREFORE, 1217 Be it enacted by the General Assembly of the State of Delaware: Section 1. Chapter 19, Title 17 of the Delaware Code, is hereby amended by striking said chapter in its entirety. Section 2. Title 29 of the Delaware Code, is hereby amended by adding thereto a new Chapter 91 dealing with uniform relocation assistance. CHAPTER 91. UNIFORM RELOCATION ASSISTANCE § 9101. Defmitions As used in this Chapter: The term "Agency" means any department, agency or instrumentality of the State or of a political subdivision of the State; or any department, agency or instrumentality of two or more political subdivisions of the State. The term "person" means any individual, partnership, corporation or association. The term "displaced person" mealis any person who on or after the effective date of this Chapter moves from real property or moves his personal property from real property, as a result of the acquisition of such real property, in whole or in part, or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by an agency; and solely for the purposes of Section 9102 (a) and (b) and Section 9106 of this Chapter, as a result of the acquisition of or as the result of the written order of the acquiring agency to vacate other real property on which such person conducts a business or farm operation for such program or project. The term "business" means any lawful activity ex-cepting a farm operation, conducted primarily: (A) for the purchase, sale, lease and rental of personal and real property, and for the manufacture, processing, or marketing of products, commodities, or any other personal property; 1218 Chapter 413 for the sale of services to the public; by a nonprofit organization; or solely for the purpose of Section 9102 (a) of this Chapter for assisting in the purchase, sale, resale, manufacture, processing, or marketing of products, commodities, personal property, or services by the erection and maintenance of an outdoor advertising display or displays, whether or not such display or displays are located on the premises on which any of the above activities are conducted. (5) The term "farm operation" means any activity con-ducted solely or primarily for the production of one or more agricultural products or commodities, including timber, for sale or home use, and customarily producing such products or com-modities in sufficient quantity to be capable of contributing materially to the operator's support. § 9102. Moving and related expenses (a) Whenever the acquisition of real property for a program or project undertaken by an agency will result in the displacement of any person on or after the effective date of this Chapter, the agency shall make a payment to any displaced person upon proper application as approved by the agency for: actual reasonable expenses in moving himself, his family, business, farm operation, or other personal property; actual direct losses of tangible personal property as a result of moving or discontinuing a business or farm operation, but not to exceed an amount equal to the reasonable expenses that would have been required to relocate such property, as determined by the agency and; actual reasonable expenses in searching for a rep-lacement business or farm. (b) Any displaced person eligible for payments under subsection (a) of this section who is displaced from a dwelling and who elects to accept the payments authorized by this subsection in lieu of the payments authorized by subsection (a) of this Section may receive a moving expense allowance, determined according to a schedule established by the agency not to exceed $300; and a dislocation allowance of $200. Any displaced person eligible for payments under subsection (a) of this Section who is displaced from his place of business or from his farm operation and who elects to accept the payment authorized by this subsection in lieu of the payment authorized by subsection (a) of this Section, may receive a fixed payment in an amount equal to the average annual net earnings of the business or farm operation, except that such payment shall be not less than $2,500 nor more than $10,000. In the case of a business no payment shall be made under this subsection unless the agency is satisfied that the business (1) cannot be relocated without a substantial loss of its existing patronage, and (2) is not a part of a commercial enterprise having at least one other establishment not being acquired by the agency, which is engaged in the same or similar business. For purposes of this subsection, the term "average annual net earnings" means one-half of any net earnings of the business or farm operation, before Federal, State, and local income taxes, during the two taxable years immediately preceding the taxable year in which such business or farm operation moves from the real property acquired for such project, or during such other period as the agency determines to be more equitable for establishing such earnings, and includes any co-mpensation paid by the business or farm operation to the owner, his spouse, or his dependents during such period. In addition to all other payments authorized under the provisions of this Chapter, a person displaced by any program or project may receive reimbursement for miscellaneous expenses incurred within 30 days of relocation, which expenses are directly attributable to such relocation and which expenses have in fact been paid and for which a proper receipt can be shown. In no event, however, shall such miscellaneous payments as authorized by this subsection exceed 1% of the appraised residential fair market value of the residence acquired, as determined by such agency. Payments authorized by this subsection shall not be allowed if provided for by any other section of this Chapter. § 9103. Replacement housing for homeowners (a) In addition to payments otherwise authorized by this Chapter, the agency shall make an additional payment not in Chapter 413 1219 1220 Chapter 413 excess of $15,000 or 25% of the appraised residential fair market value of the property acquired, whichever is greater, as determined by the agency, to any displaced person who is displaced from a dwelling actually owned and occupied by such displaced person for not less than one hundred eighty days prior to the initiation of negotiations for the acquisition of the property. Such additional payment shall include the following elements: The amount, if any, which when added to the acquis-ition cost of the dwelling acquired, equals the reasonable cost of a comparable replacement dwelling which is a decent, safe, and sanitary dwelling adequate to accommodate such displaced person, reasonable accessible to public services and places of employment and available on the private market. All determinations required to carry out this subparagraph shall be made in accordance with standards established by the Agency providing the additional payment. The amount, if any, which will compensate such displaced person for any increased interest costs which such person is required to pay for financing the acqusition of any such comparable replacement dwelling. Such amount shall be paid only if the dwelling acquired was encumbered by a bona fide mortgage which was a valid lien on such dwelling for not less than one hundred eighty days prior to the initiation of negations for the acquisition of such dwelling. Such amount shall be equal to the excess in the aggregate interest and other debt service costs of that amount of the principal of the mortgage on the replacement dwelling which is equal to the unpaid balance of the mortgage on the acquired dwelling, over the remainder term of the mortgage on the acquired dwelling, reduced to discounted present value. The discount rate shall be the maximum rate of interest permitted to be paid on savings deposits by any commercial savings bank within the State of Delaware pursuant to the rules and regulations of the Federal Deposit Insurance Corporation pursuant to Section 9108 of this Chapter. Reasonable expenses incurred by such displaced person for title examination, title insurance, transfer tax, recording fees, and other closing costs incident to the purchase of the rep-lacement dwelling, but not including prepaid expenses or pro-rations. Chapter 413 1221 (b) The additional payment authorized by this subsection shall be made only to such a displaced person who purchases and occupies a replacement dwelling which is decent, safe and sanitary not later than the end of the one year period beginning on the date on which he received final payment of all costs of the acquired dwelling, or on the date on which he moves from the acquired dwelling, whichever is the later date. § 9104. Replacement housing for tenants and certain others In addition to amounts otherwise authorized by this Chapter, the agency shall make a payment to or for any displaced person displaced from any dwelling not eligible to receive a payment under Section 9103 which dwelling was actually and lawfully occupied by such displaced person for not less than ninety days prior to the initiation of negotiations for acquisition of such dwelling. Such payment shall be either: the amount necessary to enable such displaced person to lease or rent for a period not to exceed four years, a decent, safe and sanitary dwelling of standards adequate to accommodate such person in areas not generally less desirable in regard to public utilities and public and commercial facilities, and reasonably accessible to his place of employment, but not to exceed $4,000; or the amount necessary to enable such person to make a down payment (including incidental expenses described in Section 9103 (a) (3) on the purchase of a decent, safe and sanitary dwelling of standards adequate to accommodate such person in areas not generally less desirable in regard to public utilities and public and commercial facilities, but not to exceed $4,000, except that if such amount exceeds $2,000, such person must equally match any such amount in excess of $2,000, in making the down payment. § 9105. Maximum Federal participation In determining the amounts to be paid under Section 9102, 9103 and 9104, of this Chapter, the 'agency shall provide payments which will assure maximum Federal participation in Federally assisted projects or programs. 1222 Chapter 413 § 9106. Relocation advisory assistance programs Whenever the acquisition of real property for a program or project undertaken by the agency will result in the dis-placement of any person on or after the effective date of this Section, the agency shall provide a relocation assistance advisory program for displaced persons which shall offer the services prescribed herein. If the agency determines that any person occupying property immediately adjacent to the real property acquired is caused substantial economic injury because of the acquisition, it may offer such person relocation advisory services under such program. Each relocation advisory assistance program required by subsection (a) shall include such measures, facilities or services as may be necessary or appropriate in order to: determine the need, if any, of displaced persons for relocation assistance; provide current and continuing information on the availability prices and rentals, of comparable decent, safe and sanitary sales and rental housing, and of comparable commercial properties and locations for displaced businesses; assist a displaced person displaced from his business or farm operation in obtaining and becoming established in a suitable replacement location; supply information concerning Federal, State and local housing programs, disaster loan programs, and other Federal, State or local programs offering assistance to displaced persons; and provide other advisory services to displaced persons in order to minimize hardships to such persons in adjusting to relocation; secure, to the greatest extent practicable, the co-ordination of relocation activities with other project activities and other planned or proposed governmental actions in the com-munity or nearby areas which may affect the carrying out of relocation program. Chapter 413 1223 § 9107. Assurance of availability of housing Whenever the acquisition of real property for a program or project undertaken by the agency will result in the dis-placement of any person on or after the effective date of this Section, the agency shall assure that, within a reasonable period of time, prior to displacement there will be available, in areas not generally less desirable in regard to public utilities and public and commercial facilities and at rents or prices within the financial means of the families and individuals displace, decent, safe and sanitary dwellings, equal in number to the number of and available to such displaced person who require such dwelling and reasonably accessible to their places of employment; except that regulations issued pursuant to Section 9108 of this Chapter may prescribe situations when these assurances may be waived. No person shall be required to move from his dwelling on or after the effective date of this Chapter, on account of any project unless the agency is satisfied that replacement housing, in accordance with Section 9107 (a), is available to such person. § 9108. Authority of the agency (a) The Governor may by proclamation or executive order designate an agency or agencies to establish rules and regulations as may be necessary under the provisions of this Chapter. In lieu of such proclamation or executive order, each agency concerned shall adopt such rules and regulations to assure: that the payments and assistance authorized by this Chapter shall be administered in a manner which is fair and reasonable, and as uniform as practicable; that a displaced person who makes proper application for a payment authorized for such person by this title shall be paid promptly after a move, or, in hardship cases, paid in advance; and that any person aggrieved by a determination as to eligibility for a payment authorized by this Chapter, or the amount of payment, may have his application reviewed by the head of the agency. 1224 Chapter 413 The agency may prescribe such other regulations and procedures as it deems necessary or appropriate to carry out the provisions of this Chapter. If a project cannot proceed to actual construction because comparable replacement sale or rental housing is not available, the agency may enter into such agreements with the Department of Community Affairs and Economic Development, or take such other action, as necessary or appropriate to provide such housing by use of funds authorized for such project. In order to encourage and facilitate the construction or rehabilitation of housing to meet the needs of displaced persons who are displaced from dwellings because of any project or program, the agency may enter into agreement with the De-partment of Community Affairs and Economic Development, or take such other actions, as necessary or appropriate to utilize federal loans for planning and preliminary expenses for additional housing as provided under 42 United States Code, Section 4635. § 9109. Administration In order to prevent unnecessary expense and duplication of functions, and to promote uniform and effective administration of relocation assistance programs for displaced persons, the agency may enter into contracts with any individual, firm, association or corporation for services in connection with those programs, or may carry out its functions under this Chapter through any federal agency or any department or instrumentality of the State or its political subdivisions having an established organization for con-ducting relocation assistance programs. § 9110. Fund availability Funds appropriated or otherwise available to any agency for the acquisition of real property or any interest therein for a particular program or project shall be available also for obligations and expediture to carry out the provisions of this Chapter as applied to that program or project. Chapter 413 1225 § 9111. State participation in cost of local relocation payments and services If a unit of local government or political subdivision of this State acquires real property, and State financial assistance is available to pay the cost, whole or part, of the acquisition of that real property, or of the improvement for which the property is acquired, the cost to the unit of local government or political subdivision of providing the payments and services prescribed by this Chapter shall be included as part of the costs of the project for which State financial assistance is available and the unit of local government or political subdivision shall be eligible for State financial assistance for relocation payments and services in. the same manner and to the same extent as other project costs. § 9113. Payments not income or resources No payment received by a displaced person under this Chapter shall be considered as income or resources for the purpose of determining the eligibility or extent of any person for assistance under State law or for the purpose of the Delaware State Income or Corporation Income Tax. Such payments shall not be con-sidered as income or resources to any recipient of public assistance under the provisions of Title 31 of the Delaware Code, and such payments shall not be deducted from the amount of aid to which the recipient would otherwise be entitled. § 9114. Eminent domain Nothing contained in this Chapter shall be construed as creating in any condemnation proceeding brought under the power of eminent domain any element of damages not in existence on the effective date of this Chapter, and the payments authorized by this Chapter are to be in addition to the just compensation established in such proceedings, but only to the extent they are not otherwise included in the condemnation award. § 9115. Severability If any provisions, clause or phrase of this Chapter, or the application thereof to any person or circumstance, is adjudged invalid by any court of competent jurisdiction, such judgement 1226 Chapter 413 shall not invalidate the remainder of this Chapter, and the application thereof to other persons or circumstances shall not be affected thereby. Section 3. Title 29 of the Delaware Code is amended by adding thereto a new Chapter 92 dealing with real property acquisitions policy to read as follows: CHAPTER 92. REAL PROPERTY ACQUISITION § 9201. Declaration of policy and definition The provisions of this Chapter shall be applicable to the acquisition of real property by State and local land acquisition programs or projects in which Federal, state or local funds are used. As used in this Chapter the term "agency" shall mean any agency or instrumentality of the State or of a political subdivision of the State; or any department, agency, or instrumentality of two or more political subdivisions of the State. § 9202. Expenses incidental to transfer of title The agency acquiring real property for such use shall as soon as practicable after the date of payment of the purchase price or the date of deposit into court of funds to satisfy the award of compensation in a condemnation proceeding to acquire real property, whichever is the earlier, reimburse the owner, to the extent the agency deems fair and reasonable, for expenses he necessarily incurred for (a) recording fees, transfer taxes and similar expenses incidental to conveying such real property to the State; (b) penalty costs for prepayment for any pre-existing recorded mortgage entered into in good faith encumbering such real property; and (c) the pro rata portion of real property taxes paid which are allocable to a period subsequent to the date of vesting title in the State, or the effective date of possession of such real property by the State whichever is the earlier. § 9203. Litigation expenses Where a condemnation proceeding is instituted by the agency to acquire real property for such use and (i) the final judgment is Chapter 413 1227 that the real property cannot be acquired by condemnation or (ii) the proceeding is abandoned, the owner of any right, title or interest in such real property shall be paid such sum as will, in the opinion of the agency, reimburse such owner for his reasonable attorney, appraisal and engineering fees, actually incurred because of the condemnation proceedings. The awards of such sums will be paid by the agency. § 9204. Inverse condemnation proceedings Where a condemnation proceeding is instituted by the agency the owner of any right, title or interest in real property because of use of his property in any program or project, the court, rendering a judgment for the plaintiff in such proceeding and awarding compensation for the taking of property, or the Department of Justice effecting a settlement of any such proceedings, shall determine and award or allow to such plaintiff, as a part of such judgment or settlement, such sum as will, in the opinion of the court or the Department of Justice, reimburse such plaintiff for his reasonable costs, disbursements and expenses, including reason-able attorney, appraisal and engineering fees, actually incurred because of such proceedings. 9205. Real property acquisition policies The agency shall comply with the following policies: Every reasonable effort shall be made to acquire expeditiously real property by negotiation. Real property shall be appraised before the initiation of negotiations, and the owner or his designated representative shall be given an opportunity to accompany the appraiser during his inspection of the property. Before the initiation of negotiations for real property, an amount shall be established which it is reasonably believed is just compensation therefor, and such amount shall be offered for the property. In no event shall such amount be less than the approved appraisal of the fair market value of real property. Any decrease or increase of the fair market value of real property prior to the date of valuation caused by any program or project for which such property is acquired or by the likelihood that the 1228 Chapter 413 property would be acquired for such program or project, other than that due to physical deterioration within the reasonable control of the owner, will be disregarded in determining the compensation for the property. The owner of the real property to be acquired shall be provided with a written statement of, and summary of the basis for, the amount established as just compensation. Where appropriate the just compensation for the real property acquired and for damages to remaining real property shall be separately stated. No owner shall be required to surrender possession of real property before the agreed purchase price is paid or deposited with the court, in accordance with the provisions of Chapter 61, Title 10, for the benefit of the owner an amount not less than the approved appraisal of the fair market value of such property, or the amount of the award of compensation in the condemnation proceeding of such property. Any program or project shall be so scheduled that, to the greatest extent practicable, no person lawfully occupying real property shall be required to move from a dwelling (assuming a replacement dwelling will be available) or to move his business or farm operation without at least 90 days' written notice from the date by which such move is required. If an owner or tenant is permitted to occupy the real property acquired on a rental basis for a short term or for a period subject to termination by the agency on short notice, the amount of rent required shall not exceed the fair rental value of the property to a short-term occupier. In no event shall the time of condemnation be advanced, on negotiations or condemnation and the deposit of funds in court for the use of the owner be deferred, or any other coercive action be taken to compel an agreement on the price to be paid for the property. If an interest in real property is to be acquired by exercise of power of eminent domain, formal condemnation proceedings shall be instituted. The agency shall not intentionally make it necessary to an owner to institute legal proceedings to prove the fact that the taking of his real property. Chapter 413 1229 (i) If the acquisition of only part of the property would leave its owner with an uneconomic remnant, an offer to acquire the entire property shall be made. § 9206. Buildings, structures and improvements Where any interest in real property is acquired, an equal interest in all buildings, structures, or other improvements located uppn the real property so acquired and which is required to be removed from such real property or which is determined to be adversely affected by the use to which such real property will be put shall be acquired. For the purpose of determining the just compensation to be paid for any building, structure or other improvement required to be acquired as above set forth, such building, structure or other improvement shall be deemed to be a part of the real property to be acquired notwithstanding the right or obligation of a tenant, as against the owner of any other interest and in the real property, to remove such building, structure, or improvement at the expiration of his term, and the fair market value which such building, structure or improvement contributes to the fair market value of the property to be acquired, or the fair market value of such building, structure or improvement for removal from the real property, whichever is the greater, shall be paid to the tenant therefor. Payment for such buildings, structures or improvements as set forth above shall not result in duplication of any payments otherwise authorized by the laws of this State. No such payment shall be made unless the owner of the land involved disclaims all interest in the improvements of the tenant. In consideration for any such payment, the tenant shall assign, transfer and release all his right, title and interest in and to such improvements. Nothing with regard to the above-mentioned acquisition of buildings, structures or other improvements shall be construed to deprive the tenant of any right to reject payment and to obtain payment for such property interests in accordance with other laws of this State. Section 4. All of the laws or parts of laws now in effect inconsistent with the provisions of this Act are repealed, super-seded; modified or amended so far as necessary to conform to and give full force and effect to the provisions of this Act. 1230 Chapter 413 Section '5. This Act shall become effective immediately. Approved May 27, 1972. CHAPTER 414 FORMERLY HOUSE BILL NO. 401 AS AMENDED BY HOUSE AMENDMENTS NO. 1 AND 2 AN ACT TO MAKE A TECHNICAL AMENDMENT TO THE REVISED INCOME TAX LAW RELATING TO INDIVID-UALS, TRUSTS, ESTATES AND CERTAIN COR-PORATIONS. Be it enacted by the General Assembly of the State of Delaware: Section 1. Amend Section 1138, Chapter 11, Title 30, Delaware Code, by deleting subsections (b) (1) and (2) and substituting in lieu thereof the following: (b) Rules of application. The following rules shall apply in determining whether or to what extent income is set aside for future distribution to nonresident individual beneficiaries: (1) If all or part of the Federal taxable income of the estate or trust as modified by Section 1106 of this title is distributable in future taxable years (whether or not added in the meantime to estate or trust corpus for estate or trust accounting purposes), to or for the benefit of a named individual beneficiary or ben-eficiaries, or a class of individual beneficiaries, and if on the last day of the taxable year of the estate or trust one or more of such named individual beneficiary or beneficiaries, or one or more members of the first named class of individual beneficiaries, is living, then the portion of the Federal taxable income of the estate or trust as modified by Section 1106 of this title considered set aside for future distribution to nonresident beneficiaries shall be computed: (i) in the case of a named individual beneficiary or beneficiaries by first determining the share or shares of each such beneficiary if the estate or trust terminated on the last day of the taxable year, and then determining the portion of such income realized by the estate or trust during the taxable year while the beneficiary was a nonresident of this State; and 1231 1232 Chapter 414 (ii) in the case of the first named class of beneficiaries by first determining who the members of the class would be and the share of each such member if the estate or trust terminated on the last day of the taxable year, and then determining the. portion of such income of each such share realized by the estate or trust while such member was a nonresident of this State. (2) If all or part of the Federal taxable income of the estate or trust as modified by Section 1106 of this title is distributable in future taxable years (whether or not added in the meantime to estate or trust corpus for estate or trust accounting purposes), to or for the benefit of a named individual beneficiary or a class of individual beneficiaries, and if on the last day of the taxable year of the estate or trust no named individual beneficiary or none of the members of the first named class of individual beneficiaries is then living, then the portion of the Federal taxable income of the estate or trust as modified by Section 1106 of this title considered as set aside for future distribution to nonresident beneficiaries shall be determined in the manner provided in paragraph (1) of this subsection except that it will be presumed: in the case of a named individual beneficiary or beneficiaries that each such beneficiary was living and residing in the State where his putative parents resided during the taxable year; and in the case of the first named class of beneficiaries that members of the class were living and residing with the person relationship to whom determines or defines the membership in the class. Approved June 8, 1972. CHAPTER 415 FORMERLY SENATE BILL NO. 595 AS AMENDED BY HOUSE AMENDMENT NOS. 4,5,6,7, AND 8 AN ACT TO AMEND TITLE 24, DELAWARE CODE, RE-LATING TO FUNERAL DIRECTORS; ESTABLISHING A BOARD OF FUNERAL SERVICE PRACTITIONERS; CON-FERRING UPON SAID BOARD CERTAIN POWERS AND AUTHORITY RELATIVE TO THE LICENSING AND REGULATION OF FUNERAL DIRECTORS AND PROVID-ING ENFORCEMENT AND PENALTIES; CONFERRING UPON BANK COMMISSIONER CERTAIN POWERS AND AUTHORITY RELATIVE TO THE LICENSING AND REGULATION OF PRE-NEED FUNERAL CONTRACTS AND PROVIDING ENFORCEMENT AND PENALTIES. Be it enacted by the General Assembly of the State of Delaware (two-thirds of all members elected to each house concurring therein): Section 1. Amend Title 24, Delaware Code, by striking Chapter 31 thereof in its entirety and substituting in lieu thereof a new Chapter 31 to read as follows: CHAPTER 31 SUBCHAPTER 1. FUNERAL SERVICE PRACTITIONERS § 3101. Definitions "Board" as used in this Chapter shall mean the Board of Funeral Service Practitioners of the State of Delaware or any successor thereof. "Practice of funeral service" as used in this Chapter shall mean a person engaged in the care of the human dead, or in the practice of disinfecting and preparing by embalming or otherwise the human dead for the funeral service, transportation, 1233 1234 Chapter 415 burial or cremation, or in the practice of funeral directing or embalming as presently known, whether under these titles or designations or otherwise. "A license for the practice of funeral service" as used in this Chapter shall be the license to a person who is engaged in the practice of funeral service as defined hereinabove. "Funeral establishment" means every place or premise devoted to or used in the care and preparation for the funeral and burial of human dead, or maintained for the convenience of the bereaved for viewing, or other services in connection with the human dead, or as the office or place for carrying on the profession of funeral service. "Burial" includes interment in any form or cremation and the transportation of the dead human body necessary therefor. "Advertisement" means the publication, dissemination, circulation or placing before the public, or causing directly or indirectly to be made, published, disseminated or placed before the public any announcement or statement in a newspaper, magazine or other publication, or in the form of a book, notice, circular, pamphlet, letter, handbill, poster, bill, sign, placard, card, label or tag, or over any radio, or television station. "Resident trainee" means a person who is engaged in preparing to become licensed for the practice of funeral service under the personal supervision and instruction of a person duly licensed for the practice of funeral service, of and in the State of Delaware under the provisions of this Chapter, and who is duly registered as such with the Board. § 3102. Board of Funeral Service Practitioners; appointment; qualifications; terms of office; vacancies There is hereby created a State Board of Funeral Service Practitioners which shall succeed to the power, authority, pro-perty and records of the State Board of Examiners of Undertakers. The Board shall consist of seven (7) members, each of whom shall be a citizen of the United States and a resident of the State of Delaware. Five (5) of these members shall be persons who Chapter 415 1235 have been licensed to practice funeral services for ten (10) consecutive years in this State immediately preceding his or her appointment, and the remaining two members shall be persons who are not connected with the practice of funeral service. Members of said Board shall be appointed by the Governor for a term of three (3) years and may be removed by the Governor for incompetence or improper conduct. Vacancies on the Board shall be filled by appointment by the Governor for the balance of the term. Present members of the Board of Examiners of Undertakers shall serve until their terms have expired and their successors have been appointed. No more than two (2) members of the Board shall be residents of either Sussex County, Kent County, the City of Wilmington, or New Castle County outside of the City of Wilmington. At least three (3), but no more than four (4) members of the Board shall be affiliated with one of the major political parties and at least two (2), but no more than three (3), of the members shall be affiliated with the other major political party; provided, however, there shall be no more than a bare majority representation of one major political party over the other major political party. Any person who declines to announce his political affiliation shall also be eligible for appointment as a member of the Board. § 3103. Meetings Said Board shall hold not less than one (1) meeting annually for the purpose of examining applicants for licenses, such meeting to be held at such time and place as the Board may determine. The Board may hold such other meetings as it may deem necessary. four (4) or more members shall constitute a quorum. § 3104. Powers and duties of the Board The Board appointed under the provision of this Chapter and each successor thereto is authorized to select from its own membership a President; to adopt and promulgate such rules and regulations for the transaction of its business and for the betterment and promotion of the standards of service and practice to be followed by the funeral service profession in the State of Delaware as it may deem expedient and consistent with the laws of this State and for the public good. The Board may select also from its own membership a 1 1236 Chapter 415 Vice-President, and a Secretary. No two offices to be held by the same person. All members of the Board with the exception of the Secretary shall serve without compensation; provided that such members shall be reimbursed for their necessary traveling expenses and the necessary expenses incident to their attendance upon the business of the Board. Reimbursement for expenses shall be requested from the Treasurer of the State of Delaware. All money or income received by the Board from taxes, fees, or other sources shall be deposited with the State Treasurer via the State Licenses Board Office when received and shall be credited to the General Fund. All disbursements made by the Board for salaries, expenses or other authorized expenditures, shall be paid by the State Treasurer via the State License Office out of funds appropriated by the General Assembly for such purpose, on vouchers issued by the proper officer or officers of the Board. All such vouchers must be signed by the President and Secretary of the Board. The Board shall be represented by the Office of the Attorney General. § 3105. Licenses (a) The State Board of Funeral Service is hereby authorized and empowered to determine the qualifications necessary to enable any person to lawfully engage in the funeral service profession and to operate a funeral establishment. The said Board shall examine all applicants for licenses for the practice of funeral service and shall issue the proper license to all those persons who successfully pass such examination. To be licensed for the practice of funeral service under this Chapter, a person must be a resident of this State for six (6) months prior to applying and a citizen of the United States, of good, moral character, must have completed four (4) years of high school and at least two (2) academic years of instruction in a recognized college or university, one (1) year of academic instruction in a prescribed course at a school of funeral service accredited by the American Board of Funeral Service Education and must have served as a resident trainee for not less than twelve (12) months under the personal supervision in this State of a person licensed for the practice of funeral service. (b) Each such applicant for the license for the practice of funeral service shall be examined orally or in writing as the Board shall determine on the following subjects: Basic health sciences, including anatomy, chemistry, bacteriology, pathology, hygiene, and public health; Funeral service arts and sciences, including embalming and restorative art; Funeral service administration, including accounting, funeral law, psychology, funeral principles, directing and management; (c) All applications for examination for a license for the practice of funeral service shall be upon forms furnished by the Board and shall be accompanied by a fee to be determined by the Board. (d) The practice of funeral service must be engaged in at a fixed place or establishment, and no person, partnership, corpora-tion, association, or other organization shall be open or maintain a place or establishment at which to engage in or conduct or hold himself or itself out as engaging in the funeral service profession unless permission has been granted by the Board. A license for the practice of funeral service is issued for specific locations. It shall be used only at the addresses specified in the application unless the licensee is granted written approval for a change by the Board; provided, that this provision shall not prevent a person licensed for the practice of funeral service from conducting a funeral in another licensed established, a church, home, public hall, lodge room, provided such person maintains a fixed place or establish-ment of his own or is in the employ of one conforming to all other provisions of this Chapter and operating a funeral establishment as herein defined. (e) The license shall be signed by the President and Secretary of the Board and the seal of the Board affixed thereto. No license shall be issued or renewed for a period exceeding one (1) year and all licenses and renewals thereof shall expire and terminate the 31st day of August following the date of their issue unless sooner revoked and cancelled. Chapter 415 1237 1238 Chapter 415 Any person holding a license for the practice of funeral service under this Chapter may have the same renewed by filing application therefor with the Secretary of the Board within thirty (30) days preceding the expiration of his license upon forms provided by said Board, and upon payment of a renewal fee of Ten Dollars ($10) for each license; provided, that any person neglecting or failing to have his license renewed as above provided may, at the discretion of the Board, have the same renewed by making application therefor during the ninety (90) days immedia-tely following the expiration date and upon the payment of a Twenty-five Dollar ($25) revival and renewal fee; and provided further that the license of any licensee who is actively engaged in the military service of the United States may, at the discretion of the Board, be held in abeyance for the duration of such service and such person may be relieved of the payment of such renwal and revival fees as the Board may deem justifiable and expedient. Any person holding a license granted by any legal authority of this State as a funeral service practitioner on the effective date of this Chapter shall not be required to make a new application or submit to an examination but shall be entitled to a license for the practice of funeral service upon the same terms and conditions as are herein provided for the renewal of licenses of those who may be licensed after the passage of this Chapter, but all such persons shall be subject to every other provision of this Chapter and such rules and regulations as the Board may adopt in pursuance of this Chapter. § 3106. Resident trainee (a) A person desiring to become a resident trainee shall make application on a form provided for this purpose which shall be subject to review by the entire Board. The application shall state that the applicant is over eighteen (18) years of age, of good moral character, and shall have successfully completed the educational requirements set forth in § 3105 of this Title. Said application must be sustained by the oath of the applicant and be accompanied by a fee of Ten Dollars ($10). When the Board is satisfied as to the qualifications of an applicant they shall instruct the Secretary to issue a certificate of resident traineeship. When a resident trainee wishes to get in service training with a person licensed for the practice of funeral service, a request shall be submitted to the Secretary of the Board therefor. If such Chapter 415 1239 permission is granted and at any time thereafter such resident trainee leaves the proctorship of the licensee whose service has been entered, it shall be the duty of the said licensee to give such resident trainee an affidavit showing the length of time served with him, which affidavit shall be filed with the Secretary of the Board and made a matter of record in that office, and if such resident trainee shall thereafter seek permission to continue in service training in the State of Delaware a request for permission to do so shall be submitted to the Secretary. All resident trainees registered as provided herein shall be required to report to said Board quarterly upon forms provided by the Board, showing the work which has been completed, during the three (3) months preceding the first of the month in which such report is made. The date contained in said report shall be certified to as correct by the person licensed for the practice of funeral service under whom he has served during such period and by the person licensed for the practice of funeral service owning the funeral home. Before such resident trainee shall be eligible to receive a license for the practice of funeral service, evidence required by this Chapter shall be presented along with an affidavit from the licensee or affidavits from the licensees under whom the trainee worked showing that he or she has assisted in the embalming of at least twenty-five (25) individual cases and that he or she has assisted in the conducting of at least twenty-five (25) funerals during resident traineeship. In all applications of resident trainees for licenses for the practice of funeral service under this Chapter, the eligibility of the applicant shall be determined by the record filed with the Board. The Board shall have power to suspend or revoke a certificate of a resident traineeship for violation of any provision of this Chapter. At the same time not more than one (1) resident trainee shall be permitted to register under any one person licensed for the practice of funeral service. Each sponsor for a registered resident trainee must be actively connected with a funeral establishment as defined by this Chapter. (f) Any person who on the effective date of this Chapter is 1240 Chapter 415 a duly registered apprentice in this State shall immediately be granted a certificate of resident traineeship under this Chapter and shall receive credit for the obtaining of a license for the practice of funeral service for all of the time spent by such resident trainee as an apprentice prior to the effective date of this Chapter. § 3107. Establishment permit No person shall conduct, maintain, manage, or operate a funeral establishment unless a permit for each such establishment has been issued by the Board and is conspicuously displayed in such funeral establishment. In case of funeral services held in any private residence, church, or lodge hall, no permit shall be required. Applications for such funeral establishment permits shall be made on forms furnished by the Board office and filed with the Board office on or before August 1st of each year and shall be accompanied by a fee of Ten Dollars ($10). All such permit shall expire on August 31st of the following year. Violations of any provisions of § 3108 of this Title or of any rule or regulation of the Board committed by any person, or an officer, agent or employee with the knowledge or consent of any person operating such funeral establishments shall be con-sidered sufficient cause for suspension or revocation of such funeral establishment permit. No operator of a funeral establishment shall allow any person licensed for the practice of funeral service to operate out of such funeral establishment unless such licensee is the operator of or an employee of the operator of a funeral establishment which has been granted a permit by the Board. No permit to operate a funeral establishment shall be issued by the Board unless each such funeral establishment has in charge, full time therein, a person licensed for the practice of funeral service; provided, however, that this subparagraph (e) shall not apply to funeral establishments maintained, operated or conducted prior to the effective date of this act. Chapter 415 1241 § 3108. Violations; legal procedure Whenever the Board shall have reason to believe that any person to whom a license has been issued has become unfit to practice within the funeral service profession, or has violated any of the provisions of this Chapter, or any rule or regulation prescribed, or whenever written complaint, charging the holder of a license for the practice of funeral service with the violation of any provisions of this Chapter, is filed with said Board, it shall be the duty of the said Board to conduct an investigation, and if from such investigation it shall appear to the Board that there is reasonable ground for belief that the accused may have been guilty of the violations charges, a time and place shall be set by the Board for a hearing to determine whether or not the license of the accused shall be suspended or revoked. Any member of siad Board shall have the right to administer oaths to witnesses. No action to suspend, revoke or cancel any license shall be taken by the Board until the accused has been furnished with a statement of the charges against him and a notice of the time and place of hearing thereof, the furnishing of such notice and the charges to be given to said accused at least 15 days prior to the date of hearing. Said notice shall be mailed to the accused at his last known place of residence. The accused may be present at such hearing in person or by counsel or both to disprove the charges made against him. If upon such hearing the Board finds the charges are true, it may revoke or suspend the license of the accused. A report of each proceeding to revoke or suspend a license shall be made at the expense of the Board, and a transcript thereof kept in its files. Any person who has been refused a license or whose license has been revoked or suspended may, within thirty days after the receipt of the written decision of the said Board, appeal therefrom to the Superior Court in and for the county within which such person resides, and such Superior Court shall hear and determine as to whether the action of the Board was in accord or consistent with this Chapter, or that said decision of the Board was arbitrary, unwarranted, or in abuse of discretion. Upon the filing of such notice the Secretary of the Board shall transmit forthwith to the Prothonotary of the Superior Court, the records and findings of such proceedings. 1242 Chapter 415 (d) The Board may also refuse to issue, or renew, or may suspend or revoke any license, or may place the holder thereof on a term of probation after proper hearing, upon finding the applicant or the holder of such license to be guilty of acts or omissions including the following: Conviction of a crime involving moral turpitude; Conviction of a felony; Fraud or deceit in obtaining a license or permit under this Chapter; and Gross negligence, incompetency, misconduct or un-professional conduct in the practice of funeral service or in the operation of a funeral establishment. Violation of any of the provisions of this Chapter. (e) No person licensed for the practice of funeral service shall remove or embalm a decedent when he or she has information indicating that an investigation of death is required by Title 29, Section 4710, Delaware Code, until permission of the Chief State Medical Examiner, or an Assistant, or Deputy Medical Examiner has first been obtained. (f) No person licensed for the practice of funeral service or anyone acting for him or her shall have any part in any transaction or business which in any way interferes with the freedom of choice of the general public to choose a funeral establishment except where the body or a part thereof is given for anatomical purposes. (g) No person licensed for the practice of funeral service shall operate a mortuary or funeral establishment located within the confines of, or connected with, any cemetery. No person licensed for the practice of funeral service, or his or her employee shall, directly or indirectly, receive or accept any commission, fee, remuneration or benefit of any kind from any cemetery, mauso-leum or crematory or from any proprietor or agent thereof in connection with the sale or transfer of any cemetery lot, entombment vault, burial privilege or cremation, nor act, directly or indirectly, as a broker or jobber of any cemetery property or interest therein. Chapter 415 1243 § 3109. Circumstances causing certificate to become void; con-tinuation of certificate under certain conditions When any person, upon whose examination, a certificate was issued to any firm or corporation or to such person for his or her funeral service practice under the provisions of this Chapter, ceases to be a member of such firm or corporation or shall be deceased, the right of such person, firm or corporation to continue in such practice shall cease and terminate except under the following circumstances and conditions: Where the practice of funeral service has been carried on by an individual operating under his own certificate, his estate may continue the practice of funeral service under the supervision and direction of a licensed funeral service practitioner of this State, until such time as the estate shall have been settled but not beyond a period of two years from the date of the decedent's death; Where the practice of funeral service has been carried on in the name of a firm or corporation, said firm or corporation may continue to exercise all the rights and prerogatives which said certificate confers and said certificate shall remain in full force and effect so long as any officer of said corporation is a duly licensed funeral service practitioner of this State assuming responsibility for compliance with the provisions of this Chapter. § 3110. Penalties Any person, partnership, corporation, association, or his or her or its agents or representatives who shall violate any of the provisions of this Chapter shall be deemed guilty of misdemeanor, and, upon conviction thereof, be punished by a fine of not more than $300.00 or by imprisonment, for not more than one year, or by both such fine and imprisonment, in the discretion of the court. Justices of the Peace shall have jurisdiction of any such violations of the provisions of this Chapter. Section 2. Further amend Title 24, Delaware Code, Chapter 31, by adding a Subchapter II, to read as follows: 1244 Chapter 415 SUBCHAPTER II PRE-NEED FUNERAL CONTRACTS §3120. Definitions As used in this subchapter, unless the context requires otherwise: "Commissioner" means the State Bank Commissioner. "Financial Institution" means a bank, trust company or savings and loan association authorized by law to do business in this State. "Pre-Need Burial Contract" means a contract, which has for a purpose the furnishing or performance of funeral services, or the furnishing or delivery of personal property, merchandise, or services of any nature in connection with the final disposition of a dead human body, for future use at a time determinable by the death of the person whose body is to be disposed of; but does not mean the furnishing of a cemetery, mausoleum or memorial. § 3121. Pre-need payments and increment as trust funds; disbursements authorized, when (a) All payments of money made to any person, part-nership, association or corporation upon any agreement or contract, or any series or combination of agreements or contract, but not including the furnishing of cemetery lots or mausoleums, which has for a purpose the furnishing or performance of funeral services, or the furnishing or delivery of personal property, merchandise, or services of any nature in connection with the final disposition of a dead human body, for future use at a time determinable by the death of the person whose body is to be disposed of, are held to be trust funds. The person, partnership, association or corporation receiving the payments is declared to be a trustee thereof, and shall deposit all payments in a trust account with a bank or trust company or invest said payments in a savings and loan association. All of the interest, dividends, increases or accretions of whatever nature earned by the funds deposited in a trust account shall remain with the principal of such account and Chapter 415 1245 become a part thereof, subject to all of the regulations concerning the principal of said fund herein contained. All payments made under the agreement, contract or plan are and shall remain trust funds with the financial institution until the death of the person for whose service the funds were paid and until the delivery of all merchandise and full performance of all services called for by the agreement, contract or plan, except where payment is made pursuant to § 3122. The funds shall not be paid by the financial institution until a certified statement is furnished to the financial institution setting forth that all of the terms and conditions of the agreement have been fully performed by the person, association, partnership, firm or corporation. Any balance remaining in the fund after payment for the merchandise and services as set forth in the agreement, contract or plan shall be paid to the estate of the beneficiary of the agreement contract or plan. Subsection (a) of this section does not apply to contracts for funeral service or merchandise sold as burial insurance policies which are regulated by the Insurance De-partment of this State. § 3122. Refund to persons making payments Upon the giving of fifteen (15) days written notice, any person, partnership or corporation who has paid funds for a pre-need funeral service may demand a refund of the entire amount actually paid, together with all interest, dividends, increases or accretions, of any kind, whatsoever, which have been earned on such funds. The financial institution shall be relieved from further liability, after making payment to the person making payment of said funds, to the trustee upon receipt of the foregoing written notice. Notice of payment of funds under this section shall be given by the financial institution to the trustee. § 3123. Trust funds, how kept and deposited All trust funds mentioned in this subchapter shall be deposited in the name of the trustee, as trustee, within thirty (30) 1246 Chapter 415 days after receipt thereof, with a bank or trust company or invested in a savings and loan association and shall be held together with the interest, dividends, or accretions thereon, in trust, subject to the provisions of this subchapter. The trustee at the time of making deposit or investment shall furnish to the financial institution the name of each payor, and the amount of payment on each account for which the deposit or investment is being made. § 3124. License to accept pre-need contract required; fees No person, firm, partnership, association or corporation may, without first securing from the Commissioner a license, accept and/or hold payments made on pre-need burial contracts, except financial institutions as defined in § 3120. Application for a license shall be in writing, signed by the applicant and duly verified on forms furnished by the Commissioner. Each application shall contain at least the following: The full name and address (both residence and place of business) of the applicant and every member, officer and director thereof if the applicant is a firm, partnership, association or corporation. Any license issued pursuant to the application shall be valid only at the address stated in the application for the applicant or at a new address approved by the Commissioner. Upon receipt of the application and payment of a license fee of Twenty-five dollars ($25.00) the Commissioner shall issue a license unless he determines that the applicant has made false statements or representations in the application or is insolvent, or has conducted, or is about to conduct his business in a fraudulent manner, or is not duly authorized to transact business in this State. 1.3125. Records of Licensee, requirements; inspection The licensee shall keep accurate accounts, books, and records in this State of all transactions, copies of all agreements, dates and amounts of payments made and accepted thereon, the names and addresses of -the contracting parties, the persons for whose benefit funds are accepted, and the names of the financial institutions in which the funds are deposited or invested. The licensee shall make all books and records pertaining to the trust funds available to the Chapter 415 1247 Commissioner for examination. The Commissioner may at any time investigate the books, records, and accounts of the licensee with respect to its trust funds and for that purpose may require the attendance of and examine under oath, all persons whose testimony he may require. § 3126. State Bank Commissioner to enforce law; rules and regulations The Commissioner shall enforce the provisions of this subchapter and has the power to make investigations, subpoena witnesses, require audits and reports and conduct hearings as to violations of any provision, and to establish such rules and regulations as are necessary to carry out the provisions of this subchapter. § 3127. Violations, penalty Any person willfully violating the provisions of this sub-chapter shall be fined not less than Five Hundred Dollars ($500.00) nor more than One Thousand Dollars ($1,000.00). Section 3. Acts occurring before the effective date of this Chapter and the rights, duties and interests flowing from them shall be governed by the law in existence at the time in this Chapter becomes law. The provisions of this Chapter do not apply to violations of the law or to causes of action or judgments arising therefrom prior to the effective date of this Chapter. Prosecutions for such offenses or violations shall be governed by the prior law which is continued in effect for the purpose as if this Chapter is not in force. All violations, offenses, prosecutions and criminal appeals under prior law are saved and preserved. All civil causes of action based upon or under prior law arising out of occurrences prior to the effective date of this Chapter and judgments thereon or appeals therefrom are saved and preserved. Section 4. Severability If any section, subsection, sentence, phrase or word of this. Act or circumstances arising out of the application thereof shall be declared unconstitutional under the Constitution of the State of Delaware or of the United States by a state or federal court of 1248 Chapter 415 competent jurisdiction, the remainder of this Act shall be unimpaired and shall continue in full force and effect and proceedings thereunder shall not be affected. Section 5. This Act shall become effective ninety days after signature by the Governor. Approved June 8, 1972. CHAPTER 416 FORMERLY SENATE BILL NO. 614 AS AMENDED BY HOUSE AMENDMENT NOS. 1 AND 2 AN ACT TO AMEND TITLE 21, DELAWARE CODE, RE-LATING TO INCREASED AND ADDED DEPRIVATION OF THE PRIVILEGE TO OPERATE MOTOR VEHICLES UPON HABITUAL OFFENDERS WHO HAVE BEEN CON-VICTED REPEATEDLY OF VIOLATIONS OF THE MOTOR VEHICLE LAWS; ESTABLISHING A PRO-CEDURE THEREFOR AND PROVIDING PENALTIES FOR VIOLATING THEREOF. Be it enacted by the General Assembly of the State of Delaware: Section 1. That Title 21, Delaware Code, is hereby amended by adding thereto a new chapter to read as follows: § 2801. Declaration of policy It is hereby declared to be the policy of this State: To provide maximum safety for all persons who travel or otherwise use the public highways of this State; and To deny the privilege of operating motor vehicles on our highways to persons who by their conduct and record have demonstrated their indifference to the safety and welfare of others and their disrespect for the laws of this State, the orders of its courts, and the statutorily required acts of its administrative agencies; and To discourage repetition of criminal acts by individuals against the peace and dignity of this State and her political subdivision and to impose increased and added deprivation of the privilege to operate motor vehicles upon habitual offenders who have been convicted repeatedly of violations of the motor vehicle laws. 1249 1250 Chapter 416 § 2802. Definitions An habitual offender shall be any person, resident or non-resident, whose driving record, as maintained in the office of the Department of Public Safety shows that such person has accummulated convictions for separate and distinct offenses described in subsections (a) during a 5-year period; or (b) during a 3-year period; provided that where more than one included offense shall be committed within a 24 hour period such multiple offenses shall be treated for the purposes of this Chapter as one offense: (a) Three or more convictions. Three or more convictions singulary or in combination of any of the following separate and distinct offenses arising out of separate acts: Manslaughter resulting from the operation of a motor vehicle; Using a motor vehicle during the commission of a felony; Driving or having actual physical control of a motor vehicle while under the influence of intoxicating liquor or of any drug, in violation of 21 Del. C. 4176; Driving a motor vehicle without a license to do so in violation of 21 Del.C. 2701; Driving a motor vehicle during a period of suspension or revocation in violation of 21 Del.C. 2746; Driving a motor vehicle in willful or wanton disregard for the safety of persons or property in violation of 21 Del.C. 4175; Failure of the driver of a motor vehicle involved in an accident resulting in apparent damage to property to stop at the scene of such accident and report his identify in violation of 21 Del.C. 4201 or otherwise report such accident in violation of 21 Del.C. 4203; Failure of the driver of a motor vehicle involved in any Chapter 416 1251 accident resulting in injury or death to any person to stop at the scene of such accident and report his identify in violation of 21 Del.C. 4202; (9) Knowingly making any false affidavit or swearing or affirming falsely to any manner or thing required by the motor vehicle laws or as to information requires in the administration of such laws Eight or more convictions. Ten or more convictions of separate and distinct offenses involving moving violations sin-gularly or in combination, in the operation of a motor vehicle which are required to be reported to the Department and the commission whereof authorizes the Department or the Court to suspend or revoke the privilege to operate motor vehicles on the highways of this State for a period of 30 days or more for each offense and such convictions shall include those offenses enu-merated in subsection (a) when taken with and added to those offenses described. Inclusions. The offenses included in subsections (a) and (b) shall be deemed to include offenses under any federal law, any law of another state or any valid town, city or county Ordinance of another state substantially conforming to a state statutory provision. Conviction. For the purpose of this chapter, the term "conviction" shall mean a final conviction, a plea of guilty or a forfeiture of bail or collateral deposited to secure a defendant's appearance in Court, which forfeiture has not been vacated. § 2803. Department to certify record to Attorney General The Secretary of Public Safety shall certify the conviction record as maintained in his office of any person whose record brings him within the definition of an habitual offender as defined in § 2802, to the Attorney General of the State of Delaware. The certified conviction record or abstract may be admitted in evidence and shall be competent evidence that the person named therein was duly convicted of each offense enumerated therein. 1252 Chapter 416 § 2804. Attorney General to initiate court proceeding; petition The Attorney General, upon receiving the abstract from the Secretary, shall forthwith file a petition against the person named therein in the Superior Court in and for the county wherein such person resides or in the case of a nonresident, in the Superior Court in and for New Castle County. The petition shall request the Court to determine whether or not the person named therein is an habitual offender. § 2805. Service of petition, order to show cause Upon the filing of the petition, the Superior Court shall enter an order incorporating by attachment the aforesaid abstract and direct the person named therein to appear at the next criminal session of the Court and show cause why he should not be barred from operating or driving a motor vehicle on the highways of this State. A copy of the petition, the show cause order and the abstract shall be served upon the person named therein in the manner prescribed by law for the service of process. Service thereof on any nonresident of this State may be made pursuant to 10 Del.C. 3112, except that any fee for such service shall be taxed against the person named in the petition as a part of the cost of such proceeding. § 2806. Hearing, procedure The matter shall be heard by the Court without a jury. If a such person denies that he was convicted of any offense shown in the abstract necessary for a holding that he is an habitual offender, and if the Court cannot, on the evidence available to it, determine the issue, the Court may require of the Department certified copies of such records respecting the matter as it may have in its possession. If, upon an examination of such records., the Court is still unable to make such dtermination it shall certify the decision of such issue to the court in which such conviction was reportedly made. The court to which such certification is made shall forthwith conduct a hearing to determine the issue and send a certified copy of its final order determining the issue to the Superior Court. The Court in its discretion, may rely upon certified copies of convictions adjudged by courts outside of this State, or federal courts, or may request such a court to make a determination. Chapter 416 1253 § 2807. Court's finding; judgment If the Court finds that the person is not the same person named in the abstract, or that he is not an habitual offender under this article, the proceeding shall be dismissed. If the Court finds that the person is the same person named in the abstract and that the person is an habitual offender, the Court shall by appropriate judgment direct that such person not drive or operate a motor vehicle on the highways of this State and to surrender to the Court all licenses or permits to operate a motor vehicle upon the highways of this State. The Prothonotary shall forthwith transmit a copy of such judgment together with any licenses or permits surrendered to the Department. § 2808. Appeals An appeal may be taken from any final action or judgment entered under the provisions of this Chapter in the same manner and form as appeals in civil or criminal actions. § 2809. Prohibition No license to operate a motor vehicle in this State shall be issued to an habitual offender, nor shall a nonresident habitual offender operate a motor vehicle in this State: For a period of five years from the date of the Order of the Court finding such person to be an habitual offender as defined in Section 2802 (a) and for a period of three years from the date of the Order of the Court finding such person to be an habitual offender as defined in Section 2802 (b). Until such time as financial responsibility requirements are met; and Until, upon petition, and for good cause shown, the Court in its discretion, restores to such person the privilege to operate a motor vehicle in this State upon such terms and conditions as the Court may prescribe, subject to other provisions of law relating to the issuance of operators' licenses. 1254 Chapter 416 § 2810. Driving after judgment prohibited; penalty It shall be unlawful for any person to operate any motor vehicle in this State while the judgment of the Court prohibiting the operation remains in effect. Any person found to be an habitual offender under the provisions of this Chapter who is thereafter convicted of operating a motor vehicle in this State while the judgment of the Court prohibiting such operation is in effect, shall be guilty of a misdemeanor and imprisoned for not less than one year nor more than five years. The Superior Court shall have exclusive original jurisdiction of violations created by this Section. § 2811. Determination by the Attorney General In any case in which a person is charged with driving a motor vehicle while his license, permit or privilege to drive is suspended or revoked or is charged with driving without a license, the court shall require the Attorney General to determine whether such person has been adjudged an habitual offender and by reason of such judgment is barred from operating a motor vehicle on the highways of this State. If the Attorney General determines that the person has been so adjudged, he shall cause the appropriate criminal charges to be lodged. § 2812. No existing law modified Nothing in this Chapter shall be construed as amending, modifying or repealing any existing law of this State or any existing ordinance of any political subdivision relating to the operation of motor vehicles, the licensing of persons to operate motor vehicles or providing penalties for the violation thereof; or shall be construed so as to preclude the exercise of the regulatory powers of any division, agency, department or political subdivision of this State having the statutory authority to regulate such operation and licensing. § 2813. Computation of number of convictions In computing the number of convictions all convictions must result from offenses occurring subsequent to the effective date of this chapter. Chapter 416 1255 § 2814. Additional penalty when convicted of an offense which would render an individual an habitual offender If any person shall be convicted in this State of an offense which would render that individual an habitual offender as defined in this chapter, he shall in addition to the penalty otherwise prescribed by law for such offense, be fined not less than one hundred dollars nor more than one thousand dollars and confined in jail not less than 30 days nor more than twelve months; provided, that no such sentence shall be executed until the individual is finally adjudged an habitual offender. § 2815. Severability clause If any section, subsection, sentence, phrase or word of this Act shall be declared unconstitutional under the Constitution of the State of Delaware or of the United States or by a state or federal court of competent jurisdiction, the remainder of fhis Act shall be unimpaired and shall continue in full force and effect and prosecutions thereunder shall not be affected. Approved June 8, 1972. 1256 CHAPTER 417 FORMERLY SENATE BILL NO. 324 AS AMENDED BY SENATE AMENDMENT NO. 1 AN ACT TO AMEND TITLE 18, DELAWARE CODE BY AMENDING CHAPTER 31 TO STRIKE THE GRAND-FATHER CLAUSE PROVISION FOR GROUP INSURANCE AND PROHIBITING FICTITIOUS GROUPS; AMENDING CHAPTER 35 TO STRIKE THE GRANDFATHER CLAUSE RELATING TO GROUP AND BLANKET HEALTH INSUR-ANCE CONTRACTS. Be it enacted by the General Assembly of the State of Delaware: Section 1. § 3101 (c), Chapter 31, Title 18, Delaware Code, shall be stricken in its entirety. Section 2. § 3111, Chapter 31, Title 18, Delaware Code, is amended by designating the existing first paragraph as "(a)" and adding new subsections to read: § 3111 (b) No group life insurance certificate or solicitation thereof shall be delivered to any person in this State unless it shall state prominently and in bold print on its face or an addenum attached thereto: (1) This insurance is cancellable without the certificate holder's consent. (c) In addition, it shall be stated, if applicable, in identical fashion and in the same location on the same page: Future premium amounts are not guaranteed. Benefit amounts under this insurance may be increased or decreased without the certificate holder's consent. The conversion privileges under this insurance are less than the face amount. Chapter 417 1257 (d) Any written deviation to the requirements of this Section shall be submitted to the Commissioner for review. In addition to Subsection (c)(3) above there shall be a full explana-tion in any certificate or solicitation delivered to a person in this State of the exact conversion privileges available and the minimum dollar amounts thereof. Section 3. Chapter 31, Title 18, Delaware Code, is hereby amended by adding thereto a new Section to be known and designated as follows: § 3127. Fictitious groups prohibited No insurer, whether an authorized insurer or an unauthorized insurer, shall make available through any form, group life insurance to any firm, corporation, or association of individ-uals, any preferred premium based upon any grouping of such firm, corporation or association except as permitted under this Chapter. No form or plan of insurance covering any group or combination of persons shall be written or delivered within or outside this State to cover persons in this State at any preferred premium or on any form other than as offered to persons not in such group or combination and to the public generally, unless such form, plan of insurance, and the premiums to be charged therefor have been submitted to a reviewed by the Commissioner to determine they are not unfairly discriminatory and as not otherwise being in conflict with subsection (a) above. Section 4. 3501 (c), Chapter 35, Title 18, Delaware Code, shall be stricken in its entirety. Approved June 11, 1972. 1258 CHAPTER 418 FORMERLY SENATE BILL NO. 597 AN ACT TO PROVIDE A SUPPLEMENTAL APPROPRIATION TO THE NEW CASTLE COUNTY LAW LIBRARY. Be it enacted by the General Assembly of the State of Delaware: Section 1. The sum of Three Thousand Seven Hundred Dollars ($3,700) is appropriated to the New Castle County Law Library to provide operating funds for the fiscal year ending June 30, 1972. The funds shall be allocated to the Capital Outlay account. Section 2. This act is a supplemental appropiation for the fiscal year 1972 and the money appropriated shall be paid by the State Treasurer out of funds in the General Fund of the State of Delaware not otherwise appropriated. Section 3. Any money appropriated herein and unexpended shall revert to the General Fund of the State of Delaware on June 30, 1972. Approved June II, 1972. CHAPTER 419 FORMERLY SENATE BILL NO. 645 AN ACT MAKING A SUPPLEMENTARY APPROPRIATION TO THE DELAWARE JUNIOR MISS PAGEANT FOR THE PURPOSE OF PROVIDING FUNDS FOR DELAWARE'S JUNIOR MISS TO ATTEND THE NATIONAL JUNIOR MISS PAGEANT, AND TO DEFRAY RELATED EX-PENSES. WHEREAS, Delaware's Junior Miss has represented the State of Delaware well in both local and national events in the past; and WHEREAS, the members of the 126th General Assembly desire that the State of Delaware be represented at the National Junior Miss Pageant; NOW, THEREFORE: Be it enacted by the General Assembly of the State of Delaware (three-fourths of all members elected to each House concurring therein): Section 1. The sum of $900.00 is hereby appropriated to the Delaware Junior Miss Pageant to provide funds to defray the reasonable and necessary expenses involved in sending Delaware's Junior Miss to the National Junior Miss Pageant. Section 2. This Act shall be considered a supplementary appropriation and the monies hereby appropriated shall be paid from the General Fund of the State Treasury from monies not otherwise appropriated. Section 3. If any of such funds so appropriated remain unexpended after June 30, 1972, such funds shall revert to the General Fund of the State Treasury. Approved June 11, 1972. 1259 1260 CHAPTER 420 FORMERLY SENATE BILL NO. 688 AN ACT TO AMEND SUBCHAPTER 11 OF CHAPTER 74, TITLE 29 OF THE DELAWARE CODE WITH REGARD TO STATE BONDS ISSUED FOR LOCAL SHARES OF SCHOOL CONSTRUCTION. Be it enacted by the General Assembly of the State of Delaware: Section 1. Subdivision (a) of Section 7423 of Subchapter 11 of Chapter 72, Title 29 of the Delaware Code, is hereby amended by deleting the last sentence of said subdivision and by substituting the following: "Bonds and notes issued under this section, except bonds and notes issued for the purpose described in clause (6) of this subdivision, and outstanding or authorized under this section but unissued, shall, however, be considered in determining the amount of bonds or notes which may be authorized to be issued pursuant to this subchapter." Approved June 11, 1972. 1261 CHAPTER 421 FORMERLY HOUSE BILL NO. 681 AN ACT TO AMEND TITLE 5, DELAWARE CODE BY REPEALING CHAPTER 23 AS IT APPEARS THEREIN AND ADDING A NEW CHAPTER 23 THERETO, TO PROVIDE FOR THE LICENSING AND REGULATION OF THE BUSINESS OF SELLING, ISSUING OR DELIVERING CHECKS, DRAFTS OR MONEY ORDERS AND THE TRANSMISSION OF MONEY AND PROVIDING FOR THE SUBMISSION OF PROOF OF FINANCIAL RES-PONSIBILITY AND THE POSTING OF SECURITY. Be it enacted by the General Assembly of the State of Delaware: Section 1. Title 5 of the Delaware Code of 1953 is amended by repealing Chapter 23 as it appears therein and inserting in lieu thereof a new Chapter 23 to read as follows: CHAPTER 23. SALE OF CHECKS, DRAFTS AND MONEY ORDERS. § 2301. Citation . This act may be cited as "The Sale of Checks Act." § 2302. Definitions For the purposes of this act: "Person" means any individual, partnership, association, joint stock association, or corporation, but does not include the United States Government or the Government of this State. "Licensee" means a person duly licensed by the State Bank Commissioner pursuant to this act. "Check" means any check, draft, money order, personal money order, or other instrument for the transmission or payment of money. 1262 Chapter 421 "Personal money order" means any instrument for the transmission or payment of money in relation to which the purchase or remitter appoints or purports to appoint the seller thereof as his agent for the receipt, transmission, or handling of money, whether such instrument be signed by the seller or by the purchaser or remitter or some other person. "Sell" means to sell, to issue, or to deliver a check. "Deliver" means to deliver a check to the first person who in payment for same makes or purports to make a remittance of or against the face amount thereof, whether or not the deliverer also charges a fee in addition to the face amount, and whether or not the deliverer signs the check. "Commissioner" means the State Bank Commissioner. § 2303. License Required No person, except those specified in § 2304 or agents of a licensee as provided in § 2311 shall engage in the business of selling checks, or issuing checks or engage in the business of receiving money for transmission or transmitting the same without having first obtained a license hereunder. § 2304. Exemption from Licensing (a) No license to sell checks as aforesaid shall be required hereunder of any of the following: State banks and trust companies, national banks, build-ing and loan associations, and savings and loan associations, organized under the laws of this state or authorized to do business in this state. Incorporated telegraph companies insofar as they re-ceive money at any of their respective offices or agencies for immediate transmission by telegraph. (b) Nothing contained in this section or any other section of this act shall be construed to enlarge or limit the rights which any of the above named organizations have under any existing law. Chapter 421 1263 § 2305. Qualifications To qualify for a license hereunder an applicant shall meet the following requirements: The applicant shall have a net worth of at least $ / 00,000.00 computed according to generally accepted account-ing principles. The financial responsibility, financial condition, finan-cial and business experience, character and general fitness of the applicant shall be such as reasonably to warrant the belief that applicant's business will be conducted honestly, carefully and efficiently. To the extent deemed advisable by the Commissioner, the Commissioner may investigate and consider the qualifications of the applicant including principals, officers and directors of an applicant in determining whether this qualification has been met. § 2306. Applications Each application for a license shall be made in writing and under oath to the Commissioner in such form and containing such information as he may prescribe including the name and business and residence address: Of the proprietor, if the applicant is an individual; Of every member, if the applicant is a partnership or unincorporated association; Of the corporation and each officer and director thereof, if the applicant is a corporation, stating the date and the state of incorporation. § 2307. Accompanying Fee and Statements Each application for a license shall be accompanied by: An investigation fee of $150.00 which shall not be subject to refund. The annual license fee as specified in § 23 / 0. 1264 Chapter 421 (c) Financial statements reasonably satisfactory to the Commissioner. § 2308. Action by Commissioner; Conditional Approval Upon the filing of the application and the payment of the investigation fee and the annual license fee, the Commissioner shall, to the extent he deems advisable, investigate the financial responsibility, financial condition, financial and business ex-perience, character and general fitness of the applicant, and if he finds these qualities are such as to warrant the belief that the applicant's business will be conducted honestly, fairly, equitably, carefully and efficiently within the purposes of the intent of this Act and in the manner commanding the confidence and trust of the community, the Commissioner shall advise the applicant in writing of his conditional approval of the application, and thereafter, upon compliance by the applicant with the provisions of § 2309 of this Chapter, shall issue to the applicant a license to engage in the business of selling and issuing checks, subject to the provisions of this Act. If the Commissioner determines on the basis of his investigation that the applicant does not comply with the purposes of this Chapter as set forth in the preceding sentence of this section he shall notify the applicant of the denial of the conditional approval of the license stating the reasons therefor in writing. § 2309. License; bond; securities (a) After the applicant receives a written notice of the conditional approval by the Commissioner of an application for original license as provided in § 2308 hereof, the applicant shall file with the Commissioner a corporate surety bond in the principal sum of $25,000 and in an additional principal sum of $5,000 for each location, in excess of one, at which the applicant proposes to conduct a business licensed by this Chapter, but in no event shall the bond be required to be in excess of $250,000. Such bond shall be in a form satisfactory to the Commissioner and shall be issued by a surety company authorized by the laws of the State of Delaware to conduct business in this state. The bond shall run to the state and shall be conditioned that the licensee will pay any and all monies that may become due and owing any claimant or creditor of or against the licensee arising out of the licensee's business subject to this Chapter of selling or issuing checks, or of Chapter 421 1265 receiving money for transmission or transmitting the same. The aggregate liability of the surety on the bond shall, in no event, exceed the amount of the bond. The surety on the bond shall have the right to cancel such bond upon giving 30 days written notice to the Commissioner and thereafter shall be relieved of liability for any breach of condition occuring after the effective date of said cancellation. In any event the bonds shall continue to be in effect as a condition for the continuance or renewal of the license issued hereunder. In lieu of such corporate surety bond the applicant may make deposits with any federally insured banking institution or savings and loan association in this state as such applicant shall designate and the Commissioner shall approve. Such deposits may include, subject to the Commissioner's approval, cash, securities, interest bearing stocks and bonds, notes debentures, or other obligations of the United States or agency or instrumentality thereof or guaranteed by the United States or of this State of any subdivision thereof, of an aggregate amount, based upon principal amount or market value whichever is lower, of not less than the amount of the required corporate surety bond at all times. The deposits as aforesaid shall be held to secure the same obligations as would the corporate surety bond, but the depositor shall be entitled to receive all interest and dividends thereon and shall have the right with the approval of the Commissioner to substitute other securities for those deposited. A license issued under this Chapter shall remain in full force and effect until surrendered, suspended or revoked pursuant to this Chapter. If the Commissioner shall at any time reasonably determine that the bond or deposits of the aforesaid are insecure, deficient in amount, or exhausted in whole or in part, or if the surety on the bond shall have notified the Commissioner of its intention to cancel the bond, he shall by written order require the filing of a new or supplemental bond or the depositing of a new or additional securities in order to secure compliance with this Act, such order to be compiled with within 20 days following service thereof upon the licensee. § 2310. Annual license fee After applicant receives notice of conditional approval by the 1266 Chapter 421 Commissioner of the application for an original license and annually thereafter on or before January 1, applicant shall file with the Commissioner a statement listing the locations in the State of Delaware of the offices of the applicant and the names and locations of his agents. The licensee shall pay to the Commissioner with such list a license fee of $4.00 for each such location in excess of one. The fee shall cover the remainder of the calendar year in which license is granted. Thereafter each licensee shall submit a current list on or before each January 1 and pay a licensee fee of $200.00 plus $4.00 for each location on the list submitted. The requirements of this section shall not apply to any agent of a licensee who is exempt from the provisions of this Chapter pursuant to paragraph (a) of § 2304 hereof. § 2311. Agents A licensee may conduct his business at one or more locations within the state and through or by means of such agents as the licensee may from time to time designate or appoint. No license under this Act shall be required of any agent of a licensee. In order for an agent to be authorized to act for the licensee in this state, the licensee shall have on file with the Commissioner the name and address of the agent, and the licensee shall notify the Com-missioner within 30 days of the change of name or address of an agent or of the termination of any such agent. If the bond deposited by the licensee under § 2309 of this Chapter is less than the maximum provided thereunder, the licensee shall submit and deposit a supplementary bond in the amount required by § 2309 for the additional location or locations that are added. In the event that the licensee shall have made deposits in lieu of a surety bond under § 2309 (b) the amount of such securities shall be increased accordingly. The requirements of this section shall not apply to any agent of a licensee who is exempt from the provisions of this Chapter pursuant to paragraph (a) of § 2304 hereof. 2312. Liability of licensees Each licensee shall be liable for the payment of all checks which he sells in this state, in whatever form and whether directly or through an agent, as the maker or drawer thereof according to the negotiable instrument laws of this state; and a licensee who sells a check, whether directly or through an agent, upon which he is not designated as maker or drawer shall nevertheless have the Chapter 421 1267 same liabilities with respect therto as if he had signed the same as the maker or drawer thereof. § 2313. Disclosure of responsibility and evidence of receipt Every check sold by a licensee, directly or through an agent, shall bear the name of the licensee clearly imprinted thereon. Every licensee shall furnish a customer with a receipt or other acknowledgement upon receiving funds from such customer. Such receipt or other acknowledgement shall be numbered serially and shall bear the name and address of the licensee. Each licensee who receives money for transmission abroad shall forward such money to the person or bank designated to receive the same within five days after receipt thereof, and shall immediately give the person delivering the money for transmission a receipt and his name with the name and address of the licensee printed thereon. The receipt shall state the date when such money was received, the amount thereof, its equivalent in the currency of the country to which it is to be forwarded, and the name and address of the payee. § 2314. Revocation of license; examination The Commissioner may revoke any license on any ground on which he may refuse to grant a license or for violation of any provision of this Chapter. In furtherance of the foregoing the Commissioner may examine the business, books and records of the licensee at any time, the reasonable cost of such examination to be paid by licensee. § 2315. Hearings No license shall be denied or revoked except after a hearing thereon. An applicant denied a conditional approval for license as set forth in § 2305 may demand in writing within 20 days after receipt of the notice of the denial of such conditional approval, a hearing on said refusal. The Commissioner shall give the applicant or licensee at least 20 days written notice of the time and place of such hearing by registered or certified mail addressed to the principal place of business of such applicant or licensee. 1268 Chapter 421 Any order by the Commissioner denying or revoking such license shall state the grounds upon which it is based and shall not be effective until 20 days after written notice thereof has been sent by registered or certified mail to the applicant or licensee at such principal place of business or unless the Commissioner deems that it is in the public interest that the revocation take place sooner than the 20 day period in which event he shall so notify the licensee and shall grant the licensee an immediate hearing if the same has been demanded in writing. Any hearing required by this section shall be conducted on the record, witnesses shall be sworn and evidence presented to the Commissioner which shall be appropriately identified and preserved. The Commissioner is hereby granted subpoena powers to compel the attendance of witnesses. § 2316. Appeal from Commissioner Any applicant or licensee aggrieved by any order or decision of the Commissioner shall have the right to appeal to the Superior Court of the State of Delaware in and for such county as the appellant may determine. Any such appeal shall be filed in the Superior Court within 30 days after the order or decision of the Commissioner is rendered. The appeal shall not be a trial de novo but shall be based upon the record before the Commissioner. The scope of review before the Superior Court shall be that the Commissioner's finding shall be upheld if they are supported by sufficient evidence, free of error of law and not arbitrary or capricious. § 2317. Penalties Any person who violates any provision of this Chapter shall be guilty of a misdemeanor, and shall be fined not less than $100.00 nor more than $500.00 or imprisioned for not more than 90 days, or both for each such offense. § 2318. Rules and regulations The Commissioner may adopt rules and regulations necessary for the administration of this Chapter. Chapter 421 1269 Section 2. Severability. Should any provision, sentence, clause, section or part of this Chapter for any reason be held unconstitutional, illegal or invalid, such unconstitutionality, il-legality, or invalidity shall not affect or impair any of the remaining provisions, sentences, clauses, sections or parts of this Chapter. Section 3. Effective Date. This act shall become effective on January 1, 1973. Any person engaged in said business on the effective date of this Act may continue to engage therein without a license until the Commissioner shall have acted upon his application for a license, provided that such application be filed within 60 days after the effective date of this Act. Approved June 11, 1972. 1270 CHAPTER 422 FORMERLY HOUSE BILL NO. 702 AS AMENDED BY HOUSE AMENDMENT NO.! AN ACT TO AMEND CHAPTER 65, TITLE 29, DELAWARE CODE, RELATING TO THE RECORD KEEPING PRO-CEDURES OF THE DEPARTMENT OF FINANCE. Be it enacted by the General Assembly of the State of Delaware: Section 1. Amend subsection (b) section 6516, Title 29, Delaware Code, by striking everything in the subsection following the word "therefor" as the same appears at the end of the second sentence, and by substituting in lieu thereof the following: "The Secretary of Finance shall keep records of expenditures of all State agencies and shall index and file such records so that the amount and nature of all such expenditures may be readily ascertained." Section 2. Amend section 6515, Title 29, Delaware Code, as follows: Strike the words "in duplicate" on the second line of subsection (b) thereof. Strike the words "and duplicate thereof" as the same appear in the second sentence of subsection (b) thereof. Strike the words "and the duplicate" as the same appear in subsection (c) thereof. Strike the words "in duplicate" as the same appear in the first sentence of subsection (d) thereof. Approved June 11, 1972. CHAPTER 423 FORMERLY HOUSE BILL NO. 794 AN ACT TO AMEND TITLE 5, DELAWARE CODE, BY ADOPTING A NEW CHAPTER 32 THERETO TO PRO VDIE FOR THE LICENSING AND REGULATION OF TRANS-PORTATION OF MONEY AND VALUABLES AND PRO-VIDING FOR THE SUBMISSION OF PROOF OF FINAN-CIAL RESPONSIBILITY. Be it enacted by the General Assembly of the State of Delaware: Section 1. Title 5 of the Delaware Code of 1953, is amended by adopting a new Chapter 32 to read as follows: CHAPTER 32. TRANSPORTATION OF MONEY AND VAULABLES. § 3201. Citation This act may be cited as the "Transportation of Money and Valuables Act." § 3202. Definitions For purposes of this act: "Person" means any individual, partnership, association, joint stock association, or corporation, but does not include the United States Government or the Government of this State. "Licensee" means a person duly licensed by the State Bank Commissioner pursuant to this act. "Money" includes cash, legal tender or currency of the United States or of any other State or Nation. "Transporter" means any person engaged in the business of transporting for hire, money or other valuables. 1271 1272 Chapter 423 (e) "Valuables" includes bullion, securities, stocks, bonds, any negotiable or non-negotiable documents, jewels or other property or documents of substantial monetary value. § 3203. License required No person requiring a license by this Chapter shall engage in this state in the business of a Transporter until his application for a license to so engage in business is finally approved by the State Bank Commissioner. § 3204. Exempt from licensing (a) No license as a Transporter shall be required of any of the following: Banks, trust companies, building and loan associations, organized under the laws of this state or authorized to do business in this State while transporting their own property. Incorporated telegraph companies insofar as they receive money at any of their respective offices or agencies for immediate transmission by telegraph. (b) Nothing contained in this section or in any other section of this act shall be construed to enlarge or limit the rights which any of the above-named organizations have under any existing law. § 3205. Qualifications To quality for a license hereunder an applicant shall meet the following requirements: The applicant shall have a net worth of at least $50,000.00, computed according to generally accepted accounting principles. The financial responsibility, financial condition, and business experience, and character and general fitness of the applicant shall be such as reasonably to warrant the belief that applicant's business will be conducted honestly, carefully and efficiently. To the extent deemed advisable by the Commissioner, the Commissioner may investigate and consider the qualifications Chapter 423 1273 of the applicant including officers and directors of an applicant in determining whether this qualification has been met. § 3206. Applications Each application for a license shall be made in writing and under oath to the Commissioner in such form and containing such information as he may prescribe including the name and business and residence address: Of the proprietor, if the applicant is an individual; Of every member, if the applicant is a partnership or unincorporated association. Of the corporation and each officer and director thereof, if the applicant is a corporation, stating the date and the state of incorporation. g 3207. Accompany fee and statements Each application for a license shall be accompanied by: An investigation fee of $150, which shall not be subject to refund. The annual license fee as specified in § 3210. Financial statements reasonably satisfactory to the Commissioner. g 3208. Action by the Commissioner; conditional approval Upon the filing of the application and the payment of the investigation fee and the annual license fee, Commissioner shall, to the extent he deems advisable, investigate the financial res-ponsibility, financial condition, financial and business experience, character and general fitness of the applicant, and if he finds these qualities are such as to warrant the belief that the applicant's business will be conducted honestly, fairly, equitably, carefully and effficiently within the purposes of the intent of this Act, and in the manner commanding the confidence and trust of the community, the Commissioner shall advise the applicant in writing I 274 Chapter 423 of his conditional approval of the application, and thereafter, upon compliance by the applicant with the provisions of Section 3209 of this Chapter, shall issue to the applicant a license to engage in the business of a Transporter. If the Commissioner determines on the basis of his investigation that the applicant does not comply with the purposes of this Chapter as set forth in the preceding sentence of this section, he shall notify the applicant of the denial of the conditional approval of the license stating the reasons therefor in writing. § 3209. License; bond; insurance Within 30 days after the applicant receives written notice of the conditional approval by the Commissioner of an application for original license as provided in Section 3208 hereof, or within such longer period as the Commissioner may authorize, the applicant shall file with the Commissioner a corporate surety bond in the principal sum of $10,000. Such bond shall be in a form satisfactory to the Commissioner and shall be issued by a surety company authorized by the laws of state to conduct business in this state. The bond shall run to the state and shall be conditioned that the licensee will pay any and all monies that may become due and owing any claimant or creditor of or against the licensee arising out of the licensee's business within the state as Transporter. The aggregate liability of the surety bond shall, in no event, exceed the amount of the bond. The surety on the bond shall have the right to cancel such bond upon giving 30 days' written notice to the Commissioner and thereafter shall be relieved of liability for any breach of condition occurring after the effective date of said cancellation. In any event, the bonds shall continue to be in effect as a condition for the continuance or renewal of the license issued hereunder. In lieu of such corporate surety bond the applicant may keep on deposit with any federally insured banking institution or savings and loan association in this state as such applicant shall designate and the Commissioner shall approve, securities, interest bearing stocks and bonds, notes, debentures, or other obligations of the United States or agency or instrumentality thereof, or guaranteed by the United States or of this state or any subdivision thereof, or dollar deposits, to an aggregate amount, based upon principal amount or market value, whichever is lower, of not less than the amount of the required corporate surety bond. The securities shall be deposited as aforesaid and held to secure the same obligations as would the corporate surety bond, but the depositor shall be entitled to receive all interest and dividends thereon and shall have the right, with the approval of the Commissioner, to substitute other securities for those deposited. In addition to the bond required in subparagraph (a) hereof, within 30 days after the applicant receives written notice of the conditional approval by the Commissioner of an application fOr original license as provided in Section 3208 hereof or within such longer period as the Commissioner may authorize, the applicant shall file certificates or other acceptable evidence with the State Bank Commissioner, establishing that it has in full force and effect a contract of insurance with a good and reputable insurance company, licensed to do business in this state, an underlying all risk (except for customary war risk exclusions) policy in an amount not less than $5,000,000 insuring Licensee and/or any persons doing business with, or having a claim against, said Licensee arising from any loss through any risk assumed by the Licensee in any contract for the transportation, handling or storage of monies, including lawful currency and coin, negotiable and non-negotiable securities, stocks, bonds, coupons and things of unusual value. Such certificates shall be furnished annually, prior to renewal of the license. If the insurance contracts required by this subsection shall lapse or be cancelled, then the State Bank Commissioner, in his discretion, may, upon 10 days' notice to the Licensee, cancel the license provided for in this chapter, until such time as the required insurance contracts have gone into effect. Insurance companies issuing contracts pursuant to this section shall, within three days after giving notice to the Licensee that the effect of the contracts have been altered or are no longer in effect, give similar notice to the State Bank Commissioner of such notice to the Licensee. A license issued under this chapter shall remain in full force and effect until surrendered, suspended or revoked pursuant to this Chapter. If the Commissioner shall at any time reasonably determine that the bond or securities of the aforesaid are insecure, deficient in amount, or exhausted in whole or in part, or if the Chapter 423 1275 1276 Chapter 423 surety on the bond shall have notified the Commissioner of its intention to can |
| Date Digital | 2010 |
| CONTENTdm file name | 3086.cpd |
Description
| Title | Laws of the State of Delaware - Volume 58 - Part 2 - Page 1 |
| Creator2 | Delaware General Assembly |
| Type | Text |
| Full Text | LAWS OF THE STATE OF DELAWARE ONE HUNDRED AND TWENTY- SIXTH GENERAL ASSEMBLY FIRST SESSION COMMENCED AND HELD AT DOVER On Tuesday, January 5, A. D. 1971 SECOND SESSION COMMENCED AND HELD AT DOVER On Tuesday, January II, A. D. 1972 PART II VOLUME LVIII |
| CONTENTdm file name | 65102.pdfpage |
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