BILL ANALYSIS Ó ----------------------------------------------------------------------- |Hearing Date:July 2, 2012 |Bill No:AB | | |1225 | ----------------------------------------------------------------------- SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT Senator Curren D. Price, Jr., Chair Bill No: AB 1225Author:Committee on Veterans Affairs As Amended:January 24, 2012 Fiscal:Yes SUBJECT: Cemeteries: veteran's commemorative property. SUMMARY: Prohibits any person or entity that owns or controls a cemetery where any veteran's commemorative property has been placed from selling, trading, or transferring veteran's commemorative property; and authorizes the sale, trade or transfer of all or any part of any veteran's commemorative property if certain conditions are met. Existing law: 1)Licenses and regulates funeral establishments, funeral directors, embalmers, crematories, crematory managers, cemeteries, cemetery managers, cemetery brokers, cemetery salespersons, and cremated remains disposers by the Cemetery and Funeral Bureau (Bureau) within the Department of Consumer Affairs (DCA). (Business and Professions Code (BPC) § 7600 et seq., § 9600 et seq.) 2)Exempts from Bureau regulation the following types of cemeteries: (BPC § 9609) a) Any cemetery owned or operated by a religious corporation, church, religious society or denomination, or a corporation only administering on behalf of a church or religious society or denomination. b) A public cemetery. c) Any private or fraternal burial park not exceeding 10 acres in area, established prior to September 19, 1939, as specified. AB 1225 Page 2 3)Prohibits a cemetery owned and operated by a city, county, or city and county from engaging in selling monuments or markers, and prohibits its officers and employees who manage, operate, or otherwise maintain the cemetery from engaging in the private business of selling monuments or markers. (Health and Safety Code (HSC) § 8137) This bill: 1)Prohibits any person or entity that owns or controls a cemetery where any veteran's commemorative property has been placed, including an unincorporated association, a cemetery corporation, or a religious corporation, from selling, trading, or transferring veteran's commemorative property. a) Exempts a municipal corporation as described in Section 8137 from this prohibition. 2)Authorizes an unincorporated association, cemetery corporation, or religious corporation, except a municipal corporation, as specified, that owns or controls a cemetery where any property has been placed to petition the Bureau for permission to sell, trade or transfer all or any part of the veteran's commemorative property. 3)Authorizes the Bureau to approve the sale, trade or transfer of the veteran's commemorative property under any of the following conditions. a) The property is at reasonable risk of physically deteriorating, as specified and is replaced at its original site by a fitting replacement commemorative property, monument, or marker that appropriately identifies and commemorates the veteran or group of veterans. b) The property is proposed to be sold, traded, or transferred to a suitable person that will preserve it in a suitable place that will commemorate the veteran or group of veterans. c) The petitioner needs to sell, trade, or transfer the property to ensure that sufficient funds are available to suitably maintain the cemetery where the property was placed, as specified. d) If the property to be sold, traded, or transferred has been donated to the petitioner by any veterans' organization, the AB 1225 Page 3 sale, trade, or transfer shall have been consented to by that veterans' organization. e) If the petitioner is not the owner of the property, the petitioner is authorized by the owner to sell, trade, or transfer the property. f) By operation of any other law authorizing the sale, trade, or transfer of the property. 4)Requires the Bureau to fix a date, time, and place of the hearing, not exceeding 100 days after the petition is received. 5)Requires the Bureau to render its decision in writing within 60 days of the hearing and forward a copy of the decision to each person who appeared at the hearing. 6)Provides that an order or determination of the Bureau granting the petition may specify the manner in which the petitioner is to use or apply the proceeds of the sale, trade, or transfer. 7)Provides that if the petitioner is an unincorporated association or corporation subject to the Nonprofit Corporation Law, as specified, the Bureau is authorized to direct the petitioner to deposit the proceeds of the sale, trade, or transfer in the permanent maintenance fund maintained by the petitioner pursuant to the Non-profit Corporation Law. 8)Authorizes the Bureau to adopt any regulations related to petitions, hearings, and procedures to further the purposes of this bill. 9)Specifies that a person violating any provision of this bill is guilty of a misdemeanor punishable by a fine of no less than $100 or more than $1,000; by imprisonment in a county jail for no less than 10 days or more than six months; or, by both that fine and imprisonment; and, in addition is liable for all costs, expenses, and disbursements paid or incurred by the person prosecuting the case 10)Defines certain terms for purposes of the bill, including: a) "Veteran" as a living or deceased person who either served in the active military or naval service of the United States during a war or served in active duty in a force of any organized state militia, as specified. AB 1225 Page 4 b) "Veteran's commemorative property" as any monument, headstone, marker, memorial, plaque, statue, vase, urn, flagholder, badge, or shield that meets all of the following: i) Is over 50 years old. ii) Identifies or commemorates any veteran or group of veterans, including, but not limited to, any veterans' organization or any military unit, company, battalion, or division. iii) Is located in any cemetery. FISCAL EFFECT: The Assembly Appropriations Committee analysis dated January 19, 2012, cites: 1.Costs of approximately $150,000 per year for the workload associated with the requirement that the Bureau approve any sales, trades, or transfers of commemorative property. 2.Under correctional realignment instituted in 2011, the creation of new misdemeanors should be viewed in a new light. Counties are taking on significant new responsibilities for housing and supervising felons. New misdemeanors place additional pressure on counties to identify additional programs, including incarceration and probation, at a time when jail and program space - and attendant staffing - will be at a premium in many counties. While the fiscal and programmatic consequences of most new misdemeanors are likely to be relatively minor, any additional cumulative pressure on realignment efforts merits careful consideration. COMMENTS: 1.Purpose. This bill is authored by the Assembly Veterans Affairs Committee . According to the Author: "In recent years, a market has developed for veteran commemorative cemetery property. This property includes monuments, headstones, markers, memorials, and plaques. They have become very valuable in the antiques market, and this has led to concern about thieves stealing them from cemeteries and sale by cemeteries of such property. Initial concerns were for Civil War property but have progressed to include property from the Vietnam War era. "Additionally, metal theft has become increasingly common as prices for metals have risen dramatically. Common stolen metals include AB 1225 Page 5 copper, aluminum, brass, and bronze. Thieves recently stole copper plaques commemorating veterans from a Long Beach cemetery." The Author states: "This bill prohibits the unauthorized sale, purchase, or transfer of any veteran commemorative cemetery property that is over 50 years old if such property is currently placed or located within a cemetery. A person violating any provision of this bill is guilty of a misdemeanor. The bill does allow authorized sales of the property through the California Cemetery and Funeral Bureau. AB 1225 seeks to prevent the theft of property by making the sale or transfer of these items illegal." 2.Background. Many cemeteries have markers, monuments, memorials, etcetera dedicated to veterans. Some have been donated by veterans groups, community associations and like organizations over the years. Old cemeteries may have items that could be considered collector's items by certain enthusiasts. Some items date back to the Civil War or beyond. There are many Civil War collectors who would find a grave marker of interest and want to purchase the item from the cemetery or from an individual. Metal theft has become increasingly common as prices for metals have recently risen dramatically. Commonly stolen metals include copper, aluminum, brass, and bronze. According to the Author, thieves recently stole copper plaques commemorating veterans from a Long Beach cemetery. This bill seeks to prevent the theft of Property by making the sale or transfer of these items illegal. 3.The Cemetery and Funeral Bureau. The Bureau within the Department of Consumer Affairs licenses and regulates some 200 cemeteries. The Bureau does not have jurisdiction over cemetery owned or operated by a religious corporation, church, religious society or denomination, a public cemetery, or any private or fraternal burial park not exceeding 10 acres established prior to September 1939. It is estimated that there are about 1,200 cemeteries in California that are not regulated by the Bureau. Many of these cemeteries are small, private cemeteries, many of which are historical pioneer cemeteries. 4.Related Legislation. AB 1777 (Ma, 2012) authorizes cremated remains to be transferred from a durable container into a scattering urn, as defined, no more than seven days before scattering the cremated remains at sea from a boat. This bill was approved by this Committee, June 11, on Consent, and is now on the Senate Floor. SB 1197 (Calderon, 2012) an urgency measure which provides that a AB 1225 Page 6 crematory regulated by the Cemetery and Funeral Bureau, in addition to the cremation of human remains, may also cremate an American flag or flags, in accordance with federal law, as specified, and specifies that the of the flag or flags occurs within one week before or after, Memorial Day, Flag Day, or Independence Day. This bill is set for hearing by this Committee on July 2. AB 1615 (Miller, 2012) authorizes the Bureau to license and regulate hydrolysis facilities and hydrolysis facility managers, as specified. This bill is set for hearing by this Committee on July 2. AB 374 (Hill, 2012) allows a bond to be posted in lieu of an unqualified audit report if there are timeliness issues on a transfer of ownership of a funeral establishment due to the death of an owner, estate issues or other legal matters, including litigation. This bill is set for hearing by this Committee on July 2. AB 1225 (Veterans Affairs Committee, 2012) prohibits the sale, trade or transfer of veterans' commemorative property out of cemeteries except under certain conditions. This bill is set for hearing by this Committee on July 2. 5.Arguments in Support. The California Association of Museums supports the" goal to prohibit the unauthorized sale, purchase, or transfer of any veteran commemorative cemetery property that is over 50 years old," stating: "Since the vast majority of California museums (93%) have a costly and irreplaceable permanent collection that they care for, the organizations we serve understand the need for stewards of our state's cultural and natural heritage." 6.Arguments in Opposition. The Department of Consumer Affairs opposes this bill, stating: "The Department understands the significant value that veteran commemorative properties have to the families and communities throughout California. The Department acknowledges the noble intent to protect these properties, but questions the effectiveness of this legislation's approach in curbing theft or illegal trade in these items. Furthermore, this bill would place a number of new requirements on the Bureau, including potential new costs, which could become overly burdensome and time-consuming to deal with should a number of these properties be petitioned for sale." 7.Author's Amendments. Committee staff has proposed a number of amendments to the bill which will be adopted as Author's amendments AB 1225 Page 7 in Committee. The amendments are detailed below: a) Prohibition From Selling, Transferring or Trading. Although the Author indicates that the bill is intended to prohibit any person from selling veteran's commemorative property, it appears to fall short of that goal. As drafted, the bill only prohibits an owner of a cemetery from selling, transferring or trading such commemorative property. Furthermore, the bill appears to exempt public or municipal cemeteries from this prohibition. Committee staff has recommended that this bill be amended to clearly prohibit any person from selling veteran's commemorative property. The Author has agreed to adopt this recommendation as an Author's amendment. b) Veteran's Commemorative Property. One of the criteria to meet the definition of veteran's commemorative property under the bill is that the property must be more than 50 years old. Under these terms, memorials honoring veterans of Vietnam, or the Gulf War, or the more recent conflicts in the Persian Gulf and Afghanistan would not meet the criteria to be considered veteran's commemorative property, and thus be prohibited from being sold, transferred or traded. Committee staff suggests that the Author clarify the intent of the bill with regard to prohibiting the sale of property that would otherwise meet the definition of veterans commemorative property but is less than 50 years old. The Author has agreed to adopt an Author's amendment to strike out the requirement that "veterans' commemorative property" is property that is over 50 years old. On page 3, strike out line 5. c) Consent to the Sale, trade, or transfer. The bill establishes the conditions under which property may be sold, traded or transferred, and includes as one of those conditions that if it is known that the property was donated by a veterans organization, then the sale, trade, or transfer shall be consented to by that veteran's organization. This provision could have the unintended effect of only allowing a veteran's organization who has donated property to give consent to sell, trade or transfer property, and keeping other organizations or persons who have donated property from being required or allowed to give consent. Committee staff recommends that this provision be expanded to include other groups such as historical organizations or AB 1225 Page 8 individuals who may have donated the property. The Author has agreed to accept this as an Author's amendment. d) Cemetery and Funeral Bureau. The bill would authorize a cemetery owner to petition the Bureau for permission to sell, transfer or trade veteran's commemorative property, as specified. As a licensing and regulatory enforcement agency, this bill would impose a new function upon the Bureau that is vastly different than the other functions and responsibilities defined for the Bureau under the law. Furthermore this provision places the Bureau in a quasi- judicial position to make decisions regarding petitions by cemeteries and cemetery owners that are outside of the Bureau's jurisdiction. A more appropriate alternative is the process found in HSC § 8700, et seq. These provisions deal with a cemetery in which the majority of plots have been sold and the cemetery owner wishes to abandon roads and walkways in the cemetery and convert them for use as grave spaces, thereby increasing the burial space in the cemetery and also increasing contributions to the cemetery's endowment care funds. These provisions allow for the cemetery owner to petition the superior court of the county in which cemetery is located for permission to convert the roads or walkways to grave spaces. These provisions allow for notice to the public and to interested parties and for a hearing before the court on the petition. The court is authorized to make appropriate determinations regarding the petition. Committee staff recommends that the bill be amended to provide for a similar process in which a cemetery owner may petition the superior court instead of the Bureau for authorization to sell, trade or transfer veteran's commemorative property. The Author has agreed to accept this amendment. SUPPORT AND OPPOSITION: Support: American Legion, Department of California AMVETS-Department of California California Association of County Veteran Service Officers California Association of Museums California Funeral Directors Association California Senior Legislature California State Commanders Veterans Council AB 1225 Page 9 Vietnam Veterans of America - California State Council Opposition: Department of Consumer Affairs Consultant:G. V. Ayers