BILL ANALYSIS                                                                                                                                                                                                    Ó







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        |Hearing Date:July 2, 2012          |Bill No:AB                         |
        |                                   |1225                               |
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                      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.





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       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 





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             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.






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           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 





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          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 





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          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 





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          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 





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             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





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        Vietnam Veterans of America - California State Council

         Opposition:  

        Department of Consumer Affairs



        Consultant:G. V. Ayers