BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1197|
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THIRD READING
Bill No: SB 1197
Author: Calderon (D)
Amended: 8/6/12
Vote: 27 - Urgency
SENATE BUSINESS, PROF. & ECON. DEVELOP. COMM. : 8-0, 7/2/12
AYES: Price, Corbett, Correa, Hernandez, Negrete McLeod,
Strickland, Vargas, Wyland
NO VOTE RECORDED: Emmerson
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SUBJECT : Crematories: burning of flags
SOURCE : Author
DIGEST : This bill provides that a 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 burning of the flag or
flags occurs within one week before or after, Memorial Day,
Flag Day, or Independence Day.
ANALYSIS : Existing California 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
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Cemetery and Funeral Bureau (Bureau) within the
Department of Consumer Affairs.
2.Specifies that a crematory regulated by the Bureau shall
knowingly cremate only human remains in cremation
chambers, along with the cremation container, personal
effects of the deceased, and no more than a negligible
amount of chlorinated plastic pouches utilized for
disease control when necessary.
3.Generally regulates emission limitations, including
restrictions upon non-agricultural burning, as specified,
and provides that the law shall not prohibit the burning,
in a respectful and dignified manner, of an unserviceable
American flag that is no longer fit for display.
Existing federal law:
1.Outlines the role of flag of the United States of
America.
2.Establishes criteria for respect for the flag, and
provides that no disrespect should be shown to the flag
of the United States of America; and prohibits certain
practices, as specified, which demonstrate disrespect.
3.Specifies that the flag, when it is in such condition
that it is no longer a fitting emblem for display, should
be destroyed in a dignified way, preferably by burning.
This bill:
1.Provides that a crematory regulated by the Bureau may
also cremate one or more American flags, under the
following conditions:
A. Cremation of the flag is performed separately from
cremation of human remains.
B. Cremation of the flag or flags occurs in accordance
with federal law, specified in Item # 3, above.
C. Cremation of the flag or flags occurs within one
week before or after any of the following:
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Memorial Day (last Monday in May)
Flag Day (June 14)
Independence Day (July 4)
1.Provides that the bill shall not be construed to attempt
to restrict or otherwise infringe upon any person's right
to free expression under the First Amendment of the
United States Constitution.
2.Requires a crematory to record and maintain on its
premises for at least 10 years the following information
regarding cremations of American flags:
A. Name of the organization or person requesting
cremation of the flag.
B. Date of cremation of the flag.
C. Name of the cremation chamber operator.
D. Time and date that the flag was inserted in the
cremation chamber.
E. Time and date that the flag was removed from
the cremation chamber.
F. Weight of the ashes of the flag after being
removed from the cremation chamber.
G. Disposition of the ashes of the cremated flag.
Background
Federal law establishes standards for the respectful
treatment of the flag of the United States of America, and
provides that when the flag is in such a condition that is
no longer fitting as an emblem for display, that the flag
should be destroyed in a dignified way, preferably by
burning. Over the years, veteran's organizations, scouting
groups, and others have collected worn-out, torn, ragged,
or stained American Flags, and disposed of them according
to federal regulations by burning. Typically, the flags
which have been collected are burned in a ceremony, often
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in conjunction with Memorial Day observances, Flag Day
ceremonies or Independence Day celebrations.
Memorial Day, originally called Decoration Day, is a day of
remembrance for those who have died in our nation's
service, and is observed on the last Monday in May. Flag
Day is celebrated on June 14, commemorating the adoption of
the flag of the United States by resolution of the Second
Continental Congress in 1777.
California Cremation Law. California laws dealing with
crematories, cemeteries and funeral establishments have
been crafted over the years, often in response to isolated,
but horrific cases of abuse in the industry. In 1993, the
Cremation Standards Act (AB 598, Speier, Chapter 1232,
Statutes of 1993) was enacted in an effort to craft strict
procedural rules to clearly define the responsibilities of
crematory operators and guard against the mishandling of
human remains. The Cremation Standards Act established the
provision currently in Health and Safety Code (HSC) Section
8344.5 that a crematory shall knowingly cremate only human
remains in the cremation chambers, along with the cremation
container, personal effects of the deceased, and no more
than a negligible amount of chlorinated plastic when
necessary.
The Cremation Process. When a human body is incinerated in
a cremation chamber, certain dense bone fragments, such as
knee caps, and certain foreign materials, such as
prosthetic devices, remain whole while other matter is
reduced to ashes. The chamber contents are swept and
placed into a container and then placed in a processor
where fragments are ground into a fine ash material. Metal
objects are removed prior to final processing as they may
damage the processor. Lawsuits have alleged that bone
fragments have been discarded in trash cans, or chambers
were not cleaned, allowing ashes and other material to be
commingled. AB 598 sought to clarify the responsibility
and the liability of a crematory operator's handling of
human remains.
Comingling of cremated remains is always a concern in the
operation of a crematory. The law clearly prohibits the
fragments from one cremation from being mixed with those
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from the prior cremation. Intermingling cremated ashes in
the cremation process is clearly disrespectful to the dead,
and is considered abuse of the dead body. As such,
reasonable efforts must be made by the crematory operator
to remove all of the cremated remains after each cremation.
A dead body must also be tracked by the crematory operator
throughout the cremation process and specific information
must be entered into the cremation log. HSC Section 8343
requires a crematory to maintain for 10 years an accurate
cremation log which includes the following information:
(a) Name of referring funeral director, if any; (b) Name of
deceased; (c) Date of cremation; (d) Name of cremation
chamber operator; (e) Time and date that body was inserted
in cremation chamber; (f) Time and date that body was
removed from cremation chamber; (g) Time and date that
final processing of cremated remains was completed; (h)
Disposition of cremated remains; (i) Name and address of
authorizing agent; (j) The identification number assigned
to the deceased pursuant to Section 8344; (k) A photocopy
of the disposition permit filed in connection with the
disposition.
Some of the reasons why there are such stringent
requirements over the cremation process involve the fact
that cremation is irreversible because the remains are
irretrievably destroyed. Furthermore, after a body is
cremated it is virtually indistinguishable from other
cremated remains. Crematory operators are placed in a
position of great trust. A family calls the funeral
director who takes their loved one's body to the funeral
establishment, and transports it to the crematory, where
the body is incinerated and the ashes are returned to the
funeral director. The processes of the crematory are
largely unseen and unknown by the family. The body is
easily identifiable when it is sent to the crematory, and
is completely unidentifiable when the cremated remains are
returned by the crematory.
Because the process is irreversible and indistinguishable,
cremation has great potential for errors by negligent or
haphazard practitioners. More significantly, cremation has
great potential for abuse by unscrupulous practitioners.
In the past, it has been alleged that organized crime and
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criminal street gangs have boasted that they could simply
make somebody disappear by taking a body to a crematory
where they had connections and having them cremate the
body. This is one reason why California law explicitly
requires a completed death certificate and a disposition
permit issued by the county office of vital records prior
to the cremation of any human remains (HSC Sections 103050
et seq.). Other cases of negligence or abuse have been
reported where crematory operators have cremated medical
waste, pharmaceutical waste, confiscated drugs, and pets.
In addition, family members can suffer significant
emotional trauma when it is discovered that their loved one
was cremated in a cremation chamber that has been used to
cremate other inappropriate materials.
The issues discussed above underscore the necessity of
exercising extreme caution in considering changes to
crematory practices. Even those changes proposed by this
bill.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 8/6/12)
Alameda County Sheriff's Office
American GI Forum of California
American Legion Riders
California Association of County Veterans Service Officers
California Funeral Directors Association
California State Commanders Veterans Council
Lone Tree Cemetery Association
Veterans of Foreign Wars of the United States
Vietnam Veterans of America California State Council
ARGUMENTS IN SUPPORT : The California Funeral Directors
Association states: "We strongly support the veterans
groups who consciously handle with discipline and dignity
the disposition of worn American Flags. SB 1197, simple in
its approach and limited in its scope, allows the American
Flags to be burned on certain dates in a crematorium. This
allows for disposition of the flag in a manner that is
respectful."
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JJA:n 8/7/12 Senate Floor Analyses
SUPPORT/OPPOSITION: NONE RECEIVED
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