BILL ANALYSIS �
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|Hearing Date:April 15, 2013 |Bill No:SB |
| |119 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Curren D. Price, Jr., Chair
Bill No: SB 119Author:Calderon
As Amended:April 8, 2013 Fiscal:Yes
SUBJECT: Crematories: burning of flags.
SUMMARY: Authorizes a crematory regulated by the Cemetery and Funeral
Bureau, in addition to the cremation of human remains, to 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; requires a crematory to maintain an accurate record
of all flags incinerated at the crematory.
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)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. (Health and Safety Code (HSC) �
8344.5)
3)Requires a crematory to maintain for 10 years an accurate cremation
log which includes specified information identifying the deceased,
the referring funeral director, the time and date of the cremation,
and specific information about the cremation process, and the
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disposition of cremated remains. (HSC � 8343).
4)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.
(HSC � 41806)
Existing Federal law:
1)Outlines the role of flag of the United States of America. (Title 4
of the United States Code
(4 USC) Chapter 1)
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. (4 USC � 8)
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. (4 USC � 8 (k))
This bill:
1)Authorizes a crematory regulated by the Bureau to also incinerate one
or more American flags, under the following conditions:
a) Incineration of the flag or flags occurs in accordance with
federal law, specified in
Item # 3), above.
b) Incineration of the flag or flags occurs within one week
before or after any of the following:
i) Memorial Day (last Monday in May)
ii) Flag Day (June 14)
iii) Independence Day (July 4)
2)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.
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3)Requires a crematory that incinerates American flags to maintain an
accurate record subject to Bureau inspection in the crematory log
for at least 10 years of all flags incinerated, which includes the
following information:
a) Name of the organization or person requesting incineration.
b) Date of incineration.
c) Name of the cremation chamber operator.
d) Time and date the flags were inserted in the cremation
chamber.
e) Time and date the flags were removed from the cremation
chamber.
f) Weight of the ashes after being removed from the cremation
chamber.
g) Disposition of the ashes.
FISCAL EFFECT: Unknown. This bill had been keyed "fiscal" by
Legislative Counsel.
COMMENTS:
1.Purpose. This bill is sponsored by the Author. According to the
Author the bill was prompted by a loosely organized gathering of
volunteer veterans who want a dignified way to dispose of the many
flags worn out every year. The Author states that SB 119 creates a
legal statute that authorizes crematories to burn worn or soiled
American flags for the purpose of flag disposal.
2.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 in
conjunction with Memorial Day observances, Flag Day ceremonies or
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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.
3.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
establish 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 current requirement in HSC � 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.
4.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 inserted 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 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
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the cremation log. HSC � 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 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 �� 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
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extreme caution in considering changes to crematory practices; even
those changes proposed by this bill.
5. Related Legislation. SB 1197 (Calderon, 2012), essentially
identical to this measure, was approved by this Committee 8-0 on
July 2, 2012. That bill was gutted and amended to deal with a
different subject and chaptered in 2012.
SB 638 (O'Connell, Chapter 538, Statutes of 1997) established an
explicit exemption from air quality regulations for the burning, in
a respectful and dignified manner, of an unserviceable American
flag that is no longer fit for display.
AB 598 (Speier, Chapter 1232, Statutes of 1993), the Cremation
Standards Act, made numerous cremation reforms, including requiring
a crematory to maintain a system, to insure proper identification
of human remains during the entire cremation process; require a
crematory to cremate only human remains, as specified; prohibit a
crematory from accepting human remains unless certain requirements
are met.
AB 764 (Linder, 2012) authorizes the Bureau, under a pilot project, to
issue a limited license and regulate hydrolysis facilities and
hydrolysis facility managers, as specified. This bill is currently
in Assembly Business, Professions and Consumer Protection Committee
for hearing.
AB 1615 (Miller, 2012), similar to AB 764, would have authorized the
Bureau to license and regulate hydrolysis facilities and hydrolysis
facility managers, as specified. That bill was held on suspense in
the Senate Appropriations Committee.
SUPPORT AND OPPOSITION:
Support:
None received as of April 9, 2013
Opposition:
None received as of April 9, 2013
Consultant:G. V. Ayers
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