BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 119|
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THIRD READING
Bill No: SB 119
Author: Calderon (D)
Amended: 4/8/13
Vote: 21
SENATE BUSINESS, PROF. & ECON. DEVEL. COMM. : 10-0, 4/15/13
AYES: Price, Emmerson, Block, Corbett, Galgiani, Hernandez,
Hill, Padilla, Wyland, Yee
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SUBJECT : Crematories: burning of American flags
SOURCE : Author
DIGEST : This bill authorizes a crematory regulated by the
Cemetery and Funeral Bureau (Bureau), in addition to the
cremation of human remains, to also incinerate an American
flag(s), in accordance with federal law, as specified, and
specifies that the burning of the flag(s) occurs within one week
before or after, Memorial Day, Flag Day, or Independence Day;
and requires a crematory to maintain an accurate record of all
flags incinerated at the crematory.
ANALYSIS :
Existing federal law:
1. Outlines the role of the flag of the United States of
America.
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2. Establishes criteria for respect for the flag, and provides
that no disrespect should be shown to the U.S. flag, 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.
Existing state law:
1. 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.
2. 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 disposition of cremated
remains.
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.
This bill:
1. Authorizes a crematory regulated by the Bureau to also
incinerate American flag(s), under the following specified
conditions:
A. Incineration of the flag(s) occurs in accordance with
federal law.
B. Incineration of the flag(s) occurs within one week
before or after Memorial Day (last Monday in May), Flag
Day (June 14), or Independence Day (July 4).
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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.
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 name of the organization or
person requesting incineration, date of incineration, name of
the cremation chamber operator, time and date the flags were
inserted in the cremation chamber, time and date the flags
were removed from the cremation chamber, weight of the ashes
after being removed from the cremation chamber, and the
disposition of the ashes.
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 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 establish strict procedural rules to
clearly define the responsibilities of crematory operators and
guard against the mishandling of human remains. The Cremation
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Standards Act established the current requirement in the Health
and Safety Code Section (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.
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 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 HSC Section 8344; and (k) a photocopy of
the disposition permit filed in connection with the disposition.
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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.
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.
Comments
According to the author's office, this 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's office states that this bill creates a legal
statute that authorizes crematories to burn worn or soiled
American flags for the purpose of flag disposal.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
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Local: No
MW:d 5/1/13 Senate Floor Analyses
SUPPORT/OPPOSITION: NONE RECEIVED
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