BILL ANALYSIS �
SB 119
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Date of Hearing: June 11, 2013
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Richard S. Gordon, Chair
SB 119 (Ron Calderon) - As Amended: April 8, 2013
SENATE VOTE : 32-0
SUBJECT : Crematories: burning of flags.
SUMMARY : Authorizes a crematory to incinerate an American flag
or flags separately from the cremation of human remains within
one week before or after Memorial Day, Flag Day, or Independence
Day, and requires a crematory to maintain a record of all flags
incinerated. Specifically, this bill :
1)Authorizes a crematory regulated by the Cemetery and Funeral
Bureau (Bureau) to also cremate an American flag or flags,
under the following conditions:
a) Incineration is performed separately from the cremation
of human remains;
b) Incineration of the flag or flags is performed in
accordance with federal law; and,
c) Incineration occurs within one week before or after any
of the following days:
i) Memorial Day (last Monday in May);
ii) Flag Day (June 14); or,
iii) Independence Day (July 4).
2)Provides that nothing in this bill shall be construed to
restrict or infringe upon any person's right to free
expression under the First Amendment to the United States
Constitution.
3)Requires a crematory that incinerates an American flag or
flags to maintain on its premises an accurate record of all
cremations performed for at least 10 years, subject to Bureau
inspection, and which shall include all the following
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information:
a) Name of the organization or person requesting
incineration of the flag or flags;
b) Date of the incineration of the flag or flags;
c) Name of the cremation chamber operator;
d) Time and date that the flag or flags were inserted in
the cremation chamber;
e) Time and date that the flag or flags were removed from
the cremation chamber;
f) Weight of the ashes of the flag or flags after being
removed from the cremation chamber; and,
g) Disposition of the ashes of the incinerated flag or
flags.
EXISTING STATE 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 Bureau
within the Department of Consumer Affairs (DCA). (Business
and Professions Code (BPC) Section 7600)
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) Section 8344.5)
3)Requires a crematory to maintain on its premises, or other
business location within the State of California, an accurate
record of all cremations performed, which information shall be
maintained for at least 10 years after the cremation is
performed and shall be subject to inspection by the Bureau.
(HSC 8343)
4)Generally regulates air emissions of non-agricultural burning,
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and specifically provides that nothing in the law shall be
construed as prohibiting 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)Sets forth the appropriate role and uses of the flag United
States of America, and specifies that no disrespect should be
shown to the flag. (United States Code, Title 4, Chapter 1,
Section 8)
2)Specifies that when the flag is in such condition that it is
no longer a fitting emblem for display, it should be destroyed
in a dignified way, preferably by burning. (United States
Code, Title 4, Chapter 1, Section 8(k))
FISCAL EFFECT : Unknown
COMMENTS :
1)Purpose of this bill. State law does not currently permit
crematories to incinerate American flags for the purpose of
flag disposal, while existing federal law specifies that
burning is the preferable means to destroy a flag that is no
longer fit for display. This encourages individuals to burn
damaged flags in uncontrolled environments that can become
dangerous. This bill is intended to authorize state
crematories to dispose of worn-out flags in a dignified
manner. This bill is author sponsored.
2)Author's statement. According to the author's office,
"Service groups and Veteran organizations often collect worn
or soiled American flags in an effort to ensure that these
flags are disposed of properly. The groups' method of
disposal usually consists of burning the flags in backyard
fire pits, but people have complained about the smoke from
open-air burnings and have raised concerns about the overall
safety of the practice."
3)Flag disposal under current law. Federal law establishes
specific rules for the respectful treatment, use, storage, and
elimination of the United States flag. It provides that when
a flag is in such a condition that is no longer fit as an
emblem for display, it should be destroyed in a dignified way,
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preferably by burning. Over the years, veteran's
organizations, scouting groups, and others have volunteered to
collect worn-out, torn, ragged, or stained American flags, and
dispose of them by burning. Typically, damaged flags are
collected and burned in a ceremony in conjunction with
Memorial Day observances, Flag Day ceremonies, or Independence
Day celebrations.
4)California cremation requirements. California laws regulating
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, AB 598
(Speier), Chapter 1332, Statutes of 1993, also known as The
Cremation Standards Act (Act), enacted strict procedural rules
and responsibilities for crematory operators to guard against
the mishandling of human remains. The Act also requires a
crematory to cremate only human remains in its cremation
chambers, along with the cremation container, personal effects
of the deceased, and no more than a negligible amount of
chlorinated plastic when necessary. (HSC 8344.5)
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. After burning, the
chamber contents are swept and placed into 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.
Commingling of cremated remains is a serious concern in the
operation of a crematory. Past lawsuits have alleged that
bone fragments have been found discarded in trash cans, or
chambers were not cleaned, allowing ashes and other materials
to be commingled. The intermingling of cremated ashes is
considered disrespectful to the dead. As such, reasonable
efforts must be made by the crematory operator to remove all
of the cremated remains after each cremation.
Throughout the cremation process, each dead body must be
tracked by the crematory operator and specific information
must be entered into the cremation log. A crematory is
required to maintain for at least 10 years an accurate
cremation log, which includes the following information: (a)
Name of referring funeral director, if any; (b) Name of
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deceased; (c) Date of cremation; (d) Name of cremation chamber
operator; (e) Time and date that the body was inserted in the
cremation chamber; (f) Time and date that the body was removed
from the 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.
(HSC 8343)
Because cremated remains are virtually unidentifiable by
family members, the cremation process has great potential for
error or abuse by negligent, haphazard, or 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.
5)Questions for the Committee. SB 119 restricts the practice of
incinerating flags by cremation to only the one week before
and after Memorial Day, Flag Day, or Independence Day. These
three holidays occur between the end of May and the beginning
of July, which is a very short period of time. The Committee
may wish to inquire of the author as to whether or not it
might be more efficient for crematories to consider expanding
the available burn periods.
6)Arguments in Support . According to the American Veterans
(AMVETS) Department of California, California Association of
County Veterans Service Officers (CACVSO), and Veterans of
Foreign Wars (VFW) Department of California, "The appropriate
method of disposing of a worn or tattered American flag is to
burn it. We support legislation that allows crematories to
utilize their existing equipment to accomplish this mission
and to keep the appropriate records."
7)Related Legislation. AB 764 (Linder) of 2013 would authorize
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the Bureau, under a pilot project, to issue a limited license
and regulate hydrolysis facilities and hydrolysis facility
managers, as specified. AB 764 is currently pending referral
in the Senate Rules Committee.
8)Previous Legislation. AB 1615 (Miller) of 2012, similar to AB
764, would have authorized the Bureau to license and regulate
hydrolysis facilities and hydrolysis facility managers, as
specified. AB 1615 was held on suspense in the Senate
Appropriations Committee.
SB 1197 (Calderon) of 2012 would authorize the cremation of
one or more American flags during the periods within one week
before or after specified holidays. This bill was
substantially amended to address an unrelated issue: income
taxes: credits: film: extension.
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, enacted 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; and prohibit a crematory from accepting human
remains unless certain requirements are met.
REGISTERED SUPPORT / OPPOSITION :
Support
American veterans (AMVETS), Department of California
California Association of County Veterans Service Officers
(CACVSO)
Veterans of Foreign Wars (VFW), Department of California
Opposition
None on file.
Analysis Prepared by: Angela Pontes / B.,P. & C.P. / (916)
319-3301
SB 119
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