BILL ANALYSIS
AB 1745
Page 1
Date of Hearing: March 23, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1745 (Ammiano) - As Amended: March 18, 2010
SUBJECT : VITAL RECORDS: FEES: DISPOSITION OF HUMAN REMAINS
KEY ISSUE : SHOULD THE LOCAL REGISTRAR OF A COUNTY BE AUTHORIZED
TO CHARGE AN APPLICANT FOR A PERMIT FOR DISPOSITION OF HUMAN
REMAINS AN ADDITIONAL FEE OF UP TO EIGHT DOLLARS ($8) FOR THE
PURPOSE OF FUNDING THE DISPOSITION OF THE REMAINS OF INDIGENT
RESIDENTS OF THAT COUNTY?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill would authorize the local registrar of a county to
charge an applicant for a permit for the disposition of human
remains an additional fee of up to eight dollars ($8) to fund
the disposition of the remains of indigent residents of that
county. The sponsor of the bill, the City and County of San
Francisco, contends that this bill is needed to relieve the
financial burden currently experienced by counties arising from
their under-funded obligation under state law to absorb the
costs of disposing of the remains of indigent residents.
Although the bill has no formal opposition at this time, it's
likely to face general fiscal criticism by taxpayer advocates
and others on the basis that the fee authorized by this bill is
in fact a tax subject to approval by a two-thirds vote of the
Legislature. After careful analysis, it appears to the
Committee that the fee authorized by this bill to fund the
disposal of indigent remains in the county likely satisfies both
criteria for a "fee" under the Sinclair Paints test, as
specified by the California Supreme Court. First, the bill only
authorizes counties to charge a fee of up to $8 to provide for
indigent burial, and in fact does not require any new fee to be
charged. In any case, because of Sinclair Paints , a county
could only charge a fee in an amount that does not exceed the
reasonable cost of providing burial of indigent remains in that
particular county. Secondly, for the reasons stated within, it
appears this bill is closely related to the service it provides
to all persons in the county who pay a burial permit
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fee--namely, to protect public health and safety and ensure
proper disposition of all human remains. This bill is supported
by public administrators, guardians and conservators, as well as
by associations of correctional supervisors and peace officers.
SUMMARY : Authorizes counties to increase fees for every burial
permit (i.e. "permit for disposition of human remains") it
issues in order to help pay costs incurred by counties in
disposing of the remains of indigent residents. Specifically,
this bill:
1)Repeals and reenacts Health & Safety Code Section 103692 to
require that, in addition to various fees prescribed by
existing law, an applicant for a permit for disposition of
human remains shall continue to pay to the local registrar the
existing fee of four dollars ($4) that is currently
transferred in whole to the State Registrar to be used to
implement and maintain the electronic death registration
system required by Section 102778.
2)Authorizes the local registrar of a county to charge an
applicant for a permit for the disposition of human remains an
additional fee of up to eight dollars ($8) to fund the
disposition of the remains of indigent residents of that
county.
3)Exempts these two fees from annual adjustments pursuant to
Health & Safety Code Section 100430.
EXISTING LAW :
1)Provides that when no provision about disposition was made by
the decedent, or where the estate is insufficient to provide
for interment and the duty of interment does not devolve upon
any other person residing in the state, or if such person can
not after reasonable diligence be found within the state, the
person who has custody of the remains may require the coroner
of the county where the decedent resided at the time of death
to take possession of the remains and the coroner shall inter
the remains in the manner provided for the interment of
indigent dead. (Health & Safety Code Section 7104(a). All
further references to the Health & Safety Code, unless
otherwise noted.)
2)Requires a county who exercises or assumes jurisdiction over
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the death of an individual to be responsible for the
disposition of the remains of that decedent. Further provides
that if the decedent is an indigent, the costs associated with
disposition of the remains shall be borne by the county
exercising jurisdiction. (Section 7104(b).)
3)Prohibits any person from disposing of human remains unless
the person has obtained a death certificate, filed it with the
local registrar, and obtained from the local registrar a
permit for disposition. (Section 103050.)
4)Requires an applicant for the permit for disposition of human
remains to pay a fee of two dollars ($2) to the local
registrar of births and deaths, when the permit is issued
during the registrar's regularly scheduled office hours,
except for permit applications pursuant to Section 103065.
(Section 103675.)
5)Provides for a two dollar ($2) increased adjustment to the
above fee to be paid quarterly to the State Registrar pursuant
to SB 850 (2007). (Section 100430.)
6)Requires, as of January 1, 2005, an applicant for the permit
for disposition of human remains to pay an additional fee of
four dollars ($4) to the local registrar of births and deaths,
who in turn shall pay these funds to the State Registrar to be
used to implement and maintain the electronic death
registration system required by state law. (Section 103692.)
7)Requires an applicant for the permit for disposition of human
remains to pay an additional fee of three dollars ($3) to the
local registrar of births and deaths, with one dollar ($1) of
this fee to be paid into the Peace Officers' Training Fund for
the training of peace officer members of county coroners'
offices, and the remaining two dollars ($2) to be paid into
the county treasury to be expended for the burial of indigent
residents. (Section 103680.)
8)Requires a local registrar, upon presentation of a properly
executed death certificate, to issue the permit for
disposition and forward the death certificate and a duplicate
of the permit to the local registrar of the district in which
death occurred or the body was found. Requires an applicant
for this "cross-file permit" for disposition to pay a fee of
ten dollars ($10) to the issuing registrar, with $3 of the fee
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to be transferred by the issuing registrar to the local
registrar of the county where the death occurred, $3 of the
fee to be retained by the county registrar issuing the permit,
and the remaining $4 of the fee to be transferred to the State
Registrar for administration of this section. (Section
103065, amount as adjusted by Section 100430.)
COMMENTS : This bill would increase the fee that a county
registrar may assess for a permit to dispose of human remains
from $11 to up to $19, a potential increase of eight dollars, to
be used for disposal of the remains of indigent residents of the
county.
Need for the bill. Under existing Health & Safety Code Section
7104, a county who exercises or assumes jurisdiction over the
death of an individual is charged with responsibility for the
disposition of the remains of that decedent. Furthermore, if
the decedent is an indigent, current law provides that the costs
associated with disposition of the remains shall be borne by the
county exercising jurisdiction. Because only $2 of collected
fees may be paid to counties for this purpose, the counties
contend that this law creates a type of under-funded mandate
with respect to the disposal of the remains of indigent persons.
The sponsor of the bill, the City and County of San Francisco,
asserts that this bill is needed to relieve the financial burden
currently experienced by counties arising from their obligation
to absorb the costs of disposing of the remains of indigent
residents without provision of sufficient funding. The sponsor
cites figures estimating that an eight-dollar increase over
existing fees would be sufficient to cover the shortfall
experienced by San Francisco:
Current law designates $2 of the $11 fee collected on
each permit for the disposition of indigents.
Approximately 7,500 individuals die each year in the
City and County of San Francisco for which permits are
obtained. Approximately 250 to 300 indigent residents
die in San Francisco each year requiring San Francisco
to dispose of their remains. This translates into a
shortfall of approximately $55,000 per year. This
financial burden to counties would be remediated by an
$8.00 increase to the current fee.
Current Fees and Allocations for a Permit for Disposition of
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Remains : State law governing the issuance of permits for
disposition of human remains (often simply referred to as
"burial permits") authorizes a variety of individual fees for
such permits. (Chapter 8 of Part 1 of Division 102 of the
Health & Safety Code.) Once collected by the local county
registrar, portions of each of these fees are then distributed
to different entities for specified purposes. Typically, the
applicant for a regular burial permit is assessed a total of $11
in mandatory fees by the local registrar. The State Registrar
is required to receive $2 of the $4 fee collected pursuant to
Section 103675, with the other $2 retained by the local
registrar issuing the burial permit. The local registrar must
transmit to the State Registrar the entire $4 fee collected
pursuant to Section 103692, which must be used by the state to
implement and maintain the electronic death registration system
created by AB 2550 (Chapter 857, Stats. of 2002). Of the $3 fee
charged under Section 103680, the local registrar must pay one
dollar into the Peace Officers' Training Fund, and pay the
remaining $2 into the county treasury to be expended for the
burial of indigent residents. Additional fees may apply in
small proportion of cases when the death certificate is issued
in a county different from where the death occurred, or the
permit needs to be obtained after regular business hours of the
registrar.
In summary, only $2 from the $11 fees collected for every
regular burial permit are set aside for the purpose of disposing
of the remains of indigent residents of the county. This amount
has not been increased for two decades, since first enacted into
law by SB 2224 (Chapter 990, Stats. of 1990). To help alleviate
this financial burden to counties, this bill would authorize the
local registrar to charge an applicant for a burial permit an
additional fee of up to eight dollars ($8) to fund the
disposition of the remains of indigent residents of that county.
The Increase Proposed by This Bill Appears to Meet the Criteria
for a "Fee" Under Sinclair Paints. Under California law, while
a tax does require a two-thirds vote of the Legislature or of
local voters, a bona fide regulatory fee does not. The
California Supreme Court laid out the distinction between a fee
and a tax in Sinclair Paints v. Board of Equalization (1997) 15
Cal.4th 866. In that case, the Court found that a fee assessed
on paint manufacturers under the Childhood Lead Poisoning
Prevention Act of 1991 was properly a bona fide regulatory fee
designed to mitigate the effects of lead poisoning and not a
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tax. In order to be classified as a regulatory fee and not a
tax, the Court held that the fee must not exceed the reasonable
cost of providing the services necessary for which the fee is
charged, and must not be levied for an unrelated revenue
purpose.
This bill provides that any fee increase charged by the local
registrar pursuant to this act shall be used to fund the
disposition of the remains of indigent residents of that county.
Under the first prong of the Sinclair Paints test, the fee
cannot exceed the reasonable cost of the services for which the
fee is charged. Here, the bill would authorize an additional
fee not to exceed eight dollars-an amount that, according to the
author, reflects the fee needed to offset the reasonable cost of
the service of burying indigent residents of the City and County
of San Francisco. The author arrived at this figure based on
current estimates of the number of burial permits obtained in
the county each year, the number of indigent residents of the
county who die each year, and the estimated annual cost to the
county for disposing of remains of indigent residents.
Importantly, this bill does not require or specify the amount of
any additional fee to be charged; it simply authorizes local
counties to assess an additional fee to applicants for burial
permits for the purpose of funding disposal of remains of
indigent county residents. In order to comply with Sinclair
Paints, each county would presumably perform a similar
calculation to determine the amount of any additional fee to be
charged to ensure that amount does not exceed the reasonable
cost of providing burial of indigent remains for that particular
county. In this case, there is no suggestion that the bill
requires any fee to be charged in excess of the cost of
providing indigent burial services.
Under the second prong of the Sinclair Paints test, the fee must
be levied for a related purpose. Here, the nexus between the
fee proposed by this bill and the service it would fund seems
sufficiently clear. All people eventually die, and every person
may potentially experience financial misfortune or circumstances
that happen to render them indigent at the time of death, even
those who may have had wealth earlier in life. The state
regulates disposition of remains and requires a permit to be
obtained for each case of death because proper disposition of
human remains is necessary to protect public health and safety
of county residents. The county must ensure that all human
remains in its jurisdiction are properly disposed of, regardless
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of whether the person died indigent or not, to protect the
public health in the county. Therefore, it appears that the
additional fee authorized by this bill to fund the disposal of
indigent remains in the county is closely related to the service
it provides to all persons in the county who pay a burial permit
fee--namely, to protect public health and safety and ensure
proper disposition of all human remains.
ARGUMENTS IN SUPPORT : The State Association of Public
Administrators, Public Guardians, and Public Conservators
represents public administrators, the county employees who
administer the estates of people who die without a will or
without an appropriate person willing to be able to act as an
administrator. In support of the bill, they write:
If a person dies with no assets or heirs, the county
public administrator arranges for the burial or
cremation of the individual. Currently, there is no
direct revenue source to fund burial services.
Counties incur great costs to care for the remains of
the indigent. For example, Riverside County spent
over $100,000 last year to provide this service. They
expect to spend a similar amount in 2010. AB 1745
would create a potential funding source to help offset
a significant county cost. Without this bill, county
taxpayers will continue to subsidize this service.
REGISTERED SUPPORT / OPPOSITION :
Support
City and County of San Francisco (sponsor)
State Association of Public Administrators, Public Guardians,
and Public Conservators
California Correctional Supervisors Organization
California Peace Officers' Association
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334