BILL ANALYSIS
AB 1745
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1745 (Ammiano)
As Amended June 10, 2010
Majority vote
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|ASSEMBLY: |46-29|(May 3, 2010) |SENATE: |21-15|(August 23, |
| | | | | |2010) |
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Original Committee Reference: JUD.
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)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 $8 to fund the disposition of the
remains of indigent residents of that county.
2)Exempts this fee from annual adjustments pursuant to Health &
Safety Code Section 100430.
The Senate amendments simply relocate authority for the
additional fee proposed by this bill to Health & Safety Code
Section 103680, which already contains provisions for fees
related to indigent resident burials, so as to consolidate the
fee authority in one location.
EXISTING LAW :
1)Requires a county who exercises or assumes jurisdiction over
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.
2)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.
AB 1745
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3)Requires an applicant for the permit for disposition of human
remains to pay a fee of $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 Health & Safety Code Section 103065.
4)Provides for a $2 increased adjustment to the above fee to be
paid quarterly to the State Registrar pursuant to SB 850
(Maldonado), Chapter 661, Statutes of 2007.
5)Requires, as of January 1, 2005, an applicant for the permit
for disposition of human remains to pay an additional fee of
$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.
6)Requires an applicant for the permit for disposition of human
remains to pay an additional fee of $3 to the local registrar
of births and deaths, with $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
$2 to be paid into the county treasury to be expended for the
burial of indigent residents.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar
to the version approved by the Senate.
FISCAL EFFECT : None
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 $8, to be used
for disposal of the remains of indigent residents of the county.
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. They
correctly note that only $2 from the $11 fees collected for
every regular burial permit are set aside for the purpose of
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disposing of the remains of indigent residents of the county,
and that this amount has not been increased for two decades,
since first enacted into law by SB 2244 (Davis), Chapter 990,
Statutes 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 $8 to fund the disposition of the remains of indigent
residents of that county.
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 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,
an increase that appears to meet the criteria for a "fee" under
the Sinclair Paints test. 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
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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
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.
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334
FN:
0005079