BILL ANALYSIS �
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|Hearing Date:July 2, 2012 |Bill No:AB |
| |1225 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Curren D. Price, Jr., Chair
Bill No: AB 1225Author:Committee on Veterans Affairs
As Amended:January 24, 2012 Fiscal:Yes
SUBJECT: Cemeteries: veteran's commemorative property.
SUMMARY: Prohibits any person or entity that owns or controls a
cemetery where any veteran's commemorative property has been placed
from selling, trading, or transferring veteran's commemorative
property; and authorizes the sale, trade or transfer of all or any
part of any veteran's commemorative property if certain conditions are
met.
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)Exempts from Bureau regulation the following types of cemeteries:
(BPC � 9609)
a) Any cemetery owned or operated by a religious corporation,
church, religious society or denomination, or a corporation only
administering on behalf of a church or religious society or
denomination.
b) A public cemetery.
c) Any private or fraternal burial park not exceeding 10 acres in
area, established prior to September 19, 1939, as specified.
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3)Prohibits a cemetery owned and operated by a city, county, or city
and county from engaging in selling monuments or markers, and
prohibits its officers and employees who manage, operate, or
otherwise maintain the cemetery from engaging in the private
business of selling monuments or markers. (Health and Safety Code
(HSC) � 8137)
This bill:
1)Prohibits any person or entity that owns or controls a cemetery where
any veteran's commemorative property has been placed, including an
unincorporated association, a cemetery corporation, or a religious
corporation, from selling, trading, or transferring veteran's
commemorative property.
a) Exempts a municipal corporation as described in Section 8137
from this prohibition.
2)Authorizes an unincorporated association, cemetery corporation, or
religious corporation, except a municipal corporation, as specified,
that owns or controls a cemetery where any property has been placed
to petition the Bureau for permission to sell, trade or transfer all
or any part of the veteran's commemorative property.
3)Authorizes the Bureau to approve the sale, trade or transfer of the
veteran's commemorative property under any of the following
conditions.
a) The property is at reasonable risk of physically
deteriorating, as specified and is replaced at its original site
by a fitting replacement commemorative property, monument, or
marker that appropriately identifies and commemorates the veteran
or group of veterans.
b) The property is proposed to be sold, traded, or transferred to
a suitable person that will preserve it in a suitable place that
will commemorate the veteran or group of veterans.
c) The petitioner needs to sell, trade, or transfer the property
to ensure that sufficient funds are available to suitably
maintain the cemetery where the property was placed, as
specified.
d) If the property to be sold, traded, or transferred has been
donated to the petitioner by any veterans' organization, the
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sale, trade, or transfer shall have been consented to by that
veterans' organization.
e) If the petitioner is not the owner of the property, the
petitioner is authorized by the owner to sell, trade, or transfer
the property.
f) By operation of any other law authorizing the sale, trade, or
transfer of the property.
4)Requires the Bureau to fix a date, time, and place of the hearing,
not exceeding 100 days after the petition is received.
5)Requires the Bureau to render its decision in writing within 60 days
of the hearing and forward a copy of the decision to each person who
appeared at the hearing.
6)Provides that an order or determination of the Bureau granting the
petition may specify the manner in which the petitioner is to use or
apply the proceeds of the sale, trade, or transfer.
7)Provides that if the petitioner is an unincorporated association or
corporation subject to the Nonprofit Corporation Law, as specified,
the Bureau is authorized to direct the petitioner to deposit the
proceeds of the sale, trade, or transfer in the permanent
maintenance fund maintained by the petitioner pursuant to the
Non-profit Corporation Law.
8)Authorizes the Bureau to adopt any regulations related to petitions,
hearings, and procedures to further the purposes of this bill.
9)Specifies that a person violating any provision of this bill is
guilty of a misdemeanor punishable by a fine of no less than $100 or
more than $1,000; by imprisonment in a county jail for no less than
10 days or more than six months; or, by both that fine and
imprisonment; and, in addition is liable for all costs, expenses,
and disbursements paid or incurred by the person prosecuting the
case
10)Defines certain terms for purposes of the bill, including:
a) "Veteran" as a living or deceased person who either served in
the active military or naval service of the United States during
a war or served in active duty in a force of any organized state
militia, as specified.
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b) "Veteran's commemorative property" as any monument, headstone,
marker, memorial, plaque, statue, vase, urn, flagholder, badge,
or shield that meets all of the following:
i) Is over 50 years old.
ii) Identifies or commemorates any veteran or group of
veterans, including, but not limited to, any veterans'
organization or any military unit, company, battalion, or
division.
iii) Is located in any cemetery.
FISCAL EFFECT: The Assembly Appropriations Committee analysis dated
January 19, 2012, cites:
1.Costs of approximately $150,000 per year for the workload associated
with the requirement that the Bureau approve any sales, trades, or
transfers of commemorative property.
2.Under correctional realignment instituted in 2011, the creation of
new misdemeanors should be viewed in a new light. Counties are
taking on significant new responsibilities for housing and
supervising felons. New misdemeanors place additional pressure on
counties to identify additional programs, including incarceration
and probation, at a time when jail and program space - and attendant
staffing - will be at a premium in many counties. While the fiscal
and programmatic consequences of most new misdemeanors are likely to
be relatively minor, any additional cumulative pressure on
realignment efforts merits careful consideration.
COMMENTS:
1.Purpose. This bill is authored by the Assembly Veterans Affairs
Committee . According to the Author: "In recent years, a market has
developed for veteran commemorative cemetery property. This
property includes monuments, headstones, markers, memorials, and
plaques. They have become very valuable in the antiques market, and
this has led to concern about thieves stealing them from cemeteries
and sale by cemeteries of such property. Initial concerns were for
Civil War property but have progressed to include property from the
Vietnam War era.
"Additionally, metal theft has become increasingly common as prices for
metals have risen dramatically. Common stolen metals include
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copper, aluminum, brass, and bronze. Thieves recently stole copper
plaques commemorating veterans from a Long Beach cemetery."
The Author states: "This bill prohibits the unauthorized sale,
purchase, or transfer of any veteran commemorative cemetery property
that is over 50 years old if such property is currently placed or
located within a cemetery. A person violating any provision of this
bill is guilty of a misdemeanor. The bill does allow authorized
sales of the property through the California Cemetery and Funeral
Bureau. AB 1225 seeks to prevent the theft of property by making
the sale or transfer of these items illegal."
2.Background. Many cemeteries have markers, monuments, memorials,
etcetera dedicated to veterans. Some have been donated by veterans
groups, community associations and like organizations over the
years. Old cemeteries may have items that could be considered
collector's items by certain enthusiasts. Some items date back to
the Civil War or beyond. There are many Civil War collectors who
would find a grave marker of interest and want to purchase the item
from the cemetery or from an individual.
Metal theft has become increasingly common as prices for metals have
recently risen dramatically. Commonly stolen metals include copper,
aluminum, brass, and bronze. According to the Author, thieves
recently stole copper plaques commemorating veterans from a Long
Beach cemetery. This bill seeks to prevent the theft of Property by
making the sale or transfer of these items illegal.
3.The Cemetery and Funeral Bureau. The Bureau within the Department of
Consumer Affairs licenses and regulates some 200 cemeteries. The
Bureau does not have jurisdiction over cemetery owned or operated by
a religious corporation, church, religious society or denomination,
a public cemetery, or any private or fraternal burial park not
exceeding 10 acres established prior to September 1939. It is
estimated that there are about 1,200 cemeteries in California that
are not regulated by the Bureau. Many of these cemeteries are
small, private cemeteries, many of which are historical pioneer
cemeteries.
4.Related Legislation. AB 1777 (Ma, 2012) authorizes cremated remains
to be transferred from a durable container into a scattering urn, as
defined, no more than seven days before scattering the cremated
remains at sea from a boat. This bill was approved by this
Committee, June 11, on Consent, and is now on the Senate Floor.
SB 1197 (Calderon, 2012) an urgency measure which provides that a
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crematory regulated by the Cemetery and Funeral Bureau, in addition
to the cremation of human remains, may also cremate an American flag
or flags, in accordance with federal law, as specified, and
specifies that the of the flag or flags occurs within one week
before or after, Memorial Day, Flag Day, or Independence Day. This
bill is set for hearing by this Committee on July 2.
AB 1615 (Miller, 2012) authorizes the Bureau to license and regulate
hydrolysis facilities and hydrolysis facility managers, as
specified. This bill is set for hearing by this Committee on July
2.
AB 374 (Hill, 2012) allows a bond to be posted in lieu of an
unqualified audit report if there are timeliness issues on a
transfer of ownership of a funeral establishment due to the death of
an owner, estate issues or other legal matters, including
litigation. This bill is set for hearing by this Committee on July
2.
AB 1225 (Veterans Affairs Committee, 2012) prohibits the sale, trade or
transfer of veterans' commemorative property out of cemeteries
except under certain conditions. This bill is set for hearing by
this Committee on July 2.
5.Arguments in Support. The California Association of Museums supports
the" goal to prohibit the unauthorized sale, purchase, or transfer
of any veteran commemorative cemetery property that is over 50 years
old," stating: "Since the vast majority of California museums (93%)
have a costly and irreplaceable permanent collection that they care
for, the organizations we serve understand the need for stewards of
our state's cultural and natural heritage."
6.Arguments in Opposition. The Department of Consumer Affairs opposes
this bill, stating: "The Department understands the significant
value that veteran commemorative properties have to the families and
communities throughout California. The Department acknowledges the
noble intent to protect these properties, but questions the
effectiveness of this legislation's approach in curbing theft or
illegal trade in these items. Furthermore, this bill would place a
number of new requirements on the Bureau, including potential new
costs, which could become overly burdensome and time-consuming to
deal with should a number of these properties be petitioned for
sale."
7.Author's Amendments. Committee staff has proposed a number of
amendments to the bill which will be adopted as Author's amendments
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in Committee. The amendments are detailed below:
a) Prohibition From Selling, Transferring or Trading. Although
the Author indicates that the bill is intended to prohibit any
person from selling veteran's commemorative property, it appears
to fall short of that goal. As drafted, the bill only prohibits
an owner of a cemetery from selling, transferring or trading such
commemorative property. Furthermore, the bill appears to exempt
public or municipal cemeteries from this prohibition.
Committee staff has recommended that this bill be amended to
clearly prohibit any person from selling veteran's commemorative
property. The Author has agreed to adopt this recommendation as
an Author's amendment.
b) Veteran's Commemorative Property. One of the criteria to meet
the definition of veteran's commemorative property under the bill
is that the property must be more than 50 years old. Under these
terms, memorials honoring veterans of Vietnam, or the Gulf War,
or the more recent conflicts in the Persian Gulf and Afghanistan
would not meet the criteria to be considered veteran's
commemorative property, and thus be prohibited from being sold,
transferred or traded.
Committee staff suggests that the Author clarify the intent of the
bill with regard to prohibiting the sale of property that would
otherwise meet the definition of veterans commemorative property
but is less than 50 years old. The Author has agreed to adopt an
Author's amendment to strike out the requirement that "veterans'
commemorative property" is property that is over 50 years old.
On page 3, strike out line 5.
c) Consent to the Sale, trade, or transfer. The bill establishes
the conditions under which property may be sold, traded or
transferred, and includes as one of those conditions that if it
is known that the property was donated by a veterans
organization, then the sale, trade, or transfer shall be
consented to by that veteran's organization. This provision
could have the unintended effect of only allowing a veteran's
organization who has donated property to give consent to sell,
trade or transfer property, and keeping other organizations or
persons who have donated property from being required or allowed
to give consent.
Committee staff recommends that this provision be expanded to
include other groups such as historical organizations or
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individuals who may have donated the property. The Author has
agreed to accept this as an Author's amendment.
d) Cemetery and Funeral Bureau. The bill would authorize a
cemetery owner to petition the Bureau for permission to sell,
transfer or trade veteran's commemorative property, as specified.
As a licensing and regulatory enforcement agency, this bill
would impose a new function upon the Bureau that is vastly
different than the other functions and responsibilities defined
for the Bureau under the law. Furthermore this provision places
the Bureau in a quasi- judicial position to make decisions
regarding petitions by cemeteries and cemetery owners that are
outside of the Bureau's jurisdiction.
A more appropriate alternative is the process found in HSC � 8700,
et seq. These provisions deal with a cemetery in which the
majority of plots have been sold and the cemetery owner wishes to
abandon roads and walkways in the cemetery and convert them for
use as grave spaces, thereby increasing the burial space in the
cemetery and also increasing contributions to the cemetery's
endowment care funds. These provisions allow for the cemetery
owner to petition the superior court of the county in which
cemetery is located for permission to convert the roads or
walkways to grave spaces. These provisions allow for notice to
the public and to interested parties and for a hearing before the
court on the petition. The court is authorized to make
appropriate determinations regarding the petition.
Committee staff recommends that the bill be amended to provide for
a similar process in which a cemetery owner may petition the
superior court instead of the Bureau for authorization to sell,
trade or transfer veteran's commemorative property. The Author
has agreed to accept this amendment.
SUPPORT AND OPPOSITION:
Support:
American Legion, Department of California
AMVETS-Department of California
California Association of County Veteran Service Officers
California Association of Museums
California Funeral Directors Association
California Senior Legislature
California State Commanders Veterans Council
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Vietnam Veterans of America - California State Council
Opposition:
Department of Consumer Affairs
Consultant:G. V. Ayers