BILL ANALYSIS �
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|Hearing Date:July 2, 2012 |Bill No:SB |
| |1197 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Curren D. Price, Jr., Chair
Bill No: SB 1197Author:Calderon
As Amended:June 25, 2012 Fiscal:No
SUBJECT: Crematories: burning of flags.
SUMMARY: An urgency measure which provides that a 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
burning of the flag or flags occurs within one week before or after,
Memorial Day, Flag Day, or Independence Day.
Existing California 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)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) �
8344.5)
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.
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(HSC � 41806)
Existing Federal law:
1.Outlines the role of flag of the United States of America. (Title 4
of the United States Code
(4 USC) Chapter 1)
2.Establishes criteria for respect for the flag, and provides that no
disrespect should be shown to the flag of the United States of
America; and prohibits certain practices, as specified, which
demonstrate disrespect. (4 USC � 8)
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. (4 USC � 8 (k))
This bill:
1)Provides that a crematory regulated by the Bureau may also cremate
one or more American flags, under the following conditions:
a) Cremation of the flag or flags occurs in accordance with
federal law, specified in Item # 3), above.
b) Cremation of the flag or flags occurs within one week before
or after any of the following:
i) Memorial Day (last Monday in May)
ii) Flag Day (June 14)
iii) Independence Day (July 4)
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)Contains an urgency clause.
FISCAL EFFECT: Unknown. This bill has been keyed "fiscal" by
Legislative Counsel.
COMMENTS:
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1. Purpose. This bill is sponsored by the Author . According to the
Author the 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 states that SB 1197 creates legal statute that authorizes
crematories to burn worn or soiled American flags for the purpose
of flag disposal. Essentially, it indicates that ceremonies in
which flags can be burned can involve the use of a crematory three
times a year.
2.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.
3.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 craft
strict procedural rules to clearly define the responsibilities of
crematory operators and guard against the mishandling of human
remains. The Cremation Standards Act established the provision
currently in 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.
4.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
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are swept and placed into a container and then placed 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 � 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 Section 8344; (k) A
photocopy of the disposition permit filed in connection with the
disposition.
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.
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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 (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. 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.
The issues discussed above underscore the necessity of exercising
extreme caution in considering changes to crematory practices. Even
those changes proposed by this bill.
5.Related Legislation. 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, made 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; prohibit a
crematory from accepting human remains unless certain requirements
are met
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.
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.
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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.
6.Arguments in Support. Writing in support of the bill California
Funeral Directors Association (CFDA) states: "We strongly support
the veterans groups who consciously handle with discipline and
dignity the disposition of worn American Flags. SB 1197, simple in
its approach and limited in its scope, allows the American Flags to
be burned on certain dates in a crematorium. This allows for
disposition of the flag in a manner that is respectful."
American GI Forum of California supports this bill stating: "As
veterans, we join them and their families in support to provide a
clan, respectful and dignified manner of disposing of an American
flag when it is no longer fitting for display."
American Legion Riders Department of California indicates that the
bill's proposed change in the law will allow veterans organizations
to escort retired flags to a crematory to for the bulk burn of all
retired flags at least once a year.
7.Recommended Amendments.
a) In addition to cremating human remains, the bill authorizes a
crematory to also cremate an American flag or flags. However,
the bill does not distinctly clarify that the cremation of flags
are to be separate from the cremation of human remains.
Committee staff recommends that the bill be amended to clarify
that the cremation of American flags or a flag at a crematory is
to be done separate than the cremation of human remains.
On page 2, between lines 16 and 17 insert: "(A) The cremation
of the flag or flags is carried out separate from the cremation
of human remains as provided in subdivision (a)."
b) The latest amendments narrow the bill to permit the
incineration of flags the week before or after Memorial Day, Flag
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Day, and Independence Day. In order to more fully track the
cremation of flags under this bill, Committee staff recommends
the following amendment which requires the crematory to record
specified information in a log, subject to inspection by the
Bureau. As discussed above, crematories must maintain a log for
10 years in which is recorded similar information the track the
cremation process for each human body cremated by the crematory.
Section 8344.7 is added to the Health and Safety Code to read:
� 8344.7. A crematory that cremates an American flag or flags
pursuant to Section 8344.5 shall maintain on its premises an
accurate record of all cremations of American flags performed
as specified in Section 8344.5, including all of the following
information:
(1) Name of the organization, or person requesting cremation
of the flags
(2) Date of cremation of the American flags.
(3) Name of cremation chamber operator.
(4) Time and date that the flags were inserted in the
cremation chamber.
(5) Time and date that flags were removed from the cremation
chamber.
(6) The weight of the ashes of the flags after being removed
from the cremation chamber
(7) The disposition of the ashes of the cremated flags.
This information shall be maintained for at least 10 years
after the American flags are cremated and shall be subject to
inspection by the Cemetery and Funeral Bureau.
SUPPORT AND OPPOSITION:
Support:
American GI Forum of California
California Funeral Directors Association (CFDA)
American Legion Riders Department of California
Opposition:
None received as of June 27, 2012
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Consultant:G. V. Ayers