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The Cemetery & Mortuary Association of California
Senate Bill 542 - Final Version
BILL
NUMBER: SB 542
ENROLLED
BILL TEXT
PASSED THE SENATE
SEPTEMBER 13, 2001
PASSED THE ASSEMBLY
SEPTEMBER 12, 2001
AMENDED IN ASSEMBLY
SEPTEMBER 10, 2001
AMENDED IN ASSEMBLY JULY
2, 2001
AMENDED IN SENATE MAY
15, 2001
INTRODUCED BY Senator
Ortiz
FEBRUARY 22, 2001
An
act to amend Sections 7000, 7001, 7002, 7003, 7005, 7007, 7010, 7010.5,
7010.7, 7012, 7013, 7014, 7016, 7021, 7054.6, 7104.1, 7109, 7116, 7200,
8100, 8300, 8571, and 8650 of, to amend the heading of Chapter 1
(commencing with Section 8100) of Part 1 of Division 8 of, to add
Section 8650.5 to, and to repeal Sections 7017, 7054.5, 8113.2, 8301,
8302, 8303, 8304, 8305, 8306, 8307, and 8308 of, the Health and Safety
Code, relating to cemeteries.
LEGISLATIVE COUNSEL'S
DIGEST
SB
542, Ortiz. Cemeteries.
Existing
law regulates the business of cemeteries and defines key terminology
used in the cemetery business.
This
bill would make changes to the definitions used in the cemetery business
in that it clarifies, amends, and eliminates various definitions.
This
bill would combine the statutes, which provided for a cemetery
authority's power to regulate the use, care, control, management,
restriction, and protections of the cemetery land, into one statutory
section and repeal other sections that duplicate the powers of the
cemetery authority.
Under
existing law, if the owner of a cemetery plot transferred to the owner
by deed or certificate of ownership dies without making a disposition of
the plot either in his or her will or by specific devise or by a written
declaration filed and recorded in the office of the cemetery
authority,
the plot becomes inalienable upon the person's death and becomes the
family plot of the owner.
This
bill would provide that if the owner of a family plot dies without
making disposition of the plot, the unoccupied portions of the plot
would pass by the laws of intestate succession upon the owner's death.
This bill would also provide that, on and after January 1, 2002, any
unoccupied portions of a family plot that previously were inalienable
pursuant to the above existing law provision, shall pass by the laws of
intestate succession and shall become alienable. This bill would impose
specific requirements on the seller and the cemetery authority with
respect to the sale, transfer, or donation of any unoccupied portions of
a family plot.
THE
PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION
1. Section 7000 of the Health and Safety Code is amended to read:
7000.
The definitions in this chapter apply to this division, Division 8
(commencing with Section 8100) and Division 102 (commencing with Section
102100) of this code, Chapter 12 (commencing with Section 7600) of
Division 3 of the Business and Professions Code, and Chapter 19
(commencing with Section 9600) of Division 3 of the Business and
Professions Code.
SEC.
2. Section 7001 of the Health and Safety Code is amended to read:
7001.
"Human remains" or "remains" means the body of a
deceased person, regardless of its stage of decomposition, and cremated
remains.
SEC.
3. Section 7002 of the Health and Safety Code is amended to read
7002.
"Cremated remains" means the ashes and bone fragments of a
human body that are left after cremation in a crematory, and includes
ashes from the cremation container. "Cremation remains" does
not include foreign materials, pacemakers, or prostheses.
SEC.
4. Section 7003 of the Health and Safety Code is amended to read:
7003.
"Cemetery" means either of the following:
(a)
Any of the following that is used or intended to be used and dedicated
for cemetery purposes:
(1)
A burial park, for earth interments.
(2)
A mausoleum, for crypt or vault interments.
(3)
A crematory and columbarium, for cinerary interments.
(b)
A place where six or more human bodies are buried.
SEC.
5. Section 7005 of the Health and Safety Code is amended to read:
7005.
Except in Part 5 (commencing with Section 9501) of Division 8,
"mausoleum" means a structure or building for the entombment
of human remains in crypts or vaults in a place used, or intended to be
used, and dedicated, for cemetery purposes.
SEC.
6. Section 7007 of the Health and Safety Code is amended to read:
7007.
Except in Part 5 (commencing with Section 9501) of Division 8,
"columbarium" means a structure, room, or other space in a
building or structure containing niches for inurnment of cremated human
remains in a place used, or intended to be used, and dedicated, for
cemetery purposes.
SEC.
7. Section 7010 of the Health and Safety Code is amended to read:
7010.
"Cremation" means the process by which the following three
steps are taken:
(a)
The reduction of the body of a deceased human to its essential elements
by incineration.
(b)
The repositioning or moving of the body or remains during incineration
to facilitate the process.
(c)
The processing of the remains after removal from the cremation chamber
pursuant to Section 7010.3.
SEC.
8. Section 7010.5 of the Health and Safety Code is amended to read:
7010.5.
"Residue" means human ashes, bone fragments, prostheses, and
disintegrated material from the chamber itself, imbedded in cracks and
uneven spaces of a cremation chamber, that cannot be removed through
reasonable manual contact with sweeping or scraping equipment. Material
left in the cremation chamber, after the completion of a cremation, that
can be reasonably removed shall not be considered "residue."
SEC.
9. Section 7010.7 of the Health and Safety Code is amended to read
7010.7.
"Scattering" means the authorized dispersal of cremated
remains at sea, in other areas of the state, or commingling in a defined
area within a dedicated cemetery, in accordance with this part.
SEC.
10. Section 7012 of the Health and Safety Code is amended to read:
7012.
"Entombment" means the process of placing human remains in a
crypt or vault.
SEC.
11. Section 7013 of the Health and Safety Code is amended to read:
7013.
"Burial" means the process of placing human remains in a
grave.
SEC.
12. Section 7014 of the Health and Safety Code is amended to read:
7014.
"Grave" means a space of earth in a burial park, used, or
intended to be used, for the disposition of human remains.
SEC.
13. Section 7016 of the Health and Safety Code is amended to read:
7016.
"Niche" means a space in a columbarium used, or intended to be
used, for the placement of cremated human remains.
SEC.
14. Section 7017 of the Health and Safety Code is repealed.
SEC.
15. Section 7021 of the Health and Safety Code is amended to read:
7021.
"Directors" or "governing body" means the board of
directors, board of trustees, or other policymaking body of a cemetery
association.
SEC.
16. Section 7054.5 of the Health and Safety Code is repealed.
SEC.
17. Section 7054.6 of the Health and Safety Code is amended to read:
7054.6.
(a) Cremated remains may be removed in a durable container from the
place of cremation or interment and kept in the dwelling owned or
occupied by the person having the right to control disposition of the
remains under Section 7100, or the durable container holding the
cremated remains may be kept in a church or religious shrine, if written
permission of the church or religious shrine is obtained and there is no
conflict with local use permit requirements or zoning laws, if the
removal is under the authority of a permit for disposition granted under
Section 103060. The placement, in any place, of six or more cremated
remains under this section does not constitute the place a cemetery, as
defined in Section 7003.
(b)
Prior to disposition of cremated remains, every licensee or registrant
pursuant to Chapter 12 (commencing with Section 7600) or Chapter 19
(commencing with Section 9600) of Division 3 of the Business and
Professions Code, and the agents and employees of the licensee or
registrant shall do all of the following:
(1)
Remove the cremated remains from the place of cremation in a durable
container.
(2)
Keep the cremated remains in a durable container.
(3)
Store the cremated remains in a place free from exposure to the
elements.
(4)
Responsibly maintain the cremated remains.
SEC.
18. Section 7104.1 of the Health and Safety Code is amended to read:
7104.1.
If, within 30 days after the coroner notifies or diligently attempts to
notify the person responsible for the interment of a decedent's remains
which are in the possession of the coroner, the person fails, refuses,
or neglects to inter the remains, the coroner may inter the remains. The
coroner may recover any expenses of the interment from the responsible
person.
SEC.
19. Section 7109 of the Health and Safety Code is amended to read
7109.
The court shall allow costs and reasonable attorney's fees to a
prevailing plaintiff against all defendants, other than the coroner
SEC.
20. Section 7116 of the Health and Safety Code is amended to read:
7116.
Cremated remains may be scattered in areas where no local prohibition
exists, provided that the cremated remains are not distinguishable to
the public, are not in a container, and that the person who has control
over disposition of the cremated remains has obtained written permission
of the property owner or governing agency to scatter on the property. A
state or local agency may adopt an ordinance, regulation, or policy, as
appropriate, authorizing, consistent with this section, or specifically
prohibiting, the scattering of cremated human remains on lands under the
agency's jurisdiction. The scattering of the cremated remains of more
than one person in one location pursuant to this section shall not
create a cemetery pursuant to Section 7003 or any other provision of
law.
SEC.
21. Section 7200 of the Health and Safety Code is amended to read:
7200.
Every head of a public institution, city or county undertaker, or state,
county, or city officer having charge or control of remains to be
interred at public expense shall use due diligence to notify the
relatives of the decedent. In the absence of any known relative of the
decedent desiring to direct the disposition of the remains in a manner
other than provided in this chapter, and upon written request of the
state department that these notices are required for a definite period
specified in the request, that officer shall notify the state department
immediately after the lapse of twenty-four hours after death, stating,
whenever possible, the name, age, sex, and cause of death of the
decedent.
SEC.
22. The heading of Chapter 1 (commencing with Section 8100) of Part 1 of
Division 8 of the Health and Safety Code is amended to read:
CHAPTER 1. DEFINITIONS
SEC.
23. Section 8100 of the Health and Safety Code is amended to read:
8100.
The definitions set forth in Chapter 1 (commencing with Section 7000) of
Part 1 of Division 7 shall be applicable to this division.
SEC.
24. Section 8113.2 of the Health and Safety Code is repealed.
SEC.
25. Section 8300 of the Health and Safety Code is amended to read
8300.
(a) A cemetery authority may make, adopt, amend, add to, revise, or
modify, and enforce rules and regulations for the use, care, control,
management, restriction and protection of all or any part of its
cemetery and for the other purposes specified in this article.
(b)
The cemetery authority's power includes, but is not limited to, the
following:
(1)
Restricting and limiting the use of all property within its cemetery.
(2)
Regulating the uniformity, class, and kind of all markers, monuments,
and other structures within the cemetery and its subdivisions, but shall
not require, as a condition to the erection of a marker, monument, or
other structure within the cemetery, that the marker, monument, or other
structure be purchased from or through the cemetery authority.
(3)
Prohibiting the erection of monuments, markers, or other structures in
or upon any portion of the cemetery.
(4)
Regulating or prohibiting monuments, effigies, and structures within any
portion of the cemetery and provide for their removal.
(5)
Regulating or preventing the introduction or care of plants or shrubs
within the cemetery.
(6)
Preventing interment in any part of the cemetery of human remains not
entitled to interment and preventing the use of interment plots for
purposes violative of its restrictions or rules and regulations.
(7)
Regulating the conduct of persons and preventing improper assemblages in
the cemetery.
(8)
Making and enforcing rules and regulations for all other purposes deemed
necessary by the cemetery authority for the proper conduct of the
business of the cemetery, for the transfer of any plot or the right of
interment, and the protection and safeguarding of the premises, and the
principles, plans, and ideals on which the cemetery is conducted.
SEC. 26: Section 8301 of
the Health and Safety Code is repealed.
SEC.
27. Section 8302 of the Health and Safety Code is repealed.
SEC. 28. Section 8303 of
the Health and Safety Code is repealed.
SEC. 29. Section 8304 of
the Health and Safety Code is repealed.
SEC. 30. Section 8305 of
the Health and Safety Code is repealed.
SEC. 31. Section 8306 of
the Health and Safety Code is repealed.
SEC. 32. Section 8307 of
the Health and Safety Code is repealed.
SEC. 33. Section 8308 of
the Health and Safety Code is repealed.
SEC.
34. Section 8571 of the Health and Safety Code is amended to read:
8571.
(a) All plots, the use of which has been conveyed by deed or certificate
of ownership as a separate plot, are indivisible except with the consent
of the cemetery authority, or as provided by law.
(b)
A plot, the use of which has been conveyed by deed or certificate of
ownership as a family plot, thereby becomes inalienable and shall be
held as a family plot of the owner.
SEC.
35. Section 8650 of the Health and Safety Code is amended to read:
8650.
(a) Whenever an interment of the remains of a member or of a relative of
a member of the family of the record owner or of the remains of the
record owner is made in a plot transferred by deed or certificate of
ownership to an individual owner, the plot shall become the family plot
of the owner.
(b)
If the owner dies without making disposition of the plot either in his
or her will by a specific devise, or by a written declaration filed and
recorded in the office of the cemetery authority, any unoccupied
portions of the plot shall pass according to the laws of intestate
succession as set forth in Sections 6400 to 6413, inclusive, of the
Probate Code.
(c)
As of January 1, 2002, any unoccupied portions of a family plot that
became inalienable pursuant to this section as it read on December 31,
2001, shall no longer be inalienable and shall pass according to the
laws
of intestate succession as set forth in Sections 6400 to 6413,
inclusive, of the Probate Code. No sale, transfer, or donation of any
unused portion of a family plot made alienable under this subdivision
shall be made unless all persons entitled to interment in the family
plot under Sections 8651 and 8652 are deceased or have expressly waived
in writing the right to be interred in the family plot.
(d)
The seller of a cemetery plot shall notify the buyer that unused
portions of a family plot may pass through intestate succession unless
written disposition is made by the buyer and may be sold, transferred,
or donated by the buyer's heirs. The seller shall notify the buyer of
the effect of a future transfer, sale, or donation of the unused portion
of a family plot on any endowment for care or maintenance of the plot
that the buyer may purchase in conjunction with the purchase of the
cemetery plot.
SEC.
36. Section 8650.5 is added to the Health and Safety Code, to read:
8650.5.
An affidavit executed by a person who is the owner of the plot by virtue
of the laws of intestate succession or by his or her attorney-in-fact,
setting forth the fact of the death of the owner, the absence of a
disposition of the plot by the owner in his or her will by a specific
devise, the name of the person or persons who have rights to the plot
under the intestate succession laws of the state, and the consent of
that person or those persons to the sale of the plot by the cemetery
authority, shall constitute complete authorization to the cemetery
authority to permit any sale of the unoccupied portions of the plot.
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