S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   769

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            January 15, 2009
                               ___________

Introduced  by  Sen.  LARKIN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Veterans, Homeland Securi-
  ty and Military Affairs

AN ACT to amend the general business law, in relation to  the  unauthor-
  ized  sale of veterans' commemorative property that has been placed in
  a cemetery and the unauthorized sale of cemetery markers and flaghold-
  ers

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.    The  general  business  law  is amended by adding a new
section 450-b to read as follows:
  S 450-B. UNAUTHORIZED SALE OF VETERAN'S  COMMEMORATIVE  PROPERTY  THAT
HAS  BEEN PLACED IN A CEMETERY. 1. FOR THE PURPOSES OF THIS SECTION, THE
FOLLOWING TERMS HAVE THE FOLLOWING MEANINGS:
  (A) "BOARD" MEANS THE  CEMETERY  BOARD  CREATED  PURSUANT  TO  SECTION
FIFTEEN HUNDRED FOUR OF THE NOT-FOR-PROFIT CORPORATION LAW.
  (B)  "CEMETERY" MEANS ANY REAL OR PERSONAL PROPERTY USED OR MAINTAINED
AS A CEMETERY, MAUSOLEUM, COLUMBARIUM, LOT, PLOT, GRAVE,  BURIAL  PLACE,
NICHE, CRYPT, VAULT, OR OTHER PLACE OF INTERMENT OR TEMPORARY STORAGE OF
HUMAN  REMAINS  OR  CREMATED HUMAN REMAINS, INCLUDING BUT NOT LIMITED TO
ANY CEMETERY, MAUSOLEUM, COLUMBARIUM, LOT, PLOT,  GRAVE,  BURIAL  PLACE,
NICHE, CRYPT, VAULT, OR OTHER PLACE OF INTERMENT OR TEMPORARY STORAGE OF
HUMAN  REMAINS OR CREMATED HUMAN REMAINS WHICH IS OWNED OR CONTROLLED BY
ANY UNINCORPORATED  ASSOCIATION,  PUBLIC  CEMETERY  CORPORATION,  FAMILY
CEMETERY  CORPORATION,  PRIVATE  CEMETERY  CORPORATION, RELIGIOUS CORPO-
RATION OR MUNICIPAL CORPORATION, OR WHICH IS ABANDONED OR NOT CONTROLLED
BY ANY EXISTING BOARD OR BODY.
  (C) "VETERAN" MEANS A DECEASED PERSON WHO:
  (1)(A) SERVED IN THE ACTIVE MILITARY OR NAVAL SERVICE  OF  THE  UNITED
STATES DURING A WAR IN WHICH THE UNITED STATES ENGAGED; OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04200-01-9

              

S. 769                              2

  (B)  SERVED  IN  ACTIVE DUTY IN A FORCE OF ANY ORGANIZED STATE MILITIA
(NOT INCLUDING THE INACTIVE NATIONAL GUARD AND  NOT  INCLUDING  THE  NEW
YORK GUARD WHEN IN AN INACTIVE STATUS) IN A FULL TIME STATUS; AND
  (2)  WAS  RELEASED  FROM  SUCH  SERVICE OTHERWISE THAN BY DISHONORABLE
DISCHARGE OR WAS FURLOUGHED TO THE RESERVE.
  (D) "VETERAN'S COMMEMORATIVE PROPERTY" MEANS ANY MONUMENT,  HEADSTONE,
MARKER,  MEMORIAL,  PLAQUE,  STATUE, VASE, URN, DECORATION, FLAG HOLDER,
BADGE, SHIELD, ITEM OF MEMORABILIA OR OTHER EMBELLISHMENT, THAT:
  (1) IS OVER SEVENTY-FIVE YEARS OLD;
  (2) 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; AND
  (3) HAS BEEN PLACED IN ANY CEMETERY.
  2. EXCEPT AS OTHERWISE PROVIDED IN SUBDIVISION THREE OF THIS  SECTION,
IT  SHALL  BE  UNLAWFUL  FOR ANY PERSON, FIRM, ASSOCIATION, PARTNERSHIP,
LIMITED PARTNERSHIP, LIMITED LIABILITY  COMPANY,  CORPORATION  OR  OTHER
ENTITY  TO  ENGAGE  IN  THE  PURCHASE, SALE OR TRANSFER OF ANY VETERAN'S
COMMEMORATIVE PROPERTY. A VIOLATION OF THE PROVISIONS OF  THIS  SUBDIVI-
SION SHALL CONSTITUTE A CLASS B MISDEMEANOR AS DEFINED IN THE PENAL LAW.
  3.  (A)  ANY  UNINCORPORATED ASSOCIATION, PUBLIC CEMETERY CORPORATION,
FAMILY CEMETERY CORPORATION,  PRIVATE  CEMETERY  CORPORATION,  RELIGIOUS
CORPORATION  OR  MUNICIPAL  CORPORATION THAT OWNS OR CONTROLS A CEMETERY
WHERE ANY VETERAN'S COMMEMORATIVE PROPERTY HAS BEEN PLACED MAY  PETITION
THE  BOARD  FOR PERMISSION TO SELL, TRADE OR TRANSFER ALL OR ANY PART OF
SUCH VETERAN'S COMMEMORATIVE PROPERTY. THE CRITERIA FOR  APPROVING  SUCH
SALE,  TRADE OR TRANSFER OF SUCH VETERAN'S COMMEMORATIVE PROPERTY ARE AS
FOLLOWS:
  (1) SUCH VETERAN'S COMMEMORATIVE PROPERTY IS  AT  REASONABLE  RISK  OF
PHYSICALLY  DETERIORATING SO THAT IT WILL BECOME UNRECOGNIZABLE AS IDEN-
TIFYING OR COMMEMORATING THE VETERAN OR  GROUP  OF  VETERANS  ORIGINALLY
IDENTIFIED OR COMMEMORATED THEREBY;
  (2)  SUCH  VETERAN'S  COMMEMORATIVE  PROPERTY  IS PROPOSED TO BE SOLD,
TRADED OR TRANSFERRED TO A SUITABLE PERSON, FIRM, ASSOCIATION,  PARTNER-
SHIP,  LIMITED  PARTNERSHIP,  LIMITED  LIABILITY COMPANY, CORPORATION OR
OTHER ENTITY THAT WILL PRESERVE THE CURRENT CONDITION OF SUCH  VETERAN'S
COMMEMORATIVE  PROPERTY  AND PLACE SUCH VETERAN'S COMMEMORATIVE PROPERTY
IN A SUITABLE PLACE THAT WILL  COMMEMORATE  SUCH  VETERAN  OR  GROUP  OF
VETERANS;
  (3)  THE  PETITIONER  NEEDS  TO SELL, TRADE OR TRANSFER SUCH VETERAN'S
COMMEMORATIVE PROPERTY TO ENSURE THAT SUFFICIENT FUNDS ARE AVAILABLE  TO
SUITABLY  MAINTAIN THE CEMETERY WHERE SUCH VETERAN'S COMMEMORATIVE PROP-
ERTY WAS PLACED, AND THE SPECIFIC LOT, PLOT, GRAVE, BURIAL PLACE, NICHE,
CRYPT OR OTHER PLACE OF INTERMENT OF SUCH VETERAN OR GROUP OF  VETERANS,
SO  THAT  SUCH  PLACES WILL RETAIN THE RESPECT THAT SUCH HALLOWED PLACES
DESERVE;
  (4) THE VETERAN'S COMMEMORATIVE PROPERTY THAT IS TO BE SOLD, TRADED OR
TRANSFERRED SHALL BE REPLACED AT ITS ORIGINAL SITE BY A FITTING REPLACE-
MENT COMMEMORATIVE PROPERTY, MONUMENT OR MARKER THAT APPROPRIATELY IDEN-
TIFIES AND COMMEMORATES SUCH VETERAN OR GROUP OF VETERANS;
  (5) IF THE VETERAN'S COMMEMORATIVE PROPERTY  TO  BE  SOLD,  TRADED  OR
TRANSFERRED  IS  REASONABLY KNOWN TO THE PETITIONER TO HAVE BEEN DONATED
TO THE PETITIONER BY  ANY  VETERANS'  ORGANIZATION,  INCLUDING  BUT  NOT
LIMITED TO THE GRAND ARMY OF THE REPUBLIC, THE SONS OF UNION VETERANS OF
THE CIVIL WAR, THE SONS OF CONFEDERATE VETERANS, THE VETERANS OF FOREIGN
WARS,  THE  DISABLED AMERICAN VETERANS, THE UNITED SPANISH WAR VETERANS,
THE JEWISH WAR VETERANS OF THE UNITED STATES,  INC.,  THE  CATHOLIC  WAR

S. 769                              3

VETERANS,  INC.,  THE  AMERICAN LEGION, AMVETS, THE AMERICAN VETERANS OF
WORLD WAR II, THE ITALIAN AMERICAN WAR VETERANS  OF  THE  UNITED  STATES
INCORPORATED,  THE MASONIC WAR VETERANS OF THE STATE OF NEW YORK, INCOR-
PORATED,  THE  SOCIETY  OF  THE  CINCINNATI, OR ANY OTHER CORPORATION OR
ASSOCIATION OF VETERANS, THAT SUCH SALE, TRADE OR  TRANSFER  SHALL  HAVE
BEEN CONSENTED TO BY SUCH VETERANS' ORGANIZATION; AND
  (6)  IF THE PETITIONER IS NOT THE OWNER OF THE VETERAN'S COMMEMORATIVE
PROPERTY THAT IS TO BE SOLD, TRADED OR TRANSFERRED, THAT THE  PETITIONER
IS  AUTHORIZED  BY THE OWNER OF SUCH VETERAN'S COMMEMORATIVE PROPERTY OR
BY OPERATION OF LAW, OTHER THAN THIS SECTION, TO SELL, TRADE OR TRANSFER
SUCH VETERAN'S COMMEMORATIVE PROPERTY AND TO RETAIN AND USE THE PROCEEDS
OF SUCH SALE, TRADE OR TRANSFER.
  (B) A PETITION UNDER PARAGRAPH (A) OF THIS SUBDIVISION SHALL BE DELIV-
ERED TO THE DIVISION OF CEMETERIES WITHIN THE DEPARTMENT OF STATE.  UPON
THE  DELIVERY OF ANY SUCH PETITION TO THE DIVISION OF CEMETERIES, EITHER
THE BOARD OR THE DIVISION OF CEMETERIES SHALL FIX A DATE, TIME AND PLACE
OF THE HEARING. THE DATE FIXED  FOR  SUCH  HEARING  SHALL  BE  WITHIN  A
REASONABLE  TIME,  NOT TO EXCEED ONE HUNDRED DAYS, AFTER THE PETITION IS
RECEIVED BY THE DIVISION OF CEMETERIES.
  (C) THE PETITIONER SHALL SERVE NOTICE OF THE HEARING AND A COPY OF THE
PETITION UPON THE PERSONS AND ENTITIES MENTIONED IN  SUBPARAGRAPHS  TWO,
THREE,  FOUR,  FIVE,  SIX AND SEVEN OF PARAGRAPH (D) OF THIS SUBDIVISION
WHO COULD REASONABLY BE ASCERTAINED AND CONTACTED BY THE PETITIONER  AND
UPON SUCH OTHER PERSON OR PERSONS AS MAY BE DIRECTED BY THE BOARD OR THE
DIVISION  OF  CEMETERIES.  SERVICE OF THE NOTICE OF HEARING AND PETITION
SHALL BE MADE IN SUCH MANNER AND BY SUCH DATE AS SHALL BE  SPECIFIED  BY
THE BOARD OR THE DIVISION OF CEMETERIES.
  (D)  AT  SUCH  HEARING,  THE  FOLLOWING PERSONS AND ENTITIES, OR THEIR
REPRESENTATIVES, MAY BE HEARD:
  (1) THE PETITIONER,
  (2) ANY PERSON OR ENTITY, OTHER THAN THE PETITIONER, WHO IS THE  OWNER
OF THE VETERAN'S COMMEMORATIVE PROPERTY IN QUESTION,
  (3)  ANY  VETERAN'S ORGANIZATION THAT DONATED THE VETERAN'S COMMEMORA-
TIVE PROPERTY IN QUESTION TO THE PETITIONER,
  (4) THE FAMILY OF EACH VETERAN  AT  WHOSE  LOT,  PLOT,  GRAVE,  BURIAL
PLACE, NICHE, CRYPT OR OTHER PLACE OF INTERMENT THE VETERAN'S COMMEMORA-
TIVE PROPERTY IN QUESTION IS OR WAS PLACED,
  (5) THE DIVISION OF VETERANS' AFFAIRS,
  (6) THE DIVISION OF MILITARY AND NAVAL AFFAIRS,
  (7) THE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION, AND
  (8)  ANY OTHER MEMBER OF THE PUBLIC WHO WOULD LIKE TO OFFER WRITTEN OR
ORAL TESTIMONY. TESTIMONY MAY BE  HEARD  IN  PERSON  OR  BY  COUNSEL  OR
SUBMITTED IN WRITING.
  (E)  THE BOARD SHALL RENDER ITS DECISION IN WRITING, WITHIN SIXTY DAYS
OF THE HEARING, AND SHALL FORWARD A COPY  THEREOF  TO  EACH  PERSON  WHO
APPEARED  AT  THE HEARING. ANY ORDER OR DETERMINATION OF THE BOARD SHALL
BE SUBJECT TO JUDICIAL REVIEW  PURSUANT  TO  PARAGRAPH  (D)  OF  SECTION
FIFTEEN HUNDRED FOUR OF THE NOT-FOR-PROFIT CORPORATION LAW. ANY ORDER OR
DETERMINATION  OF  THE  BOARD  GRANTING THE PETITION IN WHOLE OR IN PART
MAY, AT THE DISCRETION OF THE BOARD, SPECIFY THE  MANNER  IN  WHICH  THE
PETITIONER  IS TO USE OR APPLY THE PROCEEDS OF THE SALE, TRADE OR TRANS-
FER. IN PARTICULAR, BUT NOT BY WAY OF LIMITATION, IF THE  PETITIONER  IS
AN  UNINCORPORATED  ASSOCIATION  OR  CORPORATION  THAT IS SUBJECT TO THE
PROVISIONS OF ARTICLE FIFTEEN OF THE NOT-FOR-PROFIT CORPORATION LAW, ANY
ORDER OR DETERMINATION OF THE BOARD GRANTING THE PETITION IN WHOLE OR IN
PART MAY, AT THE DISCRETION OF THE BOARD, SPECIFY THAT PETITIONER DEPOS-

S. 769                              4

IT THE PROCEEDS OF THE SALE, TRADE OR TRANSFER IN THE PERMANENT  MAINTE-
NANCE FUND MAINTAINED BY PETITIONER PURSUANT TO PARAGRAPH (A) OF SECTION
FIFTEEN HUNDRED SEVEN OF THE NOT-FOR-PROFIT CORPORATION LAW.
  (F)  THE BOARD SHALL ADOPT SUCH REGULATIONS REGARDING PETITIONS, HEAR-
INGS AND PROCEDURES UNDER THIS SUBDIVISION AS MAY BE APPROPRIATE.
  S 2. Section 450-a of the general business law, as  added  by  chapter
478 of the laws of 1979, is amended to read as follows:
  S  450-a.  Unauthorized  sale  of  cemetery  markers and flag holders.
Except for a veterans' organization,  those  businesses  which  normally
carry  on such trade, or are authorized by veterans' organizations to do
so, it shall be unlawful for any person,  firm,  association  or  corpo-
ration  to engage in the buying or selling of metal cemetery markers and
flag holders bearing the insignia of any veterans'  organization  placed
upon  the  graves  of  veterans.  A  violation of the provisions of this
section shall constitute a violation and shall be punishable by  a  fine
of  not  more  than  five  hundred dollars or not more than fifteen days
imprisonment or both.  NOTHING IN THIS SECTION SHALL PROHIBIT THE  SALE,
TRADE  OR  TRANSFER  OF ANY METAL CEMETERY MARKER OR FLAG HOLDER BEARING
THE INSIGNIA OF ANY VETERANS' ORGANIZATION IF SUCH METAL CEMETERY MARKER
OR FLAG HOLDER  IS  VETERAN'S  COMMEMORATIVE  PROPERTY,  AS  DEFINED  IN
SECTION  FOUR  HUNDRED  FIFTY-B OF THIS ARTICLE, AND SUCH SALE, TRADE OR
TRANSFER SHALL HAVE BEEN AUTHORIZED BY THE CEMETERY BOARD IN  ACCORDANCE
WITH THE PROVISIONS OF SUCH SECTION.
  S 3. This act shall take effect on the one hundred eightieth day after
it  shall  have become a law; provided, however, that the cemetery board
in the division of cemeteries in the department of state may  promulgate
rules  and  regulations  prior  to  such effective date to implement the
provisions of this act.