STATE OF NEW YORK ________________________________________________________________________ 1823 2023-2024 Regular Sessions IN ASSEMBLY January 23, 2023 ___________ Introduced by M. of A. COLTON, LAVINE, GUNTHER, DAVILA, BRABENEC, ANGEL- INO, MORINELLO -- Multi-Sponsored by -- M. of A. BRAUNSTEIN, RA -- read once and referred to the Committee on Veterans' 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: 1 Section 1. The general business law is amended by adding a new 2 section 450-b to read as follows: 3 § 450-b. Unauthorized sale of veteran's commemorative property that 4 has been placed in a cemetery. 1. For the purposes of this section, the 5 following terms have the following meanings: 6 (a) "Board" means the cemetery board created pursuant to section 7 fifteen hundred four of the not-for-profit corporation law. 8 (b) "Cemetery" means any real or personal property used or maintained 9 as a cemetery, mausoleum, columbarium, lot, plot, grave, burial place, 10 niche, crypt, vault, or other place of interment or temporary storage of 11 human remains or cremated human remains, including but not limited to 12 any cemetery, mausoleum, columbarium, lot, plot, grave, burial place, 13 niche, crypt, vault, or other place of interment or temporary storage of 14 human remains or cremated human remains which is owned or controlled by 15 any unincorporated association, public cemetery corporation, family 16 cemetery corporation, private cemetery corporation, religious corpo- 17 ration or municipal corporation, or which is abandoned or not controlled 18 by any existing board or body. 19 (c) "Veteran" means a deceased person who: 20 (1)(A) served in the active military or naval service of the United 21 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. LBD03731-01-3A. 1823 2 1 (B) served in active duty in a force of any organized state militia 2 (not including the inactive national guard and not including the New 3 York guard when in an inactive status) in a full time status; and 4 (2) was released from such service otherwise than by dishonorable 5 discharge or was furloughed to the reserve. 6 (d) "Veteran's commemorative property" means any monument, headstone, 7 marker, memorial, plaque, statue, vase, urn, decoration, flag holder, 8 badge, shield, item of memorabilia or other embellishment, that: 9 (1) is over seventy-five years old; 10 (2) identifies or commemorates any veteran or group of veterans, 11 including but not limited to any veterans' organization or any military 12 unit, company, battalion, or division; and 13 (3) has been placed in any cemetery. 14 2. Except as otherwise provided in subdivision three of this section, 15 it shall be unlawful for any person, firm, association, partnership, 16 limited partnership, limited liability company, corporation or other 17 entity to engage in the purchase, sale or transfer of any veteran's 18 commemorative property. A violation of the provisions of this subdivi- 19 sion shall constitute a class B misdemeanor as defined in the penal law. 20 3. (a) Any unincorporated association, public cemetery corporation, 21 family cemetery corporation, private cemetery corporation, religious 22 corporation or municipal corporation that owns or controls a cemetery 23 where any veteran's commemorative property has been placed may petition 24 the board for permission to sell, trade or transfer all or any part of 25 such veteran's commemorative property. The criteria for approving such 26 sale, trade or transfer of such veteran's commemorative property are as 27 follows: 28 (1) such veteran's commemorative property is at reasonable risk of 29 physically deteriorating so that it will become unrecognizable as iden- 30 tifying or commemorating the veteran or group of veterans originally 31 identified or commemorated thereby; 32 (2) such veteran's commemorative property is proposed to be sold, 33 traded or transferred to a suitable person, firm, association, partner- 34 ship, limited partnership, limited liability company, corporation or 35 other entity that will preserve the current condition of such veteran's 36 commemorative property and place such veteran's commemorative property 37 in a suitable place that will commemorate such veteran or group of 38 veterans; 39 (3) the petitioner needs to sell, trade or transfer such veteran's 40 commemorative property to ensure that sufficient funds are available to 41 suitably maintain the cemetery where such veteran's commemorative prop- 42 erty was placed, and the specific lot, plot, grave, burial place, niche, 43 crypt or other place of interment of such veteran or group of veterans, 44 so that such places will retain the respect that such hallowed places 45 deserve; 46 (4) the veteran's commemorative property that is to be sold, traded or 47 transferred shall be replaced at its original site by a fitting replace- 48 ment commemorative property, monument or marker that appropriately iden- 49 tifies and commemorates such veteran or group of veterans; 50 (5) if the veteran's commemorative property to be sold, traded or 51 transferred is reasonably known to the petitioner to have been donated 52 to the petitioner by any veterans' organization, including but not 53 limited to the Grand Army of the Republic, the Sons of Union Veterans of 54 the Civil War, the Sons of Confederate Veterans, the Veterans of Foreign 55 Wars, the Disabled American Veterans, the United Spanish War Veterans, 56 the Jewish War Veterans of the United States, Inc., the Catholic WarA. 1823 3 1 Veterans, Inc., the American Legion, AMVETS, the American Veterans of 2 World War II, the Italian American War Veterans of the United States 3 Incorporated, the Masonic War Veterans of the State of New York, Incor- 4 porated, the Society of the Cincinnati, or any other corporation or 5 association of veterans, that such sale, trade or transfer shall have 6 been consented to by such veterans' organization; and 7 (6) if the petitioner is not the owner of the veteran's commemorative 8 property that is to be sold, traded or transferred, that the petitioner 9 is authorized by the owner of such veteran's commemorative property or 10 by operation of law, other than this section, to sell, trade or transfer 11 such veteran's commemorative property and to retain and use the proceeds 12 of such sale, trade or transfer. 13 (b) A petition under paragraph (a) of this subdivision shall be deliv- 14 ered to the division of cemeteries within the department of state. Upon 15 the delivery of any such petition to the division of cemeteries, either 16 the board or the division of cemeteries shall fix a date, time and place 17 of the hearing. The date fixed for such hearing shall be within a 18 reasonable time, not to exceed one hundred days, after the petition is 19 received by the division of cemeteries. 20 (c) The petitioner shall serve notice of the hearing and a copy of the 21 petition upon the persons and entities mentioned in subparagraphs two, 22 three, four, five, six and seven of paragraph (d) of this subdivision 23 who could reasonably be ascertained and contacted by the petitioner and 24 upon such other person or persons as may be directed by the board or the 25 division of cemeteries. Service of the notice of hearing and petition 26 shall be made in such manner and by such date as shall be specified by 27 the board or the division of cemeteries. 28 (d) At such hearing, the following persons and entities, or their 29 representatives, may be heard: 30 (1) the petitioner, 31 (2) any person or entity, other than the petitioner, who is the owner 32 of the veteran's commemorative property in question, 33 (3) any veteran's organization that donated the veteran's commemora- 34 tive property in question to the petitioner, 35 (4) the family of each veteran at whose lot, plot, grave, burial 36 place, niche, crypt or other place of interment the veteran's commemora- 37 tive property in question is or was placed, 38 (5) the division of veterans' affairs, 39 (6) the division of military and naval affairs, 40 (7) the office of parks, recreation and historic preservation, and 41 (8) any other member of the public who would like to offer written or 42 oral testimony. Testimony may be heard in person or by counsel or 43 submitted in writing. 44 (e) The board shall render its decision in writing, within sixty days 45 of the hearing, and shall forward a copy thereof to each person who 46 appeared at the hearing. Any order or determination of the board shall 47 be subject to judicial review pursuant to paragraph (d) of section 48 fifteen hundred four of the not-for-profit corporation law. Any order or 49 determination of the board granting the petition in whole or in part 50 may, at the discretion of the board, specify the manner in which the 51 petitioner is to use or apply the proceeds of the sale, trade or trans- 52 fer. In particular, but not by way of limitation, if the petitioner is 53 an unincorporated association or corporation that is subject to the 54 provisions of article fifteen of the not-for-profit corporation law, any 55 order or determination of the board granting the petition in whole or in 56 part may, at the discretion of the board, specify that petitioner depos-A. 1823 4 1 it the proceeds of the sale, trade or transfer in the permanent mainte- 2 nance fund maintained by petitioner pursuant to paragraph (a) of section 3 fifteen hundred seven of the not-for-profit corporation law. 4 (f) The board shall adopt such regulations regarding petitions, hear- 5 ings and procedures under this subdivision as may be appropriate. 6 § 2. Section 450-a of the general business law, as added by chapter 7 478 of the laws of 1979, is amended to read as follows: 8 § 450-a. Unauthorized sale of cemetery markers and flag holders. 9 Except for a veterans' organization, those businesses which normally 10 carry on such trade, or are authorized by veterans' organizations to do 11 so, it shall be unlawful for any person, firm, association or corpo- 12 ration to engage in the buying or selling of metal cemetery markers and 13 flag holders bearing the insignia of any veterans' organization placed 14 upon the graves of veterans. A violation of the provisions of this 15 section shall constitute a violation and shall be punishable by a fine 16 of not more than five hundred dollars or not more than fifteen days 17 imprisonment or both. Nothing in this section shall prohibit the sale, 18 trade or transfer of any metal cemetery marker or flag holder bearing 19 the insignia of any veterans' organization if such metal cemetery marker 20 or flag holder is veteran's commemorative property, as defined in 21 section four hundred fifty-b of this article, and such sale, trade or 22 transfer shall have been authorized by the cemetery board in accordance 23 with the provisions of such section. 24 § 3. This act shall take effect on the one hundred eightieth day after 25 it shall have become a law; provided, however, that the cemetery board 26 of the division of cemeteries of the department of state may promulgate 27 rules and regulations prior to such effective date to implement the 28 provisions of this act on such date.