January 2009, No. 14
Richard D. Fishman, Director
Chester Butkiewicz, Assistant Director
We at the Division have been truly blessed by the addition of two field accountants to our staff. Alicia Young serves our Albany region and will be working her way down into New York City. Our second accountant is Rosemary Ballaro who is assigned to our Buffalo office. Both Alicia and Rosemary come to us from the Department of Labor, their loss, our gain. In the short time they have been with us, they have demonstrated an ability and an interest that will truly help our cemeteries. Welcome aboard.
This newsletter contains a number of situations which have confronted the staff this year. In some cases, they are common sense issues, but others require a re-reading of the Cemetery law and the various regulations. Please feel free to contact your regional office for more information. Both cemeteries and customers have rights and obligations. Be sure that whatever you do, it is clearly communicated, especially in writing. Verbal agreements are not worth the paper they are not written on.
Be well and enjoy the holiday season.
Brief Hints & Reminders:
A. Make good use of your land. If there are irregular areas that will not allow for full interments, consider laying out an area with smaller graves specifically designed for cremations.
B. Explore fund raising activities, excluding games of chance.
C. Have an interested person write an historical article for publication about your cemetery. Include the fact that the cemetery is organized as a Not- for- Profit Cemetery Corporation and is dependent on volunteers (lot owners) for service on the Board of Directors and in the cemetery for cleanup; and, if applicable, ask for donations.
D. Have a cross reference system for interments. Keep your map up- to-date but use some type of index card or notebook sheet to keep pertinent information about the lot owner. Diagram the lot on the back to keep track showing the interments and type of monuments that are on the lot. Include the type of outer container used.
E. If you watch the Cemetery Board meetings on the WEB, audio is clearer with speakers or a headset.
F. Reports submitted by Certified Public Accountants (CPA) will only be accepted if the CPA signing the report is registered with the NYS Department of Education. If the report is submitted under the name of an accounting firm, then the firm must also be registered with the NYS Department of Education and with the NYS Department of State, Division of Corporations.
G. Your cemetery board members must not place themselves in a situation of self-dealing. It is incumbent upon the cemetery to seek bids with explanations and examples to choose from. This is in the best interest of the cemetery and the lot owners.
H. Pre-Need Sales - Reminder that the NYS Cemetery Board has issued a policy that requires 100% of ALL pre-need services be put into escrow. At the time the services are provided, cemeteries are required to charge and collect the current rate approved by the NYS Cemetery Board.
Sales Tax: Recently, several cemeteries have received a post card indicating certain exempt organizations are required to collect sales tax on additional sales of property and services. NYS Tax Law Section 1115 describes property and services that are exempt from sales and use taxes. Generally, receipts from the sale of funeral related goods and services are exempt from sales and use taxes. Further, per Section 1502(e) of the N-PCL (Cemetery Law), the sale of lots and plots is NOT a sale of property or real estate, but rather it is the sale of the right of burial.
Lot Transfers: - If a lot owner wishes to sell or donate their lot, they must first offer it back to you, the cemetery, at the original price paid plus 4% simple interest per annum. If you do not wish to repurchase the lot, issue a letter stating you are not interested in repurchasing and they are free to sell the lot on the open market, but must complete the Division’s “Application to Transfer Cemetery Property” after they find a buyer. If the cemetery buys the lot back, the Division has no involvement.
Rules & Regulations: The law requires all cemeteries to adopt reasonable rules and regulations. These rules (not By-Laws) must be approved by this division before they can be effective. Approved rules and regulations must be posted in a prominent place, available upon request, and given to all lot owners. Rules must be enforced equally for all lot owners. Your rules should list the number of interments and what type (full, cremation and infant) you will allow on each grave and they should have information relevant to plantings.
Plantings: If you allow lot owners to put in their own plantings, you should have a signed agreement which outlines the responsibilities of the cemetery and the lot owner. The main issue is maintenance of the plantings; if they are not maintained by the lot owner, the cemetery should be paid to maintain them or the overgrown plantings could be removed for lack of payment. Again, this needs to be spelled out in a written contract between the low owner and the cemetery and these written agreements must be kept in the cemetery’s records, with a copy being given the lot owner. No written agreement, no agreement.
Service Charges & Lot Prices: A service charge is a fee assessed by the cemetery for any service (grave opening, foundations, etc.) and must be approved by the NYS Cemetery Board. Lot prices do not require our approval, but must be filed with this office each time there is an increase.
Winter Burials: No cemetery is allowed to close for the winter and burials must be made in the winter weather permitting. An additional charge may be made for snow removal or penetration of frost based on the actual additional charge to the cemetery.
Authorization to Disinter: During the course of operating a cemetery it is likely, if not inevitable, that a lot owner will request to have the body of a loved one disinterred. It is important that the cemetery understand their legal responsibilities when it comes to disinterment.
Section 1510(e) of the N-PCL states that a body can be removed from a grave with the written consent of the owners of the lot, surviving spouse, children of the deceased, and parents of the deceased. In addition to these people, the cemetery corporation must consent. If any one of the above mentioned entities fails to give consent, then a court order must be obtained before the disinterment can take place. These authorizations are all that is required if the body is to be re-interred within the same cemetery.
If the body is to be moved to a different cemetery, the same authorizations must be received; however, the process must be handled by a licensed funeral director. The funeral director must obtain a permit from the registrar of vital statistics having jurisdiction at the place of disinterment
Family members will often ask to be present at the time of the disinterment; this is strongly discouraged. Suggest that they send a clergy person or a funeral director to witness the disinterment for them. If they still insist on being present, have them sign a release that clearly explains that the disinterment process is likely to be difficult to observe and the cemetery will be held harmless for any emotional distress caused by the viewing of the disinterment..
Any time you have a question on disinterment procedures, contact your regional investigator or the Albany office of the Division for assistance.
Closing Graves in a Timely Manner: While there is no legally specified time when a grave must be backfilled, the NYS Cemetery Board does require this part of the burial service to be provided with reasonable dispatch. It is important to remember that once you have accepted the remains for interment, you have accepted the responsibility to perform a proper interment of those remains, including the closing of the grave. If unforeseen circumstances prevent the immediate closing, the grave must be covered with plywood to prevent a hazardous condition. In light of the changing conditions in cemeteries where vandals seem to be emboldened and law suits are prevalent, additional precautions need to be taken. Consider the following remedies if something occurs that prevents you from closing the grave at the time of interment: 1) (Disclosure) Advise the family that the grave cannot be filled at this time and will be covered with plywood overnight and closed the following day; 2) Offer storage in receiving vault at no additional charge; 3) Have the funeral director make storage arrangements and complete the proper paperwork. BETTER YET, do not accept the interment if the entire procedure cannot be done immediately.
Technical Bulletin: Source Document: 19 NYCRR 1221 - Building Code of New York State (BCNYS) - Topic: Mausoleums
“This document is to clarify the occupancy classification of a mausoleum. A mausoleum is not specifically classified in the Building Code of New York State (BCNYS). A mausoleum which does not have an assembly space is classified as a Group U occupancy classification. A mausoleum is not occupied by living persons. BCNYS Chapter 29, does NOT require toilet rooms for a U occupancy building nor does Chapter 9 require an automatic sprinkler system. However, situations may arise where a mausoleum building includes assembly space such as a chapel. In this case, the building would be classified as an A-3 occupancy classification. BCNYS Section 903.2.1.3 may require an automatic sprinkler system based on the fire area of the building or the number of occupants in the assembly space. Additionally, Section 2902.1, requires the minimum number of plumbing facilities based on the number of occupants in the assembly space.” Ronald F. Piester, AIA, Director, Division of Code Enforcement and Administration - Dated: September 11, 2008