A.2293, Morelle: In Relation to the Sale of Monuments

Published on June 6th, 2017

Memorandum of Opposition

The above-referenced bill applies to cemeteries organized and operated under the Religious Corporations Law and would prohibit those cemeteries from selling monuments and memorials. The Catholic Conference continues to object to governmental encroachment on the operation of Church-affiliated cemeteries. These cemeteries perform burial services according to the rites and rituals of the Church and, as such, are and should remain outside the purview of governmental intrusion.

The New York State Catholic Conference opposes this legislation.

It is vital for financial stability to allow religious cemeteries to supplement and diversify their revenue sources to ensure perpetual care, maintenance and stability of the cemetery.

Cemeteries across New York are constantly losing income as they fill up the sale of gravesites and interments declines. Unlike non-sectarian cemeteries, Catholic cemeteries must meet their financial obligations, as they are never turned over to the State or local municipality if they fail. Importantly, Catholic cemeteries are responsible for maintaining not only the graves but all memorials and materials that are placed in the cemetery forever.

The legislature as part of this year’s budget decided to make monuments exempt from all sales and use taxes. By doing so in part WW of Chapter 59 of the Laws of 2017 the argument that was the basis for this legislation has been met. There is now a level playing field as monument sellers will no longer have to pay tax on the monuments they sell.

Our religious cemeteries face the same dilemma that the not-for-profit cemeteries are facing. We need to find additional revenue streams in order to ensure that our cemeteries will be maintained for perpetuity, as we can think of no other “business” that has a single source of income, a limited “customer base” and yet is expected to maintain itself forever. Cemeteries across the state need additional resources to prevent them from falling into disrepair and abandonment.

Memorial products have been delivered to our cemeteries for centuries. Dealers that have provided those memorials have come and gone; however, those memorials have remained on our properties. When monuments have become vandalized, unsightly, or toppled the cemeteries are the ones who rectify them.  The cemetery must expend funds to repair such misfortune and it makes strong sense that cemeteries be able to offer the memorials for which they will have perpetual responsibility.

New York is one of only four states that prohibit the sale of monuments by cemeteries. The other 46 states recognize that in addition to providing revenues necessary to maintain the cemetery, an additional outlet provides an important consumer protection by promoting competition. Furthermore, the monument business is completely unregulated except that not-for-profit cemeteries cannot sell monuments. In addition, funeral directors, many of whom partner with monument dealers, or sell on their own, have virtually no experience in designing, selling, or installing memorials.

There is no valid reason to restrict monument sales. The Internal Revenue Service has ruled that “decorating or marking burial sites with monuments … is so closely related to burial purposes that it is necessarily incident to those purposes when the markers or decorations are used solely within that cemetery and profits from their sale do no inure to shareholders” and does not affect the exempt status of the cemetery.

Importantly, this legislation is more restrictive than statutes regulating other cemetery operators. This bill would prohibit the sale of monuments, memorials, gravestones or markers, not including flush bronze markers. The bill is much more restrictive than current statutes for not-for-profit cemeteries, which simply prohibits the sale of monuments, and permits the sale of granite markers in some areas.  The proposed legislation also lacks a cogent definition of memorials, gravestones, or markers. Questions of whether lettering or inscription of mausoleum crypt shutters are a memorial or marker, if a statue or bench is a memorial or marker, or if the planting of a tree is a memorial, or if installing a bronze memorial on a granite base is permissible, all are left open to interpretation and cloud any aim this bill may have.

Additionally, General Municipal Law, County Law, Town Law, and Village Law, all of which have provisions regulating cemeteries, place no restrictions on the sale of monuments, markers, or memorials by municipalities. Thus because religious cemeteries are treated differently than non-religious municipal cemeteries, a due process issue arises, as does a possible constitutional problem.

Finally, excluding cemeteries from the sale of monuments hurts the consumer. Permitting cemeteries to sell monuments increases choices and lowers prices for consumers. By limiting the choices that consumers have, you run the risk of significantly higher prices being charged for cemetery and funeral merchandise. There is a misconception that if cemeteries were to engage in the sale of monuments, they would “corner the market” on the monument business. This is simply not true. If families have a long term relationship with a monument dealer or funeral director, in most cases, they will continue to maintain that relationship. Currently, cemeteries in Western New York, both religious and not-for-profit, have the ability to sell both granite and bronze lawn-level markers.  It does not seem reasonable, therefore, to allow a cemetery to sell a flat marker but prohibit the same cemetery from selling an upright monument.

Catholic Cemeteries of the Roman Catholic Dioceses of Syracuse, Buffalo, and Albany have been successfully selling monuments to Catholic families served by their cemeteries since the Diocese of Syracuse began in May of 2009. The response from those to whom the diocese has provided memorials to has been resoundingly positive. There is no good reason to prevent these cemeteries from providing this service and, at the same time, protecting their future.

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