Force Majeure Clauses, COVID-19, Club Bylaws, and Dues Continuation
May 9, 2020Cooperative vs. Corporation – A different choice for new organizations
January 5, 2021By: Fred L. Somers, Jr., P.C.[1]
Like numerous older addicted golfers, I have sometimes fantasized over having my cremated ashes spread on one of my favorite golf venues. Many of us know of an avid deceased golfer whose family fulfilled this perhaps macabre desire.
Recently we were asked whether spreading cremated ashes on a privately owned golf course is legal. The answer depends upon in what jurisdiction or state the golf course is located. It also depends upon the property owner’s permission assuming it is otherwise legal.
Unlike disposal of cremated ashes on public property or at sea which are regulated, disposal of these ashes on private property is a non-event if environmental concerns are not presented. Cremated ashes are sterile and will do no damage to turf or other organic growth. The primary concern may only be to not encourage the practice by publicizing a policy respecting the practice.
According to the Neptune Society, “Scattering has become an increasingly popular and meaningful way to remember a loved one and provides each family a unique way to celebrate their loved one in a place that was special to them during their life . . . .”[2]
In Georgia, provided the person obtains the consent of the golf course owner, scattering of cremated ashes on private property is not regulated by state authority. If consent is not obtained from the owner, presumably an action for trespass lies for the activity. It is not apparent, however, that any damages other than nominal for the trespass could be assessed. However, under certain circumstances an action for criminal trespass may be brought.[3] A person who commits the offense of criminal trespass shall be guilty of a misdemeanor. In Georgia a misdemeanor may be punished by a fine and a sentence of imprisonment of no more than 12 months.[4] Best procedure is to obtain written consent of the club owner. On state owned property, the scattering of human ashes from cremation is prohibited, except under conditions established by the site manager.[5] So if the deceased’s favorite golf course is in a state park, it is prudent to check with the site manager.
In Texas, a person may scatter cremated remains over uninhabited public land, over a public waterway or sea, or on the private property of a consenting owner. Texas law also states that unless the container is biodegradable, the cremated remains must be removed from the container before being scattered.[6]
California’s laws about dealing with ashes are the strictest in the nation[7]. California allows you to dispose of cremated remains only in specified areas where there is no local prohibition.[8]
If you want to be stealthy about scattering the deceased ashes over a private golf course you could lease an airplane and do the deed from high above. The U.S. government does not consider cremains to be hazardous material if you remove the ashes from their container before scattering.
Our recommendation is club governing boards or owners consider adopting a policy respecting requests for the spreading of ashes on Club property.
The policy content considerations might include the following: (1) Requests for spreading of cremated ashes on Club grounds are not favored. (2) If, however, a relative or a friend of a deceased Club member who died or resigned in good standing requests it, the conditions for approving the request might include: (a) the spreading occurs at night or on a day the Club is closed for member or patron activity; (b) a member of the Club staff is present; and (c) the specific location and date for the spreading is approved by the General Manager or his delegated manager. (3) This policy is not to be publicized but only disclosed to the relative or friend who makes the request.
Our reason for recommending such a policy is that as a practical matter there is no practical way to stop family or friends of a deceased member from spreading ashes if they are intent on doing it.
From the point of good will it may do more harm than good to simply deny all such requests or to threaten trespass complaints. It is common for avid golfers to think about having their ashes spread on their favorite golf course. It is an emotional aspiration that is harmless but likely meaningful to their family and friends to see fulfilled. In the case of a widow or widower of a deceased member, honoring the request may be an inducement for the widow or widower to retain the Club membership.
We use the word “may” accede to the request in the recommended policy content. This is because a future governing board or owner may take a more cynical approach or be faced with numerous requests that become an administrative burden if acceded to.
We once visited a private club in Tucson and saw a plaque honoring deceased members by name. Upon our return home, we mentioned the plaque to a club general manager and asked what he thought of a memorial plaque honoring deceased members whose family or Will left a legacy to the club. His response was “this is a club for the living not the dead.” However, the response and the plaque concept gave us an idea that another condition for allowing ashes to be spread on the club property would be a minimum honorarium contribution for the privilege. Whether a plaque would be also in order is a subjective matter left to the discretion of the club. However, it might be an inducement to consider if the club is willing to allow cremains distribution.
[1] The author is an Atlanta Ga. area attorney with a concentration in private clubs and trade associations. See www.somerslawfirm.org. “Bury me not on the lone prairie” – Song and lyrics by Johnny Cash 1965; derived from “Bury me not in the deep, deep sea” written by Edwin Hubbell Chapin, published in 1839, and put to music by George N. Allen See https://www.lyrics.com/lyric/3379633/Bury+Me+Not+on+the+Lone+Prairie
This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice or the formation of a lawyer/client relationship. The author of this blog is not certified by any state agencies or boards of legal specialization. This blog may constitute attorney advertising in some jurisdictions.
[2] https://www.neptunesociety.com/cremation-information-articles/what-are-the-laws-on-scattering-ashes
[3] See Ga. Code 16-7-21.
[4] Ga. Code § 16-8-12.
[5] GA Reg. 391-5-1-.04 Resource Protection (Georgia Rules and Regulations. . . . (4) Memorials. (a).
[6] https://www.neptunesociety.com/cremation-information-articles/what-are-the-laws-on-scattering-ashes
[7] https://www.nolo.com/legal-encyclopedia/burial-cremation-laws-california.html#7
[8] Id.
