209149-2:n:01/28/2021:KMS*/cr LSA2021-95R1




HB242
By Representatives Holmes, Hanes, Sells and Meadows
RFD State Government
Rd 1 02-FEB-21


SYNOPSIS:Under existing law, the Alabama Memorial Preservation Act of 2017, provides for the preservation of certain architecturally significant buildings, memorial buildings, memorial streets, and monuments on public property, as well as memorial schools.
 This bill would rename the act as the Alabama Memorial Preservation Act of 2021, and would revise the definitions and prohibitions against the disturbance of certain historically significant buildings, memorial buildings, memorial schools, memorial streets, and monuments.
 This bill would add term limits for the membership of the Committee of Alabama Monument Protection and would authorize the committee to review and grant or deny applications for petitions for the waiver of certain prohibitions and petitions to raze certain historically significant buildings and memorial buildings.
 This bill would impose fines for certain violations and would provide for the collection and deposit of those fines into the Alabama State Historic Preservation Fund.
 This bill would also require the Attorney General to collect certain fines and to institute legal action, if necessary; would authorize other individuals and organizations to commence legal action, on behalf of the state, for violations; and would provide for punitive and other damages and the recovery of costs related to legal actions.

A BILL
TO BE ENTITLED
AN ACT

Relating to the Alabama Memorial Preservation Act of 2017; to amend Sections 41-9-230, 41-9-231, 41-9-232, 41-9-233, 41-9-234, 41-9-235, 41-9-236 and 41-9-237, Code of Alabama 1975, and to add Sections 41-9-235.1 and 41-9-235.2 to the Code of Alabama 1975, to rename the act the Alabama Memorial Preservation Act of 2021; to revise definitions; to revise prohibitions against the disturbance of certain historically significant buildings, memorial buildings, memorial schools, memorial streets, and monuments; to add term limits for the membership of the Committee of Alabama Monument Protection; to authorize the committee to review and grant or deny applications for petitions for waiver and petitions to raze certain historically significant buildings and memorial buildings; to impose fines for violations; to provide for the collection and deposit of fines into the Alabama State Historic Preservation Fund; to require the Attorney General to collect certain fines and institute legal action, if necessary; to authorize other individuals and organizations to commence legal action, on behalf of the state, for violations; and to provide for punitive and other damages and the recovery of costs related to legal actions.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. Sections 41-9-230, 41-9-231, 41-9-232, 41-9-233, 41-9-234, and 41-9-235 of the Code of Alabama 1975, are amended to read as follows:

§41-9-230.

"This article shall be known and may be cited as the Alabama Memorial Preservation Act of 2017 2021.

§41-9-231.

"For the purposes of this article, the following terms shall have the following meanings:

"(1) ARCHITECTURALLY SIGNIFICANT BUILDING. A building located on public property that by its very nature, inherent design, or structure constitutes a monument.

"(2)(1) CAUSE. A principle, ideal, or goal to which a person or group is dedicated.

"(2) COMMITTEE. The Committee on Alabama Monument Protection created by this article.

"(3) GOVERNMENTAL ENTITY. The State of Alabama; the governing body of any county or municipality located in the state; or any other entity created by act of the Legislature to perform any public function that owns, controls, or has responsibility for maintaining, protecting, or preserving a historically significant building, memorial building, memorial school, memorial street, or monument.

"(4) HISTORICALLY SIGNIFICANT BUILDING. A building, located on public property, that is an important part of the history of the state based on the building's inherent status as the location, facility, residence, or other site of, or associated with, an event, an individual, a group, a cause, a movement, military service, or a war or military conflict.

"(3)(5) MEMORIAL BUILDING. A building, structure, park, or other institution, other than a Memorial School memorial school, that is located on public property and has been erected for, or named or dedicated in honor of, an event, a person an individual, a group, a cause, a movement, or military service, or a war or military conflict.

"(4)(6) MEMORIAL SCHOOL. A K-12 or two-year postsecondary institution or facility that is located on public property and has been erected for, or named or dedicated in honor of, an event, a person an individual, a group, a cause, a movement, or military service, or a war or military conflict.

"(5)(7) MEMORIAL STREET. A street that is located on public property and has been constructed for, or named or dedicated in honor of, an event, a person an individual, a group, a cause, a movement, or military service, or a war or military conflict.

"(6)(8) MONUMENT. A statue, portrait, or marker intended at the time of dedication to be a permanent memorial to an event, a person an individual, a group, a cause, a movement, or military service, or a war or military conflict that is part of the history of the people or geography now comprising the State of Alabama. The term does not include signage bearing historical or interpretive text, commonly known as a historical marker or wayside exhibit, or portraits or plaques installed by temporary means and not intended to be permanent at the time of installation.

"(9) PROTECTED MEMORIAL. Any historically significant building, memorial building, memorial school, memorial street, or monument protected under this article.

"(7)(10) PUBLIC PROPERTY. All property owned or leased by the State of Alabama; any county, municipal, or metropolitan government in the state; or any other entity created by act of the Legislature to perform any public function a governmental entity.

§41-9-232.

"(a) No architecturally significant building, memorial building, memorial street, or monument which No monument that is located on public property may be relocated; removed; altered; renamed; dishonored, disparaged, or reinterpreted with competing signage, wording, symbols, objects, or other types or means of communication located at the site of the monument; or otherwise disturbed.

"(b) No memorial street that is located on public property and has been so situated for 40 or more years may be relocated,; removed,; altered,; renamed,; dishonored, disparaged, or reinterpreted with competing signage, wording, symbols, objects, or other types or means of communication located at the site of the memorial street; or otherwise disturbed. Provided, however, nothing in this article shall prohibit or limit the ability of the appropriate authority from rennovating, repairing, or otherwise maintaining public roads.

"(b)(c) No architecturally significant building, memorial building, memorial street, or monument which is located on public property and has been so situated for at least 20 years, and less than 40 years, may be relocated,; removed,; altered,; renamed,; dishonored, disparaged, or reinterpreted with competing signage, wording, symbols, objects, or other types or means of communication located at the site of the memorial street; or otherwise disturbed, except as provided in Section 41-9-235.

"(c)(d) No memorial school which is located on public property and has been so situated for 20 or more years may be renamed except as provided in Section 41-9-235.

"(e) No historically significant building or memorial building that is located on public property may be relocated; removed; altered; renamed; dishonored, disparaged, or reinterpreted with competing signage, wording, symbols, objects, or other types or means of communication located at the site of the historically significant building or memorial building; or otherwise disturbed, except for razing or emergency repairs as provided in Section 41-9-235.

§41-9-233.

"No person individual or entity may prevent the governmental entity having responsibility for maintaining any architecturally historically significant building, memorial building, memorial school, memorial street, or monument from taking proper and appropriate measures, and exercising proper and appropriate means, for the protection, preservation, care, repair, or restoration of those monuments, streets, or buildings.

§41-9-234.

"(a) There is created the Committee on Alabama Monument Protection.

"(b) The legislative members of the committee shall be appointed and reappointed at the beginning of each legislative quadrennium. The members of the committee appointed pursuant to subdivisions (3) to (5), inclusive, shall serve for terms of four years, with the exception of their initial terms, which shall be staggered as provided in subsection (d). Each term of a member appointed pursuant to subdivisions (3) to (5), inclusive, shall expire on September 30. The appointing authorities shall coordinate their appointments to assure committee membership is inclusive and reflects the racial, gender, geographic, urban, rural, and economic diversity of the state. The membership of the committee shall include all of the following:

"(1) Two members of the House of Representatives, one from the majority party and one from the minority party, appointed by the Speaker of the House of Representatives.

"(2) Two members of the Senate, one from the majority party and one from the minority party, appointed by the President Pro Tempore of the Senate.

"(3) One member of the public, appointed by the Speaker of the House of Representatives.

"(4) One member of the public, appointed by the President Pro Tempore of the Senate.

"(5) Two members of the public, appointed by the Governor.

"(6) One actively serving county commissioner appointed by the Governor.

"(7) One actively serving mayor or member of the municipal governing body of a Class 1, Class 2, or Class 3 municipality appointed by the Governor.

"(8) One actively serving mayor or member of the municipal governing body of a Class 4 to Class 8, inclusive, municipality appointed by the Governor.

"(c) To assist the appointing authorities in the process of appointing public members to the committee, each any member of the public; any heritage, historical, genealogical, or preservation organization operating in the state; and any of the following entities may submit a list of names to the Speaker of the House of Representatives, President Pro Tempore of the Senate, and Governor for consideration for appointment:

"(1) The Department of Archives and History.

"(2) The Alabama Historical Commission.

"(3) The Alabama Historical Association.

"(4) The Alabama Trust for Historic Preservation.

"(5) The Black Heritage Council.

"(d) The initial members of the committee shall be appointed before September 1, 2017, and shall hold an organizational meeting of the committee before October 1, 2017. At the organizational meeting of the committee, the membership of the committee shall select a chair and a vice chair, who shall serve in that position for one year, and the public members appointed pursuant to subdivisions (3) to (5), inclusive, of subsection (b) shall draw lots to determine which one of those members shall serve an initial term of two years expiring on September 30, 2019, which two of those members shall serve an initial term of three years expiring on September 30, 2020, and which two of those members shall serve an initial term of four years expiring on September 30, 2021. The committee shall meet at least once each year, during the month of October, to select a chair and vice chair to serve for the following year. Thereafter, the committee shall meet at the call of the chair or any majority of the members of the committee. The committee shall have a continuing existence and may meet, act, and conduct committee business at any place within this state.

"(e) Initial committee members appointed pursuant to subdivisions (3) to (5), inclusive, of subsection (b), shall begin serving immediately upon appointment. Each committee member appointed pursuant to subdivisions (3) to (5), inclusive, of subsection (b), is subject to confirmation by the Senate during the legislative session in which the appointment is made or, if the appointment is made when the Legislature is not in session, during the next special or regular session. An appointee may serve in the position pending confirmation by the Senate. Failure of the Senate to act on the appointment during the session in which the appointment is made or, if the appointment is made while the Legislature is not in session, during the next special or regular session, shall constitute confirmation by the Senate. Each member of the committee shall serve after the expiration of his or her term until his or her successor is appointed and may be appointed to more than one term.

"(f) Commencing on the effective date of the act adding this language, no committee member may serve for any consecutive terms of office. Upon the expiration of a term of office, the committee member may not be reappointed to an additional term for at least four years after the expiration.

"(g) The committee shall perform all duties prescribed by this article. The chair of the committee may create advisory subcommittees and appoint members thereto, which may include members of the committee, representatives from governmental agencies, and members of the public, and representatives from heritage, historical, genealogical, or preservation organizations with interest and expertise in the objectives of the committee or knowledge of protected memorials in the state and commitment to their preservation. The committee shall create no more than two active advisory subcommittees at any given time unless the committee votes unanimously for additional subcommittees.

"(g) (h) Each legislative member of the committee or any subcommittee, if created, shall be entitled to the legislative compensation, per diem, and travel as provided in Amendment 871 to the Constitution of Alabama of 1901, now appearing as Section 49.01 of the Official Recompilation of the Constitution of Alabama of 1901, as amended.

§41-9-235.

"(a)(1) The duty of the committee is to preserve protected memorials situated in the state. That duty includes reviewing, and granting or denying, petitions for waiver and petitions to raze.

"(1) Any governmental entity exercising control of public property on which an architecturally a historically significant building, memorial building, memorial school, or memorial street, or monument is located, through proper application, may petition the committee for any of the following:

"a. A a waiver from subsection (b) or subsection (c) of Section 41-9-232 through an application including for the relocation, removal, alteration, emergency repair, or renaming of a memorial street.

"b. A waiver of subsection (d) of Section 41-9-232 for the renaming of a memorial school.

"c. A waiver of subsection (e) of Section 41-9-232 for the relocation, removal, alteration, or emergency repair of an historically significant building or memorial building.

"(2) An application for a waiver, at a minimum, shall include all of the following:

"a. A resolution by the controlling governmental entity seeking a waiver for the renaming of a memorial school or for the relocation, removal, alteration, renaming, or other disturbance of the architecturally significant building, memorial building, memorial street, or monument and the reasons therefor.

"b. Written documentation of the origin of the architecturally historically significant building, memorial building, memorial school, or memorial street, or monument, the intent of the sponsoring governmental entity at the time of dedication, and any subsequent alteration, or renaming, or other disturbance of the architecturally historically significant building, memorial building, memorial school, or memorial street, or monument.

"c. Written commentary from the general public and any heritage, historical, genealogical, or preservation organizations with interest in the decision of the controlling governmental entity, and from the general public.

"d. A written statement of any facts that were not known at the time of the origin of the architecturally historically significant building, memorial building, memorial school, or memorial street, or monument, but are known now, that the committee should consider in granting the waiver. The absence of such facts should serve serves as a presumption against the granting of a waiver by the committee.

"(2)a.(b) If the committee grants a petition for waiver, the committee may provide reasonable conditions and instructions to ensure that the architecturally historically significant building, memorial building, memorial school, or memorial street, or monument is restored or preserved to the greatest extent possible.

"b.(c) In the event there is a need for emergency repairs or construction at the site, or on adjacent property of, or to, the architecturally historically significant building, memorial building, or memorial street, or monument or on adjacent property, the controlling governmental entity may temporarily relocate or otherwise protect the architecturally historically significant building, memorial building, or memorial street, or monument without seeking a waiver under the process provided in this section; provided the architecturally historically significant building, memorial building, or memorial street, or monument shall be returned to its prior location or condition, or both, as soon as safely and reasonably possible, and no later than one year month after the completion of the repair or construction. If the repair or construction is expected to take more than one year three months, the controlling governmental entity shall seek a waiver under the process specified in this section.

"(d)(1) In addition to the right to petition for a waiver, as provided in paragraphs a. to c., inclusive, of subdivision (1) of subsection (a), a governmental entity exercising control of a historically significant building or memorial building may petition the committee to raze the historically significant building or memorial building. The application for a petition to raze shall state that the historically significant building or memorial building has become one, or more, of the following:

"a. Obsolete for the purposes for which it was intended.

"b. Too dangerous for public use.

"c. Extensively damaged to the point of not being capable of being restored.

(2) In addition to the documentation provided in paragraphs a. to d., inclusive, of subdivision (2) of subsection (a), an application for a petition to raze, at a minimum, shall also include all of the following:

"a. Written documentation including, but not limited to, any architectural, structural, engineering, and similar studies and reports documenting the condition, limitations, danger, or inability to effect restoration of the historically significant building or memorial building.

"b. Studies, plans, and details regarding the intentions of the governmental entity to replace the historically significant building or memorial building with another building, and its anticipated location and function.

"(3) If the committee grants an application for a petition to raze under this subsection, the committee shall require the governmental entity to rename any replacement building, resultant park, green space, or other public area with the name of the original historically significant building or memorial building. If the historically significant building or memorial building is not replaced, the governmental entity shall erect a permanent marker to memorialize the event, individual, group, movement, cause, military service, or war or military conflict for which the razed historically significant building or memorial building was named. The governmental entity exercising control of the original historically significant building or memorial building shall confirm to the committee that the replacement building, resultant park, green space, or other public area bears the name of the original historically significant building or memorial building or that a suitable permanent memorial marker has been erected, if the historically significant building or memorial building is not replaced.

"c.(e) If the committee fails to act on a completed application for a petition for waiver or petition to raze within 90 days after the application is submitted to the committee, the waiver shall be deemed granted denied.

"d. If the Attorney General determines that an entity exercising control of public property has renamed a memorial school or has relocated, removed, altered, renamed, or otherwise disturbed an architecturally significant building, memorial building, memorial street, or monument from that public property without first obtaining a waiver from the committee as required by this article, or failed to comply with the conditions and instructions issued by the committee upon the grant of a waiver pursuant to this section, the entity shall be fined twenty-five thousand dollars ($25,000) for each violation. The fine shall be collected by the Attorney General, forwarded by his or her office to the State Treasurer, and deposited into the Alabama State Historic Preservation Fund created in Section 41-9-255.

"e.(f) Judicial review of the final decision of the committee may be sought pursuant to the Alabama Administrative Procedure Act, Chapter 22 of this title."

Section 2. Sections 41-9-235.1 and 41-9-235.2 are added to the Code of Alabama 1975, to read as follows:

§41-9-235.1.

(a) Each elected or appointed government official who acts in violation of this article and any individual member of the governing body of a governmental entity exercising control of public property who has voted in favor of renaming a memorial school or relocating; removing; altering; renaming; dishonoring, disparaging, or reinterpreting with competing signage, wording, symbols, objects, or other types of means of communication located at the site of; or otherwise disturbing a historically significant building, memorial building, memorial street, or monument located on public property, as prohibited under Section 41-9-232, or who has allowed any other individual, entity, or governmental entity to do so; or any individual who has intentionally participated in the violation, shall be fined ten thousand dollars ($10,000) for each day that the violation continues and until the governmental entity has taken full restorative action to comply with this article, including the return of any protected memorial to its original location and condition.

(b) Each elected or appointed government official who acts in violation of this article and any individual member of the governing body of a governmental entity exercising control of public property who has voted in favor of renaming a memorial school or relocating; removing; altering; renaming; dishonoring, disparaging, or reinterpreting with competing signage, wording, symbols, objects, or other types of means of communication located at the site of; or otherwise disturbing a historically significant building, memorial building, or memorial street located on public property as prohibited under subsection (c), (d), or (e) of Section 41-9-232, or who has allowed any other individual, entity, or governmental entity to do so without first obtaining a waiver from the committee, where allowed and as required by subsection (c), (d), or (e) of Section 41-9-232, or any individual who has intentionally participated in the violation, shall be fined ten thousand dollars ($10,000) for each day that the violation continues and until the governmental entity has taken full restorative action to comply with this article, including the return of any protected memorial to its original location and condition.

(c) Fines authorized by this section shall be promptly collected by the Attorney General, forwarded by his or her office to the State Treasurer, and deposited into the Alabama State Historic Preservation Fund created in Section 41-9-255, and held for the preservation, repair, refurbishment, and conservation of historically significant buildings, memorial buildings, memorial streets, and monuments. If the Attorney General is unable to promptly collect a fine pursuant to this section, he or she shall institute legal action to collect the fine.

(d) In addition to collecting fines authorized by this section, and instituting legal action as necessary, the Attorney General shall seek all remedies at law and in equity to preserve protected memorials, pursuant to this article, and return protected memorials to their original name, location, and condition.

§41-9-235.2.

(a) Any provision of this article to the contrary notwithstanding, if a governmental entity, or individual member of the governing body of the governmental entity, exercises control of public property in a manner that violates, or allows to be violated, this article, then:

(1) An action may be commenced, in the name of the state, against the offending governmental entity or individual member of the governing body of the governmental entity, or both, on the information of any member of the public or any heritage, historical, preservation, or like organization. Upon the filing of an action under this subdivision, notice of the action and a copy of the complaint shall be served on the Attorney General. The Attorney General shall have 90 calendar days after the date of service to decide whether to pursue the action on behalf of the state. If the Attorney General decides not to pursue the action, or fails to act within the 90 calendar days, the private action shall commence as originally filed by the individual or organization.

(2) Relief may include damages for injury to any protected memorial caused by the violation, recovery of the cost of returning and restoring the protected memorial to its original location and condition, and restitution for waste or misuse of public monies that has occurred in connection with a violation. This section may not be construed as limiting the rights of any individual or organization to pursue any additional civil or equitable remedy otherwise allowed by law in an action brought under this section or independently of this section. If not already recovered by the state at the time of trial, fines imposed by this article shall be imposed, for the benefit of the state, as provided in subsection (b).

(3) To effect the purposes of this article, the courts of this state may use all remedies available at law and in equity, to preserve and protect protected memorials and fashion remedies in addition to those enumerated in subdivision (2), as are necessary to ensure that protected memorials remain at, or if moved or otherwise altered or affected by wrongful conduct, are returned and restored to, their original location and condition.

(4) Punitive damages may be recovered from individuals responsible for intentional, reckless, willful, or wanton violation of this article.

(5) No security for costs from the party shall be required for the issuance of a temporary restraining order or preliminary injunction, and no costs shall be awarded against any resident of the state for any action brought in good faith under this section.

(6) Public monies recovered by reason of their misuse by a public official shall be restored to the state, county, municipality, or other governmental entity, which the court determines would make the applicable public treasury whole. The court may impose any conditions deemed necessary and appropriate to assure that misuse of monies does not recur.

(b) The court shall order any fines recovered pursuant to this section to be paid to the State Treasurer for deposit into the Alabama State Historic Preservation Fund created in Section 41-9-255 and held for the preservation, repair, refurbishment, and conservation of protected memorials.

Section 3. Sections 41-9-236 and 41-9-237 of the Code of Alabama 1975, are amended to read as follows:

§41-9-236.

"This article does not apply to any of the following:

"(1) Art and artifacts in the collections of museums, archives, and libraries.

"(2) Any architecturally historically significant building, memorial building, memorial street, or monument that is any of the following:

"a. Located on public property under the control of, or acquired by, the State Department of Transportation, which may interfere with the construction, maintenance, or operation of the public transportation system. The department shall strive to ensure that any architecturally historically significant building, memorial building, memorial street, or monument is preserved to the greatest extent possible.

"b. Located on public property under the control of, or acquired by, a county or municipal body or a university, which may interfere with the construction, maintenance, or operation of the public transportation system. The governing body of the county, municipality, or university shall strive to ensure that any architecturally historically significant building, memorial building, memorial street, or monument is preserved to the greatest extent possible.

"c. Located on public property operated or used by a utility, which may interfere with providing utility service. The utility shall strive to ensure that any architecturally historically significant building, memorial building, memorial street, or monument is preserved to the greatest extent possible.

"d. Located on public property under the control of, or acquired by, the Alabama State Port Authority, which may interfere with the construction, maintenance, or operation of the port infrastructure or port related activities. The authority shall strive to ensure that any architecturally historically significant building, memorial building, memorial street, or monument is preserved to the greatest extent possible.

§41-9-237.

"(a) The Committee on Alabama Monument Protection, pursuant to the Alabama Administrative Procedure Act, shall adopt rules as necessary to provide for the implementation of this article including, but not limited to, further defining an architecturally significant building.

"(b) It is the intent of the Legislature that constitutionally-created boards of trustees comply with the requirements of this article and the rules adopted by the Committee on Alabama Monument Protection."

Section 4. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.


State Historical Preservation Fund
Attorney General
Memorials
Monument Protection, Committee on
Damages
Property, Real and Personal
Code Added
Code Amended