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GC Illegal in TN Cemeteries. Fact or Fiction?


MorWoods
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I posted this as an off-topic response on a thread in the general forum, I'd like to copy it here to preserve the analysis and, hopefully, further the discussion in a more appropriate, locally-focused way.

 

I've heard for years that "it's illegal to geocache in Tennessee cemeteries, thanks to a recent change in the law, but at least Groundspeak has grandfathered existing caches". Well, after hearing this often enough I started to wonder ... where does it actually say that this activity is illegal? Well, last night I did some digging and found that what we've been told is apparently incorrect. Following is my original post, copied in its entirety:

 

//////////////////

 

First, it's important to note the context of this state law, the "Cemetery Act of 2006". It was enacted during the emotional, and horrifying, mistreatment of customers by one Clayton Smart, who is now in prison for what is likely to be the rest of his natural life. I won't go into it here, but it's some interesting reading if you would like to pursue this tangent with Google searches. He bought up multiple cemeteries in MI and TN, and then tried to renege on pre-sold burial contracts and maintenance, then trying to file BK to protect his once-significant personal assets. Not good, for anyone.

 

Noting the intended target of this legislation, it is important to note that this legislation specifies that:

"46-1-101.

(a) The provisions of this chapter apply to all cemeteries, community and

public mausoleums, whether operated for profit or not for profit, within the state of

Tennessee, except cemeteries exempt under §46-1-106.

 

... and what, you might ask, falls under the exemptions of TCA 46-1-106? Well, that would be ...

 

"46-1-106.

(a) The provisions of this chapter and chapter 2 of this title do not apply

to:

(1) Cemeteries owned by municipalities;

(2) Cemeteries owned by churches, associations of churches, or

church governing bodies;

(3) Cemeteries owned by religious organizations;

(4) Family burial grounds; or

(5) Cemeteries owned by general welfare corporations created by

special act of the general assembly ... "

 

Thus, THE ACT DOES NOT APPLY TO CEMETERIES RUN BY A TOWN, A CHURCH OR RELATED TO A CHURCH, A FAMILY, OR ANYBODY ELSE WITH SPECIFIC PERMISSION. Ultimately, it applied to very few operators not named "Clayton Smart", but it also penned him in so he couldn't wiggle into some new manifestation of fiduciary default.

 

********************

 

OK, so the "Cemetery Act of 2006" doesn't apply to many cemeteries. Now, what is a "game of amusement"? Let's look at a legal definition:

 

"Amusement game is any game that provides entertainment or amusement. Amusement games conducted as part of gaming, by licensed organizations, are usually games of chances. Prizes money may be received. The outcome is unpredictable.

 

The following is an example of state statute (Washington) defining the term.

 

Pursuant to [Rev. Code Wash. (ARCW) § 9.46.0201] "Amusement game," as used in this chapter, means a game played for entertainment in which:

 

(1) The contestant actively participates;

 

(2) The outcome depends in a material degree upon the skill of the contestant;

 

(3) Only merchandise prizes are awarded;

 

(4) The outcome is not in the control of the operator;

 

(5) The wagers are placed, the winners are determined, and a distribution of prizes or property is made in the presence of all persons placing wagers at such game; and

 

(6) Said game is conducted or operated by any agricultural fair, person, association, or organization in such manner and at such locations as may be authorized by rules and regulations adopted by the commission pursuant to this chapter as now or hereafter amended.

 

Cake walks as commonly known and fish ponds as commonly known shall be treated as amusement games for all purposes under this chapter."

 

**************************

And finally, the actual language of the statute itself, taking into account "Game of Amusement" definition and the context of the full verbiage:

 

"46-1-313.

(a) No person shall willfully destroy, deface, or injure any monument,

tomb, gravestone, or other structure placed in the cemetery, or any roadway,

walk, fence or enclosure in or around the same, or injure any tree, plant or shrub

therein, or hunt or shoot therein, play at any game or amusement therein, or

loiter for lascivious or lewd purposes therein, or interfere, by words or actions,

with any funeral procession or any religious exercises.

( B )

(1) A violation of this section is a Class E felony."

 

**************************

 

In short, then, it seems that the "Tennessee Cemetery Act of 2006" specifically proscribes gambling in cemeteries owned by Clayton Smart or any other profiteering weasel. Other than that, it has no impact on geocaching in general or in historic church/town/family cemeteries in particular.

 

It seems that reviewers in Tennessee (particularly over here in the Memphis area, where there are still some understandably raw nerves given the recent experience with Mr. Smart) have already taken an unnecessarily cautious approach to reviewing cemetery caches. It would be an overreach for them, or anybody else, to take any further action based on the Tennessee Codes Annotated as discussed here.

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"game or amusement" can have a meaning quite different than "game of amusement." Citing a random definition of "game of amusement" from another state's statute is an interesting approach.

 

Keystone

J.D., Duke University School of Law, 1985

 

Given your 30 years of experience, do you have an opinion based on the information that you've been presented, or other information that you have at your disposal?

Edited by MorWoods
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From the Tennessee Codes, Annotated, we see the definition of Amusement Devices, and what are *not* Amusement Devices (see (3), below).

 

In legislation, the term "Amusement" is intentionally specific -- entertainment derived from Amusement Devices. Likewise, "Games" would refer to statutorily-controlled Games ... of Chance, for example. The legislature has no interest or ability to specify what games children can play, or what their parents might find amusing. Play a game of "I Spy ... " while waiting for a funeral? For shame! You've just played a game *and* been amused! That violates our interpretation of the laws of your state!

 

 

PUBLIC ACTS, 2008

PUBLIC CHAPTER NO. 723

SENATE BILL NO. 3547

 

SECTION 2. Tennessee Code Annotated, Section 68-121-101, is amended by

adding the following language as new, appropriately designated subdivisions:

( ) "Amusement device" means:

(1) Any mechanical or structural device that carries or conveys a

person, or that permits a person to walk along, around or over a fixed or

restricted route or course or within a defined area including the entrances

and exits thereto, for the purpose of giving such persons amusement,

pleasure, thrills or excitement. The term shall include but not be limited to

roller coasters, Ferris wheels, merry-go-rounds, glasshouses, and walkthrough

dark houses.

(2) "Amusement device" also includes:

(A) Any dry slide over twenty (20) feet in height excluding

water slides; and

(B) Any portable tram, open car, or combination of open

cars or wagons pulled by a tractor or other motorized device,

except hay rides, those used solely for transporting patrons to and

from parking areas, or those used for guided or educational tours,

but which do not necessarily follow a fixed or restricted course.

 

(3) "Amusement device" shall not include the following:

(A) Devices operated on a river, lake, or any other natural

body of water;

(B) Wavepools;

© Roller skating rinks;

(D) Ice skating rinks;

(E) Skateboard ramps or courses;

(F) Mechanical bulls;

(G) Buildings or concourses used in laser games;

(H) All terrain vehicles;

(I) Motorcycles;

(J) Bicycles;

(K) Mopeds;

(L) Go karts;

(M) Bungee cord or similar elastic device;

(N) An amusement device which is owned and operated by

a nonprofit religious, educational or charitable institution or

association, if such device is located within a building subject to

inspection by the state fire marshal or by any political subdivision

of the state under its building, fire, electrical and related public

safety ordinances; or

(O) An amusement device which attaches to an animal so

that while being ridden the path of the animal is on a fixed or

restricted path.

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Kindly point me to the section of the cemetery legislation which uses the statutorily defined term "Amusement Devices."

 

Gee, I don't think so, they just use "Amusement". See, when the cemetery legislation doesn't set specific definitions, it uses existing ones. So, can you help your argument by pointing to a contrary definition to "Amusement" in the TCA? Do you have a citation that specifically distinguishes it from the Devices as defined? If not, then words (and their understood definitions) matter, right?

 

The same is true for "games", of course. Or any other word used for specific effect.

 

Now, let's discuss the significant exemptions in TN Code § 46-1-106.

 

/////

(a) The provisions of this chapter and chapter 2 of this title do not apply to:

 

(1) Cemeteries owned by municipalities;

 

(2) Cemeteries owned by churches, associations of churches, or church governing bodies;

 

(3) Cemeteries owned by religious organizations;

 

(4) Family burial grounds; or

 

(5) Cemeteries owned by general welfare corporations created by special act of the general assembly; provided, that the cemeteries are not operated for profit and no funds of the cemeteries are used or expended, directly or indirectly, to compensate a sales contractor, sales manager or promoter of the cemetery; provided, that nothing in this subdivision (a)(5) shall prevent a cemetery owned by a church, association of churches or church governing body that has owned the cemetery for a period of five (5) years, and has operated the cemetery for religious purposes and not for profit during the period, from compensating a sales manager, sales contractor or promoter.

/////

 

Those are some pretty broad exemptions, no? That makes our discussion of your attempt to redefine words a moot point, since the statute doesn't even cover these, the majority of the state's cemeteries (and, no doubt, a vast majority of the state's Geocaches).

Edited by MorWoods
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As a practical matter, the lack of specificity in the legislation being referenced here will not be settled definitively until someone is charged for geocaching in a cemetery and hands an attorney a large sum of money to fight it out in front of a court. For that to happen, a few things will be needed.

 

  • A cache will need to be placed in a cemetery and published - not likely to happen if the reviewers are not knowingly publishing caches in cemeteries.
  • A geocacher will need to be arrested for violating the law - also not likely; many officers will take the route of chasing the geocacher out of the area with an admonishment not to do it again.
  • A prosecuting attorney will need to convince his or her boss to prioritize the case high enough to get it onto a court docket - not going to happen.

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I am not in Tennessee, but have read the posts (in both threads) related to cemetery caches in Tennessee. There seems to be two concepts that are continually lumped together to form the assertion that 'geocaching is not allowed in cemeteries in Tennessee'. Looking at these two items separately:

 

(1) What cemeteries fall under the restriction? As MorWoods noted, the restrictions do not apply to cemeteries that fall under 46-1-106.

So, the 'grandfathered' caches that were previously placed in cemeteries are not de facto "against the law". Groundspeak's guideline to not publish caches in any cemetery now makes sense, because otherwise the reviewers would have to research each cemetery to determine whether it falls under the exemption or not. GS's more conservative approach of excluding all cemetery caches seems prudent.

 

(2) Does the restriction encompass geocaching (either the placing or finding of caches)? The prohibited acts are listed in 46-1-313.

-- 2A) The activity of geocaching can cause destruction or injury to the surroundings, as evidenced by 'geotrails' that get created in some places. That is one aspect of the restriction to consider, but does not necessarily single out geocaching. Non-geocaching can result in destruction or injury to the surrounding area, while geocaching can occur without causing any destruction or injury.

-- 2B) The more difficult item to narrow down is whether Tennessee classifies geocaching as playing 'at any game or amusement'. I'm not well-versed enough in the legal arena to tackle that one.

 

Keep in mind that if Tennessee considers geocaching to be a game or amusement, then the generalized statement that 'geocaching is not allowed in cemeteries in Tennessee' would still not apply. The appropriate statement would be 'geocaching is not allowed is some cemeteries in Tennessee'.

 

Note: The links I've included are for the 2010 code, but the wording is unchanged in the 2015 code. The source for the 2015 code doesn't allow direct linking.

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Does anyone recall the history on when Cemetery hides were no longer accepted in Tennessee? :unsure: I don't recall the details if I ever knew them to begin with. :anicute:

The Land Use Wiki appears to have an update to the Policy around September 2011, but it would seem consistent that there was some mention prior to that. The Wiki was built in or around 2010, which is several years after the Act mentioned by the OP.

 

Either way, cemetery hides have been discouraged for quite some time, dating back to a similar SC Bill that was talked about in the Forums quite some time ago.

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Here's some more info for the backstory in Tennessee. It involves the topic of the "Rocky Top" investigation, that involved the corruption involved in GAMES and AMUSEMENTS in such areas as churches and CEMETERIES. Tennessee went through some emotional, and corrupt, investigations.

 

 

http://www.washingtontimes.com/news/2014/oct/14/tenn-voters-to-decide-on-veterans-gaming-measure/?page=all

 

NASHVILLE, Tenn. (AP) - A proposed constitutional amendment to allow charitable gaming fundraisers for veterans groups may not carry the same excitement as other Tennessee ballot measures on abortion, judges and income taxes, but supporters say it would correct an omission dating to the approval of the state lottery in 2002.

 

The Chattanooga Times Free Press reports (http://bit.ly/1nXg4Sx) that it’s being disputed whether the veterans groups were left out of the lottery amendment by accident or as part of an effort to avoid the taint of a bingo industry scandal of the 1980s that culminated in the FBI’s “Rocky Top” investigation.

 

Republican state Sen. Rusty Crowe of Johnson City acknowledged that the measure might face a tough time passing because the language refers to the tax code and doesn’t mention the word “veteran.”

 

“The way it’s worded, people won’t know what’s going on,” Crowe said.

 

State law limits nonprofit gaming activities to raffles, reverse raffles, cakewalks and cakewheels. It does not authorize bingo, which was responsible for one of the darkest and bloodiest phases in Tennessee’s political history.

 

In its heyday, about 300 bingo halls operating in the state generated millions of dollars, but that money often didn’t reach charities. Bingo halls would be run by professional gambling operators and state lawmakers for years ignored news accounts of money being skimmed.

 

All that came to an end following the “Rocky Top” probe led by the FBI and the Tennessee Bureau of Investigation, which found operators were using state charters of legitimate Tennessee charities to run gambling operations.

 

The investigation which eventually led to a prison sentence for Democratic state Rep. Tommy Burnett also looked at then-Secretary of State Gentry Crowell’s handling of bingo regulation and led authorities to looking into other activities by legislator Ted Ray Miller. Both Democrats committed suicide during the investigations.

 

State Sen. Randy McNally as a freshman lawmaker became the key insider in the Rocky Top investigation after reporting suspicions to the FBI. The agency asked McNally to wear a recording device at Legislative Plaza, and he captured evidence of offers to pay cash for votes, including $10,000 from a lobbyist who was also the state’s former chief bingo regulator.

 

The Tennessee Supreme Court ultimately ruled that bingo was illegal under the state constitution’s lottery ban.

 

McNally, who is now chairman of the powerful Senate Finance Committee, said he supports the amendment.

 

“I think the state has proper safeguards to prevent what happened in the past like the Army-Navy Union, the bogus-type organizations that came in,” McNally said. “You know, you’ve got legislative oversight and the secretary of state’s oversight. It’s a lot more professional than it was back in the day.”

 

The end of charitable bingo was devastating to veterans organizations, said Dean A. Tuttle, adjutant and finance officer with the American Legion Department of Tennessee. The money from bingo helped support veterans’ families with scholarships, health care and other causes.

 

“Likely about 80 percent of our Post homes or Legion homes are probably now nonexistent,” Tuttle said. “It is awfully tough to go out there and make it baking cakes and washing cars.”

 

Many veterans groups now meet in churches to schools instead of in their own dedicated halls.

 

Tuttle also worries about the likelihood of passage of the amendment given the wording of the proposal.

 

“If you don’t know the IRS code you have no idea of what it’s doing,” he said.

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So, let's consider what we have here.

 

Tennessee. Cemeteries. Geocaching.

 

In the recent past, the state of Tennessee had issues with criminals trying to get around state laws regarding GAMES, sometimes involves Devices of AMUSEMENT, to avoid the prohibitions from laws against lotteries, bingo, or other such common "gambling light" entertainment.

 

The state of Tennessee also suffered financial abuse by Clayton Smart in his infamous case of raiding cemeteries for their cash, only to then cry poor-mouth. He was found guilty of financial fraud and sentenced to prison for what is likely to be the rest of his natural life.

 

The State of Tennessee passed legislation, using the terms GAMES, AMUSEMENT, and CEMETERY.

 

Legislative intent: Were the legislators attempting to regulate lying, profiteering criminals, or attempting to disallow games of "I Spy ... ", geocaching, and/or any humor of any sort on any cemetery in the state, even those that are exempted from the law? Oh, wait, and they exempted the majority of the cemeteries?!? What must they have been thinking?

 

They use the word "GAME", which is regulated under the TCA. But only those that involve anything that could resemble gambling. They use the word "AMUSEMENT", but only as it involves "Amusement Devices", which are tied into the "GAME" legislation.

 

So, we can either conclude that the Tennessee Legislature was trying to avoid the profiteering abuse that we've suffered at the hands of indicted criminals, specifically regarding GAMING and AMUSEMENT, or we can believe that the legislature was trying to use a definition of the terms not previously introduced into the state's legislation to outlaw games of "I Spy ...", geocaching, and "who has the oldest headstone date".

 

It would seem that anybody believing that the folks in Nashville were trying to outlaw innocent games in cemeteries are incorrect ... if that was their intention, they wouldn't have exempted a vast majority of the state's cemeteries. It's time for Geocaching.com to correct their inappropriate, overly-cautious interpretation of Tennessee state laws. If we must misinterpret this particular state's laws, who will be next to have misinterpretations? Shall we eliminate all geocaches that don't have a documented landholder's approval to be on site?

 

Enough, already. Let's please correct this misinterpretation NOW. Before it metasticizes to other states, countries, and/or (arbitrary?) reasons for refusal

Edited by MorWoods
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The language in TN law that , "no person shall..play at any game or amusement therein", has been part of TTN law for many years, well before 2006. If you check the history references at the bottom of code sections, you'll see the first reference is 1875, then 1932, then 1968....

 

Here's link to it on the TNGenWeb Project. This dates from 1999.

 

http://www.tngenweb.org/law/cemetery-law.html

 

I agree with Brad's post above, there's nothing to be done about this via forum thread.

If the 2006 law seems to have exempted a large class of cemeteries from the protections offered by section 46-1-313, I expect that was simply a mistake.

Something a court could rule on, it needs a court case. Whether Geocaching is or is not "game or amusement" is another question for a court.

 

It's been 10 years since Max Cacher first posted about geocaching in TN cemeteries and that section of TN code, in that time, nothing has "metasticized".

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