“I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent enforcement.”
–Ulysses S. Grant, Inaugural address, 1869
As we watch the fascinating legal tennis game between the Pennsylvania funeral directors who decided to sue the members of the state board, all of funeral service needs to be interested spectators.
The outcome of this battle is an indicator to the national future of funeral service. Though these legal decisions affect only Pennsylvania funeral directors and funeral home owners, this conflict is waiting to happen on many other state doorsteps.
ROUND ONE
In 2008, independent owner of several funeral homes, Ernie Heffner, led 33 other funeral home owners and cemeterians to file a legal complaint against members of the Pennsylvania State Board of Funeral Directors complaining that many of the current regulations were too restrictive or unfair. Some of their complaints were: the warrantless and unannounced inspections of funeral homes by the state; the limitation on the number of funeral homes a funeral director can own; not allowing non-licensed persons (unless they are direct family members of owners) or other entities to own funeral homes; not allowing a licensed funeral director to work at more than one funeral home and a branch; that every funeral home must have a fulltime manager; that a fully equipped preparation room be in every funeral home; that no food be allowed to be served at a funeral home; that funeral homes cannot have trade names; that 100% of preneed funds, for both service and merchandise, be fully deposited; and that commissions not be paid to any funeral home employee.
In May of 2012 Judge John E. Jones III, federal district judge in Harrisburg ruled in the Plaintiff’s favor stating, “The time for relying on antiquated and ever changing interpretations [of the law] which constitute nothing more than thinly veiled attempts to maintain the status quo for established funeral directors and their families, or to confuse those honestly seeking to comply with the law, has passed.” Judge Jones found many regulations unconstitutional.
The sweeping nature of the decision caught many by surprise. It was a great victory for the plaintiffs and stinging, game changing defeat for the defendants. Judge Jones gave the State Board 90 days to present new regulations that conformed to his judgment.
The defendants appealed.
ROUND TWO
On February 19, 2014, The Third Circuit Court ruled that the State Board’s regulations were not unconstitutional. There were twelve regulations overturned by Judge Jones, the Third Circuit restored eleven of those regulations. The one regulation that they found in agreement with Judge Jones’ decision was that trade names could be used for funeral homes.
In their decision, the three judge panel stated, “[We] surmise that that much of the District Court’s conclusions regarding the constitutionality of the FDL (funeral directors law), enacted in 1952, stem from a view that certain provisions of the FDL are antiquated in the light of how funeral homes now operate. That is not, however, a constitutional flaw.”
In short, if the law is broke fix it through the legislature; do not legislate in the courts.
WHY IS THIS IMPORTANT?
This is the struggle for the future of funeral service. Progressive funeral home owners who realize the rapid change of the consumer’s desire in final care choices feel these regulations are from a bygone era and do not allow them to compete with today’s consumer seeking simpler services or more accommodations such as food service. The traditionalist funeral home owners feel these new regulations will degrade funeral service and not properly protect the consumer. These issues about ownership, preparation rooms in every facility, licensed funeral directors restricted from serving multiple funeral homes are issues many states are facing.
These issues pit funeral director against funeral director, both rural and metropolitan. It sets national associations against each other (National Funeral Directors Association filed a friend of the court brief for the defendants, International Cemetery, Crematory and Funeral Association filed a brief for the plaintiffs).
As the ground shifts under the feet of funeral service, can we hold our ground with 60 year old regulations or do we need to re-examine state laws to be competitive against other final care providers that keep appearing in every community?
The plaintiffs have announced their intention to appeal the Third Circuit Court’s decision. The game is not over however it will be an uphill climb for the progressive funeral directors.
Each state association and state board must carefully examine their existing statutes and regulations before a court does this for them.
The battle of wills continues:
“[The decision] affirms that sometimes you can’t use the court system as a substitute for industry and legislative engagement just because a given operator doesn’t like to laws.”
–Wilson H. Beebe, Jr, Executive Director of the New Jersey Funeral Directors Association.
“Those archaic laws that once served as a barrier to entry are quickly becoming a barrier to survival.”
–Alan Creedy, www.funeralhomeconsulting.org