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The Real Discussion

Posted by Steven Palmer on July 1, 2016

  “What the people of the United States and Alabama need to do is pay more attention to the laws that are being passed.”  –Sheila Champion of The Good Earth Burial Ground

  All of our states have some outdated or quirky laws that are still on the books.

  Such as: In Connecticut a pickle is not a pickle if it does not bounce. In Nebraska it is illegal for bar owners to sell beer unless they are simultaneously brewing a kettle of soup.

  There are still some states that have the law that only licensed funeral directors can sell caskets.

  As a licensed funeral director and funeral home owner, I believe I have the right and the obligation to offer an opinion. When you are able to buy medications online, when you are able to buy contact lenses and hearings aids online (who is fitting these items? no one), when you buy exercise equipment you assemble (possibly incorrectly), where you buy your tires and who installs them; all of these are dangers to consumers.

  When we tell the families that we serve, consumers, that buying third party caskets are a danger, we stretch the lines of credibility. “They protect the public health.” Why, because they have a rubber gasket? The family can purchase that online even if a legitimate issue. “It is to protect the consumer.” Why? Third parties would not be selling caskets if we had not pushed them to do this.

  How did we do this? In the days of the 3- to 5-time mark up, families knew they were paying too much for the burial containers they were looking at. I don’t know what a suit costs the men’s clothing store, but I have a feeling when I am and when I am not getting a fair deal.

  Sheila Champion recently sued the Alabama Board of Funeral Service over the law that forbids anyone but licensed funeral directors from selling caskets. Champion is the owner of Good Earth Burial Ground in Hazel Green. The green cemetery owner wanted to sell biodegradable cardboard caskets.

  Champion’s attorney, Renee Flaherty, of Institute of Justice, told The Daily Signal, The Heritage Foundation’s web newspaper, “I think the bottom line in this case is that Alabama requires a license to sell a cardboard box.”

  “This case touches on a really important issue that the federal courts are in a disagreement about. And that is, whether laws like this that their only purpose is to protect private financial interest, in this case the licensed funeral directors, whether that kind of economic protectionism is a legitimate interest of government.”

  Governor Robert Bentley signed a bill that removed the sales of “funeral supplies and merchandise” from the definition of funeral directing.

  There are several other states that have had their ban on third party casket sales tested.

  State of Oklahoma vs. Stone Casket Company: The state said the casket company, unlicensed as a funeral home, was not legally able to sell caskets to the public.

  The casket company argued that it violated federal and state constitutions.

  The District Court of Oklahoma decided that “there was no compelling state interest, which would require a person who is solely in the business of selling caskets to meet the same qualifications as funeral directors or embalmers or to be held to the same standards that the state requires of funeral directors.”

  The Oklahoma Court of Civil Appeals opined that “Such laws protect the public health and safety of the citizens of Oklahoma.” The 2-1 vote overturned the previous decision.

  Their decision continued, “A casket is part of the funeral service business and cannot be separated as an independent item. The casket, in which human remains are buried, directly impacts sanitation…We hold that the manufacture and sale of caskets is part and parcel of the funeral business and licensing qualified persons engaged therein is a proper exercise of the police powers of the state.”

  Attorney Doug Meyers of Woodland Hills, CA taught me a wise proverb many years ago: “If you can’t justify it, don’t try it.”

  Sanitation: What if the family chooses fiberboard? Part and Parcel: I can have my wedding reception at the Marriot, but I cannot have a wedding cake brought in?

  In Georgia (1999), Peachtree Caskets Direct v. State Board of Funeral Service issued a permanent injunction that would prohibit state authorities from enforcing a statute which prohibited “the sale of caskets and alternative containers for human remains by any person who is not licensed as a funeral director and at any place other than a licensed funeral establishment.”

  In South Carolina, Workman v. South Carolina Department of Labor, Licensing and Regulation (2000), Workman had opened a retail casket store. Workman was licensed as a funeral director but she only sold caskets and related merchandise. The state claimed you must have full funeral home facilities to sell these products. The Administrative Law Judge upheld the decision.

  The Court of Common Pleas reversed the ALJ’s decision and so ordered that a license be granted to the appellant doing business as Casket Sales and Garments. The ruling was a smaller victory than expected as it only prohibited it to require a casket store run by a licensed funeral director to include an embalming room, a chapel and a hearse.

  In Craigmiles v. Giles: Reverend Nathaniel Craigmiles wanted to offer a retail store that would sell caskets at a lesser price than the funeral homes. The State of Tennessee and the Board of Funeral Directors and Embalmers ordered him and other retail casket stores to stop selling burial containers because they are not licensed funeral directors.

  From the Institute of Justice: “Even though casket retailers don’t perform funerals and don’t handle dead bodies, the State of Tennessee had required anyone selling caskets in the state to secure a government-issued funeral director’s license, which required years of training at a cost of thousands of dollars and required individuals seeking the license to embalm 25 dead bodies.”

  Individual funeral homes have also run afoul of the Federal Trade Commission. In 2012 the Andrew Torregrossa & Sons Funeral Home paid a fine of $32,000 to settle a civil penalty lawsuit after telling consumers on two separate occasions that they would not serve them if they purchased a casket elsewhere

  There are many other such jousts between funeral boards and casket retailers. There is only one reason why the public has sought to purchase caskets from other sources than their local funeral home. We are to blame. When families see caskets at $5,000 in a funeral home, but a website sells the same casket at $1500, they will seek this vendor. We drove them away.

  Our survival is funeral service, not casket sales, Funeral service is the significance in what we do, and it is the reason we exist. Full body donation agencies give the family a free cremation. Hotels and resorts, yacht clubs and country clubs offer memorial service packages. We must find the importance of our offerings and why we should be engaged to perform the final care and supply the appropriate merchandise to family members.

  Let us close the lid on outdated arguments and open the discussion on our relevance now and in the future.

  “The evidence also shows Tennessee does not really believe that caskets play any role in the promotion of public health and safety. The State does not require the use of a casket…a former Tennessee Governor, Ray Blanton, was buried in a casket an acquaintance built for him.”     –US District Court, Eastern District of Tennessee.


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