The author in a recent article stated the following:

  “Probably the key decision involving competitive issues and state imposed restrictions is Heffner v. Murphy, 866 F.Supp.2d 358, M.D.Pa.,2012. This decision involved a constitutional challenge to the Funeral Director licensing law and rules issued by the Pennsylvania State Board of Funeral Directors by a group of funeral directors in Pennsylvania. Restrictions on ownership, requirements that limit the locations where a licensed funeral director could practice, requirements that each funeral home location have an embalming room, and restrictions against serving food and beverages in funeral homes were successfully challenged as not furthering the goals of competency, public health, accountability, and competition; or rationally related to any State interest. This decision has been appealed and Federal Court of Appeals decision has not been issued as of the time this article was published. The lower court and the Court of Appeals have dealt with some issues between the parties in other proceedings and there have been some published rulings issued since this decision was issued. The author believes that the Heffner Decision will have tremendous impact on similar laws and rules involving the industry in other states.”

  On October 9, 2013, the Judge in the case of Stoll, et al. v. the Minnesota Department of Health, Mortuary Science Section (MDH), et al. declared that embalming room requirement in every funeral home contained in Minnesota law was unconstitutional as it applied to the Plaintiffs in the case. The case was filed in the local District Court for the Second Judicial District and the file number is 62-CV-12-443. The 40-page opinion contains a detailed statement of the facts about the Plaintiff’s business operations, the competitive situation in Minnesota, health requirements and a review of the applicable Minnesota and Federal Constitutional law that might be of interest to any industry member that might want to challenge similar restrictions in Minnesota or their own states. However, the key part of the decision for purpose of this column is the following statements by the Judge:

“30. The court finds persuasive a recent federal district court decision that struck down Pennsylvania’s preparation-room requirement as a substantive due-process violation. Heffner v. Murphy, 866 F. Supp. 2d 358, 401-02 (M.D. Pa. 2012).”

“31. In Heffner, like this case, the government acknowledged that many preparation rooms are unwanted and go unused. The defendants in Heffner, like the defendants in this case, proposed legislation that would have exempted branch locations. In doing so, the defendants in Heffner, like the defendants in this case, told lawmakers that eliminating the preparation-room requirement at branch locations “can be employed without harm to the public or the services provided.” (“MDH has determined some funeral home licensing requirements may be eased without harm to the public. Specifically, the requirement that a funeral home contain an embalming and preparation room is removed provided all preparation is done at a central licensed location.”) Like the court in Heffner, this court does not credit defendants’ speculation that the preparation and embalming room requirement is rationally related to protecting the public at locations where the room goes unused. 866 F. Supp. 2d at 402.” (Citations to the record were eliminated from this quote)

  While the Stoll decision only applies to that Plaintiff, the author believes that this is just the first of many decisions that will be issued by courts in the various states as industry members challenged out dated and restrictive laws and regulations in the those states.