Additional notes for test 2 Flashcards
Consists of the rules and principals that society has established for the handling and disposition of the dead.
Funeral Law
- Crimes
- Common law
- Statute
- Classification of cries
- Misdmeanor
- Felonies
Criminal Law
- Tort
- Intentional
- Negligence
- Strict liability
- Contracts
- Business law
- Property law
Civil Law
- Common law
- Constitutional law
- Legislative law
- Administrative law
- Case law
Sources of United States Law
Part of the English law that is dervied from custom and judicial precedent rather than statutes or statutory law.
Common Law
- US constitution
- State constitution
Constitutional Law
- Federal statutes
- Us congress and senate
- Congressmen
- Senators
- Functions
- Us congress and senate
- State statutes
- Municipal ordinances
Legislative Laws
- State legislature
- MD General Assembly
- Passes public general and public local laws
- Raises revenues
- Appropriate money to fund government services
- Oversee state executive agencies (DHMH)
- MD General Assembly
State Statutes
- Local Government law
- Enacted by county/city council
- Enforced by county/city agencies
- E.g. curfews, trash, parking, development, etc.
Municipal Ordinances
- Federal Rules and Regulations
- FTC
- OSHA
- EPA
- State rules and regulations
- Promulgated by agencies
- Amended and adopted by the legislature
- Enforced by the Attorney General
Administrative Laws
- Federal
- State
- Stare Decisis
Case Law
- Jurisdiction
- Functions of the Court
- Judicial terminology
- Court procedures
The Judicial Process
- Consumer complaint referred to complaint committee.
- Request for response from licensee
- Agency/board investigation
- Complaint committee makes recommendation to the board
- Minor infraction- send letter/education
- Major infraction- Conflict resolution conference (CRC)
Administrative Procedure
- CRC- like a hearing
- 2 board members (licensee and consumer member)
- CRC makes a recommendation to the board.
- Board votes on CRC recommendation
- Board issues an order based on sanction.
- Fine, suspension, revocation of license
- Appeal rights of licensee
MD State Board Procedure
- Appeal by license to Administrative Law Judge (ALJ)
- ALJ recommendends determination to the board what he thinks of the ruling.
- Board does not have to accept finding of ALJ.
- Licensee can file appeal to Board’s decision with the circuit court.
Appeal Rights- Maryland State Board of Morticians and Funeral Directors
- State law and regulations
- Primary right of disposition
- Preneed
- Cremation
- Case Law
- Common Law (Probate)
- Federal Law (FTC Funeral Rule, OSHA, ADA wage and hour law, Truth in lending, etc.)
Sources of Mortuary Law
- Protect consumers
- Protect employees
- Improve quality of service to families we serve.
- Allow you to stay in business.
Why Follow Mortuary Law?
After undefined decomposition, the dead body ceases to be a dead body in the eyes of the law.
State v. Glass
Supreme Court analyzed what property rights one has in a dead body (1991).
- Quasi property right
- Court held spouse had possessory right to the body and the coroner’s taking of the corneas violated that right.
- Not commercial property
- Law provides bundle of rights to the next of kin.
Brotherton v. Cleveland
- Right to take the body for the purpose of disposition.
- Allow body parts to be used within the confines of the law.
- Exclude others from possession of hte body.
- Dispose of the body
- Invest these rights in the person with the right of disposition.
Quasi-Property (The Body)
Person who left a deceased person in the trunk of the car and then abandoned it. (Nebraska).
- Criminal offense to throw away or abandon any dead human body, or any portion thereof, in any place other than a regular place for burial and under properly issued death certificates.
State v. Robinson
Criminal penalties for the failure to bury or incinerate a corpse within a reasonable tie after death have been applied to funeral directors.
- Tristate Crematory scandal (Georgia)- crematory operator discarded over 300 bodies rather than cremating them.
Travis v. Daniels and People v. Ackley (New York)
Tristate scandal- Georgia
Death scene photographs of a public official were protected from disclosure under Freedom of Information Act (FIA).
- Court based its holding on cultural traditions and common law protections.
- Respect that civilations have provided to burial rights and their counterparts.
- Courts then acknowledged “well-established cultural tradition acknowledging a family’s control over the body and death images of the deceased.” as well as a survivor’s right of privacy in protecting the memory of the deceased.
National Archives and Records Administration v. Favish
- 6th Circuit court upheld Ohio law which prohibited protests within 300 feet of funeral.
- Balanced against 1st ammendment
- Court held State had a valid governmental interest in protecting the privacy of family members wishing to pay their final respects to the deceased.
Phelps-Roper v. Strickland (2008)
- 2006 funeral of Lance Corporal Matthew Snyder in Westminster, MD.
- Westboro baptist church- Fred Phelps
- Fringe antigay group
- Protesting Americans increasing tolerance of homosexuality
Snyder v. Phelps (2011)
- Signed by Obama in August 6, 2012
- Protesters must be at least 300 feet from military funerals from two hours before they start until two hours after they end.
Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012
- Lewis J. Allison, NASA meteorologists
- Created first weather satellites
- Died February 2, 2009
- Danzansky Goldberg Memorial Chapels- improper storage of the deceased awaiting burial at a military cemetery.
Board v. Sagel
- (A) Completely covered and prevent leakage or spillage except embalming, restoration, and dressing, and viewing during visitation.
- (B) 48 Hours from death an unembalmed body must be refridgerated (funeral home and crematory).
- (C) Most notify State Board if unable to refridgerate after 48 hours.
- (D) May not embalm without written permission of the person authorized to arrange for final disposition or a court order.
- (E) Funeral home establishment or crematory shall store a body of a decedent until final disposition.
- (F) A funeral establishment, crematory, or transportation service may not transport or store a body of a decedent together with animal remains in the same confined space.
Handling Human Remains With Dignity Act of 2012 (5-513)
- A fueral establishment
- Cremetory licensed under title 7
- Crematory under title 5 of business regulation article
- Another facility that has passed inspection by State Board of Morticians within 2 years.
(E) Funeral home establishment or crematory shall store a body of a decedent until final disposition.
- (G) 1- Except as provided in paragraph (2) of this subsection, while the body of a decedent is in the custody of a funeral establishment or crematory in the State, the body may not be transported for preparation or storage to a facility that is not within the jurisdiction of the state, license by the state board of morticians and funeral directors, or permitted by the office of cemetery oversight.
- (G) 2- The body of a decedent may be transported for preparation or storage to a facility that is not within the jurisdiction of the state, licensed by the state board of morticians and funeral directors, or permitted by the office of cemetery oversight if:
- The facility has entered into a written agreement with the state board or office of cemetery oversight to allow the state to make unannounced inspections of the facility; and the person authorized the arrange for the final disposition under 5-509 of this subtitle.
Restrictions of Transportation (5-513)
- Has given written permission for the body to be transported to the facility, or
- Has given oral permission for the body to be transported to the facility; and
- Within 36 hours after giving oral permission, provides written verification of the oral permission.
The person authorized the arrange for the final disposition under 5-509 of this subtitle:
Wife with custody could exclude father of child.
Radar v. Davis
Mother had right to exclude, cemetery responsible for breach of contract and mental anguish.
Ross v. Forest Lawn Memorial Park
Widow could rightfully exclude the decedent’s brother.
Haney v. Stamper
No legal right to be present.
- Obit. notes that funeral is private
- No announcement of the time or place of the funeral ceremony should be made.
- Indemnification forms to cover any personal injury or property damage in the event the exclusion leads to violence.
- Funeral director should require the next of kin to hire a security service (if disruption is possible).
Seaton v. Commonwealth
- At the time a licensee makes funeral arangements, the licensee shall give to the individual who requested the funeral arrangements a contract that includes:
- An itemized list of all services and merchandise that will be provided and the total price.
- To the extent possible, a specification of any item to which the licensee will advance money to accomodate the buyer
- The terms and method of payment.
- The contract shall be in duplicate and contain the signatures of hte licensee, other than an apprentice, and the payor of the requested service.
- A copy of the signed contract shall be given to the payor at the time the arrangements are finalized.
Health Occupations Article Title 7 Morticians and Funeral Directors- 7-404 Contract Required
A- Contract of Initial Agreement
In addition to the contract required under subsection (a) of this section, the licensee shall give to the individual who requested a funeral a similar written statement that reflects any change in the arrangements agreed to between the parties.
Health Occupations Article Title 7 Morticians and Funeral Directors- 7-404 Contract Required
B- Additional Statements
