Mortuary Law- Chapter 9 Flashcards
A fixed place for the conducting of funerals and/or for the care and preparation of the dead prior to disposition.
Funeral Home
Depends upon the activities carried on at the place. Generally:
- if dead bodies are taken to the establishment for preparation prior to burial or other disposition
- Funerals are conducted at the establishment (other than a religious establishment or public hall).
Whether an Establishment Constitutes a Funeral Home
Just as this authorizes the licensing and regulation of the funeral directors, it also permits the licensing and regulation of funeral homes.
Police Powers of the State and Local Governments
In most states, there are ______ _____ and _____ ________ governing the operation of funeral homes.
Comprehensive Laws and Administrative Regulations
Funeral homes are subject to inspection by government agencies to insure hygiene, healthy and safety. Moreover, funeral homes are increasingly under the scrutiny of the _____ ____ ___ ____ _________, the federal agency responsible for safe working conditions.
Occupational Safety and Health Administration
With regard to licensing, ______ have routinely upheld restrictions that state governments have placed on who may operate a funeral home.
Courts
The court ruled that the law served a legitimate state goal of protecting the public. The court reasoned that since professional and restricted corporations were owned by licensed funeral directors and their families, the legislature could reasonably assume that these operations would conduct their businesses in accordance with the highest standards of the funeral profession. However, since business corporations could be owned by non-licensed shareholders, the profit motives of the share-holders could influence the funeral home’s operation so that it was not conducted in accordance with the standards of funeral homes owned by professional or restricted corporations.
H.B. Brandt Funeral Home v Commonwealth
Along with Pennslyvania, restricts funeral home ownership to licensed funeral directors.
Maryland
The state argued that the law promoted familiarity between the owner and his business. The court accepted that as a valid reason and cited the lower court’s finding that ownership may be limited to highly skilled occupants where licensing is required, such as mortuary science. The court found that the licensing restriction was justified by “very real benefits of protecting the public health, safety, and welfare by encouraging familarity of the owner of a funeral business with the day-to-day workings of that business and creating accountability to regulators and to clients.”
Maryland: Brown v. Hovetter
While courts will routinely uphold laws restricting funeral home operations that have any rational relationship to public health or safety, courts tend to examine administrative regulations of state boards with:
Greater Scrutiny
The court rejected a rule of the State Board that prohibited a funeral director from serving as a manager of more than one funeral home. The court held that the regulation did not have any reasonable relationship to safegarding of the public health.
Labach v. Board of Embalmers and Funeral Directors (NJ)
The court found that the State Board could not prohibit the serving of food or intoxicating liquor in conjunction with a funeral since such powers exceeded the Board’s statutory authority.
Golubski v. Board of Embalmers (NE)
- Nuisance
- Zoning Regulations
Location of the Funeral Home
Nuisance is under:
Common Law
An invasion of a landowner’s interest in the reasonable use and enjoyment of his land. An unreasonable, unusual, or unnatural use of one’s property so hat it disturbs the peaceful, quiet and undisturbed use and enjoyment of nearby property.
Nuisance
In communities iwhere the location of funeral homes is not governed by ______ ____ or other regulation, funeral homes have sometimes been the target of nusiance actions brought by adjoining landowners.
Zoning Laws
Typically, nuisance suits have alleged that the presence of the funeral home causes _____ ____ to neighbors as well as depreciation in property values. In some cases, where funeral homes are located in an area that is strictly or predominantly residential in nature, funeral homes have been found to be a nuisance.
Phychological Depression
The court held that the proposed establishment of a funeral home in a long-standing residential neighborhood would constitute a nuisance in that it would depreciate property values and inconvience, disturb, and depress neighboring homeowners.
Higgins v. Bloch
Property owners sought to stop a funeral home by arguing that it would depress property values. The court dismissed this suit noting that there were four or five other businesses within two blocks of the proposed funeral home. Therefore, when the area in question is a mix of commercial and residential uses, nuisance suits generally will not prevail.
Potter v. Bryan Funeral Home
As part of ____ ____, municipalities have the funeral authority to adopt zoning ordinances.
Police Powers
A regulation dividing the municipality into geographical sections and specifying for each section the nature, character and use of buildings or occupancy within that section.
- i.e., the zoning plan may designate a certain area as “residential”, thereby precluding the establishment of business enterprises in that particular area.
Zoning Ordinance
Although many older funeral home buildings in the country may have at one time served as residences, it is well-recognized that a funeral home is a:
Commercial Use or Business Use of Property
