Food Coming to a Funeral Home Near You (Maybe)

Judge strikes down Pennsylvania's "antiquated" funeral home law

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Anyone who's ever been to a Pennsylvania funeral home probably noticed they don't provide food there. State law prohibits it.

No more, if a federal judge has anything to say about it.

U.S. District Judge John Jones III struck down key provisions of the 60-year-old law that governs Pennsylvania's funeral home industry, declaring them to be outdated and unconstitutional.

The ruling, in a lawsuit filed four years ago by a group of about 30 funeral directors, affects longstanding restrictions on ownership, the use of trade names, the serving of food and other parts of a law that critics say has been preserved in embalming fluid since the Truman administration.

Jones heaped criticism on the ``ossified'' state board that regulates the funeral industry, saying its enforcement of antiquated rules has helped a cartel of funeral directors and their families maintain control.

"While we are certain that its members are upstanding and well intentioned, we can only describe the board as a whole as moribund. Time and again, in the face of the extreme scrutiny .  a clearly ossified board has refused to revisit regulations that appear both obsolete and ultimately unconstitutional,'' Jones wrote in a 159-page opinion posted last week.

The judge gave the board three months to respond to his ruling. Ron Ruman, a board spokesman, said it is under review. He declined further comment.

Lead plaintiff Ernest Heffner, a veteran funeral director in York, Pa., whose family owns 12 funeral homes, said bereaved families have long asked him to serve food. Because the regulations prohibit it, he's had to tell them no, ``which is ridiculous.''

"Too many funeral directors didn't want to be bothered with it,'' he said. ``I've heard funeral directors say, `I don't want people leaving crumbs in my home and having to clean up after them.' We're supposed to be doing what the customers want us to.''

The circa-1952 Funeral Director Law extends far beyond food. It prohibits a licensed undertaker from owning or even working at more than two homes; requires that every funeral home maintain an expensive ``preparation room'' even though it may not be needed; and mandates that, in most cases, funeral homes must be named after the proprietor _ an illegal infringement on commercial speech, Jones said. One of the plaintiffs, Jefferson Memorial Park Inc., hired a licensed funeral director who changed her name to Jefferson in order to comply.

The law also limits ownership of funeral homes to licensed funeral directors and their spouses, children and grandchildren. That has the effect of restricting competition, the plaintiffs said, while discriminating against gay or lesbian owners who are unable to bequeath it to their partners.

All of it has to go, Jones said.

He admonished the board to craft regulations that ``appropriately govern the funeral industry in this, the twenty-first century.''

"Astonishingly ... we conclude that the Board is virtually daring us to act in lieu of making these difficult decisions itself. If our surmise is correct, we have today filled the vacuum created by the Board's recalcitrance.''

Kathleen Ryan, general counsel and chief operating officer of the 1,100-member Pennsylvania Funeral Directors Association, said the trade group wants state regulators to pursue an appeal.

"It's almost unprecedented to have a court declare significant portions of a licensing law unconstitutional,'' she said Tuesday.

Ryan said the group considers some of the issues raised by plaintiffs, such as the serving of food and the naming of funeral homes, to be minor. But the group continues to believe that funeral home ownership ought to be restricted to licensed funeral directors.

"When you have a personal stake and an ownership interest in the business, I think you're going to be far more likely to be worried about what goes on there and how the public is served than if you're an employee of a big corporation,'' she said. ``It's the quality of the service.''

But Jim Kutz, a lawyer for the plaintiffs, predicted the ruling could spur competition by making it easier for large corporations to enter the business, encouraging consolidation and economies of scale.

"If you can do it cheaper, who benefits?'' he said. ``The laws should be about protecting the consumer and giving them options rather than funeral directors holding everybody hostage till you die and you really have only one place to go.''

Heffner, the funeral director, also said the restrictions on ownership don't make sense.

"I don't care who owns a firm that I need to compete with, it's my responsibility to compete and give the highest level of service we can,'' he said. "Restricting competition is not good for consumers.''

Copyright AP - Associated Press
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