A fixed place for the conducting of funerals and/or for the care and preparation of the dead prior to disposition.
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.
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.
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:
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)
- Zoning Regulations
Location of the Funeral Home
Nuisance is under:
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.
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.
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.
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.
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.
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
A funeral home may not be established in this kind of area since it constitutes a business.
Funeral homes may be established in most areas zoned for this kind of use. This offers the funeral home protection against objecting neighbors.
The court dismissed the suit noting that the funeral home was located in a district zoned for business use. The zoning ordinance shielded the funeral home from the nuisance claim.
Linsler v. Booth Undertaking Company
- Municipality adopts a new zoning ordinance or changes an existing ordinance, it will often "grandfather" existing non-conforming uses.
- When establishing residential areas by zoning regulations, a municipality may permit professional offices to be operated out of a residence.
- Residential zoning ordinances have also occasionally permitted places of assembly or public or quasi-public buildings to be maintained in a residential area.
Exceptions to Funeral Homes Being Unable to be in a Residential Zoned Area
Once the funeral home operation ceases in that building, it can no longer be used as a funeral home.
"Grandfathered" Funeral Homes
Most jurisdictions that permit such office use by professionals have ruled that funeral directing is not a profession that qualifies for this exception. The prevailing view by courts is that the occupation of a funeral director is a business and not a profession.
Professional Offices Operated out of a Residence
These are enacted to permit theaters to other places of amusement in neighborhoods. Most courts have ruled that funeral homes do not qualify as either a place of assembly or a public building, and therefore, this exception is not available to funeral homes.
Use of Places of Assembly or Quasi-Public Buildings in a Residential Area
If the funeral home is in a residential area, there will often be opposition from neighbors. Some funeral homes have been able to successfully argue that the crematory retort is an "accessory use" to the funeral home.
Construction of a Retort in a Funeral Home
Most zoning laws will permit the property owner to construct buildings on the property which are consistent with the:
Principal Use of the Property
Uses of land that are found on the same parcel as the principal use but are subordinate or incidental to the principal use.
- i.e.- Detatched garage
An evaluation of the area should be made to ascertain if neighboring landowners will object to the funeral home. The assistance of a real estate attorney with expertise in zoning matters is usually recommended.
If no Zoning Ordinances are in Place
- Shipping services
- Removal and livery services
- Embalming facilities
- Refridgeration and storage facilities
Businesses Other than Funeral Homes and Funeral Directors Offering Death Care Services
In response to emerging businesses, especially in the increase of crematories, states have began to update and expand their _____ _____ and regulations.
Provide disabled individuals with full use and enjoyment of public accomodations.
- This section of the act took effect in 1992
- Requires businesses to remove architectural, communications and transportation barriers, provided that the removal is "readily achievable"
One of the Principal Purposes of the Americans with Disabilities Act
Removal can be accomplished without much difficulty or expense taking into consideration the cost of the removal as well as the size and financial resources of the business.
Since funeral homes are defined as these, they are subject to the public accomodations section of the ADA.
- Stringent standards
- Relaxed standards
Two Sets of Standards for Public Accomodations
For those buildings or additions that were occupied after January, 1993. SInce the law was enacted in July, 1990, any new building that was constructed for occupancy after January, 1993 should have been designed to fully comply with these.
ADA Stringent Standards
- Erect permanent ramps, widen entrance doorways, make curb cuts and designate disabled parking areas.
- Provide access to areas of the public accomodation where goods or services are made available to the public.
- Establish acccess to restroom facilities.
- Take any other measures needed to insure access to goods, services and the facilities of the public accomodation.
Priority List for Americans with Disability Act
Owner to provide access to the facility from public sidewalks, parking facilities, and public transportations.
Erect permanent ramps, widen entrance doorways, make curb cuts and designate disabled parking areas.
- Insure access to chapens and visitation areas, arrangements offices and casket sales areas.
- Assistive listening devices installed in chapels.
- Furniture should be rearranged to permit sufficient space in aisles for access by wheelchairs.
- Shelves and other displays should be repositioned so that the same items can be displayed to those who are not standing.
Second Priority- Provide Access to Areas of the Public Accomodation where Goods or Services are Made Available to the Public
- Doors and toilet stall areas should be widened
- Toilet seats raised
- Grab bars installed
- Paper towel dispensers lowered
- Full length mirrors installed
Third Priority- Establish Access to Restroom Facilities
- Repositioning public telephones
- Lowering drinking fountains
- Removing any high pile carpet which impedes access by wheelchair bound individuals
- Adding raised markings on elevator control buttons for sight impaired individuals
- Installing flash alarm lights for hearing imparied individuals
- Installing accessible door hardware
Final Priority- Insure Access to Goods, Services and the Facilities of the Public Accomodation
- The cost and nature of the removal
- The overall financial resources of the business, the number of people employed at the site, the expense of instituting the removal, and the impact it will have on the operation of the business.
- If there is a parent company, the overall resources of the parent. For example, a barrier removal is not readily achievable for an independent firm may be readily achievable by a firm that is part of a large conglomerate.
Factors Determining "Readily Achievable"
The owner of the public accomodation is the judge of what is readily achievable. The regulations promulgated under the ADA indicate that each case will be judged on its particular facts and weight will be accorded to the business judgement of the owner.
Cost and Nature of the Removal
Has the burden of proof in showing that the removal was not readily achievable.
- Show that the business engaged in a self assessment and made a deliberate decision not to remove a barrier, it will show a minimum good faith effort with compliance.
- Show that the owner instituted, or at least investigated, alternatives to the barrier removal.
Two Factors that Help the Owner's Defense
Protects not only disabled individuals but also anyone with a close relationship to the disabled individual. (Family members are generally within the scope)
A funeral home that refuses to embalm someone who dies of this or offer funeral services has violated the ADA. The family members of that deceased individual may bring an action under the ADA against the funeral home since these cases may be safely embalmed by adhering to universal precautions.
The funeral home would be within its right to refuse to emblam. Example: CJD where the funeral home would not have the equipment nor the expertise to embalm without creating a risk of infection.
If Embalming Does Pose an Undue Hazard to the Safety of the Embalmer
Contagious disease surcharges for emblaming are prohibited by the ADA
Funeral Homes Cannot Impose Surcharges for Extra Costs that may be Imposed
Funeral homes that conduct visitations and funeral services must provide interpreters upon the request of a deaf attendee. The funeral home may not impose any cost or fee in doing so.
- Even at services not held at the funeral home.
Deaf Individuals and Require Interpreters to Communicate
Inforces the public accomodations section of the ADA.
US Attorney General's office or Private Individuals
- First offense $50,000
- $100,000 for subsequent violations
- Court may award attorney fees to private plaintiff
Public Accommodation Found to Violate the ADA