Pennsylvania Funeral Law Mostly Upheld

     (CN) - The 3rd Circuit has upheld regulations that let police inspect Pennsylvania funeral homes without warrants and bar directors from owning more than one parlor.
     A group of funeral homes filed suit in May 2008, challenging the constitutionality of the Funeral Director Law (FDL), enacted in 1952 to regulate the examination, licensure and registration of funeral home directors.
     The plaintiffs alleged that the law violates the Fourth Amendment in allowing the Pennsylvania Board of Funeral Directors to conduct warrantless and unannounced inspections of funeral establishments.
     The FDL also restricts licensees to owning only one funeral home with a single branch, and limits the estates of deceased licensees from continuing to operate the home after three years.
     Opponents said these provisions, and one that restricts ownership of an interest in funeral homes to those licensees licensed before 1935, violate the commerce clause.
     The plaintiffs further took issue with a provision that requires every funeral home to include a room for corpse preparation, saying it unfairly prevents out-of-state competitors from embalming in a centralized facility to service other locations.
     In requiring homes to employ full-time supervisors and not conduct food service, the complaint said the FDL violates the 14th Amendment's substantive due process clause.
     The funeral homes also claimed that the FDL also violates the First Amendment in banning the use of trade names and the payment of commissions on sales to unlicensed agents.
     And finally they alleged a contract clause violation in the law's provision that directors who enter into pre-need contracts for funeral services must deposit 100 percent of any advance payments into an escrow or trust account.
     A federal judge granted the plaintiffs summary judgment, but the Philadelphia-based 3rd Circuit partially reversed Wednesday.
     "Although the need for unannounced inspections of funeral parlors may not be as great as for other kinds of businesses, that does not negate the need for surprise inspections of funeral parlors," Chief Judge Theodore McKee wrote for a three-judge panel. "The board need not show that warrantless searches are the most necessary way to advance its regulatory interest." (Emphasis in original.)
     Pennsylvania's licensing requirements are also above board, the court found.
     "The state has made a rational decision that consumers in need of funeral services are better served by licensed individuals who, in the usual case, are not shielded by the cloak of corporate ownership," McKee wrote.
     The "burden" that the preparation room requirement imposes on interstate commerce is "not so significant as to 'clearly outweigh' the state's asserted interests in minimizing the time between death and embalming, reassuring customers that the remains of their loved ones will be in the funeral home's custody at all times, minimizing the possibility of accidents in-transit between embalming facilities, and ensuring accountability," the 48-page opinion states.
     But the lower court properly found that the restriction on trade names for funeral homes violates the First Amendment, according to the ruling.
     "A funeral director operating a home that has been established in the community, and known under his or her predecessor's name, does not rely on his or her own personal reputation to attract business; rather, the predecessor's name and reputation is determinative," McKee wrote. "Nor does a funeral home operating under a former owner's name provide transparency or insight into changes in staffing that the board insists is the legitimate interest that the state's regulation seeks to further."