The Funeral Law Blog

Mass.: Anti-Muslim Bias Transcends Death?

Earlier this year, the Islamic Society of Greater Worcester purchased 55 acres of farmland in the city of Dudley, Massachusetts, to use as a Muslim cemetery. However, their proposal was denied by town officials due to alleged “traffic and environmental concerns.” In response, the group filed a lawsuit against the town in Massachusetts Land Court claiming that the denial was based on anti-Muslim bias, and that town officials had engaged in discriminatory practices that violated the group’s religious rights.

Town officials released a statement denying the allegation, stating that the “Town's zoning and land use practices do not violate any religious rights of the Islamic Society, nor do such practices discriminate against any assembly or institution on the basis of religion or religious denomination." The Town further claimed that town meetings were held where residents of Dudley voiced their concerns about possible problems that could arise from the cemetery. Between the reasons stated were noise concerns, vandalism, an increase in traffic on the road where the cemetery would be built, and potential contamination of groundwater because “Muslims traditionally do not embalm bodies and bury their dead without coffins.”

Last August, Federal prosecutors launched an investigation to determine whether the town’s denial rose to discriminatory treatment under the Religious Land Use and Institutionalized Persons Act (RLUIPA). However, the question remains, is the town of Dudley basing their decision on anti-Muslim bias? More importantly, are they legally allowed to do so?

Unfortunately, Dudley isn’t the first town to resist construction of Muslim cemeteries. Carlisle, Pennsylvania; Farmington, Minnesota; and Farmersville, Texas, are among some of the Towns that have pushed back against Muslim cemeteries. The number of Department of RLUIPA investigations involving institutions related to Islam has increased 38% since September 2010.

In a similar case United States v. City of Lilburn from 2011, the Department filed a suit against the City of Lilburn, Georgia for “its unlawful conduct in violation of RLUIPA.” The suit alleged that the City of Lilburn changed its ordinance to prevent the Shia Muslim community to build a new mosque at its current location. “The suit included allegations that the city’s denial of approval was the result of bias against Muslims and that other similarly sized and situated places of worship had been permitted.” Ultimately, they reached a consent decree that allowed the Shia Muslim community to build a mosque.

Since implemented, RLUIPA has “protect[ed] individuals, houses of worship, and other religious institutions from discrimination in zoning and landmarking laws.”  It provides judicial relief for individuals whose rights are violated, and also “authorizes the Department of Justice to bring suit to uphold people’s rights.”  “Section 2(a) of RLUIPA bars zoning restrictions that impose a ‘substantial burden’ on religious exercise, unless the government can show that it has a ‘compelling interest’ for imposing the restriction and that it is the least restrictive way for the government to further that interest.”

To successfully argue that Dudley violated RLUIPA, the Department has to prove that the regulation (1) imposes a substantial burden, (2) on “religious exercise”, (3) of a person, institution or assembly.  There is no doubt that the Islamic Society of Greater Worcester satisfy prong 2 and 3, but whether a substantial burden exist is a relative determination. “[W]hether a given burden is substantial depends on its magnitude in relation to the needs and resources of the religious organization in question.” It seems that the religious group is currently significantly burdened because it has to bury it’s dead a distant 60-mile drive from Worcester. The Muslim cemetery “would make it much easier for Muslims in the area to bury and visit their dead.” It is unclear whether Dudley will let Islamic Society of Greater Worcester build their Muslim cemetery, but what is clear, is that both groups are not going down without a fight.

Debora Flores

The Struggle for Closure at Florida's Dozier School for Boys

Arthur G. Dozier's School for Boys, which opened in Marianna, Florida, in 1897, was the first juvenile detention center for boys in the state. The institution was active for over a century until its closing in 2011. The original statutory objective of the school was

"the making of . . . not simply a place of correction, but a reform school, where the young offender of the law, separate from vicious associates, may receive careful physical, intellectual, and moral training, be reformed and restored to the community with purposes and character fitting for a good citizen . . . ."

The school from its inception accepted boys of all races, but maintained segregation between its white and black "offenders." Young white men were kept to the south side of the school, while young black men were kept to the north—next to the unmarked northern cemetery. 

Dozier's history is plagued with accusations of abuse that did not seem to affect any real longterm change. This history and testimony from survivors of the institution inspired a forensic anthropologist from the University of South Florida, Dr. Erin Kimmerle, to initiate an investigation, with a plan to map the unmarked graveyard with ground-penetrating radar ("GPR"). A simple field survey lead her team to believe that the Dozier campus's northern cemetery contained more graves than the school's records provided for, and that a second cemetery existed on the south side of the campus. A permit for excavation was granted in 2013 and by 2014, Dr. Kimmerle's research indicated that there were 55 individuals buried on Dozier campus—twice the number the school had accounted for. 

The call for further investigation and its results led to discourse in the community. This was a sensitive topic, to the victims, the survivors, and family and friends of both, as well to locals without any direct connection to the school. The county, eager to clean its hands of the whole mess, tried to sell the land in 2012. The relative of a victim was able to get a judge to halt such proceedings. The people left behind by the tragedy of Dozier were hurting and wanted answers, while the locals of the area felt that the accusations being brought forth were a personal insult—they fought back by threatening to charge Dr. Kimmerle with the felony of disturbing "a human grave without authority," although no graves had been disturbed. 

The legal route also failed Dr. Kimmerle at this time. A judge denied a petition for exhumation, stating that Dr. Kimmerle's team failed to "meet the threshold for exhumation, [that] there must be more than a suggestion that an autopsy might be probative." Instead the evidence must show that exhumation shows a "good possibility that an autopsy would be revealing as to the cause of death." Judge wright cited the case Currier v. Woodlawn Cemetery, 200 N.Y. 162, 90 N.E.2d 18 (1949): "The quiet of the grave, the repose of the dead, are not lightly to be disturbed. Good and substantial reasons must be shown before disinterment is sanctioned."

While Dr. Kimmerle was able to successfully excavate and exhume the bodies at Dozier, validating the allegations of victims, survivors, and relative, the whole affair and its aftermath leaves plenty of questions behind: How was the school allowed to get away for this so long? How far does community pride go in shielding the evils happening in our own backyard? And why was respect for "the quiet of the grave" so much more important than justice? 

People have speculated on most of these questions for a lot longer than Dozier's excavation scandal has existed. One has to wonder, though—how could a judge find the graves of potential torture victims to be "quiet?" The broader concept of this question is what now plagues the community. The State has drafted and passed plans to turn the Dozier campus into a memorial while also covering "the cost of funerals, reinterment, and grave markers for the boys." Some people think that the legislature has no business getting involved in what happens to these boys' remains. Another camp may believe that these boys deserve this quiet of the grave often referenced to in the common law of human remains, and such quiet will not be found at the site where they suffered. Most everyone can agree that some memorialization is necessary, either for the individual victims, survivors, and loved ones, or to just acknowledge that something heinous occurred and was allowed.

Caitlin Stone

Why should time with your pets be limited to your life? In New York, your time can now be FURever

As a pet owner and an animal lover, I have come to know that over their short lifetime, pets become a member of your family. When a pet dies, even if your family later decides to adopt a new pet, the void is never truly filled from your beloved friend. Approximately 62% of American households own a pet, so this grieving process is fairly widespread. People grieve the loss of their pets in many ways and have turned to various methods of memorializing them postmortem. Many people decide to cremate their pets after they have passed, keeping the ashes nearby in their home, but the question has remained as to what to do with the pets' cremains when the owner eventually passes.

On September 26, 2016, Governor Cuomo helped to answer this question by signing legislation that allows New Yorkers to be buried with their pets' cremains in not-for-profit cemeteries. The new bill (S.2582/A.2647) allows pet owners the option to have their domestic pets' cremains buried with them, so long as they obtain the cemetery's written consent, but this legislation does not apply to cemeteries owned and operated by religious associations and societies. The interment of the pet cremains needs to be incidental to the burial of the human remains; they can be placed in a niche, crypt or a grave with their human. Not-for-profit cemeteries now will need to provide customers with an itemized list of charges pertaining to their pet's burial and any payments that are made for the pet interment are to be deposited into the permanent maintenance fund of the cemetery. 

This new legislation does not come without a lot of mixed emotions from New Yorkers. While animals cannot be buried by themselves in the human cemetery, many people do not like the idea that animals can now be buried in a plot next to where their loved one is at their final resting place. Other people are concerned with the cost that can be attributed to the addition of the pet, since the price of a burial is expensive as it is. Ultimately, there has been overwhelming support for this legislation considering that people now feel, as pet owners and lovers, their final wishes can be honored.

Alexa Gaudioso

Cemetery Tourist: The Complicated History of The Lee/Custis Estate and Arlington National Cemetery

I visited Arlington National Cemetery this weekend.  It was a beautiful day but I cannot help but think about the complicated history of the place when I visit there.  The following text is excerpted from How Arlington National Cemetery Came to Be, by Robert M. Poole in Smithsonian Magazine with photographs from my recent visit.  The first photograph is taken from the front yard of the Arlington House looking across the Potomac to the Lincoln Memorial, the Washington Monument, and the Capitol Building.  It was strategic high ground that the Union Army could not allow to remain in the hands of the general of Army of Northern Virginia—Robert E. Lee and his wife Mary Custis Lee, the step-great-granddaughter/adopted granddaughter of George Washington.

 

"One afternoon in May 1861, a young Union Army officer went rushing into the mansion that commanded the hills across the Potomac River from Washington, D.C. 'You must pack up all you value immediately and send it off in the morning,' Lt. Orton Williams told Mary Custis Lee, wife of Robert E. Lee, who was away mobilizing Virginia's military forces as the country hurtled toward the bloodiest war in its history.

 

Mary Lee dreaded the thought of abandoning Arlington, the 1,100-acre estate she had inherited from her father, George Washington Parke Custis, upon his death in 1857. Custis, the grandson of Martha Washington, had been adopted by George Washington when Custis' father died in 1781. Beginning in 1802, as the new nation's capital took form across the river, Custis started building Arlington, his showplace mansion. Probably modeled after the Temple of Hephaestus in Athens, the columned house floated among the Virginia hills as if it had been there forever, peering down upon the half-finished capital at its feet. When Custis died, Arlington passed to Mary Lee, his only surviving child, who had grown up, married and raised seven children and buried her parents there. In correspondence, her husband referred to the place as "our dear home," the spot "where my attachments are more strongly placed than at any other place in the world." If possible, his wife felt an even stronger attachment to the property. ...

 

Once the war began, Arlington was easily won. But then it became the prize in a legal and bureaucratic battle that would continue long after the guns fell silent at Appomattox in 1865. The federal government was still wrestling the Lee family for control of the property in 1882, by which time it had been transformed into Arlington National Cemetery, the nation's most hallowed ground. ...

When Property Owners Want to Block Access to Graves—The Story of a Penn. Churchyard

There are times when we are proud of state from which we hail, there are times we are not, and there are times when it’s a mixed bag. This past August a suit was filed in my home state, Pennsylvania, concerning the visiting of a churchyard cemetery. According to the Reading Eagle, Paul and Jean Dovin acquired a small parcel of land along Twin Valley Road that contained an 18th century stone church, and now are refusing to let loved one’s visit their dead. In fact, the suit only allows for family members to enter the property in order to exhume the bodies to another site.  

The Dovin’s have been calling “trespass” on visitors like Barbra Miller, a mother whose 3-year-old son is buried in the cemetery. Is it trespass to visit the graves of the lost? It seems the legal issues here are built on a multitude of misunderstandings. The Dovin’s property is privately owned, but they purchased the land without the knowledge that the cemetery was still functioning. Additionally, the previous owners of the cemetery were selling plots without a license. So begs the question: is lack of notice combined with illegal plot exchange grounds for excluding family members from visiting graves?

Answering the question is much more difficult than asking it. It boils down to 3 parts the licensing, the private property, and the human remains. The licensing is the clear cut, under the  Pennsylvania Burial Ground Act individuals operating as cemeteries i.e. selling grave sites must be licensed through the state's Real Estate Commission as they are involved in buying and selling deeds. It is no surprise the Dovins were unaware of the operation of the cemetery because the state of Pennsylvania was unaware. Is that enough though? Can past transgressions allow for the discounting of the current victims, family and friends, that just want to honor the dead? Should they have the right to visit their dead regardless?

It certainly isn’t that simple. While it is understandable that the Dovins were surprised to learn the cemetery was still functioning, they were aware the property included a cemetery— and shouldn’t that put them on per se notice of visitors?  Private property should always be respected, but regardless of its stated ownership status, don’t cemeteries function as quasi-private property more so than traditional private property? The term quasi is malleable and difficult to define, but that is exactly what allows it to fit here so well. The land is privately owned, but bears with it an expectation and acceptance that loved ones will want to visit the graves of the deceased, regardless of past licensure issues or current licensure standing.

The term quasi-private property is also consistent with how the common law views human remains—not as property. The problem is that the remains eventually decompose into the real property. The question then remains (no pun intended), when if at all do human remains cease to be human remains and therefore once again can be considered real property for purposes of exclusion? One answer to this question is in the suit itself—the exhuming exception. Families are able to enter the cemetery to exhume loved one’s bodies implying that some type of human remains, at least in the law’s eyes, are still present. Making it then unclear if the Dovins have the right to force the remains off their property, not because they own the remains, but because they own the land on which the remains reside or does the per se notice of owning land with a cemetery trump the inclination to “clean house” regardless of if the private property right of exclusion exists?

The only thing that is clear is the need for clarity. While everyone, accept litigators maybe, prefer to handle things outside the courtroom the one good we can hope for from this suit is clarification on these conflicting questions. And may be some peace for the loved ones and land owners alike would be nice in the process as well.

Brandy Nickoloff

In Tennessee, Mess of Bodies in Cemetery to Remain Interred and Unidentified

Due to unsuccessful attempts to uncover the identities of interred bodies , the state of Tennessee has recommended that the state withdraw its oversight of a Memphis-area cemetery closed down over two years earlier.

In early 2014, a family-owned cemetery by the name of Galilee Memorial Gardens was shut down by the state after the owner was accused of losing bodies and burying multiple people in single plots. Starting in February 2014, the cemetery was placed under state receivership after the owner was charged with and plead guilty to “burying bodies on adjacent land not owned by the cemetery and stacking multiple caskets in single graves.”

As for the maintenance of the cemetery, the owner left behind disordered burial records and hundreds of unkempt graves without markers. The landscape and ground at the cemetery was left unstable; in some places the ground was so undermined that it would give way beneath the weight of a person, and in other places the ground was so thin above a grave that there was not even enough dirt in which to stick a gravesite marker. This issue, in addition to the impossibility of knowing the precise locations and identities of people buried in the cemetery, discouraged the state from placing grave markers and disinterring bodies.

Many of those who have buried relatives in the cemetery wondered if they would ever be able to find the graves of their loved ones. Based on a Nashville hearing held by Davidson County Chancellor Carol McCoy in August 17, 2016, efforts to do just that will most likely be halted, as she appears to favor the state’s recommendation to end state receivership.

Chancellor McCoy noted that despite efforts to identify who is buried in the cemetery, some of the cases can only be answered with “best guesses.” In addition to recommending that bodies not be disinterred for identification, the state recommended that no more burials take place, meaning that those 573 persons who have told the state they own plots for future burials (only 279 of those being complete and validated claims of ownerships) will have to find another cemetery for their relatives.

According to an Associated Press study, laws regulating cemeteries in Tennessee are inconsistent enough to cause future cemeteries to encounter issues similar to those experienced at Galilee Memorial Gardens. Title 46 of the Tennessee Code governs the law of cemeteries in the state. Section 46-1-111 of that title outlines the records-keeping process that every cemetery must maintain, which includes detailing the date of burial and the lot or grave site of every burial and recording every interment site or every interment right sold to a consumer. Not keeping these types of interment records is a misdemeanor violation under Section 46-1-101(b) of the Tennessee Code. However, nothing in that chapter of the code mandates that the Commissioner of commerce and insurance follow up with or check these records; rather, the Commissioner is merely required to review cemeteries’ annual reports to make sure that cemeteries are properly managing their clients’ trust funds and deposits for interment. In essence, it is up to concerned citizens or family members of persons already interred to notice and report any possible deficiencies with cemetery management.

This gap in Tennessee laws and regulations, as well as in the laws of other states, might allow for cemeteries and their management companies or owners to find themselves in a situation similar to that of Galilee Memorial Gardens. In order to ensure that cemeteries within Tennessee do not and cannot commit these sorts of violations in the future, the laws need to be amended in order to fill in any possible gaps.

Nina Banfield

Rachmaninoff: Not back in the U.S.S.R.

 

Sergei Rachmaninoff composed his most famous works while studying at the Moscow Conservatory. His music reflects the best of the Russian Romantic tradition. A three-bar Russian Orthodox cross is on his tombstone. He is buried in the Kenisco Cemetery in Valhalla, New York.

And seventy-three years after he was laid to rest in the United States, Russia wants him back.

The Russian cultural minister claims that the United States is declaring Rachmaninoff’s legacy as its own and that his body should be exhumed and returned to his homeland. The composer’s great-great-granddaughter refuses. Rachmaninoff came to the United States in 1917 in self-imposed political exile; he died in the United States; his wife and daughter are buried next to him; and he became an American citizen eight weeks before he died. His great-great-granddaughter wonders, “After fleeing from one country to the next in life, as he did, is it too much to ask that he be allowed to rest in peace with his family?”

So, where will Rachmaninoff rest in eternal peace, and who gets to decide? The New York State Not-for-Profit Corporation law §1510(e) applies to Kenisco Cemetery. Pursuant to N-PCL §1510(e), a body may be disinterred upon consent of the cemetery corporation, the owners of the lot, and of the surviving wife, husband, children, if of full age, and parents of the deceased. This would appear to rule out the great-great-granddaughter’s authority in the matter, but in fact the court has applied a broader interpretation of allowable kinship in these cases. In the case In Re Ellman, 152 Misc.2d 656, 658(1991), the court allowed a sibling to petition for disinterment and as the closest surviving relative, the sibling had standing to represent the wishes of the decedent. The court also noted that the feelings of the sole surviving next of kin be taken into consideration. Id. Further, the court was clear that the only issue is whether there exists a good reason for the court to exercise its “benevolent discretion” to permit the disruption of “the quiet of [decedent’s] grave.” Id. at 659.

There is disagreement as to whether Rachmaninoff personally chose his place of final resting. However, the great-great granddaughter is likely to prevail if disinterment is pursued. She is adamant that Rachmaninoff should be with his family and in his adopted homeland for eternity—or until the issue arises for the next generation.

Lisa Roach

In Death They Were Not Alone—a guide to The New York Times coverage of Hart Island from 1869-2016

I admit that I am conflicted about the controversy surrounding Hart Island, the potter's field that has served New York City since the 1840s.  Isolated on an island and operated by the New York City Department of Correction, Hart Island is the last resting place of approximately 1 million New Yorkers -- each in an individual casket but stacked in trench graves.  Many view this as disrespectful to New York's indigent dead because of the limited access, the lack of individualized graves, the use of correctional labor, and the use of trench graves.  Many other cities, on the other hand, cremate the indigent dead or donate their cadavers to a variety of institutions and educational facilities, including mortuary schools, dental schools, and medical schools.  Which of these options is more or less respectful? 

The trench graves at Hart Island, shown in an 1890 photograph by Jacob Riis:

The New York Times has written extensively about Hart Island over the years.  If you want to get up to speed on the history of this unique burial ground and the modern controversy surrounding it, you can do so without every leaving The New York Times website. 

The Old Potter's Field (The New York Times, May 31, 1853)

The City Authorities are cutting a street through the old Potter's Field, in East Fiftieth-street, where so many victims of the Cholera were hurriedly interred in 1832. The coffins were then, in many instances, stacked one upon another; and now, in digging through the hill, the remains of twenty coffins may be seen thus piled together. It is altogether an unpleasant sight, but does not seem to cause any interest beyond the immediate neighborhood.

New Potter's Field (The New York Times, March 29, 1854)

A proposition is before the Board of Governors for the purchase of additional lands on Ward's Island for the purposes of a City Cemetery, or Potter's Field. It is time that the remains of paupers were interred in some quarter better fitted for their last resting-place than the one now used on Randall's Island. A more disgusting spectacle can scarcely be conceived than the trenches filled with coffins, loosely covered with earth and subject to trespass, which now receive the bodies of the City's poor. The old Potter's Field was a disgrace to the City, years ago; and continued use has made it much worse. The dictates of propriety point to the obvious requirement of a new location.

Powerpoints from NYSAC: Invention of American Cemetery Law & Emerging Developments in Death Care Law

I had a great time at the 88th Annual Fall Conference of the New York State Association of Cemeteries.  I was privileged to speak on two topics -- "The Invention of American Cemetery Law" and "Emerging Developments in Death Care Law."  If you're interested, the powerpoint presentations that I used are posted below.

Download 9-19-2016 Invention of American Cemetery Law

Download 9-19-2016 Emerging Developments in Death Care Law

Tanya Marsh

Consumers Stand to Lose in Battle Between Pennsylvania Funeral Directors and Cemeteries

A “turf battle” between funeral directors and StoneMor Partners, a public company that has a 60-year deal with the Archdiocese of Philadelphia to manage 13 Catholic cemeteries in the Philadelphia area, threatens to impose restrictions on cemeteries throughout Pennsylvania that will reduce consumer choice and raise prices. The Pennsylvania Funeral Directors Association supports Senate Bill 874, co-sponsored by Senator Robert Tomlinson (R), owner of Tomlinson Funeral Home in Bensalem, Pennsylvania.

The bill proposes several changes to the Pennsylvania Cemetery and Funeral Merchandise Trust Fund Law.  If a person purchases funeral or cemetery goods and services on a preneed basis in Pennsylvania, current law requires that the funeral home or cemetery deposit 70% of the retail sales price of the goods or services in a merchandise trust fund established with a Pennsylvania bank. Customers can pay for a preneed contract in one lump sum, or in payments over time. The law currently states that the funeral home or cemetery must make the deposit to the merchandise trust fund within 30 days after the final payment is made. So, if a customer is paying over, say, 60 months, the seller isn’t required to make the 70% deposit into the merchandise trust fund for five years. SB 874 proposes that the 70% deposit must be made each month that the seller receives payments on the preneed contract.

SB 874 also provides that “there shall be no delivery of merchandise or product, except for mausoleums, cremation gardens, markers and lawn crypts, prior to the death of the person for whose benefit the contract was made.” This change eliminates “constructive delivery” of caskets and vaults in Pennsylvania. Under the current law, a customer could enter into a preneed contract and the seller could immediately take their funds and purchase the casket or vault and then “warehouse” them until the time of need. Cemeteries “warehouse” vaults by installing them into the ground, sometimes years before they are actually used.

The changes regarding the timing of deposits to the merchandise trust fund and the end of constructive delivery are pro-consumer changes. But consumer protection isn’t the goal of SB 874. That is clear in the bill’s failure to change one of the most anti-consumer aspects of the Cemetery and Funeral Merchandise Trust Fund Law—the liquidated damages provision.

Under current Pennsylvania law, if a customer defaults on a single payment under a preneed contract (even the final payment), the funeral home or cemetery is permitted to retain 30% of the contract price (not the payments to date, but the total contract price) as liquidated damages. So, let’s say I enter into a preneed contract with a funeral home today for $10,000 worth of funeral goods and services, with a plan to make $1,000 payment each year for the next ten years. The funeral home will collect my payments and deposit 70% in the merchandise trust fund with the remaining 30% in their own special account. If I default at any time during that ten-year period, the funeral home is permitted to keep $3,000 of my payments as liquidated damages and terminate our preneed contract. Keep in mind that the funeral home hasn’t actually spent any money on goods and services to benefit me—they have just been collecting payments and waiting for me to die.

These liquidated damages are justified by the industry based on the seller’s need to be compensated for their time and effort in securing the preneed contract. But that logic is undermined by the very different treatment of customers who make their payment without default and then move out of state after the final payment. In that situation, the customer can cancel the contract and receive a refund of the entire prepayment. The seller, however, gets to keep the interest earned.

The real purpose of the bill is made clear with the seemingly innocuous provision that “a [preneed] seller must … adhere to the Federal Trade Commission’s Funeral Industry Practices Revised Rules regarding the sale of the merchandise.” This reference is to the FTC’s so-called “Funeral Rule,” which requires “funeral providers” (which are sellers of both funeral goods and services, i.e. funeral homes) to give customers detailed price lists and to make certain disclosures. The FTC Funeral Rule does not apply to cemeteries because they do not sell “funeral services.” Many of the disclosures required by the Funeral Rule make little sense if they are imposed on cemeteries. For example, the Funeral Rule requires funeral providers to include the following disclosure on their outer burial container (vault) price list: “In most areas of the country, state or local law does not require that you buy a container to surround the casket in the grave. However, many cemeteries require that you have such a container so that the grave will not sink in. Either a grave liner or a burial vault will satisfy these requirements.” If a cemetery is required to publish an outer burial container price list with this disclosure, consumers would be understandably confused.

Cemetery customers in Pennsylvania, prepare to be confused. SB 874 proposes to extend the FTC Funeral Rule to cemeteries in Pennsylvania. In a comment letter dated October 20, 2015, the FTC’s Office of Policy Planning and Bureau of Economics, Competition, and Consumer Protection urged the Pennsylvania legislature not to extend the Funeral Rule to cemeteries. The FTC noted that in its 2008 review of the Funeral Rule, it chose not to extend it to cemeteries because “there is insufficient evidence that commercial cemeteries, crematories, and third-party sellers of funeral goods are engaged in widespread unfair or deceptive acts or practices.” The FTC also noted that extending the Funeral Rule to cemeteries would lead to consumer confusion because the FTC Act is not applicable to most non-profit entities. Approximately 70% of the active cemeteries in the United States are owned by non-profit entities such as municipalities and religious organizations.

In its comment letter, the FTC also argued against ending constructive delivery, at least with respect to vaults, noting that it may be much more cost effective for a cemetery to install vaults in bulk rather than one by one. The FTC noted that consumer demand for pre-need funeral goods and services was growing, but the cumulative effect of the changes proposed by SB 874 would make it less attractive for cemeteries to engage in pre-need sales. SB 874 would “lessen competition, resulting in potentially higher prices and fewer options for consumers, without countervailing benefits to consumers.” Now, let’s see, if consumers continue to demand pre-need funeral goods and services yet the rules make it less attractive for cemeteries to offer those goods and services, where will consumers go? Oh right, the funeral homes.

In fact, the Pennsylvania Cemetery, Cremation and Funeral Association (PCCFA) argues that SB 874 is a thinly veiled attempt by the state to protect funeral homes from competition from StoneMor Partners. Before StoneMor Partners took over management of the Philadelphia-area Catholic cemeteries in 2013, funeral directors in and around Philadelphia had a monopoly on selling caskets and vaults in the Catholic cemeteries. PCCFA, which represents cemeteries across the state, is understandably upset that a “classic turf war over who can sell caskets and vaults” in the Philadelphia Catholic cemeteries threatens cemeteries and consumers across the state.

Former Pennsylvania Cemetery, Cremation and Funeral Association President Guy Saxton summed up the response of the Pennsylvania cemetery industry in testimony on the legislation. Directing his comments to Senator Tomlinson, the funeral director who co-sponsored SB 874, Saxton said: “I know you don’t like StoneMor, but I’m not StoneMor. And this bill puts me out of business. And everything I’ve heard today tells me that this bill is not in good faith. It’s not trying to help the consumer, it’s attempting to put StoneMor out of business, and we’re collateral damage.”

Tanya D. Marsh