Funeral directors sue state board

Dispute is over Maryland licensing requirements, fees

Friday, March 3, 2006

by Marcus Moore and Kevin Conron

Staff Writers

Five funeral directors are suing the Maryland State Board of Morticians, claiming it enforces a law that violates their right to own a funeral home.

The lawsuit, filed in U.S. District Court in Baltimore by the Institute for Justice of Arlington, Va., seeks relief for the plaintiffs against a portion of the Maryland Morticians Act. The act includes provisions that prohibit unlicensed funeral directors and their surviving spouses from owning a funeral home, and requires special corporate licenses.

The law ‘‘unduly burdens interstate commerce” and discourages out-of-state companies and entrepreneurs from doing business in Maryland, according to the lawsuit.

The board, part of the Maryland Department of Health and Mental Hygiene, is responsible for regulating the funeral home industry.

Department spokesman John Hammond declined to comment on the lawsuit.

Grant Gerber, the board of morticians’ assistant attorney general, said, ‘‘We don’t comment on active litigation.”

Brian T. Chisholm, a Florida resident who once lived in Maryland and owns Brian T. Chisholm Funeral Services in Timonium, wants to own a funeral home through a corporation, but says he can’t afford the fees, which range up to $250,000, to buy a special corporate license.

Joseph B. Jenkins III, a third-generation funeral director in Takoma Park, also wants to open a funeral home, but does not have the money for a special corporate license. Because of the restrictions in the Maryland Morticians Act, Jenkins would form a corporation to own a combination funeral home and cemetery. According to the lawsuit, Jenkins has already commissioned architectural plans and drawings.

The other plaintiffs — Charles S. Brown, Gail Manuel and John Arminger — are not licensed funeral directors, according to the lawsuit.

‘‘Maryland’s law is a racket designed to protect the state’s funeral cartel from competition, and that’s not a valid use of government authority,” Clark Neily, senior attorney with the Institute for Justice, said in a statement.

Under Maryland law, the institute said, a person is not allowed to own a funeral home even if he hires a licensed funeral director to oversee the funeral home’s day-to-day operations.

‘‘It’s like saying that someone must be a pilot to own an airline,” Neily said.

Jeff Rowes, an Institute for Justice attorney, said, ‘‘There are no genuine health or consumer-protection reasons to justify this law.”

The institute said 58 corporations are authorized to own funeral homes, as are the surviving spouses of deceased funeral directors and the executors of deceased funeral directors’ estates, even though the widow or executor could be someone with no professional experience.

‘‘It’s simply impossible to look at the range of exceptions to this law and conclude that the government has any true interest in keeping ordinary entrepreneurs from owning funeral homes,” Rowes said.

In Maryland, corporations own about 26 percent of the state’s funeral homes, according to U.S. Census statistics. Nationwide, however, corporations own 87 percent of all funeral homes.

The board of morticians was established in 1902 to govern the state’s morticians, funeral directors, surviving spouses, apprentices and funeral establishments.