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Local cemetery owner sues over funeral home regulations

March 02, 2006|by ANDREW SCHOTZ

HAGERSTOWN

A Hagerstown cemetery owner is suing to overturn Maryland's restrictions on funeral home ownership.

Charles Brown of Rest Haven Cemetery on Pennsylvania Avenue is one of five plaintiffs challenging Maryland's requirement that funeral home owners be licensed directors.

Brown, who is not a licensed director, owns the cemetery, but his son, Eric, who is licensed, owns Rest Haven Funeral Chapel on the same property.

The Institute for Justice, a nonprofit law firm based in Arlington, Va., filed a complaint on the plaintiffs' behalf Wednesday in U.S. District Court in Baltimore, alleging the state law is an unconstitutional limit on free trade.

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The plaintiffs have asked a judge to strike down the law.

The complaint names the 11 members of the Maryland State Board of Morticians - which regulates the state's funeral industry - as defendants.

Laurie Sheffield-James, the board's executive director, declined to comment Wednesday afternoon.

The Board of Morticians is part of the Maryland Department of Health & Mental Hygiene. Representatives from the department and the state Attorney General's Office, which is representing the board, also declined to comment.

For a decade, Brown lobbied the Maryland General Assembly to change the state law which forbids him from owning a funeral home without a mortuary license. Brown, 71, said it takes about two years of training to get a license.

The law also caps the number of corporate funeral home licenses in the state; owners of those homes don't need to be licensed morticians, but must employ one to make funeral arrangements.

Maryland has - and is limited to - 58 corporate licenses. Through private transactions, they sell for up to $250,000 apiece, said Jeff Rowes, one of three Institute for Justice attorneys involved in the case.

Brown said he wants to be able to form a corporation to own Rest Haven Funeral Chapel and keep it in his family, along with the cemetery.

This year, he gave up and left the General Assembly alone. Brown said it's an election year, so his slim chances for success - no bill he supported ever made it out of committee - were even slimmer.

Big money behind corporate licenses has created a powerful cartel intent on keeping the system closed to outsiders, meaning less competition and higher prices, Rowes said.

"This is a powerful example of special interests taking hold of the legislative process," he said.

Rowes said Service Corporation International, which is based in Houston, owns about a quarter of Maryland's corporate licenses.

"It's the small people against the big people," Brown said.

SCI spokesman Greg Bolton couldn't confirm the corporate license prices or numbers that others cited. He unsuccessfully tried to reach, for comment, someone familiar with the company's Maryland operations.

The Institute for Justice contacted Brown after The Washington Post profiled his plight in a front-page story in January.

Through Brown and the story, the Institute for Justice found four other people allegedly thwarted by Maryland's funeral home ownership restrictions in similar ways and enlisted them as plaintiffs, too.

Brown said Rest Haven Cemetery had a funeral home starting in the 1930s. Later, SCI owned it under one of the state's corporate licenses.

In 1984, the funeral home burned down. Instead of rebuilding, SCI transferred its license to a bigger operation, Brown said.

Brown bought the cemetery from SCI. He built a funeral home there in 1999 and put Robert May, a licensed mortician, in charge.

By then, Eric Brown already was starting his mortuary training. He took over the funeral home in 2001, Charles Brown said.

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