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Maryland lawmakers bury competition

August 06, 2006|by Russell Knight

Charles Brown is dedicated to Rest Haven cemetery, the site he owns and operates with his wife and son in Hagerstown. To provide the best possible service to his customers and to earn revenue to help maintain the gravesites, Brown built Rest Haven funeral home.

The funeral home and cemetery combination would allow Brown's customers to make their funeral service and burial arrangements at the same time and through one, locally owned organization - Rest Haven.

But the State of Maryland won't let Brown own the funeral home he built. Maryland is one of only three states to require a funeral home owner to be a licensed funeral director. This certification takes two years and can cost thousands of dollars. It includes instruction in several fields that are not related to running the business operations of a funeral home, including instructions on embalming a corpse.

Keep in mind, we're not talking about Brown acting as the undertaker; he would hire someone to oversee the conducting of funerals. He simply wants to own the business.

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Although all licensing regulations come at a price to business owners, regulations that actually protect public health and safety may be worth the cost. The lack of such a licensing requirement in this industry in the vast majority of other states, however, suggests that is not the case here.

In fact, Maryland has carved out several exceptions to the licensing law for people who are well-connected or who have enough money. Maryland issued 59 corporate licenses to companies who owned funeral homes before the law was enacted in 1945. Today, scarcity and a hefty price tag has left more than half of these licenses in the hands of large, out-of-state conglomerates.

The law also allows for the surviving spouse or executor of a deceased funeral director to own the funeral home, even though that could be someone with no experience in the industry. The number of exceptions to this law shows that you don't need to be a licensed funeral director to own a funeral home. Still, Maryland won't allow Brown to own a funeral home, even if he hires a licensed funeral director to operate the facility.

The regulation of this industry harms not only entrepreneurs like Brown, it also comes at a cost to everyone seeking funeral home services. In fact, a recent study by Thomas Firey of the Maryland Public Policy Institute estimates that funeral services in Maryland cost $784 more than in states without such a restriction.

The purpose of the law is clear: government protection of the funeral home market. The cozy relationship of the Maryland General Assembly and the State Funeral Directors Association is evidenced by the $240,000 the association has given in Maryland political contributions over the past six years.

It is hard to ignore the influence that money might have had when General Assembly bills to withdraw the requirement have failed on committee votes five years in a row - especially when the bills have been supported by the Federal Trade Commission, the State Health Department and the State Attorney General.

Despite this setback, Brown is continuing to fight. After failing to change the law through the legislative process, he is now challenging it in court. The Institute for Justice represents him and five other individuals who have been precluded from owning a funeral home in a suit against the Maryland State Board of Morticians.

Charles Brown is only asking for the opportunity to own the funeral home he built to offer his clients the best service possible. The restrictions on owning a funeral home and the arbitrary exceptions to the rule are an unconstitutional violation of his right to earn an honest living and an unfair burden on anyone making arrangements after the death of a loved one.




Russell Knight is a law clerk at the Institute for Justice in Arlington, Va.

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