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Federal case involves local funeral home

January 27, 2009|By HEATHER KEELS

WASHINGTON COUNTY -- A federal appeals court is scheduled to hear a case today that would affect a Hagerstown cemetery owner's right to own the associated funeral home, an attorney in the case said.

Charles Brown, owner of Rest Haven Cemetery, was one of four plaintiffs who sued the Maryland State Board of Morticians to overturn the state's limitations on ownership of funeral homes.

Prior to their case, a state law required funeral home owners to be state-licensed morticians and limited ownership of funeral homes by corporations, according to Clark Neily, senior attorney with the Institute for Justice, which is representing Brown and the other plaintiffs.

Brown's son, who is a licensed mortician, owns Rest Haven Funeral Chapel, but Brown, who is not licensed, would like the entire operation to be family-owned to ensure it will stay open and can be passed down within the family, Neily said.

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In October 2007, a federal judge found that the law limiting funeral home ownership was unconstitutional because it excluded companies and entrepreneurs from other states, Neily said. However, the judge did not address the law's requirement that funeral home owners be licensed morticians, Neily said.

The Institute for Justice appealed the case, supporting the judge's decision that the law was unconstitutional, but requesting that the state be ordered to further open the market, Neily said.

The state Attorney General's Office, which is representing the defendants, cross-appealed, challenging the ruling, Neily said.

The Attorney General's Office declined to comment on the case Monday.

Neily said he will argue it is unreasonable to require the owner of a funeral home to be a licensed mortician when it would be sufficient to require that the home be supervised by one. The requirement is similar to saying that the owner of an airline must be a licensed pilot, he said.

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