Contents |
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I. | Facts and Procedural History | 62 |
II. | Discussion | 65 |
A. | Jurisdiction and Standard of Review | 65 | |
B. | Facial versus As–Applied Challenge | 65 | |
C. | Fourth Amendment | 66 | |
D. | Dormant Commerce Clause | 70 |
1. | Restrictions on Ownership and Alienability of Funeral Establishments | 71 | ||
2. | Preparation Room Requirement | 77 | ||
3. | Place of Practice and Full–Time Supervisor Requirement | 78 |
E. | Substantive Due Process | 79 |
1. | “One–and–a–Branch” Limitation | 79 | ||
2. | Licensing Restrictions | 81 | ||
3. | “Place-of-practice” and Full–Time Supervisor Requirement | 82 | ||
4. | The Preparation Room Requirement | 84 | ||
5. | Restriction on Serving Food | 85 | ||
6. | Trusting Requirement | 86 |
F. | First Amendment | 88 |
1. | Restriction on Use of Trade Names | 88 | ||
2. | Payment on Commissions to Unlicensed Salespeople | 92 |
G. | Contract Clause | 93 |
III. | Conclusion | 94 |
[T]he right of entry into any place, where the business of funeral directing is carried on, or advertised as being *64 carried on, for the purpose of the inspection and for the investigation of complaints coming before the board and for such other matters as the board might direct.
First, there must be a substantial government interest that informs the regulatory scheme pursuant to which the inspection is made.... Second, the warrantless inspections must be necessary to further the regulatory scheme.... Finally, the statute's inspection program ... must provide a constitutionally adequate substitute for a warrant.
The Plaintiffs first argue that FDL's limits on the ownership of funeral establishments in Pennsylvania violate the dormant Commerce Clause. The first challenged restriction that we will discuss is referred to as the “one-and-a-branch” limitation. It restricts licensees to possessing an ownership interest in one funeral establishment with only a single “branch” location. 63 Pa. Stat. Ann. §§ 479.8(a)-(e).
Any person—out-of-state or in-state—may obtain a license to practice mortuary science and own and operate a funeral establishment in Maryland, and there is no limit on the number of licenses that the State may issue. Likewise, with respect to the [ ] grandfathered corporations owning licenses, any person or corporation, out-of-state or instate, may own the stock.
[C]orporations that historically held licenses in the funeral business were allowed to continue to hold licenses because the General Assembly wanted to protect reliance interests of family members. For a similar reason, spouses of deceased licensees are exempted from being licensed to allow the spouse, who presumably was already involved in the affairs of the business, to continue the business. The Act also provides an exemption for executors of licensees, allowing the temporary operation of the funeral establishment to wind down the affairs of the business. The fact that the General Assembly created these rational exemptions does not undermine the overall rationality of the Morticians Act based on its relationship to a legitimate government purpose.
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