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Opinion 98019

DATE: March 16, 1998

SUBJECT: LB 953; Constitutionality of a bill which would redefine "funeral establishment"




REQUESTED BY: Merton L. Dierks, Senator Nebraska State Legislature




WRITTEN BY: Don Stenberg, Attorney General

Lynn A. Melson, Assistant Attorney General




You have requested an opinion from this office regarding the

constitutionality of LB 953. This proposed legislation would

redefine the term "funeral establishment" to mean "a place of

business devoted to the care and preparation for burial,

disposition, or cremation of dead human bodies, and for the purpose

of conducting and arranging funeral services therefrom." The

current definition, found at Neb. Rev. Stat. § 71-1301(9), provides

instead that a "funeral establishment" is "a place of

business . . . devoted to the care and preparation of dead human

bodies for burial, disposition, or cremation or to conducting or

arranging funeral services for dead human bodies." (Emphasis

added). You state that the current statute has been interpreted by

the Department of Health and Human Services Regulation and

Licensure to mean that a funeral establishment need not have a

preparation or embalming room. You also state that LB 953 would

replace the current definition with the statutory definition of

funeral establishment which existed prior to 1993.




You have asked whether the State has authority under the state

and federal constitutions to enact LB 953 if the proposed change

would restrict the creation of new businesses or expansion of

existing businesses legally operating under the current statute.

As you have asked our general opinion as to the constitutionality

of the proposed legislation, our response to your request must

necessarily also be general in nature.




The answer to your question depends on whether LB 953 is found

to be a valid exercise of the State's police power. The Nebraska

Supreme Court has held that the right to conduct a lawful business

is a constitutionally protected right. State v. Copple, 224 Neb.

672, 401 N.W.2d 141 (1987); Gillette Dairy, Inc. v. Nebraska Dairy

Products Board, 192 Neb. 89, 219 N.W.2d 214 (1974); Lincoln Dairy

Co. v. Finigan, 170 Neb. 777, 104 N.W.2d 227 (1960). However,

that right is not absolute and may be curtailed by a proper

exercise of the police power of the State to protect the public

health. State v. Hinze, 232 Neb. 550, 441 N.W.2d 593 (1989).

Generally, when a fundamental right or suspect classification is

not involved in the legislation, a legislative act is a valid

exercise of the police power if the act is "rationally related to

a legitimate state interest." State v. Champoux, 252 Neb. 769,

772, 566 N.W.2d 763, 765 (1997). Accord State ex rel. Dept. of

Health v.Jeffrey, 247 Neb. 100, 525 N.W.2d 193 (1994).




The extent of the State's power to regulate a business or

occupation was explained by the Nebraska Supreme Court in Gillette

Dairy, Inc., as follows:




Whether a business is charged with such a public interest

as to warrant its regulation is a legislative question in

which the courts ordinarily will not interfere. The

Legislature may not, however, under the guise of regulation,

impose conditions which are unreasonable, arbitrary,

discriminatory, or confiscatory. Such regulations must be

reasonable considering the nature of the business and not such

as would prevent the carrying on of the business.




192 Neb. at 96-97, 219 N.W.2d at 219-20.




In Gillette Dairy, Inc., the Nebraska Supreme Court found

unconstitutional statutes which regulated the price of dairy

products because the State failed to demonstrate that price

controls were needed to insure a wholesome product for the public.

As stated by the court, "[M]easures adopted by the Legislature to

protect the public health and secure the public safety and welfare

must have some reasonable relation to those proposed ends . . . "

Id. at 97, 219 N.W.2d at 220.




State regulation of funeral establishments has generally been

upheld. As stated by one authority, "[T]he business of operating

a mortuary, funeral home or parlor, or undertaking establishment,

or of embalming, is one of a public or quasi-public nature, closely

related to the health, safety, and general welfare of a community,

and is, therefore, a business which, under the police power, may be

subjected to reasonable regulation and control by statutes or

municipal regulations." 38 Am. Jur. 2d Funeral Directors and

Embalmers, § 3 at 75-76 (1968).




You have stated in your request letter that the proposed

amendment to the definition of "funeral establishment" is intended

to make clear that funeral establishments are places of business at

which both the preparation of dead human bodies for burial or other

disposition and the conducting and arranging of funeral services

occur. We assume, for purposes of this discussion, that the

amended statute would be so interpreted. The issue raised then

with regard to LB 953 is whether there is a rational and reasonable

relationship between the requirement that each funeral

establishment have an embalming or preparation room and the public

welfare.




The purpose of the requirement is not set out in the statute

itself and we have not been provided with any information

concerning its purpose. We presume the bill's proponents believe

the requirement is needed to preserve the public's health and

safety, but are unaware of their specific concerns. It may be

somewhat helpful to add a statement of public purpose to the bill

and to articulate the specific concerns at issue in the committee

records and floor debate. However, mere statements as to public

purpose would not sustain the statute against constitutional

challenge if there cannot be demonstrated "a clear, real, and

substantial connection between the assumed purpose of the enactment

and its actual provisions." Eckstein v. City of Lincoln, 202 Neb.

741 at 744, 277 N.W.2d 91 (1979).




We are unable to predict with any certainty whether the

legislation would be upheld by our courts. Unless a rational

relationship between the amendment and the public health can be

established, LB 953 is constitutionally suspect. We do note, in

this regard, that a "branch establishment," as currently defined at

Neb. Rev. Stat. § 71-1301(4), is not required to have an embalming

room on its premises and LB 953 does not amend that definition. It

appears to us that a successful defense of LB 953 would depend not

only upon the articulation of a rational relationship between the

embalming room requirement for funeral establishments and the

public health, but also upon a valid explanation as to why the same

health concerns are not applicable to branch establishments. At

this time, we have insufficient information to address that issue.




Sincerely,




DON STENBERG

Attorney General








Lynn A. Melson

Assistant Attorney General