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North Carolina Regulatory Board Targets Funeral Consumer Group

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What's the state board doing sending threatening letters to a retired consumer advocate?

Which of these is a threat to consumer safety:

  • A. A funeral director who dips into customers' prepaid funeral money to buy a new hearse
  • B. Funeral homes that rent out their embalming rooms to fly-by-night tissue brokers who dissect bodies and sell them for profit
  • C. A retired woman volunteering for a nonprofit organization that helps protect grieving consumers from overspending and fraud

Most people would pick A and B. But on March 19, 2007, the North Carolina Board of Funeral Service apparently thought the most important thing they could do with taxpayer dollars was send a letter to a Funeral Consumers Alliance volunteer threatening her with criminal prosecution for - wait for it - helping a grieving family. Mary Brack, President of the FCA of the Central Carolinas (FCACC), was shocked to receive a letter from NCBFS attorney Stephen Dirksen telling her to "cease and desist from this behavior immediately and take whatever steps are necessary to prevent future representations to the public that FCACC may practice funeral service in North Carolina . . . .North Carolina law provides clear criminal liability for anyone who practices funeral directing without a license" [see attachments below].

What could have provoked such a dire warning? One tiny sentence in an obituary in the Charlotte Observer, "Funeral Consumers Alliance of the Central Carolinas has assisted the family." That's it, a thank-you from a grateful FCA member. An acknowledgment Mary didn't even know about - let alone solicit - until the Board decided to bring the full power of the state to bear on an elderly woman who runs a tiny nonprofit. This outrageous action sparked letters of protest from the national Funeral Consumers Alliance [see letter at left] and the Institute for Justice, a nonprofit law firm in Washington, D.C. Rather than admit their error, the NCBFS has dug in its heels, claiming the right to regulate and possibly cite any citizen who "makes arrangements" with family members, obtains obituary or death certificate information, or publishes obituaries in the media if that person isn't licensed as a funeral director and isn't related to the decedent family. The Institute for Justice has written to the North Carolina Attorney General asking him to advise the Board that free speech rights - including the right to publish obituaries - don't require an undertaker's license [see letter at left].

For readers who don't understand what the fuss is about, funeral directors often believe they have a right to free advertising in obituaries. The typical line at the bottom of a death notice, "Arrangements for the Smith Family provided by Johnson Funeral Home," is a guaranteed advert for the funeral home, which the family usually pays for. Sniffing out the likely origin of the Board's action, Mary Brack wrote to Dirksen, "I feel this obituary was referred to you by an individual funeral director or funeral home that wants no reference to our organization since we educate the consumer on how to spend less money on services . . ." [see full letter at left].

I think that's pretty likely, though Board Executive Director Paul Harris told me that no disgruntled funeral home complained. But he couldn't tell me just exactly why the Board found this action-worthy. He defended Dirksen's letter (indeed, he said he authorized it), and claimed the obituary in question would lead any reasonable person to believe FCACC was representing itself as a licensed funeral home. This is implausible:

  • Paul Harris and the NCBFS are very familiar with Funeral Consumers Alliance and its nonprofit work. I've communicated with them on issues of mutual concern, and our volunteers from the Raleigh FCA chapter attend every state board meeting. It's impossible to believe the Board actually thought our Charlotte chapter was running an illicit funeral business.
  • Board attorney Dirksen's letter doesn't ask Mary Brack whether she'd solicited or placed the offending acknowledgement in the paper --- it accuses her outright of doing so and of breaking the law in the process.

When I asked Harris why he hadn't just picked up the phone and called Mary, or me, for clarification, he waffled about and then admitted the letter was "perhaps a bit strong." When I asked attorney Dirksen what provoked his letter, and whether he thought the NCBFS had the legal authority to supervise our charitable nonprofit work, his first concern was who I planned to tell:

"Are you going to release this to the media or put it on your site - I know you have a site," he said before refusing to answer my questions and referring me to executive director Harris. I hadn't been planning on it; I had hoped to resolve this amicably. But I don't take kindly to government lawyers who abuse their power and then hide behind protocol to put off legitimate questions. As Justice Brandeis said, sunlight is the best disinfectant, so here's your moment in the sun, Mr. Dirksen.

I then sent a letter [see left] to the NCBFS explaining why their action was uncalled for and far beyond the scope of their legal authority:

  • Dirksen claimed "making arrangements" with family members and obtaining or publishing obituary information constituted the practice of funeral directing, but these activities appear nowhere in the North Carolina statutes that define commercial funeral directing. Even if they did, just because funeral directors commonly perform these office functions, that doesn't make it illegal for mere mortals to do so.
  • The North Carolina Board of Funeral Service is mandated by law to oversee the practice of funeral service as a profession, for the protection of the public. Gathering or publishing obituary information (remember, Mary didn't even do this) is surely not an instance of practicing funeral service as a profession.
  • The NCBFS is authorized by state law to oversee "funeral service establishments and embalming facilities, their operation, and the licenses under which they are operated . . ." Nothing in the law gives the Board the right to monitor or censor the nonprofit activities FCA groups perform.

Even worse, Dirksen's absurdly broad interpretation of the law would give the NCBFS - seven of the nine members are funeral directors, and six of them are nominated by the state's two undertakers trade lobbying groups - the power to cite individuals for helping families gather obituary information, relay it to the newspaper, etc. Under his scheme, the Board could even argue that ministers who help families make funeral arrangements are breaking the law.

Dirksen denies this, and says these points are "unspecified constitutional concerns [that] are largely hypothetical and unsupported by fact and law." Really? Forgive me, but when government lawyers claim the right to limit the legitimate speech of volunteers and citizens, when they demand a professional license for the most mundane activities, and when they train their guns on retired do-gooders, any citizen with a minimal understanding of the Constitution ought to worry.

While Dirksen has backed off (slightly) from the most radical implications of his reading of the law, he's still splitting hairs. Trying to defend the idea that the acknowledgement of FCA published in the obituary could raise honest concerns about unlicensed practice, Dirksen tortures the poor sentence for not being gracious enough:

With respect to your specific concerns to the FCA obituary [sic], review of the obituary language contradicts your characterization of the language in question. At issue is the following language, which is enclosed by photocopy: "Funeral Consumers Alliance of the Central Carolinas has assisted the family." The literal language at question contains not one word expressing gratitude, thanks, appreciation, or emotion of any kind . . .no reasonable person could infer any expression of gratitude from context. To suggest this is "language thanking an organization for its assistance" is post hoc rationalization."

This smells to us like rationalization ad desperatio.

The NCBFS should never have gone after a consumer advocate by pretending they were trying to protect the public from "confusion." This case is a microcosm of the dire problems of protectionism and regulatory capture going on around the nation. Stacked with members from the very industries they're supposed to regulate, state professional boards have a long history of harassing, intimidating, and shutting down anyone they perceive as a threat to the monopoly on profits to which their members think they're divinely entitled. It's bad enough when they use scare tactics to dupe lawmakers into stifling competition that would lower consumer prices. It's unconscionable when they turn on charitable consumer groups whose vision of protecting the public from predatory business practices they ought to share.

Board attorney Dirksen writes, "The Board has further enjoyed a long-standing, cooperative working relationship with local FCA chapters, and the staff recognized that relationship when handling this matter." No, the staff didn't, but the Board has an opportunity to do so now. Do the right thing. Apologize to Mary Brack, admit this whole episode was a mistake, and let's get back to work on taking care of the real consumer threats within the funeral industry. I'd much rather update this page with happy news; good deeds deserve as much exposure as mistakes.


NOTE --- Special thanks to Valerie Bayham of the Institute for Justice for her steadfast support and help. Readers who care about individual freedom --- especially the freedom to make a living without government-endorsed monopoly schemes tarted up as consumer protection --- should pay attention to the extraordinary work IJ does every day. Visit them here .
Attachments:
Download this file (bayhamtodirksen.pdf)bayhamtodirksen.pdf[Institute for Justice Letter to NCBFS]74 Kbm/j/Y
Download this file (bayhamtodirksen1.pdf)bayhamtodirksen1.pdf[IJ Response to NCBFS]95 Kbm/j/Y
Download this file (bayhamtoncag.pdf)bayhamtoncag.pdf[Institute for Justice Letter to North Carolina Attorney General ]126 Kbm/j/Y
Download this file (brackresponse.pdf)brackresponse.pdf[Mary Brack's Response]377 Kbm/j/Y
Download this file (dirksentobayham1.pdf)dirksentobayham1.pdf[NCBFS Response to IJ - first]185 Kbm/j/Y
Download this file (dirksentobayham2.pdf)dirksentobayham2.pdf[Second NCBFS Letter to IJ ]204 Kbm/j/Y
Download this file (dirksentobrack.pdf)dirksentobrack.pdf[NCBFS Letter to Mary Brack]1074 Kbm/j/Y
Download this file (slocumtoncbfs.pdf)slocumtoncbfs.pdf[FCA National Letter to NCBFS]118 Kbm/j/Y
Last Updated ( Tuesday, 04 December 2007 11:10 )  
Comments (3)
1 Wednesday, 01 December 2010 15:17
Clyde Foust
I have a mouth full of how I have been treated and how it has effected the consumer.

I would love to talk to someone.

I agree with you 100% a family should be able
to print anything they want on thier obituaries.
2 Wednesday, 01 December 2010 15:23
Josh Slocum
I don't think you realized you left a comment on a publicly read blog - you didn't send a private email. I've removed your phone number. You're welcome to call us at 802-865-8300. Or, send us an email directly. You can find our email under the Contact menu at the top of the page.

Josh Slocum
FCA executive director
3 Tuesday, 25 September 2012 15:07
Shelly Cole
I have LONG held the opinion that these "oversight" boards, be they at the state, local, or national level should be made up of people who have ZERO monetary interest in the area that they are overseeing. Be it ownership of a local individual business, corporate conglomerate represented by it's CFO, CEO, etc., or an owner or a representative of a small chain of a related business, these individuals do NOT belong in an oversight "group" whose primary purpose is to protect the public from greed and general misuse/mistreatment in what, for the business, can be seen as an opportune time to reap what amounts to a harvest that doesnt belong to them! I don't think that there is ANYTHING much lower than an individual or group that would take advantage of someone else in a time of suffering and/or need, when emotions are high and override what would normally be good thought processes for most people. Granted I think there are few businesses that would do such a thing, but they obviously exist or we wouldn't need to have the oversight boards. But when you put people on these boards that either have a monetary interest in the making of the laws, or individuals who have retired or sold their related business, or even friends of people in the given industry on this board or committee that is going to possibly help shape or write the laws overseeing the industry and equally importantly is going to interpret and enforce those same laws, I believe that you have just left the door open to allow anyone with the desire to do so, to abuse their post. And having the entire board made up of people who have any kind of interest, either for themselves or for a "friend", just greatly increases the potential for misuse. That's exactly why when companies run contests the people who work there and their families, and a host of others that are affiliated with the company ARE NOT allowed to participate.

Now there are those who would argue that to put people outside the industry on the boards having little to no knowledge of the industry would be equally bad with the pendulum swing going to the opposite extreme, creating a different set of problems albeit of equal or greater damage. I mean, we've all seen people in positions that they were totally unqualified for and sat and watched in horror or sometimes amazement or even amusement at how bad those decisions can be. But in the situation of oversight boards and committees, I would like to think that a lot of what they oversee is just plain common sense. Not that there wouldn't be the need for individuals to learn and educate themselves to some degree on some level about the industry they were overseeing, but short of them overseeing something that requires a degree in rocket science, nuclear medicine, pharmaceuticals, and the like...I'd really like to think that it would "clean up" some of these government oversight groups.

I know my thoughts are not THE answer. But honestly, I just CRAVE And LONG for some honesty and integrity for a change. I honestly don't understand how these people sleep with themselves at night, unless they simply have no conscience.

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