Legal Check: Pet Business
Scenario: Stewart Spector is a fourth-generation owner-operator of Spector & Steinberger Funeral & Cremation Services in Smyrna, Georgia. The business changed to its current name from its original name of Spector & Sons Funeral Home in early 2010 when Stewart’s key employee, Nell (“Nelly”) Steinberger, bought into the business. This was also the year that Stewart and Nell started their pet end-of-life service business, Rainbow Bridge Pets, since both were animal lovers as well. Spurred on by Nelly’s passion for the environment and greener alternatives, they decided to make the investment and offer only flameless cremation for their pet families, installing only a resomator in their newly built facilities. Because both Stewart and Nelly believed so much in flameless cremation or aquamation/alkaline hydrolysis as a “greener” alternative to flamed cremation as well as it being a “gentler” process, it was marketed front and center on Rainbow Bridge Pets’ website, and they were also easily able to “sell” this concept to their veterinary relationships as well. Historically, for the human funeral and cremation services, Stewart had always utilized a third-party trade cremation business a few miles away.
Furthermore, Nelly had an idea that rather than allowing all the effluent (or sterile, remaining discharge liquid from the aquamation process) to be drained back to the sewer/water treatment plant process, Rainbow Bridge would divert the effluent into storage tanks so that they could take it and give to the surrounding farming communities for use as liquid fertilizer since the effluent was rich in potassium and sodium content. This act of giving back to the community only served to increase Rainbow Bridge’s rapid success, and 18 months into their operations, farmers from the surrounding areas some 40 to 50 miles away were also bringing their deceased pets and small horses to Rainbow Bridge to be aquamated, and Rainbow Bridge Pets has really taken off, and in many instances has even benefitted Spector & Steinberger Funeral & Cremation Services as well.
Near the end of 2011, there was a strong buzz around Georgia that alkaline hydrolysis would soon be allowed or legalized for human cremations. And with the success of aquamation in their pet business, Stewart and Nelly were anticipating being the first (or at least one of the first) in the state to implement alkaline hydrolysis for their human cremation families as well. So, when Georgia changed the definition of “cremation” to mean “the reduction of the dead human body to ashes/residue by intense heat or any mechanical, chemical, thermal, or any other professionally accepted process” (hence “legalizing” aquamation in the state), Stewart and Nelly had already quickly ordered another resomator to be installed in their funeral home facilities, since a number of their families, who had also been pet family clients, had been inquiring when alkaline hydrolysis would be available for humans.
As they awaited approval from the Georgia State Board of Funeral Services (pursuant to state laws and regulations, any crematory seeking to add a cremation device to their facility must notify the board in writing), Stewart and Nelly were excited as to how they would finally be able to implement and extol the virtues of alkaline hydrolysis when serving families and the community for their funeral business.
However, they were denied licensing and the right to be able to use their new resomator for human cremations/aquamation by the Georgia board. It appears that even though the state had changed the definition of “cremation” to allow for alkaline hydrolysis for humans in 2012, what is defined as a “crematory” still required ownership of a cremation furnace to be licensed by the state to perform alkaline hydrolysis for humans. It would not be until 2020 when the Georgia state legislature eliminated this requirement for a cremation furnace that paved the way for Stewart and Nelly to finally begin performing alkaline hydrolysis for their human families.
SO, WHAT WENT WRONG IN THIS INSTANCE?
Before we dive into applying how the law affected this scenario, let’s review a few fundamental key legal concepts.
- Federalism. By dictionary definition, federalism is the distribution of power in an organization (such as a government) between a central authority and the constituent units. From a political science perspective, this is how the balance is struck and created by the U.S. Constitution between the federal, United States government (central authority) and the individual state (and local) governments (constituent units). The Constitution establishes that there are areas of law that are reserved for the state governments when the Constitution or Federal laws are silent or not enumerated. The best way to look at it is that Federal laws establish the rights and rules for all citizens of the United States, while state laws are meant to add to those rights for citizens (and visitors) of that state.
- Hierarchy of laws. Established by the supremacy clause within the U.S. Constitution, where there is a conflict between federal and state laws, federal law prevails or supersedes state law. This can also be applied to state laws versus local laws.
- Jurisdiction. By dictionary definition, jurisdiction is the power, right or authority to interpret and apply the law.
Now, in applying these key legal concepts to our scenario, the federal government/law would only apply to FTC Funeral Rule issues and, therefore, are not specifically applicable to Stewart and Nelly’s predicament. Because death care in general – funeral, crematory and cemetery professions – are not largely regulated on the federal level (except for the FTC Rule), this right is reserved for the states, and there is no conflict between any federal versus state law in this fact pattern. Georgia gives authority (or jurisdiction) to the Georgia State Board of Funeral Services for funeral homes and crematories and the state board of cemeterians over cemeteries, both under the State of Georgia Secretary of State’s office for regulation and compliance.
So, in this particular case, Georgia changed the definition of “cremation” in 2012 to include cremation alternative methods such as “mechanical, chemical, thermal, or any other professionally accepted process,” this effectively “legalized” flameless cremation or alkaline hydrolysis. However, there was an oversight in the requirements for licensure of human crematories, which still mandated that there be a cremation furnace present for a crematory to be licensed. In Stewart and Nelly’s anticipation to be early adopters of alkaline hydrolysis – as well as there being much less regulation for pet cremation businesses – they were not patient enough to let new legislation “play itself out.” As with many laws and regulations, there are bound to be conflicts somewhere.
When operating Rainbow Bridge Pets and solely utilizing alkaline hydrolysis, Nelly did not have to obtain a crematory operating license – only a permit for use of the public sewer system for the disposal of the effluent.
WHAT THE FUNERAL HOME SHOULD HAVE DONE DIFFERENTLY
While most of my Legal Check articles revolve around knowing or understanding the law well enough to keep you from ever having to experience litigation, the focus here is to emphasize knowing or understanding the law well enough to keep you from practically wasting time, money, and/or resources when it comes to when laws change or new laws take effect. In this hypothetical scenario Stewart and Nelly’s passion and anticipation for being at the forefront caused them to move too early and end up wasting money and resources on a resomator that they would not be able to use for eight years – hence, not receiving any return on their investment. Of course, now in 2023, alkaline hydrolysis for humans is legal in 28 states.
Part of the reason key legal concepts such as federalism, supremacy clause, hierarchy of laws and jurisdiction were defined was to provide a high-level review of how legislation works. Save for some very rare instances, legislative bodies (regardless of local, state or federal) move very slowly. Even when laws are enacted, there is almost always a lag in how they become realistically enforced or monitored. In this instance, even when there was no conflict between state versus federal law or local versus state law, there was a conflict within the Georgia state law itself – no less between what the state had ratified as the definition of “cremation” versus how an appointed board held requirements for what a crematory should have in order to qualify for licensing.
SOME THINGS THAT STEWART AND NELLY COULD HAVE DONE DIFFERENTLY INCLUDE
- Wait just a little bit to see how the enacted law realistically unfolds. Even in other areas of law – such as criminal law or torts – are concerned, that is why concepts like precedence and case law apply in further defining the law – because it helps further define a particular statute or civil law. In this case, knowing that their funeral home business was under the monitoring, licensing approval, and jurisdiction of a state board should have given them pause when investing money too early in a new resomator for human flameless cremation.
- Read about, educate themselves and be aware of alkaline hydrolysis in other or surrounding states. True, every state oversees funeral, cremation, and cemetery requirements differently. However, educating themselves and being aware of how other states have interpreted, enacted and implemented alkaline hydrolysis at least gives some indication of any hurdles or pitfalls that befallen other funeral homes wanting to be early adopters of human alkaline hydrolysis.
- Consult members of their state board prior to jumping at making that investment in a resomator to be used for their funeral business.
Lastly, consult with a regulatory attorney that may be able to help them navigate being early adopters for human flameless cremation (but not to the point of being so early, that they ended up being wrong in their decision).