Cremation Society sues state Funeral Board over 'arbitrary' rulings
Friday, May 4, 2012
The head of The Cremation Society of New Hampshire Inc. is suing the New Hampshire Board of Registration of Funeral Directors and Embalmers, charging the board is targeting him and trying to pull his license because he is most board members' chief competitor.
Arthur O. "Buddy" Phaneuf, who filed the suit April 24 in U.S. District Court in Concord on behalf of the Cremation Society and A.O. Phaneuf & Son Funeral Homes and Crematorium Inc. -- both located in Manchester -- claims that both the "arbitrary enforcement of the law," and some of the funeral law itself, is unconstitutional.
The suit names three individual members of the five-member board, including board chair Susan A. Simonds, all of whom operate funeral homes.
According to the suit, "four out of five" of the board members "compete directly" with Phaneuf and the board "is not privileged to protect its commercial interests under the guise of protecting the public."
"We have tried to work things out with them for years," Phaneuf told NHBR. "There is a litany of issues. We are a statewide business that serves about 1,300 families. The average funeral home serves about 100. They are trying to use their leverage to try to impede our ability to operate. We filed this when we realized that this isn't going to go away."
Simonds -- a director at the Foley Funeral Home in Keene -- did not return a request for comment by deadline. The two other board members named in the suit are Thomas G. Janosz, director of the Cain & Janosz Funeral Home and Cremation Service in Manchester, and Bryan S. Gould, a director of the Ricker Funeral Home in Woodsville, both declined comment.
The society also had hoped to stay a May 16 hearing that threatens Phaneuf's funeral license, but federal Judge Steven McAuliffe denied that preliminary motion without prejudice in an April 26 sealed order.
The hearing stems from a complaint filed against the Cremation Society in February 2010 by a widower whose wife's remains were allegedly not in the urn selected from the society, according to the suit.
The widow's complaint also says that Jeffrey Plasz -- the husband of Buddy Phaneuf's sister -- didn't show the widower a copy of itemized statements of goods and services selected.
Phaneuf's sister is a licensed funeral director, but Plasz isn't, Phaneuf's suit explains. Plasz is a licensed insurance agent who coordinates insurance financing for some cremation arrangements, and he administers society memberships, according to the suit.
The funeral board accused Plasz of making funeral arrangements without a license.
In its federal lawsuit, the society doesn't dispute the charges about the wrong urn or the lack of a bill of sale, but it does maintain that a licensed funeral director with the Cremation Society did meet with the widower and made the arrangements, and provided the board evidence to back that up in May 2010.
Phaneuf said he didn't hear from the board until October 2011, although board member Randy Gordon (a Merrimack attorney) completed an investigator's report for the panel in May 2011.
While Gordon did talk to the widower, the complaint quotes the report as saying, "Due to scheduling, I was not able to interview the owner of the Cremation Society of New Hampshire, nor the involved employee/witnesses. I remain happy to attempt to arrange the interviews and supplement this report at the request of the Board."
The board, however, never did talk to any witnesses from the Cremation Society or Phaneuf, according to the federal lawsuit -- all part of the "regularly imposed strict scrutiny and enforcement" against the society, while the board "relaxed its oversight of other New Hampshire funeral home directors, including board members, for violations of the same rules the board has sought to enforce against plaintiffs."
The suit also alleges that the board failed to follow its own rules by not providing written documentation about how it dealt with complaints involving other homes, including one against Janosz.
The board is apparently picking on the Cremation Society because of its "tremendous success" and to "stifle competition" in an attempt to "enhance the traditional funeral business" by requiring that one needs a director's licenses "to be involved in any aspect of the funeral or cremation industry."
But it isn't just enforcement of the laws that the suit targets. "In fact, the Funeral Director Law is flawed; many of the provisions about which plaintiffs herein now complain should be eliminated, clarified or corrected," the suit says, adding that the laws and regulations are "unduly restrictive, overly broad, anti-competitive, discriminatory, and anti-constitutional." -- BOB SANDERS/NEW HAMPSHIRE BUSINESS REVIEW
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