Crematorium law ignored after '97 case

Scheduling public hearings seen unnecessary by panel

For 16 years, the state Board of Embalmers and Funeral Directors failed to hold required public hearings to approve the construction of crematoriums because officials misunderstood a court decision.

From 1997 to 2014, the board did not follow Arkansas Code 17-29-313, which requires the board to hold a public hearing in the city or county where a crematorium is proposed, to publish a notice of that hearing in a local newspaper no more than two weeks before the hearing, to notify residents who would live within 250 feet of the site and to approve the permit for construction.

As a result, 21 of the state's 26 crematoriums have received licenses to operate without going through a public hearing first, said the board's executive secretary, Amy Goode. It is unclear whether that failure compromises the legality of those crematoriums.

In an emailed statement from the attorney general's office on the legality of the crematoriums, spokesman Aaron Sadler said the board's regular meetings have always been public, but that public hearings regarding applications to construct a crematory were not held from 1997 to 2014.

"An appellate court has not ruled on the validity of the statute, and our office will not speculate as to what a court may or may not decide in a future case," Sadler said.

Arkansas Code 17-29-313 is the only state statute detailing the process for the construction of crematoriums.

Pulaski County Circuit Judge John B. Plegge wrote in a 1997 opinion that the statute "is vague and is void as an unconstitutional attempt to delegate legislative power and is there of no effect." He continued that "a statute will not be upheld if it lacks guidelines and thereby delegates unlimited powers to an administrative body."

That case involved a dispute between the board and a mortuary service that sought to construct a crematorium near a school in the Sardis community in Saline County. After a raucous public hearing, in which residents protested against the crematorium, the board denied the mortuary service's application for a permit to construct.

The mortuary service then filed suit against the board because its "ruling set forth no reason or rationale for denying the petitioner's application other than letters and comments from many citizens in the Sardis community," according to the judge's opinion.

Ultimately, the circuit judge ordered that the crematorium could be constructed without a permit from the board, but it was never built, Goode said.

Current board members said a combination of advice from their attorney at the time, provided through the attorney general's office, and a misunderstanding of the ruling led the board to stop holding the hearings and following the procedure mandated by the statute.

"The board was just following the advice of the legal counsel," said its president, Terry Woodard, who served for 12 years before that decision and then, again, for the past six years. "Figured there's no sense in having public hearings if you can't deny someone a permit without a judge overturning it."

No one said anything for 16 years until February, when a Russellville resident called the board to see when the public hearing would be scheduled for a proposed crematorium near the community's elementary school. He had seen the statute online and wanted to testify against the crematorium's construction.

"They were basically breaking the law and had been since 1996," said Scott Steuber, whose two sons will attend the Russellville-area school near the proposed crematorium. "I don't understand how they would ever deny a crematorium if they don't have public hearings where the opposition can speak."

During a February Rule Committee meeting, the board learned that the statute in question still applied.

"Counsel's advice was that we misunderstood the Judge's opinion and it's now her advice we follow the law, since you are now aware that 17-29-313 is still good law," according to meeting minutes. "We will now be following the law as it is on the books. ... The board, based on testimony, cannot make arbitrary decisions, that your decisions to grant or deny the permits should be based on some form of reasonableness."

Another attorney from the attorney general's office, Mark Ohrenberger, has continued to advise that the board follow the statute.

"It was Mr. Ohrenberger's advice that the Board's duty is to listen to public comment," the minutes from a June 26 meeting stated. "They are not there to provide expert witnesses -- that will be the duty of the applicant to provide evidence that is compelling to make the decision. If the applicant fails to provide evidence that is compelling and you rule in their favor then that could be another issue."

Over the past two months, the board has held four public hearings for permits to construct crematoriums in Manila, Blytheville, Mountain Home and Russellville. All but the most recent Russellville permit were approved. According to meeting minutes, opposition was not present at the hearings where the permits were approved, though transcripts are not yet available.

In the meantime, the board will submit the crematorium statute for legislative review to see if it can be made clearer. Eliminating the statute is one of many options, Goode said.

"It is vague, and it should have been addressed long ago, but it never was," she said. "The board quit having them, and fast forward to today and it started raising questions."

The Russellville crematorium proposal is set to appear before state Board of Embalmers and Funeral Directors again on Nov. 13.

State Desk on 08/16/2014

Upcoming Events