Telophase Soc. of Florida, Inc. v. State Bd. of Funeral Directors and Embalmers

Citation334 So.2d 563
Decision Date04 June 1976
Docket Number47188,Nos. 47187,s. 47187
PartiesThe TELOPHASE SOCIETY OF FLORIDA, INC., et al., Appellants, v. STATE BOARD OF FUNERAL DIRECTORS AND EMBALMERS, etc., Appellee.
CourtUnited States State Supreme Court of Florida

Anthony S. Battaglia and Michael L. Hastings of Battaglia, Parker, Ross, Parker & Stolba, and William H. Fleece of Fleece, Rhoades & Werly, St. Petersburg, for appellants.

Robert L. Shevin, Atty. Gen., and James D. Whisenand and Donald D. Conn, Asst. Attys. Gen., for appellee.

BOYD, Justice.

In this proceeding we are reviewing consolidated appeals from the Second District Court of Appeal, shown at 308 So.2d 606, holding Chapter 470, Florida Statutes, constitutional as applied to Appellants, construing portions of the statute and affirming the trial court's order enjoining Appellants from continuing operation of their cremation services.

Appellants operate a business for the purpose of cremating human remains. Their physical plant consists of a refrigeration room and a cremation furnace. Human bodies are delivered to them by a professional livery service. Once delivered, the bodies are placed in cardboard liners and refrigerated by Appellants for forty-eight hours, the time necessary to gain approval of the Board of Health. During the forty-eight hours Appellants process paper work relating to the cremation, including the Death Certificate, Cremation Request, Cremation Permit, and Social Security and Veteran Benefit Forms. After completion of the paper work and approval by the Board of Health the liners containing the bodies, unembalmed and without cosmetics, are placed in the furnace and reduced to cremains. The cremains are often transferred to urns supplied by Appellants. Occasionally the cremains are scattered over a garden or at sea by Appellants, or they may be given to the family of the deceased and used in a memorial service unconnected with Appellants' business.

The State sought to enjoin Appellants from operating their business because they were engaging in the profession of funeral directing without a license from the State Board of Funeral Directors and Embalmers in violation of Section 470.21, Florida Statutes. Appellants answered the Complaint for Injunction by claiming that their operation did not meet the definition of 'funeral directing' as provided in Section 470.01(3), Florida Statutes:

'The term 'funeral directing,' as used in this chapter, shall be construed to mean the profession of directing or supervising funerals for profit, or the profession of preparing dead human bodies for burial or cremation by means other than embalming, or the disposition or shipping of dead human bodies, or the provision or maintenance of a place for the preparation of dead human bodies.'

The State moved for summary judgment.

The trial court contrued Section 470.01(3), Florida Statutes, in the disjunctive, holding the performance of any of the enumerated activities to constitute 'funeral directing.' Finding that Appellants, without the required lincense: provided and maintained a place for preparation of dead human bodies; prepared dead human bodies for cremation by means other than embalming; and disposed of dead human bodies by cremation. The court entered partial summary judgment and enjoined Appellants from the practice of 'funeral directing.'

Constitutional issues concerning the 'state-as-applied' were raised, as well as issues of the trial court's construction of Chapter 470, Florida Statutes, by assignments of error, before District Court of Appeal, Second District.

The District Court of Appeal, Second District, found both that the statute was constitutionally applied and that the trial court's construction of the statute was correct. Consequently the court affirmed the order granting partial summary judgment. Since the partial summary judgment fully disposed of the case, the court treated it as a plenary summary judgment and remanded the cause with instruction to enter a final judgment enjoining Appellants' business.

Appellants appealed the District Court's decision to this Court and also petitioned this Court for a writ of certiorari. Certiorari was denied, but appellate jurisdiction was accepted.

Appellants present five issues for our consideration:

1. Whether the application of Chapter 470, Florida Statutes, is an unlawful exercise of the police power constituting a violation of substantive due process as guaranteed by the Fourteenth Amendment.

It is our view that Chapter 470, Florida Statutes, relating to handling, storing, preparing and final disposal of dead human bodies is a constitutional exercise of police power and does not violate substantive due process of law guaranteed by the Fourteenth Amendment to the Constitution of the United States. State Board of Funeral Directors and Embalmers v. Cooksey, 147 Fla. 788, 3 So.2d 502 (1941) lists eight areas of public concern which provide a basis for regulation of funeral directing and embalming:

(1) Care of dead human bodies; (2) Embalming; (3) Transportation of dead human bodies; (4) Location of business and its equipment; (5) Sanitation; (6) Danger of infection or contagion from disease; (7) Obtaining required certificates and permits before acting; and (8) Orderly conduct of funerals and burials.

The public health and welfare requires that dead bodies be disposed of in such manner as to prevent spread of disease and other conditions offensive to surviving relatives and friends and the public at large.

'The legislature has a valid interest in safeguarding against the undue commercialization and exploitation of death and its various trappings.' State Board of Funeral Directors and Embalmers v. National Chapels, Inc., 279 So.2d 677 (Fla.1971).

Without the application of Chapter 470, Florida Statutes, to Appellants there would be no governmental sanctions available against Appellants for the most shocking and negligent handling of human corpses. On the contrary, misconduct by a licensed funeral director would likely end his professional career.

It is clear to us that Appellants practice 'funeral directing' as defined by Section 470.01(3) and that the Legislature intended that those operating crematories comply with Chapter 470, Florida Statutes.

2. Whether the District Court erred in determining that Section 470.01(3), Florida Statutes, must be construed to read in the disjunctive and that the performance of any of the enumerated activities in Section 470.01(3), Florida Statutes, would place one within the purview of said statute.

The legislative intent is to require that human corpses be handled and disposed of by persons highly skilled in the professional care of human remains. This need increases as population density increases. Informal disposition of human corpses has been common in the past, but is generally unacceptable today. It is the legislative intent that performing any of the enumerated activities in Section 470.01(3), Florida Statutes, constitutes 'funeral directing.' The District Court correctly held that Section 470.01(3), Florida Statutes, be construed in the disjunctive. 'Or' when used in a statute is generally to be construed in the disjunctive. Pompano Horse Club, Inc. v. State, 93 Fla. 415, 111 So. 801 (1927).

3. Whether the District Court erred in affirming a partial summary judgment and determining that Appellants have prepared dead human bodies for cremation by means other...

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18 cases
  • Tribbitt v. State
    • United States
    • Florida District Court of Appeals
    • 4 Mayo 2022
    ...were intended." Sparkman v. McClure , 498 So. 2d 892, 895 (Fla. 1986) (first citing Telophase Soc'y of Fla., Inc. v. State Bd. of Funeral Dirs. & Embalmers , 334 So. 2d 563, 566 (Fla. 1976) ; then citing United States v. Garcia , 718 F.2d 1528, 1532-33 (11th Cir. 1983) ; and then citing Bro......
  • Tribbitt v. State
    • United States
    • Florida District Court of Appeals
    • 4 Mayo 2022
    ... ... STATE OF FLORIDA, Appellee. No. 2D21-2100 Florida Court of ... 1986) (first citing ... Telophase Soc'y of Fla., Inc. v. State Bd. of Funeral ... Dirs. & Embalmers , 334 So.2d 563, 566 (Fla. 1976); ... then ... ...
  • Eaton v. Coal Par of West Virginia, Inc.
    • United States
    • U.S. District Court — Southern District of Florida
    • 13 Febrero 1984
    ...Telophase Society of Florida, Inc., v. State Board of Funeral Directors & Embalmers, 308 So.2d 606, 608 (Fla. 2d DCA 1975), aff'd, 334 So.2d 563 (Fla.1976). The Department's rulemaking authority does not include the ability to imply a private cause of action from the enabling statute. The d......
  • Sullivan v. Askew
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    • Florida Supreme Court
    • 30 Junio 1977
    ...the parallel between the two processes is striking. Compare ch. 120, Fla.Stat. (1975). And see my dissenting advisory view, stated at 334 So.2d 563.7 I do not find the other aspects of asserted unfairness (denial of an impartial tribunal, lack of pre-articulated decisional standards, and a ......
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