By Rose Kelley
RHCC Board Member
The following article touches ever-so-briefly on information that comes from the second module of the online Green Burial Masterclass for natural burial cemetery operators regarding major issues in the legal sphere.
“Funeral law is a multilayered morass that befuddles the best of us. There are federal, state, and local requirements, but there are also historic precedents that inform our behavior and opinions regarding issues that are essential to the ethos of natural burial.” Holly Blue Hawkins
These are the parts of the “multilayered morass”:
- The federal government does not oversee cemetery operations. However, they do claim the right to oversee funerals for employees, national park indigent deaths, federal prisoners, line of duty military, and foreign actors engaged in supporting the government.
- Our state government controls decisions regarding general cemetery health and safety, licensing and regulations, financial systems, insurance, endowments, neglect, damages, and ownership.
The Florida Department of Financial Services Division of Funeral, Cemetery and Consumer Services, headquartered in Tallahassee, regulates cemeteries, pursuant to Chapter 497, Florida Statutes. Red Hills Community Cemetery (RHCC) is an exempt cemetery under 497.260 Florida Statutes because it is a nonprofit association cemetery. While the Division has limited authority over exempt cemeteries, there are still regulations that we have to navigate. We are so fortunate to be working with Wendy Russell Wiener and her legal team of senior associate Lauren R. Pettine and associate Henry Thompson. WRW Legal practices regulatory deathcare industry and regulatory insurance law. They represent clients as counsel in Florida and as compliance consultants nationwide. Wendy Wiener has advised us in our beginning stages and we will continue to need her qualified, professional legal advice to guide us as we move forward. If we are really lucky, among our membership we have a few people who have a background in dealing with a lot of technical details, actually enjoy it and will take a leadership role in preparing our applications for permits and certificates.
- Our county government is where the real power is. Everything about what can and can’t go in the ground is decided at our county level. The county will be particularly interested in our bylaws because this is the official document that sets the rules for everyone.
Tanya Marsh, the leading authority on cemetery law in the world tells us:
“The idea that burial grounds are a unique subclass of real property is a concept that can be traced through the common law to English ecclesiastical law, Catholic canon law, and finally to the law of ancient Rome. When human remains are intentionally placed in real property with the consent of the owner, the common law recognizes that the character of such real property has been fundamentally and perpetually transformed.”
What kind of layers of protection that we as members of RHCC build as guardians of the dead–whether by agreement/contract/deed or conservation easement– is yet to be determined.