AGO 98019.

• Court: Nebraska

Nebraska Attorney General Opinions 1998. AGO 98019. DATE: March 16, 1998SUBJECT: LB 953; Constitutionality of a bill which wouldREQUESTED BY: Merton L. Dierks, Senator Nebraska State LegislatureWRITTEN BY: Don Stenberg, Attorney General Lynn A. Melson, Assistant Attorney General You have requested an opinion from this office regarding the constitutionality of LB 953. This proposed legislation would redefine the term "funeral establishment" to mean "a place of business devoted to the care and preparation for burial, disposition, or cremation of dead human bodies, and for the purpose of conducting and arranging funeral services therefrom." The current definition, found at Neb. Rev. Stat. § 71-1301(9), provides instead that a "funeral establishment" is "a place of business . . . devoted to the care and preparation of dead human bodies for burial, disposition, or cremation or to conducting or arranging funeral services for dead human bodies." (Emphasis added). You state that the current statute has been interpreted by the Department of Health and Human Services Regulation and Licensure to mean that a funeral establishment need not have a preparation or embalming room. You also state that LB 953 would replace the current definition with the statutory definition of funeral establishment which existed prior to 1993. You have asked whether the State has authority under the state and federal constitutions to enact LB 953 if the proposed change would restrict the creation of new businesses or expansion of existing businesses legally operating under the current statute. As you have asked our general opinion as to the constitutionality of the proposed legislation, our response to your request must necessarily also be general in nature. The answer to your question depends on whether LB 953 is found to be a valid exercise of the State's police power. The Nebraska Supreme Court has held that the right to conduct a lawful business is a constitutionally protected right. State v. Copple, 224 Neb. 672, 401 N.W.2d 141 (1987); Gillette Dairy, Inc. v. Nebraska Dairy Products Board, 192 Neb. 89, 219 N.W.2d 214 (1974); Lincoln Dairy Co. v. Finigan, 170 Neb. 777, 104 N.W.2d 227 (1960). However, that right is not absolute and may be curtailed by a proper exercise of the police power of the State to protect the public health. State v. Hinze, 232 Neb...