Serving Food and Alcohol in the Funeral Home
By: T. Scott Gilligan
OFDA General Counsel
An OFDA member recently questioned us about the increasing number of families who wish to offer food and beverages as part of or following visitations or funeral services at the funeral home. With a growing emphasis on personalization and with the influx of new ethnic groups and cultures into the Midwest, funeral homes are being requested by families to permit anything from coffee and doughnuts to full catered meals as part of the memorialization process.
Although most funeral homes are more than willing to accommodate these requests, they do raise issues ranging from mundane questions regarding who pays for stains from food spills to significant liability issues such as who is responsible if an intoxicated attendee causes an automobile accident. Funeral homes should address these issues before granting families permission to serve food and beverages at the funeral home facility.
The nuts and bolts issue of food clean-up, repair costs from spills and stains, and basic rules about where food and beverages may be consumed should be handled by the establishment of written policies by funeral home management. These policies may then be presented and agreed to by the family at the time permission is given for food and beverage service at the funeral home.
At the end of this article, OFDA has attached a form that was created to address these issues. As a condition of permitting food and beverages to be served in the funeral home, management requires a deposit to be paid. The deposit will be used for any cleaning costs and repairs resulting from food and beverage service. If clean-up is satisfactorily handled by the family, the deposit is returned.
The form also requires the family to abide by rules that the funeral home may want to establish. For example, if a funeral home has opted not to allow alcoholic beverages to be served, that should be stated in the written policy. Additionally, if food and beverages are only to be consumed in specified areas of the funeral home, that should be set forth in writing. The form is designed so funeral homes can attach their written policies directly to the form.
The form also tackles the liability issues that can arise from alcohol use. Over 40 states, including Ohio, have "dram shop" laws. These laws seek to delineate under what
circumstances businesses selling alcohol and social hosts providing alcohol will be responsible to third parties if a person consuming the alcohol causing injuries to the third party. Typically, these cases arise when a bar patron or party guest become intoxicated and later causes an automobile accident.
Ohio's dram shop law is currently in flux. Section 4399.01 of the Ohio Revised Code formerly provided that an action for injury or death could be brought against a person who sold or gave liquor to an individual who had been labeled as a habitual drunk and prohibited by the Division of Liquor Control from receiving alcohol. The law allowed any individual who was injured by the actions of the habitual drunk to sue the person who provided alcohol to the habitual drunk.
In July, 2004, the Ohio Legislature repealed Section 4399.01. Therefore, it is not clear whether Ohio law allows a dram shop liability action to be brought against a provider of alcoholic beverages to an intoxicated person. Whether there is liability for a social host who serves alcohol to an intoxicated guest is currently unclear.
To limit potential liability arising out of the serving of alcoholic beverages, there must be a strict prohibition against selling the alcoholic beverages within the funeral home premises. Since selling the alcoholic beverages would require a liquor permit, violations of the liquor law would occur unless a liquor permit were held by the seller of the alcohol. Moreover, permit holders can be sued if they sell liquor to a visibly intoxicated individual who later causes injury or death due to his or her intoxication.
Each funeral home should establish policies regarding the service of food and alcohol beverages at the funeral home. Those policies should be written and provided to families when requests are made for the service of food and alcoholic beverages. It is also strongly recommended that the funeral home use the attached form or a similar form to limit its risk and potential liability.
Any OFDA member having a question regarding this article should feel free to contact
T. Scott Gilligan at (513) 871-6332.
The form may be downloaded at http://www.myofda.org/forms/food_indemnification.pdf