Will Funeral Homes Be The Death Of The Shopping Center? Or, Will They Bring Them Life?

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Today, we’re going to revisit a general topic we visited last June 30. Ironically, this was also just before a holiday week and was seen by about 25% fewer readers than in a normal week. Oh well – “If the spirit moves you, let me groove you.” That’s from “Let’s Get It On” by Marvin Gaye. What’s the topic? It’s Prohibited Uses.

The inspiration for today’s posting comes from something, Tanya Marsh, a good friend and a good Professor at Wake Forest University School of Law wrote and then sent to us.

Here it is (in part):

The Amarillo Globe News reports that ‘Til We Meet Again, a retailer of caskets, urns, and cremation jewelry, has opened its fourth location in Westgate Mall in Amarillo, Texas. According to the store’s website, the other three locations are also in malls: Esplanade Mall in New Orleans, Towne West Square Mall in Wichita, Kansas, and Christown Spectrum Mall in Phoenix, Arizona. The existence and expansion of this store into malls is fascinating because it may represent the beginning of a new trend of retail stores selling funeral goods.

[One] reason that the presence of ‘Til We Meet Again in malls is significant is that standard “prohibited use” provisions in retail leases (particularly in leases with national retailers) prohibit landlords from permitting “funeral homes” or “funeral parlors” within a shopping center. In the four malls where ‘Til We Meet Again has a store, I assume that the mall owner has taken the position that a store that sells caskets, urns, and cremation jewelry but which does not handle bodies or arrange funerals is not a funeral home. That would seem to be a defensible position since these retailers should not be defined as funeral homes under state law. (By definition under state law, a “funeral home” has to be licensed. An unlicensed seller of caskets, therefore, cannot be a funeral home.) The expansion of ‘Til We Meet Again is particularly significant since Esplanade Mall and Towne West Square Mall are owned by Simon Property Group, the largest mall owner in America. This may represent a test for Simon — if the model is successful and customers aren’t turned off, we may see more casket stores in malls in the future.

Technically speaking (and we think, “enforceability” speaking as well), Ruminations agrees with Professor Marsh that such a retail operation would not violate a prohibition against using any premises as a funeral home or mortuary. This doesn’t mean that an argument couldn’t be made to the contrary because, when used as a noun, a “mortuary” is a place where dead bodies are kept before burial or cremation [think funeral home or morgue], but, as an adjective,  it has a more expansive meaning. One dictionary shows this pretty clearly when it tells us that “mortuary” describes things that are: “(1) of or relating to burial practices; or (2) relating to or characteristic of death.” Selling coffins, burial plots, prepaid funeral services or monuments all involve mortuary activities.

This got us to thinking (again) about the whole issue of “prohibited uses” and how particular uses make the list. So, we’ll first need to look at a typical list such as the one that follows. Ruminations isn’t endorsing the list, only dragging one out that looks pretty much like a lot of “stock” lists that have survived for 40 or 50 years.

Auditorium, meeting hall, church or other place of public assembly

Bingo, lotto, or off-track betting hall

Repair, sale, leasing, or display of used or new cars, trucks, boats, recreational vehicles, trailers or mobile homes

Funeral parlor

Animal clinic

Medical clinic

Restaurant

So called “head shop”

Hotel, motel, apartments, or other lodging or living quarters

Any business or use that emits offensive odors, fumes, dust or vapors

Massage parlor

Adult book store or store selling or exhibiting pornographic materials

Pornographic adult theater

Display of male or female dancers or a so-called “strip-tease” establishment

Bar or tavern

Bowling alley

Arcade, amusement center, game room or other entertainment facility

Skating rink

Billiard room or pool room

Ballroom, dance hall or discotheque

Warehouse for storage of goods not intended to be sold on or from the Premises

Bail bond business

Tattoo parlor

Central laundry, dry cleaning plant, or laundromat

Lumber yard

Blood bank

Mortuary

Theater (live or movie)

Reading room

Beauty school, barber college, or other training facility, school or educational facility

For auction, liquidation, going out of business, fire or bankruptcy sales (except for incidental legitimate sales of such type)

Flea market

 “Second-hand” store or army, navy or governmental surplus store

Fitness center, gymnasium, martial arts facility or any similar facility offering exercise or exercise-type activities.

Roughly speaking, we think there are three general categories of “businesses” or “activities” on the typical list: (a) the ones that, at the time the list was created, were not seen as legitimate retail businesses; (b) the parking “sucker-uppers” (i.e., the one where people sit for hours and don’t shop elsewhere at the center; and (c) the obnoxious uses (i.e., they offend too many people).

An earlier posting, “Prohibited Uses – Retail Lease Negotiators, Like The Generals, Are Always Fighting The Last War,” focused on category (a), reviewing the changing nature of retail shopping and exploring such heady topic as why tattoo parlors aren’t taboo parlors in the 21st century. If you’d like to look at that posting, click HERE. The only stray thought we’d like to add today concerns the common prohibition against the “repair, sale, leasing, or display of used or new cars… .” We were thinking about Tesla dealerships in upscale malls. So should you.

That leaves us with (b) and (c) for today. We’re thinking the prohibition against movie theaters and health clubs are based on this “their patrons hang around, suck up parking, and leave the property” theory. Not so long ago, “restaurants” were commonly found on the list for the same reason. Modern day experience and changes in consumer expectations since the 1950’s may have upset this apple cart. These lists probably had their origin in supermarket anchored shopping centers, often ones with a drug store as well (before supermarkets commonly operated pharmacy departments within them). Today, the evidence is clear. Shopping center customers want amenities, and restaurants are amenities. Skating rinks bring customers to the mall. Movie theaters at malls abound. Having said all of that, we’re not going to expand on the parking issue much further. That will allow us to retain this topic for a future posting.

The real reason we raise the parking issue at all in today’s posting is because we are trying to figure out why funeral homes are on everybody’s list of prohibited uses and whether that bears on coffin stores. Basically, we were thinking about whether funeral homes (and mortuaries) were listed because they present parking problems or because they are an “obnoxious” use as rhymes with “macabre.” [Well, not much rhymes with macabre, perhaps clobber or Montmartre.]

This would be important because if the problem with funeral homes is their “macabreness,” then coffin or monument or burial plot emporiums would probably fall in the same category – perfectly fine retail goods, but somewhat creepy to some. As such, banning mortuaries (in the sense they are “relating to or characteristic of death”) would seem to imply that coffin stores are also “banned.” If the prohibition were based on being a “parking sucker-upper,” then, in today’s world, that wouldn’t seem to be the case for the majority of funeral homes where people come to visit for 15 or 20 minutes spread out over a few days (during a wake) or come to sit for an hour before leaving. People come to sit for an hour in mall restaurants and, in 2013, that’s a pretty acceptable use. At worst, parking lots are configured to keep restaurant (and movie theater) patrons from driving “pure” shopping customers away from the property. And, those patrons do, in fact, stay (or arrive early) for the shopping experience. Why wouldn’t someone who came to pay a condolence call also be a shopper? We understand why the handful of actual mourners might take up some parking without shopping, but, in 2013, they might be the only ones inclined to do so.

Funeral homes and mortuaries don’t seem to fall in the exact same category as massage parlors, blood banks, billiard rooms, and tattoo parlors. It seems that, at one time, these uses brought “undesirables” to the mall. That’s probably why “arcades, amusement centers, game rooms and other entertainment facilities” made the list. But, it seems to Ruminations that these, too, may no longer fit the stereotype. Except for blood banks, perhaps (no, certainly), these other, once “verboten, undesirable” uses have gone mainstream – brand name, national tenant material. Now, funeral homes may be coming to you next, at your local shopping center.

Was there a point to today’s Ruminations? If there was, we think it is: “The line it is drawn; The curse it is cast; The slow one now; Will later be fast; As the present now; Will later be past; The order is rapidly fadin’; And the first one now will later be last; For the times they are a-changin’” [That’s by Robert Zimmerman, a/k/a Bob Dylan.]

Oh, if you’d like a copy of Professor Marsh’s entire message, just send an email request to mailbox@meislik.com.

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Comments

  1. If a blood donation center is the same as a blood bank then those are already in malls too.

  2. Mike Sievertson says:

    The growing popularity of franchisee operated businesses, that provide massage and spa services, would seem to make the boilerplate “massage parlor” prohibited use a somewhat antiquated concept that needs to be revisited/revised on many standard retail lease forms.

  3. I have yet to see a retail store for the sale of headstones, caskets, urns, etc., but this is not the first time I have heard of stores existing. It is a “booming” industry and it takes away the stigma of going into a funeral home for such items.

    None the less, you list of prohibited uses is extremely old. I do not know of a single mall (enclosed or strip) that does not have restaurants and/or food courts, some very upscale, which can eat up parking spaces as people, whether shopping, eating, or doing both, stay longer. In fact that is the attraction, stay and dine, and then shop some more.

    Some of the other restricted uses still exist, but movie theaters are likewise often allowed to attract viewers to eat before or after, as well as shop. I used to shop at Old Navy, east at Ruby Tuesday and see a movie at a mall in Eatontown, NJ.

  4. Ira, let’s look at the real estate for a moment. Three of the four sites are or were moribund projects seeking successful transition. Christown Spectrum in particular has a history of reinvention over decades that lends itself to the introduction of surprising uses. Moreover, Christown now blends with an emergent urban landscape, more an extension of village than discrete retail destination. And Esplanade Mall’s New Orleans embraces, rather than shuns, the significance of cemeteries (and perhaps dying itself) as part of a community’s landscape.

    And keep in mind the following. “A hard rain falls” on the baby-boomer generation. The coming bubble of convalescing, dying and death is well-charted statistically, and recently finding expression in the press. The boomers, always demanding, shall insist that their every whim and need be met at the most convenient retail location. Look for drive-through crematoria down the road.

    Thank you for your thoughtful work, especially during the holidays!

  5. Hello Everyone!!! Thanks so much for everyone’s input and the articles. I am the owner and Co-Founder of ‘Til We Meet Again. Both articles and the comments are all dead-on.;) I would like to add that while we have encountered a few problems with malls and mall management here and there, the majority of the issues have been with the anchor stores themselves. They are the ones who have restrictions that go over and beyond what the mall may consider ‘prohibited use.’ In fact one mall management company pulled the lease out of their own fears, and because the concept was so new, just days before it was signed. That same company has been approaching us asking what they can do to get us in one of their malls. We have lost spaces, one on the day of, and another 3 days before the grand opening due to anchor stores issues. Both leases were short term. As we grow and prove ourselves we hope to see more acceptance from malls and anchor stores alike. All of our stores bring people to the mall and who doesn’t want more traffic in the mall! Thanks again, for the article!

  6. It’s notable that many of the forbidden uses are now sought-after uses for “re-purposing” empty spaces here in Phoenix or are emerging new retail concepts that are proving to be very successful — such as Massage Envy. It’s all about branding, positioning, and actual practices. Even the prohibition against liquor stores flies in the face of such big box “rescuers” as Beverages and More and Total Wine.

    As for Til We Meet Again — either it or a similar company is being represented by the Institute for Justice, a libertarian public interest law firm that generally represents ordinary folks (big oops! of unintended consequences from Citizens United) in the pursuit of economic liberty, to fight agains the funeral industry cartels that try to insist that such stores do fall within the classification of mortuary and, therefore, must be licensed and their personnel must be licensed (meaning the employees must attend and graduate from mortuary school).

  7. Jim Henegan says:

    The list of prohibited uses is intended to serve 2 purposes (1) it keeps out possible unwanted uses and (2) encourages leasing to retail tenants who will bring customers to the center who are likely to shop at other stores.

    Funeral homes cause parking problems when there is a wake or funeral of a popular person. It doesn’t happen every days and the parking issues usually are between 5 pm and 8 pm, but they are real.

    A casket store would not have parking issues. It probably would not draw a lot of traffic to shop in the other stores. I don’t think it would drive people away either.

    Retail has changed quite a bit with the rise of internet shopping and it is harder and harder to fill up centers all the time. Developers should be careful about granting the restrictions described above.

    “Repair, sale, leasing, or display of used or new cars, trucks, boats, recreational vehicles, trailers or mobile homes” Typically the intend of this provision is to prohibit a body repair shop, but that is not what it says. This would prohibit a TBA store that does car repairs. It could prohibit an oil change facility and an auto parts store as they branch out and offer diagnostic tests and minor repairs/installation of parts.

    “Animal Clinic” – could prohibit a pet store that has a vet.

    “Medical clinic” – With the aging population hospitals are opening local care facilities many in strip centers.

    “Restaurant” – not many centers can survive without restaurants.

    “Hotels and living quarter” – mixed use developments are very common. Randhurst Mall in Mt Prospect IL is a de-malled regional mall that has a hotel.

    “Bar or tavern” – What is a restaurant and what is a bar? Restaurants/bars with entertainment/music/dancing are very popular and can easily have more than 50% of their receipts from the sale of alcohol.

    “Massage parlor” – could keep out Massage Envy and many spas and even rehabilitative uses like Atheltico, which are very good tenants for most centers.

    There are high end billiard rooms that are attractive tenants for many centers.

    Entertainment components to centers could include bowling alleys, skating rinks, game rooms (Chuck E Cheese + Dave and Buster’s) which would be prohibited by this list.

    Blood donation centers like Life Source of Red Cross are good tenants.

    Exercise facilities are good tenants although parking is a real concern.

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