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
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
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
Arcade, amusement center, game room or other entertainment facility
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
Central laundry, dry cleaning plant, or laundromat
Theater (live or movie)
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)
“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 email@example.com.