Current Status Bill Number:3563 Ratification Number:512 Act Number:380 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19970227 Primary Sponsor:Sandifer All Sponsors:Sandifer, Parks, Canty and Lanford Drafted Document Number:bbm\9122ac.97 Date Bill Passed both Bodies:19980604 Date of Last Amendment:19980604 Governor's Action:S Date of Governor's Action:19980612 Subject:Funeral directors, embalmers; framework for licensing boards, license and regulation of; Cemeteries
Body Date Action Description Com Leg Involved
______ ________ _______________________________________ _______ ____________
------ 19980624 Act No. A380
------ 19980612 Signed by Governor
------ 19980610 Ratified R512
Senate 19980604 Ordered enrolled for ratification
House 19980604 Conference Committee Report adopted 98 HCC
Senate 19980604 Conference Committee Report adopted 88 SCC
Senate 19970605 Conference powers granted, 88 SCC Moore
appointed Senators to Committee Alexander
of Conference O'Dell
House 19970605 Conference powers granted, 98 HCC Cave
appointed Reps. to Committee of Sandifer
Conference Askins
House 19970605 Insists upon amendment
Senate 19970605 Non-concurrence in House amendment
House 19970605 Senate amendments amended,
returned to Senate with amendment
Senate 19970604 Read third time, returned to House
with amendment
Senate 19970529 Read second time
Senate 19970529 Committee amendment adopted
Senate 19970522 Committee report: Favorable with 12 SLCI
amendment
Senate 19970501 Introduced, read first time, 12 SLCI
referred to Committee
House 19970430 Read third time, sent to Senate
House 19970429 Amended, read second time
House 19970423 Committee report: Favorable with 27 H3M
amendment
House 19970227 Introduced, read first time, 27 H3M
referred to Committee
View additional legislative information at the LPITS web site.
(A380, R512, H3563)
AN ACT TO AMEND CHAPTER 19, TITLE 40, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE LICENSURE AND REGULATION OF EMBALMERS AND FUNERAL DIRECTORS, SO AS TO CONFORM THIS CHAPTER TO THE STATUTORY ORGANIZATIONAL AND ADMINISTRATIVE FRAMEWORK ESTABLISHED FOR PROFESSIONAL AND OCCUPATIONAL LICENSING BOARDS IN CHAPTER 1, TITLE 40 AND TO FURTHER PROVIDE FOR THE LICENSURE AND REGULATION OF EMBALMERS AND FUNERAL DIRECTORS.
Be it enacted by the General Assembly of the State of South Carolina:
Chapter revised
SECTION 1. Chapter 19 of Title 40 of the 1976 Code is amended to read:
Section 40-19-5. Unless otherwise provided for in this chapter, Article 1, Chapter 1 applies to embalmers and funeral directors; however, if there is a conflict between this chapter and Article 1, Chapter 1, the provisions of this chapter control.
Section 40-19-10. There is created the South Carolina State Board of Funeral Service consisting of eleven members appointed by the Governor from the State at large for terms of three years and until their successors are appointed and qualify. Of the eleven members two must be members from the general public not connected with a funeral service establishment, and the remaining members must have been licensed as funeral directors and embalmers for at least five years immediately preceding their appointment. All members must have been residents of this State for not fewer than five years preceding the date of their appointment.
The South Carolina Funeral Directors Association may recommend six members, the South Carolina Morticians Association may recommend three members, and an individual or private or public group or organization may make recommendations. All recommendations must be made to the Governor before the second of July in each year the term of office of a member expires. Appointments are effective on August fifteenth. Vacancies must be filled in the manner of original appointment for the unexpired portion of the term. The board shall notify the South Carolina Funeral Directors Association and the South Carolina Morticians Association of any vacancies that occur.
Any business conducted by the board must be by a positive majority vote. For purposes of this subsection 'positive majority vote' means a majority vote of the entire membership of the board, reduced by any vacancies existing at the time.
Section 40-19-20. As used in this chapter:
(1) 'Advertisement' means the publication, dissemination, circulation, or placing before the public an announcement or statement in a newspaper, magazine, or other publication in the form of a book, notice, circular, pamphlet, letter, handbill, poster, bill, sign, placard, card, label, or tag, or over radio or television. The term does not include funeral or death notices and obituaries.
(2) 'Apprentice' means a person who is preparing to become licensed for the practice of embalming and funeral directing under the supervision and instruction of a person licensed for the practice in this State and who is registered with the board pursuant to Section 40-19-120.
(3) 'Board' means the South Carolina State Board of Funeral Service.
(4) 'Branch funeral home' means an establishment separate and apart from the licensed parent funeral home that has either embalming facilities or a sales room, or both.
(5) 'Chapel' means a separate facility from the parent funeral home that has only layout or chapel facilities, or both, but does not have embalming facilities or a sales room.
(6) 'Cremation' or 'calcination' means the reduction of the dead body by intense heat to residue.
(7) 'Crematory' means an establishment in which the dead body is reduced to residue by intense heat.
(8) 'Disposition' means the final disposal of the body whether by earth interment, aboveground burial, cremation, burial at sea, or delivery to a medical institution for lawful dissection and experimentation.
(9) 'Embalmer' means a person licensed by the board to disinfect and preserve or attempt to disinfect and preserve the dead human body, entirely or in part, by the use of application of chemicals, fluids, or gases, externally or internally, or both, by their introduction into the body by vascular or hypodermic injections, by direct application into the organs or cavities, or by other method and includes the restoration or attempted restoration of the appearance of the dead human body.
(10) 'Embalming' means the disinfection of the dead human body by replacing certain body fluids with preserving and disinfecting chemicals.
(11) 'Funeral director' means a person licensed by the board to engage for hire or profit in the profession of arranging, directing, or supervising funerals.
(12) 'Funeral home', 'funeral establishment', or 'mortuary' means an establishment where the practice of funeral service and embalming is practiced. All of these establishments must include the following facilities:
(a) a chapel or parlor in which funeral services may be conducted;
(b) a preparation room equipped with a sanitary floor and necessary drainage, ventilation, necessary approved tables, hot and cold running water, and a sink separate from table drainage, instruments, and supplies for the preparation and embalming of dead human bodies;
(c) a room containing a displayed stock of at least six adult caskets and other necessary funeral supplies;
(d) at least one motor hearse for transporting casketed human remains.
(13) 'Funeral merchandise' means that personal property used in connection with the conduct of funerals or with the transportation and final disposition of a dead human body including, but not limited to, the receptacle into which the body is directly placed. The term does not mean mausoleum crypts, interment receptacles preset in a cemetery, and columbarium niches.
(14) 'Funeral service' or 'funeral' means a period following death in which there are religious services or other rites or ceremonies with the body of the deceased present.
(15) 'Graveside service' means a rite or ceremony held only at graveside, which is not generally construed as the committal service which follows a funeral.
(16) 'Inspector' means an inspector employed by the board.
(17) 'Manager' means a licensed funeral director who has been a resident of this State for at least one year and who is responsible for the management of funeral establishments including compliance with all applicable laws governed by this chapter and Chapters 7 and 8 of Title 32.
(18) 'Memorial service' means a gathering of persons for a program in recognition of a death without the presence of the body of the deceased.
(19) 'Practice of funeral service' means:
(a) engaging in providing shelter, care, and custody of the human dead;
(b) the practice of preparing the human dead by embalming or other methods for burial or other disposition;
(c) arranging for the transportation of the human dead;
(d) making arrangements at or before the time of death, financial or otherwise, including arrangements for cremation, for providing these services, or the sale of funeral merchandise, whether for present or future use;
(e) engaging in the practice or performing any functions of funeral directing or embalming as presently recognized by persons engaged in these functions.
Section 40-19-30. It is unlawful for a person to engage in the practice of funeral service unless the person is licensed in accordance with this chapter. A person who engages or participates actively in directing or in the management of a funeral establishment is considered to be in the practice of funeral service.
No permit to operate a funeral home may be issued to a corporation, partnership, or individual when the name of an unlicensed person appears in the name of the corporation, partnership, or individually owned business. This prohibition does not apply to established funeral homes existing prior to July 1, 1969.
Section 40-19-50. The Department of Labor, Licensing and Regulation shall provide all administrative, fiscal, investigative, inspectional, clerical, secretarial, and license renewal operations and activities of the board in accordance with Section 41-1-50.
Section 40-19-60. The board may adopt rules governing its proceedings and may promulgate regulations necessary to carry out the provisions of this chapter.
Section 40-19-70. In addition to the powers and duties provided for in this chapter, the board also has those powers and duties set forth in Section 40-1-70.
Section 40-19-80. The board shall employ an inspector who must be a licensed embalmer and funeral director with not fewer than five consecutive years' experience as a licensee under this chapter.
Section 40-19-90. The results of an investigation must be presented to the board, and any subsequent hearing must be conducted in accordance with Section 40-1-90.
Section 40-19-100. In addition to other remedies provided for in this chapter or Article 1, Chapter 1, the board in accordance with Section 40-1-100 may issue a cease and desist order or may petition an administrative law judge for a temporary restraining order or other equitable relief to enjoin a violation of this chapter.
Section 40-19-110. The board may refuse to issue or renew or may suspend or revoke the license of a funeral director or embalmer or may place the licensee on probation after notice and a hearing for unprofessional conduct which includes:
(1) making misrepresentations or committing fraud while engaging in the practice of funeral service;
(2) using false or misleading advertising or using the name of an unlicensed person in connection with that of a funeral establishment;
(3) soliciting dead human bodies by a licensee or a licensee's agents, assistants, or employees, whether the solicitation occurs after death or while death is impending, but not including general advertising;
(4) employing persons known as 'cappers' or 'steerers' or 'solicitors' or other persons to obtain business for the licensee;
(5) employing directly or indirectly an apprentice, agent, assistant, employee, or other person, on a part or full-time basis, or on commission, for the purpose of calling upon individuals or institutions to influence them to cause dead human bodies to be turned over to a particular funeral establishment;
(6) directly or indirectly paying or offering to pay a commission by a licensee or a licensee's agents, assistants, or employees to secure business; however, compliance with Chapter 7 of Title 32 is not unprofessional conduct;
(7) aiding or abetting an unlicensed person to engage in the practice of funeral service;
(8) using any funeral merchandise previously sold without prior written permission of the person selecting or paying for the use of the merchandise;
(9) refusing to properly release a dead human body to the custody of the person or entity who has the legal right to effect a release;
(10) failing to secure a permit for removal or burial of a dead human body before interment or disposal;
(11) knowingly making a false statement on a certificate of death;
(12) violating applicable state laws relating to the prearrangement or prefinancing of a funeral;
(13) discriminating in services because of race, creed, color, or national origin;
(14) violating a state law or municipal or county ordinance or regulation affecting the handling, custody, care, transportation, or final disposition of dead human bodies;
(15) permitting an unlicensed person to make arrangements for a funeral at or prior to need.
Section 40-19-115. The board has jurisdiction over the actions of licensees and former licensees as provided for in Section 40-1-115.
Section 40-19-120. In addition to the sanctions the board may impose against a person pursuant to this chapter, the board also may take disciplinary action against a person as provided for in Section 40-1-120.
Section 40-19-130. As provided for in Section 40-1-130, the board may deny licensure to an applicant based on the same grounds for which the board may take disciplinary action against a licensee.
Section 40-19-140. A license may be denied based on a person's prior criminal record only as provided for in Section 40-1-140.
Section 40-19-150. A licensee under investigation for a violation of this chapter or a regulation promulgated under this chapter voluntarily may surrender the license in accordance with Section 40-1-150.
Section 40-19-160. A person aggrieved by a final action of the board may seek review of the decision in accordance with Section 40-1-160.
Section 40-19-170. A person found in violation of this chapter or a regulation promulgated under this chapter may be required to pay costs associated with the investigation and prosecution of the case in accordance with Section 40-1-170.
Section 40-19-180. All costs and fines imposed pursuant to this chapter must be paid in accordance with and are subject to the collection and enforcement provisions of Section 40-1-180.
Section 40-19-190. Investigations and proceedings conducted under this chapter are confidential, and all communications are privileged as provided for in Section 40-1-190.
Section 40-19-200. A person who practices or offers to practice funeral service in this State in violation of this chapter or who knowingly submits false information for the purpose of obtaining a license is guilty of a misdemeanor and, upon conviction, must be fined not less than five hundred dollars or more than twenty-five hundred dollars or imprisoned for not more than six months, or both.
Section 40-19-210. The department, on behalf of the board and in accordance with Section 40-1-120, may petition an administrative law judge, in the name of the State, for injunctive relief against a person violating this chapter.
Section 40-19-230. (A) A person may be issued a license as an embalmer if the person:
(1) is at least eighteen years of age;
(2) has not been convicted of a violent crime or found guilty of a felony or crime of moral turpitude;
(3) has a high school education or the equivalent of a high school education, the equivalence to be determined by the board;
(4) has completed successfully a regular course in an embalming college accredited by the National Conference of State Examining Boards and approved by the board;
(5) has completed a minimum of twenty-four months of service as an apprentice under the direct supervision of a licensed embalmer actively engaged in the practice of embalming in this State;
(6) has passed an examination prescribed by the board. A person holding a valid embalmer's license in another state or territory which has been in effect continuously for at least five years is not required to serve an apprenticeship to qualify for examination.
(B) A person may be issued a license as a funeral director if the person:
(1) is at least eighteen years of age;
(2) has not been convicted of a violent crime or found guilty of a felony or crime of moral turpitude;
(3) has a high school education or the equivalent of a high school education and has a minimum of two years of successful attendance at an accredited academic college or successful completion of a regular course of not less than one year, twelve scholastic months, in an accredited mortuary college;
(4) has completed a minimum of twenty-four months of service as an apprentice funeral director under the direct supervision of a licensed funeral director actively engaged in the practice of funeral directing in this State;
(5) has passed an examination prescribed by the board. A person holding a valid funeral director's license in another state or territory, which has been in effect continuously for at least five years, is not required to serve an apprenticeship to qualify for examination.
(C) An applicant for licensure must be examined on subjects as are prescribed by the board and the examination must be by a standardized written test. The passing grade must be established by the board in regulation.
An application for examination must be upon a form furnished by the board and must be accompanied by a fee established by the board in regulation. An application for examination must be submitted at least thirty days before the date of the examination.
(D) A person holding a valid embalmer or funeral director license in another state or territory having substantially similar requirements to the requirements of this chapter and has been licensed for a minimum of five years, upon establishing residence in this State, may apply for a license to practice in this State by filing with the board a certified statement from the examining board of the state or territory in which the applicant holds the license, showing the basis upon which the license was granted and a recommendation for licensure. If the board finds that the applicant has fulfilled substantially similar requirements, the board shall grant a license upon receipt of a fee established by the board in regulation and upon satisfying the board that the applicant is familiar with the laws and regulations of this State concerning funeral directing and embalming.
(E) No license may be issued or renewed for a period exceeding one year, and all licenses and renewals expire on the thirtieth day of June unless sooner revoked or canceled. The date of expiration may be changed by unanimous consent of the board and upon ninety days' written notice of the change to all persons licensed by the board.
(F) A person holding a license under this chapter may have the license renewed for a one-year period by applying within thirty days preceding or following the expiration of his license, upon forms provided by the board and payment of a renewal fee as established by the board in regulation. A person who fails to renew the license, at the discretion of the board, may have it renewed by making application and appearing before the board and paying a renewal and revival fee established by the board. The license of a person who is engaged actively in the military service of the United States may be held in abeyance for the duration of service, and the licensee may be relieved of the payment of renewal fees as the board considers justifiable and expedient.
Section 40-19-240. (A) A person desiring to become an apprentice funeral director or embalmer shall apply to the board on forms provided by the board. The applicant must be at least eighteen years of age, shall take the oath contained on the application form, and shall submit a fee established by the board in regulation. If the board is satisfied as to the qualifications of an applicant, the board shall issue a certificate of apprenticeship. If an apprentice wishes to engage in an apprenticeship with a person licensed as a funeral director or embalmer, a request must be submitted to the board. If permission is granted and the apprentice leaves the apprenticeship of the licensee in whose service the apprentice has been engaged, the licensee shall give the apprentice an affidavit showing the length of time served. The affidavit must be filed with the board. If the apprentice subsequently desires to continue the apprenticeship, the apprentice must apply to the board as provided for in this subsection.
(B) A certificate of apprenticeship must be signed by the apprentice, the licensee, and the manager of the establishment in which the apprenticeship is to be served and is renewable twenty-four months after registration for twelve months, by payment of a renewal fee established by the board in regulation. A certificate may not be renewed more than three times. The registration of an apprentice who is actually engaged in the military service may be held in abeyance for the duration of service, and the apprentice may be relieved of the payment of renewal fees and penalties.
(C) An apprentice quarterly shall report to the board on forms provided by the board indicating the work which has been completed during the preceding three months. The report must be certified by the licensee under whom the apprentice has served.
(D) Before an apprentice is eligible to receive a license for the practice of funeral service, evidence required by this chapter must be submitted to the board showing that the apprentice has completed successfully the educational requirements set forth in Section 40-19-230. Affidavits also must be submitted from the licensees under whom the apprentice worked showing that as an apprentice embalmer the apprentice has assisted in the embalming of at least fifty bodies or that as an apprentice funeral director the apprentice has assisted in conducting at least fifty funerals, during apprenticeship. Eligibility for licensure is determined by the board based upon the reports filed with the board pursuant to subsection (C).
(E) Only two apprentices at a time are permitted to register under any one person licensed as a funeral director or embalmer. Each sponsor for a registered apprentice must be actively connected with a funeral establishment.
Section 40-19-250. The board shall develop in regulation a continuing education program and each licensee must attend a minimum of three credit hours annually. This continuing education program must be offered, at a minimum, four times a year at locations easily accessible to participants and must be available through correspondence courses. This continuing education requirement does not apply to a person who is not the manager of record of a funeral home, funeral establishment, or mortuary if the person has been licensed for thirty or more years or is sixty years old or older.
Section 40-19-260. The practice of funeral service may be engaged in only at a licensed establishment. A licensed funeral director shall make arrangements with clients and must be at the place of the funeral and committal services.
Section 40-19-270. (A) No person shall conduct, maintain, manage, or operate a funeral establishment or crematory unless a permit for each establishment or crematory has been issued by the board and is displayed conspicuously in the funeral establishment or crematory. Funeral services held in a private residence, church, or lodge hall require no permit.
(B) The board or its inspector or agents may enter the offices or premises of a funeral establishment, funeral home, mortuary, branch funeral home, chapel, or crematory to inspect the premises or observe the training provided to apprentices. Acceptance of a permit constitutes permission for entry to the premises as provided in this section without legal process.
(C) No permit to operate a funeral establishment or crematory may be issued unless the funeral establishment or crematory has a person licensed as a funeral director who resides a reasonable distance from the establishment or crematory and is accessible at all times the establishment or crematory is open for any type of funeral business or activity. Upon the death, resignation, or incapacity of the manager of a funeral establishment or crematory, the board may issue a temporary permit to another person upon terms and conditions the board considers to be in the best interest of the community in which the establishment or crematory is located.
(D) An application for a funeral establishment permit or crematory permit must be made on forms furnished by the board and must be filed with the board before July second of each year accompanied by a fee established by the board in regulation. All permits expire on June thirtieth of each year.
(E) When more than one person proposes to engage in the operation of a funeral establishment or crematory as a partnership or a corporation, one of the partners or corporation officers must be a licensed funeral director and must be registered by the board as the manager of the funeral establishment or crematory. No partner or corporate officer shall hold himself out through advertising or otherwise as being a licensee unless the person is licensed in accordance with this chapter.
Section 40-19-280. (A) No person licensed as a funeral director or embalmer shall remove or embalm a dead human body when the person has information indicating crime or violence of any sort in connection with the cause of death until permission first has been obtained from the coroner or medical examiner or some other qualified person acting in this capacity.
(B) No public officer or employee, the official of any public institution, physician, surgeon, or any other person having a professional relationship with a decedent may send or cause to be sent to a funeral establishment or to a person licensed for the practice of funeral service the remains of a deceased person without having first made due inquiry as to the desires of the next of kin and of the persons who may be chargeable with the funeral and expenses of the decedent. If any kin is found, authority and directions of the kin govern except in those instances where the deceased made prior arrangements in writing.
(C) No company, corporation, or association engaged in the business of paying or providing for the payment of the expenses of the funeral, disposition, or other similar expenses of the deceased members or of certificate holders, or engaged in the business of providing insurance upon the life of an individual, under which an obligation may arise to care for the remains of the insured, shall contract to pay or shall pay insurance or benefits, or part of insurance or benefits, to a funeral establishment, licensee, or individual in a manner which may deprive the representative, next of kin, or family of the deceased person from, or in any way control them in, procuring a funeral establishment, person licensed for the practice of funeral service, or other proper and competent person to perform funeral services and furnish supplies to care for the remains of the decedent.
(D) No person licensed as a funeral director or embalmer or anyone acting for a funeral director or embalmer shall have a part in a transaction or business which in any way interferes with the freedom of choice of the general public to choose a person licensed for the practice of funeral service or to choose a funeral establishment except where the body or a part of the body is given for anatomical purposes.
(E) It is unlawful for a person, partnership, corporation, or association who has not been licensed or registered as provided for in this chapter to transact, practice, or hold himself or itself out as transacting or practicing funeral service or operating or maintaining a funeral establishment within this State.
Section 40-19-290. (A) The personnel of a funeral establishment shall make every reasonable attempt to fulfill the desires of the deceased and persons making arrangements both as to services and merchandise, and a full disclosure of all its available services and merchandise must be made before selection of the casket. Before the arrangements are completed, the licensee of the funeral service firm shall disclose fully what is included in the funeral and identify other related expenses such as cemeteries and florists.
(B) Statements of legal requirements or statements relative to the conditions under which embalming is required or advisable must be complete and factual. Representations as to legal requirements for embalming, the use of a casket or other receptacle, and the necessity, if any, of an interment receptacle in connection with a funeral must be truthful, and all legal or cemetery interment requirements must be disclosed.
(C) A funeral service establishment shall have a card or brochure in each casket stating the price of the casket.
The funeral establishment shall provide to the persons making the arrangements, at the time the arrangements are completed and before the time of rendering the service, a written statement signed by a representative of the funeral home and by the person authorizing the services showing to the extent then known:
(1) the price of the service that the persons have selected and what is included in the service;
(2) the price of each of the supplemental items of service and merchandise requested;
(3) the amount involved for each of the items for which the funeral service firm shall advance monies as an accommodation to the family;
(4) the method of payment.
Section 40-19-300. Nothing contained in this chapter may be construed to govern or limit the authority of an administrator or executor, trustee, or other person having a fiduciary relationship with the deceased. Further, nothing contained in this chapter may be construed to prohibit the sale of burial vaults by persons engaged in the business of operating a commercial cemetery.
Section 40-19-310. (A) The provisions of this chapter do not apply to the preparation and burial of dead bodies of paupers or of inmates of state institutions when the paupers or inmates are buried at the expense of the State.
(B) Nothing in this chapter alters the responsibilities of the board or limits the board in carrying out its duties and responsibilities as required in Chapters 7 and 8, Title 32.
Section 40-19-320. If a provision of this chapter or the application of a provision to a person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
Staggered initial board member terms
SECTION 2. Of the members first appointed to the South Carolina State Board of Funeral Service, as provided for in Section 40-19-10, as amended in Section 1 of this act, three shall serve terms of one year, four shall serve terms of two years, and four shall serve terms of three years as determined by lot at the first meeting of the board as constituted under this act.
Time effective
SECTION 3. This act takes effect upon approval by the Governor.
Approved the 12th day of June, 1998.