MISSISSIPPI LEGISLATURE

2000 Regular Session

To: Judiciary

By: Senator(s) Browning

AN ACT TO REQUIRE A CERTAIN DEPTH FOR ALL GRAVES WHEN BURYING DEAD HUMAN BODIES; TO AMEND SECTION 73-11-57, MISSISSIPPI CODE OF 1972, IN CONFORMITY; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. When burying dead human bodies, all graves shall be at least six (6) feet in depth. Any person or licensed funeral establishment violating the provisions of this section may be subject to disciplinary proceedings by the State Board of Funeral Service as provided in Section 73-11-57, Mississippi Code of 1972.

SECTION 2. Section 73-11-57, Mississippi Code of 1972, is amended as follows:

73-11-57. (1) The board may refuse to examine or to issue or renew, or may suspend or revoke, any license, or may reprimand or place the holder thereof on a term of probation, after proper hearing, upon finding the holder of such license to be guilty of acts of commission or omission including the following: (a) the employment of fraud or deception in applying for a license or in passing the examination provided for in this chapter; (b) the erroneous issuance of a license to any person; (c) the conviction of a felony by any court in this state or any federal court or by the court of any other state or territory of the United States; (d) the practice of embalming under a false name or without a license for the practice of funeral service; (e) the impersonation of another funeral service or funeral directing licensee; (f) the permitting of a person other than a funeral service or funeral directing licensee to make arrangements for a funeral and/or form of disposition; (g) violation of any provision of this chapter or any rule or regulation of the board; (h) having had a license for the practice of funeral service or funeral directing suspended or revoked in any jurisdiction, having voluntarily surrendered his license in any jurisdiction, having been placed on probation in any jurisdiction, having been placed under disciplinary order(s) or other restriction in any manner for funeral directing and/or funeral service, or operating a funeral establishment (a certified copy of the order of suspension, revocation, probation or disciplinary action shall be prima facie evidence of such action); (i) solicitation of dead human bodies by the licensee, his agents, assistants or employees, whether such solicitation occurs after death or when death is imminent; however, this shall not be deemed to prohibit general advertising; (j) employment directly or indirectly of any apprentice, agent, assistant, employee, or other person, on a part-time or full-time basis or on commission, for the purpose of calling upon individuals or institutions by whose influence dead human bodies may be turned over to a particular funeral establishment; (k) unprofessional conduct which includes but is not limited to: (i) retaining a dead human body for the payment of a fee for the performance of services not authorized in writing; (ii) knowingly performing any act which in any way assists an unlicensed person to practice funeral service or funeral directing; (iii) being guilty of any dishonorable conduct likely to deceive, defraud or harm the public; (iv) any act or omission in the practice of funeral service or directing which constitutes dishonesty, fraud or misrepresentation with the intent to benefit the licensee, another person or funeral establishment, or with the intent to substantially injure another person, licensee or funeral establishment; (v) any violation of state or local law concerning the burial of dead human bodies; or (vi) any act or conduct, whether the same or of a different character than specified above, which constitutes or demonstrates bad faith, incompetency or untrustworthiness; or dishonest, fraudulent or improper dealing; or any other violation of the provisions of this chapter, the rules and regulations established by the board or any rule or regulation promulgated by the Federal Trade Commission relative to the practice of funeral service or directing.

(2) The board may, upon satisfactory proof that the applicant or licensee has been guilty of any of the offenses above enumerated, refuse to examine or issue a license to the applicant, or may refuse to renew or revoke or suspend the license of the licensee, or place on probation or reprimand him, upon a majority vote of the board members, after a hearing thereon. The board is hereby vested with full power and authority to hold and conduct such hearings, compel the attendance of witnesses and the production of books, records and documents, issue subpoenas therefor, administer oaths, examine witnesses, and do all things necessary to properly conduct such hearings. The board may waive the necessity of a hearing if the person accused of a violation admits that he has been guilty of such offense. Any person who has been refused a license or whose license has been revoked or suspended may, within thirty (30) days after the decision of the board, file with the board a written notice stating that he feels himself aggrieved by such decision and appeals therefrom to the circuit court. Upon the filing of such notice, the secretary of the board shall transmit to the clerk of the circuit court the records and findings of such proceedings. The circuit court shall hear and determine as to whether the action of the board was in accord or consistent with law, or was arbitrary, unwarranted or in abuse of discretion. An appeal from the circuit court judgment or decree may be reviewed by the Supreme Court as is provided by law for other appeals.

(3) In a proceeding conducted under this section by the board for the revocation or suspension of a license, the board shall have the power and authority for the grounds stated for such revocation or suspension, and in addition thereto or in lieu of such revocation or suspension may assess and levy upon any person licensed under this chapter, a monetary penalty, as follows:

(a) For the first violation of any of the subparagraphs of subsection (1) of this section, a monetary penalty of not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars ($500.00).

(b) For the second violation of any of the subparagraphs of subsection (1) of this section, a monetary penalty of not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00).

(c) For the third and any subsequent violation of any of the subparagraphs of subsection (1) of this section, a monetary penalty of not less than Five Hundred Dollars ($500.00) and not more than Five Thousand Dollars ($5,000.00).

(d) For any violation of any of the subparagraphs of subsection (1) of this section, those reasonable costs that are expended by the board in the investigation and conduct of a proceeding for licensure revocation or suspension, including but not limited to the cost of process service, court reporters, expert witnesses and investigators.

(4) The power and authority of the board to assess and levy such monetary penalties hereunder shall not be affected or diminished by any other proceeding, civil or criminal, concerning the same violation or violations except as provided in this section.

(5) A licensee shall have the right of appeal from the assessment and levy of a monetary penalty as provided in this section under the same conditions as a right of appeal is provided elsewhere for appeals from an adverse ruling, order or decision of the board.

(6) Any monetary penalty assessed and levied under this section shall not take effect until after the time for appeal shall have expired. In the event of an appeal, such appeal shall act as a supersedeas.

(7) A monetary penalty assessed and levied under this section shall be paid to the board by the licensee upon the expiration of the period allowed for appeal of such penalties under this section or may be paid sooner if the licensee elects. With the exception of subsection (3)(d) of this section, monetary penalties collected by the board under this section shall be deposited to the credit of the General Fund of the State Treasury. Any monies collected by the board under subsection (3)(d) of this section shall be deposited into the special fund operating account of the board.

(8) When payment of a monetary penalty assessed and levied by the board against a licensee in accordance with this section is not paid by the licensee when due under this section, the board shall have power to institute and maintain proceedings in its name for enforcement of payment in the chancery court of the county and judicial district of residence of the licensee, and if the licensee be a nonresident of the State of Mississippi, such proceedings shall be in the Chancery Court of the First Judicial District of Hinds County, Mississippi.

(9) In addition to the reasons specified in subsection (1) of this section, the board shall be authorized to suspend the license of any licensee for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a license for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a license suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a license suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. Actions taken by the board in suspending a license when required by Section 93-11-157 or 93-11-163 are not actions from which an appeal may be taken under this section. Any appeal of a license suspension that is required by Section 93-11-157 or 93-11-163 shall be taken in accordance with the appeal procedure specified in Section 93-11-157 or 93-11-163, as the case may be, rather than the procedure specified in this section. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.

SECTION 3. This act shall take effect and be in force from and after July 1, 2000.