House Bill 1090

AN ACT TO AMEND SECTION 73-11-55, MISSISSIPPI CODE OF 1972, TO REQUIRE THE STATE BOARD OF FUNERAL SERVICE TO ADOPT RULES TO PROTECT EMPLOYEES OF FUNERAL ESTABLISHMENTS FROM HEALTH AND SAFETY RISKS POSED BY THEIR EMPLOYMENT; TO AMEND SECTION 73-11-57, MISSISSIPPI CODE OF 1972, TO REQUIRE THE STATE BOARD OF FUNERAL SERVICE TO CONDUCT FOLLOW-UP INSPECTIONS OF FUNERAL ESTABLISHMENTS AND BRANCH ESTABLISHMENTS THAT WERE CITED FOR NONCOMPLIANCE WITH LAW OR AGENCY RULES WITHIN THIRTY DAYS OF THE CITATION; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 73-11-55, Mississippi Code of 1972, is amended as follows:

73-11-55. (1) No person or party shall conduct, maintain, manage or operate a funeral establishment or branch thereof unless a license for each such establishment has been issued by the board and is conspicuously displayed in such funeral establishment. In case of funeral services held in any private residence, church, cemetery, cemetery chapel, cemetery facility, or lodge hall, no license shall be required.

(2) To be licensed as a funeral establishment, a place or premise must be at a fixed and specified address or location and must be used for immediate post-death activities, whether used for the custody, shelter, care, preparation and/or embalming of the human dead. Every funeral establishment shall be under the charge and personal supervision of a Mississippi funeral director licensee or a Mississippi funeral service licensee. The licensee in charge and the licensee with personal supervisory responsibilities need not be the same licensee. Each licensed funeral establishment shall be inspected at least once during each licensing period. Such inspections may be unannounced.

(3) (a) A funeral establishment must contain a preparation and/or embalming room, adequate casket and/or vault selection room, and holding facilities or proper room or rooms in which rites and ceremonies may be held. A funeral establishment shall be subject to an inspection at least once during a two-year license period. Each new establishment must be inspected before the opening. All portions of each facility licensed under this section shall be kept in a clean and sanitary condition. The board shall adopt rules setting minimum standards of safety to protect workers employed in funeral establishments from health and safety risks.

(b) A branch establishment must contain an office and/or an arrangement room, and a room for viewing and/or a chapel or proper place for ceremonies. A branch establishment need not meet all requirements specified in paragraph (a) of this subsection and need not be under the personal supervision of a Mississippi funeral director licensee or a Mississippi funeral service licensee.

If the branch meets all requirements of a funeral establishment as specified in paragraph (a) of this subsection, such establishment must be under the charge and personal supervision of a Mississippi funeral director licensee or a Mississippi funeral service licensee.

(c) A commercial mortuary service is a funeral establishment that embalms and transports for licensed funeral establishments and does not sell any services or merchandise directly or at retail to the public.

(4) Applications for funeral establishment licenses, branch establishment licenses or commercial mortuary service licenses shall be made on blanks furnished by the board and shall be accompanied by a fee in an amount fixed by the board pursuant to Section 73-11-56. All establishment licenses shall be issued for a period of two (2) years, except initial licenses may be prorated from the date of issuance to the next renewal date.

Renewal funeral establishment and branch establishment license applications and license fees shall be due and payable to the board on or before the expiration date of the license. The board shall mail the notice of renewal and the due date for payment of the renewal fee at least thirty (30) days before that date.

(5) If the renewal fee is not paid on or postmarked by the due date, the license shall by operation of law automatically expire and become void without further action of the board. All establishments whose licenses have expired under this section may be reinstated by filing with the board an application for reinstatement, submitting to an inspection during which time the licensee in charge of such establishment shall be interviewed by the board or its designee and by paying all renewal fees in arrears and a reinstatement fee.

(6) No license shall be assignable or transferable or valid for any establishment other than the original licensee. License fees and application fees are nonrefundable.

(7) A license for each new establishment, change of location, change of ownership, or reinstatement of an establishment shall not be issued until an inspection has been made, license and inspection fees have been paid, and the licensee in charge of such establishment has been interviewed by the board or its designee.

(8) No operator of a funeral establishment shall allow any person licensed for the practice of funeral service or funeral directing, as the case may be, to operate out of such funeral establishment unless such licensee is the operator of or an employee of the operator of a funeral establishment which has been issued a license by the board.

(9) The board is authorized to establish rules and regulations for the issuance of a special funeral establishment work permit.

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; if the person solicited has made known a desire not to receive the communication, or if the solicitation involves coercion, duress or harassment, or if the solicitation takes place at the residence of the client or prospective client, is uninvited by the client or prospective client and has not been previously agreed to by the client or prospective client; 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) Failure to make responses to communications or requests of the board within thirty (30) days;

(l) Failure to comply with an order of the board within thirty (30) days;

(m) Knowingly performing any act that in any way assists an unlicensed person to practice funeral service or funeral directing;

(n) Making a false statement on death certificates; or

(o) 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; or

(v) 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 funeral directing.

(2) In instances where the board has cited a funeral establishment or branch establishment for noncompliance with state law or board policy, the board shall conduct a follow-up inspection of the funeral establishment within thirty (30) days of the initial inspection to determine if corrective action has been taken.

(3) 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. An appeal of a decision or order of the board does not act as a supersedeas.

(4) 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.

(5) 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.

(6) 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.

(7) Any monetary penalty assessed and levied under this section shall not take effect until after the time for appeal shall have expired.

(8) 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.

(9) 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.

(10) 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, 2005.