December 7, 1993
Ms. Corrine J. Culbreth Executive Secretary North Carolina Board of Mortuary Science
P.O. Box 27368 Raleigh, NC 27611
Re: Advisory Opinion: Liability of Funeral Establishment for Unlicensed Employee
Dear Ms. Culbreth:
The following is in reply to your request for an opinion on whether a funeral establishment may be held liable for employing an unlicensed person without actual knowledge that the person failed to renew his license. It is the opinion of this office that a funeral establishment may be held liable in such circumstances.
The facts set out in your request are as follows. Employee X of ABC Funeral Home has not renewed his funeral service license since 1991, and yet he is shown as a licensee, engaged in fulltime employment, on the funeral home’s December, 1992, application for renewal of its funeral establishment permit.
It is provided in N.C.G.S. § 90-210.25(a)(5) that "the holder of any license issued by the Board who shall fail to renew the same on or before January 31 of the calendar year for which the license is to be renewed shall have forfeited and surrendered the license as of that date." N.C.G.S. § 90-210.25(f) provides that practicing funeral service without a license is a criminal act, punishable as a misdemeanor by fine or imprisonment or both. Also, it is provided in N.C.G.S. § 90-210.25(e)(1) that the Board of Mortuary Science may suspend or revoke a license, or refuse to issue or renew a license, for certain acts of misconduct, including "violating or cooperating with others to violate any of the provisions of this Article."
Under the authority of N.C.G.S. § 90-210.23(a) the Board has adopted 21 N.C.A.C. 34 .0708 regarding the application form for a funeral establishment permit. That regulation provides that the manager of the funeral establishment must verify on an annual basis the names and license numbers of all licensed employees of the funeral establishment. Under that regulation, the funeral establishment has an affirmative duty to determine that the licenses of its employees are current prior to applying for renewal of its permit. Article 13A of Chapter 90 also contains N.C.G.S. § 90-210.25(e)(1)b. which prohibits the use of misrepresentation to renew a license.
When the manager of ABC Funeral Home verified in the application for a renewal of the funeral establishment permit that employee X had a current funeral service license when X did not in fact have a current valid license, ABC Funeral Home violated N.C.G.S § 90-210.25(e)(1) and may be held liable for that violation. This is true regardless of whether the manager had actual knowledge that X did not renew his license or merely failed to make the effort to determine the status of X’s license.
Additionally, it may be argued that by employing an unlicensed person to perform services that may only be done by a licensed person the funeral home has cooperated with employee X to violate Article 13A of Chapter 90 and the funeral home may be held liable for a violation of
N.C.G.S § 90-210.25(e)(1) without regard to the affirmative duty referred to in the preceding portion of this opinion.
On a related point, N.C.G.S. § 90-210.25(d) addresses the responsibilities attendant to maintaining a funeral establishment permit. Subdivision (4) of that provision reads as follows:
(4) The board may suspend or revoke a permit when an owner, partner or officer of the funeral establishment violates any provision of this Article or any regulations of the Board, or when any agent or employee of the funeral establishment, with the consent of any person, firm or corporation operating the funeral establishment, violates any of those provisions, rules or regulations.
It is recognized that an argument may be made that the use of the word "consent" in the language of N.C.G.S. § 90-210.25(d)(4) might protect a funeral establishment from vicarious liability under circumstances where an employee’s actions were so secret in nature that the funeral home did not and could not have reasonably known of, or acquiesced in, the violation. However, that argument is not relevant where, as in the situation under consideration, there is an affirmative duty on the funeral establishment to ensure the proper licensure of its employees and the funeral home itself, acting through its manager, has violated the provisions of Article 13A of Chapter 90.
Ann Reed Senior Deputy Attorney General
Charles J. Murray Special Deputy Attorney General