CHAPTER 415
FORMERLY SENATE BILL
NO. 595 AS AMENDED BY
HOUSE AMENDMENT NOS.
4,5,6,7, AND 8
AN ACT TO AMEND TITLE 24, DELAWARE CODE, RELATING TO FUNERAL DIRECTORS; ESTABLISHING A BOARD OF FUNERAL SERVICE PRACTITIONERS; CONFERRING UPON SAID BOARD CERTAIN POWERS AND AUTHORITY RELATIVE TO THE LICENSING AND REGULATION OF FUNERAL DIRECTORS AND PROVIDING ENFORCEMENT AND PENALTIES; CONFERRING UPON BANK COMMISSIONER CERTAIN POWERS AND AUTHORITY RELATIVE TO THE LICENSING AND REGULATION OF PRE-NEED FUNERAL CONTRACTS AND PROVIDING ENFORCEMENT AND PENALTIES.
Be it enacted by the General Assembly of the State of Delaware (two-thirds of all members elected to each house concurring therein):
Section 1. Amend Title 24, Delaware Code, by striking Chapter 31 thereof in its entirety and substituting in lieu thereof a new Chapter 31 to read as follows:
FUNERAL SERVICE PRACTITIONERS
§ 3101. Definitions
"Board" as used in this Chapter shall mean the Board of Funeral Service Practitioners of the State of Delaware or any successor thereof.
"Practice of funeral service" as used in this Chapter shall mean a person engaged in the care of the human dead, or in the practice of disinfecting and preparing by embalming or otherwise the human dead for the funeral service, transportation,
burial or cremation, or in the practice of funeral directing or embalming as presently known, whether under these titles or designations or otherwise.
"A license for the practice of funeral service" as used in this Chapter shall be the license to a person who is engaged in the practice of funeral service as defined hereinabove.
"Funeral establishment" means every place or premise devoted to or used in the care and preparation for the funeral and burial of human dead, or maintained for the convenience of the bereaved for viewing, or other services in connection with the human dead, or as the office or place for carrying on the profession of funeral service.
"Burial" includes interment in any form or cremation and the transportation of the dead human body necessary therefor.
"Advertisement" means the publication, dissemination, circulation or placing before the public, or causing directly or indirectly to be made, published, disseminated or placed before the public any announcement or statement in a newspaper, magazine or other publication, or in the form of a book, notice, circular, pamphlet, letter, handbill, poster, bill, sign, placard, card, label or tag, or over any radio, or television station.
"Resident trainee" means a person who is engaged in preparing to become licensed for the practice of funeral service under the personal supervision and instruction of a person duly licensed for the practice of funeral service, of and in the State of Delaware under the provisions of this Chapter, and who is duly registered as such with the Board.
§ 3102. Board of Funeral Service Practitioners; appointment; qualifications; terms of office; vacancies
(a) There is hereby created a State Board of Funeral Service Practitioners which shall succeed to the power, authority, property and records of the State Board of Examiners of Undertakers.
§ 3103. Meetings
Said Board shall hold not less than one (1) meeting annually for the purpose of examining applicants for licenses, such meeting to be held at such time and place as the Board may determine. The Board may hold such other meetings as it may deem necessary. Four (4) or more members shall constitute a quorum.
(b) The Board shall consist of seven (7) members, each of whom shall be a citizen of the United States and a resident of the State of Delaware. Five (5) of these members shall be persons who have been licensed to practice funeral services for ten (10) consecutive years in this State immediately preceding his or her appointment, and the remaining two members shall be persons who are not connected with the practice of funeral service. Members of said Board shall be appointed by the Governor for a term of three (3) years and may be removed by the Governor for incompetence or improper conduct. Vacancies on the Board shall be filled by appointment by the Governor for the balance of the term. Present members of the Board of Examiners of Undertakers shall serve until their terms have expired and their successors have been appointed. No more than two (2) members of the Board shall be residents of either Sussex County, Kent County, the City of Wilmington, or New Castle County outside of the City of Wilmington. At least three (3), but no more than four (4) members of the Board shall be affiliated with one of the major political parties and at least two (2), but no more than three (3), of the members shall be affiliated with the other major political party; provided, however, there shall be no more than a bare majority representation of one major political party over the other major political party. Any person who declines to announce his political affiliation shall also be eligible for appointment as a member of the Board.
Vice-President, and a Secretary. No two offices to be held by the same person.
(c) All members of the Board with the exception of the Secretary shall serve without compensation; provided that such members shall be reimbursed for their necessary traveling expenses and the necessary expenses incident to their attendance upon the business of the Board. Reimbursement for expenses shall be requested from the Treasurer of the State of Delaware.
(d) All money or income received by the Board from taxes, fees, or other sources shall be deposited with the State Treasurer via the State Licenses Board Office when received and shall be credited to the General Fund. All disbursements made by the Board for salaries, expenses or other authorized expenditures, shall be paid by the State Treasurer via the State License Office out of funds appropriated by the General Assembly for such purpose, on vouchers issued by the proper officer or officers of the Board. All such vouchers must be signed by the President and Secretary of the Board.
(e) The Board shall be represented by the Office of the Attorney General.
§ 3104. Powers and duties of the Board
§ 3105. Licenses
(a) The State Board of Funeral Service is hereby authorized and empowered to determine the qualifications necessary to enable any person to lawfully engage in the funeral service profession and to operate a funeral establishment. The said Board shall examine all applicants for licenses for the practice of funeral service and shall issue the proper license to all those persons who successfully pass such examination. To be licensed for the practice of funeral service under this Chapter, a person must be a resident of this State for six (6) months prior to applying and a citizen of the United States, of good, moral character, must have completed
(b) four (4) years of high school and at least two (2) academic years of instruction in a recognized college or university, one (1) year of academic instruction in a prescribed course at a school of funeral service accredited by the American Board of Funeral Service Education and must have served as a resident trainee for not less than twelve (12) months under the personal supervision in this State of a person licensed for the practice of funeral service.
(b) Each such applicant for the license for the practice of funeral service shall be examined orally or in writing as the Board shall determine on the following subjects:
1. Basic health sciences, including anatomy, chemistry, bacteriology, pathology, hygiene, and public health;
2. Funeral service arts and sciences, including embalming and restorative art;
3. Funeral service administration, including accounting, funeral law, psychology, funeral principles, directing and management;
(c) All applications for examination for a license for the practice of funeral service shall be upon forms furnished by the Board and shall be accompanied by a fee to be determined by the Board.
(d) The practice of funeral service must be engaged in at a fixed place or establishment, and no person, partnership, corporation, association, or other organization shall be open or maintain a place or establishment at which to engage in or conduct or hold himself or itself out as engaging in the funeral service profession unless permission has been granted by the Board. A license for the practice of funeral service is issued for specific locations. It shall be used only at the addresses specified in the application unless the licensee is granted written approval for a change by the Board; provided, that this provision shall not prevent a person licensed for the practice of funeral service from conducting a funeral in another licensed established, a church, home, public hall, lodge room, provided such person maintains a fixed place or establishment of his own or is in the employ of one conforming to all other provisions of this Chapter and operating a funeral establishment as herein defined.
(e) The license shall be signed by the President and Secretary of the Board and the seal of the Board affixed thereto. No license shall be issued or renewed for a period exceeding one (1) year and all licenses and renewals thereof shall expire and terminate the 31st day of August following the date of their issue unless sooner revoked and cancelled.
(f) Any person holding a license for the practice of funeral service under this Chapter may have the same renewed by filing application therefor with the Secretary of the Board within thirty (30) days preceding the expiration of his license upon forms provided by said Board, and upon payment of a renewal fee of Ten Dollars ($10) for each license; provided, that any person neglecting or failing to have his license renewed as above provided may, at the discretion of the Board, have the same renewed by making application therefor during the ninety (90) days immediately following the expiration date and upon the payment of a Twenty-five Dollar ($25) revival and renewal fee; and provided further that the license of any licensee who is actively engaged in the military service of the United States may, at the discretion of the Board, be held in abeyance for the duration of such service and such person may be relieved of the payment of such renwal and revival fees as the Board may deem justifiable and expedient.
(g) Any person holding a license granted by any legal authority of this State as a funeral service practitioner on the effective date of this Chapter shall not be required to make a new application or submit to an examination but shall be entitled to a license for the practice of funeral service upon the same terms and conditions as are herein provided for the renewal of licenses of those who may be licensed after the passage of this Chapter, but all such persons shall be subject to every other provision of this Chapter and such rules and regulations as the Board may adopt in pursuance of this Chapter.
(a) A person desiring to become a resident trainee shall make application on a form provided for this purpose which shall be subject to review by the entire Board. The application shall state that the applicant is over eighteen (18) years of age, of good moral character, and shall have successfully completed the educational requirements set forth in § 3105 of this Title. Said application must be sustained by the oath of the applicant and be accompanied by a fee of Ten Dollars ($10). When the Board is satisfied as to the qualifications of an applicant they shall instruct the Secretary to issue a certificate of resident traineeship. When a resident trainee wishes to get in service training with a person licensed for the practice of funeral service, a request shall be submitted to the Secretary of the Board therefor. If such
permission is granted and at any time thereafter such resident trainee leaves the proctorship of the licensee whose service has been entered, it shall be the duty of the said licensee to give such resident trainee an affidavit showing the length of time served with him, which affidavit shall be filed with the Secretary of the Board and made a matter of record in that office, and if such resident trainee shall thereafter seek permission to continue in service training in the State of Delaware a request for permission to do so shall be submitted to the Secretary.
(b) All resident trainees registered as provided herein shall be required to report to said Board quarterly upon forms provided by the Board, showing the work which has been completed, during the three (3) months preceding the first of the month in which such report is made. The date contained in said report shall be certified to as correct by the person licensed for the practice of funeral service under whom he has served during such period and by the person licensed for the practice of funeral service owning the funeral home.
(c) Before such resident trainee shall be eligible to receive a license for the practice of funeral service, evidence required by this Chapter shall be presented along with an affidavit from the licensee or affidavits from the licensees under whom the trainee worked showing that he or she has assisted in the embalming of at least twenty-five (25) individual cases and that he or she has assisted in the conducting of at least twenty-five (25) funerals during resident traineeship. In all applications of resident trainees for licenses for the practice of funeral service under this Chapter, the eligibility of the applicant shall be determined by the record filed with the Board.
(d) The Board shall have power to suspend or revoke a certificate of a resident traineeship for violation of any provision of this Chapter.
(e) At the same time not more than one (1) resident trainee shall be permitted to register under any one person licensed for the practice of funeral service. Each sponsor for a registered resident trainee must be actively connected with a funeral establishment as defined by this Chapter.
a duly registered apprentice in this State shall immediately be granted a certificate of resident traineeship under this Chapter and shall receive credit for the obtaining of a license for the practice of funeral service for all of the time spent by such resident trainee as an apprentice prior to the effective date of this Chapter.
§ 3107. Establishment permit
(a) No person shall conduct, maintain, manage, or operate a funeral establishment unless a permit 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, or lodge hall, no permit shall be required.
(b) Applications for such funeral establishment permits shall be made on forms furnished by the Board office and filed with the Board office on or before August 1st of each year and shall be accompanied by a fee of Ten Dollars ($10). All such permit shall expire on August 31st of the following year.
(c) Violations of any provisions of § 3108 of this Title or of any rule or regulation of the Board committed by any person, or an officer, agent or employee with the knowledge or consent of any person operating such funeral establishments shall be considered sufficient cause for suspension or revocation of such funeral establishment permit.
(d) No operator of a funeral establishment shall allow any person licensed for the practice of funeral service 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 granted a permit by the Board.
(e) No permit to operate a funeral establishment shall be issued by the Board unless each such funeral establishment has in charge, full time therein, a person licensed for the practice of funeral service; provided, however, that this subparagraph (e) shall not apply to funeral establishments maintained, operated or conducted prior to the effective date of this act.
§ 3108. Violations; legal procedure
(a) Whenever the Board shall have reason to believe that any person to whom a license has been issued has become unfit to practice within the funeral service profession, or has violated any of the provisions of this Chapter, or any rule or regulation prescribed, or whenever written complaint, charging the holder of a license for the practice of funeral service with the violation of any provisions of this Chapter, is filed with said Board, it shall be the duty of the said Board to conduct an investigation, and if from such investigation it shall appear to the Board that there is reasonable ground for belief that the accused may have been guilty of the violations charges, a time and place shall be set by the Board for a hearing to determine whether or not the license of the accused shall be suspended or revoked. Any member of siad Board shall have the right to administer oaths to witnesses.
(b) No action to suspend, revoke or cancel any license shall be taken by the Board until the accused has been furnished with a statement of the charges against him and a notice of the time and place of hearing thereof, the furnishing of such notice and the charges to be given to said accused at least 15 days prior to the date of hearing. Said notice shall be mailed to the accused at his last known place of residence. The accused may be present at such hearing in person or by counsel or both to disprove the charges made against him. If upon such hearing the Board finds the charges are true, it may revoke or suspend the license of the accused. A report of each proceeding to revoke or suspend a license shall be made at the expense of the Board, and a transcript thereof kept in its files.
(c) Any person who has been refused a license or whose license has been revoked or suspended may, within thirty days after the receipt of the written decision of the said Board, appeal therefrom to the Superior Court in and for the county within which such person resides, and such Superior Court shall hear and determine as to whether the action of the Board was in accord or consistent with this Chapter, or that said decision of the Board was arbitrary, unwarranted, or in abuse of discretion. Upon the filing of such notice the Secretary of the Board shall transmit forthwith to the Prothonotary of the Superior Court, the records and findings of such proceedings.
(d) The Board may also refuse to issue, or renew, or may suspend or revoke any license, or may place the holder thereof on a term of probation after proper hearing, upon finding the applicant or the holder of such license to be guilty of acts or omissions including the following:
I. Conviction of a crime involving moral turpitude;
2. Conviction of a felony;
3. Fraud or deceit in obtaining a license or permit under this Chapter; and
4. Gross negligence, incompetency, misconduct or unprofessional conduct in the practice of funeral service or in the operation of a funeral establishment.
5. Violation of any of the provisions of this Chapter.
(e) No person licensed for the practice of funeral service shall remove or embalm a decedent when he or she has information indicating that an investigation of death is required by Title 29, Section 4710, Delaware Code, until permission of the Chief State Medical Examiner, or an Assistant, or Deputy Medical Examiner has first been obtained.
(f) No person licensed for the practice of funeral service or anyone acting for him or her shall have any part in any transaction or business which in any way interferes with the freedom of choice of the general public to choose a funeral establishment except where the body or a part thereof is given for anatomical purposes.
(g) No person licensed for the practice of funeral service shall operate a mortuary or funeral establishment located within the confines of, or connected with, any cemetery. No person licensed for the practice of funeral service, or his or her employee shall, directly or indirectly, receive or accept any commission, fee, remuneration or benefit of any kind from any cemetery, mausoleum or crematory or from any proprietor or agent thereof in connection with the sale or transfer of any cemetery lot, entombment vault, burial privilege or cremation, nor act, directly or indirectly, as a broker or jobber of any cemetery property or interest therein.
§ 3109. Circumstances causing certificate to become void; continuation of certificate under certain conditions
When any person, upon whose examination, a certificate was issued to any firm or corporation or to such person for his or her funeral service practice under the provisions of this Chapter, ceases to be a member of such firm or corporation or shall be deceased, the right of such person, firm or corporation to continue in such practice shall cease and terminate except under the following circumstances and conditions:
1. Where the practice of funeral service has been carried on by an individual operating under his own certificate, his estate may continue the practice of funeral service under the supervision and direction of a licensed funeral service practitioner of this State, until such time as the estate shall have been settled but not beyond a period of two years from the date of the decedent's death;
2. Where the practice of funeral service has been carried on in the name of a firm or corporation, said firm or corporation may continue to exercise all the rights and prerogatives which said certificate confers and said certificate shall remain in full force and effect so long as any officer of said corporation is a duly licensed funeral service practitioner of this State assuming responsibility for compliance with the provisions of this Chapter.
(a) Any person, partnership, corporation, association, or his or her or its agents or representatives who shall violate any of the provisions of this Chapter shall be deemed guilty of misdemeanor, and, upon conviction thereof, be punished by a fine of not more than $300.00 or by imprisonment, for not more than one year, or by both such fine and imprisonment, in the discretion of the court.
(b) Justices of the Peace shall have jurisdiction of any such violations of the provisions of this Chapter.
PRE-NEED FUNERAL CONTRACTS
§ 3120. Definitions
As used in this subchapter, unless the context requires otherwise:
"Commissioner" means the State Bank Commissioner.
"Financial Institution" means a bank, trust company or savings and loan association authorized by law to do business in this State.
"Pre-Need Burial Contract" means a contract, which has for a purpose the furnishing or performance of funeral services, or the furnishing or delivery of personal property, merchandise, or services of any nature in connection with the final disposition of a dead human body, for future use at a time determinable by the death of the person whose body is to be disposed of; but does not mean the furnishing of a cemetery, mausoleum or memorial.
§ 3121. Pre-need payments and increment as trust funds; disbursements authorized, when
(a) All payments of money made to any person, partnership, association or corporation upon any agreement or contract, or any series or combination of agreements or contract, but not including the furnishing of cemetery lots or mausoleums, which has for a purpose the furnishing or performance of funeral services, or the furnishing or delivery of personal property, merchandise, or services of any nature in connection with the final disposition of a dead human body, for future use at a time determinable by the death of the person whose body is to be disposed of, are held to be trust funds. The person, partnership, association or corporation receiving the payments is declared to be a trustee thereof, and shall deposit all payments in a trust account with a bank or trust company or invest said payments in a savings and loan association. All of the interest, dividends, increases or accretions of whatever nature earned by the funds deposited in a trust account shall remain with the principal of such account and
become a part thereof, subject to all of the regulations concerning the principal of said fund herein contained.
(b) All payments made under the agreement, contract or plan are and shall remain trust funds with the financial institution until the death of the person for whose service the funds were paid and until the delivery of all merchandise and full performance of all services called for by the agreement, contract or plan, except where payment is made pursuant to § 3122.
(c) The funds shall not be paid by the financial institution until a certified statement is furnished to the financial institution setting forth that all of the terms and conditions of the agreement have been fully performed by the person, association, partnership, firm or corporation. Any balance remaining in the fund after payment for the merchandise and services as set forth in the agreement, contract or plan shall be paid to the estate of the beneficiary of the agreement contract or plan.
(d) Subsection (a) of this section does not apply to contracts for funeral service or merchandise sold as burial insurance policies which are regulated by the Insurance Department of this State.
§ 3122. Refund to persons making payments
(a) Upon the giving of fifteen (15) days written notice, any person, partnership or corporation who has paid funds for a pre-need funeral service may demand a refund of the entire amount actually paid, together with all interest, dividends, increases or accretions, of any kind, whatsoever, which have been earned on such funds.
(b) The financial institution shall be relieved from further liability, after making payment to the person making payment of said funds, to the trustee upon receipt of the foregoing written notice. Notice of payment of funds under this section shall be given by the financial institution to the trustee.
§ 3123. Trust funds, how kept and deposited
All trust funds mentioned in this subchapter shall be deposited in the name of the trustee, as trustee, within thirty (30)
days after receipt thereof, with a bank or trust company or invested in a savings and loan association and shall be held together with the interest, dividends, or accretions thereon, in trust, subject to the provisions of this subchapter. The trustee at the time of making deposit or investment shall furnish to the financial institution the name of each payor, and the amount of payment on each account for which the deposit or investment is being made.
§ 3124. License to accept pre-need contract required; fees
(a) No person, firm, partnership, association or corporation may, without first securing from the Commissioner a license, accept and/or hold payments made on pre-need burial contracts, except financial institutions as defined in § 3120. Application for a license shall be in writing, signed by the applicant and duly verified on forms furnished by the Commissioner. Each application shall contain at least the following:
The full name and address (both residence and place of business) of the applicant and every member, officer and director thereof if the applicant is a firm, partnership, association or corporation. Any license issued pursuant to the application shall be valid only at the address stated in the application for the applicant or at a new address approved by the Commissioner.
(b) Upon receipt of the application and payment of a license fee of Twenty-five dollars ($25.00) the Commissioner shall issue a license unless he determines that the applicant has made false statements or representations in the application or is insolvent, or has conducted, or is about to conduct his business in a fraudulent manner, or is not duly authorized to transact business in this State.
§3125. Records of Licensee, requirements; inspection
The licensee shall keep accurate accounts, books, and records in this. State of all transactions, copies of all agreements, dates and amounts of payments made and accepted thereon, the names and addresses of thecontracting parties, the persons for whose benefit funds are accepted, and the names of the financial institutions in which the funds are deposited or invested. The licensee shall make all books and records pertaining to the trust funds available to the
Commissioner for examination. The Commissioner may at any time investigate the books, records, and accounts of the licensee with respect to its trust funds and for that purpose may require the attendance of and examine under oath, all persons whose testimony he may require.
§ 3126. State Bank Commissioner to enforce law; rules and regulations
The Commissioner shall enforce the provisions of this subchapter and has the power to make investigations, subpoena witnesses, require audits and reports and conduct hearings as to violations of any provision, and to establish such rules and regulations as are necessary to carry out the provisions of this subchapter.
§ 3127. Violations, penalty
Any person willfully violating the provisions of this subchapter shall be fined not less than Five Hundred Dollars ($500.00) nor more than One Thousand Dollars ($1,000.00).
Section 3. Acts occurring before the effective date of this Chapter and the rights, duties and interests flowing from them shall be governed by the law in existence at the time in this Chapter becomes law. The provisions of this Chapter do not apply to violations of the law or to causes of action or judgments arising therefrom prior to the effective date of this Chapter.
Prosecutions for such offenses or violations shall be governed by the prior law which is continued in effect for the purpose as if this Chapter is not in force. All violations, offenses, prosecutions and criminal appeals under prior law are saved and preserved. All civil causes of action based upon or under prior law arising out of occurrences prior to the effective date of this Chapter and judgments thereon or appeals therefrom are saved and preserved.
If any section, subsection, sentence, phrase or word of this. Act or circumstances arising out of the application thereof shall be declared unconstitutional under the Constitution of the State of Delaware or of the United States by a state or federal court of
competent jurisdiction, the remainder of this Act shall be unimpaired and shall continue in full force and effect and proceedings thereunder shall not be affected.
Section 5. This Act shall become effective ninety days after signature by the Governor.