Can an unlicensed employee of a Maryland funeral home sell pre-need funeral contracts?

Plain-English summary

In 1987, a Maryland state senator asked the Attorney General whether the Maryland Morticians Act let an unlicensed agent or employee of a funeral home solicit or offer a contract to provide funeral goods and services, particularly "pre-need" contracts that people buy in advance of death. The Act limited the actual practice of mortuary science and funeral direction to licensed morticians, funeral directors, and a few other specific license categories, and separately barred licensees from paying "cappers" or "steerers" to drum up business.

The Attorney General concluded that the Act barred everyone except licensed morticians, funeral directors, and surviving-spouse licensees from soliciting, offering, or executing funeral contracts, whether pre-need or at-need, even when the unlicensed person acted on behalf of a licensee. The opinion read the statute's definition of "seller" in the pre-need contract provisions as a drafting convenience rather than as authorizing anyone to sell such contracts, and found the Act's anti-solicitation and aiding-and-abetting provisions confirmed that unlicensed agents could not be used to negotiate funeral business. The opinion did allow unlicensed staff to give consumers written, legally required disclosure information about available goods and services, since that function did not involve negotiating the specific arrangements for a particular consumer, but drew the line at unlicensed staff going further to discuss or develop an actual contract.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could an unlicensed funeral home employee sell a pre-need funeral contract in 1987 Maryland?
According to this opinion, no. The Attorney General concluded the Morticians Act limited both pre-need and at-need contract solicitation to licensed morticians, funeral directors, and surviving-spouse licensees, and that an unlicensed agent could not solicit such contracts even on a licensee's behalf.

Could a funeral home use non-licensed staff to answer questions about pricing or services?
The opinion concluded yes, to a point. Non-licensees could provide the federally mandated written disclosures about available goods, services, and prices, but could not go further and negotiate or discuss the specific arrangements a particular consumer would receive, which the opinion reserved to licensees.

Background and statutory framework

The Morticians Act, HO §§6-101 through 6-602, restricted the practice of mortuary science and funeral direction, including arranging final disposition of a body for compensation, to seven categories of licensees, and separately barred licensees from using "cappers," "steerers," or other paid solicitors to obtain business under HO §6-315(a)(8) and (9). The opinion focused on two provisions specific to "pre-need" contracts, HO §6-404(b) and HO §6-504, both of which limited who could "offer or agree, directly or indirectly," to provide pre-need funeral goods or services to licensed morticians, funeral directors, or surviving-spouse licensees. The opinion treated the pre-need statute's broader definition of "seller" as a drafting shorthand rather than a grant of authority to unlicensed sellers, and read the Act's aiding-and-abetting provision, HO §6-315(a)(5), together with the anti-solicitation provisions to bar unlicensed agents from negotiating either pre-need or at-need funeral business.

The opinion balanced this restriction against federal disclosure regulations, 16 C.F.R. §§453.2 through 453.5, which required funeral providers to give consumers specific written information about available goods, services, and prices, sometimes through staff who were not themselves licensed morticians. Citing In re R.M.J. for the principle that truthful, non-misleading advertising is protected speech, the opinion distinguished passive delivery of legally required disclosure information, which it found unlicensed staff could provide, from active solicitation or negotiation of a specific consumer's funeral arrangements, which it reserved to licensees. The opinion also explained why the Act's inclusion of "surviving spouse" licensees among those who could sell pre-need contracts did not undercut this framework, since that license preserved a deceased mortician's business as a going concern under the supervision of a licensed mortician, citing Brooks v. State Board of Funeral Directors & Embalmers for the similar rationale behind allowing certain corporations to engage in funeral direction.

Citations

Statutes:

• HO §6-101(h)(2) (seven licensed practitioner classes under the Board of Morticians)
• HO §6-101(n)(1)(ii) and (o)(1)(iii) (definitions of mortuary science and funeral direction, including arranging final disposition for compensation)
• HO §6-101(n)(2) (scope of funeral direction, excluding embalming)
• HO §6-101(o)(3) (unlicensed persons may transport human remains under a licensee's direction)
• HO §6-101(p) (definition of a pre-need contract)
• HO §6-306 and §6-308 (apprentice and surviving-spouse license practice limits)
• HO §6-307 and §6-313(f) (phase-out of the funeral director license category)
• HO §6-309(d) and §6-310(c)(2) (corporations and funeral establishments must act through a licensed individual)
• HO §6-315 (surviving-spouse licensees subject to the same regulatory provisions as other licensees)
• HO §6-315(a)(5) (discipline for aiding an unauthorized person in the practice of mortuary science)
• HO §6-315(a)(7) through (9) (prohibition on paid solicitors, cappers, and steerers)
• HO §6-404(a) and (b) (definition of "seller" and licensee-only limit on offering pre-need contracts)
• HO §6-501 (practice of mortuary science limited to licensees)
• HO §6-504 (licensee-only limit on offering pre-need contracts, parallel provision)
• HO §6-508 (misdemeanor penalty for unlicensed practice)
• Chapter 728, Laws of Maryland 1986 (amended the pre-need contract definition and added the courtesy-card/transport provisions)
• Chapter 8, Laws of Maryland 1981 (original pre-need contract definition)
• 16 C.F.R. §§453.2 through 453.5 (federal funeral-goods disclosure regulations)

Cases:

• In re R.M.J., 455 U.S. 191 (1982)
• Brooks v. State Board of Funeral Directors & Embalmers, 233 Md. 98, 114 (1963)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1987/Volume72_1987.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

HEALTH OCCUPATIONS

Morticians—Unlicensed Persons May Not Solicit, Offer, or Execute a Contract for the Provision of Funeral Goods or Services.

February 11, 1987

The Honorable Thomas Patrick O'Reilly
Senate Of Maryland

You have requested our opinion on whether the Maryland Morticians Act prohibits anyone other than a person who is licensed under the Act from soliciting or offering a contract to provide funeral goods and services or, conversely, whether the Act permits an unlicensed agent or employee of a licensee to solicit or offer such a contract.

For the reasons given below, we conclude that the Act bars all persons except licensees from arranging or assisting in arranging funerals, including soliciting, offering, or executing contracts for the provision of funeral goods or services.1

I
Background

Under the Maryland Morticians Act, §§6-101 through 6-602 of the Health Occupations Article ("HO" Article), the State Board of Morticians has authority to examine, license, and discipline seven classes of practitioners: morticians, apprentices, funeral directors, surviving spouses, corporations, funeral establishments, and courtesy card holders. See HO §6-101(h)(2). Only a licensee may "practice, attempt to practice, offer to practice, or assist in the practice of mortuary science in this State. . . ." HO §6-501.2

The Morticians Act defines the scope of both mortuary science and the more limited practice of "funeral direction" to include "[f]or compensation, to arrange for or make final disposition of a dead human body." HO §6-101(n)(1)(ii) and (o)(1)(iii).3 Further, the Act explicitly prohibits certain forms of solicitation of mortuary business. Thus, an applicant for a license or a licensee is subject to disciplinary action if he or she "[e]mploys, pays, or offers to pay a 'capper', 'steerer', 'solicitor', or any other person to obtain business either in general or for a particular mortician, funeral director, or funeral establishment" or "[d]irectly or indirectly pays or offers to pay to obtain mortuary science business." HO §6-315(a)(8) and (9).

The likelihood of unlicensed persons being employed to solicit business is generally increased in the context of "pre-need" contracts for the provision of funeral goods and services. Such a contract is "an agreement between a consumer and a licensed funeral director or licensed mortician to provide any goods and services purchased prior to the time of death." HO §6-101(p).4 Thus, in this context there is clear opportunity for the involvement of agents or employees to solicit business.

However, under HO §6-404(b), "[o]nly a licensed mortician, a licensed funeral director, or a holder of a surviving spouse license may offer or agree, directly or indirectly, to provide services or merchandise under a pre-need contract." HO §6-504 similarly provides that "[u]nless a person is a licensed mortician, a licensed funeral director, or a holder of a surviving spouse license, the person may not offer or agree, directly or indirectly, to provide services or merchandise under a pre-need contract."

II
Analysis

In our view, these provisions prohibit unlicensed persons from soliciting or offering pre-need contracts, notwithstanding that they do so on behalf of licensees. We recognize that HO §6-404(a) defines the "seller" under a pre-need contract simply as "a person who agrees to provide services or merchandise, directly or indirectly, under a pre-need contract." However, we view that definition as essentially a device of convenience, designed to avoid the necessity of repeated, cumbersome references to "a licensed mortician, a licensed funeral director, or a holder of a surviving spouse license" who makes such an agreement. We do not think that the definition can be read as a substantive authorization for any person to make pre-need contracts. To the contrary, HO §§6-404(b) and 6-504 both prohibit any but the specified licensees from offering or agreeing to such contracts, whether directly or indirectly. Thus, an unlicensed individual, or, indeed, a licensee in a class other than those specified, is barred not only from directly entering into and performing pre-need contracts, but also from soliciting such contracts on behalf of those who would perform them.

We also think that the Act's anti-solicitation provisions prohibit the use of unlicensed individuals to seek out and negotiate with consumers for business under either pre-need or at-need contracts. HO §6-315(a)(7) through (9) explicitly prohibit the use of agents to obtain business.5 Moreover, HO §6-315(a)(5) subjects to discipline any licensee or license applicant who "[a]ids or abets an unauthorized person in the practice of mortuary science", which, under HO §6-101(n)(1)(ii) and (o)(1)(iii), includes arranging for final disposition of a dead human body.

To be sure, these provisions do not prohibit all employment of unlicensed persons to provide consumers with information about available goods and services. Such information is undeniably necessary to consumers seeking to choose the most appropriate funeral arrangements. Indeed, federal regulations require disclosure of prices and other information regarding available or legally required funeral goods and services. 16 C.F.R. §§453.2 through 453.5.6 A small funeral home, especially one operated by a sole proprietor, may not have a licensed mortician or funeral director available at all times and may need to employ non-licensees to provide such information to consumers at the funeral home.

The federal regulations require that the mandated information be available to consumers in written form. E.g., 16 C.F.R. §453.2(b)(2)-(4).7 Thus, the provision of this information may be accomplished without negotiating with the consumer regarding the goods and services to be provided, indeed, it may be accomplished by simply reading or giving the printed matter to the consumer. Where the information is supplied by a nonlicensee, it may not be coupled with discussion of the particular goods and services to be furnished to that consumer. A licensed mortician or funeral director from the funeral home may subsequently contact the consumer to discuss and reach agreement on the funeral arrangements, but non-licensees must limit their discussions with consumers to the provision of information regarding the kinds of arrangements that are available.8

This limitation on the use of non-licensees, in our view, is consistent with the legislative distinction drawn elsewhere in the Morticians Act between activities that may appropriately be engaged in by non-licensees and those that require licensure. For example, an unlicensed person acting under the direction of a licensed mortician or funeral director may pick up, remove, or transport human remains. HO §6-101(o)(3).9 These tasks are relatively menial, must be performed on short notice, and do not usually involve direct contact with bereaved persons.

In contrast, the making of funeral arrangements, whether pre-need or at-need, requires discussion directly with consumers of a delicate and emotional subject. At-need arrangements, moreover, typically bring the seller of funeral goods and services into contact with consumers immediately after their bereavement. The General Assembly has apparently determined that the performance of these tasks is best restricted to those whose education, training, and professional conduct is subject to the regulatory provisions of the Morticians Act and the enforcement powers of the Board of Morticians.10

That determination is not seriously undermined by the inclusion of "surviving spouse" licensees among those licensees who may offer or agree to pre-need contracts. The surviving spouse license enables the surviving spouse of a deceased mortician to continue to operate the mortician's business. Thus, it recognizes and preserves the value to a mortician's family of the funeral home as a going concern. Cf. Brooks v. State Board of Funeral Directors & Embalmers, 233 Md. 98, 114 (1963) (permitting funeral direction by certain corporations had purpose of preserving existing investments or values). The license also affords the community a measure of continuity in the operation of the funeral home by one presumably familiar with the business. HO §6-315 subjects the surviving spouse to the same regulatory provisions as other licensees; in addition, the surviving spouse may operate the business only under the direct supervision of a licensed mortician. Hence, the involvement of surviving spouses in sales of pre-need contracts, notwithstanding that they are not themselves licensed morticians, is unlikely to raise the kinds of concerns that may arise from the involvement of unregulated non-licensees.11

III
Conclusion

In summary, it is our opinion that the Maryland Morticians Act, HO §§6-101 through 6-602, prohibits individuals not licensed under the Act from soliciting or offering contracts for the provision of funeral goods and services, even if they do so as agents or employees of identified licensees.

J. Joseph Curran, Jr., Attorney General
Harry J. Matz, Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

1 You also asked whether, in our view, the public interest would be better served by permitting unlicensed employees or agents of licensees to solicit or offer such contracts. As to this policy matter, we defer to the General Assembly.

2 An unlicensed person who assists in the practice of mortuary science is guilty of a misdemeanor, the penalty for which is a fine of up to $100 or imprisonment of up to one year. HO §6-508. Practice under either an apprentice license or a surviving spouse license is explicitly limited to assisting a licensed mortician. HO §§6-306 (apprentice) and 6-308 (surviving spouse).

3 The practice of funeral direction includes all aspects of mortuary science except preparing a dead human body for disposition, including disinfecting and embalming. HO §6-101(n)(2). Funeral director licenses may be issued only to persons who held such licenses before May 2, 1973 and who have renewed their licenses annually. HO §§6-307 and 6-313(f). By this means, the "funeral director" class of licenses is being phased out of existence.

4 This provision, before its amendment by Chapter 728 of the Laws of Maryland 1986, defined a pre-need contract as one "to provide to a then living individual on the death of that individual" certain goods and services. Chapter 8, Laws of Maryland 1981, sec. 2 (enacting former HO §6-101(n)). Thus, the present definition is apparently designed to permit a consumer to enter into an agreement regarding the funeral goods and services to be provided upon the death of another individual. In either case, of course, the former and present definitions maintain the essential distinction between pre-need contracts and the more common "at-need" contracts, those entered into upon the death of an individual.

5 These provisions do not prohibit truthful and non-misleading advertising, which is a form of speech protected by the First Amendment to the United States Constitution. In re R.M.J., 455 U.S. 191 (1982). Rather, they aim at arrangements under which an agent is employed to make in-person solicitations of business from consumers and, generally, the agent's payment is contingent on actually obtaining business for the employer. Such activities may constitutionally be regulated to prevent the use of unfair pressure tactics or deception. Antitrust Division, Office of the Attorney General, Report on the Maryland State Board of Morticians 20-21 (August 27, 1985) ("Antitrust Report"). See also note 8 below.

6 Those regulations do not limit or specify the persons who are to make the actual disclosures, although they clearly place responsibility for disclosure on the "funeral provider", that is, the person or business entity actually engaged in the funeral business. E.g., 16 C.F.R. §453.2(a). Certainly, nothing in those regulations requires that unlicensed persons be permitted to do more than supply the required consumer information.

7 The federal regulations further require that, when a consumer inquires about funeral arrangements in person, the mandated disclosures be made upon beginning discussion of funeral arrangements. E.g., 16 C.F.R. §453.2(b)(4).

8 A report prepared as part of this office's general review of possible antitrust problems with rules, regulations, and practices of the State's occupational licensing and regulatory boards likewise approved of the use of non-licensees to supply consumers with needed information. Antitrust Report at 15. If nonlicensees could not be used in this way, small funeral homes would be at a competitive disadvantage in relation to large establishments employing several morticians. However, that report did not conclude that non-licensees may go beyond providing such information to develop contracts with consumers.

9 This provision was enacted by Chapter 728 of the Laws of Maryland 1986. The Board requested this legislation in response to this office's advice that the Act did not then authorize the issuance of "courtesy cards," designed to entitle out-of-state morticians to pick up human remains in Maryland for removal to another state. Antitrust Report at 18-19. The Board determined that the best course was to obtain explicit authority to issue courtesy cards and also to permit non-licensees to pick up and transport dead human bodies under the supervision of licensed morticians or funeral directors.

10 In this regard, we note that corporations and funeral establishments may operate their businesses only if the actual practice of mortuary science is conducted by a licensed individual. HO §§6-309(d) (corporation) and 6-310(c)(2) (funeral establishment). Thus, the ability of corporations and funeral establishments to provide services under pre-need contracts is not unduly circumscribed by HO §§6-404(b) and 6-504. Rather, as in all other aspects of its operations, the business entity is simply required to act through an individual licensee, who offers or solicits and executes the contract.

11 The presently authorized scope of the involvement of surviving spouses in sales of pre-need contracts is not entirely clear, however. HO §§6-404(b) and 6-504 include surviving spouses among those who may "offer or agree, directly or indirectly, to provide services or merchandise under a pre-need contract." However, a pre-need contract is defined as "an agreement between a consumer and a licensed funeral director or licensed mortician. . . ." HO §6-101(p). The Board anticipates seeking legislation to eliminate this discrepancy between the substantive and definitional provisions.