Can a funeral home get in trouble for having an unlicensed person on staff if the funeral home didn't know the employee's license had lapsed?

Plain-English summary

The Board of Mortuary Science presented the AG with a hypothetical that mirrored a real fact pattern. Employee X at ABC Funeral Home had not renewed his funeral service license since 1991. ABC Funeral Home's December 1992 application to renew its establishment permit listed X as a licensed full-time employee. The Board wanted to know whether ABC could be held liable, given that the funeral home claimed it did not know X's license had lapsed.

The AG said yes, liability attaches. The reasoning has three parts.

First, the renewal of a funeral-service license is on a hard calendar deadline. N.C.G.S. § 90-210.25(a)(5) says a license holder who fails to renew on or before January 31 has "forfeited and surrendered the license" as of that date. Practicing funeral service without a license is a criminal misdemeanor under § 90-210.25(f). So X was unlicensed and his work was unlawful, full stop.

Second, the Board's own regulation, 21 N.C.A.C. 34 .0708, requires the manager of a funeral establishment to verify on an annual basis the names and license numbers of all licensed employees of the establishment. That is an affirmative duty placed squarely on the establishment. When the ABC manager certified the renewal application listing X as a current licensee while X was not, the establishment violated N.C.G.S. § 90-210.25(e)(1)b (which prohibits misrepresentation to renew a license). The AG was explicit that the violation occurs "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." The Board does not have to prove the establishment knew, because the regulation puts the obligation to find out on the establishment.

Third, the AG offered a parallel theory. By employing X to perform services that require a license, ABC has "cooperated" with X in violating Article 13A of Chapter 90, which is independently a basis for Board action under § 90-210.25(e)(1).

The opinion closed by acknowledging one potential pushback. N.C.G.S. § 90-210.25(d)(4) lets the Board revoke or suspend a permit when an employee violates Article 13A "with the consent" of the establishment. Someone could argue that "consent" implies actual knowledge and therefore protects a funeral home whose employee secretly violated the law. The AG said that argument does not get traction in this fact pattern, because the affirmative-duty regulation already required the funeral home to verify the license status, and the establishment itself, acting through the manager's certification, violated the misrepresentation provision.

Currency note

This opinion was issued in 1993. 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.

The mortuary-science statutes in Article 13A of Chapter 90 and the implementing Board rules in 21 N.C.A.C. 34 have been amended over the years, including updates to renewal procedures, continuing-education obligations, and disciplinary processes. The core principle the AG identified (the establishment has an affirmative duty to verify the licensure of its licensed staff) has stayed consistent, but the section numbers, deadlines, and specific procedures should be checked against the current statute and Board rules.

Common questions

Q: As a funeral home manager, what do I actually have to do at renewal time?
A: At the time of the opinion, the Board's rule (21 N.C.A.C. 34 .0708) required the manager to verify the names and license numbers of all licensed employees on an annual basis. That is a verification, not just a representation. The manager should be running each employee's name through the Board's records or otherwise confirming current standing before signing the application.

Q: My employee told me his license was current. Does that cover me?
A: The AG would say no. The regulation puts the burden on the establishment, not on the employee. Relying on the employee's word, without independent verification, is exactly the failure the AG identified as enough for liability.

Q: What happens if the Board finds we employed an unlicensed person?
A: The Board may suspend or revoke the establishment permit under N.C.G.S. § 90-210.25(e)(1), and may refuse to issue or renew a license. The unlicensed employee himself faces criminal exposure for practicing without a license under § 90-210.25(f).

Q: Is the "consent" language in subsection (d)(4) ever a defense?
A: The AG hinted that it might still be a defense in different facts, for example where an employee's misconduct is so secret that the establishment "did not and could not have reasonably known of, or acquiesced in" the violation. But it cannot rescue a funeral home that ignored the affirmative duty to verify licensure.

Background and statutory framework

North Carolina regulates funeral service through Article 13A of Chapter 90 of the General Statutes and the Board of Mortuary Science's rules in 21 N.C.A.C. Chapter 34. The Board licenses individual funeral service professionals and issues permits to funeral establishments. The two systems run together: an establishment can hold a permit only by employing licensed staff and verifying their status.

The renewal cycle is the choke point. Under N.C.G.S. § 90-210.25(a)(5), licenses must be renewed by January 31 each year, and missing the deadline is a forfeiture. The establishment's annual permit renewal is a parallel filing. Under 21 N.C.A.C. 34 .0708, the manager must verify the names and license numbers of all licensed employees when filing for permit renewal. The substantive violation is found in N.C.G.S. § 90-210.25(e)(1)b, which prohibits "violating or cooperating with others to violate any of the provisions of this Article" and specifically prohibits the use of misrepresentation to renew a license.

The AG's "affirmative duty" framing is doing the work here. Many state-board statutes ride on actual knowledge: the board has to prove the licensee knew about the wrongdoing. But where the rule itself requires verification, failing to verify is the violation, and the establishment cannot retreat to "I did not know." That is why the AG was so direct that "regardless of whether the manager had actual knowledge" the violation existed.

The "consent" language in N.C.G.S. § 90-210.25(d)(4) is a separate Board tool for going after permits based on employee misconduct. The AG treated it as a fallback rather than the main hook in this fact pattern, because the misrepresentation theory under (e)(1) was already complete on the facts described.

Citations

• N.C.G.S. § 90-210.23(a) (Board rulemaking authority)
• N.C.G.S. § 90-210.25(a)(5) (license renewal deadline and forfeiture)
• N.C.G.S. § 90-210.25(d)(4) (Board action against establishment permit for employee violation "with consent")
• N.C.G.S. § 90-210.25(e)(1) (discipline for violating Article 13A)
• N.C.G.S. § 90-210.25(e)(1)b (prohibition on misrepresentation to renew a license)
• N.C.G.S. § 90-210.25(f) (criminal misdemeanor for unlicensed practice)
• 21 N.C.A.C. 34 .0708 (manager's annual verification of licensed employees)

Source

• Landing page: https://ncdoj.gov/opinions/liability-of-funeral-establishment-for-unlicensed-employee/

Original opinion text

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