Could South Carolina issue a temporary funeral home permit to a manager without a year of licensing or residency?

Plain-English summary

In 2015, the South Carolina Attorney General interpreted the Funeral Service Board’s authority to issue a temporary permit when a funeral establishment’s manager died, resigned, or became incapacitated. It predicted that the board could issue such a permit only to another “manager” meeting the statute’s definition: a funeral director licensed in South Carolina for at least one year, along with the other statutory manager attributes. The temporary permit language did not let the board substitute an unqualified person for the defined manager.

The office also discussed a board regulation requiring a manager to have resided in South Carolina for at least one year. It believed a court would regard that requirement as a reasonable implementation of the statute and advised following it unless a court ruled otherwise. Its answer was a prediction of judicial interpretation, not a binding ruling on the regulation’s validity.

Currency note

This opinion was issued in 2015. 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

Q: Could the board waive the one year South Carolina funeral director licensing requirement through a temporary permit?
A: The Attorney General said no. The provision authorized a permit to another “manager,” and the statutory definition still applied.

Q: Did the board’s discretion over permit terms mean it could appoint anyone?
A: No. The opinion distinguished discretion over terms and conditions from the threshold requirement that the person be a statutorily qualified manager.

Q: Did the office treat the one year residency regulation as binding?
A: It advised following the regulation unless a court declared it invalid, predicting a court would find it reasonably consistent with the statute.

Background and legal framework

A legislator asked about temporary operation of a funeral establishment after a manager’s departure. The opinion compared the temporary permit provision with the chapter’s definition of a manager and the board’s residence regulation. It applied statutory construction rules that avoid reading board discretion to erase the Legislature’s defined qualifications.

Citations and references

The opinion quoted S.C. Code § 40-19-270(C) (1976 Code, as amended) and S.C. Code § 40-19-20(16), and discussed Regulation 57-10(C).

Official title

Regarding South Carolina Code § 40-19-270(C).

Requester

The Honorable Chandra E. Dillard, House of Representatives, District No. 23.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-31-2015-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2015/04/Dillard-OS-9900-FINAL-Opinion-3-31-2015-00602196xD2C78.pdf

Original opinion text

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Alan W ilson
attor;-;ey Gener.al

March 31, 2015

The Honorable Chandra E. Dillard

House of Representatives, District No. 23
414-B Blatt Building
Columbia, SC 29201
Dear Representative Dillard:

Attorney General Alan Wilson has referred your letter dated February 10, 2015 to the Opinions section

for a response. The following is this Office's understanding of your questions and our opinion based on that understanding.

Issues:
Does South Carolina Code § 40-19-270(C) authorize the S.C. State Board of Funeral Service to provide a

temporary permit for the operation of a funeral establishment (as defined in S.C. Code § 40-19-20(1 1 )) to a person that has not been a licensed director of a funeral home for one year when S.C. Code § 40-1920(16) defines a "manager" as one who is a licensed funeral home director for at least one year? Does South Carolina Code § 40-19-270(C) authorize the S.C. State Board of Funeral Service to provide a temporary permit for the operation of a funeral establishment (as defined in S.C. Code § 40-19-20(1 1 )) to

a person who has not met the residency requirements when the State Board of Funeral Service Regulation 57-1 0(C) requires one to be a resident of the State for at least one year before they may be a manager of a funeral home? Law/Analysis:

By way of background, it is this Office's understanding the South Carolina State Board of Funeral Sendee (hereinafter "Board") created pursuant to statutory authority found in South Carolina Code § 40 19-10. As you note in your questions, the statutory authority to issue a temporary permit is found in S.C. Code § 40-19-270(C), which states:

No permit to operate a funeral establishment or crematory may be issued unless the funeral establishment or crematory has a manager when the establishment or crematory is open for any type of funeral business or activity. The board must be notified within thirty days upon the death, resignation, or incapacity of the manager of a funeral establishment or crematory as provided for in Regulation 5710(c) and mav issue a temporary permit to another manager upon terms and
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conditions the board considers to be in the best interest of the community in which the establishment or crematory is located.

RembertC. Dennis Building

. Post Office Box 11 549

• Columbia. SC 292 11-1549

• Telephone 803-734-3970

. Facsimile 803-253-6283

The Honorable Chandra Dillard
Page 2

March 31, 2015

S.C. Code § 40-19-270(C) (1976 Code, as amended) (emphasis added). A "manager" is provided for in Regulation 57-1 0(C) as one who has been a resident of this State for at least one year before becoming the manager. S.C. Code Reg. 57-10(C) (1999). Moreover, as you note in your question, South Carolina Code

§ 40-19-20(16) defines a "manager" as one who is a licensed funeral home director for at least one year in this State. Section 40-19-20(16) reads as follows:

As used in this chapter:
(16) "Manager" means a licensed funeral director who has been licensed in this

State for at least one year, who is a fulltime regular employee, and who is

responsible for and has the binding authority from the owner for the day-to-day management of funeral establishments or crematories including compliance with all applicable laws governed by this chapter and Chapters 7 and 8 of Title 32. S.C. Code § 40-19-20(16) (emphasis added).

With the aforementioned statutory authority in mind, let us look to South Carolina Code § 40-19-270(C) to determine use of the word "manager" is intended to mean someone who has been licensed in South Carolina as a funeral director for at least one year. As a background regarding statutoiy interpretation, the cardinal rule of statutory construction is to ascertain the intent of the legislature and to accomplish that intent. Hawkins v. Bruno Yacht Sales. Inc.. 353 S.C. 31, 39, 577 S.E.2d 202, 207 (2003). The true aim and intention of the legislature controls the literal meaning of a statute. Greenville Baseball v. Bearden.

200 S.C. 363, 20 S.E.2d 813 (1942). An entire statute's interpretation must be "practical, reasonable, and fair" and consistent with the purpose, plan and reasoning behind its making. Id. at 816. Statutes are to be interpreted with a "sensible construction," and a "literal application of language which leads to absurd

consequences should be avoided whenever a reasonable application can be given consistent with the legislative purpose." U.S. v. Rippetoe. 178 F.2d 735, 737 (4th Cir. 1950). Like a court, this Office looks at the plain meaning of the words, rather than analyzing statutes within the same subject matter when the meaning of the statute appears to be clear and unambiguous. Sloan v. SC Board of Physical Therapy Exam.. 370 S.C. 452, 636 S.E.2d 598 (2006). The dominant factor concerning statutory construction is

the intent of the legislature, not the language used. Spartanburg Sanitary Sewer Dist. v. City of Spartanburg. 283 S.C. 67, 321 S.E.2d 258 (1984) (citing Abell v. Bell. 229 S.C. 1,91 S.E.2d 548 (1956)).

As this Office has previously stated:
The language of a statute must be read in a sense which harmonizes with its subject matter and accords with its general purpose. Multi-Cinema. Ltd. v. S.C. Tax Commission. 292 S.C. 411, 357 S.E.2d 6 (1987). And where two statutes are

in apparent conflict, they should be construed, if reasonably possible, to give force and effect to each. Stone & Clamp. General Contractors v. Holmes. 217 S.C. 203,

60 S.E.2d 231 (1950). This rule applies with peculiar force to statutes passed during the same legislative session, and as to such statutes, they must not be construed as inconsistent if they can reasonably be construed otherwise. State ex rel. S.C. Tax Commission v. Brown. 154 S.C. 55, 151 S.E. 218 (1930). Op. S.C. Attv. Gen.. 1988 WL 485345 (December 1, 1988).

The Honorable Chandra Dillard
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March 31, 2015

Regarding your first question, "manager" is clearly defined by statute as a licensed funeral director who has already been licensed for a year in South Carolina. S.C. Code § 40-19-20(16).

Moreover, the

definition of "manager" applies to all of Title 40 Chapter 19. Id. If the term "manager" did not comply with the statutory definition as found in South Carolina Code § 40-19-20(16), a person with no training whatsoever theoretically could be given the opportunity to embalm or cremate people pursuant to S.C. Code § 40-19-270(C).

We do not think this was the intent behind the statute, as the Legislature could

have easily written "issue a temporary permit to another person" instead of "another manager." ]d. (emphasis added). To interpret otherwise would be against the logical and plain meaning of the statute. In other words, it could allow the Board to issue a temporary permit to anyone the Board chooses in its

discretion, even if the person has no training in cremation or embalming. As we opined above, we do not think that was the intent of the Legislature. Accordingly, the part of the statute that reads "upon terms and conditions the board considers to be in the best interest of the community in which the establishment or crematoiy is located" may refer to the permit requirements for a funeral home in South Carolina Code

§ 40-19-265 (thus giving discretion in meeting the requirements in § 40-19-265 (A)(l)-(3), (5)-(6) in

regards to issuing a temporary permit). Consequently, we do not see how you can interpret "manager" as used in South Carolina Code § 40-19-270(C) to mean anything but how it is defined for use in Chapter 19 of Title 40. Regarding your second question, the South Carolina Board of Funeral Service has statutory authority to

promulgate regulations. S.C. Code § 40-19-60; Brooks v. S.C. State Board of Funeral Service. 271 S.C. 457, 247 S.E.2d 820 (1978). The Board's regulations are found in Chapter 57 of South Carolina's Code

of Regulations. Regulation 57-10 details the requirements for a permit to operate a funeral establishment. S.C. Code Reg. 57-10 (1999). One such requirement in the regulation is the submission of the name of a

manager who is a licensed funeral director. S.C. Code Reg. 57-10(C) (1999). The regulation goes on to

require that the manager of the funeral home seeking a permit for a funeral establishment must be a resident of this State for at least one year before becoming the manager of the facility. Id. As our State's Supreme Court has stated, rules adopted by a board cannot be substantially more or less restrictive than the governing statutes, nor can there be a conflict between the rules and the statutes. Brooks v. S.C. State

Board of Funeral Service. 271 S.C. 457, 247 S.E.2d 820 (1978). The court must determine if such a rule or regulation is reasonable in its implementation of the statute. Id. Thus, as long as a court would determine that the regulation is reasonable and a consistent interpretation of the statute, the regulation would stand and would have to be followed. See, e.g.. Ops. S.C. Att'v Gen.. 1986 WL 289890 (a properly-enacted regulation carries a presumption of validity) (citing Faile v. S.C. Employment Security Commission. 267 S.C. 536, 230 S.E.2d 219 (1976)); 201 1 WL 4592375 (September 9, 201 1) (there is a presumption of validity regarding regulations) (citing Faile. supra; University of S.C. v. Batson. 271 S.C. 242, 246, S.E.2d 882 (1982)). Because the statutory definition of "manager" requires one to be a funeral director who has been licensed in South Carolina for at least one year, we believe a court would determine the one year residency requirement established by Regulation 57-10 is a reasonable implementation of and consistent with South Carolina Code § 40-19-270(C). Thus, unless and until a court declares otherwise, we believe Regulation 57-10 should be followed accordingly. Conclusion:

Based on the information presented to us at this time, we believe a court will determine a "manager" as

used in South Carolina Code § 40-19-270(C) must comply with the statutory definition of a "manager" as found in South Carolina Code § 40-19-20(16) and that Regulation 57-10 should be followed unless and until a court declares otherwise. Nevertheless, there are many other sources and authorities you may want to refer to for a further analysis. For a binding determination, this Office would recommend seeking a

The Honorable Chandra Dillard
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March 31, 2015

declaratory judgment from a court on these matters, as only a court of law can interpret statutes. S.C.

Code § 15-53-20. Until a court or the Legislature specifically addresses the issues presented in your letter, this is only a legal opinion on how this Office believes a court would interpret the law in the matter. If it is later determined otherwise or if you have any additional questions or issues, please let us know.

Sincerely,

-

GU^-' ^
Anita S. Fair
Assistant Attorney General
REVI

D AND APPROVED BY:

J?' t^nDRobert D. Cook

Solicitor General