Must a Tennessee human-remains removal service register with the funeral board if it is owned by a licensed funeral director or embalmer?

Subject

Opinion No. 14-18, Registration of Human-Remains Removal Services, February 13, 2014

Plain-English summary

Tennessee Code Ann. § 62-5-318(a) requires every "removal service" operating in Tennessee to register with the Board of Funeral Directors and Embalmers. A "removal service" is defined in § 62-5-101(10) as "any person or entity that engages in arranging, directing, supervising or performing the transportation of deceased human remains for a fee," with a carve-out for "a licensed funeral director, a licensed embalmer, a licensed funeral establishment or person's employees."

Robert O. Starkey, III, president of the Tennessee Board of Funeral Directors and Embalmers, asked the AG how this works in two scenarios.

Scenario 1: Licensed funeral director or embalmer operating as a sole proprietor. Exempt. A sole proprietorship has no legal existence separate from the owner. Hitt v. Hitt, 1994 WL 618608, at 2 (Tenn. Ct. App. Nov. 9, 1994). The sole proprietor is* the licensed director or embalmer in legal terms. The carve-out for "a licensed funeral director, a licensed embalmer" therefore covers the sole-proprietor removal service: it's operating in the licensed individual's personal capacity, not as a separate entity.

Scenario 2: Corporation or LLC with a licensed funeral director or embalmer as an officer or manager (and the entity is not a licensed funeral establishment). Must register. An "entity" under Black's Law Dictionary is "an organization (such as a business or governmental unit) that has a legal identity apart from its members." Old Hickory Eng'g & Mach. Co. v. Henry, 937 S.W.2d 782, 785 (Tenn. 1996), confirms that a corporation is separate from its officers and shareholders. The carve-out for licensed funeral directors and embalmers covers them operating in their personal capacity, not on behalf of a separate corporate or LLC entity.

The doctrinal hook is the same as in Op. 14-08 (UPL for real estate brokers): sole proprietorships are their owners; corporations and LLCs are separate persons. The funeral law uses "person or entity" deliberately. Sole proprietors fall within "person" (and the personal carve-out for licensees); corporations and LLCs fall within "entity" and need their own registration.

Currency note

This opinion was issued in 2014. 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.

Background and statutory framework

Removal service registration, § 62-5-318(a). "No removal service shall operate in this state unless the removal service is registered with the board of funeral directors and embalmers."

Definition of "removal service," § 62-5-101(10). "Any person or entity that engages in arranging, directing, supervising or performing the transportation of deceased human remains for a fee" — excludes a licensed funeral director, a licensed embalmer, a licensed funeral establishment, or such a person's employees.

Sole proprietorship doctrine. No separate legal existence. Hitt v. Hitt quoting Black's Law Dictionary 1248 (5th ed. 1979): "A form of business in which one person owns all assets of a business in contrast to a partnership and corporation. The sole proprietor is solely liable for all the debts of the business."

Corporate / LLC doctrine. Separate legal existence. Old Hickory Eng'g & Mach. Co. v. Henry (corporation separate from officers/shareholders). Black's Law Dictionary 573 (8th ed. 2004): "entity" is "an organization (such as a business or governmental unit) that has a legal identity apart from its members."

The personal-capacity reading. The licensee carve-out covers licensed individuals operating personally. When the licensee is acting as an agent or officer of a separate entity, the entity itself is the operator, and the entity needs its own registration unless it is itself a licensed funeral establishment.

Common questions

Why does the form of business matter so much?

Because the statute uses the word "entity" in addition to "person." That word choice signals that artificial business entities are separately regulated. The license carve-out goes to the individual licensee's status, not to the entity.

Can a licensed funeral director's corporation skip registration?

Not unless the corporation is itself a licensed funeral establishment. Registration as a removal service is about the operator. A corporation is a separate operator.

What about a multi-member LLC formed by two licensed embalmers?

The LLC is a separate entity. It needs to register, regardless of who its members are, unless the LLC itself is a licensed funeral establishment.

Does an employee of a sole-proprietor removal service need their own registration?

No. The carve-out covers the licensed person and that person's employees. Employees of a registered or exempt operator are covered.

What happens if a sole proprietor incorporates the business?

Once the business has a separate corporate identity, the carve-out no longer covers it. The new entity needs to register.

Citations

Statutory: Tenn. Code Ann. § 62-5-101(10); § 62-5-318(a). Cases: Hitt v. Hitt, 1994 WL 618608 (Tenn. Ct. App. Nov. 9, 1994); Old Hickory Eng'g & Mach. Co. v. Henry, 937 S.W.2d 782 (Tenn. 1996). Prior AG opinion: Tenn. Att'y Gen. Op. 14-08 (Jan. 14, 2014). References: Black's Law Dictionary 573 (8th ed. 2004); Black's Law Dictionary 1248 (5th ed. 1979).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-018.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL

February 13, 2014

Opinion No. 14-18

Registration of Human-Remains Removal Services

QUESTIONS

1. Is a human-remains removal service owned by a licensed funeral director or licensed embalmer as a sole proprietorship exempt from registration?

2. Is a human-remains removal service exempt from registration that (a) is organized as a corporation or limited liability company that is not a licensed funeral establishment and (b) has a licensed funeral director or a licensed embalmer as an officer or manager?

OPINIONS

1. Yes.

2. No.

ANALYSIS

Tenn. Code Ann. § 62-5-318(a) provides that "no removal service shall operate in this state unless the removal service is registered with the board of funeral directors and embalmers." A "removal service" is "any person or entity that engages in arranging, directing, supervising or performing the transportation of deceased human remains for a fee" but does not include "a licensed funeral director, a licensed embalmer, a licensed funeral establishment or person's employees." Tenn. Code Ann. § 62-5-101(10).

1. As this Office explained in Tenn. Att'y Gen. Op. 14-08 (Jan. 14, 2014), a sole proprietorship has no legal existence or identity separate or apart from the sole proprietor. See Hitt v. Hitt, No. 02A01-9310-CV-00218, 1994 WL 618608, at *2 (Tenn. Ct. App. Nov. 9, 1994) (quoting Black's Law Dictionary 1248 (5th ed. 1979)) ("A sole proprietorship is defined as: '[a] form of business in which one person owns all assets of a business in contrast to a partnership and corporation. The sole proprietor is solely liable for all the debts of the business.'"). Because a sole proprietorship is operated in the owner's personal capacity, a removal service owned by a licensed funeral director or licensed embalmer as a sole proprietorship is exempt from registration under Tenn. Code Ann. § 62-5-318(a).

2. Under the plain language of the statute, any "entity" that is operating as a removal service must be registered with the Board unless it constitutes a licensed funeral establishment. Tenn. Code Ann. § 62-5-101(10). Black's Law Dictionary defines "entity" as "[a]n organization (such as a business or governmental unit) that has a legal identity apart from its members." Black's Law Dictionary 573 (8th ed. 2004); see also Old Hickory Eng'g & Mach. Co. v. Henry, 937 S.W.2d 782, 785 (Tenn. 1996) (noting that "a corporation is an entity separate and distinct from its officers and shareholders"). Thus, where a removal service is organized as a corporation or a limited liability company and is not a licensed funeral establishment, such removal service must be registered with the Board regardless of whether a licensed funeral director or a licensed embalmer serves as an officer or manager. The statutory exemption for licensed funeral directors and embalmers applies only to those funeral directors and embalmers operating in their personal capacities.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

CRISTIN F. HAMBIDGE
Assistant Attorney General

Requested by:

Robert O. Starkey, III, President
Tennessee Board of Funeral Directors and Embalmers
500 James Robertson Parkway
Davy Crockett Tower
Nashville, Tennessee 37243