South Carolina Funeral and Cremation State Statutes
EMBALMERS AND FUNERAL DIRECTORS
SECTION 40‑19‑5. Application of chapter; conflicts of law.
Unless otherwise provided for in this chapter, Article 1, Chapter 1 applies to embalmers and funeral directors; however, if there is a conflict between this chapter and Article 1, Chapter 1, the provisions of this chapter control.
SECTION 40‑19‑10. Board of Funeral Service; creation; membership; conduct of business by positive majority vote.
There is created the South Carolina State Board of Funeral Service consisting of eleven members appointed by the Governor from the State at large for terms of three years and until their successors are appointed and qualify. Of the eleven members, two must be members from the general public not connected with a funeral service establishment, and the remaining members must have been licensed as funeral directors and embalmers for at least five years immediately preceding their appointment and must be actively employed or actively engaged in the funeral service profession. All members must have been residents of this State for not fewer than five years preceding the date of their appointment.
The South Carolina Funeral Directors Association may recommend six members, the South Carolina Morticians Association may recommend three members, and an individual or private or public group or organization may make recommendations. All recommendations must be made to the Governor before the second of July in each year the term of office of a member expires. Appointments are effective on August fifteenth. Vacancies must be filled in the manner of original appointment for the unexpired portion of the term. The board shall notify the South Carolina Funeral Directors Association and the South Carolina Morticians Association of any vacancies that occur.
Any business conducted by the board must be by a positive majority vote. For purposes of this subsection “positive majority vote” means a majority vote of the entire membership of the board, reduced by any vacancies existing at the time.
SECTION 40‑19‑20. Definitions.
As used in this chapter:
(1) “Advertisement” means the publication, dissemination, circulation, or placing before the public an announcement or statement in a newspaper, magazine, or other publication in the form of a book, notice, circular, pamphlet, letter, handbill, poster, bill, sign, placard, card, label, or tag, or over radio or television. The term does not include funeral or death notices and obituaries.
(2) “Apprentice” means a person who is preparing to become licensed for the practice of embalming and funeral directing under the supervision and instruction of a person licensed for the practice in this State and who is registered with the board pursuant to Section 40‑19‑120.
(3) “Board” means the South Carolina State Board of Funeral Service.
(4) “Branch funeral home” means an establishment separate and apart from the licensed parent funeral home that has embalming facilities, a chapel, a lay‑out room, or a sales room, or any combination of these.
(5) “Cremation” means the reduction of the dead body by intense heat to residue.
(6) “Crematory” means an establishment in which the dead body is reduced to residue by intense heat.
(7) “Disposition” means the final disposal of the body whether by earth interment, aboveground burial, cremation, burial at sea, or delivery to a medical institution for lawful dissection and experimentation or removal from the State pursuant to obtaining a burial transit permit.
(8) “Embalmer” means a person licensed by the board to disinfect and preserve or attempt to disinfect and preserve the dead human body, entirely or in part, by the use of application of chemicals, fluids, or gases, externally or internally, or both, by their introduction into the body by vascular or hypodermic injections, by direct application into the organs or cavities, or by other method and includes the restoration or attempted restoration of the appearance of the dead human body.
(9) “Embalming” means the disinfection of the dead human body by replacing certain body fluids with preserving and disinfecting chemicals.
(10) “Funeral director” means a person licensed by the board to engage for hire or profit in the profession of arranging, directing, or supervising funerals.
(11) “Funeral home”, “funeral establishment”, or “mortuary” means an establishment where the practice of funeral service and embalming is practiced. All of these establishments must include the following facilities:
(a) a chapel or parlor in which funeral services may be conducted;
(b) a preparation room equipped with a sanitary floor and necessary drainage, ventilation, necessary approved tables, hot and cold running water, and a sink separate from table drainage, instruments, and supplies for the preparation and embalming of dead human bodies;
(c) a room containing a displayed stock of at least six adult caskets and other necessary funeral supplies;
(d) at least one motor hearse for transporting casketed human remains.
(12) “Funeral merchandise” means that personal property used in connection with the conduct of funerals or with the transportation and final disposition of a dead human body including, but not limited to, caskets, cremation caskets, urns, and burial clothing. The term does not mean mausoleum crypts, interment receptacles preset in a cemetery, and columbarium niches.
(13) “Funeral service” or “funeral” means a period following death in which there are religious services or other rites or ceremonies with the body of the deceased present.
(14) “Graveside service” means a rite or ceremony held only at graveside, which is not generally construed as the committal service which follows a funeral.
(15) “Inspector” means an inspector employed by the Department of Labor, Licensing and Regulation.
(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.
(17) “Memorial service” means a gathering of persons for a program in recognition of a death without the presence of the body of the deceased.
(18) “Practice of funeral service” means:
(a) engaging in providing shelter, care, and custody of the human dead;
(b) the practice of preparing the human dead by embalming or other methods for burial or other disposition;
(c) arranging for the transportation of the human dead;
(d) making arrangements at or before the time of death, financial or otherwise, including arrangements for cremation, for providing these services, or the sale of funeral merchandise, whether for present or future use;
(e) engaging in the practice or performing any functions of funeral directing or embalming as presently recognized by persons engaged in these functions.
(19) “Retail sales outlet” means an establishment wherein funeral merchandise is sold or provided, or both, to the general public. A retail sales outlet may not contain lay‑out or chapel facilities and is restricted solely to the sale of funeral merchandise and may not handle or arrange for the handling or disposition, or both, of dead human remains and may not offer or execute preneed funeral contracts, except as authorized by Chapter 7, Title 32.
(20) “Owner” means a sole proprietor, partnership, limited partnership, corporation, limited liability corporation, or any business entity possessing authority and control over a funeral establishment.
SECTION 40‑19‑30. Required licenses; permit restrictions regarding unlicensed persons; exemption.
It is unlawful for a person to engage in the practice of funeral service unless the person is licensed in accordance with this chapter. A person who engages or participates actively in directing or in the management of a funeral establishment is considered to be in the practice of funeral service.
No permit to operate a funeral home may be issued to a corporation, partnership, or individual when the name of an unlicensed person appears in the name of the corporation, partnership, or individually owned business. This prohibition does not apply to established funeral homes existing prior to July 1, 1969.
SECTION 40‑19‑50. Administrative and fiscal activities of board to be provided by Department of Labor, Licensing and Regulation.
The Department of Labor, Licensing and Regulation shall provide all administrative, fiscal, investigative, inspectional, clerical, secretarial, and license renewal operations and activities of the board in accordance with Section 41‑1‑50.
SECTION 40‑19‑60. Adoption of rules and regulations.
The board may adopt rules governing its proceedings and may promulgate regulations necessary to carry out the provisions of this chapter.
SECTION 40‑19‑70. Powers and duties in addition to those in this chapter.
In addition to the powers and duties provided for in this chapter, the board also has those powers and duties set forth in Section 40‑1‑70.
SECTION 40‑19‑80. Inspector to be hired by board; qualifications.
The board shall employ an inspector who must be a licensed embalmer and funeral director with not fewer than five consecutive years’ experience as a licensee under this chapter.
SECTION 40‑19‑90. Investigation results; presentation to board; procedures for hearing.
The results of an investigation must be presented to the board, and any subsequent hearing must be conducted in accordance with Section 40‑1‑90.
SECTION 40‑19‑100. Restraining orders and other equitable relief available.
In addition to other remedies provided for in this chapter or Article 1, Chapter 1, the board in accordance with Section 40‑1‑100 may issue a cease and desist order or may petition an administrative law judge for a temporary restraining order or other equitable relief to enjoin a violation of this chapter.
SECTION 40‑19‑110. Unprofessional conduct; refusal to issue or renew license; suspension or revocation of license; probation.
The board may refuse to issue or renew or may suspend or revoke the license of a funeral director or embalmer or may place the licensee on probation after notice and a hearing for unprofessional conduct which includes:
(1) making misrepresentations or committing fraud while engaging in the practice of funeral service;
(2) using false or misleading advertising or using the name of an unlicensed person in connection with that of a funeral establishment;
(3) soliciting dead human bodies or soliciting the sale of funeral merchandise by a licensee or an agent, assistant, or employee of a licensee or of any establishment licensed or permitted under this chapter, whether the solicitation occurs after death or while death is impending, but not including general advertising;
(4) employing persons known as “cappers” or “steerers” or “solicitors” or other persons to obtain business for the licensee;
(5) employing directly or indirectly an apprentice, agent, assistant, employee, or other person, on a part or full‑time basis, or on commission, for the purpose of calling upon individuals or institutions to influence them to cause dead human bodies to be turned over to a particular funeral establishment;
(6) directly or indirectly paying or offering to pay a commission by a licensee or a licensee’s agents, assistants, or employees to secure business; however, compliance with Chapter 7 of Title 32 is not unprofessional conduct;
(7) aiding or abetting an unlicensed person to engage in the practice of funeral service;
(8) using any funeral merchandise previously sold without prior written permission of the person selecting or paying for the use of the merchandise;
(9) refusing to properly release a dead human body to the custody of the person or entity who has the legal right to effect a release;
(10) failing to secure a permit for removal or burial of a dead human body before interment or disposal;
(11) knowingly making a false statement on a certificate of death;
(12) violating applicable state laws relating to the prearrangement or prefinancing of a funeral;
(13) discriminating in services because of race, creed, color, or national origin;
(14) violating a state or federal law or municipal or county ordinance or regulation concerning funeral establishments or the practice of funeral service;
(15) permitting an unlicensed person to engage in the practice of funeral service.
SECTION 40‑19‑115. Jurisdiction of board.
The board has jurisdiction over the actions of licensees and former licensees as provided for in Section 40‑1‑115.
SECTION 40‑19‑120. Board authority to impose disciplinary action.
In addition to the sanctions the board may impose against a person pursuant to this chapter, the board also may take disciplinary action against a person as provided for in Section 40‑1‑120.
SECTION 40‑19‑130. Grounds for denial of license may be same as for disciplinary action.
As provided for in Section 40‑1‑130, the board may deny licensure to an applicant based on the same grounds for which the board may take disciplinary action against a licensee.
SECTION 40‑19‑140. Denial of license based on prior criminal record.
A license may be denied based on a person’s prior criminal record only as provided for in Section 40‑1‑140.
SECTION 40‑19‑150. Voluntary surrender of license by licensee being investigated.
A licensee under investigation for a violation of this chapter or a regulation promulgated under this chapter voluntarily may surrender the license in accordance with Section 40‑1‑150.
SECTION 40‑19‑160. Review of board’s final decision; procedure authorized.
A person aggrieved by a final action of the board may seek review of the decision in accordance with Section 40‑1‑160.
SECTION 40‑19‑170. Costs of investigation and prosecution; authority to require payment by violator.
A person found in violation of this chapter or a regulation promulgated under this chapter may be required to pay costs associated with the investigation and prosecution of the case in accordance with Section 40‑1‑170.
SECTION 40‑19‑180. Collection and enforcement provisions for costs and fines.
All costs and fines imposed pursuant to this chapter must be paid in accordance with and are subject to the collection and enforcement provisions of Section 40‑1‑180.
SECTION 40‑19‑190. Confidentiality of proceedings and communications.
Investigations and proceedings conducted under this chapter are confidential, and all communications are privileged as provided for in Section 40‑1‑190.
SECTION 40‑19‑200. Violations of chapter; submission of false licensing information; offense; penalties.
A person who practices or offers to practice funeral service in this State in violation of this chapter or who knowingly submits false information for the purpose of obtaining a license is guilty of a misdemeanor and, upon conviction, must be fined not less than five hundred dollars or more than twenty‑five hundred dollars or imprisoned for not more than six months, or both.
SECTION 40‑19‑210. Petition by department for injunctive relief.
The department, on behalf of the board and in accordance with Section 40‑1‑120, may petition an administrative law judge, in the name of the State, for injunctive relief against a person violating this chapter.
SECTION 40‑19‑230. Qualifications for license as embalmer or funeral director; examinations; conditions for licensure without examination; renewal of licenses.
(A) A person may be issued a license as an embalmer if the person:
(1) is at least eighteen years of age;
(2) has not been convicted of a violent crime or found guilty of a felony or crime of moral turpitude;
(3) has a high school education or the equivalent of a high school education, the equivalence to be determined by the board;
(4) has completed successfully a regular course in an embalming college accredited by the American Board of Funeral Service Education and approved by the board;
(5) has completed a minimum of twenty‑four months of service pursuant to Section 40‑19‑240 as an apprentice under the direct supervision of a licensed embalmer actively engaged in the practice of embalming in this State;
(6) has passed an examination prescribed by the board.
(B) A person may be issued a license as a funeral director if the person:
(1) is at least eighteen years of age;
(2) has not been convicted of a violent crime or found guilty of a felony or crime of moral turpitude;
(3) has a high school education or the equivalent of a high school education and has a minimum of two years of successful attendance at an accredited academic college or successful completion of a regular course of not less than one year, twelve scholastic months, in an accredited mortuary college;
(4) has completed a minimum of twenty‑four months of service pursuant to Section 40‑19‑240 as an apprentice funeral director under the direct supervision of a licensed funeral director actively engaged in the practice of funeral directing in this State;
(5) has passed an examination prescribed by the board.
(C) An applicant for licensure must be examined on subjects as are prescribed by the board and the examination must be by a standardized written test. The passing grade must be established by the board in regulation.
An application for examination must be upon a form furnished by the board and must be accompanied by a fee established by the board in regulation. An application for examination must be submitted at least thirty days before the date of the examination.
(D) No license may be issued or renewed for a period exceeding two years, and all licenses and renewals expire on the thirtieth day of June unless sooner revoked or canceled. The date of expiration may be changed by unanimous consent of the board and upon ninety days’ written notice of the change to all persons licensed by the board.
(E) A person holding a license under this chapter may have the license renewed for a two‑year period by applying within thirty days preceding or following the expiration of his license, upon forms provided by the board and payment of a renewal fee as established by the board in regulation. A person who fails to renew the license, at the discretion of the board, may have it renewed by making application and appearing before the board and paying a renewal and revival fee established by the board. The license of a person who is engaged actively in the military service of the United States may be held in abeyance for the duration of service, and the licensee may be relieved of the payment of renewal fees as the board considers justifiable and expedient.
(F) A permit for a crematory or a permit for a funeral establishment which operates a crematory may be renewed for a two‑year period by applying within thirty days preceding or following the expiration of the permit, upon forms provided by the board, payment of a renewal fee as established by the board in regulation and passage of an inspection conducted by the board.
SECTION 40‑19‑235. Licensure requirements of applicant holding valid license in another state.
A person holding a valid embalmer or funeral director license in another state or territory having substantially similar requirements to the requirements of this chapter may apply for a license to practice in this State by submitting the appropriate nonrefundable fee, an application on a board‑approved form, and a board‑certified statement from the state or territory in which the person holds the license and has successfully taken and passed that state law exam. The board may approve an applicant who presents evidence of licensure in another jurisdiction, even though that jurisdiction does not require substantially similar requirements, upon a showing that the applicant has engaged in the licensed practice of funeral service for at least five years and the applicant has achieved a passing score on an examination approved by the board.
SECTION 40‑19‑240. Apprentices; application; certificate; periodic reporting; eligibility for licensure; sponsor limitations.
(A) A person desiring to become an apprentice funeral director or embalmer shall apply to the board on forms provided by the board. The applicant must be at least eighteen years of age, shall take the oath contained on the application form, and shall submit a fee established by the board in regulation. If the board is satisfied as to the qualifications of an applicant, the board shall issue a certificate of apprenticeship. If an apprentice wishes to engage in an apprenticeship with a person licensed as a funeral director or embalmer, a request must be submitted to the board. If permission is granted and the apprentice leaves the apprenticeship of the licensee in whose service the apprentice has been engaged, the licensee shall give the apprentice an affidavit showing the length of time served. The affidavit must be filed with the board. If the apprentice subsequently desires to continue the apprenticeship, the apprentice must apply to the board as provided for in this subsection.
(B) A certificate of apprenticeship must be signed by the apprentice, the licensee, and the manager of the establishment in which the apprenticeship is to be served and is renewable twenty‑four months after registration for twelve months, by payment of a renewal fee established by the board in regulation. A certificate may not be renewed more than three times. The registration of an apprentice who is actually engaged in the military service may be held in abeyance for the duration of service, and the apprentice may be relieved of the payment of renewal fees and penalties.
(C) An apprentice quarterly shall report to the board on forms provided by the board indicating the work which has been completed during the preceding three months. The report must be certified by the licensee under whom the apprentice has served.
(D) Before an apprentice is eligible to receive a license for the practice of funeral service, evidence required by this chapter must be submitted to the board showing that the apprentice has completed successfully the educational requirements set forth in Section 40‑19‑230. Affidavits also must be submitted from the licensees under whom the apprentice worked showing that as an apprentice embalmer the apprentice has assisted in the embalming of at least fifty bodies or that as an apprentice funeral director the apprentice has assisted in conducting at least fifty funerals, during apprenticeship. Eligibility for licensure is determined by the board based upon the reports filed with the board pursuant to subsection (C).
(E) Only two apprentices at a time are permitted to register under any one person licensed as a funeral director or embalmer. Each sponsor for a registered apprentice must be actively connected with a funeral establishment.
SECTION 40‑19‑245. Student permits to engage in practice of funeral service.
(A) Upon registration with the South Carolina State Board of Funeral Service, the board shall issue a student permit authorizing the student to engage in the practice of funeral service if:
(1) the student is enrolled in an accredited mortuary science college or mortuary science college or a program in the process of seeking accreditation in South Carolina;
(2) the funeral service activities in which the student engages are in conjunction with the student’s academic training; and
(3) the student’s funeral service activities are under the supervision of a licensee designated by an accredited mortuary science college in South Carolina.
(B) The board shall promulgate regulations to implement the provisions of this section.
SECTION 40‑19‑250. Continuing education program; persons exempt.
The board shall develop in regulation a continuing education program and each licensee must attend a minimum of three credit hours annually. This continuing education program must be offered, at a minimum, four times a year at locations easily accessible to participants and must be available through correspondence courses. This continuing education requirement does not apply to a person who is not the manager of record of a funeral home, funeral establishment, or mortuary if the person has been licensed for thirty or more years or is sixty years old or older.
SECTION 40‑19‑260. Business establishment; presence of funeral director required.
The practice of funeral service may be engaged in only at a licensed establishment. A licensed funeral director shall make arrangements with clients and must be at the place of the funeral and committal services.
SECTION 40‑19‑265. Permit requirements for funeral homes.
(A) A permit for a funeral home may be issued if the applicant:
(1) submits an application on a form approved by the board;
(2) submits to and successfully passes an inspection approved by the board;
(3) submits the applicable nonrefundable fee;
(4) designates a manager who meets the requirements of Section 40‑19‑20(16) and is current and in good standing with the board and lives within a radius of twenty‑five miles of the establishment;
(5) possesses the necessary equipment or merchandise, or both, required by regulation;
(6) is in full compliance with Section 40‑19‑290.
(B) A permit for a branch funeral home may be issued if the applicant:
(1) submits an application on a form approved by the board;
(2) submits to and successfully passes an inspection approved by the board;
(3) submits the applicable nonrefundable fee;
(4) designates a manager who meets the requirements of Section 40‑19‑20(16) and is current and in good standing with the board and lives within a radius of twenty‑five miles of the establishment;
(5) possesses the necessary equipment or merchandise, or both, required by regulation;
(6) is in full compliance with Section 40‑19‑290;
(7) provides the name of the parent funeral home.
(C) A permit for a retail sales outlet may be issued if the applicant:
(1) submits an application on a form approved by the board;
(2) submits to and successfully passes an inspection approved by the board;
(3) submits the applicable nonrefundable fee;
(4) is in full compliance with Section 40‑19‑290.
(D) A permit for a crematory may be issued if the applicant:
(1) submits an application on a form approved by the board;
(2) submits to and successfully passes an inspection approved by the board;
(3) submits the applicable nonrefundable fee;
(4) designates a manager who meets the requirements of Section 40‑19‑20(16) and is current and in good standing with the board and lives within a radius of twenty‑five miles of the establishment;
(5) possesses the necessary equipment or merchandise, or both, required by regulation;
(6) is in full compliance with Section 40‑19‑290;
(7) provides evidence of employment of a factory trained operator.
(E) An application for a permit issued pursuant to this section must identify every person having the ability to direct the management or policies, or both, of the funeral establishment including, but not limited to, corporate officers employed, shareholders, partners, and other representatives of the corporation or business.
SECTION 40‑19‑270. Permit for funeral establishment; funeral services in private residence, church, or lodge; inspection of premises; residence of funeral director; application for permits; partnership or corporation operating funeral establishment.
(A) No person shall conduct, maintain, manage, or operate a funeral establishment, crematory, or retail sales outlet unless a permit for each establishment, retail sales outlet, or crematory has been issued by the board and is displayed conspicuously in the funeral establishment crematory, or retail sales outlet.
(B) The board or its inspector or agents may enter the offices or premises of a funeral establishment, funeral home, mortuary, branch funeral home, retail sales outlet, or crematory to inspect the premises or observe the training provided to apprentices. Acceptance of a permit constitutes permission for entry to the premises as provided in this section without legal process.
(C) 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 57‑10(c) and may issue a temporary permit to another manager upon terms and conditions the board considers to be in the best interest of the community in which the establishment or crematory is located.
(D) An application for a funeral establishment, crematory, or retail sales outlet permit must be made on forms furnished by the board and must be filed with the board accompanied by a fee established by the board in regulation. All permits expire on June thirtieth of each odd‑numbered year.
(E) When more than one person proposes to engage in the operation of a funeral establishment or crematory as a partnership or a corporation, one of the partners or corporation officers must be a licensed funeral director or the corporation or partnership must employ a full‑time manager. No partner or corporate officer shall hold himself out through advertising or otherwise as being a licensee unless the person is licensed in accordance with this chapter.
SECTION 40‑19‑280. Removal or embalming of body where information discloses death caused by crime or violence; notice to next‑of‑kin before body sent to funeral establishment; contract to pay insurance or benefits to funeral establishment; interference with public freedom of choice.
(A) No person licensed as a funeral director or embalmer shall remove or embalm a dead human body when the person has information indicating crime or violence of any sort in connection with the cause of death until permission first has been obtained from the coroner or medical examiner or some other qualified person acting in this capacity.
(B) No public officer or employee, the official of any public institution, physician, surgeon, or any other person having a professional relationship with a decedent may send or cause to be sent to a funeral establishment or to a person licensed for the practice of funeral service the remains of a deceased person without having first made due inquiry as to the desires of the next of kin and of the persons who may be chargeable with the funeral and expenses of the decedent. If any kin is found, authority and directions of the kin govern except in those instances where the deceased made prior arrangements in writing.
(C) No company, corporation, or association engaged in the business of paying or providing for the payment of the expenses of the funeral, disposition, or other similar expenses of the deceased members or of certificate holders, or engaged in the business of providing insurance upon the life of an individual, under which an obligation may arise to care for the remains of the insured, shall contract to pay or shall pay insurance or benefits, or part of insurance or benefits, to a funeral establishment, licensee, or individual in a manner which may deprive the representative, next of kin, or family of the deceased person from, or in any way control them in, procuring a funeral establishment, person licensed for the practice of funeral service, or other proper and competent person to perform funeral services and furnish supplies to care for the remains of the decedent.
(D) No person licensed as a funeral director or embalmer or anyone acting for a funeral director or embalmer shall have a part in a transaction or business which in any way interferes with the freedom of choice of the general public to choose a person licensed for the practice of funeral service or to choose a funeral establishment except where the body or a part of the body is given for anatomical purposes.
(E) It is unlawful for a person, partnership, corporation, or association who has not been licensed or registered as provided for in this chapter to transact, practice, or hold himself out as transacting or practicing funeral service or operating or maintaining a funeral establishment, crematory, or retail sales outlet within this State.
SECTION 40‑19‑290. Disclosure of expenses related to services and merchandise; statements regarding legal requirements; disposition of payments received; investigations.
(A) The personnel of a funeral establishment or crematory shall make every reasonable attempt to fulfill the desires of the deceased and persons making arrangements both as to services and merchandise, and a full disclosure of all its available services and merchandise must be made before selection of the casket. Before the arrangements are completed, the licensee of the funeral service firm shall disclose fully what is included in the funeral and identify other related expenses such as cemeteries and florists.
(B) Statements of legal requirements or statements relative to the conditions under which embalming is required or advisable must be complete and factual. Representations as to legal requirements for embalming, the use of a casket or other receptacle, and the necessity, if any, of an interment receptacle in connection with a funeral must be truthful, and all legal or cemetery interment requirements must be disclosed.
(C) A funeral service establishment, crematory, or retail sales outlet shall have a card or brochure with each piece of funeral merchandise stating the price of the merchandise.
(D) The funeral establishment or crematory shall provide to the persons making the arrangements, at the time the arrangements are completed and before the time of rendering the service, a written statement signed by a representative of the funeral home and by the person authorizing the services showing to the extent then known:
(1) the price of the service that the persons have selected and what is included in the service;
(2) the price of each of the supplemental items of service and merchandise requested;
(3) the amount involved for each of the items for which the funeral service firm shall advance monies as an accommodation to the family; and
(4) the method of payment.
(E) All payments received by any establishment licensed under this chapter for funeral merchandise being purchased must be placed in a trust account in a federally insured institution until the merchandise is delivered for use as provided in the contract in accordance with the sales agreement. Upon its own initiative or upon receipt of a complaint, the State Board of Financial Institutions must undertake investigations; review the books, records, and accounts of any establishment licensed under this chapter; subpoena witnesses; require audits and reports; and conduct hearings to determine if payments are being received in violation of the provisions of Chapter 7 of Title 32.
SECTION 40‑19‑300. Construction of chapter; limitations on authority of persons with fiduciary relationship with deceased; sale of burial vaults by operators of commercial cemeteries.
Nothing contained in this chapter may be construed to govern or limit the authority of an administrator or executor, trustee, or other person having a fiduciary relationship with the deceased. Further, nothing contained in this chapter may be construed to prohibit the sale of burial vaults by persons engaged in the business of operating a commercial cemetery.
SECTION 40‑19‑310. Chapter not applicable to preparation and burial of paupers and inmates of state institutions; effect of chapter on other board duties and responsibilities.
(A) The provisions of this chapter do not apply to the preparation and burial of dead bodies of paupers or of inmates of state institutions when the paupers or inmates are buried at the expense of the State.
(B) Nothing in this chapter alters the responsibilities of the board or limits the board in carrying out its duties and responsibilities as required in Chapters 7 and 8, Title 32.
SECTION 40‑19‑320. Severability of chapter provisions.
If a provision of this chapter or the application of a provision to a person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
SECTION 44‑63‑82. Matching of birth and death certificates.
To protect the integrity of vital records and to prevent the fraudulent use of birth certificates of deceased persons, the state registrar is authorized to match birth and death certificates and to post the fact of death to the appropriate birth certificate. Copies issued from birth certificates marked deceased must be similarly marked. In addition to those entitled to receive certified copies of birth certificates pursuant to Section 44‑63‑80, certified copies of birth certificates marked deceased may be issued to a member of the registrant’s immediate family under such terms and conditions as may be prescribed by the state registrar.
SECTION 44‑63‑84. Persons to whom death certificate may be issued.
Copies of death certificates may be issued to members of the deceased’s family or their respective legal representatives. Upon request, the Department of Social Services or its designee must be provided with copies or certified copies of death certificates for the purpose of establishing paternity or establishing, modifying, or enforcing a child support obligation. Others who demonstrate a direct and tangible interest may be issued copies when information is needed for the determination of a personal or property right. Other applicants may be provided with a statement that the death occurred, the date, and county of death. However, when fifty years have elapsed after the date of death, these records become public records and any person may obtain copies upon submission of an application containing sufficient information to locate the record. For each copy issued or search of the files made, the state registrar shall collect the same fee as is charged for the issuance of certified copies or a search of the files for other records in his possession, except that the Department of Social Services or its designee may not be charged this fee.
When fifty years have elapsed after the date of death, these records must be made available in photographic or other suitable format for public viewing.
SECTION 44‑63‑110. Fees.
For making, furnishing, or certifying any card, certificate, or certified copy of the record, for filing a record amendment according to the provisions of Section 44‑63‑60, 44‑63‑80, 44‑63‑90 or 44‑63‑100, or for searching the record, when no card, certificate, or certified copy is made, a fee in an amount as determined by the Board of the Department of Health and Environmental Control must be paid by the applicant, except that the Department of Social Services or its designee is not required to pay a fee when the information is needed for the purpose of establishing paternity or establishing, modifying, or enforcing a child support obligation. The amount of the fee established by the board may not exceed the cost of the services performed and to the extent possible must be charged on a uniform basis throughout the State. When verification of the facts contained in these records is needed for Veterans Administration purposes in connection with a claim, it must be furnished without charge to the Veterans Affairs Division of the Governor’s Office or to a county veterans affairs officer upon request and upon the furnishing of satisfactory evidence that the request is for the purpose authorized in this chapter.
SECTION 44‑63‑120. Disposition of fees received by State registrar.
The state registrar shall remit all fees received by him under the provisions of this chapter to the State Treasurer each month.
SECTION 44‑63‑150. Correction of mistakes in birth or death certificates.
Correction of mistakes in birth and death certificates may be made by the state registrar upon written application duly verified and sworn to by the appropriate person as required by regulation and upon receipt of supporting evidence when required by regulation. Certificates corrected more than one year after the event must be marked “amended”. The state registrar shall certify the corrected certificate is the true certificate. Supporting affidavits of fact must be attached to the certificate corrected more than one year after the date of the event.
DEPARTMENT OF LABOR, LICENSING AND REGULATION--SOUTH CAROLINA STATE BOARD OF FUNERAL SERVICE
(Statutory Authority: 1976 Code § 40-19-5, et seq.)
57-01. Definitions. [SC ADC 57-01]
Definitions found in Section 40-19-20 apply to this chapter.
(A) "Supervision" means protective oversight, including review, timely quality control, and inspection to assist the supervisee in preparing for practice and strengthening the skills of the supervisee.
(B) "Continuing education" means an organized educational program designed to expand a licensee's knowledge base beyond the basic entry level educational requirements.
(C) "Contact hour" means a minimum of fifty (50) minutes of instruction.
(D) "Full-Time Employee" means a person whose work schedule requires that the employee be present a minimum of thirty-five (35) hours per week for the entire normal year of operation.
OFFICERS OF BOARD; MEETINGS
57-02. Officers of Board. [SC ADC 57-02]
The Board shall elect annually from among its members a president, vice-president, secretary-treasurer, and other officers as the Board determines necessary.
57-03. Meetings. [SC ADC 57-03]
(A) The Board shall meet at least two (2) times a year and at other times upon the call of the president or a majority of the Board members.
(B) A majority of the members of the Board constitutes a quorum; however, if there is a vacancy on the Board, a majority of the members serving constitutes a quorum.
(C) Board members are required to attend meetings or to provide proper notice and justification of inability to do so. Unexcused absences from meetings may result in removal from the Board as provided in Section 1-3-240, South Carolina Code of Laws 1976, as amended. Affirmative action of the Board is required to approve an excused absence and is entirely within the Board's discretion.
57-04. General Licensing Provisions for Embalmers. [SC ADC 57-04]
An applicant for initial licensure as an embalmer must:
(A) be at least eighteen (18) years of age; and
(B) submit an application on forms approved by the Board, along with the required fee; and
(C) submit evidence of successful completion of a course of study in an embalming college accredited by the American Board of Funeral Service Education and approved by the Board; and
(D) submit evidence of a passing score of at least seventy-five (75) on an examination approved by the Board; and
(E) submit evidence of successful completion of a minimum of twenty-four (24) months of full time service as an apprentice under the direct supervision of a licensed embalmer approved by the Board.
57-05. General Licensing Provisions for Funeral Directors. [SC ADC 57-05]
An applicant for initial licensure as a funeral director must:
(A) be at least eighteen (18) years of age; and
(B) submit an application on forms approved by the Board, along with the required fee; and
(C) submit evidence of a high school diploma, or its equivalent and successful completion of a one-year course in an accredited mortuary college, successful completion of a bachelor's degree from a regionally accredited college or university or successful completion of sixty (60) semester hours at a regionally accredited college or university, including a minimum of twenty-four (24) semester hours divided among at least four (4) of the following areas:
(1) Psychological Sciences: This area may include courses in General Psychology, Guidance/Counseling, General Sociology, and other Psychology courses; and
(2) Business: This area may include courses in Accounting, Business Law, Math/Logic, Business Management, Typing, and Computer Science; and
(3) English: This area may include English, English Literature, and English Composition; and
(4) Natural/Biological/Physical Sciences: This area may include courses in Chemistry, Biology, Pathology, Microbiology, and Physiology; and
(5) Religion: This area may include courses in Religion, Bible, and Bible History; and
(D) submit evidence of successful completion of a minimum of twenty-four (24) months of full-time service as an apprentice under the direct supervision of a licensed funeral director approved by the Board; and
(E) submit evidence of a passing score of at least seventy-five (75) on an examination approved by the Board.
57-06. General Licensing Provisions for Apprentice Funeral Directors or Apprentice Embalmers. [SC ADC 57-06]
An applicant for an apprentice funeral director or apprentice embalmer must:
(A) be at least eighteen (18) years of age; and
(B) submit an application on forms approved by the Board, along with the required fee; and
(C) submit a Certificate of Apprenticeship signed by the apprentice, the licensee supervisor, and the manager of the establishment in which the apprenticeship is to be served.
57-07. General Provisions for Student Permits. [SC ADC 57-07]
An applicant for a student permit must:
(A) submit evidence that the student is enrolled in an accredited mortuary science college or mortuary science college or program in the process of seeking accreditation in South Carolina and at all times hereunder maintain a minimum of part-time student status. Student permits shall expire whenever the licensee ceases to be a mortuary science student; and
(B) submit a notarized statement that the funeral service activities in which the student engages are in conjunction with the student's academic training and are under the supervision of a licensee designated by the accredited mortuary science college or program.
57-08. Licensure by Endorsement. [SC ADC 57-08]
An applicant for licensure as an embalmer or funeral director by endorsement must:
(A) submit proof of a current, active, and unrestricted license of at least five (5) years duration under the laws of another state or territory that had requirements that were, at the date of licensure, equivalent to the requirements in effect at the time of application in South Carolina; and
(B) submit evidence of a passing score of at least seventy-five (75) on an examination approved by the Board; and
(C) submit an application on a form approved by the Board, along with the required fee.
57-09. Provisions for Annual Renewal of Licenses and Reactivation of Expired Licenses. [SC ADC 57-09]
(A) All licenses and renewals expire on the thirtieth (30th) day of June unless sooner revoked or canceled. No license may be issued or renewed for a period exceeding one (1) year.
(B) All applications for renewal shall be filed with the Board prior to June thirtieth (30th) each year. Renewal applications must be accompanied by the renewal fee prescribed by the Board and, if applicable, the required number of continuing education credits. Licensees who have not properly renewed their licenses for failure to complete the required continuing education credits and/or failure to submit the appropriate renewal fee must apply for late renewal during a six (6) month penalty period following the expiration date. Late renewal applications must be accompanied by documentation, if applicable, indicating completion of the required continuing education credits as specified in Reg. 57-11 and a fee equal to the annual renewal fee plus a penalty as described in Reg. 57-12.
(C) An embalmer or funeral director whose license has been expired for less than five (5) years may reactivate the license by applying to the Board, submitting the required fees, and demonstrating evidence satisfactory to the Board, on a form approved by the Board, of the requisite continuing education hours for each year during which the license was expired. In such cases, the Board may require supervised experience as a condition of reactivation.
(D) An embalmer or funeral director whose license has been expired for more than five (5) years must reapply and meet all of the requirements, including re-examination, at the time of application, for licensure.
(E) Applicants for reactivation must submit a notarized affidavit certifying that he or she has not been engaged in the practice of embalming or funeral directing in this State during the period the license was not in a current status.
57-10. Provisions for Permitting of Funeral Establishments. [SC ADC 57-10]
An applicant for permitting of a funeral establishment must:
(A) submit an application on forms approved by the Board, along with the required fee; and
(B) submit to an inspection of the funeral establishment. The inspection must show the establishment has the following:
(1) a chapel or parlor where funeral services may be conducted; and
(2) a preparation room equipped with a sanitary floor and necessary drainage, ventilation, necessary approved tables, hot and cold running water, and a sink separate from table drainage; instruments, and supplies, for the preparation and embalming of dead human bodies; and
(3) a room containing a displayed stock of at least six (6) adult caskets and other necessary funeral supplies; and
(4) a minimum of one (1) motor hearse for transporting casketed human remains; and
(5) submit evidence that the facility meets all State and local building and fire codes; and
(C) submit the name of a licensed funeral director as manager of the facility who is or will become, prior to opening the facility, a full-time regular employee in responsible charge of the establishment and who is legally and ethically responsible for all actions taken at the establishment. In the event the manager leaves the facility or is unable to perform the duties of a facility manager, the facility shall, within thirty (30) days submit, on a form approved by the Board, the name of the successor manager as required in Section 40-19-270(C), South Carolina Code of Laws (1976, as amended). As a part of the application, the manager must submit a notarized statement that he or she has been a resident of South Carolina for at least one (1) year prior to being named the manager of the facility; and
(D) submit evidence satisfactory to the Board that the owner of the facility is a South Carolina licensed funeral director, if a sole proprietorship. If a partnership, at least one (1) general partner must be a licensed funeral director. If a corporation, at least one (1) officer of the corporation must be a licensed funeral director. Owners of facilities may be required to submit partnership agreements, corporate resolutions, or any other such documents as may be requested by the Board to demonstrate compliance with this provision.
57-11. Continuing Education Requirements for Embalmers and Funeral Directors. [SC ADC 57-11]
(A) Persons licensed as embalmers or funeral directors must complete three (3) hours of formal continuing education during every licensure period as a condition of renewal of their license. The continuing education completed must represent an in-depth study of three (3) different topics and be gained through participation in formal instruction, seminars, or workshops approved by the Board. This continuing education requirement does not apply to persons who are sixty (60) years of age or older or persons who have been licensed for thirty (30) or more years by the Board so long as those persons do not act as the manager of record of any funeral establishment.
(B) The Board may grant waivers of the continuing education requirement in cases involving disability or illness and may extend the time within which the continuing education hours may be gained. Applications for waiver shall be submitted on forms approved by the Board and shall be signed by a licensed health care professional attesting to the licensee's inability to complete continuing education due to disability or illness.
(C) A Continuing Education Program shall be offered by the Board at a minimum of four (4) times a year at locations easily accessible to participants and shall be available through a self-study video program. The Board will periodically disseminate a list of approved courses.
57-12. Fees. [SC ADC 57-12]
(A) Fees as follow:
(1) Initial Application and License Fee
(a) Funeral Director Apprentice $50.00
(b) Embalmer Apprentice 50.00
(c) Embalmer 50.00
(d) Funeral Director 50.00
(e) Dual Application 75.00
(f) Endorsed Funeral Director 50.00
(g) Endorsed Embalmer 50.00
(h) Endorsed Dual Application 75.00
(i) Funeral Establishment 100.00
(j) Student Permit 25.00
(2) Annual License renewal
(a) Funeral Director Apprentice $50.00
(b) Embalmer Apprentice 50.00
(c) Embalmer 50.00
(d) Funeral Director 50.00
(e) Dual License 60.00
(f) Funeral Establishment 60.00
(g) Student Permit 25.00
(3) Late Renewal Penalty (1-6 months) 60.00
(4) Reactivation (Revival) (6 months or more) 60.00 + renewal fee for
each year license was
(5) Examination Fee
(a) National State Examination actual fee charged by
(b) National State Examination actual fee charged by
(c) State Statutes and Regulations Exam 25.00
(B) All fees are nonrefundable.
CODE OF ETHICS
57-13. Code of Ethics. [SC ADC 57-13]
(A) Responsibilities to the Family.
(1) A funeral director shall, where possible, fully inform the family of the deceased concerning the time, the place, and details of the funeral service.
(2) A funeral director shall consider the financial limitations of the family of the deceased when counseling the family in the selection of services and furnishings.
(3) A funeral director shall explain to the family of the deceased costs of the services and the merchandise and disclose the range of prices for funeral goods and services available.
(4) A funeral director shall review with the family of the deceased all death benefits and burial allowances of which he is aware.
(5) A funeral director shall provide a statement of goods and services for the family to approve showing the price of the services and merchandise that was selected, the price of each of the supplemental items of the service, and the amount involved for each of the items for which the funeral director will advance monies as an accommodation to the family.
(6) A funeral director shall not make any misrepresentation concerning any aspect of the services rendered or the funeral furnishings or disposition alternatives.
(1) A funeral director shall not disclose the cause of death of the deceased, expenditures for the funeral, the cost of the service, the source of funds or other information of a personal nature except with the express permission of the immediate family, or their authorized representatives.
(1) A funeral director shall dispose of the personal effects of the deceased in accordance with the wishes of the family.
(D) Organ Donation.
(1) A funeral director shall support the wishes of families who authorize organ or body donations, if the body is needed and medically acceptable.
(E) Responsibilities to the Clergy.
(1) A funeral director shall respect the customs and mourning habits of all religious creeds and denominations and shall adjust services to conform with the rituals and the beliefs of the family of the deceased.
(2) A funeral director shall honor the wishes and desires of the clergy in conducting the service whenever possible, except that the wishes of the clergy person shall be subservient to those of the family except when dogma is involved.
(3) A funeral director shall abide by the rules and regulations of the church when the funeral service is held in a church.
(4) A funeral director shall make appropriate referrals when religious or pastoral counseling is requested.
(F) Responsibilities to Medical and Hospital Personnel.
(1) A funeral director or embalmer shall promote public health by conforming with health laws and regulations.
(2) A funeral director or embalmer shall not discourage autopsy of the deceased unless instructed to do so by the immediate family.
SOUTH CAROLINA CEMETERY BOARD
(Statutory Authority: 1976 Code Chapter 55 of Title 39, as amended)
21-1. Board Location. [SC ADC 21-1]
The South Carolina Cemetery Board is located in Columbia, South Carolina, in the Office of the Secretary of State. The mailing address for the Cemetery Board is Post Office Box 11350, Columbia, South Carolina 29211.
21-2. General Purpose. [SC ADC 21-2]
The principal purpose of the Cemetery Board is to Regulate and Supervise the activities of Cemeteries licensed under the Laws of South Carolina.
21-3. Areas of Responsibility. [SC ADC 21-3]
The Cemetery Board has the power and duty to adopt Rules and Regulations to be followed in the enforcement of Chapter 55 of Title 39 of the 1976 Code, as amended.
21-4. Functions of the Board. [SC ADC 21-4]
The principal function of the Cemetery Board is to conduct examinations of all licensed Cemeteries. In addition to its examination function, the Cemetery Board authorizes the establishment of cemeteries and the licensing of those cemeteries.
21-5. Examinations. [SC ADC 21-5]
The Cemetery Board will, as often as it deems necessary, make a physical examination of each cemetery, to insure there is compliance with Chapter 55 of Title 39 of the 1976 Code, as amended.
21-10. Cemetery Board Members. [SC ADC 21-10]
The Cemetery Board is established within the Office of the Secretary of State of South Carolina by Code § 39-55-45. The Cemetery Board consists of six members, appointed by the Governor pursuant to Code § 39-55-55 and the Secretary of State who is a member ex officio and shall serve as Chairman of the Board.
21-11. Meetings. [SC ADC 21-11]
The Cemetery Board shall meet at least semiannually, and more often upon the call of the Chairman or upon written request of at least four members of the Board.
CARE AND MAINTENANCE TRUST FUNDS
21-20. Report of Deposits. [SC ADC 21-20]
The Cemetery Board requires a report of deposits to the Care and Maintenance Trust Fund to be completed and mailed to its office in Columbia annually on forms provided by the Cemetery Board.
21-21. Location of Fund. [SC ADC 21-21]
No person will be allowed to withdraw or transfer all of any portion of the corpus of the Care and Maintenance Trust Funds of any Cemetery to any depository outside the State of South Carolina. Also, the Board will not approve the creation of a new Care and Maintenance Trust Fund as called for under Code § 39-55-135 unless same is deposited with a trust institution in the State of South Carolina.
21-22. Transfer of Funds. [SC ADC 21-22]
Any Cemetery which desires to transfer its Care and Maintenance Trust Funds must make written request to the Cemetery Board and provide the Cemetery Board with a copy of the new proposed Care and Maintenance Trust Fund Agreement. The Cemetery Board will then notify the Cemetery, in writing, after study of the request and proposal, either authority for the transfer or the denial of the request.
21-23. Commingling of Deposits. [SC ADC 21-23]
The Trustees of Care and Maintenance Trust Funds may commingle the deposits in all such trusts for purposes of the management and investment of the funds.
MERCHANDISE TRUST FUNDS
21-30. Reports of Deposits. [SC ADC 21-30]
The Cemetery Board requires a report of deposits to the Merchandise Trust Fund to be completed and mailed to its office in Columbia annually on forms provided by the Cemetery Board.
21-31. Location of Fund. [SC ADC 21-31]
The Cemetery Board will not approve the creation of a Merchandise Trust Fund unless same is deposited with a Trust Institution in the State of South Carolina.
21-32. Deposits to Maintenance Trust Fund. [SC ADC 21-32]
No person shall offer to enter into, or enter into a contract, for the sale of a memorial, mausoleum crypt, or other cemetery merchandise that is to be used in connection with the interment of a deceased human being, wherein the memorial or other cemetery merchandise is not delivered or the mausoleum crypt is not constructed until the death, or at some future time, of the person for whose interment such personal property is to be furnished, except as provided below:
(a) Any person entering into any such contract as the seller shall deposit into a merchandise trust fund, established for that purpose with a Trust Institution in South Carolina, as Trustee, one hundred percent of the actual cost, at time of deposit, of the personal property sold for future need.
(b) The deposit required to be made into such Merchandise Trust Fund shall be made within sixty days after the seller has received final payment of the purchase price provided for under such contract.
(c) The term "Mausoleum Crypt" as used in Code § 39-55-185(B) shall mean a private, family Mausoleum as opposed to a public mausoleum which is governed by Code § 39-55-225 of the South Carolina Cemetery Act of 1984.
21-33. Withdrawals from Merchandise Trust Fund. [SC ADC 21-33]
The funds held in trust shall remain intact, together with all interest accrued thereon, except as provided herein, until the Memorial or other Cemetery merchandise has been delivered, or in the case of a private, family mausoleum, the same has been constructed, and until delivery or completion of construction has been certified to the Trustee.
(a) The costs for administering the Merchandise Trust Fund may be paid from, and only from, the income earned by the Trust.
(b) For the purpose of Code § 39-55-185, only (1) the installation of said merchandise in the Cemetery, or (2) the warehousing of said merchandise on the Cemetery Property, or (3) the deposit of one hundred percent of the cost of said merchandise in the Merchandise Trust Fund, or (4) another type of warehousing of said merchandise that has prior approval of the Cemetery Board, will constitute the delivery of said merchandise.
MAUSOLEUM AND BELOW GROUND CRYPTS TRUST FUNDS
21-40. Reports. [SC ADC 21-40]
The Cemetery Board requires a report of deposits to the Pre-Construction Trust Fund to be completed and mailed to its office in Columbia annually on forms provided by the Cemetery Board.
21-41. Deposits to Fund. [SC ADC 21-41]
(a) Any person who enters into a contract for the sale of a space in a Mausoleum or bank of Underground Crypts prior to the completed construction thereof shall establish a Trust Fund entitled "Pre-Construction Trust Fund" with a Trust Institution in South Carolina. The Pre-Construction Trust Fund shall be administered and operated in the same manner as the Merchandise Trust Fund provided for in Code § 39-55-185, and shall be exclusive of the Merchandise Trust Fund or other Trust Funds that may be required by law.
(b) The sellers cost of a space in a Mausoleum or in a Bank of Underground Crypts shall be determined by the contract and plans between the Cemetery Company and the Building Contractor.
(c) When any memorial, mausoleum crypt, or other merchandise is sold in advance of need and not installed until a later date, one hundred percent of actual cost to the seller at time of deposit must be placed in a trust institution within sixty days after completion of the contract, with interest to accrue, and may not be withdrawn without the consent of the purchaser until the time of delivery or construction.
21-42. Withdrawals from Pre-Construction Trust Fund. [SC ADC 21-42]
The seller shall be entitled to withdraw all funds from the Pre-Construction Trust Fund after the Trustee is satisfied that construction has been completed; provided, however, during construction of the Mausoleum or Bank of Underground Crypts, the Trustee shall authorize a specific percentage of the funds to be withdrawn when the Cemetery Company certifies that at least an equivalent percentage of construction has been completed.
21-50. Application and Filing Fee. [SC ADC 21-50]
Any legal entity wishing to establish and operate a Cemetery Company, as defined in Code § 39-55-35(3) must first obtain a license from the Cemetery Board. The legal entity shall file written application with the Cemetery Board on the Board's Application for Certificate of Authority. This form provides a space for the name of the Corporation and the Cemetery, the names of the Directors and officers of the Corporation, the mailing address of the Corporation and the address of the Cemetery. A filing fee of Four Hundred Dollars ($400.00) must accompany the Application. Application for Certificate of Authority forms are available from the Office of the Cemetery Board.
21-51. Cemetery Company License. [SC ADC 21-51]
Upon proper application for a Cemetery Company License, and where it appears after investigation that the criteria set forth in Code § 39-55-95(c)(1) through (5) have been met, the Cemetery Board shall issue said License to the applicant, provided that the required license fee has been paid.
21-52. Change of Control. [SC ADC 21-52]
Any entity wishing to purchase or acquire control of an existing Cemetery Company shall first make written application to the Cemetery Board on the Board's Application for Change of Control. This form provides space for the name and address of the present and the proposed new owner, along with the name of the Corporation and the name of the Cemetery. This form is available from the Office of the Cemetery Board. This form must be accompanied by a One Hundred Dollar ($100.00) filing fee. The Board also requires the following:
(1) an examination be made to establish compliance to the Trust Fund requirements;
(2) a certificate signed by the purchaser assuming liabilities of the existing Cemetery Company;
(3) the financial structure of the existing Cemetery Company;
(4) a financial statement of the future owner.
21-53. Cemetery Rules and Regulations. [SC ADC 21-53]
Each Cemetery that was licensed as of June 28, 1984, shall submit to the Cemetery Board a copy of its Rules and Regulations for approval on or before January 1, 1985. After the Cemetery Board has approved the Rules and Regulations for a licensed Cemetery, the Cemetery, must before modifying, changing, or amending said Rules and Regulations, submit proposed amendments or changes to the Cemetery Board for approval.
RULE-MAKING AND DECLARATORY RULINGS
Petitions. [SC ADC 21-60]
(a) Any person wishing to submit a petition requesting the adoption, amendment, or repeal of a rule by the Cemetery
Board shall address a petition to the Cemetery
Board at its Office in Columbia.
(b) The petition shall contain the following information:
(1) draft of the proposed rule or a summary of its contents;
(2) reason for the proposal;
(3) effect on existing rules or orders;
(4) data supporting the proposal;
(5) names of those most likely to be affected by the proposed rule, with addresses if reasonably known;
(6) name(s) and address(es) of petitioner(s);
(7) a description as to how the petitioner(s) is (are) directly or substantially affected by the proposed rule.
(c) The Cemetery
Board will determine, based on a study of the facts stated in the petition, whether the public interest will be served by granting the petition. They will consider all the contents of the submitted petition, plus any additional information they deem relevant.
(d) Within sixty (60) days of receipt of the petition, the Cemetery
Board will render a final decision. If the decision is to deny the petition, the Board will notify the petitioner in writing, stating the reason therefor. If the decision is to grant the petition, the Board, within sixty (60) days of submission, will initiate a rule-making proceeding by issuing a rule-making notice as provided in the rules.
Notice. [SC ADC 21-61]
(a) Upon a determination to hold a rule-making proceeding, either in response to a petition or otherwise, the Cemetery
Board will give Twenty (20) days notice to all interested parties of a public hearing on the proposed rule.
(b) Any person or agency desiring to be placed on the mailing list for Cemetery
Board rule-making notices may file a request, in writing, furnishing names and mailing address to the Cemetery
Board at its Office in Columbia.
(c) In addition to notices sent to persons requesting them, notice of the rule-making proceedings will usually be sent to the South Carolina Cemetery
Board and to all state-licensed Cemeteries.
Hearings. [SC ADC 21-62]
(a) Unless otherwise stated in the particular rule-making notice, hearings before the South Carolina Cemetery
Board will be held at the offices of Secretary of State of South Carolina, Columbia, South Carolina.
(b) Any person desiring to present oral data, views, or arguments on the proposed rule must, at least ten (10) days before the hearing, file a written notice with Cemetery
Board at its Office in Columbia. Notice of this presentation may be waived or a failure to give notice may be excused, by the Board, for good cause. Any person permitted to make an oral presentation is encouraged to submit a written copy of the presentation to the Cemetery
Board prior to or at the hearing.
(c) A request to make an oral presentation must contain a brief summary of the individual's views with respect thereto, and a statement of the length of time the individual wants to speak. Presentations may not exceed fifteen (15) minutes unless, upon request, either before or at the hearing, the Cemetery
Board grants an extension of time, for good cause.
(d) Upon receipt of a request to make an oral presentation, the Cemetery
Board will acknowledge receipt of the request, and inform the requesting person of the imposition of any limitation deemed necessary to the end that a full and effective public hearing on the proposed rules may be held.
(e) Any person may file a written submission containing data, comments, or arguments, after publication of a rule-making notice, up to and including, the day of the hearing. Written submissions, except when otherwise stated in the particular rule-making notice must be sent to the Cemetery
Board at its Office in Columbia. Such submission must clearly state the rule(s) or proposed rule(s) to which the comments are addressed.
(f) Upon receipt of such written comments, prompt acknowledgment will be made including a statement that the comments therein will be considered fully by the Cemetery
(g) The Chairman of the Board, or his designate, shall have complete control of the hearing proceedings, including: extension of any time requirements, recognition of speakers, time allotments for presentation, direction of the flow of the discussion, and the time management of the hearing. The Chairman, or his designate, at all times, shall take care that each person participating in the hearing is given a fair opportunity to present views, data and comments.
(h) Any person desiring a statement of the principal reason(s) for and against the adoption of a rule by the Cemetery
Board and the factors that led to the overruling of the consideration urged for or against its adoption, must submit a request addressed to the Cemetery
Board at its Office in Columbia.
(1) For the purpose of this rule an "interested person" shall be any person whose right, duties, or privileges might be affected by the rule in question, or any group or organization representing any person(s) whose rights, duties, or privileges might be affected by the rule.
(2) Requests must be in writing and submitted either prior to the adoption of the rule or within thirty (30) days thereafter.
(i) A record of all rule-making proceedings will be maintained in the Cemetery Board Office for as long as the regulation is in effect, and for two years thereafter, following filing of the regulation with the Legislative Council. This record will contain: the original petition, if the hearing is in response to a petition; the notice; all written memoranda and information submitted; a record or summary of oral presentation, if any; and the statement explaining the Cemetery Board ruling, if made.
21-63. Emergency Rules. [SC ADC 21-63]
The South Carolina Cemetery Board shall have the power to issue emergency rules when required by reason of imminent peril to the public health, safety, and welfare. They shall issue such notice by written, telegraphic, or telephonic, or other means, and allow such comments oral or written, as time permits. An emergency rule shall continue for the duration of the emergency or for such time as shall be specified, but in no event shall the period be in excess of One Hundred Twenty (120) days.
21-64. Declaratory Rulings. [SC ADC 21-64]
(a) Any person substantially affected by a statute administered, or rule promulgated, by the Cemetery Board may request a Declaratory Ruling as to:
(1) whether, and if so, how, the statute or rule applies to a given factual situation, or,
(2) whether a particular agency rule is valid.
(b) The Cemetery Board will have the sole power to make such Declaratory Rulings. All requests for Declaratory Rulings shall be written and mailed to the Office of the Cemetery Board in Columbia.
(c) All requests for a Declaratory Ruling must include the following information:
(1) name and address of petitioner;
(2) statute or rule to which petition relates;
(3) concise statement of the manner in which the petitioner is aggrieved by the statute or rule, or its potential application to him;
(4) a statement of whether an oral hearing is desired, and if so, the reasons for such an oral hearing.
(d) Whenever the Cemetery Board believes for good cause that the issuance of a Declaratory Ruling is undesirable, it may refuse to do so. When good cause for refusing to issue a Declaratory Ruling is deemed to exist, the Cemetery Board will notify the petitioner of its decision in writing, stating reasons for the denial of a Declaratory Ruling.
(e) Where a Declaratory Ruling is deemed appropriate, the Cemetery Board will issue the ruling within sixty (60) days of receipt of the petition.
(f) A Declaratory Ruling procedure may consist of written submissions, oral hearings, or such other procedures as may be appropriate in a particular case.
. Short title. [SC ST SEC 32-8-300]
This chapter may be cited as the "Safe Cremation
. Definitions. [SC ST SEC 32-8-305]
As used in chapter:
(1) "Alternative container" means a receptacle, other than a casket, in which human remains are transported to a crematory and placed in a cremation
chamber for cremation
. An alternative container or cremation
casket must be:
(a) composed of readily combustible materials suitable for cremation
(b) resistant to leakage or spillage;
(c) rigid enough for handling with ease;
(d) able to provide protection for the health, safety, and personal integrity of crematory personnel.
(2) "Agent" or "decedent's agent" means a person legally entitled under this chapter to order the cremation
and final disposition of specific human remains.
(3) "Body parts" means limbs or other portions of the anatomy that are removed from a person or human remains for medical purposes during treatment, surgery, biopsy, autopsy, or medical research; or human bodies or a portion of bodies that have been donated to science for medical research purposes.
(4) "Board" means the South Carolina State Board of Funeral Service.
(5) "Burial transit permit" means a permit for disposition of a dead human body as required by law.
(6) "Casket" means a rigid container that is designed for the encasement of human remains.
(7) "Change of ownership" means a transfer of more than fifty percent of the stock or assets of a crematory authority.
(8) "Cremated remains" means all human remains recovered after the completion of a cremation
" means the technical process using heat and flame that reduces human remains to bone fragments and which may include the pulverization of the bone fragments.
casket" means a rigid wooden, corrugated, fiberboard, or metal container that is designed for the encasement of human remains.
certificate" means a document certifying that a decedent has been cremated and which includes the name of the decedent, the identification number, the date of cremation
, the name, address, and phone number of the crematory, and the signature of the crematory authority.
chamber" means the enclosed space within which the cremation
interment container" means a rigid outer container composed of concrete, steel, bronze, fiberglass or some similar material in which an urn is placed before being interred in the ground and which is designed to withstand prolonged exposure to the elements and to support the earth above the urn.
room" means the room in which a cremation
chamber is located.
(15) "Crematory" means the building or portion of a building that houses the cremation
room or the holding facility, or both.
(16) "Crematory authority" means the legal entity or the authorized representative of the legal entity which is licensed by the South Carolina Funeral Service Board to operate a crematory or a licensed funeral director who performs cremations.
(17) "Department" means the South Carolina Department of Health and Environmental Control.
(18) "Final disposition" means the burial, cremation
, entombment or other disposition of a dead human body or parts of a dead human body or cremated remains.
(19) "Foreign matter" means certain items including, but not limited to, body prosthesis, dentures, dental bridgework, dental fillings, jewelry, and any other personal articles accompanying the deceased.
(20) "Funeral director" means a person licensed by the board to engage for hire or profit in the profession of arranging, directing, or supervising funerals.
(21) "Funeral establishment" means an establishment in a building or separate portion of a building having a specific street address and location and devoted to activities relating to the shelter, care, custody, and preparation of a deceased human body and which may contain facilities for funerals, wake services, or cremations and for which a permit has been issued pursuant to Section 40-19-130.
(22) "Human remains" means the body of a deceased person, including any form of body prosthesis that has been permanently attached or implanted in the body.
(23) "Merchandise" means alternative containers, temporary containers, caskets, cremation
caskets, rental caskets, urns, and cremation
(24) "Niche" means a compartment or cubicle for the permanent placement of an urn containing cremated remains.
(25) "Pulverization" means the reduction of identifiable bone fragments after the completion of the cremation
process to unidentifiable bone fragments by manual or mechanical means.
(26) "Scattering area" means an area which may be designated by a cemetery and located on dedicated cemetery property where cremated remains, which have been removed from their container, may be mixed with or placed on top of the soil or ground cover.
. Crematory; compliance with local zoning regulations. [SC ST SEC 32-8-310]
A crematory may be constructed on the grounds of a funeral establishment and must be in compliance with local zoning regulations.
. Execution of a cremation
authorization form. [SC ST SEC 32-8-315]
(A) A person may authorize his or her own cremation
and the final disposition of his or her cremated remains by executing a cremation
authorization form. A person has the right to revoke this authorization at any time by providing written notice to the funeral establishment which assisted the person in making these arrangements and the crematory authority designated to perform the cremation
(B) At the time of death of a person who had executed a cremation
authorization form, the person in possession of the executed form and the person charged with making arrangements for the final disposition of the decedent who has knowledge of the existence of the executed form shall ensure that the decedent is cremated and that the final instructions contained on the authorization form are carried out. The crematory authority is required to cremate the human remains and dispose of the cremated remains according to the instructions contained on the cremation
authorization form if the crematory authority has a completed authorization form, all permits, and certificates required by law, and the designated human remains.
(C) A preneed authorization for cremation
arranged with a licensed funeral establishment and crematory authority shall specify the final disposition of the cremated remains in accordance with Section 32-8-345. If no different or inconsistent instructions are provided to the funeral establishment or the crematory authority by the agent at the time of death, the crematory authority shall release or dispose of the cremated remains as indicated in the preneed agreement.
(D) No person may revoke a cremation authorization form subsequent to the death of the person who executed the form and the instructions for cremation and disposition of the cremated remains must be complied with unless full payment for the cremation and disposition of the remains has not been received or guaranteed.
SECTION 32-8-320. Persons who may serve as a decedent's agent; authorize cremation. [SC ST SEC 32-8-320]
(A) In the following order of priority these persons may serve as a decedent's agent and in the absence of a preneed cremation authorization may authorize cremation of the decedent:
(1) the person designated as agent for this purpose by the decedent in a will or other verified and attested document;
(2) the spouse of the decedent at the time of the decedent's death;
(3) the decedent's surviving adult children;
(4) the decedent's surviving parents;
(5) the persons in the next degree of kinship under the laws of descent and distribution to inherit the estate of the decedent.
(B) In the absence of a person serving as a decedent's agent pursuant to subsection (A), the following may serve as an agent and may authorize a decedent's cremation:
(1) a person serving as executor or legal representative of the decedent's estate and acting according to the decedent's written instructions;
(2) a public administrator, medical examiner, coroner, state appointed guardian, or other public official charged with arranging the final disposition of the decedent if the decedent is indigent or if the final disposition is the responsibility of the State or an instrumentality of the State.
(C) If a dispute arises among persons of equal priority, as provided for in subsection (A), concerning the cremation of a decedent, the matter must be resolved by order of the probate court.
SECTION 32-8-325. Prerequisites; authority; and receipt of instructions for cremation. [SC ST SEC 32-8-325]
(A) A crematory authority shall not cremate human remains until it has received all of the following:
(1) A certified copy of the death certificate; however, if the decedent was pronounced dead during hours the department was not open to the public, a completed copy of the death certificate, excluding the signature of the State Registrar of Vital Statistics, signed by the attending physician must be provided to the crematory authority; the death certificate signed by the registrar must be filed the next working day of the department and a certified copy must be provided to the crematory authority.
(2) A cremation authorization on a form prescribed by the board and executed by the decedent on a preneed basis or executed by the decedent's agent and which contains:
(a) the identity of the human remains and the date and time of death;
(b) the name of the funeral director or funeral establishment responsible for obtaining the authorization;
(c) the notification of infectious, contagious, or communicable disease or a disease declared by the department to be dangerous to the public health;
(d) the name, address, and phone number of the agent and the relationship between the agent and the decedent;
(e) a statement that the agent has the right to authorize the cremation of the decedent, as provided for in Section 32-8-320 and that the agent is not aware of a person who has a superior priority right to that of the agent or is not aware of a person of equal priority who disagrees with authorizing the cremation;
(f) authorization from the agent and the funeral director or funeral establishment for the crematory authority to perform the cremation;
(g) a statement that, to the best of the agent's knowledge, the human remains do not contain a pacemaker or any other material or implant that may be hazardous or cause damage to the cremation chamber or the person performing the cremation;
(h) the name of the agent or funeral establishment authorized to receive the cremated remains;
(i) the method by which disposition of the cremated remains is to take place, if known. If the authorization form does not specify final disposition in a grave, crypt, niche, or scattering area, the form may indicate that the cremated remains are to be held by the crematory authority for thirty days before they are released, unless they are picked up by or shipped to the agent or funeral establishment before that time. At the end of thirty days, if final disposition arrangements have not been made, the crematory authority may return the cremated remains to the agent, crematory authority, or funeral establishment. If at the end of sixty days no final disposition arrangements have been made, the crematory authority or funeral establishment in charge of arrangements may dispose of the cremated remains in accordance with Section 32-8-345(D);
(j) a listing of items of value to be delivered to the crematory authority with the human remains and instructions as to how the items should be handled;
(k) a specific statement authorizing the crematory authority to proceed with the cremation upon receipt of the human remains;
(l) the signature of the decedent's agent attesting to the accuracy of all statements contained on the cremation authorization form.
(3) Completed and executed burial transit permit in accordance with Regulation 61-19, Section 23.
(4) A cremation permit obtained in accordance with Section 17-5-600 or Section 17-5-610.
(B) If a person who may serve as a decedent's agent pursuant to Section 32-8-320 is not available in person to execute a cremation authorization form, the person shall send the funeral establishment a notarized facsimile transmission that contains the person's signature, name, address, phone number, and relationship to the decedent. Upon receipt of the transmission, this person is authorized to serve as the decedent's agent.
(C) An agent who signs a cremation authorization form is deemed to warrant to the best of the agent's knowledge that the facts set forth on the form are truthful, including that person's authority to order the cremation. An agent signing a cremation authorization form is personally and individually liable for all damages occasioned by and resulting from knowingly providing false information on the cremation authorization form authorizing the cremation.
(D) No crematory authority which cremated, released, or disposed of human remains is liable if the authority acted in accordance with chapter unless the crematory authority's actions were grossly negligent.
(E) After an agent has executed a cremation authorization form, the agent may revoke the authorization within twelve hours of its execution and instruct the funeral establishment to instruct the crematory authority to cancel the cremation. The instructions must be provided in writing. A funeral establishment and crematory authority shall honor instructions given to it by an agent under this subsection if it receives the instructions within twelve hours of the agent's execution of authorization form.
SECTION 32-8-330. Crematory to retain permanent records. [SC ST SEC 32-8-330]
(A) The crematory authority shall furnish to the person who delivers human remains to the crematory authority a receipt as prescribed by the board signed by the crematory authority or representative and the person who delivers the human remains. It must show the name of the decedent, the date and time of delivery, type casket or alternative container that was delivered, name of the person from whom the human remains were received, and the funeral establishment with whom the person is affiliated, and the name of the person who received the human remains on behalf of the crematory authority.
(B) The crematory authority shall retain in its permanent records the signature and name of the representative of a funeral establishment or the signature and name of the decedent's agent who received the cremated remains. It must show the name of the deceased, the date and time of the release, and the name of the representative of the crematory authority who released the cremated remains. If the release was to the United States Post Office, the crematory authority shall retain the return receipt requested card.
(C) A crematory authority shall maintain at its place of business a permanent record of each cremation that took place at its facility. The record shall contain the name of the decedent, the date of the cremation, and the final disposition of the cremated remains, if known.
(D) The crematory authority shall maintain for ten years a record of all cremated remains disposed of by the crematory authority.
(E) Upon completion of the cremation, the crematory authority shall file the burial transit permit in accordance with department regulations.
(F) All cemeteries shall maintain a record of all cremated remains that are disposed of on their property.
SECTION 32-8-335. "Alternative container". [SC ST SEC 32-8-335]
(A) A crematory authority and funeral establishment may require a decedent's agent to purchase an alternative container to contain the human remains before cremation but may not require the agent to purchase a casket before cremation for viewing or the actual cremation.
(B) No crematory authority may accept human remains from a funeral establishment unless the remains are delivered in a casket, cremation casket, or an alternative container unless the funeral establishment has made arrangements with the crematory authority to provide the casket, cremation casket, or an alternative container before cremation. Only a licensed crematory may perform cremations of human remains in this State and only a licensed funeral director or a funeral establishment may sell preneed and at-need merchandise.
(C) For purposes of this section, "alternative container" means a receptacle other than a casket, in which human remains are transported to a crematory and placed in a cremation chamber for cremation. An alternative container or cremation casket must be:
(a) composed of readily combustible materials suitable for cremation;
(b) resistant to leakage or spillage;
(c) rigid enough for handling with ease;
(d) able to provide protection for the health, safety, and personal integrity of crematory personnel.
SECTION 32-8-340. Conditions for cremation, time period prior to cremation. [SC ST SEC 32-8-340]
(A) Human remains may not be cremated before twenty-four hours have elapsed from the time of death as indicated on the attending physician's, medical examiner's, or coroner's certificate of death. However, if it is known that the decedent had an infectious or dangerous disease and if the time requirement is waived in writing by the attending physician, medical examiner, or coroner in the county in which the death occurred, the remains may be cremated before twenty-four hours have elapsed.
(B) No crematory authority shall cremate human remains when the authority has actual knowledge that human remains contain a pacemaker or other material or implant that may be potentially hazardous to the person performing the cremation or to the environment.
(C) No crematory authority shall refuse to accept human remains for cremation because the remains are not embalmed.
(D) If a crematory authority is unable or unauthorized to cremate human remains immediately upon taking custody of the remains, the crematory authority shall place the human remains in a holding facility which may be located in a cremation room. Access to a holding facility must be limited to authorized persons and must be constructed and maintained to preserve the health and safety of the crematory authority personnel.
(E) The casket, cremation casket, or alternative container must be cremated with the human remains or destroyed unless the crematory authority has notified the decedent's agent to the contrary on the cremation authorization form and obtained the written consent of the agent.
(F) No crematory authority may simultaneously cremate the human remains of more than one person within the same cremation chamber without the prior written consent of the agent. However, nothing in this subsection prevents the simultaneous cremation within the same cremation chamber of body parts that have been used for anatomical study delivered by a licensed hospital or medical facility in this State to the crematory authority from multiple sources or the use of cremation equipment that contains more than one cremation chamber.
(G) A crematory authority may not remove dental gold, body parts, organs, or any item of value before a cremation without previously having received specific written authorization from the decedent's agent and written instructions on the delivery of these items to the agent. A crematory authority may not profit from taking or assisting in removal of valuables.
(H) Upon the completion of a cremation, and insofar as is commercially reasonable, the cremated remains and foreign matter of the cremation process must be removed from the cremation chamber and devices used to process cremated remains. Foreign matter must be disposed of as indicated on the authorization form signed by the decedent's agent and particulates and ambient dust must be governed by the department.
(I) If all of the recovered cremated remains do not fit within the receptacle that has been selected, the remainder of the cremated remains must be returned in a separate container to the decedent's agent. The crematory authority may not return to an agent more or less cremated remains than were removed from the cremation chamber.
(J) A crematory authority may not knowingly represent to a decedent's agent that a temporary container or an urn contains the cremated remains of a specific decedent when it does not.
(K) A crematory authority shall maintain an identification system that ensures identification of the human remains while in the authority's possession throughout all phases of the cremation process.
SECTION 32-8-345. Crematory authority or licensed funeral establishments responsibility for the final disposition of the cremated remains. [SC ST SEC 32-8-345]
(A) The agent or a licensed funeral establishment or crematory authority is responsible for the final disposition of the cremated remains.
(B) Cremated remains may be disposed of by placing in a grave, crypt, niche, by scattering them in a scattering area, or in any manner on the private property of a consenting owner. If cremated remains are disposed of on public lands or water, all state and federal laws apply.
(C) Upon completion of the cremation process, if the crematory authority has not been instructed to arrange for the mailing, interment, inurnment, or scattering of the cremated remains, the crematory authority shall deliver in person or mail the cremated remains accompanied by the cremation certificate to the designee specified on the cremation authorization form. If no designee is specified, the cremated remains must be delivered in person or mailed to the decedent's agent. The cremated remains must be delivered in person or delivered to the United States Post Office or to a bonded licensed courier service to be sent by registered and return receipt requested mail. Upon receipt of the cremated remains accompanied by a photocopy of the Burial Transit Permit and Cremation Certificate, the individual receiving them may transport and dispose of them in any manner in accordance with this section. After delivery in person or to the United States Post Office or to a bonded, licensed courier service, the crematory authority is discharged from any legal obligation or liability concerning the cremated remains.
(D) If after a period of sixty days from the date of cremation the decedent's agent has not instructed the funeral establishment or crematory authority to arrange for final disposition of the cremated remains or claimed the cremated remains, the funeral establishment or crematory authority may dispose of the cremated remains in any manner permitted by this section. The funeral establishment or crematory authority shall keep a permanent record identifying the site of final disposition. The agent is responsible for reimbursing all expenses incurred in disposing of the cremated remains. Upon disposing the cremated remains, the funeral establishment or crematory authority is discharged from any legal obligation or liability concerning the cremated remains. A funeral establishment or crematory authority in possession of remains cremated before July 1, 1994, may dispose of them in accordance with this section.
(E) Except with the express written permission of the decedent's agent, no person may:
(1) dispose of cremated remains in a manner or in a location so that the cremated remains are commingled with those of another. This does not apply to the scattering of cremated remains at sea, by air, or in an area located in a dedicated cemetery and used exclusively for the purpose of disposing of cremated remains;
(2) place cremated remains of more than one person in the same temporary container or urn.
SECTION 32-8-350. Crematory's liability for damages. [SC ST SEC 32-8-350]
(A) A crematory authority is not liable for damages arising from cremating the human remains designated by a cremation authorization form if the form complies with Section 32-8-325 and if the cremation is performed in accordance with this chapter.
(B) A crematory authority is not liable for damages resulting from refusing to accept or cremate human remains or refusing to release or dispose of cremated remains if the authority is aware of a dispute concerning the remains or if the authority has a reasonable basis for questioning a statement or representation made by the decedent's agent.
(C) A crematory authority is not responsible or liable for valuables delivered with the human remains unless the crematory authority has received written instructions in accordance with Section 32-8-325(A)(2)(j).
(D) No cemetery is liable for cremated remains that are dumped, scattered, or otherwise deposited on the cemetery in violation of this chapter, if that action is taken without the cemetery's consent.
SECTION 32-8-355. Human remains; presence of pacemaker. [SC ST SEC 32-8-355]
If a decedent's agent informs the funeral establishment on the cremation authorization form of the presence of a pacemaker in the human remains, the funeral establishment must ensure that all necessary steps have been taken to remove the pacemaker before delivering the human remains to the crematory authority. If the funeral establishment who delivers the human remains to the crematory knows of the presence of a pacemaker in the human remains and fails to ensure that the pacemaker has been removed before delivery and if the remains are cremated with the pacemaker, the funeral establishment who delivered the human remains to the crematory and who knew of the presence of the pacemaker is liable for all resulting damages.
SECTION 32-8-360. Boards; refusal to issue or renew license; suspension or revocation of a funeral director or embalmer. [SC ST SEC 32-8-360]
(A) The board may refuse to issue or renew the license or may suspend or revoke the license of a funeral director or embalmer who violates a provision of this chapter.
(B) A person who violates a provision of this chapter is subject to a civil fine not to exceed five thousand dollars.
(C) The provisions of Section 40-19-160 apply to disciplinary actions under this chapter.
SECTION 32-8-365. Solicitation. [SC ST SEC 32-8-365]
Solicitations under this chapter are governed by Sections 32-7-90 and 40-19-180.
SECTION 32-8-370. Comprehensive cremation statute. [SC ST SEC 32-8-370]
This chapter must be construed and interpreted as a comprehensive cremation statute, and the provisions of the article take precedence over any existing laws containing provisions applicable to cremation but that do not specifically or comprehensively address cremation.
SECTION 32-8-375. Continuing education courses for removal and disposition of pacemakers. [SC ST SEC 32-8-375]
The board shall offer or arrange for continuing education courses addressing the removal and disposition of pacemakers by licensed embalmers.
SECTION 32-8-380. Promulgate regulations. [SC ST SEC 32-8-380]
The South Carolina State Board of Funeral Service shall promulgate regulations to carry out the provisions of this chapter including, but not limited to, the regulation of crematories whether or not constructed on the grounds of a funeral establishment.
SECTION 32-8-385. Requirement for at least one trained individual in performing cremations. [SC ST SEC 32-8-385]
A crematory is required to have in its employ at least one individual who has been trained in performing cremations by the licensed crematory authority who is his employer, by the manufacturer of the equipment to be used to perform cremations, or by some other appropriate method as provided by regulation of the board. Upon meeting the above requirements, this individual is considered to be sufficiently trained for purposes of this chapter.
SECTION 17-5-600. Permit required for cremation. [SC ST SEC 17-5-600]
When the body of any dead person who died in the county is to be cremated, the person who has requested the cremation must secure a permit for the cremation from the coroner, deputy coroner, medical examiner, or deputy medical examiner. A person who wilfully fails to secure a permit for cremation is guilty of a misdemeanor and, upon conviction, must be fined not less than twenty dollars and not more than five hundred dollars. A permit for cremation promptly must be acted upon by the coroner or medical examiner.
TITLE 40. PROFESSIONS AND OCCUPATIONS
CHAPTER 8. PERPETUAL CARE CEMETERIES
. Short title. [SC ST SEC 40-8-10]
This chapter may be cited as the "South Carolina Perpetual Care Cemetery Act".
. Perpetual Care Cemetery Board; creation. [SC ST SEC 40-8-20]
For the purposes of administering this chapter, there is established a South Carolina Perpetual Care Cemetery Board with the power and duty to promulgate regulations, approved by the Director of the Department of Labor, Licensing and Regulation, to carry out this chapter as provided for by Section 40-1-10.
Cemeteries, burial grounds, and any agreement or contract which has for a purpose the furnishing or delivering of a person, property, or merchandise of any nature in connection with the final disposition of a dead human body, must be subject to sufficient regulation by the State to ensure that sound business practices are followed by all entities subject to this chapter.
. Definitions. [SC ST SEC 40-8-30]
As used in this chapter, unless otherwise stated or unless the context clearly indicates otherwise:
(1) "Administrator" means the individual, appointed by the director, to whom the director has delegated authority to administer the programs of the South Carolina Perpetual Care Cemetery Board.
(2) "Authorization to operate" or "operation authorization" means the approval to operate a cemetery, which has been granted by the South Carolina Perpetual Care Cemetery Board. This authorization is granted in the form of a license.
(3) "Board" means the South Carolina Perpetual Care Cemetery Board.
(4) "Cared-for" means the physical appearance including, but not limited to, shrubs and trees pruned and trimmed, flower beds weeded, drives maintained, and lawns mowed when needed equivalent to once a week during grass growing season with ample rainfall.
(5) "Cemetery" means a place used, dedicated, or designated for cemetery purposes including any one or combination of:
(a) perpetual care cemeteries;
(b) burial parks for earth interment;
(6) "Cemetery company" means a legal entity that owns or controls cemetery lands or property and conducts the business of a cemetery, including all cemeteries owned and operated by cemetery sales organizations or cemetery management organizations or any other entity.
(7) "Columbarium" means a structure or building substantially exposed aboveground intended to be used for the interment of the cremated remains of a deceased person.
(8) "Department" means the Department of Labor, Licensing and Regulation.
(9) "Director" means the Director of the Department of Labor, Licensing and Regulation, or the director's official designee.
(10) "Grave space" means a space of ground in a cemetery intended to be used for the interment in the ground of the remains of a deceased person.
(11) "Human remains" or "remains" means the body of a deceased person and includes the body in any stage of decomposition.
(12) "Licensee" means a person granted an authorization to operate pursuant to this chapter and refers to a person holding a license granted pursuant to this chapter.
(13) "Mausoleum" means a structure or building substantially exposed aboveground, intended to be used for the entombment of the remains of a deceased person.
(14) "Memorial" means a bronze marker set approximately level with the turf for the purpose of identification, or interchanged to mean upright markers in garden sections which are plotted and specified for the use of upright markers. The term "marker" is interchanged with the term "memorial" in this chapter.
(15) "Merchandise" means items used in connection with grave space, niches, mausoleum crypts, granite, memorials, grave liners, and vaults; however, merchandise shall expressly exclude caskets and cremation
urns, burial clothing, facilities used for preparation, viewing, and automotive equipment and transportation. Items expressly excluded under the definition of merchandise in this provision must be governed by Chapter 7 of Title 32.
(16) "Outer burial container" means the following:
(a) Category I--Protective Outer Burial Container--An outer burial container (vault) in which a casket or similar burial device is placed for in-ground interment and is designed and constructed to support the weight of the earth and standard cemetery maintenance equipment and to prevent the grave from collapsing while resisting the entrance of water or any other element found in the soil in which it is interred.
(b) Category II--Nonprotective Outer Burial Container--A nonsealing outer burial container (grave liner) in which a casket or similar burial device is placed for in-ground interment and is designed and constructed to support the weight of the earth and standard cemetery maintenance equipment and to prevent the grave from collapsing.
(17) "Perpetual care" means the maintenance and the reasonable administration of the cemetery grounds and buildings in keeping with a cemetery properly maintained using a care and maintenance trust fund. In the event that a cemetery offers perpetual care for some designated sections of its property but does not offer perpetual care to other designated sections, the cemetery must be considered a perpetual care cemetery for the purposes of this chapter.
(18) "Person" means an individual, entity, corporation, partnership, joint venture, or association.
(19) "Trust institution" means a state or national bank, state or federal savings and loan association, or trust company authorized to act in a fiduciary capacity in this State.
. Cemetery contract disclosure requirements. [SC ST SEC 40-8-35]
The cemetery contract must disclose to the consumer:
(1) the type of outer burial container being purchased (a Category I, Protective Outer Burial Container, or a Category II, Nonprotective Outer Burial Container);
(2) that the outer burial container either has a warranty or that it does not have a warranty; and
(3) if the outer burial container purchased in advance of need is not available at the time of need, the cemetery shall make available to the purchaser or his representative an outer burial container of equal or greater value. The purchaser or his representative is entitled to approve any substitutions.
. Licensure requirements, "Perpetual Care" and "No Perpetual Care" designations. [SC ST SEC 40-8-40]
No entity may engage in the business of operating a perpetual care cemetery company, except as authorized by this chapter, without first obtaining a license from the board. A license issued under this chapter is not transferable or assignable and a licensee may not develop or operate a perpetual care cemetery authorized by this chapter under a name or a location other than that contained in the license.
No entity may hold itself out to be a perpetual care cemetery without an authorization to operate as such by the South Carolina Perpetual Care Cemetery Board.
Those cemeteries which furnish perpetual care to some portions and no perpetual care to other portions shall identify the appropriate sections of the cemetery at application and shall designate each section by a sign on the premises. Portions designated "Perpetual Care" may not be changed to "No Perpetual Care" once the designation is made.
. Board membership. [SC ST SEC 40-8-50]
The board consists of seven members appointed by the Governor. Three appointed members must be public members who have no financial interest in and are not involved in the management of a cemetery or funeral-related business, and four members must be owners or managers of cemeteries in this State who may be selected from nominees submitted by the South Carolina Cemetery Association. The Governor shall appoint members of the board in the manner provided in this section. Of the seven members, three of the initial board members must be appointed for a term of two years, two for a term of three years, and two for a term of four years. At the end of their respective terms, successors must be selected in the same manner and appointed for terms of four years and until their successors are appointed and qualify. Nominations for appointment for the four professional members must be received by the Governor from the South Carolina Cemetery Association. If the Governor does not approve the recommendations, the association shall provide the Governor with another list of nominees, and the Governor may select a nominee from the list provided or appoint another suitable candidate of his choice. The Governor may replace any board member at any time for cause. An appointment to fill a vacancy on the board is for the balance of the unexpired term in the manner of the original appointment.
. Election of chairman and vice chairman; expense reimbursements; meetings. [SC ST SEC 40-8-60]
The board shall elect annually a chairman and vice chairman. Each member of the board shall receive the usual mileage, per diem, and subsistence as provided by law for members of state boards, committees, and commissions. All expenses of the board must be paid from fees received by the board.
The board shall meet at least semiannually and may hold special meetings at any time and place within the State at the call of the chairman or upon written request of at least four members.
. Board power and duties. [SC ST SEC 40-8-70]
In addition to the powers and duties included in Sections 40-1-70 through 40-1-100, the board shall establish policies and procedures consistent with this chapter, shall have the full power to regulate the issuance of licenses, and shall discipline licensees in any manner permitted by this chapter or under the provisions of Sections 40-1-110 through 40-1-150.
. Board official seal. [SC ST SEC 40-8-75]
The board shall have and use an official seal bearing the name of the board.
. License fees. [SC ST SEC 40-8-80]
(A) The following fees must be assessed, collected, and adjusted on behalf of the board by the Department of Labor, Licensing and Regulation in accordance with this chapter and the provisions of Section 40-1-50(D):
(1) a license fee of eight hundred fifty dollars, annually;
(2) an application fee of two hundred fifty dollars.
(B) Notwithstanding subsection (A), the fees for a cemetery in existence on the effective date of this chapter, which consists of ten acres or less of land are as follows:
(1) a license fee of four hundred dollars, annually;
(2) an application fee of two hundred fifty dollars.
(C) The license period is from January first through December thirty-first.
(D) Failure to renew a license by the December thirty-first renewal date renders the license invalid. The license may be reinstated upon receipt of an application postmarked not later than January thirty-first. Delinquent renewal requests not postmarked on or before January thirty-first require that a new application be submitted under the guidelines in effect for the current period.
(E) All fees are nonrefundable.
. Application to establish cemetery; license change application incident to purchase of existing cemetery. [SC ST SEC 40-8-90]
(A) A legal entity wishing to establish a cemetery shall file a written application for authority to do so with the board on forms prescribed and provided by the department.
(1) Upon receipt of the application and a nonrefundable application fee, the board shall cause an investigation to be made to establish the following criteria for approval of the application:
(a) creation of a legal entity to conduct a cemetery business and the proposed financial structure;
(b) establishment and maintenance of an irrevocable care and maintenance trust fund agreement with a trust institution doing business in this State, with an initial deposit of not less than fifteen thousand dollars and a bank cashier's or certified check attached for the amount and payable to the trustee with the trust executed by the applicant and accepted by the trustee, conditioned only upon the approval of the application;
(c) presentation of a plat of the land to be used for a cemetery showing the county or municipality and the names of roads and access streets or ways;
(d) designation by the legal entity, wishing to establish a cemetery, of a general manager who must be a person having had not less than two years' experience in the cemetery business;
(e) presentation of development plans sufficient to ensure the community that the cemetery shall provide adequate cemetery services and that the property is suitable for use as a cemetery.
(2) The board, after receipt of the investigating report and within ninety days after receipt of the application, shall grant or refuse to grant the authority to organize a cemetery.
(3) If the board intends to deny an application, it shall give written notice to the applicant of its intention to deny. The notice shall state a time and place for a hearing before the board and a summary statement of the reasons for the proposed denial. The notice of intent must be mailed by certified mail to the applicant at the address stated in the application at least fifteen days before the scheduled hearing date. Within thirty days of the hearing, the board must provide the applicant with its written decision regarding its intent to deny the application. An appeal from the board's decision must be made in accordance with the Administrative Procedures Act.
(4) If the board intends to grant the authority, it shall give written notice that the authority to organize a cemetery has been granted and that a license to operate must be issued upon the completion of the:
(a) establishment of the irrevocable care and maintenance trust fund and receipt by the board of a certificate from the trust institution certifying receipt of the initial deposit required under this chapter;
(b) development, ready for burial, of not less than two acres, certified by inspection of the board or its representative;
(c) presentation of a description, by metes and bounds, of the acreage tract of the proposed cemetery, with evidence, by title insurance policy or certificate or certification by an attorney at law, that the applicant is the owner in fee simple of the tract of land which must contain not less than thirty acres, and may not mortgage, lease, or encumber it. In counties with a population of less than thirty-five thousand inhabitants according to the latest official United States census, the tract needs to be only fifteen acres;
(d) submission to the board, for its approval, a copy of the cemetery company's policies and procedures as provided for in this chapter.
(B) If a person proposes to purchase or acquire control of an existing cemetery either by purchasing the outstanding capital stock of any cemetery company or the interest of the owner and thereby to change the control of the cemetery company, the person shall make application on a form prescribed and provided by the board for a license change. The application shall contain the name and address of the proposed new owner. The application for a license change must be accompanied by an initial application fee.
(C) The provisions of subsection (A)(4)(c) relating to the minimum acreage do not apply when the governing body of a municipality which is within fifteen miles of the corporate limits of the City of Charlotte, North Carolina, and in which the cemetery is to be located passes an ordinance authorizing a cemetery with less than thirty acres of land when a license establishes an irrevocable trust with a trust corpus of at least fifteen thousand dollars and five acres of land, and the dedication of fifteen percent of all future sales to deposit in the trust on a quarterly basis.
. Records; adoption and notification of use, care, management and merchandise installation policies; service fees. [SC ST SEC 40-8-100]
(A) A record must be kept of every lot owner and every burial in the cemetery showing the date of purchase, date of burial, name of the person buried and of the lot owner, and space in which the burial was made. Sales, trust funds, accounting records, and other records of the licensee must be available at the licensee's principal place of business at reasonable times during regular business hours for examination by the department. In addition, the owner of a perpetual care cemetery shall have the records of the care and maintenance fund examined annually by a licensed public accountant and shall submit a copy of the report to the board or its designee.
(B) A record must be kept of each written complaint received, action taken, and disposition of the complaint. These records must be available for examination by the chairman or other authorized representative of the board.
(C) The owner of a cemetery shall adopt and enforce policies and procedures for the use, care, control, management, restriction, and protection of the cemetery and its parts and subdivisions, the use of property within a cemetery, the introduction and care of plants or shrubs within the grounds, the conduct of persons and prevention of improper assemblages, and other purposes considered necessary by the owner of the cemetery for the proper conduct of the business of the cemetery and the protection of the premises and the principles on which the cemetery was organized. The owner may amend or abolish the policies and procedures pursuant to subsection (H). The regulations must be printed or typewritten plainly, posted conspicuously, and maintained, subject to inspection by the board or its designee, at the usual place for transacting the regular business of the cemetery. The owner must also include in this posting a statement explaining that it is acceptable to purchase memorials and merchandise from vendors other than the cemetery if the items meet the reasonable policies and procedures established for those items by the cemetery. However, a cemetery licensed under this chapter may not adopt policies or procedures in conflict with this chapter or in derogation of the contract rights of lot owners.
(D) The owner of a cemetery shall establish reasonable policies and procedures regarding the type material, design, composition, finish, specifications, and installation of merchandise to be used in the cemetery. However, a policy or procedure may not be promulgated which:
(1) requires the owner or purchaser of a lot to purchase a monument or marker or the actual installation of a monument or marker from the cemetery company;
(2) restricts the right of the owner or purchaser of a lot to purchase a monument or marker or the actual installation of a monument from the vendor of his choice;
(3) charges the owner or purchaser of a lot a fee for purchasing a monument or marker or the actual installation of a monument from a vendor or charges a vendor a fee for delivering or installing the monument;
(4) discriminates against an owner or a purchaser of a lot who has purchased a monument or services related to installation of a monument from a vendor.
(E) Subsection (D) does not prohibit the cemetery from charging the owner or purchaser of a lot a reasonable fee for services actually performed by the cemetery relating to the installation, care, and maintenance of a monument or marker including, but not limited to, the survey, recording, and supervision of the installation of the monument or marker, whether or not it is purchased from a cemetery or an outside vendor.
(F) These policies and procedures must be posted conspicuously and maintained, subject to inspection by the department, at the usual place for transacting the regular business of the cemetery. A cemetery owner may not prevent the use of merchandise purchased by a lot owner or his representative, agent, heirs, or assigns from any source if the merchandise meets cemetery regulations.
(G) When an internment right is sold, the cemetery must provide a written listing of the current charges associated with all merchandise, memorials, and services that are then required by the cemetery. The cemetery also shall provide a list of cemetery services for which there may be a later charge. When a monument, marker, or memorial is sold by a cemetery company, the cemetery shall provide on the sales contract an itemized statement of the fees charged for installation, care, and maintenance of the monument, marker, or memorial. Fees charged for installation, care, and maintenance of a monument, marker, or memorial must be shown on the statement as charges separate from its price, and the statement shall disclose the amount of fees to be placed in trust by the cemetery company. The board shall promulgate regulations for the disclosure of fees and services.
(H) Policies and procedures established, amended, or abolished by a cemetery pursuant to this section must be submitted to the board for its approval.
SECTION 40-8-110. Care and maintenance trust funds; merchandise accounts; financial reports; penalties.[SC ST SEC 40-8-110]
(A) A cemetery company is not permitted to establish a perpetual care cemetery or to operate an already-established perpetual care cemetery without providing for the future care and maintenance of the cemetery, for which a trust fund must be established to be known as "The Care and Maintenance Trust Fund of (name of licensee)". If a perpetual care cemetery company refuses or otherwise fails to provide or maintain an adequate care and maintenance trust fund in accordance with the provisions of this chapter, the board, after thirty days, shall enforce compliance. The trust fund agreement shall contain the name, location, and address of both the licensee and the trustee, showing the date of the trust agreement and the deposit in the trust of the required funds. No person shall transfer the corpus of the care and maintenance trust fund without first obtaining written consent from the board.
(B) At the time of making a sale or receiving the initial deposit on the sale of grave space, niche, or mausoleum crypt, the cemetery company shall deliver to the person to whom the sale is made, or who makes the deposit, an instrument in writing which shall specifically state that the net income of the care and maintenance trust fund must be used solely for the care and maintenance of the cemetery, for reasonable costs of administering the care and maintenance, and for reasonable costs of administering the trust fund. This information must be included in the sales contract.
(C) A perpetual care cemetery shall deposit into the care and maintenance fund not less than forty dollars or a minimum of ten percent of the sale price, whichever is greater, per grave space and niche, and one hundred dollars per mausoleum crypt sold or a minimum of five percent of the sales price, whichever is greater. Also, for a memorial or grave marker for installation in a cemetery where perpetual care is promised or guaranteed, the cemetery shall transmit to the care and maintenance trust fund an amount equal to a minimum of eight cents per square inch of the memorial's or the marker's base. All deposits must be made within sixty days upon receipt of final payment.
(D) Within ninety days after the end of the calendar or fiscal year of the cemetery company, the trustee shall furnish adequate financial reports with respect to the care and maintenance trust fund on forms prescribed and provided by the board. The board shall require the trustee to make any additional financial reports the board considers advisable.
(E) The care and maintenance trust fund must be invested and reinvested by the trustee in the same manner as provided by law for the investment of other trust funds. The fees and other expenses of the trust fund may be paid from the corpus. To the extent that the net income is not sufficient to pay the fees and other expenses, they must be paid by the cemetery company.
(F)(1) Upon payment in full, a licensee receiving funds from the sale of merchandise for use in a cemetery in connection with the burial or commemoration of a deceased human being when the use of contracted merchandise is not requested or required immediately shall store or warehouse the contracted merchandise, or bond or deposit the funds in a merchandise account with a financial institution licensed to do business in this State. Notwithstanding any other provision of law, all funds deposited in the merchandise account must be held for the benefit of the purchaser of the merchandise. Any such merchandise account must be subject to Section 40-8-110(G).
The cemetery company shall maintain a record of each deposit into the account, identify the name of the purchaser, the amount of the actual costs to the seller, and the amount of money to be deposited, and maintain a copy of the contract for the merchandise. This section does not prohibit the licensee from commingling the deposits in a fund of this kind to manage and invest the funds.
(2) When a memorial, a mausoleum crypt, or other merchandise is sold in advance of need and not installed, delivered, or bonded until a later date, one hundred percent of the actual cost to the seller at the time of deposit must be placed in a merchandise account within sixty days after completion of the contract with interest to accrue and must not be withdrawn without the consent of the purchaser until the time of delivery or construction.
(3) The funds must be held in a merchandise account as to principal and income earned and must remain intact, until delivery of the merchandise is made by the cemetery company or other entity; however, any service fees charged by the administering financial institution may be deducted from the income. Upon delivery of the merchandise, the cemetery company or other entity shall certify these facts. Upon this certification, the amount of money on deposit to the credit of that particular contract, including principal and income, must be paid to the cemetery company or other entity.
(4) After payment in full and before delivery of merchandise, a purchaser may make written demand for a refund of the amount deposited in the merchandise account to the credit of the purchaser, and within ninety days of receipt of the written demand, the licensee shall deliver the merchandise or refund to the purchaser the amount on deposit to his credit. Upon the refund or delivery of merchandise, the cemetery company is relieved from further liability for this merchandise.
(G) The licensee, annually and within ninety days after the end of the calendar year, shall file a financial report, signed by a licensed accountant, of the merchandise account fund with the board on forms provided by the board setting forth the principal, investments, and payments made and the income earned and disbursed. The board may require the licensee to make additional financial reports the board considers advisable.
(H) The board may cause the examination of the business of a cemetery company or other entity writing contracts for the sale of the property or services described in this section. The written report of the examination must be filed in this office of the board. A person or an entity being examined shall produce the records of the company needed for the examination.
(I) A provision of a contract for the sale of merchandise described in this section which provides that the purchaser or beneficiary may waive this section is void.
(J) Cemetery owners shall have a full and complete schedule of charges for services provided by the cemetery plainly printed or typewritten, posted conspicuously, and maintained, subject to inspection and copying, at the usual place for transacting the regular business of the cemetery.
(K) A cemetery company or other entity failing to make required contributions to a care and maintenance trust fund or to a merchandise account fund is guilty of a misdemeanor and, upon conviction, must be punished pursuant to Section 40-8-190.
(L) If a report is not received within the required time, the board may levy and collect a penalty of not less than twenty-five dollars a day or more than one hundred dollars a day for each day of delinquency.
SECTION 40-8-120. Land requirements; conveyance and use of excess contiguous lands; transfer to municipality. [SC ST SEC 40-8-120]
(A) A licensee shall set aside a minimum of thirty acres of land for use as a cemetery, except as may otherwise be provided in this chapter, and may not mortgage, lease, or encumber it.
(B) The fee simple title in any land owned by the licensee as a cemetery, which lands are contiguous, adjoining, or adjacent to the minimum acreage described in subsection (A), may be sold, conveyed, or disposed of by the licensee for use by the new owner for purposes other than as a cemetery if no bodies have been previously interred and if any title, interest, or burial right which may have been sold or contracted to be sold in this land are reconveyed to the licensee before the consummation of any conveyance.
(C) A licensee may convey and transfer to a municipality or county its real and personal property, together with monies deposited with the trustee, if the municipality or county accepts responsibility for maintenance and prior written approval of the board is obtained.
(D) The provisions of subsections (A) and (B) relating to a requirement for minimum acreage do not apply to those cemeteries in existence before the effective date of this chapter. If a cemetery owns or controls a total of less than the minimum acreage, this cemetery may not dispose of any of the lands.
SECTION 40-8-130. Mausoleum and below ground crypt construction deadlines; burial vault placement; coastal and lowland exception. [SC ST SEC 40-8-130]
(A)(1) A cemetery company is required to start construction of that section of a mausoleum or bank of belowground crypts in which sales, contracts for sale, reservations for sales, or agreements for sales are being made within thirty-six months after the date of the first sale or refund the money. The construction of the mausoleum section or bank of belowground crypts must be completed within sixty months after the date of the first sale. Extensions for completion, not to exceed one year, may be granted by the board for good reasons shown.
(2) After construction has begun on the mausoleum section or bank of belowground crypts, the cemetery company shall certify the progress and expenditures and is entitled to withdraw funds from the mausoleum account to meet construction expenditures.
(3) If the mausoleum section or bank of belowground crypts is not completed within the time limits set out in this section, the board shall contract for and cause the project to be completed and paid for from the funds deposited to the project and the cemetery company must be liable for any shortage.
(4) In lieu of the payments to the mausoleum account the cemetery company may deliver to the board a performance bond in an amount and by surety companies acceptable to the board.
(B)(1) Burial vaults must be at least ten inches below the earth's surface. As used in this section, "burial vaults" includes caskets, grave liners, or other outer burial containers. It does not include markers, monuments, or crypts constructed in a mausoleum or columbarium.
(2) This section does not apply to cemeteries located in the coastal and lowland areas which are subject to tidal or surface flooding or have a high-level water table, except that where the water table is two feet or less from the surface, cemeteries not subject to tidal or surface flooding may place vaults level with the ground.
SECTION 40-8-140. Cemetery signs. [SC ST SEC 40-8-140]
All cemeteries in this State shall display a sign at each entrance containing letters not less than six inches in height stating "Perpetual Care" or "Endowment Care" or "No Perpetual Care" or "No Endowment Care" depending upon which method of operation the cemetery is using.
Those cemeteries which furnish perpetual care to some portions and no perpetual care to other portions shall display these signs on the appropriate sections of the cemetery to which the sign applies. Portions designated "Perpetual Care" cannot be changed to "No Perpetual Care" once the designation is made.
SECTION 40-8-150. Disciplinary action; grounds. [SC ST SEC 40-8-150]
In addition to grounds for disciplinary actions as set forth in Section 40-1-110, the board shall take disciplinary action against a licensee who:
(1) fails to pay the required fees;
(2) fails to make required reports;
(3) fails to remit to the care and maintenance trust fund or merchandise trust fund the required amounts;
(4) knowingly makes a false statement intended to influence or persuade;
(5) knowingly and continually makes flagrant misrepresentations or knowingly condones false promises by its cemetery agents or salesmen;
(6) wilfully violates this chapter or regulations promulgated by the board;
(7) acts in a fraudulent manner, whether of the same or a different character than specified in this section;
(8) fails to make required contributions to the care and maintenance trust fund or any other funds required to be established and maintained by this chapter.
SECTION 40-8-160. Dissemination of order finding basis for disciplinary action; fine. [SC ST SEC 40-8-160]
Upon a determination by the board that one or more of the grounds for disciplining a licensee exist, as provided for in Sections 40-8-150 and 40-1-110, the board may, in addition to the actions provided for in Section 40-1-120, impose a fine not to exceed ten thousand dollars. All final orders which are made public must be mailed to local and state professional associations, all firms and facilities with which the respondent is associated, states where the person has a license known to the board, and to any other source to which the board wishes to furnish this information.
SECTION 40-8-170. Voluntary surrender of license. [SC ST SEC 40-8-170]
A licensee who is under investigation for any of the grounds provided for in Section 40-8-150 for which the board may take disciplinary action may voluntarily surrender his license to the board in accordance with the provisions of Section 40-1-150.
SECTION 40-8-180. Review of Board actions. [SC ST SEC 40-8-180]
A person aggrieved by any action of the board may seek review of the decision in accordance with the provisions of Section 40-1-160.
SECTION 40-8-190. Punishment and fines for violation of this chapter. [SC ST SEC 40-8-190]
A person who operates a cemetery in this State in violation of this chapter or who knowingly submits false information to the board for the purpose of obtaining a license is guilty of a misdemeanor and, upon conviction, must be fined not less than two hundred fifty dollars or more than ten thousand dollars or imprisoned not less than thirty days or more than twelve months, or both.
SECTION 40-8-200. Cemeteries excepted from provisions of chapter. [SC ST SEC 40-8-200]
The provisions of this chapter do not apply to governmental cemeteries, nonprofit cemeteries, church cemeteries, nature preserve cemeteries, or family burial grounds.
SECTION 40-8-210. Licensing of existing cemeteries [SC ST SEC 40-8-210]
(A) A perpetual care cemetery licensed by the South Carolina Cemetery Board and operating in good standing on June 30, 1990, may continue to operate and must be granted a license by the South Carolina Perpetual Care Cemetery Board.
(B) A perpetual care cemetery established between July 1, 1990, and the effective date of this chapter may continue to operate and must be granted a license by the South Carolina Perpetual Care Cemetery Board, provided an Irrevocable Care and Maintenance Trust Fund Agreement with a trust institution doing business in this State has been properly entered into by the perpetual care cemetery, and a copy of the same is on file with the board.
(C) Effective January 1, 2003, all perpetual care cemeteries must be operated in accordance with the provisions of this chapter.
SECTION 40-8-220. Disclosure of conditions for free burial rights; basic maintenance requirements; religious code isolation designations. [SC ST SEC 40-8-220]
(A) A cemetery company which offers free burial rights to a person or group of persons, at the time of the offer, clearly shall state all conditions upon which the offer is made.
(B) Cemeteries must be maintained to present a cared-for appearance including, but not limited to, shrubs and trees pruned and trimmed, flower beds weeded, drives maintained, and lawns mowed when needed equivalent to once a week during grass growing season with ample rainfall.
(C) Cemetery companies may provide by their bylaws, regulations, contracts, or deeds the designations of parts of cemeteries for the specific use of persons whose religious code requires isolation.
SECTION 40-8-230. Severability. [SC ST SEC 40-8-230]
If any provision of this chapter or the application of this chapter to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
SECTION 40-8-240. Application of chapter to new public cemeteries. [SC ST SEC 40-8-240]
Except as provided in Section 40-8-200, no person including a cemetery company is permitted to establish a new public cemetery unless it is a perpetual care cemetery that meets all requirements of this chapter.
TITLE 44. HEALTH
CHAPTER 43. DISPOSITIONS OF HUMAN BODIES AND PARTS; POST-MORTEM EXAMINATIONS
ARTICLE 1. GENERAL PROVISIONS
SECTION 44-43-10. Applicability of implied warranties of merchantability and fitness. [SC ST SEC 44-43-10]
The implied warranties of merchantability and fitness are not applicable to a contract for the sale, procurement, processing, distribution, or use of human tissues including, but not limited to, corneas, bones or organs, whole blood, plasma, blood products, or blood derivatives. Human tissues, whole blood, plasma, blood products, and blood derivatives must not be considered commodities subject to sale or barter, and the transplanting, injection, transfusion, or other transfer of these substances into the human body are considered a medical service.
SECTION 44-43-20. Age restrictions for blood donors; parental permission. [SC ST SEC 44-43-20]
It is lawful for a person seventeen years old or older to donate his blood without the consent of his parents or guardian. However, it is unlawful for a person under the age of eighteen years to sell his blood without the consent of a parent or guardian.
SECTION 44-43-30. Donor gift forms and accompanying information. [SC ST SEC 44-43-30]
Whenever a person applies for the issuance, reissuance, or renewal of any class of driver's license, the Department of Motor Vehicles is authorized to furnish that person with a form, sufficient under the provisions of the Uniform Anatomical Gift Act, Article 5, for the gift of all or part of the donor's body conditioned upon the donor's death and a document containing a summary description and explanation of the act. If a person who is legally authorized desires to execute such a gift, the department may provide that person with appropriate assistance and the presence of the legally required number of witnesses.
SECTION 44-43-40. Notification of donation on driver's license. [SC ST SEC 44-43-40]
Donations and gifts of all or part of a person's body made at the time of application, issuance, reissuance, or renewal of a driver's license pursuant to this chapter must be noted on the person's driver's license. After a driver's license has been issued, reissued, or renewed, the department shall issue to each person who has notified the department that he is a donor under the Uniform Anatomical Gift Act a suitable emblem embedded within the person's driver's license to indicate his status as a donor. The notation does not constitute execution of a gift under the Uniform Anatomical Gift Act. The department is not the registry of anatomical gifts.
SECTION 44-43-50. Immunity. [SC ST SEC 44-43-50]
The Department of Motor Vehicles, its officers, and employees are immune from any civil liability for any acts or omissions in carrying out the provisions of Section 44-43-40.
ARTICLE 2. BONE MARROW DONOR PROGRAM
SECTION 44-43-60. Citation of article. [SC ST SEC 44-43-60]
This article may be cited as the Bone Marrow Donor Act.
SECTION 44-43-70. Bone marrow donor programs established; purpose; dissemination of information; recruitment of donors. [SC ST SEC 44-43-70]
(A) Bone marrow donor programs are established within the Medical University of South Carolina and within the University of South Carolina, School of Medicine. The purpose of each program is to educate citizens of the State about:
(1) the need for bone marrow donors;
(2) the procedures required to become registered as a potential bone marrow donor, including the procedures for determining the person's tissue type; and
(3) the medical procedures a donor must undergo to donate bone marrow.
(B) Special efforts must be made to educate and recruit minorities to volunteer as potential bone marrow donors. Dissemination of information and recruitment of bone marrow donors may be accomplished through use of the press, radio, and television, through the placement of educational materials in appropriate health care facilities, blood banks, and state and local agencies, and through any other means of public dissemination. The Medical University of South Carolina and the University of South Carolina, School of Medicine, in conjunction with the Department of Motor Vehicles, shall make educational materials available at all places where drivers' licenses are issued or renewed.
SECTION 44-43-80. Paid leaves of absence to employees to donate bone marrow. [SC ST SEC 44-43-80]
(A) An employer may grant paid leaves of absence to an employee who seeks to undergo a medical procedure to donate bone marrow. As used in this section, "employer" means a person or entity that employs twenty or more employees at least at one site within this State and includes an individual, corporation, partnership, association, nonprofit organization, group of persons, state, county, city, or other governmental subdivision. "Employee" means a person who performs services for hire for an employer for an average of twenty or more hours a week and includes all individuals employed at a site owned or operated by an employer but does not include an independent contractor.
(B) The combined length of paid leaves of absence requested by an employee must be determined by the employee but may not exceed forty work hours unless the employer agrees to a longer period of time. The employer may require verification by a physician of the purpose and length of each paid leave of absence requested by the employee to donate bone marrow. If there is a medical determination that the employee does not qualify as a bone marrow donor, the paid leave of absence granted to the employee before that medical determination is not forfeited.
(C) An employer may not retaliate against an employee for requesting or obtaining a paid leave of absence as provided by this section.
(D) This section does not prevent an employer from providing a paid leave of absence for bone marrow donations in addition to leave allowed under this section. This section does not affect an employee's rights with respect to any other employment benefit.
ARTICLE 3. DONATING EYES FOR RESTORATION OF SIGHT [OMITTED]
SECTIONS 44-43-110 to 44-43-160. Omitted by 2006 Act No. 334, § 1, eff June 2, 2006. [SC ST SEC 44-43-110]
SECTIONS 44-43-110 to 44-43-160. Omitted by 2006 Act No. 334, § 1, eff June 2, 2006. [SC ST SEC 44-43-140]
SECTIONS 44-43-110 to 44-43-160. Omitted by 2006 Act No. 334, § 1, eff June 2, 2006. [SC ST SEC 44-43-160]
ARTICLE 5. UNIFORM ANATOMICAL GIFT ACT
. Citation of article. [SC ST SEC 44-43-310]
This article may be cited as the Uniform Anatomical Gift Act.
. Definitions. [SC ST SEC 44-43-320]
As used in this article:
(1) "Bank or storage facility" means a facility licensed, accredited, or approved under the laws of any state for storage of human bodies or parts of human bodies.
(2) "Decedent" means a deceased individual and includes a stillborn infant or fetus.
(3) "Donor" means an individual who makes a gift of all or part of his body.
(4) "Hospital" means a hospital licensed, accredited, or approved under the laws of any state and includes a hospital operated by the United States Government, a state, or a subdivision of the United States Government or state, although not required to be licensed under state laws.
(5) "Part" includes organs, tissues, eyes, bones, arteries, blood, other fluids, and other portions of a human body, and "part" includes "parts".
(6) "Person" means an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership, or association or any other legal entity.
(7) "Physician" or "surgeon" means a physician or surgeon licensed or authorized to practice under the laws of any state.
(8) "State" includes any state, district, commonwealth, territory, insular possession, and any other area subject to the legislative authority of the United States of America.
(9) "Organ procurement organization" means the agency or organization designated by the United States Department of Health and Human Services as the organ procurement agency for the State.
. Authority to make gift; notice to donee of opposition to donation; examination to assure medical acceptability; status of rights of donee. [SC ST SEC 44-43-330]
(A) An individual of sound mind and eighteen years of age or more may give all or any part of his body for any purposes specified in Section 44-43-340, the gift to take effect upon death.
(B) Any of the following persons, in order of priority stated, when persons in prior classes are not available at the time of death, and in the absence of actual notice of contrary indications by the decedent or actual notice of opposition by a member of the same or a prior class, may give all or any part of the decedent's body for any purposes specified in Section 44-43-340:
(1) an attorney-in-fact appointed by the decedent in a durable power of attorney executed pursuant to Section 62-5-501, if the decision is within the scope of his authority;
(2) a spouse of the decedent unless the spouse and the decedent are separated pursuant to one of the following:
(a) entry of a pendente lite order in a divorce or separate maintenance action;
(b) formal signing of a written property or marital settlement agreement;
(c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the spouse and the decedent;
(3) a parent or adult child of the decedent;
(4) an adult sibling, grandparent, or adult grandchild of the decedent;
(5) a guardian of the person of the decedent at the time of his death;
(6) any other person authorized or under obligation to dispose of the body.
(C) If the donee has actual notice of contrary indications by the decedent, or that a gift by a member of a class is opposed by a member of the same or a prior class, the donee must not accept the gift. The persons authorized by this section may make the gift after death or immediately before death.
(D) A gift of all or part of a body authorizes any examination necessary to assure medical acceptability of the gift for the purposes intended.
(E) The rights of the donee created by the gift are paramount to the rights of others except as provided by Section 44-43-380(D).
. Qualified donees. [SC ST SEC 44-43-340]
The following persons may become donees of gifts of bodies or parts of bodies for the purposes stated:
(1) a hospital, surgeon, or physician for medical or dental education, research, advancement of medical or dental science, therapy, or transplantation;
(2) an accredited medical or dental school or college or university for education, research, advancement of medical or dental science, or therapy;
(3) a bank or storage facility for medical or dental education, research, advancement of medical or dental science, therapy, or transplantation;
(4) a specified individual for therapy or transplantation needed by that individual.
. Methods of making gift; revocability; determination of donor status at scene of accident. [SC ST SEC 44-43-350]
(A) A gift of all or part of the body under Section 44-43-330(A) may be made by will. The gift becomes effective upon the death of the testator without waiting for probate. If the will is not probated, or if it is declared invalid for testamentary purposes, the gift, to the extent that it has been acted upon in good faith, is nevertheless valid and effective.
(B) A gift of all or part of the body under Section 44-43-330(A) may also be made by document other than a will. The gift becomes effective upon the death of the donor. The document, which may be a card designed to be carried on the person, must be signed by the donor, in the presence of two witnesses who must sign the document in the donor's presence. If the donor cannot sign, the document may be signed for the donor at his direction and in the donor's presence, and in the presence of two witnesses who must sign the document in the donor's presence. Delivery of the document of gift during the donor's lifetime is not necessary to make the gift valid.
(C) The gift may be made to a specified donee or without specifying a donee. If the latter, the gift may be accepted by the attending physician as donee upon or following death. If the gift is made to a specified donee who is not available at the time and place of death, the attending physician upon or following death, in the absence of any expressed indication that the donor desired otherwise, may accept the gift as donee. The physician who becomes a donee under this subsection must not participate in the procedures for removing or transplanting a part.
(D) Notwithstanding Section 44-43-380(B), the donor may designate in his will, card, or other document of gift the surgeon or physician to carry out the appropriate procedures. In the absence of a designation, or if the designee is not available, the donee or other person authorized to accept the gift may employ or authorize any surgeon or physician for the purpose.
(E) A gift by a person designated in Section 44-43-330(B) must be made by:
(1) a document signed by that person or an oral designation witnessed by at least two people; or
(2) that person's telephonic or recorded message.
(F) If an organ and tissue donor card, donor driver's license, living will, durable power of attorney, or other document of gift evidencing a gift of organs or tissue, or any combination of these, has been executed, the consent required pursuant to Section 44-43-330 is not required to render the gift valid and effective.
(G) A gift of all or part of the body, regardless of the document making such gift or donation, that is not revoked by the donor before death, is irrevocable and does not require the consent or concurrence of any person after the donor's death to render the gift of the donor valid and effective.
(H) Coroners, law enforcement officers, and emergency personnel responding to the scene of an accident or trauma shall take reasonable steps to ensure that the driver's license, organ and tissue donor card, or other evidence that the individual is an organ or tissue donor and a medical alert bracelet, if any, of the individuals involved in the accident or trauma, accompany the individuals to the hospital or other health care facility.
. Delivery or deposit of document of gift or copy thereof. [SC ST SEC 44-43-360]
If the gift is made by the donor to a specified donee, the will, card, or other document, or an executed copy of one of these, may be delivered to the donee to expedite the appropriate procedures immediately after death; however, delivery is not necessary to the validity of the gift. The will, card, or other document, or an executed copy of one of these may be deposited in any hospital, bank, or storage facility or registry office that accepts them for safekeeping or for facilitation of procedures after death. On request of an interested party upon or after the donor's death, the person in possession shall produce the document for examination.
SECTION 44-43-370. Amendment or revocation of gift. [SC ST SEC 44-43-370]
(A) If a will, card, or other document, or executed copy of one of these, has been delivered to a specified donee, the donor may amend or revoke the gift by:
(1) the execution and delivery to the donee of a signed statement;
(2) an oral statement made in the presence of two persons and communicated to the donee;
(3) a statement during a terminal illness or injury addressed to an attending physician and communicated to the donee;
(4) a signed card or document found on his person or in his effects.
(B) A document of gift which has not been delivered to the donee may be revoked by the donor in the manner set out in subsection (A) or by destruction, cancellation, or mutilation of the document and all executed copies of the document.
(C) A gift made by a will may also be amended or revoked in the manner provided for amendment or revocation of wills, or as provided in subsection (A).
SECTION 44-43-380. Acceptance or rejection by donee; funeral service; removal of donated parts; determination of time of death; immunity; autopsy laws. [SC ST SEC 44-43-380]
(A) The donee may accept or reject the gift. If the donee accepts a gift of the entire body, the donee may, subject to the terms of the gift, authorize embalming and the use of the body in funeral services. If the gift is of a part of the body, the donee, upon the death of the donor and prior to embalming, shall cause the part to be removed without unnecessary mutilation. After removal of the part, custody of the remainder of the body vests in the surviving spouse, next of kin, or other persons under obligation to dispose of the body.
(B) The time of death must be determined by a physician who attends the donor at his death, or, if none, the physician who certifies the death. This physician must not participate in the procedures for removing or transplanting a part.
(C) A person who acts in good faith in accord with the terms of this article, or under the anatomical gift laws of another state, is not liable for damages in any civil action or subject to prosecution in any criminal proceeding for his act. However, immunity from civil liability does not extend to cases of provable malpractice on the part of a physician, surgeon, or other medical attendant.
(D) The provisions of this article are subject to the laws of this State prescribing powers and duties with respect to autopsies.
SECTION 44-43-400. Construction. [SC ST SEC 44-43-400]
This article must be liberally construed to effectuate the wishes of the donor.
SECTION 44-43-410. Organ donations where donee not specified by donor. [SC ST SEC 44-43-410]
If an anatomical gift is made in this State of an organ for transplantation purposes for which the donor does not name a specific donee and if the organ is deemed suitable for transplantation to an individual, the organ must be donated to the organ procurement organization designated by the United States Department of Health and Human Services as the organ procurement agency for the State. The organ procurement organization shall use its best efforts to determine if there is a suitable recipient in this State.
SECTION 44-43-420. Reciprocal agreements for sharing organs with other states; restrictions and exceptions. [SC ST SEC 44-43-420]
(A) The organ procurement organization may enter into reciprocal agreements for the sharing of organs with qualified organ procurement organizations in other states that the organ procurement organization considers advisable, necessary, or expedient. However, before the organ procurement organization enters into a reciprocal agreement, the proposed agreement must be approved by the Organ Procurement and Transplantation Network under contract to the United States Department of Health and Human Services.
(B) Except as may otherwise be provided for by an agreement entered into pursuant to subsection (A), the organ procurement organization may only transfer an organ to an out-of-state organ procurement organization or suitable out-of-state recipient for transplantation only if a suitable recipient in this State cannot be found in a reasonable amount of time.
ARTICLE 6. UNIFORM DETERMINATION OF DEATH ACT
SECTION 44-43-450. Short title. [SC ST SEC 44-43-450]
This act may be cited as the Uniform Determination of Death Act.
SECTION 44-43-460. When individual is deemed to be dead; standards applicable to determination. [SC ST SEC 44-43-460]
An individual who has sustained irreversible cessation of circulatory and respiratory functions or irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards.
ARTICLE 7. DISTRIBUTION OF DEAD BODIES FOR SCIENTIFIC PURPOSES
SECTION 44-43-510. Board for distribution and delivery of dead human bodies; composition. [SC ST SEC 44-43-510]
The faculty members of the departments of anatomy and surgery of the Medical University of South Carolina and the University of South Carolina, School of Medicine, or any other colleges or schools of this State authorized by law to teach medical science and issue diplomas, constitute a board for the distribution and delivery of dead human bodies as and for the purpose provided in this article.
SECTION 44-43-520. Adoption of rules and regulations; records. [SC ST SEC 44-43-520]
The board may adopt rules and promulgate regulations for its government and the proper discharge of its functions. The board shall keep a record of its proceedings and particularly of all bodies received and distributed. These records must be open at all times to the inspection of each member of the board and the Attorney General and the solicitor of each circuit in the State.
SECTION 44-43-530. Dead bodies available to board; notification of availability. [SC ST SEC 44-43-530]
Each officer, agent, and servant of every city in the State and of every almshouse, prison, morgue, hospital, jail, or other public institution in cities having charge or control of any dead human body that is required to be buried at the public expense and every officer or other person having charge or control of the body of any person upon whom the sentence of death for crime has been executed under the law shall notify the board, or the person or persons as may, from time to time, be designated by the board or the board's authorized officer or agent, whenever and as soon as a body comes to the person's possession, charge, or control and shall, without fee or reward, deliver the body and permit the board and its agents, and physicians and surgeons as may, from time to time, be designated by the board, to take and remove the body to be used for the advancement of medical science.
SECTION 44-43-540. Dead bodies not available to board. [SC ST SEC 44-43-540]
Notice is not required to be given and a body must not be delivered if a person claiming to be, and satisfying the authorities in charge of the body that he is, of kin or related by marriage to the deceased claims the body for burial and pays the burial expenses; and notice is not required to be given for the body to be delivered if the deceased was a traveler who died suddenly.
SECTION 44-43-550. Distribution of bodies. [SC ST SEC 44-43-550]
The bodies received must be distributed by the board to and among medical colleges and schools of the State and physicians and surgeons as the board may designate. The colleges and schools first must be supplied with bodies needed for lectures and demonstration. The remaining bodies must be distributed equitably among the physicians and surgeons; however, in equitable distribution of the bodies, the physicians and surgeons of the city where the death of the person took place have prior right to receive the body. The board, instead of by themselves or through their agents receiving and delivering bodies, may, from time to time, either directly or by their officers or agents, designate physicians and surgeons to receive the bodies and the number each shall receive. For the purpose of the distribution contemplated by this section, a body must be held, subject to the order of the board or its authorized agent, in the city where death occurs not less than twenty-four hours.
SECTION 44-43-560. Conveyance of bodies. [SC ST SEC 44-43-560]
The board may employ a carrier or carriers for conveyance of bodies, which must be well enclosed in a suitable case and carefully deposited, free from public observation. Every carrier shall obtain a receipt by name or, if the person be unknown, by a description for each body delivered by the carrier and deposit the receipt with the board or its authorized agent. After the bodies have been sufficiently used for the purposes of instruction, the bodies must be decently and respectfully disposed of by the university, college, physicians, or surgeons, as the case may be, receiving them.
-570 Omitted by 2006 Act No. 334, § 1, eff June 2, 2006. [SC ST SEC 44-43-570]
SECTION 44-43-580. Traffic in dead bodies; penalty; authorization to traffic in anatomical material and pathological specimens. [SC ST SEC 44-43-580]
(A) It is unlawful for a person to sell or buy a dead human body or in any way to traffic in dead human bodies.
(B) A person who violates subsection (A) is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or, in the discretion of the court, be imprisoned not more than one year; however, the board may, on the application of any person, empower that person to import into this State and traffic in anatomical material and pathological specimens as the board may designate.
SECTION 44-43-590. Penalties. [SC ST SEC 44-43-590]
If a person fails or refuses to perform any duty imposed upon him by this article the person must, for every failure or refusal, be fined not less than one hundred or more than five hundred dollars.
ARTICLE 9. POST-MORTEM EXAMINATIONS
SECTION 44-43-710. Consent; who may give consent. [SC ST SEC 44-43-710]
A pathologist or a licensed physician or surgeon may conduct a postmortem examination on a dead human body when consent is given in writing by the person prior to his death or when consent is given by the spouse of the deceased; but if the spouse at the time of death was living apart from the deceased, or, if there is no spouse surviving, the consent may be given by whichever one of the next of kin, as determined by law of this State, assumes custody of the body for burial purposes; however, the autopsy must not be performed under a consent given by a person if, before the autopsy is performed, any other next of kin objects in writing to the person by whom the autopsy is to be performed. If two or more persons assume custody of the body, consent of one of them is sufficient. If no next of kin assumes custody of the body for burial purposes, consent may be given by the person who assumes custody of the body for burial. If all of the next of kin are minors, the consent of a minor who is sixteen years of age or older is sufficient. A consent purporting to have been given by a person authorized to give consent is conclusively presumed to have been given by the person.
SECTION 44-43-720. Consent required for certain autopsies and postmortem examinations; use of body parts restricted; form of consent. [SC ST SEC 44-43-720]
(A) Except for an autopsy or postmortem examination ordered by a coroner or medical examiner, no autopsy or postmortem examination may be performed unless the person authorizing the autopsy or postmortem examination has given informed consent to the procedure. The person giving the informed consent must be given the opportunity to give informed consent and authorize the procedure on a witnessed, written consent form using language understandable to the average lay person after face-to-face communication with a physician about the procedure. If the person authorizing the procedure is unable to consent in person, consent may be given through a recorded telephonic communication.
(B) In performing an autopsy or postmortem examination, no body parts, as defined in Section 44-43-320, removed from the body may be used for any purpose other than to determine the cause or manner of death unless the person authorizing the autopsy or postmortem examination has given informed consent to the procedure. The person giving the informed consent must be given the opportunity to give informed consent on a witnessed, written consent form using language understandable to the average lay person after face-to-face communication with a physician about the procedure. If the person authorizing the procedure is unable to consent in person, consent may be given through a recorded telephonic communication.
ARTICLE 11. HOSPITAL POLICY AND PROTOCOL FOR ORGAN AND TISSUE DONATION
SECTION 44-43-910. Definitions. [SC ST SEC 44-43-910]
As used in this article:
(1) "Brain death" means irreversible cessation of all functions of the brain, including the brain stem, as determined in accordance with accepted medical standards.
(2) "Hospital" means a hospital licensed, accredited, or approved under the laws of this State and includes a hospital operated by the United States or the State or its subdivisions, although not required to be licensed under state law.
(3) "Potential organ or tissue donor" means a person who has died or is dying in circumstances that give rise to a reasonable medical belief that the person will meet the medical criteria for donation of at least one organ including, but not limited to, the heart, lung, liver, pancreas, and kidneys or any tissue including, but not limited to, heart valves, eyes, bone, cartilage, skin, ligaments, tendons, and fascia.
(4) "Organ and Tissue Procurement Organization" means the organ procurement organization designated to perform organ recovery services in South Carolina by the United States Department of Health and Human Services which also has the capability to procure tissues.
SECTION 44-43-920. Organ and tissue donor policies and continuing education. [SC ST SEC 44-43-920]
A hospital shall establish policies on organ and tissue donation, as well as on related continuing education, in accordance with applicable federal and state laws and regulations.
SECTION 44-43-930. Notification of organ procurement organization. [SC ST SEC 44-43-930]
When death is imminent or has occurred, the hospital shall notify the organ procurement organization in a timely manner in accordance with applicable federal and state laws and regulations.
SECTION 44-43-940. Collaboration in support of donation process. [SC ST SEC 44-43-940]
All relevant hospital administration and staff shall collaborate with the organ and tissue procurement organization in a cooperative effort to support and promote the donation process.
SECTION 44-43-945. Determination of appropriateness of donation; contacting person authorized to give consent. [SC ST SEC 44-43-945]
(A) If upon referral of a potential organ or tissue donor, the organ and tissue procurement organization determines that the donation is not appropriate based on established medical criteria, this determination must be noted by hospital personnel on the patient's record. Within two hours of this determination or within two hours of a patient's death and the deceased patient's next-of-kin designating a funeral director, the hospital shall notify the funeral director of this designation and when the body of the deceased will be made available to the funeral director. If the organ and tissue procurement organization determines that the patient is a suitable candidate for organ or tissue donation, or both, a representative of the organ and tissue procurement organization or a person designated by the organ and tissue procurement organization shall contact the appropriate person authorized to consent to the donation pursuant to Section 44-43-330 to ascertain if the deceased is an organ or tissue donor, or both, and if not, to inform the person about and the procedures for organ and tissue donation.
(B) Discretion and sensitivity to family circumstances and religious beliefs must be used in all contacts with family members regarding organ and tissue donation.
SECTION 44-43-950. Consent. [SC ST SEC 44-43-950]
As provided in Section 44-43-330, persons in the stated order of priority may give consent for organ or tissue donation.
SECTION 44-43-960. Permission of, or referral by, medical examiner or coroner. [SC ST SEC 44-43-960]
If a death is under the jurisdiction of the coroner or medical examiner, as provided in Section 17-5-530, written or verbal permission must be obtained by the organ and tissue procurement organization from the coroner or medical examiner before organ or tissue recovery. A coroner or medical examiner shall refer to the designated organ and tissue procurement organization in South Carolina as a potential donor a person whose death occurs outside of a hospital.
SECTION 44-43-970. Exclusive agency for receipt of referrals and donations. [SC ST SEC 44-43-970]
(A) LifePoint, Inc., within the territory designated pursuant to federal law, is the exclusive agency to receive potential organ donor referrals and organ donations and tissue referrals and tissue donations so long as this entity remains and is certified by the Centers for Medicare and Medicaid Services and abides by the regulations of the Organ Procurement Transplantation Network and the United Network for Organ Sharing or its successor.
(B) LifePoint, Inc., annually by April first shall submit a report to the General Assembly concerning its activities and the incidence of organ and tissue donation.
SECTION 44-43-980. Omitted by 2006 Act No. 334, § 1, eff June 2, 2006. [SC ST SEC 44-43-980]
SECTION 44-43-985. Fees. [SC ST SEC 44-43-985]
The organ and tissue procurement organization may not assess a charge, fee, or cost against another procurement agency for referral of an organ or tissue donor. However, reasonable charges for related services pursuant to contractual relationships are permissible.
SECTION 44-43-1000. Documentation required in medical records of patients identified as potential donors. [SC ST SEC 44-43-1000]
The following must be documented in the medical records of patients identified as potential organ or tissue donors:
(1) why a family is not contacted to request organ or tissue donation;
(2) when a family is contacted to request organ or tissue donation and the outcome of the contact;
(3) disposition of a referral to a procurement agency, including acceptance or rejection by the agency. The appropriate procurement agency shall notify the referring hospital of the disposition;
(4) other documentation as may be required by federal or state law or regulation.
SECTION 44-43-1010. Costs pertaining to donation paid by procurement agency. [SC ST SEC 44-43-1010]
All hospital and physician charges following declaration of brain death that pertain to organ and tissue donation must be paid by the appropriate procurement agency and must not be charged to the donor's estate. Procurement costs incurred by the agency must not be charged to the donor's estate.
SECTION 44-43-1015. Death record reviews. [SC ST SEC 44-43-1015]
Each hospital shall work collaboratively with the organ and tissue procurement organization in conducting periodic death record reviews.
ARTICLE 13. GIFT OF LIFE TRUST FUND
SECTION 44-43-1310. Nature and purpose of Gift of Life Trust Fund. [SC ST SEC 44-43-1310]
There is established the Gift of Life Trust Fund, an eleemosynary corporation, the resources of which must be used to promote and encourage organ and tissue donation and education and to assess and assist with the needs of transplant recipients in South Carolina. The trust fund may accept gifts, bequests, and grants from individuals, foundations, organizations, associations, and any other source. The trust fund supplements and augments services provided by state agencies and does not take the place of these services.
SECTION 44-43-1320. Administration of Trust Fund; board of directors. [SC ST SEC 44-43-1320]
(A) The Gift of Life Trust Fund is to be administered by a board of directors appointed by the Governor, with the advice and consent of the Senate, and is composed of:
(1) one representative from LifePoint, Inc.;
(2) one representative from a civic organization that promotes organ or tissue donation or both;
(3) four members representing organ, tissue, and eye recipients, families of recipients, and families of donors who are residents of South Carolina; of these four members, one each must represent the Lowcountry, Pee Dee, Midlands, and Piedmont regions of the State;
(4) one forensic pathologist who is a resident of and who is licensed to practice medicine in South Carolina;
(5) four at-large members who have demonstrated an interest in organ, tissue, and eye donation and education and who are residents of this State.
(B) Members shall serve terms of four years and until successors are appointed and qualify. A board member may be removed by the Governor in accordance with Section 1-3-240(B). Members may serve no more than two full terms, except that there is no limit to the number of terms that a forensic pathologist may serve. Vacancies must be filled in the manner of the original appointment for the unexpired portion of the term.
SECTION 44-43-1330. Reimbursement of expenses of board numbers. [SC ST SEC 44-43-1330]
Board members are not entitled to per diem but may be reimbursed for mileage and all necessary and reasonable expenses incurred in the performance of their duties under this article.
SECTION 44-43-1340. Authority of trust fund board; particular powers. [SC ST SEC 44-43-1340]
In administering this article, the board is authorized, but not limited to:
(1) develop and implement educational programs and campaigns to increase organ and tissue donation in South Carolina;
(2) make policy recommendations for the promotion of organ and tissue donation in South Carolina;
(3) assess the needs of transplant recipients and establish priorities and develop goals and objectives to assist transplant recipients who are residents of South Carolina;
(4) determine how the monies in the fund are to be disbursed;
(5) acquire and hold property;
(6) invest trust monies, including pooled investment funds maintained by the State;
(7) utilize local resources including volunteers when appropriate.
SECTION 44-43-1350. Election of chairman; adoption of rules; meetings; quorum. [SC ST SEC 44-43-1350]
The board shall elect a chairman from among its members and shall adopt rules for the governance of its operations. The board shall meet at least semiannually. Six members constitute a quorum.
SECTION 44-43-1360. Funds expendable to administer Gift of Life Trust Fund. [SC ST SEC 44-43-1360]
The board may employ a director and other staff as necessary to carry out the provisions of this article; however, administration of this article may not exceed twenty percent of the total funds credited to the trust fund, excluding the administrative fee paid to the Department of Revenue pursuant to Sections 12-6-5065 and 59-1-143.
SECTION 44-43-1370. Use of trust funds. [SC ST SEC 44-43-1370]
Funds credited to the trust fund, excluding the administrative fees paid to the Department of Revenue, may be used for, but are not limited to:
(1) administration of this article including, but not limited to, personnel and board expenses;
(2) development and promotion of organ and tissue donor public awareness educational programs in cooperation with LifePoint, Inc., and the United Network for Organ Sharing;
(3) encouraging the incorporation of organ and tissue donation education into the medical and nursing school curriculums of the Medical University of South Carolina and the University of South Carolina, School of Medicine; if funds are provided to a university for this educational purpose, the university annually shall conduct a survey to determine if attitudes of its students and graduates have been altered by the curriculum. The results of the survey must be submitted to the trust fund;
(4) a reserve fund in an interest-bearing account with five percent of the funds received by the trust fund annually to be placed in this account. No withdrawals may be made from this account until the minimum balance has reached one hundred thousand dollars and then these funds may only be used in years in which donations do not meet the average normal operating cost incurred by the trust fund and funds are needed to meet expenses. Once the balance in the reserve funds reaches one hundred thousand dollars, excess funds earned by interest and yearly allocations may be used at the discretion of the board to cover operating costs and to provide additional funds.
SECTION 44-43-1380. Annual report of board to General Assembly. [SC ST SEC 44-43-1380]
The trust fund board annually by February first shall submit a report to the General Assembly concerning its expenditures of fund monies, activities, and the incidence of organ and tissue donation.
TITLE 32. CONTRACTS AND AGENTS
CHAPTER 7. PRENEED FUNERAL CONTRACTS
. Definitions. [SC ST SEC 32-7-10]
As used in this chapter, unless the context requires otherwise:
(1) "Board" means the State Board of Financial Institutions;
(2) "Financial institution" means a bank, trust company, or savings and loan association authorized by law to do business in this State;
(3) "Preneed funeral contract" means a contract, which has for its purpose the furnishing or performance of funeral services
, or the furnishing or delivery of personal property, merchandise, services of any nature in connection with the final disposition of a dead human body, to be furnished or delivered 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 lot, crypt, niche, mausoleum, grave marker or monument;
(4) "Seller" means a licensed funeral director in this State who is directly employed by the provider;
(5) "Provider" means a funeral home licensed in this State which is the entity providing services and merchandise pursuant to item (3) and is designated trustee of all funds;
(6) "Purchaser" means the person who is obligated to make payments under a preneed contract;
(7) "Beneficiary" means the person who is to be the subject of the disposition, services, facilities, or merchandise described in a Preneed Contract subject to item (3).
(8) "Common trust fund" means a trust in which the proceeds of more than one funeral contract may be held by the trustee.
. Preneed funeral contracts; management of funds; contents of contract; substitutions for merchandise selected. [SC ST SEC 32-7-20]
(A)(1) All payments of money made to any person upon any agreement or contract or any series or combination of agreements or contracts, but not including the furnishing of cemetery lots, crypts, niches, mausoleums, grave markers or monuments, 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, to be furnished or delivered at a time determinable by the death of the person whose body is to be disposed of, are held to be trust funds.
(2) When a vault is sold preneed by a seller in accordance with this chapter, one hundred percent of all funds received by the seller at the time of payment must be held as trust funds and deposited in a financial institution.
(3) The provider receiving the payments is declared to be a trustee of it, and shall deposit all payments in a financial institution. All of the interest, dividends, increases, or accretions of whatever nature earned by the funds deposited in a trust account must remain with the principal of the account and become a part of it, subject to all of the regulations concerning the principal of the fund contained in this section. After the death of the beneficiary, the principal and all accrued earnings must be applied to the cost in effect at the time of death of the services and merchandise specified in the contract. Any shortfall in the funds must be paid by the next of kin or the estate of the beneficiary and any excess must be refunded to the estate of the beneficiary. All taxes on the fund must be paid in accordance with the Internal Revenue Code and applicable rules and regulations.
(B) The provider may enter into a contract and guarantee to provide services and merchandise as provided for in Section 32-7-10(3) in the future at no additional cost to the purchaser when the full contract price amount is paid to the provider. After the death of the beneficiary of a guaranteed-price contract, the principal and all accrued earnings must be paid to the provider to cover the costs in effect at the time of death of the services and merchandise specified in the contract.
(C) All payments made under the agreement, contract, or plan are and remain trust funds with the financial institution until the death of the beneficiary 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 Section 32-7-30.
(D) The funds may not be paid by the financial institution until a certified death certificate and a certified statement is furnished by the provider to the financial institution setting forth that all of the terms and conditions of the agreement have been fully performed. The provider has no obligation to deliver any merchandise or perform any services for which payment in full has not been deposited in the financial institution. Any amounts deposited which do not constitute payment in full may be credited against the cost of merchandise or services contracted for by representatives of the deceased. Any balance remaining in the fund after the payment for the merchandise and services as set forth in the agreement, contract, or plan must be paid to the estate of the beneficiary of the agreement, contract, or plan pursuant to Section 32-7-20(A) or paid to the provider of a contract pursuant to Section 32-7-20(B).
(E) Subsections (A), (B), (C), and (D) do not apply to contracts for funeral service or merchandise funded by insurance policies which are otherwise regulated by law; however, Section 38-55-330 governs the conduct of a licensed funeral director employed by a licensed funeral home in South Carolina, except a licensed funeral director employed by a licensed funeral home owned by a company not chartered in the United States, who also is licensed as an agent for a life insurer doing business in this State.
(F) The board shall approve forms for preneed funeral contracts. All contracts must be in writing, and no contract form may be used without prior approval of the board. Any use or attempted use of an oral preneed funeral contract or any written preneed funeral contract in a form not approved by the board is considered to be a violation of this chapter by the person selling services or merchandise under its provisions; provided, however, that minor modifications to a contract form furnished or approved by the board shall not invalidate the contract.
(G) All contracts must contain the name and Funeral Service License Number of the provider and seller.
(H) All funds received by the provider pursuant to the provisions of a contract governed by this chapter must be placed in trust in a federally insured account. The trustee may establish an individual trust for each contract or a common trust fund may be established with a financial institution which would maintain accounting for each individual deposit and furnish a quarterly report to the provider. The trust accounts must be carried in the name of the provider but accounting records must be maintained showing the amounts deposited and invested, and interest, dividends, increases, and accretions earned on it, with respect to each purchaser's contract. The trustee has the authority to transfer trust funds from one financial institution to another; provided, that the trustee must notify the purchaser within thirty days thereafter, or the beneficiary, if the purchaser dies.
(I) All earnings accrue in the trust except that the provider may withdraw ten percent of the annual earnings of the trust to cover trust administration.
(J) No preneed trust funds or earnings may be used as collateral, pledged, or in any way encumbered or placed at risk.
(K) If the purchaser fails to make payments as provided in the contract, the contract is voidable at the option of the provider and he may retain ten percent of the amount paid on the contract as a fee and return the remaining funds to the purchaser.
(L) If the merchandise selected is not available at the time of need, the provider shall make available to the purchaser or his representative merchandise of equal or greater value. The purchaser or his representative is entitled to approve any substitutions.
. Irrevocable contracts. [SC ST SEC 32-7-25]
The contracts governed by the provisions of this chapter may be made irrevocable at the option of the purchaser. If the purchaser selects an irrevocable contract he must be allowed thirty days to examine the contract. Within that period, the purchaser may revoke his decision to enter this contract and all monies paid by the purchaser must be refunded. An irrevocable trust funded preneed funeral contract executed under Chapter 7 of Title 32 may not be converted to an insurance funded preneed funeral contract. If a premium is paid on an insurance funded preneed irrevocable contract and the contract is revoked within thirty days, the full premium must be refunded.
. Refunds upon written demand. [SC ST SEC 32-7-30]
(A) Within thirty days of receipt of a written demand for refund by any purchaser who has paid funds for a preneed funeral contract pursuant to Section 32-7-20(A) or (B) the trustee shall refund to the purchaser the entire amount paid together with all interest, dividends, increases, or accretions earned on the fund except that the provider will retain ten percent of the earnings in the portion of the final year before termination.
(B) After making refund to the trustee pursuant to the provisions of subsection (A) or (B), the financial institution is relieved from further liability to any party.
(C) This section does not apply if the contract is irrevocable.
SECTION 32-7-35. Transfer of preneed funeral contracts. [SC ST SEC 32-7-35]
A preneed funeral contract may be transferred to another provider only at the prior written request of the purchaser or the beneficiary if the purchaser dies before the beneficiary, or pursuant to Section 32-7-45. The selling provider must be paid a fee equal to ten percent of the contract face amount. The selling provider also must be paid ten percent of the earnings in that portion of the final year before transfer.
A preneed funeral contract, whether revocable or irrevocable, funded by an insurance policy, may be transferred to another provider only at the prior written request of the purchaser or the beneficiary if the purchaser dies before the beneficiary or pursuant to Section 32-7-45. The selling provider may not collect, charge, or receive a fee in connection with this transfer of a preneed funeral contract funded by an insurance policy. An irrevocable preneed funeral contract funded by an insurance policy may be transferred to another provider only at the prior written request of the purchaser or the beneficiary if the purchaser dies before the beneficiary or pursuant to Section 32-7-45.
SECTION 32-7-40. Deposit of trust funds. [SC ST SEC 32-7-40]
All trust funds mentioned in this chapter must be deposited in the name of the trustee, as trustee, within thirty days after receipt.
SECTION 32-7-45. Transfer of contracts where provider goes out of business; authority of Board to accomplish transfer upon provider's failure to do so. [SC ST SEC 32-7-45]
(A) If a provider goes out of business or the provider's license issued by the State Board of Funeral Service is cancelled or the license to sell preneed funeral contracts is cancelled and application for a replacement license has not been filed, the provider shall within thirty days submit to the board a complete listing of names and addresses of all active contracts in its possession. The provider shall also notify all contract purchasers in writing that their contracts are to be transferred to another licensed provider of the purchaser's choice. The former licensee shall then transfer the contracts and notify the board of the providers selected within sixty days of the cancellation of the preneed license. All contracts funded by burial insurance or trust funds together with interest are to be transferred. The selling provider forfeits its right to any monies it otherwise would be entitled to. If the provider fails to provide for the transfer of contracts within sixty days, the purchasers may directly request the financial institution to transfer the account balance to another provider selected by the purchaser with payment jointly to the provider and its financial institution. The purchaser may also request that an insurance company assign another provider as beneficiary for the insurance policy.
(B) The board has jurisdiction over the provider and the burial insurance policy or trust funds together with interest of all active contracts and has the authority to accomplish the necessary transfer of preneed funeral contracts in all cases in which the purchaser has failed to effectuate the transfer to a licensed provider within six months of the date the provider's license issued by the State Board of Funeral Service is cancelled or the license to sell preneed funeral contracts is cancelled and an application for a replacement license has not been filed.
SECTION 32-7-50. License required; application, issuance, and revocation; service charges and listing of contracts sold to be forwarded to Board; penalty. [SC ST SEC 32-7-50]
(A) Without first securing a license from the board a person may not accept or hold payments made on a preneed funeral contract, except financial institutions.
(1) The State Board of Funeral Service must revoke the license of a funeral home or funeral director, or both, if the funeral home or funeral director: (a) accepts funds for a preneed funeral contract or other prepayment of funeral expenses without a license to sell preneed funeral contracts, or (b) is licensed to sell preneed funeral contracts and fails to deposit the funds collected in trust in a federally insured account as required by Section 32-7-20(H).
(2) Application for a license must be in writing, signed by the applicant and verified on forms furnished by the board. Each application must 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 of it if the applicant is a firm, partnership, association, or corporation. A license issued pursuant to the application is valid only at the address stated in the application for the applicant or at a new address approved by the board.
(3) If a licensee cancels the license and later applies for a new license, the board must investigate the applicant's books, records, and accounts to determine if the applicant violated the provisions of this chapter during the time he did not have a license.
(B) Upon receipt of the application, a one-time payment of a license fee, and the deposit in an amount to be determined by the board of the security or proof of financial responsibility as the board may determine, the board shall issue a license unless it determines that the applicant has made false statements or representations in the application, or is insolvent, or has conducted his business in a fraudulent manner, or is not duly authorized to transact business in this State, or if, in the judgment of the board, the applicant should be denied a license for some other good and sufficient reason.
(C) A person selling a preneed funeral contract shall collect from each purchaser a service charge, and all fees collected must be remitted by the person collecting them to the board at least once each month.
(1) With the fees collected, the person also must provide the board with a listing of each contract sold. If the listing or fees collected are not sent to the board within sixty days of the last day of the month when the contract was sold, the board must assess a civil penalty of ten dollars for each contract not reported to the board. The monies collected as civil penalties must be deposited in the Preneed Funeral Loss Reimbursement Fund. Upon its own initiative or upon complaint or information received, the board must investigate a person's books, records, and accounts if the board has reason to believe that fees are being collected and either not remitted or not timely remitted.
(2) The service charge for each contract must not exceed a total of thirty dollars, twenty-five dollars for the board to use in administering the provisions of this chapter and five dollars to be allocated to the Preneed Funeral Loss Reimbursement Fund.
(3) The board must keep a record of each preneed funeral contract for which it receives a service charge.
SECTION 32-7-60. Preneed Funeral Loss Reimbursement Fund established; disposition of funds; reimbursement procedures; advertising restrictions in sales of preneed contracts. [SC ST SEC 32-7-60]
(A) There is established the Preneed Funeral Loss Reimbursement Fund which must be administered by the board. The purpose of the fund is to reimburse the estates, or in the absence of an estate filing, the purchaser or applicant with payment jointly to the funeral home providing services or merchandise or both, of beneficiaries of preneed funeral contracts who have suffered financial loss as a result of the misfeasance, fraud, default, failure, or insolvency of a South Carolina funeral home or South Carolina funeral director.
(B) From the service charge for each preneed contract as required by Section 32-7-50 (C), the board shall deposit into the fund that portion of the charge as established by the board. The board may suspend or resume deposits into the fund at any time and for any period to ensure that a sufficient amount is available to meet likely disbursements and to maintain an adequate reserve. The maximum amount of the service charge to be allocated to the Preneed Funeral Loss Reimbursement Fund as required by Section 32-7-50(C)(2) must not exceed the amount of five dollars per each preneed contract. The maximum amount of the fund is to be five hundred thousand dollars with a five percent adjustment compounded annually.
(C) All sums received by the board pursuant to this section must be held in a separate account maintained by the Office of State Treasurer to be used solely as provided in this section. All interest or other income earned on the fund must be retained by the fund.
(D) Reimbursements from the fund must not exceed the total payment made for preneed funeral services or merchandise or both. No interest or future graduated insurance benefits may be reimbursed. Upon the death of the beneficiary and the applicant's compliance with all applicable rules of the board, reimbursement from the fund may be made to the estate of the beneficiary, the purchaser, or applicant with payment jointly to the funeral home providing services or merchandise or both only to the extent to which losses are not bonded or otherwise covered. If the board makes payments from the fund under this section, the board is subrogated in the reimbursed amount and may bring an action against a person, including a preneed licensee. The board may enforce claims it may have for restitution or otherwise and may employ and compensate from the fund consultants, legal counsel, accountants, and other persons it considers appropriate to assure compliance with this statute.
(E) The board shall investigate all applications made and may reject or allow claims in whole or in part. Payment must be made to the extent that monies become available in the fund. Reimbursements for completed claims must be processed in the order in which they are received subject to availability of monies in the fund. The board has complete discretion to determine the order and manner of payment of approved applications. All payments are a matter of privilege and not a right, and no person has a right in the fund as a third party beneficiary or otherwise.
(F) The board shall furnish a form of application for reimbursement which shall require the following minimum information:
(1) the name and address of the applicant;
(2) the name and address of the funeral service or funeral director, or both, who caused the loss;
(3) the amount of the alleged loss for which application for reimbursement is made;
(4) a copy of a preneed funeral contract or written agreement which was the basis of the alleged loss;
(5) a copy of payment receipts or cancelled checks, or both;
(6) a copy of the death certificate;
(7) a general statement of facts relative to the application;
(8) supporting documents, including copies of court proceedings and other papers indicating the efforts of the applicant to obtain reimbursement from the provider, insurance companies, or others;
(9) documentation of any receipt of funds in partial payment of the loss;
(10) name and address of the funeral home that provided services or merchandise or both.
(G) This fund and all interest earned may be used only as prescribed in this section and may not be used for any other purposes. The board may expend monies from the fund to:
(1) make reimbursements on approved applications;
(2) purchase insurance to cover losses and board liability as considered appropriate by the board and not inconsistent with the purpose of the fund;
(3) invest portions of the fund as are not currently needed to reimburse losses and maintain adequate reserves, as are permitted to be made by fiduciaries under state law;
(4) pay the expenses, other than normal operating expenses, of the board for administering the fund, including employment of legal counsel, accountants, consultants, and other persons the board considers necessary to assure compliance with this section.
(H) No person may make, publish, disseminate, circulate, or place before the public, or cause, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public, in a newspaper, magazine, or other publication, or in the form of a notice, circular, pamphlet, letter, poster or over any radio station or television station, or in any other way, any advertisement, announcement, or statement which uses the existence of the fund for the purpose of sales, solicitation, or inducement to purchase any form of preneed contract covered under this chapter.
(I) The board may establish procedures and promulgate regulations it determines necessary to implement the purposes of the section.
SECTION 32-7-70. Accounts and records; investigations. [SC ST SEC 32-7-70]
(A) The provider must keep accurate accounts, books, and records in this State of all transactions, copies of all agreements, dates, and amounts of payments made and accepted on them, the names and addresses of the contracting parties, the persons for whose benefit funds are accepted, and the names of the depositories of the funds. The provider must make all books and records pertaining to the trust funds available to the board for examination.
(B) The board may at any reasonable time and must at least once every two years investigate the books, records, and accounts of each provider with respect to its trust funds and for that purpose may require the attendance of and examine under oath all persons whose testimony it may require. The board must investigate a provider's books, records, and accounts if the board has reason to believe or has received a complaint alleging that the provider has violated the provisions of this chapter.
SECTION 32-7-90. Soliciting and advertising. [SC ST SEC 32-7-90]
(A) Any contract seller, provider, agent, employee, or person acting in behalf of one of these persons may not:
(1) directly or indirectly call upon individuals or persons in hospitals, rest homes, nursing homes, or similar institutions for the purpose of soliciting preneed funeral contracts or making funeral or final disposition arrangements without first having been specifically requested by the person to do so;
(2) directly or indirectly employ any agent, assistant, employee, independent contracting person, or any other person to call upon individuals or persons in hospitals, rest homes, nursing homes, or similar institutions for the purpose of soliciting preneed funeral contracts or making funeral or final disposition arrangements without first having been specifically requested by the person to do so;
(3) solicit relatives of persons whose death is apparently pending or whose death has recently occurred for the purpose of providing funeral services, final disposition, burial, or funeral goods for the person;
(4) solicit or accept or pay any consideration for recommending or causing a dead human body to be provided funeral services and funeral and burial goods by specific persons, or the services of a specific crematory, mausoleum, or cemetery except where the arrangement is the subject of a preneed funeral contract;
(5) solicit by telephone call or by visit to a personal residence, unless the solicitation has been previously requested by the person solicited or by a family member residing at the residence.
(B) Nothing in this chapter may be construed to restrict the right of a person to lawfully advertise, to use direct mail or otherwise communicate in a manner not within the above prohibition of solicitation or to solicit the business of anyone responding to the communication or otherwise initiating discussion of the goods or services being offered.
(C) Nothing in this chapter may be construed to prohibit general advertising.
(D) Anyone making a personal or written solicitation for a preneed funeral contract shall, as soon as possible, divulge the real reason for the contract or solicitation.
(E) The board may adopt regulations regulating the solicitation of preneed contracts by sellers and providers and their agents and employees to protect the public from solicitation practices which utilize undue influence or which take undue advantage of a person's ignorance or emotional vulnerability.
SECTION 32-7-95. Advertising and soliciting prohibitions as to preneed funeral contracts apply to funeral director licensed as agent and life insurer. [SC ST SEC 32-7-95]
The prohibitions of Section 32-7-90 as to solicitations and advertising relating to preneed funeral contracts apply equally to a funeral director licensed under this title as an agent for a life insurer as well as to the life insurer doing business in this State.
SECTION 32-7-100. Penalties; revocation of license; appeal of revocation. [SC ST SEC 32-7-100]
Any person wilfully violating the provisions of this chapter is guilty of a misdemeanor and, upon conviction, must be fined not less than five hundred dollars nor more than one thousand dollars, or be imprisoned for not less than ten days nor more than six months, or both. In addition, this person may be prohibited from entering into any further preneed funeral contracts if the board, in its discretion, finds that the offense is sufficiently grievous. The revocation of a license under this section may be appealed to the circuit court in the licensee's county of residence.
SECTION 32-7-110. Enforcement; investigation of unlicensed providers. [SC ST SEC 32-7-110]
(A) The board shall enforce the provisions of this chapter and has the power to make investigations, subpoena witnesses and documents, require audits and reports, and conduct hearings as to violations of any provisions, and to promulgate such regulations as are necessary to carry out the provisions of this chapter.
(B) Upon its own initiative or upon receipt of a complaint, the board must investigate any funeral home, funeral director, individual, or business the board has reason to believe is acting as a provider without a license. In order to conduct its investigation, the board must review the books, records, and accounts of: (1) any funeral home or funeral director licensed by the State Board of Funeral Service even if the funeral home or funeral director is not licensed to sell preneed funeral contracts, or (2) any individual or business the board has reason to believe is acting as a provider without a license. If the board discovers that a violation of this chapter has occurred by any funeral home, funeral director, individual, or business that is not licensed to sell preneed funeral contracts, the board must report the violation to the State Board of Funeral Service or to the Attorney General, a circuit solicitor, or an appropriate law enforcement agency.
SECTION 32-7-120. Application of chapter. [SC ST SEC 32-7-120]
Nothing in this chapter of Title 32 modifies, abridges, or repeals any provision of Chapter 55 of Title 39. This chapter shall apply only to preneed funeral contracts sold by funeral homes licensed in this State and their licensed directors.
SECTION 32-7-130. Sale at need of granite, memorials, or vaults by licensed funeral director. [SC ST SEC 32-7-130]
Nothing in this chapter or in Chapter 55 of Title 39 precludes the sale at need of granite, memorials, or vaults by a licensed funeral director. However, a licensed funeral director may sell only vaults preneed in accordance with this chapter.