GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1989

H	1 

HOUSE BILL 1307

Short Title:  Crematory Act.	(Public)
─────────────────────────────────────── 
Sponsors: Representatives Stamey; Edwards, Hasty, Holt, Lilley, Lineberry, Locks, Nesbitt, and Warren.
─────────────────────────────────────── 
Referred to:  Commerce.
─────────────────────────────────────── 

April 12, 1989

A BILL TO BE ENTITLED
AN ACT TO PROVIDE FOR THE LICENSURE OF CREMATORY OPERATORS AND TO ESTABLISH THE CREMATORY AUTHORITY WITHIN THE BOARD OF MORTUARY SCIENCE.
The General Assembly of North Carolina enacts:
Section 1.  Chapter 90 of the General Statutes is amended by adding a new Article to read:
“ARTICLE 13C.
"Cremations.
"§ 89-210.40. Short title.
This Article shall be known and may be cited as the North Carolina Crematory Act.
"§ 89-210.41. Definitions.
As used in this Article, unless the context requires otherwise:
(1)	‘Authorizing agent' means a person legally entitled to order the cremation of human remains.  An authorizing agent shall be, in order of preference, a spouse, an adult child, a parent, any adult sibling, guardian or close relation of the deceased.  In the case of indigents or any other individuals whose final disposition is the responsibility of the State, a public official charged with arranging the final disposition of the deceased, if legally authorized, may serve as the authorizing agent.  In the case of individuals who have donated their bodies to science, or whose death occurred in a nursing home or other private institution, and in which the institution is charged with making arrangements for the final disposition of the deceased, a representative of the institution, if legally authorized, may serve as the authorizing agent.
(2)	‘Board' means the North Carolina State Board of Mortuary Science.
(3)	‘Casket' means a rigid container which is designed for the encasement of human remains and which is usually constructed of wood, metal or other rigid material and ornamented and lined with fabric.
(4)	‘Closed container' means any container in which cremated remains can be placed and closed in a manner so as to prevent leakage or spillage of cremated remains or the entrance of foreign material.
(5)	‘Cremated remains' means all human remains recovered after the completion of the cremation process, including pulverization which leaves only bone fragments reduced to unidentifiable dimensions.
(6)	‘Cremation' means the technical process, using heat, that reduces human remains to bone fragments.
(7)	‘Cremation chamber' means the enclosed space within which the cremation process takes place.  Cremation chambers covered by these procedures shall be used exclusively for the cremation of human remains.
(8)	‘Cremation container' means the container in which the human remains are placed in the cremation chamber for a cremation.  A cremation container must meet all of the standards established by the rules and regulations set by the Crematory Authority.
(9)	‘Crematory' means the building or portion of a building that houses the cremation chamber and the holding facility.
(10)	‘Crematory authority' means the North Carolina Crematory Authority, an agency within the North Carolina State Board of Mortuary Science.
(11)	‘Crematory operator' means the legal entity or the authorized representative of the legal entity which is licensed by the Crematory Authority to operate a crematory and perform cremation.
(12)	‘Holding facility' means an area within or adjacent to the crematory facility designated for the retention of human remains prior to cremation that shall comply with any applicable public health law and the rules and regulations established by the Crematory Authority.
(13)	‘Human remains' means the body of a deceased person, or part of a body or limb that has been removed from a living or deceased person.
(14)	‘Niche' means a compartment or cubicle for the memorialization or permanent placement of an urn containing cremated remains.
(15)	‘Scattering area' means a designated area for the scattering of cremated remains.
(16)	‘Temporary container' means a temporary container is a receptacle for cremated remains usually made of cardboard, plastic film or similar material designed to hold the cremated remains until an urn or other permanent container is acquired.
(17)	‘Urn' means receptacle designed to permanently encase the cremated remains.
"§ 90-210.42. Crematory Authority established.
(a)	The North Carolina Crematory Authority is hereby established as an independent agency within the Board of Mortuary Science.  The Crematory Authority is authorized to adopt and promulgate such rules and regulations for the transaction of its business and for the carrying out and enforcement of the provisions of this Article as may be necessary and as are consistent with the laws of this State and the United States.  The rules and regulations of the Crematory Authority shall be adopted, and enforced by the Board of Mortuary Science.
(b)	The Crematory Authority shall consist of eight members appointed as follows:
(1)	One member from the Board of Mortuary Science who shall be appointed by the President of the Board;
(2)	One member from the North Carolina Cemetery Commission who shall be appointed by the Chairman of the Cemetery Commission;
(3)	Two members who are owners or managers of a licensed crematory who shall be appointed by the Governor from a list of at least four individuals recommended by the Cremation Association of North Carolina;
(4)	One member who shall be appointed by the Governor from the faculty or staff of a recognized and accredited medical school located in North Carolina;
(5)	One member from the office of the chief medical examiner who shall be the chief medical examiner or his designee.
(6)	One member from the staff of the North Carolina Commission of Anatomy to be appointed by the Commission.
(7)	One public member who shall be appointed by the Governor and who shall not own a funeral service, nor be employed in a funeral service, cemetery, or crematory profession.
(c)	Term.  Each member of the Crematory Authority shall serve for a three-year term.  The terms of the members shall be staggered; the original term of two members shall expire January 1, 1991, the original term of three members shall expire January 1, 1992, and the original term of the remaining three members shall expire January 1, 1993.
(d)	The members of the Crematory Authority shall serve without compensation provided that such members shall be reimbursed for their necessary traveling expenses and the necessary expenses incident to their attendance upon the business of the Crematory Authority, and in addition thereto they shall receive per diem and expense reimbursement as provided in G.S. 93B-5 for all time actually spent by such member upon the business of the Crematory Authority.  All expenses, salaries and per diem provided for in this article shall be paid from funds received under the provisions of this Article and shall in no manner be an expense to the State.
(e)	The Crematory Authority is empowered to hold hearings in accordance with the provisions of this Article and Chapter 150B of the General Statutes, to subpoena witnesses, and to administer oaths or to receive the affirmation of witnesses before the Crematory Authority.
(f)	The Crematory Authority shall enforce the rules adopted by it pursuant to this Article.
(g)	The Crematory Authority shall select from its members a chairman, a vice chairman and a secretary who shall serve for one year or until their successors are elected and qualified.  No two offices may be held by the same person.  The Crematory Authority, with the concurrence of the Board of Mortuary Science, shall have the authority to engage adequate staff as deemed necessary to perform its duties.
(h)	The Crematory Authority shall adopt a common seal.
(i)	The members of the Crematory Authority, before entering upon their duties, shall take and subscribe to the oath of office prescribed for other State officers, which said oath shall be administered by a person qualified to administer such oath and shall be filed in the Office of the Secretary of State.
(j)	The Crematory Authority shall hold at least one meeting in each year.  In addition, the Crematory Authority may meet as often as the proper and efficient discharge of its duties shall require.  Five members shall constitute a quorum.
"§ 90-210.43. Licensing and inspection.
(a)	Any person doing business in this State, or any cemetery, funeral establishment, corporation, partnership, joint venture, voluntary organization or any other entity may erect, maintain and conduct a crematory in this State and provide the necessary appliances and facilities for the cremation of human remains in accordance with the provisions of this Article and the rules and regulations adopted by the Crematory Authority.
(b)	A crematory may be constructed on or adjacent to any cemetery, on or adjacent to any funeral establishment that is zoned commercial or industrial, or at any other location consistent with local zoning regulations.
(c)	Application for license as a crematory operator shall be on forms furnished and prescribed by the Crematory Authority.  The Crematory Authority shall examine the premises and structure to be used as a crematory, and shall issue a license to the crematory operator if the applicant meets all the requirements of this Article and of any rules and regulations adopted by the Crematory Authority.  In the event of any change of ownership of a crematory, at least 30 days prior to the change, the new owners of the crematory shall provide the Crematory Authority with their names and addresses.
(d)	Every application shall identify the individual who is responsible for overseeing the management and operation of the crematory.  The Crematory Authority may establish standards which the manager must meet.  The crematory operator shall keep the Crematory Authority informed at all times of the name and address of the manager.
(e)	No person, cemetery, funeral establishment, corporation, partnership, joint venture, voluntary organization or any other entity shall cremate any human remains, except in a crematory licensed for this express purpose and under the limitations provided in this Article.
(f)	Whenever the Crematory Authority finds that an applicant for a license or a person to whom a license has been issued by the Crematory Authority is guilty of any of the following acts or omissions and the Crematory Authority also finds that the person has thereby become unfit to practice, the Crematory Authority may suspend or revoke the license or refuse to issue or renew the license, in accordance with the procedures set out in Chapter 150B:
(1)	Conviction of a felony or a crime involving fraud or moral turpitude;
(2)	Fraud or misrepresentation in obtaining or renewing a license or in the practice of cremation;
(3)	False or misleading advertising;
(4)	Gross immorality, including being under the influence of alcohol or drugs while performing cremation services;
(5)	Using profane, indecent or obscene language in the presence of a dead human body, and within the immediate hearing of the family or relatives of a deceased, whose body has not yet been cremated or otherwise disposed of;
(6)	Violating or cooperating with others to violate any of the provisions of this Article or of the rules and regulations of the Crematory Authority;
(7)	Violation of any State law or municipal or county ordinance or regulation affecting the handling, custody, care or transportation of dead human bodies;
(8)	Refusing to surrender promptly the custody of a dead human body or cremated remains upon the express order of the person lawfully entitled to the custody thereof;
(9)	Indecent exposure or exhibition of a dead human body while in the custody or control of a licensee.
(g)	In any case in which the Crematory Authority is entitled to suspend, revoke or refuse to renew  license, the Crematory Authority may impose a fine on the licensee of not more than five thousand dollars ($5,000) plus the reasonable costs of conducting the investigation and the costs of hearings on the violation giving rise to the penalty, revocation or suspension.
"§ 90-210.44. Authorization and record keeping.
The Crematory Authority shall establish requirements for record keeping and authorization and it shall be a violation of this Article for any crematory operator to fail to comply with the requirements.
"§ 90-210.45. Cremation procedures.
(a)	Human remains shall not be cremated within 24 hours after the time of death, unless such death was a result of an infectious, contagious or communicable and dangerous disease, and such time requirement is waived in writing by the medical examiner or county health director where the death occurred.  In the event such death comes under the authority of the medical examiner, the human remains shall not be received by the crematory operator until authorization to cremate has been received in writing from the medical examiner of the county in which the death occurred.  In the event the crematory operator is also authorized to perform funerals as well as cremation, this restriction on the receipt of human remains shall not be applicable.
(b)	No unauthorized person shall be permitted in the crematory area while any human remains are in the crematory area awaiting cremation, being cremated, or being removed from the cremation chamber.  Relatives of the deceased, the authorizing agent, medical examiners and law enforcement officers in the execution of their duties shall be authorized to have access to the holding facility and crematory facility.
(c)	The simultaneous cremation of the human remains of more than one person within the same cremation chamber is forbidden.
"§ 90-210.46. Disposition of cremated remains.
(a)	The authorizing agent shall provide the person with whom cremation arrangements are made with a signed statement specifying the ultimate disposition of the cremated remains, if known.  A copy of this statement shall be retained by the crematory operator.
(b)	The authorizing agent is responsible for the disposition of the cremated remains.  If, after a period of 30 days from the date of cremation, the authorizing agent or his representative has not specified the ultimate disposition or claimed the cremated remains, the crematory operator or the person in possession of the cremated remains may dispose of the cremated remains.  The authorizing agent shall be responsible for reimbursing the crematory operator for all reasonable expenses incurred in disposing of the cremated remains pursuant to this section.  A record of such disposition shall be made and kept by the person making such disposition.  Upon disposing of cremated remains in accordance with such section, the crematory operator or person in possession of the cremated remains shall be discharged from any legal obligation or liability concerning such cremated remains.  This provision shall apply to all cremated remains currently in the possession of a crematory operator or other party.
(c)	In addition to disposing of cremated remains in a crypt, niche, grave, or scattering garden located in a dedicated cemetery, or by scattering over uninhabited public land, the sea or other public waterways pursuant to subsection (f) of this section, cremated remains may be disposed of in any manner on the private property of a consenting owner, upon direction of the authorizing agent.  If cremated remains are to be disposed of by the crematory operator on private property, other than dedicated cemetery property, the authorizing agent shall provide the crematory operator with the written consent of the property owner.
(d)	Except with the express written permission of the authorizing agent no person may:
(1)	Dispose of or scatter cremated remains in such a manner or in such a location that the cremated remains are commingled with those of another person.  This subdivision shall not apply to the scattering of cremated remains at sea or by air from individual closed containers or to the scattering of cremated remains in an area located in a dedicated cemetery and used exclusively for such purposes.
(2)	Place cremated remains of more than one person in the same closed container.  This subdivision shall not apply to placing the cremated remains of members of the same family in a common closed container designed for the cremated remains of more than one person.
(e)	Cremated remains shall be delivered by the crematory operator to the individual specified by the authorizing agent on the cremation authorization form.  The representative of the crematory operator and the individual receiving the cremated remains shall sign a receipt indicating the name of the deceased, and the date, time, and place of the receipt.  After this delivery, the cremated remains may be transported in any manner in this State, without a permit, and disposed of in accordance with the provisions of this Article.
(f)	Cremated remains may be scattered over uninhabited public land, a public waterway or sea, subject to health and environmental standards, or on the private property of a consenting owner pursuant to subsection (c) of this section.  A person may utilize a boat or airplane to perform such scattering.  Cremated remains shall be removed from their closed container before they are scattered.
"§ 90-210.47. Liability.
(a)	Any person signing a cremation authorization form shall be deemed to warrant the truthfulness of any facts set forth in the cremation authorization form, including the identity of the deceased whose remains are sought to be cremated and that person's authority to order such cremation.  Any person signing a cremation authorization form shall be personally and individually liable for all damage occasioned thereby and resulting therefrom.
(b)	A crematory operator shall have authority to cremate human remains upon the receipt of a cremation authorization form signed by an authorizing agent.  There shall be no liability of a crematory operator which cremates human remains pursuant to such authorization, or which releases or disposes of the cremated remains pursuant to such authorization.
(c)	A crematory operator shall not be responsible or liable for any valuables delivered to the crematory operator with human remains.
(d)	A crematory operator shall not be liable for refusing to accept a body or to perform a cremation until it receives a court order or other suitable confirmation that a dispute has been settled if:
(1)	It is aware of any dispute concerning the cremation of human remains,
(2)	It has a reasonable basis for questioning any of the representations made by the authorizing agent, or
(3)	For any other lawful reason.
(e)	If a crematory operator is aware of any dispute concerning the release or disposition of the cremated remains, the crematory operator may refuse to release the cremated remains until the dispute has been resolved or the crematory operator has been provided with a court order authorizing the release or disposition of the cremated remains.  A crematory operator shall not be liable for refusing to release or dispose of cremated remains in accordance with this subsection.
"§ 90-210.48. Fees.
(a)	The crematory authority may set and collect fees not to exceed the following amounts from licensed crematory operators and applicants:
(1)	Licensee application fee.	$400.00
(2)	Annual renewal fee.	 150.00
(3)	Late renewal penalty.	  75.00
(4)	Re-inspection fee.	 100.00
(5)	Per cremation fee.	  10.00
(b)	The funds collected pursuant to this Chapter shall become part of the general fund of the Board of Mortuary Science.  The cost of the maintenance of the Crematory Authority shall be deemed a general expense of the Board of Mortuary Science.  The Board shall keep an accurate accounting of all the receipts and expenditures made pursuant to this Article and shall provide a current report of such to the Crematory Authority bi-annually.
"§ 90-210.49. Crematory operator authority.
(a)	A crematory operator may employ a licensed funeral director for the purpose of arranging cremations with the general public, transporting human remains to the crematory, and processing all necessary paper work.  Nothing in this provision may be construed to require a licensed funeral director to perform any functions not otherwise required by law to be performed by a licensed funeral director.
(b)	A crematory operator may enact reasonable rules consistent with this Article for the management and operation of a crematory.  Nothing in this subsection may be construed to prevent a crematory operator from adopting rules which are more stringent than the provisions of this Article.
(c)	Nothing in this Chapter shall prohibit or require the performance of cremations by crematory operators for or directly with the public, or exclusively for or through licensed funeral directors.
(d)	Nothing in this Article may be construed to prohibit a crematory operator from transporting human remains.
"§ 90-210.50. Applicability, violations, and prohibitions of Article.
(a)	Not later than January 1, 1990, every crematory being operated in this State shall apply for and be qualified to obtain a license under this Article in order to continue operation.
(b)	The provisions of this Article shall not apply to the cremation of human remains and medical waste performed by or for the North Carolina Anatomical Commission, licensed hospitals and medical schools, and the office of the Chief Medical Examiner when the disposition of such human remains and medical waste is the legal responsibility of said institutions.
(c)	A violation of any of the provisions of this Chapter is hereby declared to be a misdemeanor punishable by imprisonment for up to six months and a fine up to one thousand dollars ($1,000).
(d)	No person, firm, or corporation may request or authorize cremation or cremate a dead human body when he has information indicating a crime or violence of any sort in connection with the cause of death unless such information has been conveyed to the State or county medical examiner and permission from the State or county medical examiner to cremate has thereafter been obtained."
Sec. 2.  This act is effective upon ratification.