Request By:
Honorable James D. Zornes
Durham, Durham & Zornes
207 Greensburg Street
Columbia, Kentucky 42728
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Stephen L. Frank, Assistant Attorney General
In response to your request for an Attorney General's opinion with regard to the proper interpretation of KRS 316.020 (2), it is the opinion of this office that a funeral home must be kept open during normal working hours and that a licensed embalmer and licensed funeral director must be physically present at the funeral home during the hours at which said establishment is kept open.
KRS 316.020(2) specifically provides that a funeral home "must be under the direct and constant supervision of a licensed embalmer and licensed funeral director. " The "direct and constant supervision" language in that statute clearly indicates that a funeral home will be open every day, or in the unusual circumstance when said funeral home is not open that a licensed embalmer and funeral director will be on call and accessible immediately. In a previous Attorney General's opinion (OAG 65-6) this office interpreted the words "in complete charge" as used in KRS 316.150(1)(f) to require the manager of a branch establishment to exercise "continuous supervision over the branch and be there daily during normal working hours without regard to whether there is a body there requiring attention." This interpretation is further supported by the definition of the applicable terms "direct" and "constant" in Black's Law Dictionary (4th Ed. Rev. 1968). That Dictionary defines the term "direct" as meaning "immediate, without any intervening causes." The term "constant" is defined by that Dictionary as meaning "fixed or invariable; uniform." The clear intent of the statute is to require the embalmer and funeral director to spend his working hours managing the business and overseeing its day-to-day affairs and cannot be interpreted to allow a licensed embalmer and funeral director to be physically present only at such times as the establishment is open and there is a body on the premises.
There is no difference in the requirement of "direct and constant supervision" between a funeral home and a branch establishment as defined by KRS 316.010(3). Any facility that conducts embalming and funeral services must be under the direct and constant supervision of a licensed embalmer and funeral director. Accordingly, KRS 316.150(1)(f) is supportive of this interpretation of KRS 316.020(2). KRS 316.150(1)(f) concerns branch establishments and requires the manager of such facilities to devote his "sole time" to the management and affairs of the branch. This statute clearly indicates that a branch manager, and with similar effect any manager, must spend his working hours managing the business and overseeing its day-to-day affairs. It would be impossible to carry out the intention of this statute without the daily supervision of the licensee.
The Kentucky Court of Appeals has recently upheld the constitutionality of KRS 316.020(2) and in its published Opinion specifically stated:
"As there is no way to predict when death will occur it is constitutionally permissible to expect a licensed embalmer and funeral director to be constantly available to a funeral home awaiting the arrival of deceased humans. The trial judge properly noted that the fact that the bodies might not arrive very often does not outweigh the resulting benefit in having a licensed funeral director available." Chenault v. Kentucky State Board of Funeral Directors, No. 82-CA-920-MR (Dec. 10, 1982). (Emphasis added.)