Gen. 109] 109

HEALTH OCCUPATIONS

MORTICIANS – LIMITED LIABILITY COMPANIES – MORTICIAN’S

LICENSE MAY NOT BE TRANSFERRED TO LIMITED

LIABILITY COMPANY

August 8, 2005

The Honorable James Brochin

Maryland Senate 

You have asked for our opinion whether the State Board of

Morticians (“Board”) may approve the transfer of an existing

mortician license from a sole proprietor to a limited liability

company (“LLC”) established and managed by that proprietor and

in which that proprietor is the sole member. You note that, while a

provision of the Maryland Morticians Act explicitly limits the

operation of funeral homes by corporations, it is silent with respect

to LLCs.

The Maryland Morticians Act authorizes the Board to issue

specific types of licenses to individuals and certain corporate

entities. However, under the Act, none of those licenses could be

granted to an LLC. Nor does the Act authorize an unlicensed LLC

to conduct a mortuary science business, even if it were owned by,

and employed, licensed morticians. Thus, in our opinion, the Board

may not approve the transfer of an existing mortician license from

a sole proprietor to an LLC. We recognize that reasonable policy

arguments may be made in favor of expanding the range of entities

that may be licensed to operate funeral homes; however, those

arguments must be made to the General Assembly.

I

Background

A. Maryland Morticians Act

The Maryland Morticians Act (“Morticians Act”) is codified

at Annotated Code of Maryland, Health Occupations Article (“HO”),

§7-101 et seq. Under that law, the State Board of Morticians
110 [90 Op. Att’y

The practice of mortuary science and the practice of funeral

1

direction both include the operation of a funeral establishment and the

arrangement, for compensation, of the final disposition of a dead human

body. HO §7-101(p),(q). The practice of mortuary science also includes

“for compensation, [the preparation of] a dead human body for

disposition, including disinfecting or preserving a dead human body or any

of its parts by arterial or cavity injection.” HO §7-101(q)(ii).

 Those licenses include: an apprentice license for an individual 2

who meets certain academic and experience requirements and is sponsored

by a licensed mortician (HO §7-306); a funeral director license for an

individual who has qualified for, and has continuously held, such a license

since May 2, 1973 (HO §7-307); a surviving spouse license that allows the

surviving spouse of a licensed mortician to continue the business under

the supervision of another licensed mortician (HO §7-308); an executor’s

license that allows the personal representative of a deceased mortician’s

estate to continue the operation of a mortuary science business (HO §7-

308.1); and a “courtesy card” that allows licensed practitioners in other

states to remove a body from Maryland, to return a body to Maryland, and

to carry out certain related activities (HO §7-311).

regulates the practice of mortuary science and funeral direction and

related activities. 

1

The Morticians Act prohibits the practice of mortuary science

without a license issued by the Board. HO §7-501. The Act

authorizes the Board to issue several types of licenses. Most

pertinent to your question, the Board may issue a mortician license,

authorizing the practice of mortuary science, to an individual who

satisfies the educational, examination, and other requirements

established by the Board. See HO §§7-301 through 7-305. The Act

also authorizes the Board to issue several other types of licenses to

individuals for limited purposes.2

The Morticians Act also provides for a “corporation license”

that authorizes a corporation to operate a mortuary science business

if the practice of mortuary science is conducted by licensed

individuals. HO §7-309. However, the availability of a corporation

license is very limited. The Act defines “corporation” to mean only

a mortuary science business that has been incorporated since at least

June 1, 1945, among other things. HO §7-101(e)(1). Moreover, a

license is only available to such a corporation if, among other things,

it held a license on June 1, 1945 and has continuously renewed it

since that time. HO §7-309(b). Otherwise, “a corporation may not

operate a mortuary science business and the Board may not issue a
Gen. 109] 111

 In the Morticians Act, the term “corporation” is defined not to 3

include a professional corporation or professional association. HO §7-

101(e)(2). Thus, the restrictions on the issuance of a corporation license

do not apply to a professional corporation.

license to or list any corporation as licensed to operate a mortuary

science business.” HO §7-309(a). Thus, the “corporation license”

essentially is a grandfather provision that allows corporations that

operated funeral homes 60 years ago to continue in business. This

restriction on corporate licenses was enacted in 1937, and was

subject to a limited suspension during World War II. Chapter 503,

Laws of Maryland 1937; see also Brooks v. State Board of Funeral

Directors and Embalmers, 233 Md. 98, 102, 113-14, 195 A.2d 728

(1963) (upholding restriction on corporation licenses against

constitutional challenge). The restriction apparently arose out of a

concern that corporate licensees were performing services through

unlicensed individuals. See Letter of Eric W. March, President,

State Board of Morticians to Delegate John D. Jeffries (February 12,

1992). We understand that 58 corporations currently hold these

licenses. See Fiscal and Policy Note for Senate Bill 340 (February

3, 2005). 

Finally, the Act also provides for “funeral establishments” –

i.e., the premises from which funeral directing or embalming is

conducted – to be licensed with the proviso that an establishment

must be owned and operated by at least one licensed mortician,

licensed funeral director, or the holder of a surviving spouse or

corporation license. HO §§7-101(h), 7-310.

The Act explicitly authorizes a licensed mortician to practice

in the form of a “professional association” and multiple licensed

morticians to practice as a partnership, but does not require a

separate license for the business entity. HO §§7-401, 7-402. A

“professional association” is simply another name for a professional

corporation. Annotated Code of Maryland, Corporations and

Associations Article (“CA”), §1-502(f)(iii). The Act does not 3

address the practice of mortuary science through an LLC.

B. Limited Liability Companies

A limited liability company is a form of business organization

that has characteristics of both a partnership and a corporation.

While a partnership is owned by its partners and a corporation is

owned by its shareholders, an LLC is owned by its “members.” See
112 [90 Op. Att’y

 Among other things, an applicant for a mortician license must

4

have a degree in mortuary science, complete an apprenticeship, and pass

written examinations. HO §7-303(b).

CA §4A-601 et seq. An LLC may be treated as a partnership for

federal tax purposes, and, like a partnership, allows flexibility in

organizing and managing the entity. However, unlike a general

partnership, it offers its members the same shield of limited liability

enjoyed by the shareholders in a corporation. See 86 Opinions of the

Attorney General 193, 204 (2001); 84 Opinions of the Attorney

General 181, 182-83 (1999).

The General Assembly adopted the Maryland Limited Liability

Company Act (“LLC Act”) in 1992. Chapter 536, Laws of

Maryland 1992, codified as amended at CA §4A-101 et seq. The

LLC Act confers certain general powers on all Maryland LLCs,

unless otherwise provided by law or the LLC’s articles of

organization. CA §4A-203. Among those powers is the ability to

“render professional services within or without [Maryland].” CA

§4A-203(10). “Professional service” is defined in the LLC Act to

mean “a service that may lawfully be rendered only by a person

licensed or otherwise authorized by a licensing unit in the State to

render the service and that may not lawfully be rendered by a

corporation under the Maryland General Corporation Law.” CA

§4A-101(p)(1) (incorporating CA §5-101 by reference). The statute

also lists a number of professions that provide services covered by

the definition, including many professions licensed under the Health

Occupations Article, but not including morticians. CA §4A101(p)(2)(iv),(v),(vi),(vii),(viii),(x) (chiropractor, dentist, osteopath,

physician, podiatrist, psychologist). 

II

Analysis

You ask whether the Morticians Board may approve the

transfer of a mortician license from a sole proprietor to an LLC

which the sole proprietor plans to manage and of which the sole

proprietor is the only member. The short answer is that an LLC

itself may not hold a mortician license. In requiring that an applicant

meet various educational and experience requirements, the statute 4

contemplates that a mortician license will be held only by an

individual. Cf. 81 Opinions of the Attorney General 74 (1996)
Gen. 109] 113

 The same conclusion would pertain to a funeral establishment 5

license, as one of the conditions for granting such a license is that the

establishment is owned and operated by at least one individual or

corporate licensee.

(because only an individual may be licensed as a dentist, corporation

may not be licensed by Dental Board). Moreover, the Morticians

Act has no provision for the licensing of business entities other than

certain grandfathered corporations. There is simply no basis in the

statute for granting a mortician license to an LLC.5

If we understand the thrust of your inquiry, it raises the related

question of whether a properly licensed mortician may conduct his

or her business through an entity organized as an LLC. Even when

the General Assembly has restricted the practice of a profession or

occupation to licensed individuals, it has permitted, in some

instances, for unlicensed entities to provide the services of that

profession or occupation through the employment of licensed

individuals. See Dvorine v. Castleburg Jewelry Corp., 170 Md. 661,

185 A.2d 562 (1936) (corporation may provide optometry services

through employment of licensed optometrists); 85 Opinions of the

Attorney General 238 (2000) (business entity owned by unlicensed

individuals may provide physical therapy services by contracting

with licensed physical therapists). As the Court of Appeals framed

the issue in Dvorine, the question is “not whether the Legislature

may prohibit [an entity] from furnishing service in a regulated

employment through the agency of others, but whether it has done

so in this statute.” 170 Md. at 673. In addition, it might be argued

that the Maryland LLC Act, in authorizing LLCs to render

professional services, itself provides a basis for the organization of

a mortuary science business as an LLC.

Nonetheless, we believe that the General Assembly has not

authorized the operation of a mortuary science business by an LLC,

even if the LLC’s sole member is a licensed mortician. We reach

this conclusion for several reasons.

First, the Morticians Act clearly authorizes a licensed mortician

to conduct business through a professional corporation or a

partnership formed with other licensed individuals. HO §§7-401, 7-

402. A licensed mortician also may work for a corporation other

than a professional corporation if that corporation is one of the

corporations that was grandfathered 60 years ago and remains

licensed under the Act. HO §7-309. By contrast, there is no explicit
114 [90 Op. Att’y

Cf. 72 Opinions of the Attorney General 141 (1987) (Morticians 6

Act bars unlicensed persons from soliciting or offering contracts for

funeral goods or services). 

The Morticians Act reinforces that restriction. HO §7-402(a) 7

(“One or more morticians may practice mortuary science as a professional

association”).

 Thus, even if a licensed mortician happens to be the only member 8

of an LLC, nothing in the LLC Act would prevent that individual from

conveying that interest to an unlicensed person. 

authorization for a licensed mortician to operate his or her business

through an LLC. Given that the statute expressly treats and

authorizes, to some extent, the operation of a mortuary science

business through partnerships, professional corporations, and other

corporations, the absence of any reference to LLCs strongly suggests

that the Legislature has not authorized the operation of a mortuary

science business through an LLC.

A decision not to permit the operation of a mortuary science

business through an LLC is consistent with the line that the

Legislature has otherwise drawn in the Morticians Act – to ensure

that any entity providing mortuary science services, other than a

grandfathered corporation, is owned and controlled by licensed

individuals. The partnerships and professional corporations 6

authorized in the Morticians Act to conduct such businesses are

necessarily owned and controlled by licensed morticians. In

particular, the authorization for partnerships extends only to

partnerships of licensed morticians. HO §7-401(a). Similarly, the

shareholders of a professional corporation or association must all be

“qualified persons” – essentially, either individuals licensed to

provide the services or partnerships or other professional

corporations owned by such individuals. CA §5-109. Thus, a

professional corporation that operates a mortuary science business

would necessarily be owned and controlled by licensed morticians.7

There is no similar restriction on membership in an LLC, even if the

LLC is involved in providing professional services.

8

This conclusion is also confirmed by General Assembly’s

rejection, in two recent sessions, of attempts to amend the

Morticians Act to authorize licensure of LLCs. See House Bill 956

(2003) (amending HO §7-309 to allow licensing of LLCs to operate

mortuary science business); House Bill 1341 (2004) (same). The
Gen. 109] 115

 The LLC Act provides a mechanism for a partnership or sole 9

proprietorship to convert to an LLC. CA §§4A-211, 4A-212. However,

an LLC created in that manner has no greater authority to conduct a

mortuary service business than one created anew.

You have not asked, and we do not address, whether the 10

restrictions on licensure of entities in this context raises antitrust concerns.

We note that, twenty years ago, the Antitrust Division of this Office

conducted a review of the law, regulations, and regulatory practices

governing mortician licenses and did not suggest that the restriction on

corporate licenses was problematic, presumably because it is clearly set

forth in the statute. See Report on the Maryland State Board of

Morticians (August 27, 1985).

Legislature’s refusal to amend a statute is not necessarily

determinative of the legislative intent in originally enacting the law.

However, in circumstances such as these where the statute does not

otherwise contemplate licensure of LLCs and the LLC Act omits

mortuary science services from the list of professional services that

may be provided through an LLC, the rejection of these proposals

supports the conclusion that the General Assembly has elected not

to extend mortician licenses to LLCs. Comptroller v. Clyde’s of

Chevy Chase, Inc., 377 Md. 471, 502-6, 833 A.2d 1014 (2003).

Finally, the LLC Act itself does not confer authority to conduct

a mortuary science business on an LLC. While the LLC Act

authorizes LLCs to render “professional services,” that authorization

is qualified by the proviso “[u]nless otherwise provided by law or

[the LLC’s] articles of incorporation....” CA §4A-203. Thus, the

LLC Act does not purport to override any restrictions in the

Morticians Act. It is also notable that morticians and mortuary

science services are not among the “professional services” listed in

the LLC Act.9

Reasonable arguments can be made that the restrictions on the

operation of mortuary science businesses by corporations and LLCs

reduces competition in price and quality of services without any

countervailing benefit to the public. See Letter of Federal Trade 10

Commission Staff to Delegate Joanne C. Benson concerning House

Bill 795 (April 2, 2004) (arguing that elimination of restrictions on

corporate ownership of funeral homes in Maryland would likely

benefit the public). However, it is the Legislature’s role to weigh

those arguments, and whatever opposing arguments may be offered
116 [90 Op. Att’y

in support of the status quo. To date, the Legislature has not chosen

to extend the authority to operate funeral homes to LLCs.

III

Conclusion

While the policies underlying the restrictions on the ownership

and licensing of mortuary science businesses in Maryland may be

open to criticism as to whether they continue to benefit the public,

we must construe the statute in accordance with the apparent

legislative intent. In our opinion, the General Assembly has not

authorized the Board of Morticians to approve the transfer of a

mortician license to an LLC, regardless of the identity of the

members of the LLC. Nor does the Morticians Act permit an

unlicensed LLC to conduct a mortuary science business through

licensed individuals.

J. Joseph Curran, Jr.

Attorney General

Robert N. McDonald

Chief Counsel

 Opinions & Advice