188 [80 Op. Att’y

1 Your question is limited to the sale of caskets on a pre-need basis.

We are aware of no statute limiting the sale of caskets on an at-need basis

or under other circumstances where delivery of the casket is made upon

payment of the price. This opinion addresses only the situation in which

an individual pays money to the seller of a casket in exchange for a promise

of delivery when the casket will be needed.

HEALTH OCCUPATIONS ) MORTICIANS ) BUSINESSES AND

PROFESSIONS ) CEMETERIES ) SALE OF CASKETS ON A

“PRE-NEED” BASIS

December 21, 1995

Mr. Thomas J. Murphy, III

President

State Board of Morticians

You have requested our opinion on several issues related to the

pre-need sale of caskets: 

1. Does the Maryland Morticians Act prohibit a person other

than a licensed mortician, licensed funeral director, or a holder of a

surviving spouse license (hereafter “licensee”) from selling caskets

on a pre-need basis?1 In particular, does the Act prohibit a cemetery

owner from doing so?

2. If the Act prohibits a cemetery owner or other nonlicensee from selling caskets on a pre-need basis, may the State

Board of Morticians seek injunctive relief against a person who does

so?

3. May a cemetery owner who is also a licensee sell caskets

through the cemetery?

 Our opinion is as follows: 

1. The Morticians Act does not prohibit a cemetery or other

person from selling a casket by means of a pre-need contract that

complies with Title 5, Subtitle 4 of the Business Regulation (“BR”)

Article, Maryland Code. 
Gen. 188] 189

2. The Board does not have authority to bring an injunction

action against a person who is unlawfully selling caskets on a preneed basis.

3. A cemetery owner who is also a licensee may sell caskets

on a pre-need basis in either capacity.

I

Regulation of Pre-Need Contracts

A. Introduction

The Maryland Morticians Act carefully regulates pre-need

contracts. When a licensee sells a casket on a pre-need basis, that

licensee must comply with detailed escrow and other requirements.

§7-405 of the Health Occupations (“HO”) Article, Maryland Code.

Because the Act expressly provides that a “pre-need contract”

includes “a casket,” and only licensees may sell “pre-need

contracts,” many licensees understandably believe that they alone

may sell caskets on a pre-need basis. Considered by itself, this point

of view is logical.

But as Oliver Wendell Holmes famously put it, “a page of

history is worth a volume of logic.” New York Trust Co. v. Eisner,

256 U.S. 345, 349 (1921). The history of the General Assembly’s

regulation of pre-need transactions is a tortuous one, marked by

drafting problems and unexplained changes in wording. Yet this

history, which we shall set out in detail, yields a firm conclusion:

licensees do not have a monopoly over the pre-need sale of caskets.

B. The Evolution of Parallel Regulatory Regimes

1. 1969 ) Attempting to regulate pre-need contracts.

The General Assembly first tried to regulate pre-need contracts

in Chapter 684 of the Laws of Maryland 1969. Chapter 684

contained the following definition of “pre-need contracts”: 

For purposes of this section pre-need

contracts are defined to include the entering

into of any contract, plan or agreement
190 [80 Op. Att’y

wherein a seller agrees to furnish to or for the

use of a living person at the future time of

death embalming, cremating, or other services

and/or the delivery of funeral or burial

caskets, vaults, and clothing such as are

normally furnished by licensed funeral

directors and embalmers in the ordinary and

normal course of such business. This section

shall not apply to the sale of cemetery lots,

grave sites, mausoleums, monuments, lawn

crypts, vaults, or other merchandise or

services sold by others not in connection with

the practice of the profession of a funeral

director and an embalmer.

Former Article 43, §366A(b). The term “seller” was defined as a

licensed funeral director and embalmer, and no one other than a

seller was authorized to enter a pre-need contract. Former Article

43, §366A(a).

These provisions did not achieve the evident legislative goal of

limiting the pre-need sale of funerary goods and services, including

caskets, to licensees. If a pre-need contract was defined as an

agreement by a seller, and a seller was defined as a licensee, then a

non-licensee’s contract to sell funerary goods on a pre-need basis

was not a “pre-need contract” as defined in Chapter 684 and so

escaped regulation.

2. 1981 ) Fixing the problem and creating a monopoly.

The Revisor of Statutes pointed out the regulatory gap when

the Health Occupations (“HO”) Article was enacted in 1981:

It is not clear what class of individuals the

General Assembly intended to regulate in

former Art. 43, §366A(a) and (b). 

Former Art. 43, §366A(b) defined a “preneed contract” as one in which “a seller”

agreed to provide certain goods and services.

Former Art. 43, §366A(a) defined “seller” as

a licensed funeral director and embalmer.

That subsection also purported to prohibit any
Gen. 188] 191

person other than a licensed funeral director

and embalmer from executing a pre-need

contract. However, because a pre-need

contract by definition is one made by a

licensed funeral director and embalmer, a

person who is not a licensed funeral director

and embalmer may make a similar contract

without violating the prohibition. 

Chapter 8 of the Laws of Maryland 1981, Revisor’s Note to HO §6-

404. In the same note, the Revisor explained Code Revision’s

solution to the problem and flagged a regulatory issue for the

General Assembly:

After considering the exceptions to the

definition of a “pre-need contract” that were

enumerated in former Art. 43, §366A(b), the

Commission to Revise the Annotated Code:

(1) has structured the definition of “pre-need

contract” in §6-101 of this title in terms of

what the contract did rather than who made it;

(2) has defined “seller” in this section as any

person who makes a pre-need contract; and

(3) has limited those who are authorized to

make a pre-need contract to licensed

morticians.

Because of the scope of the goods and

services that are included in the term “preneed contract,” the class of persons most

affected under this revision are those

associated with the practice of mortuary

science. Because only a licensed mortician is

authorized under this section and §6-504 of

the this title to make a pre-need contract, any

other person who is a “seller” ... who does so

incurs penalties under §6-508 of this title. 

Some other persons (e.g. casketsalesmen)

also may fall within these revised provisions.

Therefore, the General Assembly may wish to

adjust the definition of “seller” accordingly.
192 [80 Op. Att’y

2

 That same session, the General Assembly expanded the authority

to execute pre-need contracts to include licensed funeral directors and

surviving spouses. See Chapter 184 of the Laws of Maryland 1981. 

The General Assembly did not “wish to adjust the definition of

‘seller’”; instead, it retained Code Revision’s proposed definition of

“seller” to mean “a person who agrees to provide services or

merchandise, directly or indirectly, under a pre-need contract.” HO

§6-404(a) (1981). The next subsection, HO §6-404(b) (1981),

limited to licensed morticians those who “may offer or agree,

directly or indirectly, to provide services or merchandise under a

pre-need contract.”2

The 1981 definition of “pre-need contract,” codified in HO §6-

101(n), was as follows:

(1) “Pre-need contract” means an

agreement to provide to a then living

individual on the death of that individual:

(i) A service, including embalming or

cremation, that a mortician normally provides

in the ordinary course of business; or 

(ii) Merchandise, including a casket,

vault, or clothing, that a mortician normally

provides in the ordinary course of business.

(2) “Pre-need contract” does not include

an agreement to provide to a then living

individual on the death of that individual:

(i) A cemetery lot or grave site; 

(ii) A mausoleum, monument, lawn

crypt; or 

(iii) Any other merchandise or service

that is not sold in connection with the practice

of mortuary science.
Gen. 188] 193

3

 In the Morticians Act, the General Assembly used the spelling

“pre-need.” In enactments dealing with other persons, the General

Assembly used the spelling “preneed.” To avoid reader distraction, this

opinion will henceforth adopt a single spelling no matter the context: “preneed.”

4

 Interment space, cemetery lots, and grave sites were excluded

from the term “goods and services.” §165B(a)(3)(ii). 

As of 1981, then, the answer was clear: No one other than a

licensee could sell a casket on a pre-need basis. The exclusion in

former HO §6-101(n)(2)(iii) did not authorize a cemetery to sell

caskets on a pre-need basis, because caskets were “sold in

connection with the practice of mortuary science”; therefore, the

pre-need sale of caskets was exclusively the province of licensees.

Just as the Revisor of Statutes stated, “casket salesmen” could not

sell caskets on a pre-need basis.

3. 1984 ) Regulating pre-need contracts for burial goods

and services.

Three years later, the General Assembly decided to regulate

“pre-need burial contracts.”3 In Chapter 765 of the Laws of

Maryland 1984, the General Assembly imposed certain escrow and

other requirements on these contracts. The term “pre-need burial

contract” was defined as “any instrument in writing dated on or after

October 1, 1984, pursuant to which pre-need goods and services are

to be sold and delivered or performed.” Former Article 23,

§165B(a)(11). The key term “goods and services” was defined as

follows: “‘Goods and services’ includes, but is not limited to, vaults,

grave liners, urns, memorials, monuments, scrolls, vases, opening

and closing of graves, and other goods and services sold in

connection with the internment, cremation, or other disposition of

human remains.” Former Article 23, §165B(a)(3)(i).4 

The phrase “other goods ... sold in connection with the

interment of human remains” was surely broad enough to include a

casket. The terms “casket” and “coffin” are synonymous. See

Random House Dictionary of the English Language 322 (2d ed.

1987) (“casket” defined as “coffin”). A coffin is “the box or case in

which the body of a dead person is placed for burial; casket.” Id. at

399.
194 [80 Op. Att’y

Chapter 765 of the Laws of Maryland 1984 expressly

preserved the existing regulatory regime applicable to licensees’

pre-need contracts: “Nothing in this section shall be construed to

apply to pre-need contracts entered into by those persons engaged

in the practice of the profession of a mortician or funeral director,

as defined and regulated by the Health Occupations Article of the

Annotated Code of Maryland. ” Former Article 23, §165B(k)(3).

Unlike its counterpart in the Health Occupations Article,

Chapter 765's regulation of pre-need contracts did not contain a

provision restricting who could sell “pre-need burial goods and

services. ” Indeed, the basic regulatory requirement was framed in

terms of “a person” : “Except as provided in this section, a person

... may not offer to sell or sell pre-need goods and services if

delivery ... may be delayed later than 120 days after the receipt of

... payment ....” Former Article 23, §165B(b). The term

“person” was broadly defined to mean “ an individual, firm,

corporation, partnership, or any other form of entity selling preneed goods and services.” Former Article 23, §165B(a)(7). Other

provisions referred simply to “ sellers, ” a term that Chapter 765

left undefined. Chapter 765 also contained repeated references to

the obligations of “cemeteries.” See former Article 23,

§165B(c)(1), (c)(4), (h)(3), (i)(4), and (k)(4). These references to

cemeteries might arguably mean that the General Assembly

intended to limit pre-need contracts under Chapter 765 to

cemeteries. But the statute’s key language did not do so, and the

reference to cemeteries more likely reflects a legislative

understanding of the market at the time ) that cemeteries were the

entities most extensively engaged in the business of pre-need burial

contracts. We do not read Chapter 765 as limiting pre-need burial

contracts to cemeteries.

Hence, as of 1984, the General Assembly had allowed

licensees to sell caskets on a pre-need basis, subject to the

requirements in the Maryland Morticians Act; and had allowed

cemeteries and others to sell caskets on a pre-need basis, subject

to the requirements of former Article 23, §165B.

4. 1986 ) Amending the funerary pre-need law.

In Chapter 728 of the Laws of Maryland 1986, the General

Assembly repealed the exclusion from the definition of “pre-need

contract” that had appeared in former HO §6-101(n)(2). The
Gen. 188] 195

exclusion covered cemetery lots, monuments, and other goods or

services “not sold in connection with the practice of mortuary

science.” The bill was introduced with the exclusion marked for

repeal, and we can find no discussion in the legislative history

explaining the underlying purpose. We can speculate, however,

that the General Assembly, having regulated pre-need burial

contracts in Chapter 765 of the Laws of Maryland 1984, did not

want to leave the misleading impression that former HO §6-

101(n)(2) was a separate authorization for the sale of burial goods

on a pre-need basis.

The 1986 enactment also reworded the core definition of

“pre-need contract” to mean “ an agreement between a consumer

and a licensed funeral director and a licensed mortician to provide

any goods and services purchased prior to the time of death.” The

purpose of this recasting, according to the report of the House

Environmental Matters Committee, was “ to exclude other types of

pre-need contracts (such as insurance).” Although pre-need burial

contracts were not mentioned in the legislative history, they are

certainly among the “other types of pre-need contracts . . .” with

which the General Assembly was familiar, having legislated on the

subject only two years before. 

Thus, it is reasonable to construe the 1986 amendment as a

confirmation of the legislative decision that the provisions on preneed contracts in the Morticians Act do not affect the prerogative

of cemeteries and others to sell interment-related items ) including

a casket ) on a pre-need basis, subject to the requirements

applicable to that type of pre-need contract. 

C. Current Provisions

1. Morticians Act

As currently worded, HO §7-405 provides that only a

licensee may “ offer or agree . .. to provide services or merchandise

under a pre-need contract.” Conversely, HO §7-504 prohibits

anyone other than a licensee from offering or agreeing to provide

“ services or merchandise under a pre-need contract. ” 

The statute provides various protections to the buyer of a preneed contract, including the “seller’s” obligation to deposit all of

the payments into a trust account. HO §7-405. A “ seller” is “a
196 [80 Op. Att’y

person who agrees to provide services or merchandise ... under a

pre-need contract.” HO §7-405(a). A “ pre-need contract” is

defined in HO §7-101(q) as follows:

“Pre-need contract” means an agreement

between a consumer and a licensed funeral

director, licensed mortician, or surviving

spouse to provide any goods and services

purchased prior to the time of death. Goods

and services shall include: 

(1) A service, including any form of

preservation and disposition, that a mortician

normally provides in the ordinary course of

business; or 

(2) Merchandise, including a casket,

vault, or clothing, that a mortician normally

provides in the ordinary course of business.

2. Burial goods and services.

In 1992, the General Assembly recodified Chapter 765's

provisions on pre-need burial contracts into Subtitle 4 of Title 5 of

the Business Regulation (“BR”) Article. BR §§5-404 through 5-

410 impose various requirements on “pre-need burial contracts.”

This term is defined as “a written instrument under which pre-need

goods or pr e-need services are to be sold and delivered or

performed.” BR §5-401(d). The term “pre-need goods” is

defined in BR §5-401(e) as follows:

(1) “Pre-need goods” means goods that

are sold:

(i) Before the buyer’s death; and 

(ii) In connection with burial.

(2) “Pre-need goods” includes:

(i) a grave liner; 

(ii) a memorial;

(iii) a monument;

(iv) a scroll;
Gen. 188] 197

(v) an urn;

(vi) a vase; and

(vii) a vault.

(3) “Pre-need goods” does not include

burial space.

BR §5-401(e). The list of pre-need goods in BR §8-401(e) may not

be read to exclude caskets, however, simply because that term is

not in the list: “The words ‘include’ or ‘including’ mean, unless

the context requires otherwise, includes or including by way of

illustration and not by way of limitation.” Article 1, §30. 

The compliance requirements are framed in terms of a

“ seller. ” See BR §§5-411 and 5-412(a). “ Seller” means “ a person

who sells pre-need goods or pre-need services. ” BR §5-401(g).

The term “ person” is broadly inclusive. “ <Person’ means an

individual, receiver, trustee, guardian, personal representative,

fiduciary, representative of any kind, partnership, firm,

association, corporation, or other entity. ” BR §1-101(g). Thus,

although this regulatory statute is in the “Cemeteries” title of the

Business Regulation Article and refers to cemeteries in various

provisions, we cannot conclude that pre-need burial contracts are

restricted to cemeteries, anymore than they were under Chapter

765. The Revisor’s Notes confirm that none of the drafting

changes was intended to have a substantive effect.

D. Conclusion

The Morticians Act, which limits to licensees those who may

sell caskets on a pre-need basis, cannot be considered in isolation.

The Act must be construed so as to give effect to the later-enacted

BR Title 5, Subtitle 4. That statute’s definition of “pre-need goods”

) “goods that are sold ... in connection with burial” ) surely extends

to caskets. See Part IB3 above. 

These two statutory schemes present the familiar problem of

overlapping authority. This problem typically presents itself when

the same activity falls within the scope of practice of two health

occupations. See 80 Opinions of the Attorney General 180 (1995)

(veterinarians and acupuncturists may each perform acupuncture on

animals); 76 Opinions of the Attorney General 3 (1991)
198 [80 Op. Att’y

5

 If an individual is a licensee and owns a cemetery, that individual

may sell caskets in either capacity. If the individual sells a casket from his

or her funeral establishment, presumably as part of a package of funeral

goods and services, the provisions of the Morticians Act would apply. If

the individual does so from his or her cemetery, the provisions of BR Title

5, Subtitle 4 would apply.

(chiropractors and physical therapists may each perform certain

manipulations). The issue of pre-need casket sales is no different in

principle: Licensees may sell caskets on a pre-need basis under the

Morticians Act, and cemeteries and others may sell caskets on a preneed basis under BR Title 5, Subtitle 4.5

 Those who do so under the

latter statute do not violate the Morticians Act.

That the two statutes differ in their regulatory details is

immaterial. To be sure, the regulation of pre-need burial contracts

under BR Title 5, Subtitle 4 has significant differences from the

regulation of pre-need contracts under the Morticians Act. For

example, BR Title 5, Subtitle 4 requires much less money to be

held in trust. While these differences may raise a policy issue that

the General Assembly might want to address, they do not negate

the scope of the “pre-need goods” that cemeteries and others are

allowed to sell. In our opinion, “pre-need goods” include caskets.

II

The Board’s Remedial Authority

Someone who sells caskets on a pre-need basis but complies

with neither the Morticians Act nor BR Title 5, Subtitle 4 is subject

to a range of potential civil and criminal sanctions. HO §7-508; BR

§§5-411 and 5-412. If the Board becomes aware of an instance of

this illegal activity, it may refer the matter to this office or to the

appropriate State’s Attorney.

However, the Morticians Act does not grant to the Board

authority to seek an injunction against someone who is unlawfully

entering pre-need contracts. When the General Assembly has

decided to grant a regulatory board authority to seek injunctive relief

against conduct that is also a crime, it has legislated that authority

explicitly. See HO §14-206(e) (Board of Physician Quality
Gen. 200] 199

Assurance may seek to enjoin practice of medicine without a

license).

III

Conclusion

In summary, it is our opinion that:

1. The Morticians Act does not prohibit anyone from

selling a casket on a pre-need basis, if the seller complies with BR

Title 5, Subtitle 4.

2. The Board does not have authority to bring an injunction

action against a person who is unlawfully selling caskets on a preneed basis.

3. A cemetery owner who is also a licensee may sell

caskets on a pre-need basis in either capacity.

J. Joseph Curran, Jr.

Attorney General

Jack Schwartz

Chief Counsel

 Opinions & Advice

Editor’s Note:

Cemeteries are subject to additional regulation as a result of

Chapter 675 of the Laws of Maryland 1997.