Dear Executive Secretary-Treasurer McEnany,
¶ 0 This office has received your request for an official Opinion asking, in effect, the following question:
Pursuant to 59 O.S. Supp. 1996, § 396.3(A) and (B), andthe Oklahoma State Board of Embalmers and Funeral Directors RuleOAC 235:10-3-1, must an individual with an associate degree inmortuary science from an institution accredited by the AmericanBoard of Funeral Service Education have an additional sixty (60)hours of education prior to being licensed as a funeral directoror embalmer?
MINIMUM STATUTORY REQUIREMENTS FOR LICENSURE ¶ 1 We begin our analysis of your question by examining 59O.S. Supp. 1996, § 396.3[59-396.3]. This statute establishes the minimum requirements for licensure as a funeral director or embalmer in the State of Oklahoma. In addition, it reserves to the Oklahoma State Board of Embalmers and Funeral Directors ("the Board") the authority to promulgate rules to establish additional requirements for licensure. Section 396.3 reads in pertinent part:
A. The Oklahoma State Board of Embalmers and Funeral Directors shall determine the qualifications necessary to enable any person to practice as a funeral director or embalmer, and prescribe the requirements for a funeral establishment, limited service establishment or funeral service merchandise license. The Board shall examine all applicants for licenses to practice as a funeral director or embalmer. The Board shall issue the proper licenses to applicants who successfully pass such examination and qualify pursuant to any additional requirements the Board may prescribe.
B. The minimum requirements for licensure to practice funeral directing or embalming, or both, are as follows:
1. An applicant for a license to practice embalming shall be at least twenty (20) years of age, a legal resident of this state, a citizen of the United States, and of good moral character. In addition, said applicant shall have at least sixty (60) accredited hours of study from an accredited college or university or equivalent as determined by the Board [and] shall be a graduate of a school of mortuary science . . . and have served one (1) year as a registered apprentice.
59 O.S. Supp. 1996, § 396.3[59-396.3] (emphasis added).
¶ 2 "The fundamental rule of statutory construction is to ascertain and, if possible, give effect to the intention and purpose of the Legislature as expressed in the statute." Jacksonv. Independent School District No. 16 of Payne County,648 P.2d 26, 29 (Okla. 1982). Moreover, legislative intent is determined by looking at "the whole act in light of its general purpose and objective." Thomas v. Oklahoma Orthopedic and ArthritisFoundation, 903 P.2d 279, 284 (Okla. 1995).
¶ 3 Subsections (A) and (B)(1) of 59 O.S. Supp. 1996, § 396.3[59-396.3] set out the minimum require-ments for licensure as a funeral director or embalmer as determined by the Legislature. In this regard, the Legislature also authorized the Board to fashion such additional requirements for licensure as it deemed appropriate.59 O.S. Supp. 1996, § 396[59-396](A).
¶ 4 The Legislature in Section 396.3(B)(1) then set the "minimum" requirements for licensure to practice as a funeral director or embalmer. An applicant must: (a) be 20 years of age; (b) be a legal resident of this State; (c) be a citizen of the United States; (d) be of good moral character; (e) have 60 accredited hours of study from an accredited college or university, or equivalent, as determined by the Board; (f) be a graduate from a school of mortuary science; and (g) serve a one year apprenticeship.
¶ 5 The Legislature has mandated that an applicant for licensure as a funeral director or embalmer be a graduate of a school of mortuary science and have 60 hours from an accredited college or university or equivalent. For purposes of this Opinion these requirements will be called, respectively, mortuary science education and general education.
ADDITIONAL BOARD IMPOSED REQUIREMENTS ¶ 6 Your question essentially asks whether an applicant for licensure who has obtained an associate degree in mortuary science from an institution accredited by the American Board of Funeral Service Education must also have an additional 60 hours of study from an accredited college or university.
¶ 7 In reading Section 396.3(B)(1) above, it can be argued that any of the courses taken to satisfy a mortuary science curriculum may also be applied to the requirement for 60 additional accredited hours of study, provided such courses were obtained from an accredited college or university. As previously noted, however, the statutory requirements are a minimum and the Board may, at its discretion, impose more stringent requirements. 59O.S. Supp. 1996, § 396.3[59-396.3](A).
¶ 8 Pursuant to its authority to enact additional requirements, the Board has promulgated administrative Rule OAC 235:10-3-1 which reads in pertinent part:
To be licensed in Oklahoma as a funeral director, embalmer, or both, an individual must meet the following minimum requirements:
. . . .
(7) The individual shall have completed an integrated program of mortuary science education from an accredited school of mortuary science.
(A) Said school of mortuary science must be accredited by the American Board of Funeral Service Education.
(B) The curriculum for mortuary science education shall be that prescribed by the American Board of Funeral Service Education.
(C) The individual must file with the Board office official documents attesting to the completion of the required mortuary science education in the form of one of the following:
(i) A Bachelor of Science or equivalent Degree with a major in Mortuary science; or
(ii) An Associate Degree in Mortuary Science; or
(iii) Other document determined by the Board to be sufficient proof of satisfactory completion of the required mortuary science education at an accredited school of mortuary science. The individual, in addition, shall have completed a total of sixty (60) college semester hours of credit at an accredited institution of higher education. Mortuary science education courses may not be included in the sixty (60) total college semester hours required.
(8) The individual shall have completed his/her education at an accredited institution of higher education.
. . . .
(C) Courses applied to completing the accredited Mortuary science program may not be included in the sixty (60) total semester hours required. The sixty (60) hours of education must contain the following:
(i) English — 6 hours
(ii) Social Studies — 6 hours
(iii) Sciences — 8 hours
(iv) Humanities — 5 hours
(v) Health Physical Ed. — 4 hours
(vi) Oral Communication (Speech) — 2 hours
(vii) Business — 6 hours
(viii) Psychology — 3 hours
(ix) The remaining twenty (20) hours can be electives.
OAC 235:10-3-1 (emphasis added).
¶ 9 In the above sections of its rules the Board has set forth the educational requirements necessary for the licensure of embalmers and funeral directors.1 The Board in Section 7 stated in pertinent part:
The individual shall have completed an integrated program of mortuary science education from an accredited school of mortuary science.
(A) Said school of mortuary science must be accredited by the American Board of Funeral Service Education;
(B) The curriculum for mortuary science education shall be that prescribed by the American Board of Funeral Service Education.
OAC 235:10-3-1(7).
¶ 10 This provision addresses the mortuary science education requirement that an applicant complete a mortuary science program from a school of mortuary science accredited by the American Board of Funeral Service Education ("the ABFSE").
¶ 11 The ABFSE is the accreditation entity adopted by the Board, and as such is responsible for determining the minimum educational requirements necessary for accreditation. The ABFSE provides:
The ABFSE recognizes the Associate Degree, or its equivalent, as the minimum educational standard for preparation for the funeral service profession. The program shall consist of at least 60 semester (90 quarter) credits. . . .
Accreditation Manual, Standard 6: Curriculum § A(4) American Board of Funeral Service Education, Inc. (1997) (emphasis added).
¶ 12 Any accredited mortuary science program must therefore have a minimum of 60 hours of courses, as prescribed in the ABFSE curriculum requirements. The issue that prompted this inquiry is whether an individual with an associate degree in mortuary science from an accredited mortuary science program must have anadditional 60 hours of study from an accredited college or university or equivalent.
¶ 13 Under previous Board rules, mortuary science educational courses could be included in the 60 total semester hours.2 In 1993 the Board, by emergency rule, amended the previous rule to say that "[m]ortuary science education courses may not be included in the sixty total college semester hours required." OAC 235:10-3-1(7)(C)(iii)3 In addition, the Board also changed the language in OAC 235:10-3-1(8)(C) to say that "[c]ourses applied to completing the accredited Mortuary science program may not be included in the sixty (60) total semester hours required." (Emphasis added.) By amending its rules the Board has demonstrated its intent that an applicant for licensure with an associate degree have an additional 60 hours of coursework from an accredited college or university.
¶ 14 Another question is raised if the associate degree program at an accredited college or university exceeds the 60 hours required by ABFSE for accreditation. Can any of the hours above 60 be applied toward the general education requirement? For example, if an associate degree program requires the completion of 80 hours, may 20 of those hours which are not mortuary science education be applied toward the general education requirement?
¶ 15 In construing the rules and statutes to answer this question, construction which would lead to an absurdity must be avoided. Ledbetter v. Oklahoma Alcoholic Beverage LawEnforcement Commission, 764 P.2d 172, 179 (Okla. 1988). To require 60 hours of education in addition to a program in mortuary science of more than 60 hours would create an absurdity. An individual with an associate degree could then be required to have more hours than are required to obtain a full baccalaureate degree.
¶ 16 It is a sound construction of the rules, therefore, to allow nonmortuary science education hours in excess of the minimum 60 hours necessary for ABFSE accreditation earned in the course of obtaining an associate degree to apply toward the required 60 hours of general education. This satisfies the intent of the Legislature and the Board that a candidate for licensure receive not only mortuary science education but general higher education as well.
¶ 17 It is therefore the official Opinion of the AttorneyGeneral that: Pursuant to 59 O.S. Supp. 1996, § 396.3(A) and (B) and theOklahoma State Board of Embalmers and Funeral Directors Rule OAC235:10-3-1, an individual with an associate degree in mortuaryscience from an institution accredited by the American Board ofFuneral Service Education must have an additional sixty (60)hours of study from an accredited college or university orequivalent, referred to in this Opinion as general education, tosatisfy the requirements for licensure as an embalmer or funeraldirector. When an associate degree program requires more thansixty (60) hours to complete, nonmortuary science hours over andabove the sixty (60) hours required to fulfill the minimum ABFSEaccreditation requirements may be applied toward the generaleducation requirement.
W.A. DREW EDMONDSON ATTORNEY GENERAL OF OKLAHOMA
JOSEPH L. McCORMICK IV ASSISTANT ATTORNEY GENERAL
1 Because your question is limited to the educational aspects of licensure, only Sections 7 and 8 of OAC 235:10-3-1 are discussed in this Opinion, as only these sections deal with the educational requirements for licensure.
2 State Board of Embalmers and Funeral Directors (July 1992) Rule OAC 235:10-3-1(8)(C) said that "[m]ortuary science education courses may be included in the sixty (60) total semester hours required."
3 The emergency rule became a permanent rule in August, 1994.