A Summary of Florida’s Cremation Statutes
The Florida Vital Statistics Law, codified under Florida Statutes Section 382.003, expressly dictates the protocol for the disposal of human remains in our state. Its associated rules and regulations governing cremation in Florida, Florida Administrative Code 64J-3.007(5) are binding upon funeral directors, crematories, and cemeteries and prohibit parties from adopting any regulation that limits their powers or duties. Nevertheless, it is necessary to understand a few fundamentals about Florida cremation laws and rules, since it is the framework used by our judicial and regulatory agencies to exercise their discretion when suitable.
The local Board of County Commissioners regulates funeral homes in Florida since the local governmental unit has exclusive authority to issue licenses to operators and employees under Section 497.141(1). These licenses authorize said funeral homes to conduct cremations as agents of the crematory. Funeral directors are also required to issue cremation services permits which do not expire while the permit holder remains in business. Any company or individual who conducts a cremation without the appropriate license or in violation of any rules , may be charged with a misdemeanor of the first degree under Sections 497.606, 497.607, and 497.6075.
A cremation authorization form is required as a pre-condition for a cremation to occur under Section 497.6075(1). This form may be signed by any family member in the prioritized order listed under section 497.005(37), including:
1. Any one of the following persons that the decedent named in writing as a priority in controlling disposition:
(a) Spouse.
(b) Adult child.
(c) Parent.
(d) Sibling.
(e) Guardian of the person of the decedent at the time of death.
(f) Guardian of the property of the decedent at the time of death.
(g) Any other person who was authorized to dispose of the remains of the decedent pursuant to s. 497.005(37).
2. In the absence of someone named in paragraph (1), the following shall become the legal representatives for purposes of signing a cremation authorization form in order of priority listed:
(a) An adult child or grandchild.
(b) A sibling or another relative.
(c) A guardian of the decedent.
(d) A guardian of the decedent’s estate.
Permissions and Allowances
Consent for cremation must be in writing, and the signature of the authorizing agent shall be obtained by the funeral director, cemetery, or crematory, and indicates that the signatory has read and understands the contents of the form. Preparation of the cremation authorization form must be done by the licensed funeral director or the operator of the crematory. Identification of the decedent is to be done by the authorizing agent, power of attorney for health care surrogate, or other appropriate person along with the forms identified in the rule. The identification must include written proof of identification of the decedent and authorizing agent and must have a color photograph measuring 2 by 2 inches.
Deadlines and Delays
Cremation in Florida is generally a speedy and efficient process, but there are timeframes and waiting periods at all stages that must be considered. In Florida, there are 24 hours waiting period for cremation by law. However, it does seem to depend somewhat on where the cremation is taking place.
Mandatory Waiting Period Florida statute (F.S. 497.605) states that the cremation of human remains shall not take place until: (1) The remains have been identified and positively identified; (2) The medical examiner has been notified and has consented to the cremation; (3) The funeral home has received, examined, and made a copy of the certificate required by s. 497.605(3); and (4) At least 24 hours have elapsed after the issuance of the authorization for cremation required by s. 497.607(2).
Exclusions from Waiting Period Requirement However, there are exceptions to the waiting period:
Decedents Dying in Hospital or Nursing Home Under a Doctor’s Care The 24 hour waiting period requirement may be waived by the funeral director if the decedent died while in the hospital or nursing home under a doctor’s care.
Burial at Sea Also, there is no 24 hour waiting period requirement for burial at sea as long as the human remains have been properly processed for burial as defined by Florida Administrative Code Regulation 69A-44.002.
Sea Burials are Very Popular With Many Different Cultures Cremation does offer even more popular favor with families looking for ways to memorialize their loved ones. As discussed in my last blog post on cremation, not everyone chooses to keep the ashes in an urn – there are a whole host of alternative uses for cremated remains trending up in popularity these days, from diamond jewelry, to tattoo ink, to skydiving, to ocean and space burials. Video: What are Sea Burials? If you’re considering sea burials (of either ashes or remains) for a loved one, you can view my article on Sea Burials to learn about the process, how to arrange them, and more. Foerster’s Sea Burials offers world wide sea burials for both cremated ashes and remains in the Los Angeles area.
Disposition and Treatment of Ashes and Remains
When a person is cremated, the law provides that the funeral director has the responsibility for with the handling of the ashes and remains. In addition, the law also defines the rest to have been "finalized".
Florida Law sets forth specific requirements for the handling of remains and may include, but not be limited to the following: Once a body has been cremated, the funeral home may hold the cremains in their possession for up to 120 days before returning them to the family or depositing them into an interment site. If the family does not claim the cremains, the funeral home may dispose of them in a way that is, in the funeral home’s opinion, respectful and dignified .
Florida Statute § 406.61 (4) goes further to establish further requirements of a funeral home in handling cremains. Florida Statute § 406.61(4) Notwithstanding other provisions of this chapter, a funeral director or a cemetery using containers commingled by an operator of a columbarium must, within 120 days after final disposition was performed, deliver the cremated remains to the person or persons entitled to them or to an officer or director of a cemetery company to be interred and to seal the container in a manner as to properly identify the remains contained therein.
Fees and Licenses
Before any cremation can take place in Florida, the death must be registered and a permit obtained. An official search of numerous Florida counties shows that there is no state fee associated with issuing the permit. However, there are local fees, and these vary depending on where in Florida the death has occurred. For example, fees for permits in Orange County, Florida vary between $7 and $21, depending on the locality. In Lee County, Florida, the minor fees (there are multiple small fees) total up to $15. Generally, counties like Lake, Orange, Polk, Pasco, Pinellas, Sarasota, Martin, Brevard, Hendry, Hillsborough and Collier have some type of varying fee. This research is not exhaustive as some counties do not disclose their fees and some county charges are dependent on other fees. Along with issuing the permit for cremation, the person or entity who performs the cremation must file a Certificate of Removal and Transit.
Standards for the Environment and Health
Crematories must comply with the environmental safety regulations as set forth by state and local agencies. State regulators require that all crematories comply with the emissions requirements as set forth in the United States Clean Air Act (42 U.S.C.ss 7401 et seq.,) and the Florida Air and Water Pollution Control Act. In particular, the crematory must meet the maximum allowable emission limits established by the United States Environmental Protection Agency. (Note: this may not apply to a "small crematory"). Florida does not require a permit that "regulates air toxics emitted from a crematory because . . . crematories are not a listed source for air toxic purposes." See the Florida Construction and Energy Codes at IBC 2604.5 , 1907.1. In addition, the crematory, as part of the cremation process, must be monitored at all times and keep monitoring logs of its operations. Ambient or continuous emissions monitoring must also be maintained. Id. Additionally, the crematory must be inspected and monitored remotely by a third party that is approved by the Florida Department of Environmental Protection to ensure that the crematory remains in compliance with the proper environmental and safety standards.