Section 407.1031

Title XXVI TRADE AND COMMERCE

Chapter 407

Effective - 28 Aug 1998   

  407.1031.  Procedure, before administrative hearing commission, application, notice, hearing, order, review. — 1.  Any party seeking relief pursuant to the provisions of sections 407.1025 to 407.1049 may file an application for a hearing with the administrative hearing commission within the time periods specified in this section.  The application for a hearing shall comply with the requirements for a request for agency action set forth in chapter 536.  Simultaneously, with the filing of the application for a hearing with the administrative hearing commission, the applicant shall send by certified mail, return receipt requested, a copy of the application to the party or parties against whom relief is sought.  Within ten days of receiving a timely application for a hearing, the administrative hearing commission shall enter an order fixing a date, time and place for a hearing on the record.  Such hearing shall be within forty-five days of the date of the order but the administrative hearing commission may continue the hearing date up to twenty-five additional days by agreement of the parties or upon a finding of good cause.  The administrative hearing commission shall send by certified mail, return receipt requested, a copy of the order to the party seeking relief and to the party or parties against whom relief is sought.  The order shall also state that the party against whom relief is sought shall not proceed with the initiation of its activity or activities until the administrative hearing commission issues its final decision or order.

  2.  Unless otherwise expressly provided in sections 407.1025 to 407.1049, the provisions of chapter 536 shall govern hearings and prehearing procedures conducted pursuant to the authority of this section.  The administrative hearing commission shall issue a final decision or order, in proceedings arising pursuant to the provisions of sections 407.1025 to 407.1049, within forty-five days from the conclusion of the hearing.  Any final decisions shall be subject to review pursuant to a petition for review to be filed in the court of appeals in the district in which the hearing, or any part of the hearing, is held and by delivery of copies of the petition to each party of record, within thirty days after the mailing or delivery of the final decision and notice of the final decision in such a case.  Review pursuant to this section shall be exclusive and decisions of the administrative hearing commission reviewable pursuant to this section shall not be reviewable in any other proceeding, and no other official or court shall have power to review any such decision by an action in the nature of mandamus or otherwise, except pursuant to the provisions of this section.  The party seeking review shall be responsible for the filing of the transcript and record of all proceedings before the administrative hearing commission with the appropriate court of appeals.

  3.  Any franchisee receiving a notice from a franchisor pursuant to the provisions of sections 407.1025 to 407.1049, or any franchisee adversely affected by a franchisor's acts or proposed acts described in the provisions of sections 407.1025 to 407.1049, shall be entitled to file an application for a hearing before the administrative hearing commission for a determination as to whether the franchisor has good cause for its acts or proposed acts.

  4.  Not less than sixty days before the effective date of the initiation of any enumerated act pursuant to subdivisions (5), (6), (7) and (14) of section 407.1034, a franchisor shall give written notice to the affected franchisee or franchisees, by certified mail, return receipt requested, except as follows:

  (1)  Upon the initiation of an act pursuant to subdivision (5) of section 407.1034, such notice shall be given not less than fifteen days before the effective date of such act only if the grounds for the notice include the following:

  (a)  Transfer of any ownership or interest in the franchised dealership without the consent of the motorcycle or all-terrain vehicle franchisor;

  (b)  Material misrepresentation by the motorcycle or all-terrain vehicle franchisee in applying for the franchise;

  (c)  Insolvency of the motorcycle or all-terrain vehicle franchisee or the filing of any petition by or against the motorcycle or all-terrain vehicle franchisee under any bankruptcy or receivership law;

  (d)  Any unfair business practice by the motorcycle or all-terrain vehicle franchisee after the motorcycle or all-terrain vehicle franchisor has issued a written warning to the motorcycle or all-terrain vehicle franchisee to desist from such practice;

  (e)  Conviction of the motorcycle or all-terrain vehicle franchisee of a crime which is a felony;

  (f)  Failure of the motorcycle or all-terrain vehicle franchisee to conduct customary sales and service operations during customary business hours for at least seven consecutive business days unless such closing is due to an act of God, strike or labor difficulty or other cause over which the motorcycle or all-terrain vehicle franchisee has no control; or

  (g)  Revocation of the motorcycle or all-terrain vehicle franchisee's license;

  (2)  Upon initiation of an act pursuant to subdivision (7) of section 407.1034, such notice shall be given within sixty days of the franchisor's receipt of a written proposal to consummate such sale or transfer and the receipt of all necessary information and documents generally used by the franchisor to conduct its review.  The franchisor's notice of disapproval shall also specify the reasonable standard which the franchisor contends is not satisfied and the reason the franchisor contends such standard is not satisfied.  Failure on the part of the franchisor to provide such notice shall be conclusively deemed an approval by the franchisor of the proposed sale or transfer to the proposed transferee.  A franchisee's application for a hearing shall be filed with the administrative hearing commission within fifteen days from receipt of such franchisor's notice;

  (3)  Pursuant to paragraphs (a) and (b) of subdivision (14) of section 407.1034, such notice shall be given within sixty days of the franchisor's receipt of a deceased or incapacitated franchisee's designated family member's intention to succeed to the franchise or franchises or of the franchisor's receipt of the personal and financial data of the designated family member, whichever is later.

  5.  A franchisor's notice to a franchisee or franchisees pursuant to subdivisions (5), (6), (7) and (14) of section 407.1034 shall contain a statement of the particular grounds supporting the intended action or activity which shall include any reasonable standards which were not satisfied.  The notice shall also contain at a minimum, on the first page thereof, a conspicuous statement which reads as follows:

"NOTICE TO FRANCHISEE:  YOU MAY BE ENTITLED TO FILE A PROTEST WITH THE MISSOURI ADMINISTRATIVE HEARING COMMISSION IN JEFFERSON CITY, MISSOURI, AND HAVE A HEARING IN WHICH YOU MAY PROTEST THE CONTENTS OF THIS NOTICE.  ANY ACTION MUST BE FILED WITHIN FIFTEEN DAYS FROM RECEIPT OF THIS NOTICE."

  6.  When more than one application for a hearing is filed with the administrative hearing commission, the administrative hearing commission may consolidate the applications into one proceeding to expedite the disposition of all relevant issues.

  7.  In all proceedings before the administrative hearing commission pursuant to this section and section 407.1034, where the franchisor is required to give notice pursuant to subsection 5 of this section, the franchisor shall have the burden of proving by a preponderance of the evidence that good cause exists for its actions.  In all other actions, the franchisee shall have the burden of proof.

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(L. 1998 H.B. 1055 § 3)