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Title XXXVI STATUTORY ACTIONS AND TORTS

  Chapter 536back to chapter 536

  536.010.  Definitions. — For the purpose of this chapter:

  (1)  "Affected small business" or "affects small business" means any potential or actual requirement imposed upon a small business or minority small business through a state agency's proposed or adopted rule that will cause direct and significant economic burden upon a small business or minority small business, or that is directly related to the formation, operation, or expansion of a small business;

  (2)  "Agency" means any administrative officer or body existing under the constitution or by law and authorized by law or the constitution to make rules or to adjudicate contested cases, except those in the legislative or judicial branches;

  (3)  "Board" means the small business regulatory fairness board, except when the word is used in section 536.100;

  (4)  "Contested case" means a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing;

  (5)  The term "decision" includes decisions and orders whether negative or affirmative in form;

  (6)  "Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy, or that describes the organization, procedure, or practice requirements of any agency.  The term includes the amendment or repeal of an existing rule, but does not include:

  (a)  A statement concerning only the internal management of an agency and which does not substantially affect the legal rights of, or procedures available to, the public or any segment thereof;

  (b)  A declaratory ruling issued pursuant to section 536.050, or an interpretation issued by an agency with respect to a specific set of facts and intended to apply only to that specific set of facts;

  (c)  An intergovernmental, interagency, or intraagency memorandum, directive, manual or other communication which does not substantially affect the legal rights of, or procedures available to, the public or any segment thereof;

  (d)  A determination, decision, or order in a contested case;

  (e)  An opinion of the attorney general;

  (f)  Those portions of staff manuals, instructions or other statements issued by an agency which set forth criteria or guidelines to be used by its staff in auditing, in making inspections, in settling commercial disputes or negotiating commercial arrangements, or in the selection or handling of cases, such as operational tactics or allowable tolerances or criteria for the defense, prosecution, or settlement of cases, when the disclosure of such statements would enable law violators to avoid detection, facilitate disregard of requirements imposed by law, or give a clearly improper advantage to persons who are in an adverse position to the state;

  (g)  A specification of the prices to be charged for goods or services sold by an agency as distinguished from a license fee, or other fees;

  (h)  A statement concerning only the physical servicing, maintenance or care of publicly owned or operated facilities or property;

  (i)  A statement relating to the use of a particular publicly owned or operated facility or property, the substance of which is indicated to the public by means of signs or signals;

  (j)  A decision by an agency not to exercise a discretionary power;

  (k)  A statement concerning only inmates of an institution under the control of the department of corrections and human resources or the division of youth services, students enrolled in an educational institution, or clients of a health care facility, when issued by such an agency;

  (l)  Statements or requirements establishing the conditions under which persons may participate in exhibitions, fairs or similar activities, managed by the state or an agency of the state;

  (m)  Income tax or sales forms, returns and instruction booklets prepared by the state department of revenue for distribution to taxpayers for use in preparing tax returns;

  (7)  "Small business" means a for-profit enterprise consisting of fewer than one hundred full- or part-time employees;

  (8)  "State agency" means each board, commission, department, officer or other administrative office or unit of the state other than the general assembly, the courts, the governor, or a political subdivision of the state, existing under the constitution or statute, and authorized by the constitution or statute to make rules or to adjudicate contested cases.

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(L. 1945 p. 1504 § 1, A.L. 1957 p. 748, A.L. 1976 S.B. 478, A.L. 2004 H.B. 978, A.L. 2005 H.B. 576, A.L. 2006 S.B. 1146)

(1977) Held, director of revenue must hold hearing on question as to reasonable possibility of judgment being rendered against a person, requires a hearing under § 303.290, RSMo, and is a "contested case" coming under the provision of Chap.  536, RSMo. Randle et al. v. Spradling (Mo.), 556 S.W.2d 10.

(1979) Mandamus was remedy when city council denied a liquor license under a municipal code when all conditions were met and was not a "contested" case. State ex rel. Keeven v. City of Hazelwood, et al. (A.), 585 S.W.2d 557.

(1995) Local school boards qualify as agencies under this definition.  If a hearing is required by substantive law, it must be conducted according to contested case procedures.  State ex rel. Clint Yarber v. McHenry, 915 S.W.2d 325 (Mo.banc).

(2000) Fire protection district had the power to hire and fire employees and thus was an "agency" under the section's definition. Krentz v. Robertson, 228 F.3d 897 (8th Cir.).


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