Missouri Revised Statutes
Chapter 407
Merchandising Practices
←407.820
Section 407.822.1
407.825→
August 28, 2015
Complaint with administrative hearing commission, filing, when--time and place of hearing--notice to parties--final order, when--petition for review of final order--franchisee's right to file complaint, when--notice to franchisee, when, exceptions--statement required in franchisor's notice--consolidation of applications--burden of proof--mediation, when.
407.822. 1. Any party seeking relief pursuant to the provisions of
sections 407.810 to 407.835 may file a complaint with the administrative
hearing commission within the time periods specified in this section. The
complaint shall comply with the requirements for a request for agency
action set forth in chapter 536. Simultaneously, with the filing of the
complaint with the administrative hearing commission, the petitioner shall
send by certified mail, return receipt requested, a copy of the complaint
to the party or parties against whom relief is sought. Upon receiving a
timely complaint, the administrative hearing commission shall enter an
order fixing a date, time and place for a hearing on the record. The
administrative hearing commission shall send by certified mail, return
receipt requested, a copy of the order to the party seeking relief and a
copy of the order and complaint 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, and the party against whom relief is sought shall,
within thirty days of such order, file an answer or other responsive
pleading directed to each claim for relief set forth in the complaint.
Failure to answer or otherwise respond within such time frame may be deemed
by the administrative hearing commission as an admission of the grounds for
relief set forth in the complaint.
2. Unless otherwise expressly provided in sections 407.810 to
407.835, the provisions of chapter 536 shall govern hearings and prehearing
procedures conducted pursuant to the authority of this section. Any party
may obtain discovery in the same manner, and under the same conditions and
requirements, as is or may hereafter be provided for with respect to
discovery in civil actions by rule of the supreme court of Missouri for use
in the circuit courts, and the administrative hearing commission may
enforce discovery by the same methods as provided by supreme court rule for
use in civil cases. The administrative hearing commission shall issue a
final decision or order, in proceedings arising pursuant to the provisions
of sections 407.810 to 407.835, within ninety days from the conclusion of
the hearing. In any proceeding initiated pursuant to sections 407.810 to
407.835 involving a matter requiring a franchisor to show good cause for
any intended action being protested by a franchisee, the franchisor shall
refrain from taking the protested action if, after a hearing on the matter
before the administrative hearing commission, the administrative hearing
commission determines that good cause does not exist for the franchisor to
take such action. The franchisee may, if necessary, seek enforcement of
the decision of the administrative hearing commission pursuant to the
provisions of section 407.835. Venue for such proceedings shall be in the
circuit court of Cole County, Missouri, or in the circuit court of the
county in which the franchisee resides or operates the franchise business.
In determining any relief necessary for enforcement of the decision of the
administrative hearing commission, the court shall defer to the
commission's factual findings, and review shall be limited to a
determination of whether the commission's decision was authorized by law
and whether the commission abused its discretion. Any final decisions of
the administrative hearing commission 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. Appeal of the administrative hearing
commission's decision pursuant to this section shall not preclude any
action authorized by section 407.835, brought in a court of competent
jurisdiction, requesting an award of legal or equitable relief, provided
that if such an action is brought solely for the purpose of enforcing a
decision of the administrative hearing commission which is on appeal
pursuant to this subsection, the court in which such action is pending may
hold in abeyance its judgment pending issuance of a decision by the court
of appeals. 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 407.810 to 407.835, or any franchisee adversely
affected by a franchisor's acts or proposed acts described in the
provisions of sections 407.810 to 407.835, shall be entitled to file a
complaint 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 407.825, 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 407.825, 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 motor vehicle franchisor;
(b) Material misrepresentation by the motor vehicle franchisee in
applying for the franchise that substantially and adversely affects the
franchisor;
(c) Insolvency of the motor vehicle franchisee or the filing of any
petition by or against the motor vehicle franchisee under any bankruptcy or
receivership law that is not vacated within twenty days from the
institution thereof;
(d) Any unfair business practice by the motor vehicle franchisee
after the motor vehicle franchisor has issued a written thirty-day warning
to the motor vehicle franchisee to desist from such practice and the
franchisee has failed to desist from the practice after having received the
written thirty-day warning;
(e) Conviction of the motor vehicle franchisee of a crime which is a
felony;
(f) Failure of the motor 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 motor vehicle
franchisee has no control; or
(g) Revocation of the motor vehicle franchisee's license;
(2) Upon initiation of an act pursuant to subdivision (7) of section
407.825, 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 shall acknowledge in
writing to the applicant the receipt of the information and documents and
if the franchisor requires additional information or documents to complete
its review, the franchisor shall notify the applicant within fifteen days
of the receipt of the information and documents. If the franchisor fails
to request additional information and documents from the applicant within
fifteen days after receipt of the initial forms, the sixty-day time period
for approval shall be deemed to run from the initial receipt date.
Otherwise, the sixty-day time period for approval shall run from receipt of
the supplemental requested information. In no event shall the total time
period for approval exceed ninety days from the date of the receipt of the
written proposal. 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 twenty days from receipt of such franchisor's notice;
(3) Pursuant to paragraphs (a) and (b) of subdivision (14) of section
407.825, 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 407.825 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 is not effective unless it also contains, 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 THIRTY DAYS FROM RECEIPT OF THIS NOTICE. YOU
ALSO HAVE THE RIGHT TO DEMAND NONBINDING MEDIATION. YOUR DEMAND FOR
MEDIATION MAY BE MAILED TO THE ADDRESS SHOWN ON THIS NOTICE. FOR FURTHER
INFORMATION, CONTACT YOUR ATTORNEY AND REFER TO SECTIONS 407.810 TO
407.835, RSMO.".
6. When more than one complaint 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. Unless otherwise specifically required by another provision of the
MVFP act, in all proceedings pursuant to sections 407.810 to 407.835, the
franchisor shall have the burden of proving by a preponderance of the
evidence that it has acted in good faith, that all required notices were
given, and that good cause exists for its actions.
8. If a franchisee prevails in an action against a franchisor under
any provision of sections 407.810 to 407.835, then the franchisee shall
also have a cause of action against the franchisor for damages and
reasonable expenses of litigation, including, but not limited to,
depositions, transcripts, expert witnesses, and attorney fees.
9. A franchisee may mail a demand for mediation to its franchisor at
any time after it receives any notice from a franchisor as required by any
provision of the MVFP act. In addition, prior to, contemporaneous with, or
after the filing of a complaint with the administrative hearing commission,
a franchisee may mail a demand for mediation to its franchisor for any
violation by the franchisor of any provision of the MVFP act. The mailing
of the demand for mediation is effective when mailed to the address shown
on the notice from the franchisor, the address shown on the franchise
agreement, the address of the franchisor shown on its license with the
department of revenue, the address of the franchisor's registered agent in
this state, or the address of its attorney in a proceeding pending at the
administrative hearing commission concerning the subject of the demand for
mediation. The demand for mediation shall contain a short statement of the
dispute and the relief sought by the franchisee; however, the contents of
the demand are not jurisdictional.
10. The mailing of a demand for mediation stays any time period for
the franchisee to initiate any action under the MVFP act that is the
subject of the dispute described in the demand for mediation. If the
parties fail to resolve the matter in dispute after meeting with the
mediator, then the time period for filing any action with the
administrative hearing commission shall start on the first business day
after the date of the last date of any meeting with the mediator.
11. If a proceeding is pending before the administrative hearing
commission concerning the subject of the demand for mediation, the
franchisee shall also file a copy of the demand for mediation with the
administrative hearing commission. The filing of a copy of the demand for
mediation with the administrative hearing commission shall stay any further
action by the administrative hearing commission, other than the issuance of
the order required of the administrative hearing commission under
subsection 1 of this section informing the franchisor that it shall not
proceed with the initiation of its activity or activities until the
administrative hearing commission issues its final decision or order. If
the matter is not resolved after the meeting with the mediator, then either
party may inform the administrative hearing commission that the matter is
not resolved and the administrative hearing commission shall issue its
order terminating the stay of its proceeding.
12. Within five business days after the date of receipt of the demand
for mediation, the franchisor shall contact the franchisee or its legal
representative reflected in the demand for mediation to exchange suggested
lists of mediators. The parties shall mutually accept a mediator within
two business days after the date of exchanging suggested lists of
mediators. If the parties cannot agree on a mediator, then the presiding
judge in Cole County or in the circuit court for the county in which the
franchisee does business shall appoint the mediator. Within twenty days
after the receipt of the demand for mediation, the parties shall meet with
the mediator for the purpose of attempting to resolve the dispute. The
meeting shall take place in this state at a location designated by the
mediator. The mediator may extend the date of the meeting upon the
agreement of the parties or upon good cause shown by either party.
13. The director of revenue shall require each franchisor to
establish and maintain a panel of mediators who may serve as mediators for
disputes that may arise in this state with its franchisees.
(L. 1997 H.B. 516, A.L. 2001 H.B. 693, A.L. 2001 H.B. 575, A.L. 2010
H.B. 2198)
2001
2001
2001
2001
407.822. 1. Any party seeking relief pursuant to the provisions of
sections 407.810 to 407.835 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, RSMo.
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. Upon 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. 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, and the party
against whom relief is sought shall, within thirty days of such order, file
an answer or other responsive pleading directed to each claim for relief
set forth in the application for hearing. Failure to answer or otherwise
respond within such time frame may be deemed by the administrative hearing
commission as an admission of the grounds for relief set forth in the
application for hearing.
2. Unless otherwise expressly provided in sections 407.810 to
407.835, the provisions of chapter 536, RSMo, shall govern hearings and
prehearing procedures conducted pursuant to the authority of this section.
Any party may obtain discovery in the same manner, and under the same
conditions and requirements, as is or may hereafter be provided for with
respect to discovery in civil actions by rule of the supreme court of
Missouri for use in the circuit courts, and the administrative hearing
commission may enforce discovery by the same methods as provided by supreme
court rule for use in civil cases. The administrative hearing commission
shall issue a final decision or order, in proceedings arising pursuant to
the provisions of sections 407.810 to 407.835, within ninety days from the
conclusion of the hearing. In any proceeding initiated pursuant to
sections 407.810 to 407.835 involving a matter requiring a franchisor to
show good cause for any intended action being protested by a franchisee,
the franchisor shall refrain from taking the protested action if, after a
hearing on the matter before the administrative hearing commission, the
administrative hearing commission determines that good cause does not exist
for the franchisor to take such action. The franchisee may, if necessary,
seek enforcement of the decision of the administrative hearing commission
pursuant to the provisions of section 407.835. Venue for such proceedings
shall be in the circuit court of Cole County, Missouri, or in the circuit
court of the county in which the franchisee resides or operates the
franchise business. In determining any relief necessary for enforcement of
the decision of the administrative hearing commission, the court shall
defer to the commission's factual findings, and review shall be limited to
a determination of whether the commission's decision was authorized by law
and whether the commission abused its discretion. Any final decisions of
the administrative hearing commission 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. Appeal of the administrative hearing
commission's decision pursuant to this section shall not preclude any
action authorized by section 407.835, brought in a court of competent
jurisdiction, requesting an award of legal or equitable relief, provided
that if such an action is brought solely for the purpose of enforcing a
decision of the administrative hearing commission which is on appeal
pursuant to this subsection, the court in which such action is pending may
hold in abeyance its judgment pending issuance of a decision by the court
of appeals. 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 407.810 to 407.835, or any franchisee adversely
affected by a franchisor's acts or proposed acts described in the
provisions of sections 407.810 to 407.835, 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 subsection 1 of section 407.825, 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
subsection 1 of section 407.825, 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 motor vehicle franchisor;
(b) Material misrepresentation by the motor vehicle franchisee in
applying for the franchise;
(c) Insolvency of the motor vehicle franchisee or the filing of any
petition by or against the motor vehicle franchisee under any bankruptcy or
receivership law;
(d) Any unfair business practice by the motor vehicle franchisee
after the motor vehicle franchisor has issued a written warning to the
motor vehicle franchisee to desist from such practice;
(e) Conviction of the motor vehicle franchisee of a crime which is a
felony;
(f) Failure of the motor 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 motor vehicle
franchisee has no control; or
(g) Revocation of the motor vehicle franchisee's license;
(2) Upon initiation of an act pursuant to subdivision (7) of
subsection 1 of section 407.825, 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
shall acknowledge in writing to the applicant the receipt of the
information and documents and if the franchisor requires additional
information or documents to complete its review, the franchisor shall
notify the applicant within fifteen days of the receipt of the information
and documents. If the franchisor fails to request additional information
and documents from the applicant within fifteen days after receipt of the
initial forms, the sixty-day time period for approval shall be deemed to
run from the initial receipt date. Otherwise, the sixty-day time period
for approval shall run from receipt of the supplemental requested
information. In no event shall the total time period for approval exceed
seventy-five days from the date of 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 twenty days from receipt of
such franchisor's notice;
(3) Pursuant to paragraphs (a) and (b) of subdivision (14) of
subsection 1 of section 407.825, 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 subsection 1 of section 407.825
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 TWENTY 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, section 407.825 and section 621.053, RSMo, where
the franchisor is required to give notice pursuant to subsection 4 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.
2001
407.822. 1. Any party seeking relief pursuant to the provisions of
sections 407.810 to 407.835 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, RSMo.
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. Upon receipt of 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.
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 407.810 to
407.835, the provisions of chapter 536, RSMo, 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
407.810 to 407.835. Any final decisions of the administrative hearing
commission 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 407.810 to 407.835, or any franchisee adversely
affected by a franchisor's acts or proposed acts described in the
provisions of sections 407.810 to 407.835, 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 subsection 1 of section 407.825, 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
subsection 1 of section 407.825, 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 motor vehicle franchisor;
(b) Material misrepresentation by the motor vehicle franchisee in
applying for the franchise;
(c) Insolvency of the motor vehicle franchisee or the filing of any
petition by or against the motor vehicle franchisee under any bankruptcy or
receivership law;
(d) Any unfair business practice by the motor vehicle franchisee
after the motor vehicle franchisor has issued a written warning to the
motor vehicle franchisee to desist from such practice;
(e) Conviction of the motor vehicle franchisee of a crime which is a
felony;
(f) Failure of the motor 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 motor vehicle
franchisee has no control; or
(g) Revocation of the motor vehicle franchisee's license;
(2) Upon initiation of an act pursuant to subdivision (7) of
subsection 1 of section 407.825, 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 twenty days from receipt of such
franchisor's notice;
(3) Pursuant to paragraphs (a) and (b) of subdivision (14) of
subsection 1 of section 407.825, 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 subsection 1 of section 407.825
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 TWENTY 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, section 407.825 and section 621.053, RSMo, where
the franchisor is required to give notice pursuant to subsection 4 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.
2001
407.822. 1. Any party seeking relief pursuant to the provisions of
sections 407.810 to 407.835 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, RSMo.
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. Upon receipt of 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.
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 407.810 to
407.835, the provisions of chapter 536, RSMo, 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
407.810 to 407.835. Any final decisions of the administrative hearing
commission 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 407.810 to 407.835, or any franchisee adversely
affected by a franchisor's acts or proposed acts described in the
provisions of sections 407.810 to 407.835, 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 subsection 1 of section 407.825, 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
subsection 1 of section 407.825, 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 motor vehicle franchisor;
(b) Material misrepresentation by the motor vehicle franchisee in
applying for the franchise;
(c) Insolvency of the motor vehicle franchisee or the filing of any
petition by or against the motor vehicle franchisee under any bankruptcy or
receivership law;
(d) Any unfair business practice by the motor vehicle franchisee
after the motor vehicle franchisor has issued a written warning to the
motor vehicle franchisee to desist from such practice;
(e) Conviction of the motor vehicle franchisee of a crime which is a
felony;
(f) Failure of the motor 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 motor vehicle
franchisee has no control; or
(g) Revocation of the motor vehicle franchisee's license;
(2) Upon initiation of an act pursuant to subdivision (7) of
subsection 1 of section 407.825, 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 twenty days from receipt of such
franchisor's notice;
(3) Pursuant to paragraphs (a) and (b) of subdivision (14) of
subsection 1 of section 407.825, 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 subsection 1 of section 407.825
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 TWENTY 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, section 407.825 and section 621.053, RSMo, where
the franchisor is required to give notice pursuant to subsection 4 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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