Procedure, before administrative hearing commission, application,notice, hearing, order, review.
407.1031. 1. Any party seeking relief pursuant to the provisions ofsections 407.1025 to 407.1049 may file an application for a hearing withthe administrative hearing commission within the time periods specified inthis section. The application for a hearing shall comply with therequirements for a request for agency action set forth in chapter 536,RSMo. Simultaneously, with the filing of the application for a hearingwith the administrative hearing commission, the applicant shall send bycertified mail, return receipt requested, a copy of the application to theparty or parties against whom relief is sought. Within ten days ofreceiving a timely application for a hearing, the administrative hearingcommission shall enter an order fixing a date, time and place for a hearingon the record. Such hearing shall be within forty-five days of the date ofthe order but the administrative hearing commission may continue thehearing date up to twenty-five additional days by agreement of the partiesor upon a finding of good cause. The administrative hearing commissionshall send by certified mail, return receipt requested, a copy of the orderto the party seeking relief and to the party or parties against whom reliefis sought. The order shall also state that the party against whom reliefis sought shall not proceed with the initiation of its activity oractivities until the administrative hearing commission issues its finaldecision or order.
2. Unless otherwise expressly provided in sections 407.1025 to407.1049, the provisions of chapter 536, RSMo, shall govern hearings andprehearing procedures conducted pursuant to the authority of this section.The administrative hearing commission shall issue a final decision ororder, in proceedings arising pursuant to the provisions of sections407.1025 to 407.1049, within forty-five days from the conclusion of thehearing. Any final decisions shall be subject to review pursuant to apetition for review to be filed in the court of appeals in the district inwhich the hearing, or any part of the hearing, is held and by delivery ofcopies of the petition to each party of record, within thirty days afterthe mailing or delivery of the final decision and notice of the finaldecision in such a case. Review pursuant to this section shall beexclusive and decisions of the administrative hearing commission reviewablepursuant to this section shall not be reviewable in any other proceeding,and no other official or court shall have power to review any such decisionby an action in the nature of mandamus or otherwise, except pursuant to theprovisions of this section. The party seeking review shall be responsiblefor the filing of the transcript and record of all proceedings before theadministrative hearing commission with the appropriate court of appeals.
3. Any franchisee receiving a notice from a franchisor pursuant tothe provisions of sections 407.1025 to 407.1049, or any franchiseeadversely affected by a franchisor's acts or proposed acts described in theprovisions of sections 407.1025 to 407.1049, shall be entitled to file anapplication for a hearing before the administrative hearing commission fora determination as to whether the franchisor has good cause for its acts orproposed acts.
4. Not less than sixty days before the effective date of theinitiation of any enumerated act pursuant to subdivisions (5), (6), (7) and(14) of section 407.1034, a franchisor shall give written notice to theaffected franchisee or franchisees, by certified mail, return receiptrequested, except as follows:
(1) Upon the initiation of an act pursuant to subdivision (5) ofsection 407.1034, such notice shall be given not less than fifteen daysbefore the effective date of such act only if the grounds for the noticeinclude the following:
(a) Transfer of any ownership or interest in the franchiseddealership without the consent of the motorcycle or all-terrain vehiclefranchisor;
(b) Material misrepresentation by the motorcycle or all-terrainvehicle franchisee in applying for the franchise;
(c) Insolvency of the motorcycle or all-terrain vehicle franchisee orthe filing of any petition by or against the motorcycle or all-terrainvehicle franchisee under any bankruptcy or receivership law;
(d) Any unfair business practice by the motorcycle or all-terrainvehicle franchisee after the motorcycle or all-terrain vehicle franchisorhas issued a written warning to the motorcycle or all-terrain vehiclefranchisee to desist from such practice;
(e) Conviction of the motorcycle or all-terrain vehicle franchisee ofa crime which is a felony;
(f) Failure of the motorcycle or all-terrain vehicle franchisee toconduct customary sales and service operations during customary businesshours for at least seven consecutive business days unless such closing isdue to an act of God, strike or labor difficulty or other cause over whichthe motorcycle or all-terrain vehicle franchisee has no control; or
(g) Revocation of the motorcycle or all-terrain vehicle franchisee'slicense;
(2) Upon initiation of an act pursuant to subdivision (7) of section407.1034, such notice shall be given within sixty days of the franchisor'sreceipt of a written proposal to consummate such sale or transfer and thereceipt of all necessary information and documents generally used by thefranchisor to conduct its review. The franchisor's notice of disapprovalshall also specify the reasonable standard which the franchisor contends isnot satisfied and the reason the franchisor contends such standard is notsatisfied. Failure on the part of the franchisor to provide such noticeshall be conclusively deemed an approval by the franchisor of the proposedsale or transfer to the proposed transferee. A franchisee's applicationfor a hearing shall be filed with the administrative hearing commissionwithin fifteen days from receipt of such franchisor's notice;
(3) Pursuant to paragraphs (a) and (b) of subdivision (14) of section407.1034, such notice shall be given within sixty days of the franchisor'sreceipt of a deceased or incapacitated franchisee's designated familymember's intention to succeed to the franchise or franchises or of thefranchisor's receipt of the personal and financial data of the designatedfamily member, whichever is later.
5. A franchisor's notice to a franchisee or franchisees pursuant tosubdivisions (5), (6), (7) and (14) of section 407.1034 shall contain astatement of the particular grounds supporting the intended action oractivity which shall include any reasonable standards which were notsatisfied. The notice shall also contain at a minimum, on the first pagethereof, a conspicuous statement which reads as follows: "NOTICE TOFRANCHISEE: YOU MAY BE ENTITLED TO FILE A PROTEST WITH THE MISSOURIADMINISTRATIVE HEARING COMMISSION IN JEFFERSON CITY, MISSOURI, AND HAVE AHEARING IN WHICH YOU MAY PROTEST THE CONTENTS OF THIS NOTICE. ANY ACTIONMUST BE FILED WITHIN FIFTEEN DAYS FROM RECEIPT OF THIS NOTICE."
6. When more than one application for a hearing is filed with theadministrative hearing commission, the administrative hearing commissionmay consolidate the applications into one proceeding to expedite thedisposition of all relevant issues.
7. In all proceedings before the administrative hearing commissionpursuant to this section and section 407.1034, where the franchisor isrequired to give notice pursuant to subsection 5 of this section, thefranchisor shall have the burden of proving by a preponderance of theevidence that good cause exists for its actions. In all other actions, thefranchisee shall have the burden of proof.
Procedure, before administrative hearing commission, application,notice, hearing, order, review.
407.1031. 1. Any party seeking relief pursuant to the provisions ofsections 407.1025 to 407.1049 may file an application for a hearing withthe administrative hearing commission within the time periods specified inthis section. The application for a hearing shall comply with therequirements for a request for agency action set forth in chapter 536,RSMo. Simultaneously, with the filing of the application for a hearingwith the administrative hearing commission, the applicant shall send bycertified mail, return receipt requested, a copy of the application to theparty or parties against whom relief is sought. Within ten days ofreceiving a timely application for a hearing, the administrative hearingcommission shall enter an order fixing a date, time and place for a hearingon the record. Such hearing shall be within forty-five days of the date ofthe order but the administrative hearing commission may continue thehearing date up to twenty-five additional days by agreement of the partiesor upon a finding of good cause. The administrative hearing commissionshall send by certified mail, return receipt requested, a copy of the orderto the party seeking relief and to the party or parties against whom reliefis sought. The order shall also state that the party against whom reliefis sought shall not proceed with the initiation of its activity oractivities until the administrative hearing commission issues its finaldecision or order.
2. Unless otherwise expressly provided in sections 407.1025 to407.1049, the provisions of chapter 536, RSMo, shall govern hearings andprehearing procedures conducted pursuant to the authority of this section.The administrative hearing commission shall issue a final decision ororder, in proceedings arising pursuant to the provisions of sections407.1025 to 407.1049, within forty-five days from the conclusion of thehearing. Any final decisions shall be subject to review pursuant to apetition for review to be filed in the court of appeals in the district inwhich the hearing, or any part of the hearing, is held and by delivery ofcopies of the petition to each party of record, within thirty days afterthe mailing or delivery of the final decision and notice of the finaldecision in such a case. Review pursuant to this section shall beexclusive and decisions of the administrative hearing commission reviewablepursuant to this section shall not be reviewable in any other proceeding,and no other official or court shall have power to review any such decisionby an action in the nature of mandamus or otherwise, except pursuant to theprovisions of this section. The party seeking review shall be responsiblefor the filing of the transcript and record of all proceedings before theadministrative hearing commission with the appropriate court of appeals.
3. Any franchisee receiving a notice from a franchisor pursuant tothe provisions of sections 407.1025 to 407.1049, or any franchiseeadversely affected by a franchisor's acts or proposed acts described in theprovisions of sections 407.1025 to 407.1049, shall be entitled to file anapplication for a hearing before the administrative hearing commission fora determination as to whether the franchisor has good cause for its acts orproposed acts.
4. Not less than sixty days before the effective date of theinitiation of any enumerated act pursuant to subdivisions (5), (6), (7) and(14) of section 407.1034, a franchisor shall give written notice to theaffected franchisee or franchisees, by certified mail, return receiptrequested, except as follows:
(1) Upon the initiation of an act pursuant to subdivision (5) ofsection 407.1034, such notice shall be given not less than fifteen daysbefore the effective date of such act only if the grounds for the noticeinclude the following:
(a) Transfer of any ownership or interest in the franchiseddealership without the consent of the motorcycle or all-terrain vehiclefranchisor;
(b) Material misrepresentation by the motorcycle or all-terrainvehicle franchisee in applying for the franchise;
(c) Insolvency of the motorcycle or all-terrain vehicle franchisee orthe filing of any petition by or against the motorcycle or all-terrainvehicle franchisee under any bankruptcy or receivership law;
(d) Any unfair business practice by the motorcycle or all-terrainvehicle franchisee after the motorcycle or all-terrain vehicle franchisorhas issued a written warning to the motorcycle or all-terrain vehiclefranchisee to desist from such practice;
(e) Conviction of the motorcycle or all-terrain vehicle franchisee ofa crime which is a felony;
(f) Failure of the motorcycle or all-terrain vehicle franchisee toconduct customary sales and service operations during customary businesshours for at least seven consecutive business days unless such closing isdue to an act of God, strike or labor difficulty or other cause over whichthe motorcycle or all-terrain vehicle franchisee has no control; or
(g) Revocation of the motorcycle or all-terrain vehicle franchisee'slicense;
(2) Upon initiation of an act pursuant to subdivision (7) of section407.1034, such notice shall be given within sixty days of the franchisor'sreceipt of a written proposal to consummate such sale or transfer and thereceipt of all necessary information and documents generally used by thefranchisor to conduct its review. The franchisor's notice of disapprovalshall also specify the reasonable standard which the franchisor contends isnot satisfied and the reason the franchisor contends such standard is notsatisfied. Failure on the part of the franchisor to provide such noticeshall be conclusively deemed an approval by the franchisor of the proposedsale or transfer to the proposed transferee. A franchisee's applicationfor a hearing shall be filed with the administrative hearing commissionwithin fifteen days from receipt of such franchisor's notice;
(3) Pursuant to paragraphs (a) and (b) of subdivision (14) of section407.1034, such notice shall be given within sixty days of the franchisor'sreceipt of a deceased or incapacitated franchisee's designated familymember's intention to succeed to the franchise or franchises or of thefranchisor's receipt of the personal and financial data of the designatedfamily member, whichever is later.
5. A franchisor's notice to a franchisee or franchisees pursuant tosubdivisions (5), (6), (7) and (14) of section 407.1034 shall contain astatement of the particular grounds supporting the intended action oractivity which shall include any reasonable standards which were notsatisfied. The notice shall also contain at a minimum, on the first pagethereof, a conspicuous statement which reads as follows: "NOTICE TOFRANCHISEE: YOU MAY BE ENTITLED TO FILE A PROTEST WITH THE MISSOURIADMINISTRATIVE HEARING COMMISSION IN JEFFERSON CITY, MISSOURI, AND HAVE AHEARING IN WHICH YOU MAY PROTEST THE CONTENTS OF THIS NOTICE. ANY ACTIONMUST BE FILED WITHIN FIFTEEN DAYS FROM RECEIPT OF THIS NOTICE."
6. When more than one application for a hearing is filed with theadministrative hearing commission, the administrative hearing commissionmay consolidate the applications into one proceeding to expedite thedisposition of all relevant issues.
7. In all proceedings before the administrative hearing commissionpursuant to this section and section 407.1034, where the franchisor isrequired to give notice pursuant to subsection 5 of this section, thefranchisor shall have the burden of proving by a preponderance of theevidence that good cause exists for its actions. In all other actions, thefranchisee shall have the burden of proof.
Procedure, before administrative hearing commission, application,notice, hearing, order, review.
407.1031. 1. Any party seeking relief pursuant to the provisions ofsections 407.1025 to 407.1049 may file an application for a hearing withthe administrative hearing commission within the time periods specified inthis section. The application for a hearing shall comply with therequirements for a request for agency action set forth in chapter 536,RSMo. Simultaneously, with the filing of the application for a hearingwith the administrative hearing commission, the applicant shall send bycertified mail, return receipt requested, a copy of the application to theparty or parties against whom relief is sought. Within ten days ofreceiving a timely application for a hearing, the administrative hearingcommission shall enter an order fixing a date, time and place for a hearingon the record. Such hearing shall be within forty-five days of the date ofthe order but the administrative hearing commission may continue thehearing date up to twenty-five additional days by agreement of the partiesor upon a finding of good cause. The administrative hearing commissionshall send by certified mail, return receipt requested, a copy of the orderto the party seeking relief and to the party or parties against whom reliefis sought. The order shall also state that the party against whom reliefis sought shall not proceed with the initiation of its activity oractivities until the administrative hearing commission issues its finaldecision or order.
2. Unless otherwise expressly provided in sections 407.1025 to407.1049, the provisions of chapter 536, RSMo, shall govern hearings andprehearing procedures conducted pursuant to the authority of this section.The administrative hearing commission shall issue a final decision ororder, in proceedings arising pursuant to the provisions of sections407.1025 to 407.1049, within forty-five days from the conclusion of thehearing. Any final decisions shall be subject to review pursuant to apetition for review to be filed in the court of appeals in the district inwhich the hearing, or any part of the hearing, is held and by delivery ofcopies of the petition to each party of record, within thirty days afterthe mailing or delivery of the final decision and notice of the finaldecision in such a case. Review pursuant to this section shall beexclusive and decisions of the administrative hearing commission reviewablepursuant to this section shall not be reviewable in any other proceeding,and no other official or court shall have power to review any such decisionby an action in the nature of mandamus or otherwise, except pursuant to theprovisions of this section. The party seeking review shall be responsiblefor the filing of the transcript and record of all proceedings before theadministrative hearing commission with the appropriate court of appeals.
3. Any franchisee receiving a notice from a franchisor pursuant tothe provisions of sections 407.1025 to 407.1049, or any franchiseeadversely affected by a franchisor's acts or proposed acts described in theprovisions of sections 407.1025 to 407.1049, shall be entitled to file anapplication for a hearing before the administrative hearing commission fora determination as to whether the franchisor has good cause for its acts orproposed acts.
4. Not less than sixty days before the effective date of theinitiation of any enumerated act pursuant to subdivisions (5), (6), (7) and(14) of section 407.1034, a franchisor shall give written notice to theaffected franchisee or franchisees, by certified mail, return receiptrequested, except as follows:
(1) Upon the initiation of an act pursuant to subdivision (5) ofsection 407.1034, such notice shall be given not less than fifteen daysbefore the effective date of such act only if the grounds for the noticeinclude the following:
(a) Transfer of any ownership or interest in the franchiseddealership without the consent of the motorcycle or all-terrain vehiclefranchisor;
(b) Material misrepresentation by the motorcycle or all-terrainvehicle franchisee in applying for the franchise;
(c) Insolvency of the motorcycle or all-terrain vehicle franchisee orthe filing of any petition by or against the motorcycle or all-terrainvehicle franchisee under any bankruptcy or receivership law;
(d) Any unfair business practice by the motorcycle or all-terrainvehicle franchisee after the motorcycle or all-terrain vehicle franchisorhas issued a written warning to the motorcycle or all-terrain vehiclefranchisee to desist from such practice;
(e) Conviction of the motorcycle or all-terrain vehicle franchisee ofa crime which is a felony;
(f) Failure of the motorcycle or all-terrain vehicle franchisee toconduct customary sales and service operations during customary businesshours for at least seven consecutive business days unless such closing isdue to an act of God, strike or labor difficulty or other cause over whichthe motorcycle or all-terrain vehicle franchisee has no control; or
(g) Revocation of the motorcycle or all-terrain vehicle franchisee'slicense;
(2) Upon initiation of an act pursuant to subdivision (7) of section407.1034, such notice shall be given within sixty days of the franchisor'sreceipt of a written proposal to consummate such sale or transfer and thereceipt of all necessary information and documents generally used by thefranchisor to conduct its review. The franchisor's notice of disapprovalshall also specify the reasonable standard which the franchisor contends isnot satisfied and the reason the franchisor contends such standard is notsatisfied. Failure on the part of the franchisor to provide such noticeshall be conclusively deemed an approval by the franchisor of the proposedsale or transfer to the proposed transferee. A franchisee's applicationfor a hearing shall be filed with the administrative hearing commissionwithin fifteen days from receipt of such franchisor's notice;
(3) Pursuant to paragraphs (a) and (b) of subdivision (14) of section407.1034, such notice shall be given within sixty days of the franchisor'sreceipt of a deceased or incapacitated franchisee's designated familymember's intention to succeed to the franchise or franchises or of thefranchisor's receipt of the personal and financial data of the designatedfamily member, whichever is later.
5. A franchisor's notice to a franchisee or franchisees pursuant tosubdivisions (5), (6), (7) and (14) of section 407.1034 shall contain astatement of the particular grounds supporting the intended action oractivity which shall include any reasonable standards which were notsatisfied. The notice shall also contain at a minimum, on the first pagethereof, a conspicuous statement which reads as follows: "NOTICE TOFRANCHISEE: YOU MAY BE ENTITLED TO FILE A PROTEST WITH THE MISSOURIADMINISTRATIVE HEARING COMMISSION IN JEFFERSON CITY, MISSOURI, AND HAVE AHEARING IN WHICH YOU MAY PROTEST THE CONTENTS OF THIS NOTICE. ANY ACTIONMUST BE FILED WITHIN FIFTEEN DAYS FROM RECEIPT OF THIS NOTICE."
6. When more than one application for a hearing is filed with theadministrative hearing commission, the administrative hearing commissionmay consolidate the applications into one proceeding to expedite thedisposition of all relevant issues.
7. In all proceedings before the administrative hearing commissionpursuant to this section and section 407.1034, where the franchisor isrequired to give notice pursuant to subsection 5 of this section, thefranchisor shall have the burden of proving by a preponderance of theevidence that good cause exists for its actions. In all other actions, thefranchisee shall have the burden of proof.
