407.822. Application for hearing with administrative hearing commission, filing, when--time and place of hearing--notice to parties--final order, when--petition for review of final order--franchisee&#
Application for hearing with administrative hearing commission,filing, when--time and place of hearing--notice to parties--finalorder, when--petition for review of final order--franchisee's rightto file application for hearing, when--notice to franchisee, when,exceptions--statement required in franchisor's notice--consolidationof applications--burden of proof.
407.822. 1. Any party seeking relief pursuant to the provisions ofsections 407.810 to 407.835 may file an application for a hearing with theadministrative hearing commission within the time periods specified in thissection. The application for a hearing shall comply with the requirementsfor a request for agency action set forth in chapter 536, RSMo.Simultaneously, with the filing of the application for a hearing with theadministrative hearing commission, the applicant shall send by certifiedmail, return receipt requested, a copy of the application to the party orparties against whom relief is sought. Upon receiving a timely applicationfor a hearing, the administrative hearing commission shall enter an orderfixing a date, time and place for a hearing on the record. Theadministrative hearing commission shall send by certified mail, returnreceipt requested, a copy of the order to the party seeking relief and tothe party or parties against whom relief is sought. The order shall alsostate that the party against whom relief is sought shall not proceed withthe initiation of its activity or activities until the administrativehearing commission issues its final decision or order, and the partyagainst whom relief is sought shall, within thirty days of such order, filean answer or other responsive pleading directed to each claim for reliefset forth in the application for hearing. Failure to answer or otherwiserespond within such time frame may be deemed by the administrative hearingcommission as an admission of the grounds for relief set forth in theapplication for hearing.
2. Unless otherwise expressly provided in sections 407.810 to407.835, the provisions of chapter 536, RSMo, shall govern hearings andprehearing procedures conducted pursuant to the authority of this section.Any party may obtain discovery in the same manner, and under the sameconditions and requirements, as is or may hereafter be provided for withrespect to discovery in civil actions by rule of the supreme court ofMissouri for use in the circuit courts, and the administrative hearingcommission may enforce discovery by the same methods as provided by supremecourt rule for use in civil cases. The administrative hearing commissionshall issue a final decision or order, in proceedings arising pursuant tothe provisions of sections 407.810 to 407.835, within ninety days from theconclusion of the hearing. In any proceeding initiated pursuant tosections 407.810 to 407.835 involving a matter requiring a franchisor toshow good cause for any intended action being protested by a franchisee,the franchisor shall refrain from taking the protested action if, after ahearing on the matter before the administrative hearing commission, theadministrative hearing commission determines that good cause does not existfor the franchisor to take such action. The franchisee may, if necessary,seek enforcement of the decision of the administrative hearing commissionpursuant to the provisions of section 407.835. Venue for such proceedingsshall be in the circuit court of Cole County, Missouri, or in the circuitcourt of the county in which the franchisee resides or operates thefranchise business. In determining any relief necessary for enforcement ofthe decision of the administrative hearing commission, the court shalldefer to the commission's factual findings, and review shall be limited toa determination of whether the commission's decision was authorized by lawand whether the commission abused its discretion. Any final decisions ofthe administrative hearing commission shall be subject to review pursuantto a petition for review to be filed in the court of appeals in thedistrict in which the hearing, or any part of the hearing, is held and bydelivery of copies of the petition to each party of record, within thirtydays after the mailing or delivery of the final decision and notice of thefinal decision in such a case. Appeal of the administrative hearingcommission's decision pursuant to this section shall not preclude anyaction authorized by section 407.835, brought in a court of competentjurisdiction, requesting an award of legal or equitable relief, providedthat if such an action is brought solely for the purpose of enforcing adecision of the administrative hearing commission which is on appealpursuant to this subsection, the court in which such action is pending mayhold in abeyance its judgment pending issuance of a decision by the courtof appeals. Review pursuant to this section shall be exclusive anddecisions of the administrative hearing commission reviewable pursuant tothis section shall not be reviewable in any other proceeding, and no otherofficial or court shall have power to review any such decision by an actionin the nature of mandamus or otherwise, except pursuant to the provisionsof this section. The party seeking review shall be responsible for thefiling 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 407.810 to 407.835, or any franchisee adverselyaffected by a franchisor's acts or proposed acts described in theprovisions of sections 407.810 to 407.835, 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 subsection 1 of section 407.825, a franchisor shall give writtennotice to the affected franchisee or franchisees, by certified mail, returnreceipt requested, except as follows:
(1) Upon the initiation of an act pursuant to subdivision (5) ofsubsection 1 of section 407.825, such notice shall be given not less thanfifteen days before the effective date of such act only if the grounds forthe notice include the following:
(a) Transfer of any ownership or interest in the franchiseddealership without the consent of the motor vehicle franchisor;
(b) Material misrepresentation by the motor vehicle franchisee inapplying for the franchise;
(c) Insolvency of the motor vehicle franchisee or the filing of anypetition by or against the motor vehicle franchisee under any bankruptcy orreceivership law;
(d) Any unfair business practice by the motor vehicle franchiseeafter the motor vehicle franchisor has issued a written warning to themotor vehicle franchisee to desist from such practice;
(e) Conviction of the motor vehicle franchisee of a crime which is afelony;
(f) Failure of the motor vehicle franchisee to conduct customarysales and service operations during customary business hours for at leastseven consecutive business days unless such closing is due to an act ofGod, strike or labor difficulty or other cause over which the motor vehiclefranchisee has no control; or
(g) Revocation of the motor vehicle franchisee's license;
(2) Upon initiation of an act pursuant to subdivision (7) ofsubsection 1 of section 407.825, such notice shall be given within sixtydays of the franchisor's receipt of a written proposal to consummate suchsale or transfer and the receipt of all necessary information and documentsgenerally used by the franchisor to conduct its review. The franchisorshall acknowledge in writing to the applicant the receipt of theinformation and documents and if the franchisor requires additionalinformation or documents to complete its review, the franchisor shallnotify the applicant within fifteen days of the receipt of the informationand documents. If the franchisor fails to request additional informationand documents from the applicant within fifteen days after receipt of theinitial forms, the sixty-day time period for approval shall be deemed torun from the initial receipt date. Otherwise, the sixty-day time periodfor approval shall run from receipt of the supplemental requestedinformation. In no event shall the total time period for approval exceedseventy-five days from the date of the receipt of all necessary informationand documents generally used by the franchisor to conduct its review. Thefranchisor's notice of disapproval shall also specify the reasonablestandard which the franchisor contends is not satisfied and the reason thefranchisor contends such standard is not satisfied. Failure on the part ofthe franchisor to provide such notice shall be conclusively deemed anapproval by the franchisor of the proposed sale or transfer to the proposedtransferee. A franchisee's application for a hearing shall be filed withthe administrative hearing commission within twenty days from receipt ofsuch franchisor's notice;
(3) Pursuant to paragraphs (a) and (b) of subdivision (14) ofsubsection 1 of section 407.825, such notice shall be given within sixtydays of the franchisor's receipt of a deceased or incapacitatedfranchisee's designated family member's intention to succeed to thefranchise or franchises or of the franchisor's receipt of the personal andfinancial data of the designated family member, whichever is later.
5. A franchisor's notice to a franchisee or franchisees pursuant tosubdivisions (5), (6), (7) and (14) of subsection 1 of section 407.825shall contain a statement of the particular grounds supporting the intendedaction or activity which shall include any reasonable standards which werenot satisfied. The notice shall also contain at a minimum, on the firstpage thereof, 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 TWENTY 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, section 407.825 and section 621.053, RSMo, wherethe franchisor is required to give notice pursuant to subsection 4 of thissection, the franchisor shall have the burden of proving by a preponderanceof the evidence that good cause exists for its actions. In all otheractions, the franchisee shall have the burden of proof.
(L. 1997 H.B. 516, A.L. 2001 H.B. 693, A.L. 2001 H.B. 575)