436.470. Complaint procedure--violation, attorney general may file court action.
Complaint procedure--violation, attorney general may file courtaction.
436.470. 1. Any person may file a complaint with the board to notifythe board of an alleged violation of this chapter. The board shallinvestigate each such complaint.
2. The board shall have authority to conduct inspections andinvestigations of providers, sellers, and preneed agents and conductfinancial examinations of the books and records of providers, sellers, andpreneed agents and any trust or joint account to determine compliance withsections 436.400 to 436.520, or to determine whether grounds exist fordisciplining a person licensed or registered under sections 333.310 to333.340, RSMo, at the discretion of the board and with or without cause.The board shall conduct a financial examination of the books and records ofeach seller as authorized by this section at least once every five years,subject to available funding.
3. Upon determining that an inspection, investigation, examination,or audit shall be conducted, the board shall issue a notice authorizing anemployee or other person appointed by the board to perform such inspection,investigation, examination, or audit. The notice shall instruct the personappointed by the board as to the scope of the inspection, investigation,examination or audit.
4. The board shall not appoint or authorize any person to conduct aninspection, investigation, examination, or audit under this section if theindividual has a conflict of interest or is affiliated with the managementof, or owns a pecuniary interest in, any person subject to inspection,investigation, examination, or audit under chapter 333, RSMo, or sections436.400 to 436.520.
5. The board may request that the director of the division ofprofessional registration, the director of the department of insurance,financial institutions and professional registration, or the office of theattorney general designate one or more investigators or financial examinersto assist in any investigation, examination, or audit, and such assistanceshall not be unreasonably withheld.
6. The person conducting the inspection, investigation, or audit mayenter the office, premises, establishment, or place of business of anyseller or licensed provider of preneed contracts, or any office, premises,establishment, or place where the practice of selling or providing preneedfunerals is conducted, or where such practice is advertised as beingconducted for the purpose of conducting the inspection, investigation,examination, or audit.
7. Upon request by the board, a licensee or registrant shall make thebooks and records of the licensee or registrant available to the board forinspection and copying at any reasonable time, including, any insurance,trust, joint account, or financial institution records deemed necessary bythe board to determine compliance with sections 436.400 to 436.520.
8. The board shall have the power to issue subpoenas to compel theproduction of records and papers by any licensee, trustee or registrant ofthe board. Subpoenas issued under this section shall be served in the samemanner as subpoenas in a criminal case.
9. All sellers, providers, preneed agents, and trustees shallcooperate with the board or its designee, the division of finance, thedepartment of insurance, financial institutions and professionalregistration, and the office of the attorney general in any inspection,investigation, examination, or audit brought under this section.
10. This section shall not be construed to limit the board'sauthority to file a complaint with the administrative hearing commissioncharging a licensee or registrant with any actionable conduct or violation,regardless of whether such complaint exceeds the scope of acts charged in apreliminary public complaint filed with the board and whether any publiccomplaint has been filed with the board.
11. The board, the division of finance, the department of insurance,financial institutions and professional registration, and the office of theattorney general may share information relating to any preneed inspection,investigation, examination, or audit.
12. If an inspection, investigation, examination, or audit reveals aviolation of sections 436.400 to 436.520, the office of the attorneygeneral may initiate a judicial proceeding to:
(1) Declare rights;
(2) Approve a nonjudicial settlement;
(3) Interpret or construe the terms of the trust;
(4) Determine the validity of a trust or of any of its terms;
(5) Compel a trustee to report or account;
(6) Enjoin a seller, provider, or preneed agent from performing aparticular act;
(7) Enjoin a trustee from performing a particular act or grant to atrustee any necessary or desirable power;
(8) Review the actions of a trustee, including the exercise of adiscretionary power;
(9) Appoint or remove a trustee;
(10) Determine trustee liability and grant any available remedy for abreach of trust;
(11) Approve employment and compensation of preneed agents;
(12) Determine the propriety of investments;
(13) Determine the timing and quantity of distributions anddispositions of assets; or
(14) Utilize any other power or authority vested in the attorneygeneral by law.
(L. 2009 S.B. 1)