407.010. As used in sections 407.010 to 407.130, the following words and terms mean:
(1) "Advertisement", the attempt by publication, dissemination, solicitation, circulation, or any other means to induce, directly or indirectly, any person to enter into any obligation or acquire any title or interest in any merchandise;
(2) "Documentary material", the original or a copy of any book, record, report, memorandum, paper, communication, tabulation, map, chart, photograph, mechanical transcription, or other tangible document or recording, wherever situated;
(3) "Examination of documentary material", the inspection, study, or copying of such material, and the taking of testimony under oath or acknowledgment in respect to any documentary material or copy thereof;
(4) "Merchandise", any objects, wares, goods, commodities, intangibles, real estate or services;
(5) "Person", any natural person or his legal representative, partnership, firm, for-profit or not-for-profit corporation, whether domestic or foreign, company, foundation, trust, business entity or association, and any agent, employee, salesman, partner, officer, director, member, stockholder, associate, trustee or cestui que trust thereof;
(6) "Sale", any sale, lease, offer for sale or lease, or attempt to sell or lease merchandise for cash or on credit;
(7) "Trade" or "commerce", the advertising, offering for sale, sale, or distribution, or any combination thereof, of any services and any property, tangible or intangible, real, personal, or mixed, and any other article, commodity, or thing of value wherever situated. The terms "trade" and "commerce" include any trade or commerce directly or indirectly affecting the people of this state.
(L. 1967 p. 607 § 1, A.L. 1973 H.B. 55, A.L. 1986 S.B. 685)Effective 5-1-86
*No continuity with § 407.010 as repealed by L. 1963 S.B. 2 § 10-102, effective 7-1-65.
(1984) The state lacked standing to challenge the dischargeability in bankruptcy of debts owed to individuals as the result of prosecuted violations of the Merchandising Practices Act. In Re Cannon (8th Cir.), 741 F.2d 1139.
(2003) Merchandising Practices Act applies to deceptive schemes conducted by out-of-state businesses and involving out-of-state consumers. State ex rel. Nixon v. Estes, 108 S.W.3d 795 (Mo.App. W.D.).
(2004) Medical goods and services constitute "merchandise" within definition of section. Freeman Health System v. Wass, 124 S.W.3d 504 (Mo.App. S.D.).
407.020. 1. The act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce or the solicitation of any funds for any charitable purpose, as defined in section 407.453, in or from the state of Missouri, is declared to be an unlawful practice. The use by any person, in connection with the sale or advertisement of any merchandise in trade or commerce or the solicitation of any funds for any charitable purpose, as defined in section 407.453, in or from the state of Missouri of the fact that the attorney general has approved any filing required by this chapter as the approval, sanction or endorsement of any activity, project or action of such person, is declared to be an unlawful practice. Any act, use or employment declared unlawful by this subsection violates this subsection whether committed before, during or after the sale, advertisement or solicitation.
2. Nothing contained in this section shall apply to:
(1) The owner or publisher of any newspaper, magazine, publication or printed matter wherein such advertisement appears, or the owner or operator of a radio or television station which disseminates such advertisement when the owner, publisher or operator has no knowledge of the intent, design or purpose of the advertiser; or
(2) Any institution, company, or entity that is subject to chartering, licensing, or regulation by the director of the department of insurance, financial institutions and professional registration under chapter 354, RSMo, or chapters 374 to 385, RSMo, the director of the division of credit unions under chapter 370, RSMo, or director of the division of finance under chapters 361 to 369, RSMo, or chapter 371, RSMo, unless such directors specifically authorize the attorney general to implement the powers of this chapter or such powers are provided to either the attorney general or a private citizen by statute.
3. Any person who willfully and knowingly engages in any act, use, employment or practice declared to be unlawful by this section with the intent to defraud shall be guilty of a class D felony.
4. It shall be the duty of each prosecuting attorney and circuit attorney in their respective jurisdictions to commence any criminal actions under this section, and the attorney general shall have concurrent original jurisdiction to commence such criminal actions throughout the state where such violations have occurred.
5. It shall be an unlawful practice for any long-term care facility, as defined in section 660.600, RSMo, except a facility which is a residential care facility or an assisted living facility, as defined in section 198.006, RSMo, which makes, either orally or in writing, representation to residents, prospective residents, their families or representatives regarding the quality of care provided, or systems or methods utilized for assurance or maintenance of standards of care to refuse to provide copies of documents which reflect the facility's evaluation of the quality of care, except that the facility may remove information that would allow identification of any resident. If the facility is requested to provide any copies, a reasonable amount, as established by departmental rule, may be charged.
6. Any long-term care facility, as defined in section 660.600, RSMo, which commits an unlawful practice under this section shall be liable for damages in a civil action of up to one thousand dollars for each violation, and attorney's fees and costs incurred by a prevailing plaintiff, as allowed by the circuit court.
(L. 1967 p. 607 § 2, A.L. 1973 H.B. 55, A.L. 1985 H.B. 96, et al., A.L. 1986 S.B. 685, A.L. 1992 S.B. 705, A.L. 1994 H.B. 1165, A.L. 1995 H.B. 409, A.L. 2000 S.B. 763, A.L. 2008 S.B. 788)(2000) Delivery of beer by unlicensed foreign microbrewery without inspection by state authorities and inadequate precautions to prevent sales to minors constituted misrepresentations in violation of section. State ex rel. Nixon v. Beer Nuts, Ltd., 29 S.W.3d 828 (Mo.App.E.D.).
(2001) Sale of motor fuel below cost in violation of the Motor Fuel Marketing Act is not an unfair practice within meaning of section, and thus the Attorney General lacks authority to invoke civil investigative demand power. Ports Petroleum Company, Inc. of Ohio v. Nixon, 37 S.W.3d 237 (Mo.banc).
407.023. 1. No person who alleges to represent a particular business at a wholesale trade show or market shall rent or lease space at the trade show or market unless he can produce written evidence of the agency relationship or contract status with the business he claims to represent; provided, however, that nothing herein contained shall apply to any trade show or market which in good faith endeavors to obtain evidence of said agency's relationship or contract status.
2. Any violation of this section is an unlawful merchandising practice.
(L. 1982 H.B. 1031)
407.025. 1. Any person who purchases or leases merchandise primarily for personal, family or household purposes and thereby suffers an ascertainable loss of money or property, real or personal, as a result of the use or employment by another person of a method, act or practice declared unlawful by section 407.020, may bring a private civil action in either the circuit court of the county in which the seller or lessor resides or in which the transaction complained of took place, to recover actual damages. The court may, in its discretion, award punitive damages and may award to the prevailing party attorney's fees, based on the amount of time reasonably expended, and may provide such equitable relief as it deems necessary or proper.
2. Persons entitled to bring an action pursuant to subsection 1 of this section may, if the unlawful method, act or practice has caused similar injury to numerous other persons, institute an action as representative or representatives of a class against one or more defendants as representatives of a class, and the petition shall allege such facts as will show that these persons or the named defendants specifically named and served with process have been fairly chosen and adequately and fairly represent the whole class, to recover damages as provided for in subsection 1 of this section. The plaintiff shall be required to prove such allegations, unless all of the members of the class have entered their appearance, and it shall not be sufficient to prove such facts by the admission or admissions of the defendants who have entered their appearance. In any action brought pursuant to this section, the court may in its discretion order, in addition to damages, injunction or other equitable relief and reasonable attorney's fees.
3. An action may be maintained as a class action in a manner consistent with Rule 23 of the Federal Rules of Civil Procedure and Missouri rule of civil procedure 52.08 to the extent such state rule is not inconsistent with the federal rule if:
(1) The class is so numerous that joinder of all members is impracticable;
(2) There are questions of law or fact common to the class;
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) The representative parties will fairly and adequately protect the interests of the class; and, in addition
(5) The prosecution of separate action by or against individual members of the class would create a risk of:
(a) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or
(b) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(6) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(7) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:
(a) The interest of members of the class in individually controlling the prosecution or defense of separate actions;
(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation of the claims in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action.
4. (1) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order pursuant to this subdivision may be conditional, and may be altered or amended before the decision on the merits.
(2) In any class action maintained pursuant to subdivision (7) of subsection 3 of this section, the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that:
(a) The court will exclude such member from the class if such member so requests by a specified date;
(b) The judgment, whether favorable or not, will include all members who do not request exclusion; and
(c) Any member who does request exclusion may, if such member desires, enter an appearance through such member's counsel.
(3) The judgment in an action maintained as a class action pursuant to subdivision (5) of subsection 3 of this section or subdivision (6) of subsection 3 of this section, whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action pursuant to subdivision (7) of subsection 3 of this section, whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subdivision (2) of this subsection was directed, and who have requested exclusion, and whom the court finds to be members of the class.
(4) When appropriate an action may be brought or maintained as a class action with respect to particular issues, or a class may be divided into subclasses and each subclass treated as a class, and the provisions of this section shall then be construed and applied accordingly.
5. In the conduct of actions to which this section applies, the court may make appropriate orders:
(1) Determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument;
(2) Requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action;
(3) Imposing conditions on the representative parties or on intervenors;
(4) Requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly;
(5) Dealing with similar procedural matters.
6. A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.
7. Upon commencement of any action brought pursuant to subsection 1 of this section, the plaintiff or plaintiffs shall inform the clerk of the court in which such action is brought, on forms to be provided by such clerk, that the action is brought pursuant to this section. The clerk of the court shall forthwith inform the attorney general of the commencement of such action, together with a copy of the complaint or other initial pleading, and, upon entry of any judgment or decree in the action, the clerk shall mail a copy of such judgment or decree to the attorney general.
8. Any permanent injunction, judgment or order of the court made pursuant to section 407.100 shall be prima facie evidence in an action brought pursuant to* this section that the respondent used or employed a method, act or practice declared unlawful by section 407.020.
(L. 1973 H.B. 55, A.L. 1985 H.B. 96, et al., A.L. 1999 S.B. 1, et al., A.L. 2000 H.B. 1509)*Word "to" does not appear in original rolls.
(2001) Placing a bet at casino blackjack table is not a purchase within meaning of section. Ziglin v. Players MH, L.P., 36 S.W.3d 786 (Mo.App.E.D.).
(2005) Claim for punitive damages under section requires determination by jury. Scott v. Blue Springs Ford Sales, Inc., 176 S.W.3d 140 (Mo.banc).
407.030. 1. In the administration of this chapter, the attorney general may accept an assurance of voluntary compliance with respect to any method, act, use, practice or solicitation deemed to be violative of this chapter from any person who has engaged in or is engaging in such a method, act, use, practice or solicitation. The assurance of voluntary compliance shall be in writing and shall be filed with and subject to the approval of the circuit court of the county in which the alleged violator resides or has his principal place of business, or the circuit court of Cole County. Such assurance of voluntary compliance shall not be considered an admission of violation for any purpose.
2. Any person who violates the terms of an assurance of voluntary compliance entered into under subsection 1 of this section shall forfeit and pay to the state a civil penalty of not more than two thousand dollars per violation. For the purposes of this subsection, the circuit court of a county approving an assurance of voluntary compliance shall retain jurisdiction, and the attorney general acting in the name of the state may petition for recovery of civil penalties under this subsection.
(L. 1967 p. 607 § 3, A.L. 1973 H.B. 55, A.L. 1985 H.B. 96, et al., A.L. 1986 S.B. 685)Effective 5-1-86
*No continuity with § 407.030 as repealed by L. 1963 S.B. 2 § 10-102, effective 7-1-65.
(1980) Attorney General not authorized to seek civil penalties for alleged violation of assurance of voluntary compliance; may seek injunctive relief under 407.100. State ex rel. Danforth v. European Health Spa (A.), 611 S.W.2d 250.
407.040. 1. When it appears to the attorney general that a person has engaged in or is engaging in any method, act, use, practice or solicitation declared to be unlawful by this chapter or when he believes it to be in the public interest that an investigation should be made to ascertain whether a person in fact has engaged in or is engaging in any such method, act, use, practice or solicitation, he may execute in writing and cause to be served upon any person who is believed to have information, documentary material, or physical evidence relevant to the alleged or suspected violation, a civil investigative demand requiring such person to appear and testify, or to produce relevant documentary material or physical evidence or examination, at such reasonable time and place as may be stated in the civil investigative demand, concerning the advertisement, sale or offering for sale of any goods or services or the conduct of any trade or commerce or the conduct of any solicitation that is the subject matter of the investigation. Service of any civil investigative demand, notice, or subpoena may be made by any person authorized by law to serve process or by any duly authorized employee of the attorney general.
2. Each civil investigative demand shall:
(1) State the statute and section thereof, the alleged violation of which is under investigation, and the general subject matter of the investigation;
(2) Describe the class or classes of information, documentary material, or physical evidence to be produced thereunder with reasonable specificity so as fairly to indicate the material demanded;
(3) Prescribe a return date by which the information, documentary material, or physical evidence is to be produced; and
(4) Identify the members of the attorney general's staff to whom the information, documentary material, or physical evidence requested is to be made available.
3. No civil investigative demand shall:
(1) Contain any requirement which would be unreasonable or improper if contained in a subpoena duces tecum issued by a court of this state; or
(2) Require the disclosure of any documentary material which would be privileged or which, for any other reason, could not be required by a subpoena duces tecum issued by a court of this state.
4. Service of any civil investigative demand, notice, or subpoena may be made by:
(1) Delivering a duly executed copy thereof to the person to be served, or to a partner or any officer or agent authorized by appointment or by law to receive service of process on behalf of such person;
(2) Delivering a duly executed copy thereof to the principal place of business or the residence in this state of the person to be served;
(3) Mailing by registered or certified mail a duly executed copy thereof, addressed to the person to be served, at the principal place of business or the residence in this state or, if such person has no place of business or residence in this state, to his principal office or place of business or his residence; or
(4) The mailing thereof by registered or certified mail, requesting a return receipt signed by the addressee only, to the last known place of business, residence or abode within or without this state of such person for whom the same is intended.
(L. 1967 p. 607 § 4, A.L. 1973 H.B. 55, A.L. 1985 H.B. 96, et al., A.L. 1986 S.B. 685)Effective 5-1-86
*No continuity with § 407.040 as repealed by L. 1963 S.B. 2 § 10-102, effective 7-1-65.
(1977) Held, this section not unconstitutional as a denial of due process, further an assertion that information requested would require disclosure of trade secrets is premature until attorney general attempts to present such information before a court. Lewandowski v. Danforth (Mo.), 547 S.W.2d 470.
(2001) Sale of motor fuel below cost in violation of the Motor Fuel Marketing Act is not an unfair practice within meaning of Merchandising Practices Act, and thus the Attorney General lacks authority to invoke civil investigative demand power. Ports Petroleum Company, Inc. of Ohio v. Nixon, 37 S.W.3d 237 (Mo.banc).
407.045. In any civil investigative demand served under section 407.040, no individual shall be permitted to refuse to answer any question material to the matter in controversy or to refuse to produce documentary material or testify on the ground that the testimony or documentary material required of him may tend to incriminate him or subject him to any penalty; but, if such individual asserts his rights against self-incrimination, he shall not be subject to criminal prosecution or to any action for a criminal penalty or forfeiture on account of any transaction, matter or thing concerning which he may testify or produce documentary material. To avail himself of this section, such individual need only make his assertion of his right against self-incrimination on the record or known to the attorney general.
(L. 1985 H.B. 96, et al.)Effective 5-31-85
407.050. Documentary material, information, or physical evidence demanded pursuant to the provisions of sections 407.010 to 407.130 shall be produced during normal business hours at the principal office or place of business of the person served, or at such other times and places as may be agreed upon by the person served and the attorney general.
(L. 1967 p. 607 § 5, A.L. 1973 H.B. 55)*No continuity with § 407.050 as repealed by L. 1963 S.B. 2 § 10-102, effective 7-1-65.
407.060. 1. No information, documentary material, or physical evidence requested pursuant to a civil investigative demand issued under section 407.040 shall, unless otherwise ordered by a court for good cause shown, be produced for or the contents thereof be disclosed to, any person other than the authorized employee of the attorney general without the consent of the person who produced such information, documentary material or physical evidence; provided, that under such reasonable terms and conditions as the attorney general shall prescribe, such information, documentary material or physical evidence shall be made available for inspection and copying by the person who produced such information, documentary material or physical evidence, or any duly authorized representative of such person. The attorney general, or any attorney designated by him, may use the information, documentary material, or physical evidence in the enforcement of this chapter, by presentation before any court or by disclosure to law enforcement agencies of this state, another state or the United States for enforcement of the laws of such other state or the United States concerning methods, acts, uses, practices and solicitations similar to those prohibited by this chapter.
2. Any material which contains trade secrets shall not be presented before any court except with the approval of the court in which the action is pending after adequate notice to the person furnishing such material or, in the case of disclosure to agencies of other states, the approval of the circuit court having jurisdiction under section 407.070.
(L. 1967 p. 607 § 6, A.L. 1973 H.B. 55, A.L. 1985 H.B. 96, et al., A.L. 1986 S.B. 685)Effective 5-1-86
*No continuity with § 407.060 as repealed by L. 1963 S.B. 2 § 10-102, effective 7-1-65.
407.070. At any time before the return date specified in a civil investigative demand issued under section 407.040, or within twenty days after the civil investigative demand has been served, whichever period is shorter, a petition to extend the return date for, or to modify or set aside the civil investigative demand, stating good cause, may be filed in the circuit court of the county where the parties reside or in the circuit court of Cole County.
(L. 1967 p. 607 § 7, A.L. 1973 H.B. 55, A.L. 1986 S.B. 685)Effective 5-1-86
*No continuity with § 407.070 as repealed by L. 1963 S.B. 2 § 10-102, effective 7-1-65.
407.080. A person upon whom a civil investigative demand is served pursuant to the provisions of section 407.040 shall comply with the terms thereof unless otherwise provided by an order of a court. Any person who, with intent to avoid, evade, or prevent compliance, in whole or in part, with any civil investigative demand issued under section 407.040, removes from any place, conceals, withholds, or destroys, mutilates, alters, or by any other means falsifies any information, documentary material, or physical evidence in the possession, custody or control of any person, which is the subject of any such civil investigative demand shall be guilty of a class A misdemeanor. The attorney general shall have original jurisdiction to enforce the provisions of this section.
(L. 1967 p. 607 § 8, A.L. 1973 H.B. 55, A.L. 1985 H.B. 96, et al., A.L. 1986 S.B. 685)Effective 5-1-86
*No continuity with § 407.080 as repealed by L. 1963 S.B. 2 § 10-102, effective 7-1-65.
407.090. Whenever any person fails to comply with any civil investigative demand duly served upon him under section 407.040 or whenever satisfactory copying or reproduction of any such material cannot be done and such person refuses to surrender such material, the attorney general, through such officers or attorneys as he may designate, may file, in the trial court of general jurisdiction of a county or judicial district in which such person resides, is found, or transacts business, and serve upon such person a petition for an order of such court for the enforcement of such civil investigative demand; except that, if such person transacts business in more than one county or judicial district such petition shall be filed in the county or judicial district in which such person maintains his principal place of business, or in such other county or judicial district as may be agreed upon by the parties to such petition. Whenever any petition is filed in the trial court of general jurisdiction of a county or judicial district under this section, such court shall have jurisdiction to hear and determine the matter so presented, and to enter such order or orders as may be required to carry into effect the provisions of section 407.040. Any final order so entered shall be subject to appeal to the state supreme court. Any disobedience of any final order entered under this section by any court shall be punished as a contempt thereof.
(L. 1967 p. 607 § 9, A.L. 1985 H.B. 96, et al.)Effective 5-31-85
*No continuity with § 407.090 as repealed by L. 1963 S.B. 2 § 10-102, effective 7-1-65.
407.095. 1. Whenever it appears to the attorney general that a person has engaged in, is engaging in or is about to engage in any method, act, use, practice or solicitation declared to be unlawful by any provision of this chapter, he may issue and cause to be served upon such person, and any other person or persons concerned with or who, in any way, have participated, are participating or are about to participate in such unlawful method, act, use, practice or solicitation, an order prohibiting such person or persons from engaging or continuing to engage in such unlawful method, act, use, practice or solicitation. Such order shall not be issued until the attorney general has notified each person who will be subject to such order of the statutory section which such person is alleged to have violated, be violating or be about to violate, and the nature of the method, act, use, practice or solicitation which is the basis of such alleged violation. The person to whom such notice is given shall have two business days from the receipt of such notice to file an answer to such notice with the attorney general before the order authorized by this subsection may be issued.
2. All orders issued by the attorney general under subsection 1 of this section shall be signed by the attorney general or, in the event of his absence, his duly authorized representative, and shall be served in the manner provided in section 407.040, for the service of civil investigative demands and shall expire of their own force ten days after being served.
3. Any person who has been duly served with an order issued under subsection 1 of this section and who willfully and knowingly violates any provision of such order while such order remains in effect, either as originally issued or as modified, is guilty of a class D felony. The attorney general shall have original jurisdiction to commence all criminal actions necessary to enforce this section.
(L. 1986 S.B. 685)Effective 5-1-86
407.100. 1. Whenever it appears to the attorney general that a person has engaged in, is engaging in, or is about to engage in any method, act, use, practice or solicitation, or any combination thereof, declared to be unlawful by this chapter, the attorney general may seek and obtain, in an action in a circuit court, an injunction prohibiting such person from continuing such methods, acts, uses, practices, or solicitations, or any combination thereof, or engaging therein, or doing anything in furtherance thereof.
2. In any action under subsection 1 of this section, and pursuant to the provisions of the Missouri Rules of Civil Procedure, the attorney general may seek and obtain temporary restraining orders, preliminary injunctions, temporary receivers, and the sequestering of any funds or accounts if the court finds that funds or property may be hidden or removed from the state or that such orders or injunctions are otherwise necessary.
3. If the court finds that the person has engaged in, is engaging in, or is about to engage in any method, act, use, practice or solicitation, or any combination thereof, declared to be unlawful by this chapter, it may make such orders or judgments as may be necessary to prevent such person from employing or continuing to employ, or to prevent the recurrence of, any prohibited methods, acts, uses, practices or solicitations, or any combination thereof, declared to be unlawful by this chapter.
4. The court, in its discretion, may enter an order of restitution, payable to the state, as may be necessary to restore to any person who has suffered any ascertainable loss, including, but not limited to, any moneys or property, real or personal, which may have been acquired by means of any method, act, use, practice or solicitation, or any combination thereof, declared to be unlawful by this chapter. It shall be the duty of the attorney general to distribute such funds to those persons injured. Such funds may or may not be interest-bearing accounts, but any interest which accrues to any such account shall be sent at least annually by the attorney general to the director of revenue to be deposited in the state treasury to the credit of the state general revenue fund.
5. The court, in its discretion, may appoint a receiver to ensure the conformance to any orders issued under subsection 3 of this section or to ensure the payment of any damages ordered under subsection 4 of this section.
6. The court may award to the state a civil penalty of not more than one thousand dollars per violation; except that, if the person who would be liable for such penalty shows, by a preponderance of the evidence, that a violation resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adopted to avoid the error, no civil penalties shall be imposed.
7. Any action under this section may be brought in the county in which the defendant resides, in which the violation alleged to have been committed occurred, or in which the defendant has his principal place of business.
8. The attorney general is authorized to enter into consent judgments or consent injunctions with or without admissions of violations of this chapter. Violation of any such consent judgment or consent injunction shall be treated as a violation under section 407.110.
(L. 1967 p. 607 § 10, A.L. 1973 H.B. 55, A.L. 1985 H.B. 96, et al., A.L. 1986 S.B. 685, A.L. 1994 H.B. 1461)*No continuity with § 407.100 as repealed by L. 1963 S.B. 2 § 10-102, effective 7-1-65.
407.105. When a receiver is appointed by the court pursuant to section 407.100, he may sue for, collect, receive and take into his possession all the goods and chattels, rights and credits, moneys and effects, lands and tenements, books, records, documents, papers, choses in action, bills, notes and property of every description, derived by means of any method, act, use, practice or solicitation, or any combination thereof, declared to be unlawful or prohibited by this chapter, including property with which such property has been mingled if it cannot be identified in kind because of such commingling, and to sell, convey, and assign the same and hold and dispose of the proceeds thereof under the direction of the court. Any person who has suffered damages as a result of the use or employment of any unlawful methods, acts, uses, practices or solicitations, or any combination thereof, and submits proof to the satisfaction of the court that he has in fact been damaged, may participate with general creditors in the distribution of the assets to the extent he has sustained out-of-pocket losses. In the case of a partnership or business entity, the receiver shall settle the estate and distribute the assets under the direction of the court. The court shall have jurisdiction of all questions arising in such proceedings and may make such orders and judgments therein as may be required.
(L. 1973 H.B. 55, A.L. 1985 H.B. 96, et al., A.L. 1986 S.B. 685)Effective 5-1-86
407.110. Any person who violates the terms of an injunction, an order to make restitution, or any other judgment or order issued under section 407.100 shall forfeit and pay to the state a civil penalty of not more than five thousand dollars per violation. For the purposes of this section, the circuit court of a county issuing an injunction or restitutionary order shall retain jurisdiction, and the cause shall be continued, and in such cases the attorney general acting in the name of the state may petition for recovery of civil penalties.
(L. 1967 p. 607 § 11, A.L. 1973 H.B. 55, A.L. 1985 H.B. 96, et al.)Effective 5-31-85
*No continuity with § 407.110 as repealed by L. 1963 S.B. 2 § 10-102, effective 7-1-65.
(1980) Attorney General not authorized to seek civil penalties for alleged violation of assurance of voluntary compliance; may seek injunctive relief under 407.100. State ex rel. Danforth v. European Health Spa (A.), 611 S.W.2d 250.
407.120. The provisions of sections 407.010 to 407.130 shall not bar any civil claim against any person who has acquired any moneys or property, real or personal, by means of any practice declared to be unlawful by this chapter.
(L. 1967 p. 607 § 12, A.L. 1986 S.B. 685)Effective 5-1-86
*No continuity with § 407.120 as repealed by L. 1963 S.B. 2 § 10-102, effective 7-1-65.
407.125. The provisions of this chapter shall not bar the commissioner of securities from administering the provisions of chapter 409, RSMo.
(L. 2000 S.B. 896)
407.130. In any action brought under the provisions of section 407.100, the attorney general is entitled to recover as costs, in addition to normal court costs, the cost of the investigation and prosecution of any action to enforce the provisions of this chapter.
(L. 1967 p. 607 § 13, A.L. 1985 H.B. 96, et al.)Effective 5-31-85
*No continuity with § 407.130 as repealed by L. 1963 S.B. 2 § 10-102, effective 7-1-65.
407.140. 1. There is created in the state treasury a special trust fund for the office of the attorney general, to be known as the "Merchandising Practices Revolving Fund", which shall consist of money transferred by the general assembly of the state of Missouri from the general revenue fund of this state, and any money paid into the state treasury and required by law to be credited to the merchandising practices revolving fund. The moneys in the merchandising practices revolving fund shall be kept separate and apart from all other moneys in the state treasury and shall be paid out by the state treasurer upon warrants issued by the state auditor as certified by the commissioner of administration upon verified vouchers of the attorney general.
2. Money in the merchandising practices revolving fund shall be available for the payment of all costs and expenses incurred by the attorney general in the investigation, prosecution, and enforcement of the provisions of this chapter, and to provide funds for consumer education and advocacy programs.
3. In any case in which the court awards damages as provided in section 407.100, there shall be added, in addition to restitution and costs, an amount equal to ten percent of the total restitution awarded, or such other amount as may be agreed upon by the parties or awarded by the court, which amount shall be paid into the state treasury to the credit of the merchandising practices revolving fund.
4. All moneys recovered as court costs or as costs provided by section 407.130 pursuant to litigation brought under the authority of this chapter shall be paid into the state treasury to the credit of the merchandising practices revolving fund.
5. Any restitution awarded under section 407.100 which is not claimed or for which the injured person entitled thereto cannot be found, or which is otherwise remaining after distribution by the attorney general, shall be paid into the state treasury to the credit of the merchandising practices revolving fund.
6. The provisions of section 33.080, RSMo, requiring the transfer of all unexpended funds to the credit of the ordinary revenue fund of the state shall not apply to funds in the merchandising practices revolving fund.
(L. 1985 H.B. 96, et al., A.L. 1986 S.B. 685)Effective 5-1-86
*No continuity with § 407.140 as repealed by L. 1963 S.B. 2 § 10-102, effective 7-1-65.
407.145. The attorney general shall have the authority to promulgate, in accordance with the provisions of chapter 536, RSMo, all rules necessary to the administration and enforcement of the provisions of this chapter. Such rules may include, but need not be limited to, provisions designating the size and style of type which shall be used in written disclosures required by any provision of this chapter for which the size and style of type have not been otherwise designated.
(L. 1986 S.B. 685, A.L. 1993 S.B. 52)
407.200. Where unsolicited merchandise is delivered to a person for whom it is intended, such person has a right to refuse to accept delivery of this merchandise or he may deem it to be a gift and use it or dispose of it in any manner without any obligation to the sender.
(L. 1969 S.B. 20 § 1)*No continuity with § 407.200 as repealed by L. 1963 S.B. 2 § 10-102, effective 7-1-65.
407.295. 1. As used in this section, the following terms mean:
(1) "Aftermarket crash part", a replacement for any of the nonmechanical sheet metal or plastic parts which generally constitute the exterior of a motor vehicle, including inner and outer panels;
(2) "Insurer", an insurance company and any person authorized to represent the insurer with respect to a claim;
(3) "Nonoriginal equipment manufacturer (Non-OEM) aftermarket crash part", aftermarket crash parts not made for or by the manufacturer of the motor vehicle.
2. Any aftermarket crash part supplied by a nonoriginal equipment manufacturer for use in this state after January 1, 1990, shall have affixed thereto or inscribed thereon the logo or name of its manufacturer. Such manufacturer's logo or name shall be visible after installation whenever practicable.
3. No insurer shall specify directly or indirectly the use of non-OEM aftermarket crash parts in the repair of an insured's motor vehicle without disclosing the intended use of such parts. In all instances where non-OEM aftermarket crash parts are intended for use by an insurer:
(1) The written estimate shall clearly identify each such part; and
(2) A disclosure document containing the following information in ten-point or larger type shall appear on or be attached to the insured's copy of the estimate: "This estimate has been prepared based on the use of one or more crash parts supplied by a source other than the manufacturer of your motor vehicle. Warranties applicable to these replacement parts are provided by the parts manufacturer or distributor rather than by the manufacturer of your vehicle."
4. Any violation of this section shall be deemed an unlawful practice as the term is used in sections 407.010 to 407.130, and shall be subject to the enforcement provisions of sections 407.010 to 407.130.
5. This section shall become effective January 1, 1990.
(L. 1989 H.B. 726 § 1)Effective 1-1-90
407.300. 1. Every purchaser or collector of, or dealer in, junk, scrap metal, or any secondhand property shall keep a register containing a written or electronic record for each purchase or trade in which each type of metal subject to the provisions of this section is obtained for value. There shall be a separate record for each transaction involving any:
(1) Copper, brass, or bronze;
(2) Aluminum wire, cable, pipe, tubing, bar, ingot, rod, fitting, or fastener; or
(3) Material containing copper or aluminum that is knowingly used for farming purposes as farming is defined in section 350.010, RSMo;
whatever may be the condition or length of such metal. The record shall contain the following data: a copy of the driver's license or photo identification issued by the state or by the United States government or agency thereof to the person from whom the material is obtained, which shall contain a current address of the person from whom the material is obtained, and the date, time, and place of and a full description of each such purchase or trade including the quantity by weight thereof.
2. The records required under this section shall be maintained for a minimum of twenty-four months from when such material is obtained and shall be available for inspection by any law enforcement officer.
3. Anyone convicted of violating this section shall be guilty of a class A misdemeanor.
4. This section shall not apply to any of the following transactions:
(1) Any transaction for which the total amount paid for all regulated scrap metal purchased or sold does not exceed fifty dollars;
(2) Any transaction for which the seller, including a farm or farmer, has an existing business relationship with the scrap metal dealer and is known to the scrap metal dealer making the purchase to be an established business or political subdivision that operates a business with a fixed location that can be reasonably expected to generate regulated scrap metal and can be reasonably identified as such a business; or
(3) Any transaction for which the type of metal subject to subsection 1 of this section is a minor part of a larger item, except for equipment used in the generation and transmission of electrical power or telecommunications.
(L. 1971 H.B. 124 § 1, A.L. 2008 S.B. 1034 & 802)
407.301. 1. No scrap metal dealer shall knowingly purchase or possess a metal beer keg, whether damaged or undamaged, or any reasonably recognizable part thereof, on any premises that the dealer uses to buy, sell, store, shred, melt, cut, or otherwise alter scrap metal except when the purchase is from the brewer or its authorized representative. For purposes of this section, keg shall have the same meaning as in section 311.082, RSMo.
2. Anyone who is found guilty of, or pleads guilty to, violating this section shall be guilty of a class A misdemeanor punishable only by fine. Nothing in this section shall be construed to preclude a person violating this section from also being prosecuted for any applicable criminal offense.
(L. 2008 S.B. 1034 & 802)
407.302. 1. No scrap yard shall purchase any metal that can be identified as belonging to a public or private cemetery or to a political subdivision or electrical cooperative, municipal utility, or a utility regulated under chapter 386 or 393, RSMo, including bleachers, guardrails, signs, street and traffic lights or signals, and manhole cover or covers, whether broken or unbroken, from anyone other than the cemetery or monument owner, political subdivision, electrical cooperative or utility, or manufacturer of the metal or item described in this section unless such person is authorized in writing by the cemetery or monument owner, political subdivision, electrical cooperative or utility, or manufacturer to sell the metal.
2. Anyone convicted of violating this section shall be guilty of a class B misdemeanor.
(L. 2008 S.B. 1034 & 802)
407.303. 1. Any scrap metal dealer paying out an amount that is five hundred dollars or more shall make such payment in the form of a check or shall pay by any method in which a financial institution makes and retains a record of the transaction.
2. This section shall not apply to any transaction for which the seller has an existing business relationship with the scrap metal dealer and is known to the scrap metal dealer making the purchase to be an established business or political subdivision that operates a business with a fixed location that can be reasonably expected to generate regulated scrap metal and can be reasonably identified as such a business.
(L. 2008 S.B. 1034 & 802)
407.305. 1. Whenever any collector of or dealer in junk or any secondhand property purchases any bronze cemetery vase or receptacle, any bronze cemetery memorial or any bronze statuary, whatever may be the condition of the vase or receptacle, cemetery memorial or bronze statuary, he* shall enter in a register kept for that purpose the name, address, and place of business of the person from whom the vase or receptacle was purchased, the driver's license number of the person, and a full description of each purchase including quantity by weight thereof.
2. Any peace officer of this state may inspect the register at any reasonable time.
3. Any person violating any of the provisions of this section is guilty of a misdemeanor and, upon conviction, shall be punished as provided by law.
(L. 1973 H.B. 29 § 1)*Word "they" appears in original rolls.
407.307. 1. The provisions of this section shall apply to:
(1) Farm implement dealerships, as provided in sections 407.838 to 407.880;
(2) Industrial maintenance and construction power equipment dealerships, as provided in sections 407.750 to 407.756; and
(3) Outdoor power equipment dealerships, as provided in sections 407.890 to 407.898.
2. A manufacturer, wholesaler or distributor shall have ninety days in which to consider and make a determination on a request by a dealer/retailer to sell or transfer any portion of his or her business ownership to another party or to enter into an agreement to operate the dealership with another party. The dealer/retailer's request shall include the reasonable financial information, personal background, character references and work histories as required by the manufacturer to render such a determination. In the event the manufacturer or distributor determines that the request is not acceptable, the manufacturer or distributor shall provide the dealer/retailer with a written notice of its determination with the stated reasons for nonacceptance.
(L. 1998 S.B. 626)
407.309. 1. As used in this section, the following terms mean:
(1) "Performing group", a vocal or instrumental group seeking to use the name of another group that has previously released a commercial sound recording under that name;
(2) "Recording group", a vocal or instrumental group at least one of whose members has previously released a commercial sound recording under that group's name and in which the member or members have a legal right by virtue of use or operation under the group name without having abandoned the name or affiliation with the group;
(3) "Sound recording", a work that results from the fixation on a material object of a series of musical, spoken, or other sounds regardless of the nature of the material object, such as a disk, tape, or other phono-record, in which the sounds are embodied.
2. It shall be unlawful for any person to advertise or conduct a live musical performance or production in this state through the use of a false, deceptive, or misleading affiliation, connection, or association between the performing group and the recording group. This section shall not apply if:
(1) The performing group is the authorized registrant and owner of a federal service mark for that group registered in the United States Patent and Trademark Office;
(2) At least one member of the performing group was a member of the recording group and has a legal right by virtue of use or operation under the group name without having abandoned the name or affiliation with the group;
(3) The live musical performance or production is identified in all advertising and promotion as a salute or tribute;
(4) The advertising does not relate to a live musical performance or production taking place in this state; or
(5) The performance or production is expressly authorized by the recording group.
3. Whenever the attorney general has reason to believe that any person is advertising or conducting or is about to advertise or conduct a live musical performance or production in violation of this section and that proceedings would be in the public interest, the attorney general may bring an action against the person to restrain by temporary or permanent injunction that practice.
4. Whenever any court issues a permanent injunction to restrain and prevent violations of this section as authorized in subsection 3 of this section, the court may in its discretion direct that the defendant restore to any person in interest any moneys or property, real or personal, which may have been acquired by means of any violation of this section, under terms and conditions to be established by the court.
5. Notwithstanding the provisions of section 407.100 to the contrary, any person who violates this section shall be assessed a civil penalty of not less than five thousand dollars nor more than fifteen thousand dollars per violation, which civil penalty shall be in addition to any other relief which may be granted under subsection 4 of this section. Each performance or production declared unlawful by this section shall constitute a separate violation.
(L. 2007 H.B. 780)
407.325. As used in sections 407.325 to 407.340, the following terms shall mean:
(1) "Business day", any day except a Sunday or a legal holiday;
(2) "Buyer", a natural person who enters into a health spa contract;
(3) "Contract price", the sum of all monthly fees except interest required by the health spa contract and any nonrecurring fee charged at or near the beginning of a health spa membership;
(4) "Health spa", any person, firm, corporation, organization, club or association engaged in the sale of memberships in a program of physical exercise, which includes the use of one or more of a sauna, whirlpool, weight-lifting room, massage, steam room, or exercising machine or device, or engaged in the sale of the right or privilege to use exercise equipment or facilities, such as a sauna, whirlpool, weight-lifting room, massage, steam room or exercising machine or device. The term "health spa" shall not include the following:
(a) Bona fide nonprofit organizations, including, but not limited to, the Young Men's Christian Association, Young Women's Christian Association, or similar organizations whose functions as health spas are only incidental to their overall functions and purposes;
(b) Any private club owned and operated by its members;
(c) Any organization primarily operated for the purpose of teaching a particular form of self-defense such as judo or karate;
(d) Any facility owned or operated by the United States;
(e) Any facility owned or operated by the state of Missouri or any of its political subdivisions;
(f) Any nonprofit public or private school, college or university; and
(g) Any facility owned or operated by any person, firm, corporation, organization, club or association, engaged in the sale of the right or privilege to use such facility when the proceeds of the sale of such rights or privileges accounts for twenty percent or less of the gross annual receipts of the person, firm, corporation, organization, club or association;
(5) "Health spa contract", a written agreement whereby the buyer of health spa services purchases, or becomes obligated to purchase, health spa services to be rendered over a period longer than three months; and the seller of health spa services receives payment to cover a period more than three months;
(6) "Health spa services", services, privileges, or rights offered for sale or provided by a health spa;
(7) "Monthly fee", the total consideration, including but not limited to, equipment or locker rental, credit check, finance, medical and dietary evaluation, class and training fees, and all other similar fees or charges and interest, but excluding any nonrecurring fee charged at or near the beginning of a health spa membership, to be paid by a buyer, divided by the total number of months of health spa service use allowed by the buyer's contract, including months or time periods called "free" or "bonus" months or time periods and such months or time periods which are described in any other terms suggesting that they are provided free of charge, which months or time periods are given or contemplated when the contract is initially executed;
(8) "Prepayment", payment of any consideration for services or the use of facilities made prior to the day on which the services or facilities of the health spa are fully open and available for regular use by the members.
(L. 1988 S.B. 486 § 1)
407.327. 1. It shall be unlawful for any health spa to offer, advertise, or execute or cause to be executed by the buyer any health spa contract in this state unless the health spa at the time of the offer, advertisement, sale or execution of a health spa contract has been properly registered with the office of the attorney general. The registration shall:
(1) Disclose the address, ownership, date of first sales and date of first opening of the health spa;
(2) Be renewed annually; and
(3) Be accompanied by a fee of one hundred dollars per registration and each annual renewal thereof. Each separate location where health spa services are offered shall be considered a separate health spa and shall file a separate registration, even though the separate locations are owned or operated by the same owner.
2. All fees collected pursuant to this section shall be deposited in the state treasury to the credit of a special trust fund to be known as the "Health Spa Regulatory Fund". Moneys in the health spa regulatory fund shall be used solely for the administration of sections 407.325 to 407.340.
3. The attorney general shall have all powers, rights and duties as are provided in sections 407.010 to 407.145, to seek penalties, remedies, and procedures that are provided in such sections against any health spa that is engaged in practices that are unlawful according to the provisions of this chapter.
4. The provisions of this section* are not exclusive and do not relieve health spas or the contract subject thereto from compliance with all other applicable provisions of law nor shall such provisions bar any civil claim against any health spa which has acquired any moneys or property, real or personal, by means of any practice declared unlawful by this chapter.
(L. 1988 S.B. 486 § 2)*Word "subsection" appears in original rolls but apparently refers to entire section.
407.329. 1. Each health spa selling contracts or health spa services on a prepayment basis shall notify the office of the attorney general of the proposed location of the spa for which prepayments will be solicited and shall deposit all funds received from such prepayment contracts in an account established in a financial institution authorized to transact business in this state until the health spa has commenced operations. The account shall be established and maintained only in a financial institution which agrees in writing with the office of the attorney general to hold all funds deposited and not to release such funds until receipt of written authorization from the office of the attorney general. The prepayment funds deposited will be eligible for withdrawal by the health spa after the health spa has opened and is providing services pursuant to its health spa contracts and the office of the attorney general gives written authorization for withdrawal.
2. The provisions of this section shall not apply to any health spa duly registered pursuant to the provisions of section 407.327 which has posted a bond or letter of credit in the amount of twenty-five thousand dollars.
(L. 1988 S.B. 486 § 3)
407.330. 1. Every health spa contract for the sale of future health spa services which are paid for in advance or which the buyer agrees to pay for in future installments shall be in writing and shall contain the following contractual provisions:
(1) A provision for the penalty-free cancellation of the contract within three business days of its making and refund upon such notice of all moneys paid under the contract;
(2) A provision requiring that to cancel a contract the buyer shall notify the health spa of cancellation in writing, by certified mail, return receipt requested, or personal delivery, to the address specified in the health spa contract; that all moneys to be refunded upon cancellation of the health spa contract shall be paid within thirty days of receipt of the notice of cancellation; and that if the customer has executed any credit or lien agreement with the health spa to pay for all or part of health spa services, any such negotiable instrument executed by the buyer shall also be returned within thirty days after such cancellation;
(3) A provision for the cancellation of the contract if the buyer dies or becomes permanently disabled and unable to use a substantial portion of the services for sixty or more consecutive days. Upon receipt of such notice, the health spa shall refund to the buyer funds paid or accepted in payment of the contract in an amount computed by dividing the contract price by the number of weeks in the contract term and multiplying the result by the number of weeks remaining in the contract term. In the case of disability, the health spa may require the buyer to submit to a physical examination by a doctor agreeable to the buyer and the health spa;
(4) A provision for extension of the term of the membership for time loss due to temporary disability. In the case of disability, the health spa may require the buyer to submit to a physical examination by a doctor agreeable to the buyer and the health spa.
2. The provisions required by subsection 1 of this section shall be set forth under a conspicuous caption:
"BUYER'S RIGHT TO CANCEL"; and read substantially as follows:
If you wish to cancel this contract, you may cancel by delivering written notice to this health spa by certified mail, return receipt requested. The notice must say that you do not wish to be bound by the contract and must be delivered or mailed before midnight of the third business day after you sign this contract. The notice must be delivered or mailed to: ....................................................... (Health spa shall insert its name and mailing address.)
(L. 1988 S.B. 486 § 4)*No continuity with § 407.330 as repealed by L. 1963 S.B. 2 § 10-102, effective 7-1-65.
407.332. 1. The provisions of section 408.405, RSMo, shall apply to any health spa contract with the following exceptions:
(1) It shall not be a defense relieving the buyer from amounts then owing on any contract between a buyer and a health spa for health services regardless of whether such contract has been assigned that the health spa has relocated provided that the health spa has relocated within ten miles of the location designated in the health spa contract;
(2) It shall not be a defense relieving the buyer from amounts then owing on any contract between a buyer and a health spa for health spa services regardless of whether such contract has been assigned that the health spa has been sold provided there has not been a lapse in services for more than thirty days. However, it shall be the legal obligation of every buyer of a health spa that has been providing health spa services pursuant to contracts to honor the terms of such contracts. The new owner of a health spa shall not consider the lapsed time period when determining how much time remains for service on any particular contract.
2. It shall be a defense relieving the buyer from amounts then owing on any contract between a buyer and a health spa for health spa services, regardless of whether such contract has been assigned, that the health spa has gone out of business without providing alternative health spa services at another location within ten miles of the location designated in the health spa contract.
3. Any health spa which relocates to a location that is ten miles from the location designated in a health spa contract or which goes out of business prior to the expiration of a buyer's contract without providing alternative health spa services at another location within ten miles of the location designated in the health spa contract shall be required to refund to the buyer funds paid or accepted in payment of the contract in an amount computed by dividing the contract price by the number of weeks in the contract term and multiplying the result by the number of weeks remaining in the contract term. This provision shall not apply to any health spa that has been sold provided there has not been a lapse in service for more than thirty days. However the new owner of a health spa shall honor the terms of all contracts entered into between buyers and the health spa while controlled by the prior owner. The new owner of the health spa shall not consider the lapsed period when determining how much time remains for service on any particular contract.
4. In order to ensure adequate enforcement of the provisions of this section the office of the attorney general is empowered to represent buyers who may be injured as a result of noncompliance with the provisions of this section. The attorney general is hereby given in addition to the powers granted to the attorney general to enforce the provisions of this chapter the additional power to seek and be granted receivership of all goods and chattels, rights and credits, moneys and effects, lands and tenements, books, records, documents, papers, choses in action, bills, notes, and property of every description of any person, firm, corporation, organization, club or association that has operated a health spa that is determined to have injured a buyer as a result of going out of business or being sold and failing to refund moneys due and owing buyers under the provisions of subsection 3 of this section, and to sell, convey, and assign the same and hold and dispose of the proceeds thereof under the direction of the court for the benefit of the injured buyers.
(L. 1988 S.B. 486 § 5)
407.334. 1. Every health spa contract shall be signed by the buyer, shall designate the date on which the buyer actually signed the contract and a copy of the contract shall be delivered to the buyer at the time the contract is executed.
2. No health spa contract shall have a duration for a period longer than thirty-six months, but the contract may give the buyer a right of renewal.
3. Any health spa contract which does not comply with the applicable provisions of section 407.330 shall be voidable at the option of the buyer.
4. Any waiver by the buyer of any of the provisions of section 407.330 shall be deemed contrary to public policy and shall be void and unenforceable.
(L. 1988 S.B. 486 § 6)
407.335. All health spa contracts and any promissory note executed by the buyer in connection therewith shall contain the following provision on the face thereof in at least 10-point, boldface type:
NOTICE
ANY HOLDER OF THIS CONTRACT OR NOTE IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.
(L. 1988 S.B. 486 § 7)
407.337. Whether or not the health spa has complied with the notice requirements of section 407.335, any right of action or defense arising out of a health spa contract which the buyer has against the health spa, and which would be cut off by assignment, shall not be cut off by assignment of the contract to any third party holder, whether or not the holder acquires the contract in good faith and for value.
(L. 1988 S.B. 486 § 8)
407.339. 1. Before entering into any nonprepayment health spa contract, every health spa except any health spa which has been engaged in such business in any county of the first or second class or in any city not located within a county for at least three years prior to August 13, 1988, and except in any county of the third or fourth class for at least one year prior to August 13, 1988, shall file and maintain with the office of the attorney general, in form and substance satisfactory to him, a bond with corporate surety, from a company authorized to transact business in this state or a letter of credit from a bank insured by the Federal Deposit Insurance Corporation in the amounts indicated below:
Number of unexpired Amount of bond
contracts exceeding or letter of
three months credit
500 or less $10,000
501 to 1000 $20,000
more than 1000 $25,000 The number of unexpired contracts exceeding three months shall be separately calculated for each location where health spa services are offered. Any health spa subject to the requirements of this section shall be exempt from its provisions after such health spa has been engaged in business for three years.
2. Each separate location where health spas services are offered shall be considered a separate health spa and shall file a separate bond or letter of credit with respect thereto, even though the separate locations are owned or operated by the same owner; but, no owner shall be required to file with the office of the attorney general bonds or letters of credit in excess of seventy-five thousand dollars. If the seventy-five thousand dollar limit is applicable, then the bonds or letters of credit filed by such owner shall apply to all health spas owned or operated by the same owner.
3. A health spa which has not filed a bond or letter of credit may nevertheless sell health spa contracts of up to thirty-six months' duration so long as the amount of payment actually charged, due or received each month by the health spa or any holder of its health spa contracts does not exceed the monthly fee calculated pursuant to the definition thereof in section 407.325.
4. The bond required by subsection 1 of this section shall be renewed annually. No bond required of any health spa under the provisions of sections 407.325 to 407.340 shall be canceled by either party without thirty days written notice prior to the intended cancellation date. All claims against the holder of the bond must be made within ninety days after the expiration or cancellation of the bond.
(L. 1988 S.B. 486 § 9)
407.340. 1. The bond or letter of credit required by section 407.339 shall be in favor of the state of Missouri for the benefit of:
(1) Any buyer injured by having paid money for health spa services in a facility which fails to open within sixty days after the date upon which the buyer and the health spa entered into a contract or goes out of business prior to the expiration of the buyer's health spa contract; or
(2) Any buyer injured as a result of a violation of sections 407.325 to 407.340.
2. The aggregate liability of the bond or letter of credit to all persons for all breaches of the conditions of the bond or letter of credit shall in no event exceed the amount of the bond or letter of credit. The bond or letter of credit shall not be canceled or terminated except with the consent of the office of the attorney general.
(L. 1988 S.B. 486 § 10)*No continuity with § 407.340 as repealed by L. 1963 S.B. 2 § 10-102, effective 7-1-65.
407.350. As used in sections 407.350 to 407.357, unless the context clearly requires otherwise, the following terms mean:
(1) "Bid", a written or oral proposal by an exhibitor to a distributor, which proposal is in response to an invitation to bid or negotiate and states the terms under which the exhibitor will agree to exhibit a motion picture in this state;
(2) "Blind bidding", bidding, negotiating, offering terms, accepting a bid, or agreeing to terms for the purpose of entering into a license agreement prior to a trade screening of the motion picture that is the subject of the agreement;
(3) "Distributor", any person engaged in the business of renting, selling, or licensing motion pictures to exhibitors;
(4) "Exhibit" or "exhibition", showing a motion picture to the public for a charge;
(5) "Exhibitor", any person engaged in the business of operating a theater in this state;
(6) "Invitation to bid", a written or oral solicitation or invitation by a distributor to one or more exhibitors to bid or negotiate for the right to exhibit a motion picture in this state;
(7) "License agreement", any contract between a distributor and an exhibitor for the exhibition of a motion picture by the exhibitor in this state;
(8) "Run", the continuous exhibition of a motion picture in a defined geographic area for a specified period of time. A "first run" means the initial exhibition of a motion picture in a designated geographic area for a specified period of time, a "subsequent run" means any continuous exhibition of a motion picture in a designated geographic area for a specified period of time after the first run;
(9) "Theater", any establishment in which motion pictures are exhibited regularly to the public for a charge;
(10) "Trade screening", the showing of a motion picture by a distributor in the two largest metropolitan areas, which showing is open to any exhibitor interested in exhibiting the motion picture.
(L. 1982 S.B. 525 § 1)*No continuity with § 407.350 as repealed by L. 1963 S.B. 2 § 10-102, effective 7-1-65.
407.353. 1. Blind bidding of more than two motion pictures in any twelve-month period in the state of Missouri by the aggregate of all distributors, or their subsidiary distributors or related companies, not previously exhibited within this state is hereby prohibited within this state. No bids shall be returnable, no negotiations for the exhibition or licensing of a motion picture shall take place, and no license agreement or any of its terms shall be agreed to for the exhibition of any motion picture within this state before the motion picture has been trade screened within this state.
2. Every distributor shall furnish to all exhibitors in this state reasonable and uniform notice of all trade screenings that are held within this state of motion pictures that he is distributing.
(L. 1982 S.B. 525 § 2)
407.355. 1. If bids are solicited from exhibitors for the purpose of entering into a license agreement, the invitation to bid shall specify:
(1) The number and length of runs to which the invitation to bid applies;
(2) Whether the invitation to bid applies to a first or subsequent run;
(3) The geographic area for each run;
(4) The names of all exhibitors who are being given an invitation to bid;
(5) The date, hour, and location at which the bid is required to be made;
(6) The name and address of the location where the bids will be opened, which location shall be within this state.
2. If the motion picture that is the subject of a bid has not already been trade screened within this state, the distributor soliciting the bid shall include in the invitation to bid the date, time, and location of the trade screening of the motion picture that is the subject of the invitation to bid. An exhibitor is prohibited from submitting a bid unless the exhibitor or his agent has attended a trade screening of the motion picture for which bids are being solicited.
3. If a distributor issues invitations to bid for a motion picture and he receives no bids for the motion picture, he may then negotiate for the picture with all exhibitors on the bid list. No further bidding is required. If a distributor receives bids which are not acceptable to the distributor the first time the motion picture is bid, he must rebid the motion picture a second time and if after bidding the motion picture a second time the bids are still unacceptable, he shall notify all exhibitors of such rejections and then may negotiate the motion picture. No further bidding is required and all exhibitors must be given an opportunity to negotiate.
(L. 1982 S.B. 525 § 3)
407.357. Notwithstanding any other provisions of sections 407.350 to 407.357, a distributor of motion pictures may blind bid motion pictures based upon a play or review which has been performed for a period of not less than six months for the public, or based upon published manuscripts which are in the top ten best sellers in sales or manuscripts having sold at least five hundred thousand copies to the general public from the time of copyright, or based upon television or radio scripts which have been previously televised or broadcast on a national network to the public. Provided, however, if a distributor solicits bids from exhibitors for the purposes of entering into a license agreement and engages in blind bidding for such solicitation, the invitation to bid shall be in writing and shall specify, in addition to any other information the distributor desires to convey to an exhibitor, the audience to which the motion picture is principally directed and the rating anticipated for the motion picture which shall be specified by using the rating system of the Classification and Rating Administration. Blind bidding as provided for in section 407.353 and this section may only take place during the one-hundred-eighty-day period immediately preceding the designated release date of the motion picture which is the subject of the license agreement and no exhibitor shall forward any money to a distributor earlier than fourteen days immediately preceding the designated release date of the motion picture which is the subject of the license agreement. A license agreement is voidable by the exhibitor if the released motion picture does not substantially conform to the information provided by the distributor about the motion picture in the invitation to bid, or if the rating given by the Classification and Rating Administration is more restrictive than the rating indicated by the distributor in the invitation to bid, and all money received by the distributor from the exhibitor before the release of the motion picture under the terms of the license agreement, shall be returned to the exhibitor within seven days. All license agreements entered into as a result of blind bidding shall contain a provision stating the amount of damages payable to the exhibitor by the distributor in the event the license agreement is voided under the terms of this section.
(L. 1982 S.B. 525 § 4)
407.400. As used in sections 407.400 to 407.420:
(1) "Franchise" means a written or oral arrangement for a definite or indefinite period, in which a person grants to another person a license to use a trade name, trademark, service mark, or related characteristic, and in which there is a community of interest in the marketing of goods or services at wholesale, retail, by lease, agreement, or otherwise, including but not limited to a commercial relationship of definite duration or continuing indefinite duration, between a "wholesaler", such wholesaler being a person as defined in this section, licensed pursuant to the provisions of chapter 311, RSMo, to sell at wholesale, intoxicating liquor, as defined in section 311.020, RSMo, to retailers, duly licensed in this state, and a "supplier", being a person engaged in the business as a manufacturer, distiller, rectifier or out-of-state solicitor whose brands of intoxicating liquor are distributed through duly licensed wholesalers in this state, and wherein a wholesaler is granted the right to offer, sell, and distribute within this state or any designated area thereof such of the supplier's brands of intoxicating liquor, or all of them, as may be specified; except that, the term "franchise" shall not apply to persons engaged in sales from warehouses or like places of storage, other than wholesalers as above described, leased departments of retail stores, places of original manufacture, nor shall the term "franchise" apply to a commercial relationship that does not contemplate the establishment or maintenance of a place of business within the state of Missouri. As used herein "place of business" means a fixed, geographical location at which goods, products or services are displayed or demonstrated for sale;
(2) The term "goods" includes any personal property, real property, or any combination thereof;
(3) The term "other property" includes a franchise, license distributorship, or other similar right, privilege, or interest;
(4) The term "person" includes an individual, corporation, trust, estate, partnership, unincorporated association, or any other legal or commercial entity;
(5) The term "pyramid sales scheme" includes any plan or operation for the sale or distribution of goods, services or other property wherein a person for a consideration acquires the opportunity to receive a pecuniary benefit, which is not primarily contingent on the volume or quantity of goods, services, or other property sold or distributed or to be sold or distributed to persons for purposes of resale to consumers, and is based upon the inducement of additional persons, by himself or herself or others, regardless of number, to participate in the same plan or operation; and
(6) The term "sale or distribution" includes the acts of leasing, renting or consigning.
(L. 1974 H.B. 1132 § 1, A.L. 1975 H.B. 810 § 1, A.L. 1998 H.B. 957 & 1063)*No continuity with § 407.400 as repealed by L. 1963 S.B. 2 § 10-102, effective 7-1-99.
(1978) Amendment changing definition of franchise to include wholesalers and suppliers or distillers of spirituous liquors during passage of bill did not violate constitutional requirements that bill contain no more than one subject and that it be clearly expressed in the title, and that bill was so amended in its passage as to change its original purpose. Brown-Forman Distillers Corp. v. McHenry (Mo.), 556 S.W.2d 194.
(1980) Sale of club memberships not exempt from statute prohibiting pyramid sales schemes on basis that operation was contingent on volume or quantity of goods, services, or other property sold or distributed or to be sold or distributed to persons for purpose of resale where what was sold was place on club chart, with opportunity to move to higher position. State ex rel. Ashcroft v. Wahl (A.), 600 S.W.2d 175.
(1980) General intent of the legislature in the enactment of statutes prohibiting pyramid sales schemes, is to buttress a strong public policy against pyramid sales schemes involving cover or disguise of some seemingly legitimate commercial transaction. State ex rel. Ashcroft v. Wahl (A.), 600 S.W.2d 175.
(1986) A "community of interest" is found, for purposes of this section, where either (1) the franchisor benefits from the franchisee's marketing of the franchisor's product or service, or (2) the franchisee benefits from the franchisor's marketing of the product or service. C&J Delivery, Inc. v. Emery Air Freight Corp., 647 F.Supp. 867 (E.D. Mo.).
407.405. No person shall, directly or through the use of agents or intermediaries, in connection with the sale or distribution of goods, service, or other property, sell, offer or attempt to sell a participation or the right to participate in a pyramid sales scheme. No person who has granted a franchise to another person shall cancel or otherwise terminate any such franchise agreement without notifying such person of the cancellation, termination or failure to renew in writing at least ninety days in advance of the cancellation, termination or failure to renew, except that when criminal misconduct, fraud, abandonment, bankruptcy or insolvency of the franchisee, or the giving of a no account or insufficient funds check is the basis or grounds for cancellation or termination, the ninety days' notice shall not be required.
(L. 1974 H.B. 1132 § 2, A.L. 1975 H.B. 810 § 2)(1980) Solicitation of individuals to join pyramid structured club, the purpose of which was to generate money payable to members higher up on the pyramidal scale, violated statute prohibiting pyramid sales schemes. State ex rel. Ashcroft v. Wahl (A.), 600 S.W.2d 175.
(1980) General intent of the legislature in the enactment of statutes prohibiting pyramid sales schemes is to buttress a strong public policy against pyramid sales schemes involving cover or disguise of some seemingly legitimate commercial transaction. State ex rel. Ashcroft v. Wahl (A.), 600 S.W.2d 175.
(1986) Ninety-day notice requirement for franchise cancellation held not repealed by implication as applied to motor vehicle franchises by enactment of Motor Vehicle Franchise Practice Act, sections 407.810 to 407.835, RSMo. Maude v. General Motors Corp., 626 F.Supp. 1081 (W.D. Mo.)
407.410. 1. Any contract made in violation of section 407.405 is void and any person who, directly or through the use of agents or intermediaries, induces or causes another person to participate in a pyramid sales scheme will be liable to that person in civil damages in an amount equal to the sum of twice the amount of consideration paid, and in the case of any successful action to enforce such liability, the costs of the action together with a reasonable attorney's fee, as determined by the court. An action under this section may be brought in the circuit court having venue within five years from the date on which the consideration was paid.
2. A franchisee suffering damage as a result of the failure to give notice as required of the cancellation or termination of a franchise, may institute legal proceedings under the provisions of sections 407.400 to 407.420 against the franchisor who canceled or terminated his franchise in the circuit court for the circuit in which the franchisor or his agent resides or can be located. When the franchisee prevails in any such action in the circuit court, he may be awarded a recovery of damages sustained to include loss of goodwill, costs of the suit, and any equitable relief that the court deems proper.
(L. 1974 H.B. 1132 § 3, A.L. 1975 H.B. 810 § 3)*No continuity with § 407.410 as repealed by L. 1963 S.B. 2 § 10-102, effective 7-1-65.
(1980) General intent of the legislature in the enactment of statutes prohibiting pyramid sales schemes is to buttress a strong public policy against pyramid sales schemes involving cover or disguise of some seemingly legitimate commercial transaction. State ex rel. Ashcroft v. Wahl (A.), 600 S.W.2d 175.
(1987) Franchisor who fails to provide time notice of termination to a franchisee under section 407.405 the franchisee is not entitled to recover punitive damages in an action brought pursuant to this section. Ridings v. Thoele, Inc., 739 S.W.2d 547 (Mo. banc.).
407.413. 1. If more than one franchise for the same brand or brands of intoxicating liquor is granted to different wholesalers in this state, it is a violation of sections 407.400 to 407.420 for any supplier to discriminate between the wholesalers with respect to any of the terms, provisions, and conditions of these franchises.
2. Notwithstanding the terms, provisions and conditions of any franchise, no supplier shall unilaterally terminate or refuse to continue or change substantially the condition of any franchise with the wholesaler unless the supplier has first established good cause for such termination, noncontinuance or change.
3. Any wholesaler may bring an action in a court of competent jurisdiction against a supplier for violation of any of the provisions of this section and may recover damages sustained by such wholesaler together with the costs of the action and reasonable attorney's fees.
4. In any action brought by a wholesaler against a supplier for termination, noncontinuance or substantial change in violation of the provisions of this section, it is a complete defense for the supplier to prove that the termination, noncontinuance or change was done in good faith and for good cause.
5. As used in this section, "good faith" is the duty of each party to any franchise and all officers, employees or agents thereof to act in a fair and equitable manner towards each other, and "good cause" means the following:
(1) Failure by the wholesaler to comply substantially with the provisions of an agreement or understanding with the supplier, which provisions are both essential and reasonable;
(2) Use of bad faith or failure to observe reasonable commercial standards of fair dealing in the trade; or
(3) Revocation or suspension for more than thirty-one days of a beer wholesaler's federal basic permit or of any state or local license required of a beer wholesaler for the normal operation of its business.
6. As to brewers and beer wholesalers, the provisions of this section shall only apply to agreements entered into on or after August 28, 1998, and to agreements which are renewed or substantially amended on or after August 28, 1998. As used in the preceding sentence, "substantially amended" means a written amendment that materially alters the fundamental business relationship between brewer and wholesaler. "Substantially amended" does not include changes or amendments that are contemplated in writing by the parties to an agreement.
(L. 1975 H.B. 810 § 4, A.L. 1998 H.B. 957 & 1063)(1978) Amendment adding this section to bill during passage did not violate constitutional requirements that bill contain no more than one subject and that it be clearly expressed in the title, and that bill was so amended in its passage as to change its original purpose. Brown-Forman Distillers Corp. v. McHenry (Mo.), 556 S.W.2d 194.
407.415. In addition to other penalties and remedies provided in sections 407.400 to 407.420, whenever it appears that any person is engaged or is about to engage in any act or practice which constitutes a pyramid sales scheme, the attorney general may bring an action in the circuit court having venue to enjoin such act or practice, and upon a proper showing, a temporary restraining order or a preliminary or permanent injunction shall be granted without bond.
(L. 1974 H.B. 1132 § 4, A.L. 1975 H.B. 810 § 5)(1980) General intent of the legislature in the enactment of statutes prohibiting pyramid sales schemes is to buttress a strong public policy against pyramid sales schemes involving cover or disguise of some seemingly legitimate commercial transaction. State ex rel. Ashcroft v. Wahl (A.), 600 S.W.2d 175.
407.420. Any person willfully violating any of the provisions of section 407.405 is guilty of a class D felony. It shall be the duty of each prosecuting attorney and circuit attorney in their respective jurisdictions to commence any criminal actions under this section, and the attorney general shall have concurrent original jurisdiction to commence such criminal actions throughout the state where such violations have occurred.
(L. 1974 H.B. 1132 § 5, A.L. 1975 H.B. 810 § 6, A.L. 1986 S.B. 685)Effective 5-1-86
*No continuity with § 407.420 as repealed by L. 1963 S.B. 2 § 10-102, effective 7-1-65.
(1980) General intent of the legislature in the enactment of statutes prohibiting pyramid sales schemes is to buttress a strong public policy against pyramid sales schemes involving cover or disguise of some seemingly legitimate commercial transaction. State ex rel. Ashcroft v. Wahl (A.), 600 S.W.2d 175.
407.430. Sections 407.430 to 407.436 shall be known and may be cited as the "Credit User Protection Law".
(L. 1991 S.B. 112)*No continuity with § 407.430 as repealed by L. 1963 S.B. 2 § 10-102, effective 7-1-65.
407.432. As used in sections 407.430 to 407.436, the following terms shall mean:
(1) "Acquirer", a business organization, financial institution, or an agent of a business organization or financial institution that authorizes a merchant to accept payment by credit card for merchandise;
(2) "Cardholder", the person's name on the face of a credit card to whom or for whose benefit the credit card is issued by an issuer, or any agent authorized signatory or employee of such person;
(3) "Counterfeit credit card", any credit card which is fictitious, altered, or forged, any false representation, depiction, facsimile or component of a credit card, or any credit card which is stolen, obtained as part of a scheme to defraud, or otherwise unlawfully obtained, and which may or may not be embossed with account information or a company logo;
(4) "Credit card" or "debit card", any instrument or device, whether known as a credit card, credit plate, bank service card, banking card, check guarantee card, or debit card or by any other name, issued with or without fee by an issuer for the use of the cardholder in obtaining money or merchandise on credit, or for use in an automated banking device to obtain any of the services offered through the device. The presentation of a credit card account number is deemed to be the presentation of a credit card;
(5) "Expired credit card", a credit card for which the expiration date shown on it has passed;
(6) "Issuer", the business organization or financial institution or its duly authorized agent, which issues a credit card;
(7) "Merchandise", any objects, wares, goods, commodities, intangibles, real estate, services, or anything else of value;
(8) "Merchant", an owner or operator of any retail mercantile establishment, or any agent, employee, lessee, consignee, officer, director, franchisee, or independent contractor of such owner or operator. A merchant includes a person who receives from an authorized user of a payment card, or an individual the person believes to be an authorized user, a payment card or information from a payment card as the instrument for obtaining, purchasing, or receiving goods, services, money, or anything of value from the person;
(9) "Person", any natural person or his legal representative, partnership, firm, for-profit or not-for-profit corporation, whether domestic or foreign, company, foundation, trust, business entity or association, and any agent, employee, salesman, partner, officer, director, member, stockholder, associate, trustee or cestui que trust thereof;
(10) "Reencoder", an electronic device that places encoded information from the magnetic strip or stripe of a credit or debit card onto the magnetic strip or stripe of a different credit or debit card;
(11) "Revoked credit card", a credit card for which permission to use it has been suspended or terminated by the issuer;
(12) "Scanning device", a scanner, reader, or any other electronic device that is used to access, read, scan, obtain, memorize, or store, temporarily or permanently, information encoded on the magnetic strip or stripe of a credit or debit card.
(L. 1991 S.B. 112, A.L. 2002 S.B. 895)
407.433. 1. No person, other than the cardholder, shall:
(1) Disclose more than the last five digits of a credit card or debit card account number on any sales receipt provided to the cardholder for merchandise sold in this state;
(2) Use a scanning device to access, read, obtain, memorize, or store, temporarily or permanently, information encoded on the magnetic strip or stripe of a credit or debit card without the permission of the cardholder and with the intent to defraud any person, the issuer, or a merchant; or
(3) Use a reencoder to place information encoded on the magnetic strip or stripe of a credit or debit card onto the magnetic strip or stripe of a different card without the permission of the cardholder from which the information is being reencoded and with the intent to defraud any person, the issuer, or a merchant.
2. Any person who knowingly violates this section is guilty of an infraction and any second or subsequent violation of this section is a class A misdemeanor.
3. It shall not be a violation of subdivision (1) of subsection 1 of this section if:
(1) The sole means of recording the credit card number or debit card number is by handwriting or, prior to January 1, 2005, by an imprint of the credit card or debit card; and
(2) For handwritten or imprinted copies of credit card or debit card receipts, only the merchant's copy of the receipt lists more than the last five digits of the account number.
4. This section shall become effective on January 1, 2003, and applies to any cash register or other machine or device that prints or imprints receipts of credit card or debit card transactions and which is placed into service on or after January 1, 2003. Any cash register or other machine or device that prints or imprints receipts on credit card or debit card transactions and which is placed in service prior to January 1, 2003, shall be subject to the provisions of this section on or after January 1, 2005.
(L. 2002 S.B. 895, A.L. 2003 H.B. 221 merged with S.B. 292 merged with S.B. 346)
407.434. 1. A person or employee of a person who is authorized by an acquirer to furnish money or merchandise upon presentation of a credit card by a cardholder and furnishes money or merchandise to the cardholder upon presentation of a credit card which such person knows to be a counterfeit credit card, expired credit card, revoked credit card, or a credit card used without the consent of the cardholder, and has furnished such money or merchandise to the cardholder with the intent to defraud the acquirer, has engaged in an unlawful practice.
2. A person who is authorized by an acquirer to furnish money or merchandise upon presentation of a credit card by a cardholder and, with intent to defraud the issuer, the acquirer, or the cardholder, fails to furnish money or merchandise which the person represents in writing to the issuer or the acquirer that he has furnished, has engaged in an unlawful practice.
3. A person who is authorized by an acquirer to furnish money or merchandise upon presentation of a credit card by a cardholder and, with the intent to defraud the issuer, the acquirer, or the cardholder, presents to the issuer or acquirer for payment, a credit card transaction record of a sale of merchandise, which such sale of merchandise was not made by the person or his agent or employee, has engaged in an unlawful practice.
4. A person who, without the acquirer's authorization, employs, solicits, or otherwise causes another person authorized by an acquirer to furnish money or merchandise upon presentation of a credit card by a cardholder, or employs, solicits, or otherwise causes, an agent or employee of such other authorized person to remit to the acquirer a credit card transaction record of a sale that was not made by such other authorized person or his agent or employee, has engaged in an unlawful practice.
(L. 1991 S.B. 112)
407.436. 1. Any person who willfully and knowingly, and with the intent to defraud, engages in any practice declared to be an unlawful practice in sections 407.430 to 407.436 of this credit user protection law shall be guilty of a class D felony.
2. The violation of any provision of sections 407.430 to 407.436 of this credit user protection law constitutes an unlawful practice pursuant to sections 407.010 to 407.130, and the violator shall be subject to all penalties, remedies and procedures provided in sections 407.010 to 407.130. The attorney general shall have all powers, rights, and duties regarding violations of sections 407.430 to 407.436 as are provided in sections 407.010 to 407.130, in addition to rulemaking authority as provided in section 407.145.
(L. 1991 S.B. 112)
407.450. Sections 407.450 to 407.478 shall be known and may be cited as the "Charitable Organizations and Solicitations Law".
(L. 1986 S.B. 685)Effective 5-1-86
*No continuity with § 407.450 as repealed by L. 1963 S.B. 2 § 10-102, effective 7-1-65.
407.453. As used in sections 407.450 to 407.478, the following terms shall mean:
(1) "Charitable organization", any person, as defined in section 407.010, who does business in this state or holds property in this state for any charitable purpose and who engages in the activity of soliciting funds or donations for, or purported to be for, any fraternal, benevolent, social, educational, alumni, historical or other charitable purpose;
(2) "Charitable purpose", any purpose which promotes, or purports to promote, directly or indirectly, the well-being of the public at large or any number of persons, whether such well-being is in general or limited to certain activities, endeavors or projects;
(3) "Educational institution", a school, college or other institution which has a defined curriculum, student body and faculty, and which conducts classes on a regular basis;
(4) "Professional fund-raiser", any person, as defined in section 407.010, who is retained under contract or otherwise compensated by or on behalf of a charitable organization primarily for the purpose of soliciting funds. The term "professional fund-raiser" shall not include any bona fide employee of a charitable organization who receives regular compensation and is not primarily employed for the purpose of soliciting funds;
(5) "Religious organization", any society, sect, persuasion, mission, church, parish, congregation, temple, convention or association of any of the foregoing, diocese or presbytery, or other organization, whether or not incorporated, or any employee thereof, no part of the net earnings of which inures to the benefit of any private party or individual associated with such organization, and that otherwise qualifies as an exempt organization under section 501(c)(3) of title 26, United States Code, as amended, that either:
(a) Meets at more or less regular intervals for worship of a supreme being or higher power, or for mutual support or edification in piety or with respect to the idea that a minimum standard of behavior from the standpoint of overall morality is to be observed; or
(b) Is, including but not limited to, any nursing, boarding, retirement, children's or orphan's home, or any foundation, commission, hospital, school, college, university, seminary, or other entity, which is owned, operated, controlled, supervised or principally supported by, or associated with through the sharing of common religious bonds and convictions, any organization which meets the requirements of this subdivision;
(6) "Solicitation", any request or appeal, either oral or written, or any endeavor to obtain, seek or plead for funds, property, financial assistance or other thing of value, including the promise or grant of any money or property of any kind or value for a charitable purpose, but excluding:
(a) Direct grants or allocation of funds received or solicited from any affiliated fund-raising organization by a member agency; and
(b) Unsolicited contributions received from any individual donor, foundation, trust, governmental agency or other source, unless such contributions are received in conjunction with a solicitation drive.
(L. 1986 S.B. 685)Effective 5-1-86
407.456. 1. Except for charitable organizations which are exempted under subsection 2 of this section, no charitable organization shall solicit funds in this state, nor employ a professional fund-raiser to solicit funds in this state, for any charitable purpose unless it, and each professional fund-raiser employed by it, have filed all registrations and reports required by sections 407.450 to 407.478.
2. The provisions of sections 407.459 and 407.462, and subsection 1 of section 407.469 shall not apply to the following:
(1) Religious organizations;
(2) Educational institutions and their authorized and related foundations;
(3) Fraternal, benevolent, social, educational, alumni, and historical organizations, and any auxiliaries associated with any of such organizations, when solicitation of contributions is confined to the membership of such organizations or auxiliaries;
(4) Hospitals and auxiliaries of hospitals, provided all fund-raising activities and solicitations of contributions are carried on by employees of the hospital or members of the auxiliary and not by any professional fund-raiser who is employed as an independent contractor;
(5) Any solicitation for funds governed by chapter 130, RSMo; and
(6) Any organization that has obtained an exemption from the payment of federal income taxes as provided in section 501(c)(3), 501(c)(7) or 501(c)(8) of Title 26, United States Code, as amended, if, in fact, no part of the net earnings of the organization inure to the benefit of any private party or individual associated with such organization.
3. Sections 407.450 to 407.478 shall apply regardless of any contrary provisions contained in any contract, agreement, instrument or other document.
(L. 1986 S.B. 685, A.L. 1988 H.B. 1760)
407.459. The attorney general shall establish and maintain a register of all documents filed by charitable organizations in accordance with the provisions of sections 407.450 to 407.478. Such register shall be open to public inspection; except that, the attorney general may withhold from public inspection documents or information obtained in the course of an investigation undertaken pursuant to the provisions of this chapter, or which otherwise may be withheld from public inspection by law.
(L. 1986 S.B. 685)Effective 5-1-86
407.462. 1. No charitable organization shall solicit funds in this state, nor employ a professional fund-raiser to solicit funds in this state, for any charitable purpose, unless it has filed with the office of the attorney general an initial registration, which shall be sworn to under oath and shall be in the form and manner prescribed by the attorney general, except that charitable organizations in existence and soliciting on May 1, 1986, may file such initial registration within one year of May 1, 1986. All initial registrations, and amendments thereto, shall be accompanied by a filing fee of fifteen dollars unless the attorney general, by rule, establishes a different filing fee. Amendments to initial registrations shall be filed as prescribed by the attorney general.
2. In addition to the documents required by subsection 1 of this section, every charitable organization shall, within seventy-five days of the close each of its fiscal years ending after the date on which the charitable organization files its initial registration under subsection 1 of this section, file an annual report. Each annual report shall be sworn to under oath, and shall be in the form and shall be filed in the manner prescribed by the attorney general. Each annual report shall be accompanied by a filing fee of fifteen dollars unless the attorney general, by rule, establishes a different filing fee. The provisions of this subsection shall not apply to:
(1) Any charitable organization which receives an allocation of money from an incorporated community chest or united fund, provided such community chest or united fund is complying with all provisions of this section relating to the filing of registrations, amendments to registrations and annual reports;
(2) Any charitable organization which does not actually raise or receive contributions in cash, goods or services valued in excess of the dollar amount established by the attorney general by rule, which amount shall not be less than ten thousand dollars, during the twelve-month period immediately preceding the date on which its annual report would otherwise be due under this subsection; or
(3) Any charitable organization which is a local affiliate of a statewide or national charitable organization if all local fund-raising expenses are paid by the statewide or national organization and the statewide or national organization files the annual report required by this subsection.
3. All fees collected pursuant to this section shall be credited to and deposited in the merchandising practices revolving fund.
(L. 1986 S.B. 685)Effective 5-1-86
407.466. 1. No person shall act as a professional fund-raiser for any charitable organization unless he is registered with the attorney general and such registration has not expired or been canceled. Applications for registration as a professional fund-raiser, and renewals thereof, shall be in the form and manner prescribed by the attorney general, and shall be sworn to under oath. All registrations issued to professional fund-raisers shall be effective for a period of one year.
2. All applications for registration as a professional fund-raiser, and renewals thereof, shall be accompanied by a fee of fifty dollars unless a different fee has been prescribed by the attorney general by rule. All fees collected pursuant to this subsection shall be credited to and deposited in the merchandising practices revolving fund.
(L. 1986 S.B. 685)Effective 5-1-86
407.469. 1. All charitable organizations required to submit an annual report under section 407.462 shall, upon request, disclose the percentage of the funds solicited which were spent on the costs of fund raising in the last twelve-month period for which an annual report was filed under section 407.462. For purposes of this section, costs of fund raising shall include all money directly expended on fund raising and that portion of all administrative expenses and salaries of the charitable organization attributable to fund-raising activities. Any person who markets or collects funds on behalf of a charitable organization shall state on all literature soliciting such funds that a portion of the funds contributed are used for marketing expenses and paid to persons for marketing the charitable organization, if any such funds are so used.
2. Whenever a solicitation of funds on behalf of a charitable organization is undertaken by a professional fund-raiser, the professional fund-raiser shall disclose that fact to prospective contributors.