Missouri Statute | Act | Code |Contracts And Contractual Relations| US Code - US Statute

As used in sections 436.005 to 436.071, unless the context
otherwise requires, the following terms shall mean:

(1) "Beneficiary", the individual who is to be the subject of the
disposition and who will receive funeral services, facilities or
merchandise described in a preneed contract;

(2) "Division", the division of professional registration of the
department of economic development;

(3) "Funeral merchandise", caskets, grave vaults, or receptacles, and
other personal property incidental to a funeral or burial service, and
such term shall also include grave lots, grave space, grave markers,
monuments, tombstones, crypts, niches or mausoleums if, but only if, such
items are sold:

(a) By a companion agreement which is sold in contemplation of trade or
barter for grave vaults or funeral or burial services and funeral
merchandise; or

(b) At prices, in excess of prevailing market prices, intended to be
offset by reductions in the costs of funeral or burial services or
facilities which are not immediately required;

(4) "Person", any individual, partnership, corporation, cooperative,
association, or other entity;

(5) "Preneed contract", any contract or other arrangement which requires
the current payment of money or other property in consideration for the
final disposition of a dead human body, or for funeral or burial services
or facilities, or for funeral merchandise, where such disposition,
services, facilities or merchandise are not immediately required,
including, but not limited to, an agreement providing for a membership
fee or any other fee having as its purpose the furnishing of burial or
funeral services or merchandise at a discount, except for contracts of
insurance, including payment of proceeds from contracts of insurance,
unless the preneed seller or provider is named as the owner or
beneficiary in the contract of insurance;

(6) "Preneed trust", a trust established by a seller, as grantor, to
receive deposits of, administer, and disburse payments received under
preneed contracts by such seller, together with income thereon;

(7) "Provider", the person obligated to provide the disposition and
funeral services, facilities, or merchandise described in a preneed
contract;

(8) "Purchaser", the person who is obligated to make payments under a
preneed contract;

(9) "Seller", the person who sells a preneed contract to a purchaser and
who is obligated to collect and administer all payments made under such
preneed contract;

(10) "State board", the Missouri state board of embalmers and funeral
directors;

(11) "Trustee", the trustee of a preneed trust, including successor
trustees. (L. 1982 S.B. 644 § 1, A.L. 1985 H.B. 627, A.L. 1988 S.B. 430)

1. Each preneed contract made after August 13, 1982, shall be
void and unenforceable unless:

(1) It is in writing;

(2) It is executed by a seller who is in compliance with the provisions
of section 436.021;

(3) It identifies the contract beneficiary and sets out in detail the
final disposition of the dead body and funeral services, facilities, and
merchandise to be provided;

(4) It identifies the preneed trust into which contract payments shall be
deposited, including the name and address of the trustee thereof;

(5) The terms of such trust and related agreements among two or more of
the contract seller, the contract provider, and the trustee of such trust
are in compliance with the provisions of sections 436.005 to 436.071;

(6) It contains the name and address of the seller and the provider.

2. If a preneed contract does not comply with the provisions of sections
436.005 to 436.071, all payments made under such contract shall be
recoverable by the purchaser, his heirs, or legal representative, from
the contract seller or other payee thereof, together with interest at the
rate of ten percent per annum and all reasonable costs of collection,
including attorneys' fees.

3. Each preneed contract made before August 13, 1982, and all payments
and disbursements under such contract shall continue to be governed by
sections 436.010 to 436.080, as those sections existed at the time the
contract was made; but, the provisions of subsection 2 of section 436.035
may be applied to all preneed contracts which are executory on August 13,
1982.

4. Subject to the provisions of subdivision (5) of section 436.005, the
provisions of sections 436.005 to 436.071 shall apply to the assignment
of proceeds of any contract of insurance for the purpose of funding a
preneed contract or written in conjunction with a preneed contract. Laws
regulating insurance shall not apply to preneed contracts, but shall
apply to any insurance sold with a preneed contract.

5. No preneed contract shall become effective unless and until the
purchaser thereof has placed his signature in a space provided on such
contract, or application therefor, and the purchaser has received a copy
of such contract signed by the seller.

6. The seller and the provider of a preneed contract may be the same
person. (L. 1982 S.B. 644 § 2 subsec. 1 to 4, 8, 9, A.L. 1985 H.B. 627,
A.L. 1988 S.B. 430)

1. Any seller who designates a person as a provider in a preneed
contract without a contractual relationship with such person is in
violation of the provisions of sections 436.005 to 436.071.

2. Any person who knowingly permits a seller to sell a preneed contract
designating him as the provider or as one of two or more providers who
will furnish the funeral merchandise and services described in the
preneed contract shall provide the funeral merchandise and services
described in the preneed contract for the beneficiary. Failure of any
such person to do so shall be a violation of the provisions of sections
436.005 to 436.071 and shall be cause for suspension or revocation of
that person's license under the provisions of section 333.061, RSMo.

3. If a provider has knowledge that a seller is designating him as the
provider of funeral merchandise and services under any preneed contract
and fails within thirty days after first obtaining such knowledge to take
action to prevent the seller from so designating him as the provider, the
provider shall be deemed to have consented to such designation. (L. 1982
S.B. 644 § 2 subsecs. 5, 6, 7, A.L. 1985 H.B. 627)

Effective 7-16-85

1. No person shall perform or agree to perform the obligations
of, or be designated as, the provider under a preneed contract unless, at
the time of such performance, agreement or designation:

(1) Such person is licensed by the state board as a funeral establishment
pursuant to the provisions of section 333.061, RSMo, but such person need
not be licensed as a funeral establishment if he is the owner of real
estate situated in Missouri which has been formally dedicated for the
burial of dead human bodies and the contract only provides for the
delivery of one or more grave vaults at a future time and is in
compliance with the provisions of chapter 214, RSMo; and

(2) Such person is registered with the state board and files with the
state board a written consent authorizing the state board to order an
examination and if necessary an audit by the staff of the division of
professional registration who are not connected with the board of its
books and records which contain information concerning preneed contracts
sold for, in behalf of, or in which he is named as provider of the
described funeral merchandise or services.

2. Each provider under one or more preneed contracts shall:

(1) Furnish the state board in writing with the name and address of each
seller authorized by the provider to sell preneed contracts in which the
provider is named as such within fifteen days after the provider signs a
written agreement or authorization permitting the seller to sell preneed
contracts designating or obligating the provider as the "provider" under
the contract. This notification requirement shall include a provider who,
itself, acts as seller;

(2) File annually with the state board a report which shall contain:

(a) The business name or names of the provider and all addresses from
which it engages in the practice of its business;

(b) The name and address of each seller with whom it has entered into a
written agreement since last filing a report;

(c) The name and address of the custodian of its books and records
containing information about preneed contract sales and services;

(3) Cooperate with the state board, the office of the attorney general of
Missouri, and the division in any investigation, examination or audit
brought under the provisions of sections 436.005 to 436.071;

(4) At least thirty days prior to selling or otherwise disposing of its
business assets, or its stock if a corporation, or ceasing to do
business, give written notification to the state board and to all sellers
with whom it has one or more preneed contracts of its intent to engage in
such sale or to cease doing business. In the case of a sale of assets or
stock, the written notice shall also contain the name and address of the
purchaser. Upon receipt of such written notification, the state board may
take reasonable and necessary action to determine that any preneed
contracts which the provider is obligated to service will be satisfied at
the time of need. The state board may waive the requirements of this
subsection, or may shorten the period of notification whenever in its
discretion it determines that compliance with its provisions are not
necessary. Failure of the state board to take action regarding such sale
or termination of business within thirty days shall constitute such a
waiver.

3. It is a violation of the provisions of sections 436.005 to 436.071 and
subdivision (3) of section 333.121, RSMo, for any person to sell,
transfer or otherwise dispose of the assets of a provider without first
complying with the provisions of subdivision (4) of subsection 2 of this
section. This violation shall be in addition to the provisions of section
436.061.

4. If any licensed embalmer, funeral director or licensed funeral
establishment shall knowingly allow such licensee's name to be designated
as the provider under, or used in conjunction with the sale of, any
preneed contract, such licensee shall be liable for the provider's
obligations under such contract.

5. With respect to a provider or seller licensed under the provisions of
chapter 333, RSMo, any violation of the provisions of sections 436.005 to
436.071 shall constitute a violation of subdivision (3) of section
333.121, RSMo. (L. 1982 S.B. 644 § 3, A.L. 1985 H.B. 627)

Effective 7-16-85

1. No person, including without limitation a person who is a
provider under one or more preneed contracts, shall sell, perform or
agree to perform the seller's obligations under, or be designated as the
seller of, any preneed contract unless, at the time of that sale,
performance, agreement, or designation, that person shall:

(1) Be an individual resident of Missouri or a business entity duly
authorized to transact business in Missouri;

(2) Have established, as grantor, a preneed trust or trusts with terms
consistent with sections 436.005 to 436.071;

(3) Have registered with the state board.

2. Each seller under one or more preneed contracts shall:

(1) Maintain adequate records of all such contracts and related
agreements with providers and the trustee of preneed trusts regarding
such contracts, including copies of all such agreements;

(2) Notify the state board in writing of the name and address of each
provider who has authorized the seller to sell one or more preneed
contracts under which the provider is designated or obligated as the
contract's "provider";

(3) File annually with the state board a signed and notarized report on
forms provided by the state board. Such a report shall only contain:

(a) The date the report is submitted and the date of the last report;

(b) The name and address of each provider with whom it is under contract;

(c) The total number of preneed contracts sold in Missouri since the
filing of the last report;

(d) The total face value of all preneed contracts sold in Missouri since
the filing of the last report;

(e) The name and address of the financial institution in Missouri in
which it maintains the trust accounts required under the provisions of
sections 436.005 to 436.071 and the account numbers of such trust
accounts;

(f) A consent authorizing the state board to order an examination and if
necessary an audit by staff of the division of professional registration
who are not connected with the board of the trust account, designated by
depository and account number. The staff of the division of professional
registration in conducting the audit shall not release a detailed
accounting of the trust account to the board unless there exist
circumstances indicating that the account does not comply with the
requirements of sections 436.005 to 436.071, but shall provide the board
with a summary of the examination or audit showing general compliance
with the provisions of sections 436.005 to 436.071;

(4) File with the state board a consent authorizing the state board to
order an examination and if necessary an audit by staff of the division
of professional registration who are not connected with the board of its
books and records relating to the sale of preneed contracts and the name
and address of the person designated by the seller as custodian of these
books and records. The staff of the division of professional registration
in conducting the audit shall not release a detailed accounting of the
trust account to the board unless there exist circumstances indicating
that the account does not comply with the requirements of sections
436.005 to 436.071, but shall provide the board with a summary of the
examination or audit showing general compliance with the provisions of
sections 436.005 to 436.071;

(5) Cooperate with the state board, the office of the attorney general,
and the division in any investigation, examination or audit brought under
the provisions of sections 436.005 to 436.071.

3. Prior to selling or otherwise disposing of a majority of its business
assets, or a majority of its stock if a corporation, or ceasing to do
business as a seller, the seller shall provide written notification to
the state board of its intent to engage in such sale at least sixty days
prior to the date set for the closing of the sale, or of its intent to
cease doing business at least sixty days prior to the date set for
termination of its business. The written notice shall be sent, at the
same time as it is provided to the state board, to all providers who are
then obligated to provide funeral services or merchandise under preneed
contracts sold by the seller. Upon receipt of the written notification,
the state board may take reasonable and necessary action to determine
that the seller has made proper plans to assure that the trust assets of
the seller will be set aside and used to service outstanding preneed
contracts sold by the seller. The state board may waive the requirements
of this subsection or may shorten the period of notification whenever in
its discretion it determines that compliance with its provisions are not
necessary. Failure of the state board to take action regarding such sale
or termination of business within sixty days shall constitute such a
waiver.

4. It is a violation of the provisions of sections 436.005 to 436.071 for
any person to sell, transfer or otherwise dispose of the assets of a
seller without first complying with the provisions of subsection 3 of
this section. (L. 1982 S.B. 644 § 4, A.L. 1985 H.B. 627)

Effective 7-16-85

The seller may retain as his own money, for the purpose of
covering his selling expenses, servicing costs, and general overhead, the
initial funds so collected or paid until he has received for his use and
benefit an amount not to exceed twenty percent of the total amount agreed
to be paid by the purchaser of such prepaid funeral benefits as such
total amount is reflected in the contract. (L. 1982 S.B. 644 § 5)

1. The trustee of a preneed trust shall be a state or federally
chartered financial institution authorized to exercise trust powers in
Missouri. The trustee shall accept all deposits made to it by the seller
of a preneed contract and shall hold, administer, and distribute such
deposits, in trust, as trust principal, pursuant to the provisions of
sections 436.005 to 436.071. Payments regarding two or more preneed
contracts may be deposited into and commingled in the same preneed trust,
so long as the trust's grantor is the seller of all such preneed
contracts and the trustee maintains adequate records of all payments
received.

2. All property held in a preneed trust, including principal and
undistributed income, shall be invested and reinvested by the trustee
thereof. The trustee shall exercise such judgment and care under
circumstances then prevailing which men of ordinary prudence, discretion,
and intelligence exercise in the management of their own affairs, not in
regard to speculation but in regard to the permanent disposition of their
funds, considering the probable income therefrom as well as the probable
safety of their capital. A preneed trust agreement may provide that when
the principal and interest in a preneed trust exceeds two hundred fifty
thousand dollars, investment decisions regarding the principal and
undistributed income may be made by a federally registered or
Missouri-registered independent qualified investment advisor designated
by the seller who established the trust; provided, that title to all
investment assets shall remain with the trustee and be kept by the
trustee to be liquidated upon request of the advisor of the seller. In no
case shall control of said assets be divested from the trustee nor shall
said assets be placed in any investment which would be beyond the
authority of a reasonably prudent trustee to invest in. The trustee shall
be relieved of all liability regarding investment decisions made by such
qualified investment advisor.

3. The seller of a preneed contract shall be entitled to all income,
including, without limitation, interest, dividends, and capital gains,
and losses generated by the investment of preneed trust property
regarding such contract, and the trustee of the trust may distribute all
income, net of losses, to the seller at least annually; but no such
income distribution shall be made to the seller if, and to the extent
that, the distribution would reduce the aggregate market value on the
distribution date of all property held in the preneed trust, including
principal and undistributed income, below the sum of all deposits made to
such trust pursuant to subsection 1 of this section for all preneed
contracts then administered through such trust.

4. All expenses of establishing and administering a preneed trust,
including, without limitation, trustee's fees, legal and accounting fees,
investment expenses, and taxes, shall be paid or reimbursed directly by
the seller of the preneed contracts administered through such trust and
shall not be paid from the principal of a preneed trust.

5. The trustee of a preneed trust shall maintain adequate books of
account of all transactions administered through the trust and pertaining
to the trust generally. The trustee shall assist seller who established
the trust or its successor in interest in the preparation of the annual
report described in subdivision (3) of subsection 2 of section 436.021.
The seller shall furnish to each contract purchaser, within fifteen days
after receipt of the purchaser's written request, a written statement of
all deposits made to such trust regarding such purchaser's contract.

6. The trustee of a preneed trust shall, from time to time, distribute
trust principal as provided by sections 436.005 to 436.071.

7. A preneed trust shall terminate when trust principal no longer
includes any payments made under any preneed contract, and upon such
termination the trustee shall distribute all trust property, including
principal and undistributed income, to the seller which established the
trust. (L. 1982 S.B. 644 § 6, A.L. 1985 H.B. 627)

Effective 7-16-85

1. At any time before the final disposition of the dead body, or
before funeral services, facilities, or merchandise described in a
preneed contract are provided by the provider designated in the preneed
contract, the purchaser may cancel the contract without cause by
delivering written notice thereof to the seller and the provider. Within
fifteen days after its receipt of such notice, the seller shall pay to
the purchaser a net amount equal to all payments made into trust under
the contract. Upon delivery of the purchaser's receipt for such payment
to the trustee, the trustee shall distribute to the seller from the trust
an amount equal to all deposits made into the trust for the contract.

2. Notwithstanding the provisions of subsection 1 of this section, if a
purchaser is eligible, becomes eligible, or desires to become eligible,
to receive public assistance under chapter 208, RSMo, or any other
applicable state or federal law, the purchaser may irrevocably waive and
renounce his right to cancel the contract pursuant to the provisions of
subsection 1 of this section, which waiver and renunciation shall be made
in writing and delivered to the contract seller; but the purchaser may
designate and redesignate the provider in the irrevocable agreement or
plan where applicable by the terms of the contract.

3. Notwithstanding the provisions of subsection 1 of this section, any
purchaser, within thirty days of receipt of the executed contract, may
cancel the contract without cause by delivering written notice thereof to
the seller and the provider, and receive a full refund of all payments
made on the contract. Notice of this provision and the appropriate
addresses for notice of cancellation shall be so designated on the face
of the contract. (L. 1982 S.B. 644 § 7)

If the death of the beneficiary occurs outside the general area
served by the provider designated in a preneed contract, then the seller
shall either provide for the furnishing of comparable funeral services
and merchandise by a licensed mortuary selected by the next of kin of the
purchaser or, at the seller's option, shall pay over to the purchaser in
fulfillment of all obligations under the contract, an amount equal to all
sums actually paid in cash by the purchaser under the preneed contract
together with interest to be provided for in the contract. Upon seller's
full performance under the provisions of this section, the trustee of the
preneed trust for the contract shall distribute to the seller from the
trust an amount equal to all deposits made into the trust for the
contract. (L. 1982 S.B. 644 § 8)

If the payments payable under a preneed contract shall be more
than three months in arrears, the seller may cancel the contract by
delivering written notice thereof to the purchaser and the provider, and
by making payment to the purchaser of a net amount equal to all payments
made into trust under the contract. Upon delivery of the purchaser's
receipt of such payment to the trustee, the trustee shall distribute to
the seller from the trust an amount equal to all deposits made into the
trust for the contract. (L. 1982 S.B. 644 § 9)

Within thirty days after a provider and a witness shall certify
in writing to the seller that the provider has provided the final
disposition of the dead body, and funeral services, facilities, and
merchandise described in the contract, or has provided alternative
funeral benefits for the beneficiary pursuant to special arrangements
made with the purchaser, the seller shall pay to the provider a net
amount equal to all payments required to be made pursuant to the written
agreement between the seller and the provider or all payments made under
the contract. Upon delivery to the trustee of the provider's receipt for
such payment, the trustee shall distribute to the seller from the trust
an amount equal to all deposits made into the trust for the contract. (L.
1982 S.B. 644 § 10)

If a seller shall fail to make timely payment of an amount due a
purchaser or a provider pursuant to the provisions of sections 436.005 to
436.071, the purchaser or provider, as appropriate, shall have the right,
in addition to other rights and remedies against such seller, to make
demand upon the trustee of the preneed trust for the contract to
distribute to the purchaser or provider from the trust, as damages for
its breach, an amount equal to all deposits made into the trust for the
contract. (L. 1982 S.B. 644 § 11)

Upon the death or legal incapacity of a purchaser, all rights
and remedies granted to the purchaser pursuant to the provisions of
sections 436.005 to 436.071 shall be enforceable by and accrue to the
benefit of the purchaser's legal representative or his successor
designated in such contract, and all payments otherwise payable to the
purchaser shall be paid to that person. (L. 1982 S.B. 644 § 12)

1. Notwithstanding the provisions of sections 436.021 to
436.048, the provider and the purchaser may agree that all funds paid the
provider by the purchaser shall be deposited with financial institutions
chartered and regulated by the federal or state government authorized to
do business in Missouri in an account in the joint names and under the
joint control of the provider and purchaser. If the purchaser has
irrevocably waived and renounced his right to cancel the agreement
between the provider and the purchaser pursuant to subdivision (5) of
this subsection, such agreement may provide that all funds held in the
account at the beneficiary's death shall be applied toward the purchase
of funeral or burial services or facilities, or funeral merchandise,
selected by the purchaser or the responsible party after the
beneficiary's death, in lieu of the detailed identification of such items
required by subdivision (3) of subsection 1 of section 436.007. The
agreement between the provider and purchaser shall provide that:

(1) The total consideration to be paid by the purchaser under the
contract shall be made in one or more payments into the joint account at
the time the agreement is executed or, thereafter within five days of
receipt, respectively;

(2) The financial institution shall hold, invest, and reinvest the
deposited funds in savings accounts, certificates of deposit or other
accounts offered to depositors by the financial institutions, as the
agreement shall provide;

(3) The income generated by the deposited funds shall be used to pay the
reasonable expenses of administering the agreement, and the balance of
the income shall be distributed or reinvested as provided in the
agreement;

(4) At any time before the final disposition, or before funeral services,
facilities, and merchandise described in a preneed contract are
furnished, the purchaser may cancel the contract without cause by
delivering written notice thereof to the provider and the financial
institution, and within fifteen days after its receipt of the notice, the
financial institution shall distribute the deposited funds to the
purchaser;

(5) Notwithstanding the provisions of subdivision (4) of this subsection,
if a purchaser is eligible, becomes eligible, or desires to become
eligible to receive public assistance under chapter 208, RSMo, or any
other applicable state or federal law, the purchaser may irrevocably
waive and renounce his right to cancel such agreement. The waiver and
renunciation must be in writing and must be delivered to the provider and
the financial institution;

(6) If the death of the beneficiary occurs outside the general area
served by the provider, then the provider shall either provide for the
furnishing of comparable funeral services and merchandise by a licensed
mortuary selected by the purchaser or, at the provider's option, shall
pay over to the purchaser in fulfillment of the obligation of the preneed
contract, an amount equal to the sums actually paid in cash by such
purchaser under such preneed contract together with interest to be
provided for in the contract, in which event the financial institution
shall distribute the deposited funds to the provider;

(7) Within fifteen days after a provider and a witness certifies in
writing to the financial institution that he has furnished the final
disposition, or funeral services, facilities, and merchandise described
in a contract, or has provided alternative funeral benefits for the
beneficiary pursuant to special arrangements made with the purchaser, if
the certification has been approved by the purchaser, then the financial
institution shall distribute the deposited funds to the provider.

2. There shall be a separate joint account as described in subsection 1
of this section for each preneed contract sold or arranged under this
section.

3. If the total face value of the contracts sold by a provider operating
solely under the provisions of this section does not exceed thirty-five
thousand dollars in any one fiscal year, such a provider shall not be
required to pay the annual reporting fee for such year required under
subsection 1 of section 436.069. (L. 1982 S.B. 644 § 13, A.L. 1985 H.B.
627, A.L. 1990 H.B. 1214)

1. All complaints received by the state board which allege a
registrant's noncompliance with the provisions of sections 436.005 to
436.071 shall be forwarded to the division of professional registration
for investigation, except minor complaints which the state board can
mediate or otherwise dispose of by contacting the parties involved. A
copy of each such complaint shall be forwarded to the subject registrant,
except that each complaint in which the complainant alleges under oath
that a registrant has misappropriated preneed contract payments may be
forwarded to the division of professional registration without notice to
the subject registrant.

2. The division shall investigate each complaint forwarded from the state
board using staff who are not connected with the state board and shall
forward the results of such investigation to the subject registrant and
to the attorney general for evaluation. If the attorney general, after
independent inquiry using staff of the attorney general's office who have
not represented the board, determines that there is no probable cause to
conclude that the registrant has violated sections 436.005 to 436.071,
the registrant and the state board shall be so notified and the complaint
shall be dismissed; but, if the attorney general determines that there is
such probable cause the registrant shall be so notified and the results
of such evaluation shall be transmitted to the state board for further
action as provided in sections 436.061 and 436.063. (L. 1982 S.B. 644 §
14, A.L. 1985 H.B. 627)

Effective 7-16-85

1. Each person who shall knowingly and willfully violate any
provision of sections 436.005 to 436.071, and any officer, director,
partner, agent, or employee of such person involved in such violation is
guilty of a class D felony. Each violation of any provision of sections
436.005 to 436.071 constitutes a separate offense and may be prosecuted
individually.

2. Any violation of the provisions of sections 436.005 to 436.071 shall
constitute a violation of the provisions of section 407.020, RSMo. In any
proceeding brought by the attorney general for a violation of the
provisions of sections 436.005 to 436.071, the court may, in addition to
imposing the penalties provided for in sections 436.005 to 436.071, order
the revocation or suspension of the registration of a defendant seller.
(L. 1982 S.B. 644 §§ 15, 16)

Whenever the state board determines that a registered seller or
provider has violated or is about to violate any provision of sections
436.005 to 436.071 following a meeting at which the registrant is given a
reasonable opportunity to respond to charges of violations or prospective
violations, it may request the attorney general to apply for the
revocation or suspension of the seller's or provider's registration or
the imposition of probation upon terms and conditions deemed appropriate
by the state board in accordance with the procedure set forth in sections
621.100 to 621.205, RSMo. Use of the procedures set out in this section
shall not preclude the application of the provisions of subsection 2 of
section 436.061. (L. 1982 S.B. 644 § 17, A.L. 1985 H.B. 627)

Effective 7-16-85

A preneed contract may offer the purchaser the option to acquire
and maintain credit life insurance on the life of the purchaser. Such
insurance shall provide for the payment of death benefits to the seller
in an amount equal to the total of all contract payments unpaid as of the
date of such purchaser's death, and shall be used solely to make those
unpaid payments. (L. 1982 S.B. 644 § 18, A.L. 1985 H.B. 627)

Effective 7-16-85

No information given to the board, the division or the attorney
general pursuant to the provisions of sections 436.005 to 436.071 shall,
unless ordered by a court for good cause shown, be produced for
inspection or copying by, nor shall the contents thereof be disclosed to,
any person other than the seller, or the provider who is the subject
thereof, the authorized employee of the board, the attorney general or
the division, without the consent of the person who produced such
material. However, under such reasonable conditions and terms as the
board, the division or the attorney general shall prescribe, such
material shall be available for inspection and copying by the person who
produced such material or any duly authorized representative of such
person. The state board, the division or the attorney general, or his
duly authorized assistant, may use such documentary material or copies
thereof in the enforcement of the provisions of sections 436.005 to
436.071 by presentation before any court or the administrative hearing
commission, but any such material which contains trade secrets shall not
be presented except with the approval of the court, or the administrative
hearing commission, in which the action is pending after adequate notice
to the person furnishing such material. No documentary material provided
the board, the division or the attorney general pursuant to the
provisions of sections 436.005 to 436.071 shall be disclosed to any
person for use in any criminal proceeding. (L. 1982 S.B. 644 § 19, A.L.
1985 H.B. 627)

Effective 7-16-85

1. After July 16, 1985, each seller shall remit an annual
reporting fee in an amount of two dollars for each preneed contract sold
in the year since the date the seller filed its last annual report with
the state board. This reporting fee shall be paid annually and may be
collected from the purchaser of the preneed contract as an additional
charge or remitted to the state board from the funds of the seller.

2. After July 16, 1985, each provider shall remit an annual reporting fee
of thirty dollars.

3. The reporting fee authorized by subsections 1 and 2 of this section
are in addition to the fees authorized by section 436.071. (L. 1985 H.B.
627)

Effective 7-16-85

Each application for registration under the provisions of
section 436.015 or 436.021 shall be accompanied by a preneed registration
fee as determined by the board pursuant to the provisions of section
333.111, subsection 2. (L. 1982 S.B. 644 § 20)

As used in this section, the following terms mean:

(1) "Campground", real property, other than state-owned property, which
contains parcels for rent to transient guests for pay or compensation,
which may include temporary utility hook-ups for use by the transient
guests, and where such transient guests generally use tents, recreational
vehicles or some other form of temporary shelter while on the rented
premises;

(2) "Franchise", a written arrangement for a definite or indefinite
period, in which a person grants to another person a license to use a
trade name, trade mark, service mark, or related characteristics, and in
which there is a community of interest in the marketing of goods or
services at wholesale, retail, by lease, agreement, or otherwise;

(3) "Franchisee", a person to whom a franchise to operate a campground is
offered or granted;

(4) "Franchisor", a person who grants a franchise to operate a campground
to another person;

(5) "Person", a natural person, corporation, partnership, trust, or other
entity and, in case of an entity, it shall include any other entity which
has a majority interest in such entity or effectively controls such other
entity as well as the individual officers, directors, and other persons
in active control of the activities of each such entity. (L. 1992 S.B.
661 & 620 § 6 subsec. 1)

Any party to a franchise agreement may bring an action in the
jurisdiction in which the franchisee is located to recover damages
sustained by reason of the breach of the franchise agreement and, where
appropriate, shall be entitled to injunctive relief. Such party to the
franchise, if successful, shall also be entitled to the costs of the
action including, but not limited to, reasonable attorney's fees. (L.
1992 S.B. 661 & 620 § 6 subsec. 2)

Any franchisor which grants a franchise to any person in this
state shall have a registered agent in this state. The name and address
of such registered agent shall be on file with the secretary of state's
office. (L. 1992 S.B. 661 & 620 § 6 subsec. 3)

As used in sections 436.150 to 436.163, the following terms mean:

(1) "Copyright owner", the owner of a copyright of a nondramatic musical
work other than a motion picture or other audio visual works recognized
and enforceable under the copyright laws of the United States pursuant to
Title 17 of the United States Code;

(2) "Performing rights society", an association or corporation that
licenses the public performance of nondramatic musical works on behalf of
copyright owners, such as the American Society of Composers, Authors and
Publishers (ASCAP), Broadcast Music, Inc. (BMI), and SESAC, Inc.;

(3) "Proprietor", the owner of a retail establishment, restaurant, inn,
bar, tavern, sports or entertainment facility, not-for-profit
organization, or any other similar place of business or professional
office located in this state in which the public may assemble and in
which nondramatic musical works may be performed, broadcast, or otherwise
transmitted for the enjoyment of the members of the public there
assembled;

(4) "Royalty" or "royalties", the fees payable by a proprietor to a
performing rights society for the public performance of nondramatic
musical. (L. 1995 S.B. 355 § 1 subsec. 1)

No performing rights society shall enter into, or offer to enter
into, a contract for the payment of royalties by a proprietor unless at
the time of the offer, or any time thereafter, but no later than
seventy-two hours prior to the execution of that contract, it provides to
the proprietor, in writing, the following:

(1) A schedule of the rates and terms of royalties under the contract,
including any sliding scale, discounts, or reductions in fees on any
basis for which the proprietor may be eligible, and any scheduled
increases or decreases in fees during the term of the contract;

(2) Upon request of the proprietor, the opportunity to review the most
currently available list of the copyright owners' licenses by the
performing rights society at the premises of the proprietor;

(3) Notification of the method that must be used by the proprietor to
obtain a listing of the copyrighted works licensed by the performing
rights society contract, including the location of such listing of works
licensed by the performing arts society and the toll-free number required
by sections 436.150 to 436.163. (L. 1995 S.B. 355 § 1 subsec. 2)

The performing rights society shall establish and maintain a
toll-free telephone number which the proprietor may use to inquire
regarding specific musical works and copyright owners represented by that
performing rights society. The performing rights society shall file a
printed listing of works licensed by the society with the attorney
general, and provide or make available, upon request, a listing on
suitable electronic media to bona fide trade associations representing
groups of proprietors. A list shall be provided the proprietor by
electronic or other means, solely at the proprietor's expense. (L. 1995
S.B. 355 § 1 subsec. 3)

Every contract for the payment of royalties executed in this
state shall:

(1) Be in writing;

(2) Be signed by the parties;

(3) Not require a term exceeding one year unless agreed by the proprietor
or if the contract is under the terms of a national agreement;

(4) Include at least the following information:

(a) The proprietor's name and business address and the name and location
of each place of business to which the contract applies;

(b) The name and address of the performing rights society authorized to
act on behalf of copyright owners being paid royalties under the contract;

(c) The duration of the contract; and

(d) The schedule of rates and terms of the royalties to be collected
under the contract, including any sliding scale or schedule for any
increase or decrease of those rates for the duration of that contract.
(L. 1995 S.B. 355 § 1 subsec. 4)

1. No performing rights society, or any agent or employee
thereof shall:

(1) Enter onto the premises of a proprietor's business for the purpose of
discussing a contract for payment of royalties for the use of copyrighted
works by that proprietor without first identifying himself to the
proprietor or his employees and disclose that the agent is acting on
behalf of the performing rights society and disclosing the purpose of the
discussion;

(2) Collect or attempt to collect a royalty payment or any other fee
except as provided in a contract executed pursuant to the provisions of
sections 436.150 to 436.163;

(3) Use or attempt to use any act or practice in negotiating with a
proprietor, or in retaliation for a proprietor's failure or refusal to
negotiate, with respect to a contract for the payment of royalties,
including, but not limited to:

(a) Engaging in any coercive conduct, act or practice that is disruptive
of a proprietor's business or threatening to commence legal proceedings
in connection with an alleged copyright violation with the intent of
coercing the proprietor to negotiate or enter into a contract for the
payment of royalties;

(b) However, nothing in sections 436.150 to 436.163 shall be construed to
prevent the performing rights society from informing the proprietor of
the proprietor's obligations under the federal copyright law, Title 17 of
the United States Code;

(c) Charging or collecting a royalty which is unreasonable in comparison
to the royalties for similar licenses;

(4) Levy and collect any license fee, royalty, or other charge from any
person or entity which conducts a nonprofit musical festival or
performance, unless prior to the festival or performance such performing
rights society, upon the request of the person or entity conducting such
festival or performance, submits to the person or entity conducting such
festival or performance a list of copyrighted vocal and instrumental
musical compositions which may not be performed or otherwise copied
unless the license fee, royalty, or charge is paid. The person or entity
conducting the festival or performance shall submit such a request to any
local agency or representative of the performing rights society.

2. A person who violates any of the provisions of sections 436.150 to
436.163 shall be guilty of a class C misdemeanor. (L. 1995 S.B. 355 § 1
subsecs. 5, 6)

1. A proprietor may bring an action or assert a counterclaim in
a court of competent jurisdiction, against a performing rights society,
or both, to enjoin any violation of sections 436.150 to 436.163 and to
recover any damages sustained by the proprietor as a result of a
violation of sections 436.150 to 436.163. The proprietor may seek an
injunction or any other relief available at law or in equity. If
successful, the proprietor shall be entitled to recover actual damages
sustained by him, together with reasonable attorney's fees, filing fees
and reasonable costs of suit, in addition to any other legal or equitable
relief.

2. The rights, remedies and prohibitions accorded by the provisions of
sections 436.150 to 436.163 shall be in addition to and cumulative of any
other right, remedy or prohibition accorded by common law, federal law or
the statutes of this state, and nothing contained in sections 436.150 to
436.163 shall be construed to deny, abrogate or impair any such common
law or statutory right, remedy or prohibition. (L. 1995 S.B. 355 § 1
subsecs. 7, 8)

Sections 436.150 to 436.163 shall only apply to performing
rights societies. Sections 436.150 to 436.163 shall not apply to
contracts between copyright owners or performing rights societies and
broadcasters licensed by the Federal Communications Commission, or
contracts with cable operators, programmers or other transmission
services. (L. 1995 S.B. 355 § 1 subsec. 9)

Sections 436.215 to 436.272 may be cited as the "Uniform Athlete
Agents Act". (L. 2004 S.B. 1122)

As used in sections 436.215 to 436.272, the following terms mean:

(1) "Agency contract", an agreement in which a student athlete authorizes
a person to negotiate or solicit on behalf of the student athlete a
professional sports services contract or an endorsement contract;

(2) "Athlete agent", an individual who enters into an agency contract
with a student athlete or directly or indirectly recruits or solicits a
student athlete to enter into an agency contract. The term does not
include a spouse, parent, sibling, grandparent, or guardian of the
student athlete or an individual acting solely on behalf of a
professional sports team or professional sports organization. The term
includes an individual who represents to the public that the individual
is an athlete agent;

(3) "Athletic director", an individual responsible for administering the
overall athletic program of an educational institution or if an
educational institution has separately administered athletic programs for
male students and female students, the athletic program for males or the
athletic program for females, as appropriate;

(4) "Contact", a direct or indirect communication between an athlete
agent and a student athlete to recruit or solicit the student athlete to
enter into an agency contract;

(5) "Director", the director of the division of professional registration;

(6) "Division", the division of professional registration;

(7) "Endorsement contract", an agreement under which a student athlete is
employed or receives consideration to use on behalf of the other party
any value that the student athlete may have because of publicity,
reputation, following, or fame obtained because of athletic ability or
performance;

(8) "Intercollegiate sport", a sport played at the collegiate level for
which eligibility requirements for participation by a student athlete are
established by a national association for the promotion or regulation of
collegiate athletics;

(9) "Person", an individual, corporation, business trust, estate, trust,
partnership, limited liability company, association, joint venture,
government, governmental subdivision, agency, or instrumentality, public
corporation, or any other legal or commercial entity;

(10) "Professional sports services contract", an agreement under which an
individual is employed or agrees to render services as a player on a
professional sports team, with a professional sports organization, or as
a professional athlete;

(11) "Record", information that is inscribed on a tangible medium or that
is stored in an electronic or other medium and is retrievable in
perceivable form;

(12) "Registration", registration as an athlete agent under sections
436.215 to 436.272;

(13) "State", a state of the United States, the District of Columbia,
Puerto Rico, the United States Virgin Islands, or any territory or
insular possession subject to the jurisdiction of the United States;

(14) "Student athlete", a current student who engages in, has engaged in,
is eligible to engage in, or may be eligible in the future to engage in,
any intercollegiate sport. (L. 2004 S.B. 1122, A.L. 2005 S.B. 177)

1. The director shall administer the provisions of sections
436.215 to 436.272.

2. By engaging in the business of an athlete agent in this state, a
nonresident individual appoints the director as the individual's agent to
accept service of process in any civil action related to the individual's
business as an athlete agent in this state.

3. The director may subpoena witnesses, issue subpoenas duces tecum and
require production of documents and records. Subpoenas including
subpoenas duces tecum shall be served by a person authorized to serve
subpoenas of courts of record. In lieu of requiring attendance of a
person to produce original documents in response to a subpoena duces
tecum, the board may require sworn copies of such documents to be filed
with it or delivered to its designated representative.

4. The director may enforce its subpoenas including subpoenas duces tecum
by applying to a circuit court of Cole County, the county of the
investigation, hearing or proceeding, or any county where the person
resides or may be found for an order upon any person who shall fail to
obey a subpoena to show cause why such subpoena should not be enforced,
which such order and a copy of the application therefor shall be served
upon the person in the same manner as a summons in a civil action and if
the circuit court shall after a hearing determine that the subpoena
should be sustained and enforced such court shall proceed to enforce the
subpoena in the same manner as though the subpoena had been issued in a
civil case in the circuit court. (L. 2004 S.B. 1122)

1. Except as otherwise provided in subsection 2 of this section,
an individual may not act as an athlete agent in this state before being
issued a certificate of registration under section 436.230 or 436.236.

2. An individual with a temporary license under section 436.236 may act
as an athlete agent before being issued a certificate of registration for
all purposes except signing an agency contract if:

(1) A student athlete or another acting on behalf of the student athlete
initiates communication with the individual; and

(2) Within seven days after an initial act as an athlete agent, the
individual submits an application to register as an athlete agent in this
state.

3. An agency contract resulting from conduct in violation of this section
is void. The athlete agent shall return any consideration received under
the contract. (L. 2004 S.B. 1122)

An applicant for registration shall submit an application for
registration to the director in a form prescribed by the director. The
application must be in the name of an individual and signed by the
applicant under penalty of perjury and must state or contain:

(1) The name of the applicant and the address of the applicant's
principal place of business;

(2) The name of the applicant's business or employer, if applicable;

(3) Any business or occupation engaged in by the applicant for the five
years next preceding the date of submission of the application;

(4) A description of the applicant's:

(a) Formal training as an athlete agent;

(b) Practical experience as an athlete agent; and

(c) Educational background relating to the applicant's activities as an
athlete agent;

(5) The names and addresses of three individuals not related to the
applicant who are willing to serve as references;

(6) The name, sport, and last known team for each individual for whom the
applicant provided services as an athlete agent during the five years
next preceding the date of submission of the application;

(7) The names and addresses of all persons who are:

(a) With respect to the athlete agent's business if it is not a
corporation, the partners, officers, associates, or profit-sharers; and

(b) With respect to a corporation employing the athlete agent, the
officers, directors, and any shareholder of the corporation with a five
percent or greater interest;

(8) Whether the applicant or any other person named under subdivision (7)
of this section* has been convicted of a crime that if committed in this
state would be a felony or other crime involving moral turpitude, and a
description of the crime;

(9) Whether there has been any administrative or judicial determination
that the applicant or any other person named under subdivision (7) of
this section* has made a false, misleading, deceptive, or fraudulent
representation;

(10) Any instance in which the prior conduct of the applicant or any
other person named under subdivision (7) of this section* resulted in the
imposition of a sanction, suspension, or declaration of ineligibility to
participate in an interscholastic or intercollegiate athletic event on a
student athlete or educational institution;

(11) Any sanction, suspension, or disciplinary action taken against the
applicant or any other person named under subdivision (7) of this
section* arising out of occupational or professional conduct; and

(12) Whether there has been any denial of an application for, suspension
or revocation of, or refusal to renew the registration or licensure of
the applicant or any other person named under subdivision (7) of this
section* as an athlete agent in any state. (L. 2004 S.B. 1122)

*Word "subsection" appears in original rolls.

1. Except as otherwise provided in subsection 2 of this section,
the director shall issue a certificate of registration to an individual
who complies with * section 436.227.

2. The director may refuse to issue a certificate of registration if the
director determines that the applicant has engaged in conduct that has a
significant adverse effect on the applicant's fitness to serve as an
athlete agent. In making the determination, the director may consider
whether the applicant has:

(1) Been convicted of a crime that if committed in this state would be a
felony or other crime involving moral turpitude;

(2) Made a materially false, misleading, deceptive, or fraudulent
representation as an athlete agent or in the application;

(3) Engaged in conduct that would disqualify the applicant from serving
in a fiduciary capacity;

(4) Engaged in conduct prohibited by section 436.254;

(5) Had a registration or licensure as an athlete agent suspended,
revoked, or denied or been refused renewal of registration or licensure
in any state;

(6) Engaged in conduct or failed to engage in conduct the consequence of
which was that a sanction, suspension, or declaration of ineligibility to
participate in an interscholastic or intercollegiate athletic event was
imposed on a student athlete or educational institution; or

(7) Engaged in conduct that significantly adversely reflects on the
applicant's credibility, honesty, or integrity.

3. In making a determination under subsection 3 of this section, the
director shall consider:

(1) How recently the conduct occurred;

(2) The nature of the conduct and the context in which it occurred; and

(3) Any other relevant conduct of the applicant.

4. An athlete agent may apply to renew a registration by submitting an
application for renewal in a form prescribed by the director. The
application for renewal must be signed by the applicant under penalty of
perjury under section 575.040, RSMo, and shall contain current
information on all matters required in an original registration.

5. A certificate of registration or a renewal of a registration is valid
for two years. (L. 2004 S.B. 1122)

*Words "subsection 1 of" appear in original rolls.

1. The director may revoke, suspend, or refuse to renew any
certificate of registration required under this chapter for one or any
combination of causes stated in subsection 2 of this section. The
director shall notify the applicant in writing of the reasons for the
refusal and shall advise the applicant of the applicant's right to file a
complaint with the administrative hearing commission as provided by
chapter 621, RSMo.

2. The director may cause a complaint to be filed with the administrative
hearing commission as provided by chapter 621, RSMo, against any holder
of any certificate of registration required by this chapter or any person
who has failed to renew or has surrendered the person's certificate of
registration for any one or any combination of the following causes:

(1) The person has been finally adjudicated and found guilty, or entered
a plea of guilty or nolo contendere, in a criminal prosecution under the
laws of any state or of the United States, for any offense reasonably
related to the qualifications, functions or duties under this chapter,
for any offense an essential element of which is fraud, dishonesty or an
act of violence, or for any offense involving moral turpitude, whether or
not sentence is imposed;

(2) Use of fraud, deception, misrepresentation or bribery in securing any
certificate of registration under this chapter;

(3) Misconduct, fraud, misrepresentation, dishonesty, unethical conduct
or unprofessional conduct in the performance of the functions regulated
by this chapter including but not limited to the following:

(a) Obtaining or attempting to obtain any fee, charge, tuition, or other
compensation by fraud, deception, or misrepresentation;

(b) Attempting directly or indirectly by way of intimidation, coercion or
deception to obtain consultation;

(c) Failure to comply with any subpoena or subpoena duces tecum from the
director;

(d) Failing to inform the director of the athlete agent's current
residence and business address;

(4) Violation of, or attempting to violate, directly or indirectly, or
assisting or enabling any person to violate, any provision of this
chapter, or of any lawful rule or regulation adopted under this chapter;

(5) Impersonation of any person holding a certificate of registration or
allowing any person to use his or her certificate of registration;

(6) Violation of the drug laws or rules and regulations of this state,
any other state, or the federal government;

(7) Knowingly making, or causing to be made, or aiding, or abetting in
the making of, a false statement in any birth or other certificate or
document executed in connection with the transaction;

(8) Soliciting patronage in person, by agents, by representatives, or by
any other means or manner, under the person's own name or under the name
of another person or concern, actual or pretended in such a manner as to
confuse, deceive, or mislead the public;

(9) A pattern of personal use or consumption of any controlled substance
unless it is prescribed, dispensed or administered by a physician who is
authorized by law to do so.

3. After the filing of such complaint before the administrative hearing
commission, the proceedings shall be conducted in accordance with the
provisions of chapter 621, RSMo. Upon a finding by the administrative
hearing commission that the grounds provided in subsection 2 of this
section for disciplinary action are met the director may singly or in
combination warn, censure, or place the person named in the complaint on
probation on such terms and conditions as the director deems appropriate
for a period not to exceed six months, or may suspend the person's
certificate of registration period not to exceed one year, or restrict or
limit the person's certificate of registration for an indefinite period
of time, or revoke the person's certificate of registration.

4. In any order of revocation, the director may provide that the person
may not apply for reinstatement of the person's certificate of
registration for a period of time ranging from two to seven years
following the date of the order of revocation. All stay orders shall toll
this time period. (L. 2004 S.B. 1122)

The director may issue a temporary certificate of registration
valid for sixty days while an application for registration or renewal is
pending. (L. 2004 S.B. 1122)

1. An application for registration or renewal of registration
shall be accompanied by a fee which shall be determined by the director
and established by rule. All fees payable under the provisions of this
section shall be collected by the division of professional registration
and transmitted to the department of revenue for deposit in the state
treasury to the credit of the fund to be known as the "Athlete Agent
Fund" which is hereby established. The provisions of section 33.080,
RSMo, to the contrary notwithstanding, money in the athlete agent fund
shall not be transferred and placed to the credit of general revenue
until the amount in the athlete agent fund at the end of the biennium
exceeds two times the amount of the appropriations from such fund for the
preceding fiscal year or, if the director allows renewal of registration
less frequently than yearly, then three times the appropriations from
such fund for the preceding fiscal year; provided that no amount from
such fund may be transferred to the credit of general revenue earlier
than August 28, 2006. The amount if any which may be transferred to the
credit of general revenue after August 28, 2006, is that amount in the
athlete agent fund which exceeds the appropriate multiple of the
appropriations from such fund for the preceding fiscal year.

2. The director may promulgate rules to authorize and file athlete agent
documents as that term is defined in section 536.010, RSMo. Any rule
promulgated under the authority in this section shall become effective
only if it complies with and is subject to all of the provisions of
chapter 536, RSMo, and, if applicable, section 536.028, RSMo. This
section and chapter 536, RSMo, are nonseverable and if any of the powers
vested with the general assembly under chapter 536, RSMo, to review, to
delay the effective date, or to disapprove and annul a rule are
subsequently held unconstitutional then the grant of rulemaking authority
and any rule proposed or adopted after August 28, 2003, shall be invalid
and void. (L. 2004 S.B. 1122)

1. An agency contract must be in a record signed by the parties.

2. An agency contract must state or contain:

(1) The amount and method of calculating the consideration to be paid by
the student athlete for services to be provided by the athlete agent
under the contract and any other consideration the athlete agent has
received or will receive from any other source for entering into the
contract or for providing the services;

(2) The name of any person not listed in the application for registration
or renewal who will be compensated because the student athlete signed the
agency contract;

(3) A description of any expenses that the student athlete agrees to
reimburse;

(4) A description of the services to be provided to the student athlete;

(5) The duration of the contract; and

(6) The date of execution.

3. An agency contract shall contain in close proximity to the signature
of the student athlete a conspicuous notice in boldface type in capital
letters stating:

"WARNING TO STUDENT ATHLETE IF YOU SIGN THIS CONTRACT:

(1) YOU MAY LOSE YOUR ELIGIBILITY TO COMPETE AS A STUDENT ATHLETE IN YOUR
SPORT;

(2) BOTH YOU AND YOUR ATHLETE AGENT ARE REQUIRED TO TELL YOUR ATHLETIC
DIRECTOR, IF YOU HAVE AN ATHLETIC DIRECTOR, WITHIN 72 HOURS AFTER
ENTERING INTO AN AGENCY CONTRACT; AND

(3) YOU MAY CANCEL THIS CONTRACT WITHIN 14 DAYS AFTER SIGNING IT.
CANCELLATION OF THE CONTRACT MAY NOT REINSTATE YOUR ELIGIBILITY.".

4. An agency contract that does not conform to this section is voidable
by the student athlete.

5. The athlete agent shall give a copy of the signed agency contract to
the student athlete at the time of signing. (L. 2004 S.B. 1122)

1. Within seventy-two hours after entering into an agency
contract or before the next scheduled athletic event in which the student
athlete may participate whichever occurs first the athlete agent shall
give notice in writing of the existence of the contract to the athletic
director of the educational institution at which the student athlete is
enrolled or the athlete agent has reasonable grounds to believe the
student athlete intends to enroll.

2. Within seventy-two hours after entering into an agency contract or
before the next athletic event in which the student athlete may
participate whichever occurs first the student athlete shall in writing
inform the athletic director of the educational institution at which the
student athlete is enrolled that he or she has entered into an agency
contract. (L. 2004 S.B. 1122)

1. A student athlete may cancel an agency contract by giving
notice in writing to the athlete agent of the cancellation within
fourteen days after the contract is signed.

2. A student athlete may not waive the right to cancel an agency contract.

3. If a student athlete cancels an agency contract within fourteen days
of signing the contract, the student athlete is not required to pay any
consideration under the contract or to return any consideration received
from the agent to induce the student athlete to enter into the contract.
(L. 2004 S.B. 1122)

1. An athlete agent shall retain the following records for a
period of five years:

(1) The name and address of each individual represented by the athlete
agent;

(2) Any agency contract entered into by the athlete agent; and

(3) Any direct costs incurred by the athlete agent in the recruitment or
solicitation of a student athlete.

2. Records required by subsection 1 of this section to be retained are
open to inspection by the director during normal business hours. (L. 2004
S.B. 1122)

1. An athlete agent may not do any of the following with the
intent to induce a student athlete to enter into an agency contract:

(1) Give any materially false or misleading information or make a
materially false promise or representation;

(2) Furnish anything of value to a student athlete before the student
athlete enters into the agency contract; or

(3) Furnish anything of value to any individual other than the student
athlete or another registered athlete agent.

2. An athlete agent may not intentionally:

(1) Initiate contact with a student athlete unless registered under
sections 436.215 to 436.272;

(2) Refuse or willfully fail to retain or permit inspection of the
records required by section 436.251;

(3) Violate section 436.224 by failing to register;

(4) Provide materially false or misleading information in an application
for registration or renewal of registration;

(5) Predate or postdate an agency contract; or

(6) Fail to notify a student athlete prior to the student athlete's
signing an agency contract for a particular sport that the signing by the
student athlete may make the student athlete ineligible to participate as
a student athlete in that sport. (L. 2004 S.B. 1122)

The commission of any act prohibited by section 436.254 by an
athlete agent is a class B misdemeanor. (L. 2004 S.B. 1122)

1. An educational institution has a right of action against an
athlete agent or a former student athlete for damages caused by a
violation of sections 436.215 to 436.272. In an action under this
section, the court may award to the prevailing party costs and reasonable
attorney's fees.

2. Damages of an educational institution under subsection 1 of this
section include losses and expenses incurred because as a result of the
activities of an athlete agent or former student athlete the educational
institution was injured by a violation of sections 436.215 to 436.272 or
was penalized, disqualified, or suspended from participation in athletics
by a national association for the promotion and regulation of athletics,
by an athletic conference, or by reasonable self-imposed disciplinary
action taken to mitigate sanctions.

3. A right of action under this section does not accrue until the
educational institution discovers or by the exercise of reasonable
diligence would have discovered the violation by the athlete agent or
former student athlete.

4. Any liability of the athlete agent or the former student athlete under
this section is several and not joint.

5. Sections 436.215 to 436.272 do not restrict rights, remedies, or
defenses of any person under law or equity. (L. 2004 S.B. 1122)

Any person who violates any provisions of sections 436.215 to
436.269 is guilty of a class A misdemeanor. (L. 2004 S.B. 1122)

In applying and construing sections 436.215 to 436.272,
consideration must be given to the need to promote uniformity of the law
with respect to the subject matter of sections 436.215 to 436.272 among
states that enact it. (L. 2004 S.B. 1122)

Any moneys collected by the director under section 436.263 shall
immediately be transferred to the department of revenue for deposit in
the state treasury to the credit of general revenue. (L. 2004 S.B. 1122)

Notwithstanding any other law to the contrary, all parties to
any contract or agreement for private construction work that is between
any owner and any contractor, or between any contractor and any
subcontractor, or between any subcontractor and any sub-subcontractor, or
any supplier at whatever tier for construction, reconstruction,
maintenance, alteration, or repair for a private owner of any building,
improvement, structure, private road, appurtenance, or appliance,
including moving, demolition, or any excavating connected therewith,
shall make payment in accordance with the terms of such contract or
agreement, provided such terms are not inconsistent with the provisions
of sections 436.300 to 436.336. (L. 2002 H.B. 1403)

A contract or agreement may include a provision for the
retainage of a portion of any payment due from the owner to the
contractor, not to exceed ten percent of the amount of such payment due
pursuant to the contract or agreement, to ensure the proper performance
of the contract or agreement, provided that the contract may provide that
if the contractor's performance is not in accordance with the terms of
the contract or agreement, the owner may retain additional sums to
protect the owner's interest in satisfactory performance of the contract
or agreement. The amount or amounts so retained by the owner shall be
referred to in sections 436.300 to 436.336 as "retainage", and shall be
held by the owner in trust for the benefit of the contractor and
contractor's subcontractors, sub- subcontractors, and suppliers at
whatever tier who are not in default, in proportion to their respective
interests. Such retainage shall be subject to the conditions and
limitations listed in sections 436.300 to 436.336. (L. 2002 H.B. 1403)

1. The contractor may tender to the owner acceptable substitute
security as set forth in section 436.312 with a written request for
release of retainage in the amount of the substitute security. The
contractor shall thereupon either:

(1) Be entitled to receive cash payment of retainage pursuant to this
section; or

(2) Not be subject to the withholding of retainage, in either case, to
the extent of the security tendered, provided that the contractor is not
in default of its agreement with the owner.

2. If the tender described in subsection 1 of this section is made after
retainage has been withheld, the owner shall, within five working days
after receipt of the tender, pay to the contractor the withheld retainage
to the extent of the substitute security. If the tender described in
subsection 1 of this section is made before retainage has been withheld,
the owner shall, to the extent of the substitute security, refrain from
withholding any retainage from the future payments. (L. 2002 H.B. 1403)

A subcontractor of the contractor may tender to the contractor
acceptable substitute security as set forth in section 436.312 with a
written request for release of retainage in the amount of the substitute
security. The contractor shall tender the subcontractor's substitute
security to the owner with a like request, pursuant to the provisions of
section 436.306. Provided that the subcontractor is not in default of its
agreement with the contractor, the contractor shall pay over to the
subcontractor, within five working days after receipt, any accumulated
retainage paid by the owner to the contractor on account of substitute
security tendered by the subcontractor, except that the contractor shall
not be required to pay over retainage in excess of the amount properly
attributable to work completed by the subcontractor at the time of
payment. Provided that the subcontractor is not in default of its
agreement with the contractor, the contractor shall refrain from
withholding retainage from payments to the subcontractor to the extent
the owner has refrained from withholding retainage from payments to the
contractor on account of the subcontractor's substituted security. The
subcontractor shall be entitled to receive, upon receipt by the
contractor, all income received by the contractor from the owner on
account of income- producing securities deposited by the subcontractor as
substitute security. Except as otherwise provided in this section, the
contractor shall have no obligation to collect or pay to a subcontractor
retainage on account of substitute security tendered by the
subcontractor. (L. 2002 H.B. 1403)

1. The following shall constitute acceptable substitute security
for purposes of sections 436.306 and 436.309:

(1) Certificates of deposit drawn and issued by a national banking
association located in this state or by any banking corporation
incorporated pursuant to the laws of this state, and mutually agreeable
to the project owner and the contractor or subcontractor, in the amount
of the retainage released. If the letter of credit is not renewed at
least sixty days before the expiration of the letter of credit, the owner
may draw upon the letter of credit regardless of the contractor's or
subcontractor's performance for an amount equal to or no greater than the
value of the amount of work remaining to be performed by the contractor
or subcontractor;

(2) A retainage bond naming the owner as obligee issued by any surety
company authorized to issue surety bonds in this state in the amount of
the retainage released; or

(3) An irrevocable and unconditional letter of credit in favor of the
owner, issued by a national banking association located in this state or
by any banking corporation incorporated pursuant to the laws of this
state, in the amount of the retainage released.

2. The contractor shall be entitled to receive, in all events, all
interest and income earned on any securities deposited by the contractor
in substitution for retainage. (L. 2002 H.B. 1403)

A contractor shall not withhold from any subcontractor any
retainage in excess of the retainage withheld from the contractor by the
owner for the subcontractor's work, unless the subcontractor's
performance is not in accordance with the terms of the subcontract, in
which case, subject to the terms of the subcontract, the contractor may
retain additional sums to ensure the subcontractor's satisfactory
performance of the subcontract. (L. 2002 H.B. 1403)

Upon the release of retainage by the owner to the contractor,
other than for substituted security pursuant to sections 436.306 and
436.312, the contractor shall pay to each subcontractor the
subcontractor's ratable share of the retainage released, provided that
all conditions of the subcontract for release of retainage to the
subcontractor have been satisfied. (L. 2002 H.B. 1403)

If it is determined that a subcontractor's performance has been
satisfactorily completed and the subcontractor can be released prior to
substantial completion of the entire project without risk to the owner
involving the subcontractor's work, the contractor shall request such
adjustment in retainage, if any, from the owner as necessary to enable
the contractor to pay the subcontractor in full, and the owner shall as
part of the next contractual payment cycle release the subcontractor's
retainage to the contractor, who shall in turn as part of the next
contractual payment cycle release such retainage as is due the
subcontractor. (L. 2002 H.B. 1403)

Within thirty days of the project reaching substantial
completion, as defined in section 436.327, all retainage or substitute
security shall be released by the owner to the contractor less an amount
equal to one hundred fifty percent of the costs to complete any remaining
items. Upon receipt of such retainage from the owner, the contractor
shall within seven days release to each subcontractor that
subcontractor's share of the retainage. (L. 2002 H.B. 1403)

The project shall be deemed to have reached substantial
completion upon the occurrence of the earlier of the architect or
engineer issuing a certificate of substantial completion in accordance
with the terms of the contract documents or the owner accepting the
performance of the full contract. (L. 2002 H.B. 1403)

Subcontractors and sub-subcontractors of every tier shall comply
with the provisions of sections 436.300 to 436.336 in their relations
with their sub-subcontractors and suppliers and shall be bound by the
same obligations to their sub-subcontractors and suppliers as contractors
are to their subcontractors. (L. 2002 H.B. 1403)

A contract or agreement formed after August 28, 2002, shall be
unenforceable to the extent that its provisions are inconsistent with
sections 436.300 to 436.336. If retainage is withheld in violation of
sections 436.300 to 436.360, a court may, in addition to any other award
for damages, award interest at the rate of up to one and one-half percent
per month from the date of such wrongful or improper withholding of
retainage. In any action brought to enforce sections 436.300 to 436.336,
a court may award reasonable attorney's fees to the prevailing party. If
the parties elect to resolve the dispute by arbitration pursuant to
section 435.350*, RSMo, the arbitrator may award any remedy that a court
is authorized to award. (L. 2002 H.B. 1403)

*Original rolls contained "436.350", a typographical error.

Sections 436.300 to 436.336 shall apply to contracts and
agreements entered into after August 28, 2002. Sections 436.300 to
436.336 shall apply to all private construction projects, except
single-family residential construction and other residential construction
consisting of four or fewer units. (L. 2002 H.B. 1403)

As used in sections 436.350 to 436.365, unless the context
clearly requires otherwise, the following terms shall mean:

(1) "Action", any civil lawsuit, action, or proceeding, in contract or
tort, or otherwise, for damages or indemnity, brought to assert a claim,
whether by petition, complaint, counterclaim, or cross-claim, for damage
to, diminution in the value of, or the loss of use of real or personal
property caused by an alleged construction defect. Action does not
include any claim originating in small claims court, or any civil action
in tort alleging personal injury or wrongful death to a person or persons
resulting from an alleged construction defect;

(2) "Association":

(a) An association or unit owners' association as defined and provided
for in subdivision (3) of section 448.1-103, RSMo;

(b) A homeowners' association, including but not limited to a nonprofit
corporation or unincorporated association of homeowners created pursuant
to a declaration to own and operate portions of a planned community or
other residential subdivision and which has the power under the
declaration to assess association members to pay the costs and expenses
incurred in the performance of the association's obligations under the
declaration, or tenants-in-common with respect to the ownership of common
areas or amenities of a planned community or other residential
subdivision; or

(c) Any cooperative form of ownership of multiunit housing;

(3) "Claimant", a homeowner or association which asserts a claim against
a contractor concerning an alleged construction defect;

(4) "Construction defect", for the purposes of sections 436.350 to
436.365, a deficiency in, or a deficiency arising from, any of the
following:

(a) Defective material, products, or components used in new residential
construction or from a substantial remodel;

(b) Violation of the applicable codes and ordinances, including those
ordinances which regulate zoning and the subdivision of land, in effect
at the time of the commencement of construction of residential
improvements, or as to a substantive remodel, at the commencement of such
substantial remodel; provided however, that any matter that is in
compliance with applicable codes and ordinances, including without
limitation those ordinances which regulate zoning and the subdivision of
land, in effect at the commencement of construction of residential
improvements, or to a substantial remodel as the case may be, shall
conclusively establish that such matter is not, nor shall it be deemed or
construed to be a construction defect, unless a construction defect as to
such matter is established because of defective material, products, or
components used in new residential construction or in a substantial
remodel;

(c) Failure to construct residential improvements in accordance with
accepted trade standards for good and workmanlike construction at the
time of construction. Compliance with the applicable codes and
ordinances, including without limitation those ordinances which regulate
zoning and the subdivision of land, in effect at the commencement of
construction, or of a substantial remodeling as the case may be, shall
conclusively establish construction in accordance with accepted trade
standards for good and workmanlike construction, with respect to all
matters specified in those codes;

(d) Failure to construct residential improvements in accordance with the
agreement between the contractor and the claimant, notwithstanding
anything to the contrary in this subdivision;

(5) "Contractor", any person, company, firm, partnership, corporation,
association, or other entity that is engaged in the business of
designing, developing, constructing, or substantially remodeling
residences;

(6) "Homeowner", any person, company, firm, partnership, corporation,
association, or other entity who contracts with a contractor for the
construction, substantial remodel of a residence, or the sale of a
residence constructed by such contractor. Homeowner also includes a
subsequent purchaser of a residence from any homeowner;

(7) "Residence", a single-family house, duplex, triplex, quadraplex, or a
unit in a multiunit residential structure in which title to each
individual unit is transferred to the owner under a condominium or
cooperative system, and shall include common areas and common elements as
defined in subdivision (4) of section 448.1-103, RSMo. Residence shall
include the land and improvements to land under and around the house,
unit, or structure. Residence shall not include a manufactured home as
defined in section 700.010, RSMo;

(8) "Serve" or "service", personal service to the person intended to be
notified or mailing to the last known address of such person;

(9) "Substantial remodel", a remodel of a residence, for which the total
cost exceeds one-half of the assessed value of the residence for property
tax purposes at the time the contract for the remodel work was made. (L.
2005 S.B. 168 § 431.300)

1. The contractor shall provide notice to each homeowner upon
entering into a contract for sale, construction, or substantial remodel
of a residence of the contractor's right to offer to cure construction
defects before a claimant may commence action against the contractor
pursuant to sections 436.350 to 436.365. Such notice shall be conspicuous
and may be included as part of the underlying contract signed by the
homeowner. In the sale of a condominium unit, the requirement for
delivery of such notice shall be deemed satisfied if contained in a
public offering statement in accordance with the laws of this state.

2. The notice required by this subsection shall provide time frame
guidelines to comply with sections 436.350 to 436.365 for both the
claimant and contractor and shall be in substantially the following form:

SECTIONS 436.350 TO 436.365 OF MISSOURI REVISED STATUTES PROVIDE YOU WITH
CERTAIN RIGHTS IF YOU HAVE A DISPUTE WITH A CONTRACTOR REGARDING
CONSTRUCTION DEFECTS. EXCEPT FOR CLAIMS FILED IN SMALL CLAIMS COURT, IF
YOU HAVE A DISPUTE WITH A CONTRACTOR, YOU MUST DELIVER TO THE CONTRACTOR
A WRITTEN CLAIM OF ANY CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE
AND PROVIDE YOUR CONTRACTOR THE OPPORTUNITY TO MAKE AN OFFER TO REPAIR OR
PAY FOR THE DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER MADE BY
THE CONTRACTOR. READ THIS NOTICE CAREFULLY. THERE ARE STRICT DEADLINES
AND PROCEDURES UNDER SECTIONS 436.350 TO 436.365 WHICH MUST BE OBEYED IN
ORDER TO PRESERVE YOUR ABILITY TO FILE A LAWSUIT. OTHER THAN REPAIRS TO
WORK DONE BY THE CONTRACTOR THAT ARE NECESSARY TO PROTECT THE LIFE,
HEALTH, OR SAFETY OF PERSONS LIVING IN A RESIDENCE, OR TO AVOID
ADDITIONAL SIGNIFICANT AND MATERIAL DAMAGE TO THE RESIDENCE PURSUANT TO
SUBSECTION 10 OF SECTION 436.356, YOU MAY NOT INCLUDE IN CLAIMS AGAINST
YOUR CONTRACTOR THE COSTS OF OTHER REPAIRS YOU PERFORM BEFORE YOU ARE
ENTITLED TO FILE A LAWSUIT UNDER SECTIONS 436.350 TO 436.365.

3. Nothing in sections 436.350 to 436.365 shall preclude or bar any
action if a notice is not given to the claimant as required by this
section, and the provisions of sections 436.350 to 436.365 shall not
apply to any claim of a claimant against a contractor if such contractor
failed to provide the written notice required by this section.

4. In those lawsuits originally filed by a contractor against a
homeowner, if a homeowner files a counterclaim or an affirmative defense
in such lawsuit that includes a claim based on a construction defect
allegedly caused by the contractor, then the provisions of sections
436.350 to 436.365 shall not apply to said lawsuit, and the homeowner or
association claimant will not be required to adhere to sections 436.350
to 436.365 for those claims made pursuant to the lawsuit, provided a
claimant shall be required to follow those provisions for any claim not
otherwise covered by said lawsuit. (L. 2005 S.B. 168 § 431.303)

1. In every action against a contractor arising from
construction or substantial remodel of a residence, a claimant shall
serve the contractor with a written notice of claim of construction
defects. The notice of claim shall state that the claimant asserts a
construction defect claim against the contractor and shall describe the
claim in reasonable detail sufficient to determine the general nature of
the defect as well as any known results of the defect.

2. Within fourteen days after service of the notice of claim, the
contractor shall serve a written response on the claimant which shall:

(1) Propose to inspect the residence that is the subject of the claim and
to complete the inspection within a specified time frame. The proposal
shall include the statement that the contractor shall, based on the
inspection, thereafter offer to remedy the defect within a specified time
frame, compromise by payment, or dispute the claim; or

(2) Offer to remedy the claim without an inspection within a specified
time frame; or

(3) Offer to remedy part of the claim without inspection and compromise
and settle the remainder of the claim by monetary payment within a
specified time frame; or

(4) Offer to compromise and settle all of a claim without inspection. A
contractor's offer pursuant to this subdivision to compromise and settle
a claimant's or association's claim may include, but is not limited to,
an express offer to purchase the claimant's residence that is the subject
of the claim; or

(5) State that the contractor disputes the claim and will neither remedy
the construction defect nor compromise and settle the claim.

3. (1) If the contractor disputes the claim pursuant to subdivision (5)
of subsection 2 of this section or does not respond to the claimant's
notice of claim within the time stated in subsection 2 of this section,
the claimant may bring an action against the contractor for the defect
described in the notice of claim without further notice.

(2) If the claimant rejects the inspection proposal or the settlement
offer made by the contractor pursuant to subsection 2 of this section,
the claimant shall serve written notice of the claimant's rejection on
the contractor. The notice shall include the basis for claimant's
rejection. After service of the rejection, the claimant and contractor
may attempt to resolve the claim through mediation in accordance with
section 436.362. If the claim is not resolved through mediation, the
claimant may bring an action against the contractor for the construction
defect claim without further notice described in the notice of claim. If
the contractor has not received from the claimant within thirty days
after the claimant's receipt of the contractor's response either an
acceptance or rejection of the inspection proposal or settlement offer,
the contractor may at any time thereafter terminate the proposal or offer
by serving written notice to the claimant. If the contractor so
terminates the proposal, the claimant may thereafter bring an action
against the contractor for the defect described in the notice of claim
without further notice.

(3) If the claimant elects to accept the offer of the contractor to
remedy the claim without an inspection pursuant to subdivision (2) of
subsection 2 of this section, or if the claimant elects to accept the
offer of the contractor to remedy part of the claim without inspection
and compromise and settle the remainder of the claim by monetary payment
pursuant to subdivision (3) of subsection 2 of this section, the claimant
shall provide the contractor and its contractors or other agents
reasonable access to the claimant's residence during normal working hours
to perform and complete the construction or work in accordance with the
timetable stated in the offer. Any dispute relating to performance of the
remedial construction or work by the contractor may be resolved by
mediation in accordance with section 436.362. If the dispute is not
resolved by mediation, the claimant may bring an action against the
contractor for the defect described in the notice of claim.

4. (1) If the claimant elects to allow the contractor to inspect in
accordance with the contractor's proposal pursuant to subdivision (1) of
subsection 2 of this section, within fourteen days after the date of the
claimant's election to allow an inspection is communicated to the
contractor, the claimant and contractor shall agree on a time and date
for the inspection, and such inspection shall occur within fourteen days
from the date of the communication of such election for an inspection
unless the claimant and contractor agree to a later date. The claimant
shall provide the contractor and its subcontractors, suppliers, or other
agents reasonable access to the claimant's residence during normal
working hours to inspect the premises and the claimed defect. The
contractor shall perform the inspection at its own cost. If destructive
testing is necessary, the contractor shall repair all damage caused by
the testing.

(2) Within fourteen days following completion of the inspection, the
contractor shall serve a report of the scope of the inspection and the
findings and results of the inspection on the claimant, and either:

(a) A written offer to remedy all of the claim at no cost to the
claimant, including a description of the construction or work necessary
to remedy the defect described in the claim, and a timetable for the
completion of such construction or work; or

(b) A written offer to remedy part of the claim, and compromise and
settle the remainder of the claim by monetary payment, within a specified
time frame; or

(c) A written offer to compromise and settle all of the claim by monetary
payment pursuant to subdivision (4) of subsection 2 of this section; or

(d) A written statement that the contractor will not proceed further to
remedy the defect.

(3) If the contractor does not proceed further to remedy the construction
defect within the stated timetable, or if the contractor fails to comply
with the provisions of subdivision (2) of this subsection, the claimant
may bring an action against the contractor for the defect described in
the notice of claim without further notice.

(4) If the claimant rejects the offer made by the contractor pursuant to
paragraph (a), (b), or (c) of subdivision (2) of this subsection to
either remedy the construction defect or remedy part of the claim and
make a monetary settlement as to the remainder of the claim or to
compromise and settle the claim by monetary payment, the claimant shall
serve written notice of the claimant's rejection and the reasons for the
rejection on the contractor. After service of the rejection notice, the
claimant and contractor may attempt to resolve the dispute through
mediation in accordance with section 436.362. If the dispute is not
resolved through mediation, the claimant may bring an action against the
contractor for the defect described in the notice of claim. If the
contractor has not received from the claimant within thirty days after
the claimant's receipt of the contractor's response either an acceptance
or rejection of the offer made pursuant to paragraph (a), (b), or (c) of
subdivision (2) of this subsection, the contractor may at any time
thereafter terminate the offer by serving written notice to the claimant.
If the contractor so terminates its offer, the claimant may bring an
action against the contractor for the claim described in the notice of
claim without further notice.

5. (1) Any claimant accepting the offer of a contractor to remedy all or
part of the construction defect pursuant to paragraph (a) or (b) of
subdivision (2) of subsection 4 of this section shall do so by serving
the contractor with a written notice of acceptance within a reasonable
time period after receipt of the offer, and no later than thirty days
after receipt of the offer. The claimant shall provide the contractor and
its subcontractors or other agents reasonable access to the claimant's
residence during normal working hours to perform and complete the
construction or work by the timetable stated in the offer. Any dispute
relating to performance of the remedial construction or work by the
contractor may be resolved by mediation in accordance with section
436.362. If the dispute is not resolved by mediation, the claimant may
bring an action against the contractor for the defect described in the
notice of claim.

(2) The claimant and contractor may, by mutual written agreement, alter
the extent of construction or the timetable for completion of
construction stated in the offer, including, but not limited to, repair
of additional defects.

6. Any action commenced by a claimant prior to compliance with the
requirements of this section shall, upon motion by a party to the action,
be subject to dismissal without prejudice, and shall not be recommenced
until the claimant has complied with the requirements of this section if
the court finds the claimant knowingly violated the sections of said act.

7. The claimant may amend the notice of claim to include construction
defects discovered after the service of the original notice of claim and
shall otherwise comply with the requirements of this section for the
additional claims. Claims for defects discovered after the commencement
or recommencement of an action may be added to such action only after
providing notice to the contractor of the defect and allowing for
response under subsection 2 of this section.

8. If, during the pendency of the notice, inspection, offer, acceptance,
or repair process, an applicable limitations period would otherwise
expire, the claimant may file an action against the contractor, but such
action shall be immediately abated pending completion of the notice of
claim process described in this section. This subsection shall not be
construed either to revive a statute of limitations period that has
expired prior to the date on which a claimant's written notice of claim
is served or extend any applicable statute of repose.

9. A written notice of claim and any written response by a contractor
shall be treated as a settlement offer and shall not be admissible in an
action related to a construction defect asserted therein, except as
otherwise permitted by law. A written notice of claim and any written
response by a contractor shall not be admissible as a prior inconsistent
statement.

10. In the event that immediate action must be taken by a claimant to
prevent imminent injury to persons because of alleged construction
defects, including defective garage doors, that threaten the life or
safety of persons, or alleged construction defects, including defective
garage doors, that if not addressed will result in significant and
material additional damage to the residence, the homeowner or another
person designated by the homeowner including the contractor may undertake
reasonable repairs necessary to mitigate the emergency situation.
Claimants may thereafter include the cost of such repairs in the written
notice of claim of construction defects provided for in subsection 1 of
this section. Provided, however, that other than the undertaking of
immediate repairs to remedy an emergency situation, any repairs to
construction defects undertaken by homeowners shall not be included in
claims initiated under subsection 1 of this section, and shall not be the
subject of an action.

11. Any mediation shall take place in the county where the claimant
resides or in a mutually agreed to location. (L. 2005 S.B. 168 § 431.306)

1. If an association's governing board rejects a written
settlement offer from the contractor and has satisfied applicable
provisions of section 436.356, and upon written request by the contractor
as part of said offer that the association hold a meeting of the members,
the provisions of this section shall apply prior to the association
filing an action alleging construction defects in the common areas and
common elements.

2. The board shall hold a meeting open to each member of the association.
The meeting shall be held no less than fifteen days before the
association commences an action against the contractor.

3. No less than fifteen days before this meeting is held, a written
notice shall be sent to each member of the association specifying all of
the following:

(1) That a meeting will take place to discuss construction defects that
may lead to the filing of an action, and the date, time, and place of the
meeting;

(2) The options that are available to address the construction defects,
including the filing of an action and a statement of the various
alternatives that are reasonably foreseeable by the association to pay
for those options and whether these payments are expected to be made from
the use of reserve account funds or the imposition of regular or special
assessments, or emergency assessment increases;

(3) The complete text of any written final settlement offer from the
contractor and a concise explanation of the contractor's specific reasons
for the terms of the offer.

4. The discussions at the meeting and the contents of the notice and the
items required to be specified in the notice under subsection 3 of this
section are privileged communications and are not admissible in evidence
in any action, unless the association consents to their admission.

5. No more than one request to meet and discuss a written settlement
offer under this section may be made by the contractor. (L. 2005 S.B. 168
§ 431.309)

1. At any time, either a claimant or contractor may offer to
resolve a claim against a contractor through mediation. Mediation
pursuant to this section shall be nonbinding and independently
administered. The contractor and claimant shall mutually agree upon a
qualified independent and neutral mediator and shall equally share the
cost of the mediator. If the parties agree upon a mediator, then the
mediation shall take place within a reasonable time period, but in no
event later than forty-five days after service of a request for mediation
by a claimant upon a contractor or a request by a contractor upon a
claimant. A contractor who receives a request for mediation from a
claimant shall serve a response in writing within fourteen days and may
include within the response the name of a proposed mediator and mediation
date. A claimant who receives a request for mediation from a contractor
shall serve a response in writing within fourteen days and may include
within the response the name of a proposed mediator and mediation date.

2. The contractor or claimant may include in the mediation any person or
entity reasonably necessary for resolution of the claim asserted. This
subsection shall not be construed to mandate attendance at a mediation by
a person or entity other than the contractor or claimant served with a
notice of claim.

3. If all the parties to a dispute agree in writing to submit their
dispute to any forum for arbitration, conciliation, or mediation, then no
person who serves as arbitrator, conciliator or mediator, nor any agent
or employee of that person, shall be subpoenaed or otherwise compelled to
disclose any matter disclosed in the process of setting up or conducting
the arbitration, conciliation, or mediation.

4. Arbitration, conciliation, and mediation proceedings shall be regarded
as settlement negotiations and the confidentiality of such proceeding
shall be as set forth in supreme court rule 17.

5. Notwithstanding any provisions of law or the agreements of the parties
to the contrary, the resolution of the dispute by the parties through
mediation or otherwise shall not operate to release any claim of the
claimant except the claim described in the notice of defect, and shall
not operate to release the claim described in the notice of defect until
the agreed-upon remedy has been accomplished. (L. 2005 S.B. 168 § 431.312)

1. Nothing in sections 436.350 to 436.365 shall be construed to
create a theory or cause of action upon which liability may be based or
to limit any causes of action or remedies otherwise available to a
homeowner or contractor pursuant to law after giving effect to the
provisions of sections 436.350 to 436.365, nor to hinder or otherwise
affect the employment, agency, or contractual relationship between
homeowners and contractors during the process of construction or
remodeling, and does not preclude the termination of those relationships
as allowed under current law. Nothing in sections 436.350 to 436.365
shall negate or otherwise restrict a contractor's right to access or
inspection provided by law, covenant, easement, or contract.

2. Nothing in sections 436.350 to 436.365 shall be construed to prevent
contracts between contractors and homeowners from specifying that
disputes shall be resolved by binding arbitration pursuant to chapter
435, RSMo. In contracts between contractors and homeowners that specify
binding arbitration as the means of dispute resolution, sections 436.350
to 436.365 shall not be applicable; provided, in those contracts between
contractors and homeowners that specify binding arbitration as the means
of dispute resolution, the contractor shall provide notice, pursuant to
section 435.460, RSMo, that disputes may be resolved by binding
arbitration and sections 436.350 to 436.365 are not applicable to such
transactions.

3. The provisions of sections 436.350 to 436.365 shall not apply to an
action brought by an insurer, subrogated to the rights of a claimant, if
payment was made by the insurer pursuant to a claim under an insurance
policy.

(L. 2005 S.B. 168 § 431.315)

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