Missouri Statute | Act | Code |Statutory Actions And Torts| US Code - US Statute | Chapter 536 Administrative Procedure And Review

For the purpose of this chapter:

(1) "Affected small business" or "affects small business" means any
potential or actual requirement imposed upon a small business or minority
small business through a state agency's proposed or adopted rule that
will cause direct and significant economic burden upon a small business
or minority small business, or that is directly related to the formation,
operation, or expansion of a small business;

(2) "Agency" means any administrative officer or body existing under the
constitution or by law and authorized by law or the constitution to make
rules or to adjudicate contested cases, except those in the legislative
or judicial branches;

(3) "Board" means the small business regulatory fairness board;

(4) "Contested case" means a proceeding before an agency in which legal
rights, duties or privileges of specific parties are required by law to
be determined after hearing;

(5) The term "decision" includes decisions and orders whether negative or
affirmative in form;

(6) "Rule" means each agency statement of general applicability that
implements, interprets, or prescribes law or policy, or that describes
the organization, procedure, or practice requirements of any agency. The
term includes the amendment or repeal of an existing rule, but does not
include:

(a) A statement concerning only the internal management of an agency and
which does not substantially affect the legal rights of, or procedures
available to, the public or any segment thereof;

(b) A declaratory ruling issued pursuant to section 536.050, or an
interpretation issued by an agency with respect to a specific set of
facts and intended to apply only to that specific set of facts;

(c) An intergovernmental, interagency, or intraagency memorandum,
directive, manual or other communication which does not substantially
affect the legal rights of, or procedures available to, the public or any
segment thereof;

(d) A determination, decision, or order in a contested case;

(e) An opinion of the attorney general;

(f) Those portions of staff manuals, instructions or other statements
issued by an agency which set forth criteria or guidelines to be used by
its staff in auditing, in making inspections, in settling commercial
disputes or negotiating commercial arrangements, or in the selection or
handling of cases, such as operational tactics or allowable tolerances or
criteria for the defense, prosecution, or settlement of cases, when the
disclosure of such statements would enable law violators to avoid
detection, facilitate disregard of requirements imposed by law, or give a
clearly improper advantage to persons who are in an adverse position to
the state;

(g) A specification of the prices to be charged for goods or services
sold by an agency as distinguished from a license fee, or other fees;

(h) A statement concerning only the physical servicing, maintenance or
care of publicly owned or operated facilities or property;

(i) A statement relating to the use of a particular publicly owned or
operated facility or property, the substance of which is indicated to the
public by means of signs or signals;

(j) A decision by an agency not to exercise a discretionary power;

(k) A statement concerning only inmates of an institution under the
control of the department of corrections and human resources or the
division of youth services, students enrolled in an educational
institution, or clients of a health care facility, when issued by such an
agency;

(l) Statements or requirements establishing the conditions under which
persons may participate in exhibitions, fairs or similar activities,
managed by the state or an agency of the state;

(m) Income tax or sales forms, returns and instruction booklets prepared
by the state department of revenue for distribution to taxpayers for use
in preparing tax returns;

(7) "Small business" means a for-profit enterprise consisting of fewer
than one hundred full- or part-time employees;

(8) "State agency" means each board, commission, department, officer or
other administrative office or unit of the state other than the general
assembly, the courts, the governor, or a political subdivision of the
state, existing under the constitution or statute, and authorized by the
constitution or statute to make rules or to adjudicate contested cases.
(L. 1945 p. 1504 § 1, A.L. 1957 p. 748, A.L. 1976 S.B. 478, A.L. 2004
H.B. 978, A.L. 2005 H.B. 576)

(1977) Held, director of revenue must hold hearing on question as to
reasonable possibility of judgment being rendered against a person,
requires a hearing under § 303.290, RSMo, and is a "contested case"
coming under the provision of Chap. 536, RSMo. Randle et al. v. Spradling
(Mo.), 556 S.W.2d 10.

(1979) Mandamus was remedy when city council denied a liquor license
under a municipal code when all conditions were met and was not a
"contested" case. State ex rel. Keeven v. City of Hazelwood, et al. (A.),
585 S.W.2d 557.

(1995) Local school boards qualify as agencies under this definition. If
a hearing is required by substantive law, it must be conducted according
to contested case procedures. State ex rel. Clint Yarber v. McHenry, 915
S.W.2d 325 (Mo.banc).

(2000) Fire protection district had the power to hire and fire employees
and thus was an "agency" under the section's definition. Krentz v.
Robertson, 228 F.3d 897 (8th Cir.).

No department, agency, commission or board rule shall be valid
in the event that:

(1) There is an absence of statutory authority for the rule or any
portion thereof; or

(2) The rule is in conflict with state law; or

(3) The rule is so arbitrary and capricious as to create such substantial
inequity as to be unreasonably burdensome on persons affected. (L. 1997
H.B. 850)

Effective 6-27-97

There is established a publication to be known as the "Missouri
Register", which shall be published in a format and medium as prescribed
by the secretary of state and in writing upon request no less frequently
than monthly by the secretary of state. (L. 1975 S.B. 58, A.L. 1994 S.B.
558, A.L. 2004 H.B. 1616 merged with S.B. 1100)

1. Any state agency shall propose rules based upon substantial
evidence on the record and a finding by the agency that the rule is
necessary to carry out the purposes of the statute that granted such
rulemaking authority.

2. Each state agency shall adopt procedures by which it will determine
whether a rule is necessary to carry out the purposes of the statute
authorizing the rule. Such criteria and rulemaking shall be based upon
reasonably available empirical data and shall include an assessment of
the effectiveness and the cost of rules both to the state and to any
private or public person or entity affected by such rules. (L. 1997 H.B.
850, A.L. 1999 S.B. 176)

For purposes of this section, "taking of private property" shall
mean an activity wherein private property is taken such that compensation
to the owner of the property is required by the fifth and fourteenth
amendments to the Constitution of the United States or any other similar
or applicable law of this state. No department or agency shall transmit a
proposed rule or regulation which limits or affects the use of real
property to the secretary of state until a takings analysis has occurred.
The takings analysis shall evaluate whether the proposed rule or
regulation on its face constitutes a taking of real property under
relevant state and federal law. The department or agency shall certify in
the transmittal letter to the secretary of state that a takings analysis
has occurred. Any rule that does not comply with this section shall be
invalid and the secretary of state shall not publish the rule. A takings
analysis shall not be necessary where the rule or regulation is being
promulgated on an emergency basis, where the rule or regulation is
federally mandated, or where the rule or regulation substantially
codifies existing federal or state law. (L. 1994 H.B. 1099 §§ 536.017, B
merged with S.B. 558, A.L. 1997 H.B. 88, A.L. 1998 S.B. 900)

The term "agency" and the term "state agency" as defined by
section 536.010 shall not include an institution of higher education,
supported in whole or in part from state funds, if such institution has
established written procedures to assure that constitutionally required
due process safeguards exist and apply to a proceeding that would
otherwise constitute a "contested case" as defined in section 536.010.
(L. 1994 H.B. 1099 merged with S.B. 558 § 1)

Effective 6-3-94 (S.B. 558) 8-28-94 (H.B. 1099)

1. Notwithstanding other provisions of this chapter to the
contrary, a final order of rulemaking shall not take effect prior to the
expiration of thirty legislative days of a regular session after such
order of rulemaking has been filed with the general assembly by providing
a copy thereof to the joint committee on administrative rules and the
secretary of state.

2. This section shall become effective only upon the expiration of twenty
calendar days following the:

(1) Failure of the executive to sign executive order number 97-97; or

(2) Modification, amendment or rescission of executive order number
97-97; or

(3) An agency's failure to hold the rule in abeyance as required by
executive order number 97-97; or

(4) Declaration by a court with jurisdiction that section 536.024 or any
portion of executive order number 97-97 is unconstitutional or invalid
for any reason.

Notwithstanding the provisions of this subsection to the contrary, no
modification, amendment or rescission of executive order number 97-97 or
failure to hold the rule in abeyance shall make this section effective if
the modification, amendment or rescission of the executive order or
failure to hold the rule in abeyance is approved by the general assembly
by concurrent resolution. (L. 1997 H.B. 850)

*Contingent effective date, see subsection 2 of this section.

1. No rule shall hereafter be proposed, adopted, amended or
rescinded by any state agency unless such agency shall first file with
the secretary of state a notice of proposed rulemaking and a subsequent
final order of rulemaking, both of which shall be published in the
Missouri Register by the secretary of state as soon as practicable after
the filing thereof in that office; except that a notice of proposed
rulemaking is not required for the establishment of hunting or fishing
seasons and limits or for the establishment of state program plans
required under federal education acts or regulations. The secretary of
state shall not publish any proposed rulemaking or final order of
rulemaking that has not fully complied with the provisions of section
536.024 or an executive order, whichever appropriately applies. If the
joint committee on administrative rules disapproves any proposed order of
rulemaking, final order of rulemaking or portion thereof, the committee
shall report its finding to the house of representatives and the senate.
No proposed order of rulemaking, final order of rulemaking or portion
thereof shall take effect, or be published by the secretary of state, so
long as the general assembly shall disapprove such by concurrent
resolution pursuant to article IV, section 8 within thirty legislative
days occurring during the same regular session of the general assembly.
The secretary of state shall not publish any order, or portion thereof,
that is the subject of a concurrent resolution until the expiration of
time necessary to comply with the provisions of article III, section 32.

2. A notice of proposed rulemaking shall contain:

(1) An explanation of any proposed rule or any change in an existing
rule, and the reasons therefor;

(2) The legal authority upon which the proposed rule is based;

(3) The text of the entire proposed rule or the entire text of any
affected section or subsection of an existing rule which is proposed to
be amended, with all new matter printed in boldface type and with all
deleted matter placed in brackets, except that when a proposed rule
consists of material so extensive that the publication thereof would be
unduly cumbersome or expensive, the secretary of state need publish only
a summary and description of the substance of the proposed rule so long
as a complete copy of the rule is made immediately available to any
interested person upon application to the adopting state agency at a cost
not to exceed the actual cost of reproduction. A proposed rule may
incorporate by reference only if the material so incorporated is retained
at the headquarters of the state agency and made available to any
interested person at a cost not to exceed the actual cost of the
reproduction of a copy. When a proposed amendment to an existing rule is
to correct a typographical or printing error, or merely to make a
technical change not affecting substantive matters, the amendment may be
described in general terms without reprinting the entire existing rule,
section or subsection;

(4) The number and general subject matter of any existing rule proposed
to be rescinded;

(5) Notice that anyone may file a statement in support of or in
opposition to the proposed rulemaking at a specified place and within a
specified time not less than thirty days after publication of the notice
of proposed rulemaking in the Missouri Register; and

(6) Notice of the time and place of a hearing on the proposed rulemaking
if a hearing is ordered, which hearing shall be not less than thirty days
after publication of the notice of proposed rulemaking in the Missouri
Register; or a statement that no hearing has been ordered if such is the
case.

3. Any state agency issuing a notice of proposed rulemaking may order a
hearing thereon, but no such hearing shall be necessary unless otherwise
required by law.

4. Any state agency which has issued in the Missouri Register a notice of
proposed rulemaking to be made without a hearing, but which thereafter
concludes that a hearing is desirable, shall withdraw the earlier notice
and file a new notice of proposed rulemaking which fully complies with
the provisions of subdivision (6) of subsection 2 of this section, and
the state agency shall not schedule the hearing for a time less than
thirty days following the publication of the new notice.

5. Within ninety days after the expiration of the time for filing
statements in support of or in opposition to the proposed rulemaking, or
within ninety days after the hearing on such proposed rulemaking if a
hearing is held thereon, the state agency proposing the rule shall file
with the secretary of state a final order of rulemaking either adopting
the proposed rule, with or without further changes, or withdrawing the
proposed rule, which order of rulemaking shall be published in the
Missouri Register. Such ninety days shall be tolled for the time period
any rule is held under abeyance pursuant to an executive order. If the
state agency fails to file the order of rulemaking as indicated in this
subsection, the proposed rule shall lapse and shall be null, void and
unenforceable.

6. The final order of rulemaking shall contain:

(1) Reference to the date and page or pages where the notice of proposed
rulemaking was published in the Missouri Register;

(2) An explanation of any change between the text of the rule as
contained in the notice of proposed rulemaking and the text of the rule
as finally adopted, together with the reason for any such change;

(3) The full text of any section or subsection of the rule as adopted
which has been changed from that contained in the notice of proposed
rulemaking;

(4) A brief summary of the general nature and extent of comments
submitted in support of or in opposition to the proposed rule and a
concise summary of the testimony presented at the hearing, if any, held
in connection with said rulemaking, together with a concise summary of
the state agency's findings with respect to the merits of any such
testimony or comments which are opposed in whole or in part to the
proposed rule; and

(5) The legal authority upon which the order of rulemaking is based.

7. Except as provided in section 536.025, any rule, or amendment or
rescission thereof, shall be null, void and unenforceable unless made in
accordance with the provisions of this section.

8. Except as provided in subsection 1 of this section and subsection 4 of
section 536.031, after the final order of rulemaking has been published
in the Missouri Register, the text of the entire rule shall be published
in full in the Missouri code of state regulations. No rule, except an
emergency rule, shall become effective prior to the thirtieth day after
the date of publication of the revision to the Missouri code of state
regulations. The secretary of state shall distribute revisions of the
Missouri code of state regulations to all subscribers of the Missouri
code of state regulations on or before the date of publication of such
revision. The publication date of each rule shall be printed below the
rule in the Missouri code of state regulations, provided further, that
rules pertaining to changes in hunting or fishing seasons and limits that
must comply with federal requirements or that are necessary because of
documented changes in fish and game populations may become effective no
earlier than on the tenth day after the filing of the final order of
rulemaking.

9. If it is found in a contested case by an administrative or judicial
fact finder that a state agency's action was based upon a statement of
general applicability which should have been adopted as a rule, as
required by sections 536.010 to 536.050, and that agency was put on
notice in writing of such deficiency prior to the administrative or
judicial hearing on such matter, then the administrative or judicial fact
finder shall award the prevailing nonstate agency party its reasonable
attorney's fees incurred prior to the award, not to exceed the amount in
controversy in the original action. This award shall constitute a
reviewable order. If a state agency in a contested case grants the relief
sought by the nonstate party prior to a finding by an administrative or
judicial fact finder that the agency's action was based on a statement of
general applicability which should have been adopted as a rule, but was
not, then the affected party may bring an action in the circuit court of
Cole County for the nonstate party's reasonable attorney's fees incurred
prior to the relief being granted, not to exceed the amount in
controversy in the original action.

10. The actions authorized by subsection 9 of this section shall not
apply to the department of revenue if that department implements the
authorization hereby granted to the director or the director's duly
authorized agents to issue letter rulings which shall bind the director
or the director's agents and their successors for a minimum of three
years, subject to the terms and conditions set forth in properly
published regulations. An unfavorable letter ruling shall not bind the
applicant and shall not be appealable to any forum. Subject to
appropriations, letter rulings shall be published periodically with
information identifying the taxpayer deleted. For the purposes of this
subsection, the term "letter ruling" means a written interpretation of
law by the director to a specific set of facts provided by a nonstate
party. (L. 1975 S.B. 58 § 536.020, A.L. 1976 S.B. 478, A.L. 1989 H.B.
143, A.L. 1992 H.B. 1849, A.L. 1993 S.B. 347, A.L. 1994 S.B. 558, A.L.
1997 H.B. 850, A.L. 2004 H.B. 1616 merged with S.B. 1100)

1. If any rule or portion of a rule of a state agency is
suspended or terminated by action of the governor, a court or other
authority, the state agency shall immediately file a notice of such
action with the secretary of state.

2. The notice, in a format for publication designed by the secretary of
state, shall contain the title and number of the rule; shall describe
briefly the action taken with regard to the rule and the parties affected
by the suspension or termination; shall state the effective date of the
suspension or termination; shall state the duration of the suspension;
and shall contain such other information deemed necessary by the
secretary of state to provide adequate public information.

3. If any action has the effect of changing the information in the
initial notice, the state agency shall immediately file a new notice with
the secretary of state in the same manner as the original notice.

4. Notices shall be printed by the secretary of state in the Missouri
Register as soon as practicable. The secretary of state shall insert in
the code of state regulations material regarding the suspension or
termination of rules, and the secretary of state may remove rules which
have terminated. (L. 1979 S.B. 204, A.L. 1997 H.B. 850)

Effective 6-27-97

1. The secretary of state shall prescribe in a format and medium
as prescribed by the secretary of state and in writing upon request
uniform procedures for the numbering, indexing, form and publication of
all rules, notices of proposed rulemaking and orders of rulemaking.
Copies of the procedures shall be furnished by the secretary of state to
each state agency and copies thereof shall be permanently maintained in
the office of the secretary of state and shall be available for public
inspection at all reasonable times.

2. No rule, notice of proposed rulemaking or final order of rulemaking
shall be accepted for filing with the secretary of state unless it
conforms to said uniform procedures.

3. Each state agency shall adopt as a rule a description of its
organization and general courses and methods of its operation and the
methods and procedures whereby the public may obtain information or make
submissions or requests. Substantial changes in any matter covered by the
foregoing description shall be made only in accordance with the
procedures set forth in this chapter. (L. 1975 S.B. 58, A.L. 1976 S.B.
478, A.L. 1997 H.B. 850, A.L. 2004 H.B. 1616 merged with S.B. 1100)

1. When the general assembly authorizes any state agency to
adopt administrative rules or regulations, the granting of such
rulemaking authority and the validity of such rules and regulations is
contingent upon the agency complying with the provisions of this section
in promulgating such rules after June 3, 1994.

2. Upon filing any proposed rule with the secretary of state, the filing
agency shall concurrently submit such proposed rule to the joint
committee on administrative rules, which may hold hearings upon any
proposed rule or portion thereof at any time.

3. A final order of rulemaking shall not be filed with the secretary of
state until thirty days after such final order of rulemaking has been
received by the committee. The committee may hold one or more hearings
upon such final order of rulemaking during the thirty-day period.

4. The committee may file with the secretary of state any comments or
recommendations that the committee has concerning a proposed or final
order of rulemaking. Such comments shall be published in the Missouri
Register.

5. The committee may refer comments or recommendations concerning such
rule to the appropriations and budget committees of the house of
representatives and the appropriations committee of the senate for
further action.

6. The provisions of this section shall not apply to rules adopted by the
labor and industrial relations commission. (L. 1994 S.B. 558 § 536.018,
A.L. 1995 S.B. 3, A.L. 1997 H.B. 850, A.L. 1998 S.B. 900, A.L. 2005 S.B.
237)

CROSS REFERENCE: Workers' compensation cases, this section not deemed to
govern discovery between parties, RSMo 287.811

1. A rule may be made, amended or rescinded by a state agency
without following the provisions of section 536.021, only if the state
agency:

(1) Finds that an immediate danger to the public health, safety or
welfare requires emergency action or the rule is necessary to preserve a
compelling governmental interest that requires an early effective date as
permitted pursuant to this section;

(2) Follows procedures best calculated to assure fairness to all
interested persons and parties under the circumstances;

(3) Follows procedures which comply with the protections extended by the
Missouri and United States Constitutions; and

(4) Limits the scope of such rule to the circumstances creating an
emergency and requiring emergency action.

2. At the time of or prior to the adoption of such rule, the agency shall
file with the secretary of state and the joint committee on
administrative rules the text of the rule together with the specific
facts, reasons, and findings which support the agency's conclusion that
the agency has fully complied with the requirements of subsection 1 of
this section. If an agency finds that a rule is necessary to preserve a
compelling governmental interest that requires an early effective date,
the agency shall certify in writing the reasons therefor.

3. Material filed with the secretary of state and the joint committee on
administrative rules under the provisions of subsection 2 of this section
shall be published in the Missouri Register by the secretary of state as
soon as practicable after the filing thereof. Any rule adopted pursuant
to this section shall be reviewed by the secretary of state to determine
compliance with the requirements for its publication and adoption
established in this section, and in the event that the secretary of state
determines that such proposed material does not meet those requirements,
the secretary of state shall not publish the rule. The secretary of state
shall inform the agency of its determination, and offer the agency a
chance to either withdraw the rule or to have it published as a proposed
rule.

4. The committee may file with the secretary of state any comments or
recommendations that the committee has concerning a proposed or final
order of rulemaking. Such comments shall be published in the Missouri
Register.

5. The committee may refer comments or recommendations concerning such
rule to the appropriations and budget committee of the house of
representatives and the appropriations committee of the senate for
further action.

6. Rules adopted under the provisions of this section shall be known as
"emergency rules" and shall, along with the findings and conclusions of
the state agency in support of its employment of emergency procedures, be
judicially reviewable under section 536.050 or other appropriate form of
judicial review. The secretary of state and any employee thereof, acting
in the scope of employment, shall be immune from suit in actions
regarding the adoption of rules pursuant to this section.

7. A rule adopted under the provisions of this section shall clearly
state the interval during which it will be in effect. Emergency rules
shall not be in effect for a period exceeding one hundred eighty calendar
days or thirty legislative days, whichever period is longer. For the
purposes of this section, a "legislative day" is each Monday, Tuesday,
Wednesday and Thursday beginning the first Wednesday after the first
Monday in January and ending the first Friday after the second Monday in
May, regardless of whether the legislature meets.

8. A rule adopted under the provisions of this section shall not be
renewable, nor shall an agency adopt consecutive emergency rules that
have substantially the same effect, although a state agency may, at any
time, adopt an identical rule under normal rulemaking procedures.

9. A rule adopted under the provisions of this section may be effective
not less than ten days after the filing thereof in the office of the
secretary of state, or at such later date as may be specified in the
rule, and may be terminated at any time by the state agency by filing an
order with the secretary of state fixing the date of such termination,
which order shall be published by the secretary of state in the Missouri
Register as soon as practicable after the filing thereof.

10. If it is found in a contested case by an administrative or judicial
fact finder that an agency rule should not have been adopted as an
emergency rule as provided by subsection 1 of this section, then the
administrative or judicial fact finder shall award the nonstate party who
prevails, as defined in this section, its reasonable fees and expenses,
as defined in this section. This award shall constitute a reviewable
order. If a state agency in a contested case grants the relief sought by
the party prior to a finding by an administrative or judicial fact finder
that the state agency's action was based on a statement of general
applicability which should not have been adopted as an emergency rule,
but was in fact adopted as an emergency rule pursuant to this section,
then the affected party may bring an action in circuit court of Cole
County for the nonstate party's reasonable fees and expenses, as defined
in this section.

11. For the purposes of this section, the following terms mean:

(1) "Prevails", obtains a favorable order, decision, judgment or
dismissal in a civil action or agency proceeding;

(2) "Reasonable fees and expenses" includes the reasonable expenses of
expert witnesses, the reasonable cost of any study, analysis, engineering
report, test or project which is found by the court or agency to be
necessary for the preparation of the party's case, and reasonable
attorney or agent fees. (L. 1975 S.B. 58, A.L. 1976 S.B. 478, A.L. 1993
S.B. 52, A.L. 1995 S.B. 3, A.L. 1997 H.B. 850)

Effective 6-27-97

CROSS REFERENCE: Workers' compensation cases, this section not deemed to
govern discovery between parties, RSMo 287.811

1. In addition to seeking information by other methods, an
agency may solicit comments from the public on the subject matter of a
rule that the agency is considering proposing. The agency may file a
notice of the rule under consideration as a proposed rulemaking with the
secretary of state for publication in the Missouri Register as soon as
practicable after the filing thereof in the secretary's office. The
notice may contain the number and the subject matter of the rule as well
as a statement indicating where, when, and how persons may comment.

2. Each agency may also appoint committees to comment on the subject
matter of a rule that the agency is considering proposing. The membership
of those committees must be published at least annually in the Missouri
Register. (L. 1997 H.B. 850 § 536.020)

Effective 6-27-97

Any written comment filed pursuant to section 536.021 in support
of or opposition to a notice of proposed rulemaking and any written
record of a public hearing in connection with a notice of proposed
rulemaking shall be retained for a period of at least three years by the
agency issuing the notice, and all such comments and other records shall
be available for public inspection at all reasonable times. (L. 1975 S.B.
58)

Effective 1-1-76

1. Notwithstanding provisions of this chapter to the contrary,
the delegation of authority to any state agency to propose to the general
assembly rules as provided under this section is contingent upon the
agency complying with the provisions of this chapter and this delegation
of legislative power to the agency to propose a final order of rulemaking
containing a rule or portion thereof that has the effect of substantive
law, other than a rule relating to the agency's organization and internal
management, is contingent and dependent upon the power of the general
assembly to review such proposed order of rulemaking, to delay the
effective date of such proposed order of rulemaking until the expiration
of at least thirty legislative days of a regular session after such order
is filed with the general assembly and the secretary of state, and to
disapprove and annul any rule or portion thereof contained in such order
of rulemaking.

2. No rule or portion of a rule that has the effect of substantive law
shall become effective until the final order of rulemaking has been
reviewed by the general assembly in accordance with the procedures
provided pursuant to this chapter. Any agency's authority to propose an
order of rulemaking is dependent upon the power of the general assembly
to disapprove and annul any such proposed rule or portion thereof.

3. In order for the general assembly to have an effective opportunity to
be advised of rules proposed by any state agency, an agency shall propose
a rule or order of rulemaking by complying with the procedures provided
in this chapter, except that the notice of proposed rulemaking shall
first be filed with the general assembly by providing a copy thereof to
the joint committee on administrative rules, which may hold hearings upon
any proposed rule, order of rulemaking or portion thereof at any time.
The agency shall cooperate with the joint committee on administrative
rules by providing any witnesses, documents or information within the
control of the agency as may be requested.

4. Such proposed order of rulemaking shall not become effective prior to
the expiration of thirty legislative days of a regular session after such
order is filed with the secretary of state and the joint committee on
administrative rules.

5. The committee may, by majority vote of its members, recommend that the
general assembly disapprove and annul any rule or portion thereof
contained in an order of rulemaking after hearings thereon and upon a
finding that such rule or portion thereof should be disapproved and
annulled. Grounds upon which the committee may recommend such action
include, but are not limited to:

(1) Such rule is substantive in nature in that it creates rights or
liabilities or provides for sanctions as to any person, corporation or
other legal entity; and

(2) Such rule or portion thereof is not in the public interest or is not
authorized by the general assembly for one or more of the following
grounds:

(a) An absence of statutory authority for the proposed rule;

(b) The proposed rule is in conflict with state law;

(c) Such proposed rule is likely to substantially endanger the public
health, safety or welfare;

(d) The rule exceeds the purpose, or is more restrictive than is
necessary to carry out the purpose, of the statute granting rulemaking
authority;

(e) A substantial change in circumstance has occurred since enactment of
the law upon which the proposed rule is based as to result in a conflict
between the purpose of the law and the proposed rule, or as to create a
substantial danger to public health and welfare; or

(f) The proposed rule is so arbitrary and capricious as to create such
substantial inequity as to be unreasonably burdensome on persons affected.

6. Any recommendation or report issued by the committee pursuant to
subsection 5 of this section shall be admissible as evidence in any
judicial proceeding and entitled to judicial notice without further proof.

7. The general assembly may adopt a concurrent resolution in accordance
with the provisions of article IV, section 8 of the Missouri Constitution
to disapprove and annul any rule or portion thereof.

8. Any rule or portion thereof not disapproved within thirty legislative
days of a regular session pursuant to subsection 7 of this section shall
be deemed approved by the general assembly and the secretary of state may
publish such final order of rulemaking as soon as practicable upon the
expiration of thirty legislative days of a regular session after the
final order of rulemaking was filed with the secretary of state and the
joint committee on administrative rules.

9. Upon adoption of such concurrent resolution as provided in subsection
7 of this section, the secretary of state shall not publish the order of
rulemaking until the expiration of time necessary for such resolution to
be signed by the governor, or vetoed and subsequently acted upon by the
general assembly pursuant to article III, section 32 of the Missouri
Constitution. If such concurrent resolution is adopted and signed by the
governor or otherwise reconsidered pursuant to article III, section 32,
the secretary of state shall publish in the Missouri Register, as soon as
practicable, the order of rulemaking along with notice of the proposed
rules or portions thereof which are disapproved and annulled by the
general assembly.

10. Notwithstanding the provisions of section 1.140, RSMo, the provisions
of this section, section 536.021 and section 536.025 are nonseverable and
the delegation of legislative authority to an agency to propose orders of
rulemaking is essentially dependent upon the powers vested with the
general assembly as provided herein. If any of the powers vested with the
general assembly or the joint committee on administrative rules to
review, to hold in abeyance the rule pending action by the general
assembly, to delay the effective date or to disapprove and annul a rule
or portion of a rule contained in an order of rulemaking, are held
unconstitutional or invalid, the purported grant of rulemaking authority
and any rule so proposed and contained in the order of rulemaking shall
be revoked and shall be null, void and unenforceable.

11. Nothing in this section shall prevent the general assembly from
adopting by concurrent resolution or bill within thirty legislative days
of a regular session the rules or portions thereof, or as the same may be
amended or annulled, as contained in a proposed order of rulemaking. In
that event, the proposed order of rulemaking shall have been superseded
and the order and any rule proposed therein shall be null, void and
unenforceable. The secretary of state shall not publish a proposed order
of rulemaking acted upon as described herein.

12. Upon adoption of any rule now or hereafter in effect, such rule or
portion thereof may be revoked by the general assembly either by bill or
by concurrent resolution pursuant to article IV, section 8 of the
constitution on recommendation of the joint committee on administrative
rules. The secretary of state shall publish in the Missouri Register, as
soon as practicable, notice of the revocation.

13. This section shall become effective only upon the expiration of
twenty calendar days following the:

(1) Failure of the executive to sign executive order number 97-97; or

(2) Modification, amendment or rescission of executive order number
97-97; or

(3) An agency's failure to hold the rule in abeyance as required by
executive order number 97-97; or

(4) Declaration by a court with jurisdiction that section 536.024 or any
portion of executive order number 97-97 is unconstitutional or invalid
for any reason.

Notwithstanding the provisions of this subsection to the contrary, no
modification, amendment or rescission of executive order number 97-97 or
failure to hold a rule in abeyance shall make this section effective if
the modification, amendment or rescission of the executive order or
failure to hold the rule in abeyance is approved by the general assembly
by concurrent resolution. (L. 1997 H.B. 335, Repealed 1997 H.B. 600 &
388, A.L. 1997 H.B. 850)

*Contingent effective date, see subsection 13 of this section.

1. There is established a publication to be known as the "Code
of State Regulations", which shall be published in a format and medium as
prescribed and in writing upon request by the secretary of state as soon
as practicable after ninety days following January 1, 1976, and may be
republished from time to time thereafter as determined by the secretary
of state.

2. The code of state regulations shall contain the full text of all rules
of state agencies in force and effect upon the effective date of the
first publication thereof, and effective September 1, 1990, it shall be
revised no less frequently than monthly thereafter so as to include all
rules of state agencies subsequently made, amended or rescinded. The code
may also include citations, references, or annotations, prepared by the
state agency adopting the rule or by the secretary of state, to any
intraagency ruling, attorney general's opinion, determination, decisions,
order, or other action of the administrative hearing commission, or any
determination, decision, order, or other action of a court interpreting,
applying, discussing, distinguishing, or otherwise affecting any rule
published in the code.

3. The code of state regulations shall be published in looseleaf form in
one or more volumes upon request and a format and medium as prescribed by
the secretary of state with an appropriate index, and revisions in the
text and index may be made by the secretary of state as necessary and
provided in written format upon request.

4. An agency may incorporate by reference rules, regulations, standards,
and guidelines of an agency of the United States or a nationally or
state-recognized organization or association without publishing the
material in full. The reference in the agency rules shall fully identify
the incorporated material by publisher, address, and date in order to
specify how a copy of the material may be obtained, and shall state that
the referenced rule, regulation, standard, or guideline does not include
any later amendments or additions. The agency adopting a rule,
regulation, standard, or guideline under this section shall maintain a
copy of the referenced rule, regulation, standard, or guideline at the
headquarters of the agency and shall make it available to the public for
inspection and copying at no more than the actual cost of reproduction.
The secretary of state may omit from the code of state regulations such
material incorporated by reference in any rule the publication of which
would be unduly cumbersome or expensive.

5. The courts of this state shall take judicial notice, without proof, of
the contents of the code of state regulations. (L. 1975 S.B. 58 §
536.030, A.L. 1976 S.B. 478, A.L. 1989 H.B. 143, A.L. 2004 H.B. 1616
merged with S.B. 1100)

1. Copies or subscription of the register or code shall be made
available to the public by the secretary of state upon request for a
reasonable charge to be established by him, said charge not to exceed the
actual cost of publishing and delivery.

2. All costs of printing and mailing the Missouri Register and the code
of state regulations shall be paid by the office of the secretary of
state from funds appropriated for this purpose and all fees collected
from the sale thereof by the secretary of state shall be deposited to
general revenue.

3. The secretary of state may correct typographical or spelling errors in
the publication of any rule, notice of proposed rulemaking, or order of
rulemaking. (L. 1975 S.B. 58, A.L. 1976 S.B. 478, A.L. 1981 S.B. 101)

1. All rules or executive orders filed with the secretary of
state pursuant to sections 536.015 to 536.043 shall be retained
permanently and shall be open to public inspection at all reasonable
times.

2. Beginning January 1, 2003, all executive orders issued after said date
shall be published in the Missouri Register.

(L. 1975 S.B. 58, A.L. 2002 S.B. 812)

1. There is established a permanent joint committee of the
general assembly to be known as the "Committee on Administrative Rules",
which shall be composed of five members of the senate and five members of
the house of representatives. The senate members of the committee shall
be appointed by the president pro tem of the senate and the house members
by the speaker of the house. The appointment of each member shall
continue during his term of office as a member of the general assembly
unless sooner removed. No major party shall be represented by more than
three appointed members from either house.

2. The committee on administrative rules shall meet within ten days after
its creation and organize by selecting a chairman and a vice chairman,
one of whom shall be a member of the senate and one of whom shall be a
member of the house of representatives. A majority of the members
constitutes a quorum. Meetings of the committee may be called at such
time and place as the chairman designates.

3. The committee shall review all rules promulgated by any state agency
after January 1, 1976, except rules promulgated by the labor and
industrial labor relations commission. In its review the committee may
take such action as it deems necessary which may include holding hearings.

4. The members of the committee shall receive no compensation in addition
to their salary as members of the general assembly, but may receive their
necessary expenses while attending the meetings of the committee, to be
paid out of the joint contingent fund. (L. 1975 S.B. 58, A.L. 1994 S.B.
558, A.L. 1995 S.B. 3, A.L. 2005 S.B. 237)

CROSS REFERENCE: Workers' compensation cases, this section not deemed to
govern discovery between parties, RSMo 287.811

Any person may petition an agency requesting the adoption,
amendment or repeal of any rule. Any agency receiving such a petition or
other request in writing to adopt, amend or repeal any rule shall
forthwith furnish a copy thereof to the joint committee on administrative
rules and to the commissioner of administration, together with the
action, if any, taken or contemplated by the agency as a result of such
petition or request, and the agency's reasons therefor. (L. 1975 S.B. 58
§ 536.040, A.L. 1976 S.B. 728, A.L. 1997 H.B. 850)

Effective 6-27-97

Notwithstanding the provisions of section 189.060, the director
of social services shall not be required to promulgate rules provided for
in said section, although he may elect to do so as therein provided. (L.
1975 S.B. 58 § 2)

Effective 1-1-76

Each agency may maintain a public rulemaking docket. The
rulemaking docket may contain a listing of the precise subject matter of
each rule that the agency is considering proposing. The docket may also
contain the name and address of agency personnel with whom persons may
communicate with respect to the matter and an indication of the present
status within the agency of the rule the agency is considering proposing.
The secretary of state may publish such rulemaking dockets. (L. 1997 H.B.
850)

Effective 6-27-97

1. The power of the courts of this state to render declaratory
judgments shall extend to declaratory judgments respecting the validity
of rules, or of threatened applications thereof, and such suits may be
maintained against agencies whether or not the plaintiff has first
requested the agency to pass upon the question presented. The venue of
such suits against agencies shall, at the option of the plaintiff, be in
the circuit court of Cole County, or in the county of the plaintiff's
residence, or if the plaintiff is a corporation, domestic or foreign,
having a registered office or business office in this state, in the
county of such registered office or business office. Nothing herein
contained shall be construed as a limitation on the declaratory or other
relief which the courts might grant in the absence of this section.

2. Any person bringing an action under subsection 1 of this section shall
not be required to exhaust any administrative remedy if the court
determines that:

(1) The administrative agency has no authority to grant the relief sought
or the administrative remedy is otherwise inadequate; or

(2) The only issue presented for adjudication is a constitutional issue
or other question of law; or

(3) Requiring the person to exhaust any administrative remedy would
result in undue prejudice because the person may suffer irreparable harm
if unable to secure immediate judicial consideration of the claim.
Provided, however, that the provisions of this subsection shall not apply
to any matter covered by chapters 288, 302, and 303, RSMo; or

(4) The party bringing the action is a small business claiming a material
violation of section 536.300 or 536.303 by the state agency requiring the
small business impact statement for the amendment or rule.

3. A nonstate party who prevails in an action brought pursuant to
subsection 1 of this section shall be awarded reasonable fees and
expenses, as defined in section 536.085, incurred by that party in the
action.

4. A nonstate party seeking an award of fees and other expenses shall,
within thirty days of a final disposition of an action brought pursuant
to subsection 1 of this section, submit to the court which rendered the
final disposition or judgment an application which shows that the party
is a prevailing party and is eligible to receive an award pursuant to
this section, and the amount sought, including an itemized statement from
any attorney or expert witness representing or appearing in behalf of the
party stating the actual time expended and the rate at which fees and
other expenses are computed.

5. A prevailing nonstate party in an agency proceeding shall submit an
application for fees and expenses to the court before which the party
prevailed. The filing of an application shall not stay the time for
appealing the merits of a case. When the state appeals the underlying
merits of an adversary proceeding, no decision on the application for
fees and other expenses in connection with that adversary proceeding
shall be made pursuant to this section until a final and unreviewable
decision is rendered by the court on the appeal or until the underlying
merits of the case have been finally determined pursuant to the appeal.

6. The court may either reduce the amount to be awarded or deny any
award, to the extent that the prevailing nonstate party during the course
of the proceedings engaged in conduct which unduly and unreasonably
protracted the final resolution of the matter in controversy.

7. The decision of a court on the application for reasonable fees and
expenses shall be in writing, separate from the judgment or order of the
court which determined the prevailing party, and shall include written
findings and conclusions and the reason or basis therefor. The decision
of a court on the application for fees and other expenses shall be final,
subject respectively to appeal or judicial review.

8. If a party or the state is dissatisfied with a determination of fees
and other expenses made in an action brought pursuant to subsection 1 of
this section, that party or the state may, within the time permitted by
law, appeal that order or judgment to the appellate court having
jurisdiction to review the merits of that order or judgment. The
appellate court's determination shall be based solely on the record made
before the court below. The court may modify, reverse or reverse and
remand the determination of fees and other expenses if the court finds
that the award or failure to make an award of fees and other expenses, or
the calculation of the amount of the award, was arbitrary and capricious,
was unreasonable, was unsupported by competent and substantial evidence,
or was made contrary to law or in excess of the court's jurisdiction.
Awards made pursuant to this section shall be payable from amounts
appropriated therefor. The state agency against which the award was made
shall request an appropriation to pay for the award.

9. The general assembly or its designee shall have standing, in law or
equity, to intervene in any existing action involving such challenge to
agency action. Unless otherwise provided by resolution, the general
assembly's designee is the joint committee on administrative rules who
may, upon a concurrence of a majority of the committee's members,
intervene in the name of the members of the committee in their
representative capacity. Nothing in this section shall confer upon the
committee any duty to so act or intervene. (L. 1945 p. 1504 § 5, A.L.
1978 S.B. 661, A.L. 1996 S.B. 720, A.L. 1997 H.B. 850, A.L. 2005 H.B. 576)

(1982) Statutory provisions which purport to authorize the Administrative
Hearing Commission to render declaratory judgments are unconstitutional
as violative of Section 1, Article V of the Missouri Constitution. State
Tax Commission v. Administrative Hearing Commission (Mo.banc), 641 S.W.2d
69.

(1993) Where action is based on specific facts involving named entities
and is a challenge to an agency decision, jurisdiction to challenged
decision is vested in the administrative hearing commission under section
208.156, RSMo. Because action challenged an agency decision and not an
agency rule, this section does not allow a declaratory judgment action to
be brought in the circuit court. Missouri Health Care Association, EBG
III, Inc. v. Missouri Department of Social Services, 851 S.W.2d 567 (Mo.
App. W.D.).

Any person who is or may be aggrieved by any rule promulgated by
a state agency shall have standing to challenge any rule promulgated by a
state agency and may bring such an action pursuant to the provisions of
section 536.050. Such person shall not be required to exhaust any
administrative remedy and shall be considered a nonstate party. (L. 1999
S.B. 1, et al.)

All correspondence sent from any state agency shall contain the
name, address and phone number of the person or agency responsible for
sending the correspondence. The name, address and phone number may be
printed or typed. (L. 1989 H.B. 143 § 2)

Contested cases and other matters involving licensees and
licensing agencies described in section 621.045, RSMo, may be informally
resolved by consent agreement or agreed settlement or may be resolved by
stipulation, consent order, or default, or by agreed settlement where
such settlement is permitted by law. Nothing contained in sections
536.060 to 536.095 shall be construed (1) to impair the power of any
agency to take lawful summary action in those matters where a contested
case is not required by law, or (2) to prevent any agency authorized to
do so from assisting claimants or other parties in any proper manner, or
(3) to prevent the waiver by the parties (including, in a proper case,
the agency) of procedural requirements which would otherwise be necessary
before final decision, or (4) to prevent stipulations or agreements among
the parties (including, in a proper case, the agency). (L. 1945 p. 1504 §
6, A.L. 1957 p. 748 § 536.090, A.L. 1995 S.B. 3)

CROSS REFERENCE: Workers' compensation cases, this section not deemed to
govern discovery between parties, RSMo 287.811

In any contested case:

(1) The contested case shall be commenced by the filing of a writing by
which the party or agency instituting the proceeding seeks such action as
by law can be taken by the agency only after opportunity for hearing, or
seeks a hearing for the purpose of obtaining a decision reviewable upon
the record of the proceedings and evidence at such hearing, or upon such
record and additional evidence, either by a court or by another agency.
Answering, intervening and amendatory writings and motions may be filed
in any case and shall be filed where required by rule of the agency,
except that no answering instrument shall be required unless the notice
of institution of the case states such requirement. Entries of appearance
shall be permitted.

(2) Any writing filed whereby affirmative relief is sought shall state
what relief is sought or proposed and the reason for granting it, and
shall not consist merely of statements or charges phrased in the language
of a statute or rule; provided, however, that this subdivision shall not
apply when the writing is a notice of appeal as authorized by law.

(3) Reasonable opportunity shall be given for the preparation and
presentation of evidence bearing on any issue raised or decided or relief
sought or granted. Where issues are tried without objection or by
consent, such issues shall be deemed to have been properly before the
agency. Any formality of procedure may be waived by mutual consent.

(4) Every writing seeking relief or answering any other writing, and any
motion shall state the name and address of the attorney, if any, filing
it; otherwise the name and address of the party filing it.

(5) By rule the agency may require any party filing such a writing to
furnish, in addition to the original of such writing, the number of
copies required for the agency's own use and the number of copies
necessary to enable the agency to comply with the provisions of this
subdivision hereinafter set forth. The agency shall, without charge
therefor, mail one copy of each such writing, as promptly as possible
after it is filed, to every party or his attorney who has filed a writing
or who has entered his appearance in the case, and who has not
theretofore been furnished with a copy of such writing and shall have
requested copies of the writings; provided that in any case where the
parties are so numerous that the requirements of this subdivision would
be unduly onerous, the agency may in lieu thereof (a) notify all parties
of the fact of the filing of such writing, and (b) permit any party to
copy such writing. (L. 1957 p. 748 § 536.060)

In any contested case:

(1) The agency shall promptly mail a notice of institution of the case to
all necessary parties, if any, and to all persons designated by the
moving party and to any other persons to whom the agency may determine
that notice should be given. The agency or its clerk or secretary shall
keep a permanent record of the persons to whom such notice was sent and
of the addresses to which sent and the time when sent. Where a contested
case would affect the rights, privileges or duties of a large number of
persons whose interests are sufficiently similar that they may be
considered as a class, notice may in a proper case be given to a
reasonable number thereof as representatives of such class. In any case
where the name or address of any proper or designated party or person is
not known to the agency, and where notice by publication is permitted by
law, then notice by publication may be given in accordance with any rule
or regulation of the agency or if there is no such rule or regulation,
then, in a proper case, the agency may by a special order fix the time
and manner of such publication.

(2) The notice of institution of the case to be mailed as provided in
this section shall state in substance:

(a) The caption and number of the case;

(b) That a writing seeking relief has been filed in such case, the date
it was filed, and the name of the party filing the same;

(c) A brief statement of the matter involved in the case unless a copy of
the writing accompanies said notice;

(d) Whether an answer to the writing is required, and if so the date when
it must be filed;

(e) That a copy of the writing may be obtained from the agency, giving
the address to which application for such a copy may be made. This may be
omitted if the notice is accompanied by a copy of such writing;

(f) The location in the Code of State Regulations of any rules of the
agency regarding discovery or a statement that the agency shall send a
copy of such rules on request;

(3) Unless the notice of hearing hereinafter provided for shall have been
included in the notice of institution of the case, the agency shall, as
promptly as possible after the time and place of hearing have been
determined, mail a notice of hearing to the moving party and to all
persons and parties to whom a notice of institution of the case was
required to be or was mailed, and also to any other persons who may
thereafter have become or have been made parties to the proceeding. The
notice of hearing shall state:

(a) The caption and number of the case;

(b) The time and place of hearing;

(4) No hearing in a contested case shall be had, except by consent, until
a notice of hearing shall have been given substantially as provided in
this section, and such notice shall in every case be given a reasonable
time before the hearing. Such reasonable time shall be at least ten days
except in cases where the public morals, health, safety or interest may
make a shorter time reasonable; provided that when a longer time than ten
days is prescribed by statute, no time shorter than that so prescribed
shall be deemed reasonable. (L. 1957 p. 748 §§ 536.063, 536.066, A.L.
1995 S.B. 3)

CROSS REFERENCE: Workers' compensation cases, this section not deemed to
govern discovery between parties, RSMo 287.811

1. In any proceeding before the administrative hearing
commission, any responsive pleading to the petitioner's complaint or
petition shall be filed within the time limits specified for filing an
answer under the rules governing civil practice in circuit courts in
Missouri, unless the administrative hearing commission grants an
extension of time for the filing of a responsive pleading. Such
responsive pleadings may include, but shall not be limited to, answers,
motions to dismiss, motions for a more definite statement or to make more
definite and certain, or any combination of these pleadings.

2. The administrative hearing commission shall upon the request of all
parties involved and waiver of the provisions of section 536.090 issue a
bench ruling or render a memorandum decision on any case within one week
of the conclusion of the hearing or within one week of the request,
whichever is later. (L. 1989 H.B. 143 § 1)

In any contested case:

(1) Oral evidence shall be taken only on oath or affirmation.

(2) Each party shall have the right to call and examine witnesses, to
introduce exhibits, to cross-examine opposing witnesses on any matter
relevant to the issues even though that matter was not the subject of the
direct examination, to impeach any witness regardless of which party
first called him to testify, and to rebut the evidence against him.

(3) A party who does not testify in his own behalf may be called and
examined as if under cross-examination.

(4) Each agency shall cause all proceedings in hearings before it to be
suitably recorded and preserved. A copy of the transcript of such a
proceeding shall be made available to any interested person upon the
payment of a fee which shall in no case exceed the reasonable cost of
preparation and supply.

(5) Records and documents of the agency which are to be considered in the
case shall be offered in evidence so as to become a part of the record,
the same as any other evidence, but the records and documents may be
considered as a part of the record by reference thereto when so offered.

(6) Agencies shall take official notice of all matters of which the
courts take judicial notice. They may also take official notice of
technical or scientific facts, not judicially cognizable, within their
competence, if they notify the parties, either during a hearing or in
writing before a hearing, or before findings are made after hearing, of
the facts of which they propose to take such notice and give the parties
reasonable opportunity to contest such facts or otherwise show that it
would not be proper for the agency to take such notice of them.

(7) Evidence to which an objection is sustained shall, at the request of
the party seeking to introduce the same, or at the instance of the
agency, nevertheless be heard and preserved in the record, together with
any cross-examination with respect thereto and any rebuttal thereof,
unless it is wholly irrelevant, repetitious, privileged, or unduly long.

(8) Any evidence received without objection which has probative value
shall be considered by the agency along with the other evidence in the
case. The rules of privilege shall be effective to the same extent that
they are now or may hereafter be in civil actions. Irrelevant and unduly
repetitious evidence shall be excluded.

(9) Copies of writings, documents and records shall be admissible without
proof that the originals thereof cannot be produced, if it shall appear
by testimony or otherwise that the copy offered is a true copy of the
original, but the agency may, nevertheless, if it believes the interests
of justice so require, sustain any objection to such evidence which would
be sustained were the proffered evidence offered in a civil action in the
circuit court, but if it does sustain such an objection, it shall give
the party offering such evidence reasonable opportunity and, if
necessary, opportunity at a later date, to establish by evidence the
facts sought to be proved by the evidence to which such objection is
sustained.

(10) Any writing or record, whether in the form of an entry in a book or
otherwise, made as a memorandum or record of an act, transaction,
occurrence or event, shall be admissible as evidence of the act,
transaction, occurrence or event, if it shall appear that it was made in
the regular course of any business, and that it was the regular course of
such business to make such memorandum or record at the time of such act,
transaction, occurrence, or event or within a reasonable time thereafter.
All other circumstances of the making of such writing or record,
including lack of personal knowledge by the entrant or maker, may be
shown to affect the weight of such evidence, but such showing shall not
affect its admissibility. The term "business" shall include business,
profession, occupation and calling of every kind.

(11) The results of statistical examinations or studies, or of audits,
compilations of figures, or surveys, involving interviews with many
persons, or examination of many records, or of long or complicated
accounts, or of a large number of figures, or involving the ascertainment
of many related facts, shall be admissible as evidence of such results,
if it shall appear that such examination, study, audit, compilation of
figures, or survey was made by or under the supervision of a witness, who
is present at the hearing, who testifies to the accuracy of such results,
and who is subject to cross-examination, and if it shall further appear
by evidence adduced that the witness making or under whose supervision
such examination, study, audit, compilation of figures, or survey was
made was basically qualified to make it. All the circumstances relating
to the making of such an examination, study, audit, compilation of
figures or survey, including the nature and extent of the qualifications
of the maker, may be shown to affect the weight of such evidence but such
showing shall not affect its admissibility.

(12) Any party or the agency desiring to introduce an affidavit in
evidence at a hearing in a contested case may serve on all other parties
(including, in a proper case, the agency) copies of such affidavit in the
manner hereinafter provided, at any time before the hearing, or at such
later time as may be stipulated. Not later than seven days after such
service, or at such later time as may be stipulated, any other party (or,
in a proper case, the agency) may serve on the party or the agency who
served such affidavit an objection to the use of the affidavit or some
designated portion or portions thereof on the ground that it is in the
form of an affidavit; provided, however, that if such affidavit shall
have been served less than eight days before the hearing such objection
may be served at any time before the hearing or may be made orally at the
hearing. If such objection is so served, the affidavit or the part
thereof to which objection was made, may not be used except in ways that
would have been permissible in the absence of this subdivision; provided,
however, that such objection may be waived by the party or the agency
making the same. Failure to serve an objection as aforesaid, based on the
ground aforesaid, shall constitute a waiver of all objections to the
introduction of such affidavit, or of the parts thereof with respect to
which no such objection was so served, on the ground that it is in the
form of an affidavit, or that it constitutes or contains hearsay
evidence, or that it is not, or contains matters which are not, the best
evidence, but any and all other objections may be made at the hearing.
Nothing herein contained shall prevent the cross-examination of the
affiant if he is present in obedience to a subpoena or otherwise and if
he is present, he may be called for cross-examination during the case of
the party who introduced the affidavit in evidence. If the affidavit is
admissible in part only it shall be admitted as to such part, without the
necessity of preparing a new affidavit. The manner of service of such
affidavit and of such objection shall be by delivering or mailing copies
thereof to the attorneys of record of the parties being served, if any,
otherwise, to such parties, and service shall be deemed complete upon
mailing; provided, however, that when the parties are so numerous as to
make service of copies of the affidavit on all of them unduly onerous,
the agency may make an order specifying on what parties service of copies
of such affidavit shall be made, and in that case a copy of such
affidavit shall be filed with the agency and kept available for
inspection and copying. Nothing in this subdivision shall prevent any use
of affidavits that would be proper in the absence of this subdivision.
(L. 1945 p. 1504 §§ 7, 8, A.L. 1957 p. 748 § 536.080, A.L. 1978 S.B. 661)

1. In any contested case before an agency created by the
constitution or state statute, any party may take and use depositions in
the same manner, upon and under the same conditions, and upon the same
notice, as is or may hereafter be provided for with respect to the taking
and using of depositions in civil actions in the circuit court; provided,
that any commission which may be required shall be sued out of the
circuit court or the office of the clerk thereof, within and for the
county where the headquarters of the agency is located or where the
hearing is to be held; and provided further, that no commissioner shall
be appointed for the taking in this state of depositions.

2. In addition to the powers granted in subsection 1 of this section, any
agency authorized to hear a contested case may make rules to provide that
the parties may obtain all or any designated part of the same discovery
that any Missouri supreme court rule provides for civil actions in
circuit court. The agency may enforce discovery by the same methods,
terms and conditions as provided by supreme court rule in civil actions
in the circuit court. Except as otherwise provided by law, no agency
discovery order which:

(1) Requires a physical or mental examination;

(2) Permits entrance upon land or inspection of property without
permission of the owner; or

(3) Purports to hold any person in contempt; shall be enforceable except
upon order of the circuit court of the county in which the hearing will
be held or the circuit court of Cole County at the option of the person
seeking enforcement, after notice and hearing.

3. The administrative hearing commission shall adopt rules providing for
informal disposition of a contested case by stipulation, consent order,
agreed settlement or by disposition in the nature of default judgment,
judgment on the pleadings, or summary judgment. No such rules shall be
made by the administrative hearing commission under this provision except
in accordance with section 536.021 and after a public hearing.

4. No rule or portion of a rule promulgated under the authority of this
chapter shall become effective until it has been approved by the joint
committee on administrative rules in accordance with the procedures
provided herein, and the delegation of the legislative authority to enact
law by the adoption of such rules is dependent upon the power of the
joint committee on administrative rules to review and suspend rules
pending ratification by the senate and the house of representatives as
provided herein.

5. Upon filing any proposed rule with the secretary of state, the filing
agency shall concurrently submit such proposed rule to the committee,
which may hold hearings upon any proposed rule or portion thereof at any
time.

6. A final order of rulemaking shall not be filed with the secretary of
state until thirty days after such final order of rulemaking has been
received by the committee except as provided in this subsection. The
committee may hold one or more hearings upon such final order of
rulemaking during the thirty-day period. If the committee does not
disapprove such order of rulemaking within the thirty-day period, the
filing agency may file such order of rulemaking with the secretary of
state and the order of rulemaking shall be deemed approved. Contrary
provisions of the law notwithstanding, if the committee approves a
proposed rule prior to the expiration of the period for review, it shall
notify the filing agency and the secretary of state at which point the
final order of rulemaking may be filed.

7. The committee may, by majority vote of the members, suspend the order
of rulemaking or portion thereof by action taken prior to the filing of
the final order of rulemaking only for one or more of the following
grounds:

(1) An absence of statutory authority for the proposed rule;

(2) An emergency relating to public health, safety or welfare;

(3) The proposed rule is in conflict with state law;

(4) A substantial change in circumstance since enactment of the law upon
which the proposed rule is based;

(5) The proposed rule is arbitrary and capricious.

8. If the committee disapproves any rule or portion thereof, the filing
agency shall not file such disapproved portion of any rule with the
secretary of state and the secretary of state shall not publish in the
Missouri Register any final order of rulemaking containing the
disapproved portion.

9. If the committee disapproves any rule or portion thereof, the
committee shall report its findings to the senate and the house of
representatives. No rule or portion thereof disapproved by the committee
shall take effect so long as the senate and the house of representatives
ratify the act of the joint committee by resolution adopted in each house
within thirty legislative days after such rule or portion thereof has
been disapproved by the joint committee.

10. Upon adoption of a rule as provided herein, any such rule or portion
thereof may be suspended or revoked by the general assembly either by
bill or, pursuant to section 8, article IV of the constitution, by
concurrent resolution upon recommendation of the joint committee on
administrative rules. The committee shall be authorized to hold hearings
and make recommendations pursuant to the provisions of section 536.037.
The secretary of state shall publish in the Missouri Register, as soon as
practicable, notice of the suspension or revocation. (L. 1957 p. 748,
A.L. 1985 S.B. 5, et al., A.L. 1989 H.B. 143, A.L. 1995 S.B. 3)

CROSS REFERENCE: Workers' compensation cases, this section not deemed to
govern discovery between parties, RSMo 287.811

(1998) Administrative agencies created by home rule charter cities are
not agencies created by the constitution or statute and the
administrative procedure act does not apply. State ex rel. Young v. City
of St. Charles, 977 S.W.2d 503 (Mo.banc).

In any proceeding before the administrative hearing commission,
where a party to the proceeding moves for sanctions for an alleged
violation of any discovery rule, the moving party shall in the motion
certify that reasonable efforts were made to resolve the dispute
informally with the opposing party. (L. 1989 S.B. 127, et al. § 3)

In any contested case before an agency created by the
constitution or state statute, such agency shall upon request of any
party issue subpoenas and shall in a proper case issue subpoenas duces
tecum. Subpoenas other than subpoenas duces tecum shall on request of any
party be issued with the caption and number of the case, the name of the
witness, and the date for appearance in blank, but such caption, number,
name and date shall be filled in by such party before service. Subpoenas
shall extend to all parts of the state, and shall be served and returned
as in civil actions in the circuit court. The witness shall be entitled
to the same fees and, if compelled to travel more than forty miles from
his place of residence, shall be entitled to the same tender of fees for
travel and attendance, and at the same time, as is now or may hereafter
be provided for witnesses in civil actions in the circuit court, such
fees to be paid by the party or agency subpoenaing him, except where the
payment of such fees is otherwise provided for by law. The agency or the
party at whose request the subpoena is issued shall enforce subpoenas by
applying to a judge of the circuit court of the county of the hearing or
of any county where the witness resides or may be found for an order upon
any witness who shall fail to obey a subpoena to show cause why such
subpoena should not be enforced, which said order and a copy of the
application therefor shall be served upon the witness in the same manner
as a summons in a civil action, and if the said circuit court shall,
after a hearing, determine that the subpoena should be sustained and
enforced, said court shall proceed to enforce said subpoena in the same
manner as though said subpoena had been issued in a civil case in the
circuit court. The court shall permit the agency and any party to
intervene in the enforcement action. Any such agency may delegate to any
member, officer, or employee thereof the power to issue subpoenas in
contested cases; provided that, except where otherwise authorized by law,
subpoenas duces tecum shall be issued only by order of the agency or a
member thereof. (L. 1957 p. 748 § 536.070, A.L. 2003 H.B. 141 merged with
H.B. 613)

1. In contested cases each party shall be entitled to present
oral arguments or written briefs at or after the hearing which shall be
heard or read by each official of the agency who renders or joins in
rendering the final decision.

2. In contested cases, each official of an agency who renders or joins in
rendering a final decision shall, prior to such final decision, either
hear all the evidence, read the full record including all the evidence,
or personally consider the portions of the record cited or referred to in
the arguments or briefs. The parties to a contested case may by written
stipulation or by oral stipulation in the record at a hearing waive
compliance with the provisions of this section. (L. 1945 p. 1504 § 8,
A.L. 1957 p. 748 § 536.083)

(1976) Where member of commission had assumed office after conclusion of
all hearings and did not participate in the decision which was certified
by the participating members, but did participate in order denying
application for rehearing to which no certification was attached, trial
court was directed to modify its "order of remand" to allow the
commissioner ten days to certify that he had complied with this section
at the time of denial of the motion for rehearing. Absent such
certification, remand for reconsideration should follow. State ex rel.
Jackson County v. Public Service Commission (Mo.), 532 S.W.2d 20.

Notwithstanding any other provision of law to the contrary, in
any administrative hearing conducted under the procedures established in
this chapter, and in any other administrative hearing conducted under
authority granted any state agency, no person who acted as a hearing
officer or who otherwise conducted the first administrative hearing
involving any single issue shall conduct any subsequent administrative
rehearing or appeal involving the same issue and same parties. (L. 1989
H.B. 143 § 3)

As used in section 536.087, the following terms mean:

(1) "Agency proceeding", an adversary proceeding in a contested case
pursuant to this chapter in which the state is represented by counsel,
but does not include proceedings for determining the eligibility or
entitlement of an individual to a monetary benefit or its equivalent,
child custody proceedings, eminent domain proceedings, driver's license
proceedings, vehicle registration proceedings, proceedings to establish
or fix a rate, or proceedings before the state tax commission;

(2) "Party":

(a) An individual whose net worth did not exceed two million dollars at
the time the civil action or agency proceeding was initiated; or

(b) Any owner of an unincorporated business or any partnership,
corporation, association, unit of local government or organization, the
net worth of which did not exceed seven million dollars at the time the
civil action or agency proceeding was initiated, and which had not more
than five hundred employees at the time the civil action or agency
proceeding was initiated;

(3) "Prevails", obtains a favorable order, decision, judgment, or
dismissal in a civil action or agency proceeding;

(4) "Reasonable fees and expenses" includes the reasonable expenses of
expert witnesses, the reasonable cost of any study, analysis, engineering
report, test, or project which is found by the court or agency to be
necessary for the preparation of the party's case, and reasonable
attorney or agent fees. The amount of fees awarded as reasonable fees and
expenses shall be based upon prevailing market rates for the kind and
quality of the services furnished, except that no expert witness shall be
compensated at a rate in excess of the highest rate of compensation for
expert witnesses paid by the state in the type of civil action or agency
proceeding, and attorney fees shall not be awarded in excess of
seventy-five dollars per hour unless the court determines that a special
factor, such as the limited availability of qualified attorneys for the
proceedings involved, justifies a higher fee;

(5) "State", the state of Missouri, its officers and its agencies, but
shall not include political subdivisions of the state. (L. 1989 H.B. 143
§ 4)

1. A party who prevails in an agency proceeding or civil action
arising therefrom, brought by or against the state, shall be awarded
those reasonable fees and expenses incurred by that party in the civil
action or agency proceeding, unless the court or agency finds that the
position of the state was substantially justified or that special
circumstances make an award unjust.

2. In awarding reasonable fees and expenses under this section to a party
who prevails in any action for judicial review of an agency proceeding,
the court shall include in that award reasonable fees and expenses
incurred during such agency proceeding unless the court finds that during
such agency proceeding the position of the state was substantially
justified, or that special circumstances make an award unjust.

3. A party seeking an award of fees and other expenses shall, within
thirty days of a final disposition in an agency proceeding or final
judgment in a civil action, submit to the court, agency or commission
which rendered the final disposition or judgment an application which
shows that the party is a prevailing party and is eligible to receive an
award under this section, and the amount sought, including an itemized
statement from any attorney or expert witness representing or appearing
in behalf of the party stating the actual time expended and the rate at
which fees and other expenses are computed. The party shall also allege
that the position of the state was not substantially justified. The fact
that the state has lost the agency proceeding or civil action creates no
legal presumption that its position was not substantially justified.
Whether or not the position of the state was substantially justified
shall be determined on the basis of the record (including the record with
respect to the action or failure to act by an agency upon which a civil
action is based) which is made in the agency proceeding or civil action
for which fees and other expenses are sought, and on the basis of the
record of any hearing the court or agency deems appropriate to determine
whether an award of reasonable fees and expenses should be made, provided
that any such hearing shall be limited to consideration of matters which
affected the agency's decision leading to the position at issue in the
fee application.

4. A prevailing party in an agency proceeding shall submit an application
for fees and expenses to the administrative body before which the party
prevailed. A prevailing party in a civil action on appeal from an agency
proceeding shall submit an application for fees and expenses to the
court. The filing of an application shall not stay the time for appealing
the merits of a case. When the state appeals the underlying merits of an
adversary proceeding, no decision on the application for fees and other
expenses in connection with that adversary proceeding shall be made under
this section until a final and unreviewable decision is rendered by the
court on the appeal or until the underlying merits of the case have been
finally determined pursuant to the appeal.

5. The court or agency may either reduce the amount to be awarded or deny
any award, to the extent that the prevailing party during the course of
the proceedings engaged in conduct which unduly and unreasonably
protracted the final resolution of the matter in controversy.

6. The decision of a court or an agency on the application for reasonable
fees and expenses shall be in writing, separate from the judgment or
order of the court or the administrative decision which determined the
prevailing party, and shall include written findings and conclusions and
the reason or basis therefor. The decision of a court or an agency on the
application for fees and other expenses shall be final, subject
respectively to appeal or judicial review.

7. If a party or the state is dissatisfied with a determination of fees
and other expenses made in an agency proceeding, that party or the state
may within thirty days after the determination is made, seek judicial
review of that determination from the court having jurisdiction to review
the merits of the underlying decision of the agency adversary proceeding.
If a party or the state is dissatisfied with a determination of fees and
other expenses made in a civil action arising from an agency proceeding,
that party or the state may, within the time permitted by law, appeal
that order or judgment to the appellate court having jurisdiction to
review the merits of that order or judgment. The reviewing or appellate
court's determination on any judicial review or appeal heard under this
subsection shall be based solely on the record made before the agency or
court below. The court may modify, reverse or reverse and remand the
determination of fees and other expenses if the court finds that the
award or failure to make an award of fees and other expenses, or the
calculation of the amount of the award, was arbitrary and capricious, was
unreasonable, was unsupported by competent and substantial evidence, or
was made contrary to law or in excess of the court's or agency's
jurisdiction. Awards made pursuant to this act* shall be payable from
amounts appropriated therefor. The state agency against which the award
was made shall request an appropriation to pay the award. (L. 1989 H.B.
143 § 5)

*"This act" (H.B. 143, 1989) contains numerous sections. Consult
Disposition of Sections table for definitive listing.

(1998) This section supersedes prior case law whereby wrongfully
dismissed state employees could increase back pay awards by amount of
attorney fees and expenses incurred in obtaining reinstatement in certain
cases. McGhee v. Dixon, 973 S.W.2d 847 (Mo.banc).

(1999) Application of section granting Supreme Court original appellate
jurisdiction over appeal from administrative denial of taxpayer's request
for fees and expenses in state tax proceeding was unconstitutional.
Greenbriar Hills Country Club v. Director of Revenue, 2 S.W.3d 798
(Mo.banc).

Every decision and order in a contested case shall be in
writing, and, except in default cases or cases disposed of by
stipulation, consent order or agreed settlement, the decision, including
orders refusing licenses, shall include or be accompanied by findings of
fact and conclusions of law. The findings of fact shall be stated
separately from the conclusions of law and shall include a concise
statement of the findings on which the agency bases its order.
Immediately upon deciding any contested case the agency shall give
written notice of its decision by delivering or mailing such notice to
each party, or his attorney of record, and shall upon request furnish him
with a copy of the decision, order, and findings of fact and conclusions
of law. (L. 1945 p. 1504 § 9, A.L. 1957 p. 748 § 536.086)

(1969) Specific procedures for notice under the liquor control law
supersede the procedures in the general administrative procedure law
where a violation of the liquor control law is alleged. State ex rel.
Zimmerman v. Moran (Mo.), 439 S.W.2d 503.

(1972) Where the tax commission's findings of fact was a mere statement
of the chronology of events that transpired and did not advise the
parties or the court of the factual basis upon which the commission
reached its conclusion and order, it did not provide basis for review and
circuit court's order remanding case for appropriate findings was proper
and was not a final appealable order. Iron County v. State Tax Commission
(Mo.), 480 S.W.2d 65.

In any hearing in a contested case before an agency created by
the constitution or state statute if any person acts or refuses to act in
such manner that a contempt of court would have been committed if the
case were a civil action before a circuit court, the agency in addition
to any other powers it may have by law may apply to a judge of the
circuit court of the county of the hearing or of any county where such
person resides or may be found, for an order on any such person to show
cause why he should not be punished as for contempt, which order and copy
of the application therefor shall be served upon the person in the same
manner as a summons in a civil action. Thereafter the same proceedings
shall be had in such court as in cases of contempt of a circuit court.
(L. 1957 p. 748 § 536.076)

Any person who has exhausted all administrative remedies
provided by law and who is aggrieved by a final decision in a contested
case, whether such decision is affirmative or negative in form, shall be
entitled to judicial review thereof, as provided in sections 536.100 to
536.140, unless some other provision for judicial review is provided by
statute; provided, however, that nothing in this chapter contained shall
prevent any person from attacking any void order of an agency at any time
or in any manner that would be proper in the absence of this section. If
the agency, other than the administrative hearing commission or any board
established to provide independent review of the decisions of a
department or division that is authorized to promulgate rules and
regulations under this chapter, fails to issue a final decision in a
contested case within the earlier of:

(1) Sixty days after the conclusion of a hearing on the contested case; or

(2) One hundred eighty days after the receipt by the agency of a written
request for the issuance of a final decision,

then the person shall be considered to have exhausted all administrative
remedies and shall be considered to have received a final decision in
favor of the agency and shall be entitled to immediate judicial review as
provided in sections 536.100 to 536.140 or other provision for judicial
review provided by statute. (L. 1945 p. 1504 § 10, A.L. 2005 H.B. 576)

(1972) Petitioners who alleged only that they were tenants in the
building complex and that their interests would be injured if certain of
the buildings were secured with steelplating and fencing as ordered by
Board of Building Appeals but did not allege they, or any they
represented, actually lived in the affected buildings, or would be
evicted if the board's decision were carried out, were not "aggrieved"
within the meaning of this section. State ex rel. Pruitt-Igoe District
Community Corp. v. Burks (A.), 482 S.W.2d 75.

(1980) Order of State Tax Commission that county board of equalization
implement plans for equal division of real property assessment in county
was not reviewable as contested case under statute governing entitlement
of party aggrieved to judicial review. State ex rel. Commissioners v.
Schneider (Mo.), 609 S.W.2d 149.

(1980) Sales tax law established mandatory procedure for the assessment
of sales tax and state has no right to commence an action for taxes due
and payable until this procedure is exhausted, including administrative
and judicial review. Excel Drug Co. Inc. v. Mo. Dept. of Revenue (Mo.),
609 S.W.2d 404.

1. Proceedings for review may be instituted by filing a petition
in the circuit court of the county of proper venue within thirty days
after the mailing or delivery of the notice of the agency's final
decision.

2. Such petition may be filed without first seeking a rehearing, but in
cases where agencies have authority to entertain motions for rehearing
and such a motion is duly filed, the thirty-day period aforesaid shall
run from the date of the delivery or mailing of notice of the agency's
decision on such motion. No summons shall issue in such case, but copies
of the petition shall be delivered to the agency and to each party of
record in the proceedings before the agency or to his attorney of record,
or shall be mailed to the agency and to such party or his said attorney
by registered mail, and proof of such delivery or mailing shall be filed
in the case.

3. The venue of such cases shall, at the option of the plaintiff, be in
the circuit court of Cole County or in the county of the plaintiff or of
one of the plaintiff's residence or if any plaintiff is a corporation,
domestic or foreign, having a registered office or business office in
this state, in the county of such registered office or business office,
except that, in cases involving real property or improvements thereto,
the venue shall be the circuit court of the county where such real
property is located. The court in its discretion may permit other
interested persons to intervene. (L. 1945 p. 1504 § 10, A.L. 1953 p. 679,
A.L. 1978 H.B. 1634, A.L. 2003 S.B. 357)

(1969) Sections 64.660, 536.100, and this section are in pari materia.
State ex rel. Day v. County Court of Platte County (A.), 442 S.W.2d 178.

(1970) This section does not apply to agencies which have their own
separate review provision in their own special statute. Brogoto v.
Wiggins (Mo.), 458 S.W.2d 317.

(1971) Circuit court of city of St. Louis had jurisdiction of appeal from
order of air pollution appeal board of St. Louis County where counsel of
appeal board waived any objection as to venue and plaintiff appellant
corporation's registered business office was in St. Louis City and county
ordinance provided that decision of the board could be appealed to the
circuit court under the provisions of chapter 536, RSMo. State ex rel.
Union Electric Co. v. Scott (A.), 470 S.W.2d 1.

(1977) Held, court rule 100.04 does not conflict with this section and
appeal from personnel advisory board may properly be taken to the circuit
court of Cole County. Mills v. Federal Soldiers' Home (Mo.), 549 S.W.2d
862.

(1979) Mandamus was remedy when city council denied a liquor license
under a municipal code when all conditions were met and was not a
"contested" case. State ex rel. Keeven v. City of Hazelwood, et al. (A.),
585 S.W.2d 557.

(1980) Time limits for seeking judicial review of an agency's final
decision where service is by mail may not be extended under civil rule
allowing three additional days where service is by mail; statutory time
period is jurisdictional. R.B. Industries, Inc. v. Goldberg (Mo.), 601
S.W.2d 5.

(1980) Thirty-day period for seeking judicial review of decision of
director of revenue issuing additional rules and use tax assessment began
to run on date of mailing of order and period not extended under civil
rule adding three additional days to length of prescribed period if
notice is served by mail. R.B. Industries, Inc. v. Goldberg (Mo.), 601
S.W.2d 5.

(1984) Medicaid disallowance by department, petition filed in circuit
court not designated by statute. Subject-matter jurisdiction cannot be
conferred or waived by parties. (Mo.App.E.D.) Health Enterprises v. Dept.
of Soc. Services, 668 S.W.2d 185.

Pending the filing and final disposition of proceedings for
review under sections 536.100 to 536.140, the agency may stay the
enforcement of its order and may temporarily grant or extend relief
denied or withheld. Any court in which such proceedings for review may be
pending may issue all necessary and appropriate process to stay or
require the agency to stay the enforcement of its order or temporarily to
grant or extend or require the agency temporarily to grant or extend
relief denied or withheld, pending the final disposition of such
proceedings for review. Such stay or other temporary relief by a
reviewing court may be conditioned upon such terms as shall appear to the
court to be proper. No such stay or temporary relief shall be granted by
a reviewing court without notice, except in cases of threatened
irreparable injury; and when in any case a stay or other temporary relief
is granted without notice the court shall then make an order, of which
due notice shall be given, setting the matter down for hearing as
promptly as possible on the question whether such stay or other temporary
relief shall be continued in effect. No such stay or other temporary
relief shall be granted or continued unless the court is satisfied that
the public interest will not be prejudiced thereby. (L. 1945 p. 1504 § 10)

1. Within thirty days after the filing of the petition or within
such further time as the court may allow, the record before the agency
shall be filed in the reviewing court. Such record shall consist of any
one of the following:

(1) Such parts of the record, proceedings and evidence before the agency
as the parties by written stipulation may agree upon;

(2) An agreed statement of the case, agreed to by all parties and
approved as correct by the agency;

(3) A complete transcript of the entire record, proceedings and evidence
before the agency. Evidence may be stated in either question and answer
or narrative form. Documents may be abridged by omitting irrelevant and
formal parts thereof. Any matter not essential to the decision of the
questions presented by the petition may be omitted. The decision, order
and findings of fact and conclusions of law shall in every case be
included.

2. The record filed in the reviewing court shall be properly certified by
the agency, and shall be typewritten, mimeographed, printed, or otherwise
suitably reproduced. In any case where papers, documents or exhibits are
to be made a part of the record in the reviewing court, the originals of
all or any part thereof, or photostatic or other copies which may have
been substituted therefor, may, if the agency permits, be sent to the
reviewing court instead of having the same copied into the record.

3. In any case where any party fails or refuses to agree to the
correctness of a record, the agency shall decide as to its correctness
and certify the record accordingly. If any party shall be put to
additional expense by reason of the failure of another party to agree to
a proper shortening of the record, the court may tax the amount of such
additional expense against the offending party as costs.

4. The record to be filed in the reviewing court shall be filed by the
plaintiff, or at the request of the plaintiff shall be transmitted by the
agency directly to the clerk of the reviewing court and by him filed;
provided, that when original documents are to be sent to the reviewing
court they shall be transmitted by the agency directly, as aforesaid. The
court may require or permit subsequent corrections of or additions to the
record. (L. 1945 p. 1504 § 10)

1. The court shall hear the case without a jury and, except as
otherwise provided in subsection 4 of this section, shall hear it upon
the petition and record filed as aforesaid.

2. The inquiry may extend to a determination of whether the action of the
agency

(1) Is in violation of constitutional provisions;

(2) Is in excess of the statutory authority or jurisdiction of the agency;

(3) Is unsupported by competent and substantial evidence upon the whole
record;

(4) Is, for any other reason, unauthorized by law;

(5) Is made upon unlawful procedure or without a fair trial;

(6) Is arbitrary, capricious or unreasonable;

(7) Involves an abuse of discretion.

The scope of judicial review in all contested cases, whether or not
subject to judicial review pursuant to sections 536.100 to 536.140, and
in all cases in which judicial review of decisions of administrative
officers or bodies, whether state or local, is now or may hereafter be
provided by law, shall in all cases be at least as broad as the scope of
judicial review provided for in this subsection; provided, however, that
nothing herein contained shall in any way change or affect the provisions
of sections 311.690* and 311.700*, RSMo.

3. Whenever the action of the agency being reviewed does not involve the
exercise by the agency of administrative discretion in the light of the
facts, but involves only the application by the agency of the law to the
facts, the court may upon application of any party conduct a de novo
review of the agency decision.

4. Wherever under subsection 3 of this section or otherwise the court is
entitled to weigh the evidence and determine the facts for itself, the
court may hear and consider additional evidence if the court finds that
such evidence in the exercise of reasonable diligence could not have been
produced or was improperly excluded at the hearing before the agency.
Wherever the court is not entitled to weigh the evidence and determine
the facts for itself, if the court finds that there is competent and
material evidence which, in the exercise of reasonable diligence, could
not have been produced or was improperly excluded at the hearing before
the agency, the court may remand the case to the agency with directions
to reconsider the same in the light of such evidence. The court may in
any case hear and consider evidence of alleged irregularities in
procedure or of unfairness by the agency, not shown in the record.

5. The court shall render judgment affirming, reversing, or modifying the
agency's order, and may order the reconsideration of the case in the
light of the court's opinion and judgment, and may order the agency to
take such further action as it may be proper to require; but the court
shall not substitute its discretion for discretion legally vested in the
agency, unless the court determines that the agency decision was
arbitrary or capricious.

6. Appeals may be taken from the judgment of the court as in other civil
cases. (L. 1945 p. 1504 § 10, A.L. 1953 p. 679, A.L. 2005 H.B. 576)

*Sections 311.690 and 311.700 were repealed by S.B. 661, 1978.

(1974) Duty of reviewing court set out in detail. Hanebrink v. Parker
(A.), 506 S.W.2d 455.

(1999) Given lack of authority of Administrative Hearing Commission to
determine constitutionality of liquor control regulation, review by the
Supreme Court is only of the circuit court's judgment. Cocktail Fortune,
Inc. v. Supervisor of Liquor Control, 994 S.W.2d 955 (Mo.banc).

(2004) Reviewing court must look to the whole record involving an
administrative agency's decision, and not merely that evidence supporting
its decision. Lagud v. Kansas City Board of Police Commissioners, 136
S.W.3d 786 (Mo.banc).

1. When any administrative officer or body existing under the
constitution or by statute or by municipal charter or ordinance shall
have rendered a decision which is not subject to administrative review,
determining the legal rights, duties or privileges of any person,
including the denial or revocation of a license, and there is no other
provision for judicial inquiry into or review of such decision, such
decision may be reviewed by suit for injunction, certiorari, mandamus,
prohibition or other appropriate action, and in any such review
proceeding the court may determine the facts relevant to the question
whether such person at the time of such decision was subject to such
legal duty, or had such right, or was entitled to such privilege, and may
hear such evidence on such question as may be properly adduced, and the
court may determine whether such decision, in view of the facts as they
appear to the court, is unconstitutional, unlawful, unreasonable,
arbitrary, or capricious or involves an abuse of discretion; and the
court shall render judgment accordingly, and may order the administrative
officer or body to take such further action as it may be proper to
require; but the court shall not substitute its discretion for discretion
legally vested in such administrative officer or body, and in cases where
the granting or withholding of a privilege is committed by law to the
sole discretion of such administrative officer or body, such discretion
lawfully exercised shall not be disturbed.

2. Nothing in this section shall apply to contested cases reviewable
pursuant to sections 536.100 to 536.140.

3. Nothing in this section shall be construed to impair any power to take
summary action lawfully vested in any such administrative officer or
body, or to limit the jurisdiction of any court or the scope of any
remedy available in the absence of this section. (L. 1953 p. 678 §§ 1, 2,
3)

(1972) Where county ordinance provided no appeal from ruling of Board of
Building Appeals, relator was entitled to writ of certiorari to compel
the board to certify a sufficiently complete record of proceedings of
basis leading to board's decision including name and identity of
witnesses and at least a summary of their testimony. State ex rel. Walmar
Investment Co. v. Armstrong (A.), 477 S.W.2d 730.

(1975) School district has no right to appeal decision of county board of
equalization. State ex rel. St. Francois County School Dist. R-III v.
Lalumondier (Mo.), 518 S.W.2d 638.

(1979) Mandamus was remedy when city council denied a liquor license
under a municipal code when all conditions were met and was not a
"contested" case. State ex rel. Keeven v. City of Hazelwood, et al. (A.),
585 S.W.2d 557.

In the event a reviewing court reverses a decision of a state
agency, remands the matter to the agency for further proceedings and
orders the payment into court of any increase in funds authorized by said
decision, and thereafter, on remand, the state agency reaches the same
result, reaffirms or ratifies its prior decision, then the entity which
paid such funds into court shall be entitled to a refund of such funds,
including all interest accrued thereon. This provision is enacted in part
to clarify and specify the law in existence prior to August 28, 2001. (L.
2001 S.B. 267)

1. Any state agency filing a notice of proposed rulemaking, as
required by section 536.021, wherein the adoption, amendment, or
rescission of the rule would require or result in an expenditure of
public funds by or a reduction of public revenues for that agency or any
other state agency of the state government or any political subdivision
thereof including counties, cities, towns, and villages, and school,
road, drainage, sewer, water, levee, or any other special purpose
district which is estimated to cost more than five hundred dollars in the
aggregate to any such agency or political subdivision, shall at the time
of filing the notice with the secretary of state file a fiscal note
estimating the cost to each affected agency or to each class of the
various political subdivisions to be affected. The fiscal note shall
contain a detailed estimated cost of compliance and shall be supported
with an affidavit by the director of the department to which the agency
belongs that in the director's opinion the estimate is reasonably
accurate. If no fiscal note is filed, the director of the department to
which the agency belongs shall file an affidavit which states that the
proposed change will cost less than five hundred dollars in the aggregate
to all such agencies and political subdivisions.

2. If at the end of the first full fiscal year after the implementation
of the rule, amendment, or rescission the cost to all affected entities
has exceeded by ten percent or more the estimated cost in the fiscal note
or has exceeded five hundred dollars if an affidavit has been filed
stating the proposed change will cost less than five hundred dollars, the
original estimated cost together with the actual cost during the first
fiscal year shall be published by the adopting agency in the Missouri
Register within ninety days after the close of the fiscal year. Such
costs shall be determined by the adopting agency. If the adopting agency
fails to publish such costs as required by this section, the rule,
amendment, or rescission shall be void and of no further force or effect.

3. The estimated cost in the aggregate shall be published in the Missouri
Register contemporary with and adjacent to the notice of proposed
rulemaking, and failure to do so shall render any rule promulgated
thereunder void and of no force or effect.

4. Any challenge to a rule based on failure to meet the requirements of
this section shall be commenced within five years after the effective
date of the rule.

5. In the event that any rule published prior to June 3, 1994, shall have
failed to provide a fiscal note as required by this section, such agency
shall publish the required fiscal note cross-referenced to the applicable
rule prior to August 28, 1995, and in that event the rule shall not be
void. Any such rule shall be deemed to have met the requirements of this
section until that date. (L. 1978 S.B. 721 § 1, A.L. 1989 H.B. 143, A.L.
1994 S.B. 558)

Effective 6-3-94

1. Any state agency filing a notice of proposed rulemaking, as
required by section 536.021, whereby the adoption, amendment, or
rescission of the rule would require an expenditure of money by or a
reduction in income for any person, firm, corporation, association,
partnership, proprietorship or business entity of any kind or character
which is estimated to cost more than five hundred dollars in the
aggregate, shall at the time of filing the notice with the secretary of
state file a fiscal note containing the following information and
estimates of cost:

(1) An estimate of the number of persons, firms, corporations,
associations, partnerships, proprietorships or business entities of any
kind or character by class which would likely be affected by the adoption
of the proposed rule, amendment or rescission of a rule;

(2) A classification by types of the business entities in such manner as
to give reasonable notice of the number and kind of businesses which
would likely be affected;

(3) An estimate in the aggregate as to the cost of compliance with the
rule, amendment or rescission of a rule by the affected persons, firms,
corporations, associations, partnerships, proprietorships or business
entities of any kind or character.

2. The fiscal note shall be published in the Missouri Register
contemporary with and adjacent to the notice of proposed rulemaking, and
failure to do so shall render any rule promulgated thereunder void and of
no force and effect.

3. Any challenge to a rule based on failure to meet the requirements of
this section shall be commenced no later than five years after the
effective date of the rule.

4. In the event that any rule published prior to June 3, 1994, shall have
failed to provide a fiscal note as required by this section, such agency
shall publish the required fiscal note prior to August 28, 1995, and in
that event the rule shall not be void. Any such rule shall be deemed to
have met the requirements of this section until that date. (L. 1978 S.B.
721 § 2, A.L. 1994 S.B. 558)

Effective 6-3-94

(1994) Administrative rules adopted by air conservation commission which
did not comply with statute's requirements for fiscal notes, estimating
cost of compliance to private entities, to be published in Missouri
Register contemporarily with, and adjacent to, notices of proposed
rulemaking were void. Mo. Hosp. Assn. v. Air Conservation Commission, 874
S.W.2d 380 (Mo. App. W.D.).

The secretary of state shall establish a form which each state
agency shall use in compiling the fiscal note and affidavit required by
sections 536.200, 536.205 and 536.215, and failure of the agency to use
said forms shall result in rejection by the secretary of state. (L. 1978
S.B. 721 § 3)

If before the effective date, such rule, amendment or rescission
is altered to the extent that the cost or reduction in income is changed
by more than ten percent, then a new fiscal note and affidavit shall be
filed with the order of rulemaking and the new estimated cost shall be
published in the Missouri Register. (L. 1978 S.B. 721 § 4)

1. Prior to submitting proposed rules for adoption, amendment,
revision, or repeal, under this chapter the state agency shall determine
whether the proposed rulemaking affects small businesses and, if so, the
availability and practicability of less-restrictive alternatives that
could be implemented to achieve the same results of the proposed
rulemaking. This requirement shall not apply to emergency rulemaking
pursuant to section 536.025 or to constitutionally authorized rulemaking
pursuant to article IV, section 45 of the Missouri Constitution. This
requirement shall be in addition to the fiscal note requirement of
sections 536.200 to 536.210.

2. If the proposed rules affect small businesses, the state agency shall
consider creative, innovative, or flexible methods of compliance for
small business and prepare a small business impact statement to be
submitted to the secretary of state and the joint committee on
administrative rules with the proposed rules. A copy of the proposed
rules and the small business impact statement shall also be filed with
the board on the same date as they are filed with the secretary of state.
Such business impact statement and proposed rules shall be submitted to
the board prior to providing notice for a public hearing. The statement
shall provide a reasonable determination of the following:

(1) The methods the agency considered or used to reduce the impact on
small businesses such as consolidation, simplification, differing
compliance, or reporting requirements, less stringent deadlines,
performance rather than design standards, exemption, or any other
mitigating techniques;

(2) How the agency involved small businesses in the development of the
proposed rules;

(3) The probable monetary costs and benefits to the implementing agency
and other agencies directly affected, including the estimated total
amount the agency expects to collect from any additionally imposed fees
and the manner in which the moneys will be used, if such costs are
capable of determination;

(4) A description of the small businesses that will be required to comply
with the proposed rules and how they may be adversely affected, except in
cases where the state agency has filed a fiscal note that complies with
all of the provisions of section 536.205;

(5) In dollar amounts, the increase in the level of direct costs, such as
fees or administrative penalties, and indirect costs, such as reporting,
record keeping, equipment, construction, labor, professional services,
revenue loss, or other costs associated with compliance if such costs are
capable of determination, except in cases where the state agency has
filed a fiscal note that complies with all of the provisions of section
536.205;

(6) The business that will be directly affected by, bear the cost of, or
directly benefit from the proposed rules;

(7) Whether the proposed rules include provisions that are more stringent
than those mandated by any comparable or related federal, state, or
county standards, with an explanation of the reason for imposing the
more-stringent standard.

3. Any proposed rule that is required to have a small business impact
statement but does not include such a statement shall be invalid and the
secretary of state should not publish the rule until such time as the
statement is provided. If the state agency determines that its proposed
rule does not affect small business, the state agency shall so certify
this finding in the transmittal letter to the secretary of state, stating
that it has determined that such proposed rule will not have an economic
impact on small businesses and the secretary of state shall publish the
rule.

4. Sections 536.300 to 536.310 shall not apply where the proposed rule is
being promulgated on an emergency basis, where the rule is federally
mandated, or where the rule substantially codifies existing federal or
state law. Notwithstanding the provisions of this section, federally
mandated regulations are subject to the federal Regulatory Flexibility
Act as amended by the Small Business Regulatory and Enforcement Fairness
Act of 1996, P.L. 96-354, as amended by P.L. 104.121. Any federally
mandated regulations that do not comply with these acts shall be subject
to this section. (L. 2004 H.B. 978, A.L. 2005 H.B. 576)

1. For any proposed rules that affect small business, the agency
shall also submit a small business statement to the board after a public
hearing is held. This section shall not apply to emergency rules. The
small business statement required by this section shall provide the
following information:

(1) A description of how the opinions or comments from affected small
businesses were solicited;

(2) A summary of the public and small business comments;

(3) A summary of the agency's response to those comments; and

(4) The number of persons who attended the public hearing, testified at
the hearing, and submitted written comments.

2. If a request to change the proposed rule was made at the hearing in a
way that affected small business, a statement of the reasons for adopting
the proposed rule without the requested change shall be included in the
small business statement. (L. 2005 H.B. 576)

1. There is hereby established the "Small Business Regulatory
Fairness Board". The department of economic development shall provide
staff support for the board.

2. The board shall be composed of nine members appointed in the following
manner:

(1) One member who is the chair of the minority business advocacy
commission;

(2) One member appointed by the president pro tempore of the senate;

(3) One member appointed by the minority leader of the senate;

(4) One member appointed by the speaker of the house of representatives;

(5) One member appointed by the minority leader of the house of
representatives; and

(6) Four members appointed by the governor.

3. Each member of the board, except for the public members and the chair
of the minority business advocacy commission, shall be a current or
former owner or officer of a small business. All members of the board
shall represent a variety of small businesses, both rural and urban, and
be from a variety of geographical areas of this state, provided that no
more than two members shall represent the same type of small business.

4. Members of the board shall serve a term of three years and may be
reappointed at the conclusion of the term. No member shall serve more
than three consecutive terms. Appointments shall be made so that
one-third of the membership of the board shall terminate each year. The
governor shall appoint the initial chairperson of the board and a
majority of the board shall elect subsequent chairpersons. The
chairperson shall serve as chair for a term of not more than two years.

5. Members of the board shall serve without compensation, but may be
reimbursed for reasonable and necessary expenses relating to their
performance of duties, according to the rules and regulations of travel
issued by the office of administration. Members will be required to
submit an expense account form in order to obtain reimbursement for
expenses incurred.

6. The board shall meet as often as necessary, as determined by the
chairperson of the board. All meetings of the board will be conducted in
accordance with the governmental bodies and records act, chapter 610,
RSMo, including closed sessions. Notice will be posted and will be
provided to the joint committee on administrative rules. Minutes of the
meetings shall be provided to all members, the office of the governor,
and the joint committee on administrative rules.

7. In addition to any other powers provided by sections 536.300 to
536.328, the board may adopt any rules necessary to implement sections
536.300 to 536.328 and take any action necessary to effectuate the
purposes of sections 536.300 to 536.328. Any rule or portion of a rule,
as that term is defined in section 536.010, that is created under the
authority delegated in this section shall become effective only if it
complies with and is subject to all of the provisions of this chapter
and, if applicable, section 536.028. This section and this chapter are
nonseverable and if any of the powers vested with the general assembly
pursuant to this chapter 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, 2005, shall be invalid and void. (L. 2004 H.B. 978, A.L. 2005
H.B. 576)

1. The board shall:

(1) Provide state agencies with input regarding rules that adversely
affect small businesses;

(2) Solicit input and conduct hearings from small business owners and
state agencies regarding any rules proposed by a state agency; and

(3) Provide an evaluation report to the governor and the general
assembly, including any recommendations and evaluations of state agencies
regarding regulatory fairness for Missouri's small businesses. The report
shall include comments from small businesses, state agency responses, and
a summary of any public testimony on rules brought before the board for
consideration.

2. In any inquiry conducted by the board because of a request from a
small business owner, the board may make recommendations to the state
agency. If the board makes recommendations, such recommendations shall be
based on any of the following grounds:

(1) The rule creates an undue barrier to the formation, operation, and
expansion of small businesses in a manner that significantly outweighs
the rule's benefits to the public; or

(2) New or significant economic information indicates the proposed rule
would create an undue impact on small businesses; or

(3) Technology, economic conditions, or other relevant factors justifying
the purpose for the rule has changed or no longer exists; or

(4) If the rule was adopted after August 28, 2004, whether the actual
effect on small businesses was not reflected in or significantly exceeded
the small business impact statement submitted prior to the adoption of
the rules. (L. 2004 H.B. 978, A.L. 2005 H.B. 576)

Any state agency receiving recommendations from the board shall
promptly consider such recommendations and may file a response with the
board within sixty days of receiving the board's recommendations. If the
state agency determines that no action shall be taken on the board's
recommendations, the agency should explain its reasons for its
determination. If the state agency determines that the board's
recommendations merit adoption, amendment or repeal of a rule, the agency
should indicate this in its response. (L. 2004 H.B. 978)

1. Any state agency authorized to assess administrative
penalties or administrative fines upon a small business may consider
waiving or reducing any administrative penalty or administrative fine for
a violation of any statute, ordinance, or rules by a small business under
the following conditions:

(1) The small business corrects the violation within thirty days after
receipt of a notice of violation or citation;

(2) The violation was unintentional or the result of excusable neglect;

(3) The violation was the result of an excusable misunderstanding of a
state agency's interpretation of a rule; or

(4) The small business self-identifies the violation.

2. Subsection 1 of this section shall not apply when:

(1) A small business fails to exercise good faith in complying with the
statute, ordinance, or rule;

(2) A violation involves willful or criminal conduct;

(3) The violation is deemed by the state agency to be egregious;

(4) A violation results in serious health, safety, or environmental
impact;

(5) The penalty or fine is assessed pursuant to a federal law or
regulation for which no waiver or reduction is authorized by the federal
law or regulation; or

(6) There is a continuing pattern of similar violations by the small
business. (L. 2004 H.B. 978 § 536.325)

1. In addition to the basis for filing a petition provided in
section 536.041, any affected small business may file a written petition
with the agency that has adopted rules objecting to all or part of any
rule affecting small business on any of the following grounds:

(1) The actual effect on small business was not reflected in or
significantly exceeded the small business impact statement submitted
prior to the adoption of the rules;

(2) The small business impact statement did not consider new or
significant economic information that reveals an undue impact on small
business; or

(3) The impacts were not previously considered at the public hearing on
the rules.

2. For any rule adopted prior to August 28, 2005, an affected small
business may file a written petition with the agency that adopted the
rule objecting to all or part of any rule affecting small business on any
of the following grounds:

(1) The rule creates an undue barrier to the formation, operation, and
expansion of small businesses in a manner that significantly outweighs
the rule's benefit to the public;

(2) The rule duplicates, overlaps, or conflicts with rules adopted by the
agency or any other agency or violates the substantive authority under
which the rule was adopted; or

(3) The technology, economic conditions, or other relevant factors
justifying the purpose for the rule has changed or no longer exist.

3. Upon submission of the petition, the agency shall forward a copy of
the petition to the board and the joint committee on administrative
rules, as required by section 536.041, as notification of a petition
filed under sections 536.300 to 536.328. The agency shall promptly
consider the petition and may seek advice and counsel regarding the
petition. Within sixty days after the receipt of the petition, the agency
shall determine whether the impact statement or public hearing addressed
the actual and significant impact on small business. The agency shall
submit a written response of the agency's determination to the board
within sixty days of the receipt of the petition. If the agency
determines that the petition merits the adoption, amendment, or repeal of
a rule, it may initiate proceedings in accordance with the applicable
requirements of this chapter.

4. If the agency determines that the petition does not merit the
adoption, amendment, or repeal of a rule, any affected small business may
seek a review of the decision by the board. The board may convene a
hearing or by other means solicit testimony that will assist in its
determination of whether to recommend that the agency initiate
proceedings in accordance with this chapter. For rules adopted after
August 28, 2005, the board shall base its recommendations on any of the
following reasons:

(1) The actual effect on small business was not reflected in or
significantly exceeded the impact statement submitted prior to the
adoption of the rule;

(2) The impact statement did not consider new or significant economic
information that reveals an undue impact on small business;

(3) Such impacts were not previously considered by the agency; or

(4) Such impacts were not previously considered at the public hearing on
the rules.

5. For rules adopted prior to August 28, 2005, the board shall base its
recommendations on any of the following reasons:

(1) The rules created an undue barrier to the formation, operation, and
expansion of small businesses in a manner that significantly outweighs
its benefit to the public;

(2) The rules duplicate, overlap, or conflict with rules adopted by the
agency or any other agency or violate the substantive authority under
which the rules were adopted; or

(3) The technology, economic conditions, or other relevant factors
justifying the purpose for the rules have changed or no longer exist.

6. The board shall make an evaluation report to the governor and the
general assembly on rulemaking proceedings, comments from small business,
and agency response as provided in this section. The governor or general
assembly may subsequently take such action in response to the evaluation
report and agency response as they find appropriate. (L. 2005 H.B. 576)

1. Each agency with rules that affect small business shall
submit by June thirteenth of each odd-numbered year a list of such rules
to the general assembly and the board. The agency shall also submit a
report describing the specific public purpose or interest for adopting
the respective rules and any other reasons to justify its continued
existence. The general assembly may subsequently take such action in
response to the report as it finds appropriate.

2. The board shall provide to the head of each agency a list of any rules
adopted by the agency that affect small business and have generated
complaints or concerns, including any rules that the board determines may
duplicate, overlap, or conflict with other rules or exceed statutory
authority. Within forty-five days after being notified by the board the
list of rules adopted, the agency shall submit a written report to the
board in response to the complaints or concerns. The agency shall also
state whether the agency has considered the continued need for the rules
and the degree to which technology, economic conditions, and other
relevant factors may have diminished or eliminated the need for
maintaining the rules.

3. The board may solicit testimony from the public at a public meeting
regarding any report submitted by the agency under this section. The
board shall submit an evaluation report to the governor and the general
assembly regarding small business comments, agency response, and public
testimony on rules in this section. The governor and the general assembly
may take such action in response to the report as they find appropriate.
(L. 2005 H.B. 576)

For any regulation subject to sections 536.300 to 536.328, a
small business that is adversely affected or aggrieved by final agency
action is entitled to judicial review of agency compliance with the
requirements of sections 536.300 to 536.328. Judicial review shall be
commenced in the circuit court of the county in which the small business
has its primary place of business, or in Cole County. If the small
business does not have a primary place of business in the state, proper
venue shall be in Cole County. Notwithstanding any provisions of this
chapter to the contrary, an affected small business may seek such
judicial review during the period beginning on the date the proposed rule
becomes final and ending one year later. (L. 2005 H.B. 576)

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