Boards, commissions, & councils

SECOND REGULAR SESSION

SENATE COMMITTEE SUBSTITUTE FOR

HOUSE BILL NO. 1411

93RD GENERAL ASSEMBLY

Reported from the Committee on Financial and Governmental Organizations and Elections, April 27, 2006, with recommendation that the Senate Committee Substitute do pass.

TERRY L. SPIELER, Secretary.

4281S.03C

AN ACT

To repeal sections 42.014, 42.015, 186.005, 186.014, 186.016, 186.018, 186.019, 217.670, 301.3112, 327.011, 327.111, 327.181, 327.201, 327.291, 327.441, 327.633, 332.311, 339.010, 339.040, 339.100, 621.045, and 701.353, RSMo, and to enact in lieu thereof eighteen new sections relating to boards, commissions, and councils, with penalty provisions and an emergency clause for a certain section.

Be it enacted by the General Assembly of the State of Missouri, as follows:

Section A. Sections 42.014, 42.015, 186.005, 186.014, 186.016, 186.018, 186.019, 217.670, 301.3112, 327.011, 327.111, 327.181, 327.201, 327.291, 327.441, 327.633, 332.311, 339.010, 339.040, 339.100, 621.045, and 701.353, RSMo, are repealed and eighteen new sections enacted in lieu thereof, to be known as sections 42.014, 42.015, 186.005, 186.014, 186.016, 217.670, 327.011, 327.076, 327.077, 327.078, 327.181, 327.441, 332.311, 339.010, 339.040, 339.100, 621.045, and 701.353, to read as follows:

42.014. 1. The Missouri general assembly shall, through appropriations as provided by law, encourage the development of any veterans' programs approved by the executive director of the veterans' commission whereby the historical significance of veteran service can be dedicated to [outreach and] education inside public schools, veteran cemeteries, veteran homes, and other institutions as determined by rule and regulation.

2. The [executive director of the veterans' commission] lieutenant governor shall administer the provisions of this section and may adopt all rules and regulations necessary to administer the provisions of this section. Any rule or portion of a rule, as that term is defined in section 536.010, RSMo, 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 chapter 536, RSMo, and, if applicable, section 536.028, RSMo. This section and chapter 536, RSMo, are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536, RSMo, to review, to delay the effective date, or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2004, shall be invalid and void.

3. Pursuant to section 23.253, RSMo, of the Missouri sunset act:

(1) The provisions of the new program authorized under this section shall automatically sunset six years after August 28, 2004, unless reauthorized by an act of the general assembly; and

(2) If such program is reauthorized, the program authorized under this section shall automatically sunset twelve years after the effective date of the reauthorization of this section; and

(3) This section shall terminate on September first of the calendar year immediately following the calendar year in which the program authorized under this section is sunset.

42.015. 1. In order to contribute to the preservation of freedom, there is established in the state treasury a special trust fund, to be known as the "Veterans' Historical Education Trust Fund". The fund shall be administered by the [commission] lieutenant governor for the sole purpose of financing [veterans' outreach and] education programs established in section 42.014.

2. The director of revenue shall deposit in the treasury to the credit of the veterans' historical education trust fund all amounts received by or designated to the fund established pursuant to this section and any other amounts which may be received from grants, gifts, bequests, appropriations, the federal government, or other sources granted or given for this specific purpose. The state treasurer shall invest moneys in the veterans' historical education trust fund in the same manner as surplus state funds are invested pursuant to section 30.260, RSMo. All earnings resulting from the investment of moneys in the veterans' historical education trust fund shall be credited to the veterans' historical education trust fund.

3. As established by this section, funds appropriated by the general assembly from the veterans' historical education trust fund shall only be used by the [commission] lieutenant governor for purposes authorized pursuant to section 42.014 and shall not be used to supplant any existing program or service.

4. The provisions of section 33.080, RSMo, requiring all unexpended balances remaining in various state funds to be transferred and placed to the credit of the general revenue fund of this state at the end of each biennium shall not apply to the veterans' historical education trust fund.

186.005. Sections 186.005 to [186.019] 186.016 shall be known as and may be cited as the "Missouri Women's Council Act".

186.014. 1. There is hereby created in the department of economic development an "Executive Director" for the Missouri women's council. Upon consultation with the council, the director of the department of economic development shall recommend for appointment to the governor, with the advice and consent of the senate, an individual who possesses demonstrated capability in business or industry, especially in business enterprises or employment training, to serve as executive director to work with the council in the implementation of sections 186.005 to [186.019] 186.016.

2. The executive director shall be responsible for:

(1) Implementing programs initiated by the council; and

(2) Performing other duties as defined by the council.

186.016. The mission of the council is:

(1) To promote and increase women's economic and employment opportunities through education and training programs to aid in and insure entry into the labor market;

(2) To promote occupational mobility of women workers in lower and middle levels of employment[;

(3) To promote access] to jobs with more skill and responsibility, especially at the managerial level [by encouraging maternity protection, child care facilities, technical training, and health protection];

[(4)] (3) To initiate programs to assist women in small business enterprises;

(4) To initiate programs to assist and support women when making the transition from work to home, operating a home-based business, and working part-time from home;

(5) To [assure] provide information for women to access [of women to] traditional and nontraditional skilled trades through greater participation in apprenticeship programs and vocational and technical training;

(6) To promote retraining programs and [facilities] workforce readiness skills for unemployed women especially in growth sectors;

(7) To apply for federal or private funds or grants available for such employment and training programs, business enterprise programs, studies, seminars, and conferences and to participate in already existing federally, state or privately funded programs with other state departments and/or divisions;

(8) To conduct programs, studies, seminars, and conferences in cooperation with federal, state, and local agencies, and private companies and organizations in the following areas:

(a) [Educational] Occupational needs and opportunities;

(b) [Displaced homemakers] Balancing work and family;

(d) Federal and state [affecting the rights and responsibilities of] procurement opportunities for women; and

(e) Women-owned business enterprises;

(9) To conduct an inventory of existing federal, state, community, and private programs and facilities relating to economic and employment needs of women and to make that available to the women of the state;

(10) To determine which economic and employment problems exist in specific geographic areas of the state by developing a self-sufficiency standard.

217.670. 1. The board shall adopt an official seal of which the courts shall take official notice.

2. Decisions of the board regarding granting of paroles, extensions of a conditional release date or revocations of a parole or conditional release shall be by a majority vote of the hearing panel members. The hearing panel shall consist of one member of the board and two hearing officers appointed by the board. A member of the board may remove the case from the jurisdiction of the hearing panel and refer it to the full board for a decision. Within thirty days of entry of the decision of the hearing panel to deny parole or to revoke a parole or conditional release, the offender may appeal the decision of the hearing panel to the board. The board shall consider the appeal within thirty days of receipt of the appeal. The decision of the board shall be by majority vote of the board members and shall be final.

3. The orders of the board shall not be reviewable except as to compliance with the terms of sections 217.650 to 217.810 or any rules promulgated pursuant to such section.

4. The board shall keep a record of its acts and shall notify each correctional center of its decisions relating to persons who are or have been confined in such correctional center.

5. Notwithstanding any other provision of law, any meeting, record, or vote, of proceedings involving probation, parole, or pardon, may be a closed meeting, closed record, or closed vote.

6. Notwithstanding any other provision of law to the contrary, when the appearance or presence of an offender before the board or a hearing panel is required for the purpose of deciding whether to grant conditional release or parole, extend the date of conditional release, revoke parole or conditional release, or for any other purpose, such appearance or presence may occur by means of videoconferencing at the discretion of the board. Victims having a right to attend such hearings may testify either at the location where the board is conducting the videoconference or at the institution where the offender is located.

327.011. As used in this chapter, the following words and terms shall have the meanings indicated:

(1) "Accredited degree program from a school of architecture", a degree from any school or other institution which teaches architecture and whose curricula for the degree in question have been, at the time in question, certified as accredited by the National Architectural Accrediting Board;

(2) "Accredited school of landscape architecture", any school or other institution which teaches landscape architecture and whose curricula on the subjects in question are or have been at the times in question certified as accredited by the Landscape Architecture Accreditation Board of the American Society of Landscape Architects;

(3) "Accredited school of engineering", any school or other institution which teaches engineering and whose curricula on the subjects in question are or have been, at the time in question certified as accredited by the engineering accreditation commission of the accreditation board for engineering and technology or its successor organization;

(4) "Architect", any person authorized pursuant to the provisions of this chapter to practice architecture in Missouri, as the practice of architecture is defined in section 327.091;

(5) "Board", the Missouri board for architects, professional engineers, professional land surveyors and landscape architects;

(6) "Corporation", any general business corporation, professional corporation or limited liability company;

(7) ["Department", the department of economic development;

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

(9)] "Landscape architect", any person licensed pursuant to the provisions of sections 327.600 to 327.635 who is qualified to practice landscape architecture by reason of special knowledge and the use of biological, physical, mathematical and social sciences and the principles and methods of analysis and design of the land, has demonstrated knowledge and ability in such areas, and has been duly licensed as a landscape architect by the board on the basis of professional education, examination and experience in landscape architecture;

[(10)] (8) "Partnership", any partnership or limited liability partnership;

(9) "Licensee", a person licensed to practice any profession regulated under this chapter or a corporation authorized to practice any such profession;

[(11)] (10) "Person", any person, corporation, firm, partnership, association or other entity;

[(12)] (11) "Professional engineer", any person authorized pursuant to the provisions of this chapter to practice as a professional engineer in Missouri, as the practice of engineering is defined in section 327.181;

[(13)] (12) "Professional land surveyor", any person authorized pursuant to the provisions of this chapter to practice as a professional land surveyor in Missouri as the practice of land surveying is defined in section 327.272.

327.076. 1. Any person who practices architecture, engineering, land surveying, or landscape architecture, as defined in sections 327.011 to 327.635, or who holds himself or herself out as able to practice such profession and who is not the holder of a currently valid license or certificate of authority in Missouri, and who is not exempt from holding such a license or certificate, is guilty of a class A misdemeanor. As used in this section "practice" shall not include the rendering of opinions or giving of testimony in a civil or criminal proceeding by a licensed professional.

2. The board may cause a complaint to be filed with the administrative hearing commission, as provided in chapter 621, RSMo, against any unlicensed person for any one or any combination of the following causes:

(1) Engages in or offers to render or engage in the practice of architecture, professional engineering, land surveying, or landscape architecture;

(2) Uses or employs titles defined and protected by this chapter, or implies authorization to provide or offer professional services, or otherwise uses or advertises any title, word, figure, sign, card, advertisement, or other symbol or description tending to convey the impression that the person is licensed or holds a certificate of authority to practice architecture, professional engineering, land surveying, or landscape architecture;

(3) Presents or attempts to use another person's license, seal, or certificate of authority as his or her own;

(4) Attempts to use an expired, suspended, revoked, or nonexistent license or certificate of authority;

(5) Affixes his or her or another architect's seal on any plans, drawings, specifications or reports which have not been prepared by such person or under such person's immediate personal supervision care;

(6) Gives false or forged evidence of any kind to the board or any member of the board in obtaining or attempting to obtain a certificate of licensure in this state or any other state or jurisdiction;

(7) Knowingly aids or abets an unlicensed or unauthorized person who engages in any prohibited activity identified in this subsection;

(8) Violates any provision of the code of professional conduct or other rule adopted by the board;

(9) Violates any provision of subsection 2 of section 327.441.

3. When reviewing complaints against unlicensed persons, the board may initiate an investigation and take all measures necessary to find the facts of any potential violation, including issuing subpoenas to compel the attendance and testimony of witnesses and the disclosure of evidence, and may request the attorney general to bring an action to enforce the subpoena.

4. If the board files a complaint with the administrative hearing commission, the proceedings shall be conducted in accordance with the provisions of chapter 621, RSMo. Upon a finding by the administrative hearing commission that the grounds provided in subsection 2 of this section for disciplinary action are met, the board may, either singularly or in combination with other provisions of this chapter, impose a civil penalty as provided for in section 327.077 against the person named in the complaint.

327.077. 1. In disciplinary actions against licensed or unlicensed persons, the board may issue an order imposing a civil penalty.

2. A civil penalty imposed under this section shall not exceed five thousand dollars for each offense. Each day of a continued violation constitutes a separate offense, with a maximum penalty of twenty-five thousand dollars. In determining the amount of penalty to be imposed, the board may consider any of the following:

(1) Whether the amount imposed will be a substantial deterrent to the violation;

(2) The circumstances leading to the violation;

(3) The severity of the violation and the risk of harm to the public;

(4) The economic benefits gained by the violator as a result of noncompliance;

(5) The interest of the public.

3. Any final order imposing a civil penalty is subject to judicial review upon the filing of a petition under section 536.100, RSMo, by any person subject to the penalty.

4. Payment of a civil penalty shall be made within sixty days of filing the order, or if the order is stayed pending an appeal within ten days after the court enters a final judgment in favor of the board. If the penalty is not timely paid, the board shall notify the attorney general. The attorney general may commence an action to recover the amount of the penalty, including reasonable attorney fees and costs and a surcharge of fifteen percent of the penalty plus ten percent per annum on any amounts owed. In such action, the validity and appropriateness of the final order imposing the civil penalty shall not be subject to review.

5. An action to enforce an order under this section may be joined with an action for an injunction.

6. Any offer of settlement to resolve a civil penalty under this section shall be in writing, state that an action for imposition of a civil penalty may be initiated by the attorney general representing the board under this section, and identify any dollar amount as an offer of settlement, which shall be negotiated in good faith through conference, conciliation, and persuasion.

7. Failure to pay a civil penalty by any person licensed under this chapter shall be grounds for refusing to renew a license or certificate of authority.

8. Penalties collected under this section shall be handled in accordance with section 7 of article IX of the Missouri Constitution and shall be deposited in the state general revenue fund. Such penalties shall not be considered a charitable contribution for tax purposes.

327.078. 1. After determination that a licensee or nonlicensee has violated this chapter or a rule promulgated under this chapter, the board may assess the licensee or nonlicensee with its reasonable costs and expenses incurred in conducting the investigation and administrative hearing.

2. All moneys collected under this section shall be deposited in the fund established in section 327.081 and shall be used by the board to defray its expenses in connection with disciplinary investigations and hearings.

327.181. 1. Any person practices in Missouri as a professional engineer who renders or offers to render or holds himself or herself out as willing or able to render any service or creative work, the adequate performance of which requires engineering education, training, and experience in the application of special knowledge of the mathematical, physical, and engineering sciences to such services or creative work as consultation, investigation, evaluation, planning and design of engineering works and systems, engineering teaching of advanced engineering subjects or courses related thereto, engineering surveys, the coordination of services furnished by structural, civil, mechanical and electrical engineers and other consultants as they relate to engineering work and the inspection of construction for the purpose of compliance with drawings and specifications, any of which embraces such service or work either public or private, in connection with any utilities, structures, buildings, machines, equipment, processes, work systems or projects and including such architectural work as is incidental to the practice of engineering; or who uses the title "professional engineer" or "consulting engineer" or the word "engineer" alone or preceded by any word indicating or implying that such person is or holds himself or herself out to be a professional engineer, or who shall use any word or words, letters, figures, degrees, titles or other description indicating or implying that such person is a professional engineer or is willing or able to practice engineering.

2. Notwithstanding any provision of subsection 1 of this section, any person using the word "engineer", "engineers", or "engineering", alone or preceded by any word, or in combination with any words, may do so without being subject to disciplinary action by the board so long as such use is reflective of that person's profession or vocation and is clearly not indicating or implying that such person is holding himself or herself out as being a professional engineer or is willing or able to practice engineering as defined in this section.

327.441. 1. The board may refuse to issue any license or certificate of authority required pursuant to this chapter for one or any combination of causes stated in subsection 2 of this section. The board shall notify the applicant in writing of the reasons for the refusal and shall advise the applicant of the applicant's right to file a complaint with the administrative hearing commission as provided by chapter 621, RSMo.

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

(1) Use of any controlled substance, as defined in chapter 195, RSMo, or alcoholic beverage to an extent that such use impairs a person's ability to perform the work of any profession licensed or regulated by this chapter;

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

(3) Use of fraud, deception, misrepresentation or bribery in securing any license or certificate of authority issued pursuant to this chapter or in obtaining permission to take any examination given or required pursuant to this chapter;

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

(5) Incompetency, misconduct, gross negligence, fraud, misrepresentation or dishonesty in the performance of the functions or duties of any profession licensed or regulated by this chapter;

(6) Violation of, or assisting or enabling any person to violate, any provision of this chapter, or of any lawful rule or regulation adopted pursuant to this chapter;

(7) Impersonation of any person holding a license or certificate of authority, or allowing any person to use his or her license or certificate of authority, or diploma from any school;

(8) Disciplinary action against the holder of a license or a certificate of authority, or other right to practice any profession regulated by this chapter granted by another state, territory, federal agency or country upon grounds for which revocation or suspension is authorized in this state;

(9) A person is finally adjudged incapacitated or disabled by a court of competent jurisdiction;

(10) Assisting or enabling any person to practice or offer to practice any profession licensed or regulated by this chapter who is not licensed and currently eligible to practice pursuant to this chapter;

(11) Issuance of a professional license or a certificate of authority based upon a material mistake of fact;

(12) Failure to display a valid license or certificate of authority if so required by this chapter or any rule promulgated pursuant to this chapter;

(13) Violation of any professional trust or confidence;

(14) Use of any advertisement or solicitation which is false, misleading or deceptive to the general public or persons to whom the advertisement or solicitation is primarily directed.

3. After the filing of such complaint, the proceedings shall be conducted in accordance with the provisions of chapter 621, RSMo. Upon a finding by the administrative hearing commission that the grounds, provided in subsection 2 of this section, for disciplinary action are met, the board may, singly or in combination, censure or place the person named in the complaint on probation on such terms and conditions as the board deems appropriate for a period not to exceed five years, or may suspend, for a period not to exceed three years, or order a civil penalty under section 327.077, or revoke the license or certificate of authority of the person named in the complaint.

332.311. 1. Except as provided in subsection 2 of this section, a duly registered and currently licensed dental hygienist may only practice as a dental hygienist so long as the dental hygienist is employed by a dentist who is duly registered and currently licensed in Missouri, or as an employee of such other person or entity approved by the board in accordance with rules promulgated by the board. In accordance with this chapter and the rules promulgated by the board pursuant thereto, a dental hygienist shall only practice under the supervision of a dentist who is duly registered and currently licensed in Missouri, except as provided in subsection 2 of this section.

2. A duly registered and currently licensed dental hygienist who has been in practice at least three years and who is practicing in a public health setting may provide fluoride treatments, teeth cleaning and sealants, if appropriate, to children who are eligible for medical assistance, pursuant to chapter 208, RSMo, without the supervision of a dentist. Medicaid shall reimburse any eligible provider who provides fluoride treatments, teeth cleaning, and sealants to eligible children. Those public health settings in which a dental hygienist may practice without the supervision of a dentist shall be established jointly by the department of health and senior services and by the Missouri dental board by rule. [This provision shall expire on August 28, 2006.]

339.010. 1. A "real estate broker" is any person, partnership, association, or corporation, foreign or domestic who, for another, and for a compensation or valuable consideration, does, or attempts to do, any or all of the following:

(1) Sells, exchanges, purchases, rents, or leases real estate;

(2) Offers to sell, exchange, purchase, rent or lease real estate;

(3) Negotiates or offers or agrees to negotiate the sale, exchange, purchase, rental or leasing of real estate;

(4) Lists or offers or agrees to list real estate for sale, lease, rental or exchange;

(5) Buys, sells, offers to buy or sell or otherwise deals in options on real estate or improvements thereon;

(6) Advertises or holds himself or herself out as a licensed real estate broker while engaged in the business of buying, selling, exchanging, renting, or leasing real estate;

(7) Assists or directs in the procuring of prospects, calculated to result in the sale, exchange, leasing or rental of real estate;

(8) Assists or directs in the negotiation of any transaction calculated or intended to result in the sale, exchange, leasing or rental of real estate;

(9) Engages in the business of charging to an unlicensed person an advance fee in connection with any contract whereby the real estate broker undertakes to promote the sale of that person's real estate through its listing in a publication issued for such purpose intended to be circulated to the general public;

(10) Performs any of the foregoing acts as an employee of, or on behalf of, the owner of real estate, or interest therein, or improvements affixed thereon, for compensation.

2. A "real estate salesperson" is any person who for a compensation or valuable consideration becomes associated, either as an independent contractor or employee, either directly or indirectly, with a real estate broker to do any of the things above mentioned. The provisions of sections 339.010 to 339.180 and sections 339.710 to 339.860 shall not be construed to deny a real estate salesperson who is compensated solely by commission the right to be associated with a broker as an independent contractor.

3. The term "commission" as used in sections 339.010 to 339.180 and sections 339.710 to 339.860 means the Missouri real estate commission.

4. "Real estate" for the purposes of sections 339.010 to 339.180 and sections 339.710 to 339.860 shall mean, and include, leaseholds, as well as any other interest or estate in land, whether corporeal, incorporeal, freehold or nonfreehold, and the real estate is situated in this state.

5. "Advertising" shall mean any communication, whether oral or written, between a licensee or other entity acting on behalf of one or more licensees and the public; it shall include, but not be limited to, business cards, signs, insignias, letterheads, radio, television, newspaper and magazine ads, Internet advertising, web sites, display or group ads in telephone directories, and billboards.

6. The provisions of sections 339.010 to 339.180 and sections 339.710 to 339.860 shall not apply to:

(1) Any person, partnership, association, or corporation who as owner, lessor, or lessee shall perform any of the acts described in subsection 1 of this section with reference to property owned or leased by them, or to the regular employees thereof, provided such owner, lessor, or lessee is not engaged in the real estate business;

(2) Any licensed attorney-at-law;

(3) An auctioneer employed by the owner of the property;

(4) Any person acting as receiver, trustee in bankruptcy, administrator, executor, or guardian or while acting under a court order or under the authority of a will, trust instrument or deed of trust or as a witness in any judicial proceeding or other proceeding conducted by the state or any governmental subdivision or agency;

(5) Any person employed or retained to manage real property by, for, or on behalf of, the agent or the owner, of any real estate shall be exempt from holding a license, if the person is limited to one or more of the following activities:

(a) Delivery of a lease application, a lease, or any amendment thereof, to any person;

(b) Receiving a lease application, lease, or amendment thereof, a security deposit, rental payment, or any related payment, for delivery to, and made payable to, a broker or owner;

(c) Showing a rental unit to any person, as long as the employee is acting under the direct instructions of the broker or owner, including the execution of leases or rental agreements;

(d) Conveying information prepared by a broker or owner about a rental unit, a lease, an application for lease, or the status of a security deposit, or the payment of rent, by any person;

(e) Assisting in the performance of brokers' or owners' functions, administrative, clerical or maintenance tasks;

(f) If the person described in this section is employed or retained by, for, or on behalf of a real estate broker, the real estate broker shall be subject to discipline under this chapter for any conduct of the person that violates this chapter or the regulations promulgated thereunder;

(6) Any officer or employee of a federal agency or the state government or any political subdivision thereof performing official duties;

(7) Railroads and other public utilities regulated by the state of Missouri, or their subsidiaries or affiliated corporations, or to the officers or regular employees thereof, unless performance of any of the acts described in subsection 1 of this section is in connection with the sale, purchase, lease or other disposition of real estate or investment therein unrelated to the principal business activity of such railroad or other public utility or affiliated or subsidiary corporation thereof;

(8) Any bank, trust company, savings and loan association, credit union, insurance company, mortgage banker, or farm loan association organized under the laws of this state or of the United States when engaged in the transaction of business on its own behalf and not for others;

(9) Any newspaper, magazine, periodical, [or] Internet site [whereby the advertising of real estate is incidental to its operation], Internet communications, or [to] any form of communications regulated or licensed by the Federal Communications Commission or any successor agency or commission whereby the advertising of real estate is incidental to its operation;

(10) Any developer selling Missouri land owned by the developer;

(11) Any employee acting on behalf of a nonprofit community, or regional economic development association, agency or corporation which has as its principal purpose the general promotion and economic advancement of the community at large, provided that such entity:

(a) Does not offer such property for sale, lease, rental or exchange on behalf of another person or entity;

(b) Does not list or offer or agree to list such property for sale, lease, rental or exchange; or

(c) Receives no fee, commission or compensation, either monetary or in kind, that is directly related to sale or disposal of such properties. An economic developer's normal annual compensation shall be excluded from consideration as commission or compensation related to sale or disposal of such properties; or

(12) Any neighborhood association, as that term is defined in section 441.500, RSMo, that without compensation, either monetary or in kind, provides to prospective purchasers or lessors of property the asking price, location, and contact information regarding properties in and near the association's neighborhood, including any publication of such information in a newsletter, Internet site, or other medium.

339.040. 1. Licenses shall be granted only to persons who present, and corporations, associations, or partnerships whose officers, associates, or partners present, satisfactory proof to the commission that they:

(1) Are persons of good moral character; and

(2) Bear a good reputation for honesty, integrity, and fair dealing; and

(3) Are competent to transact the business of a broker or salesperson in such a manner as to safeguard the interest of the public.

2. In order to determine an applicant's qualifications to receive a license under sections 339.010 to 339.180 and sections 339.710 to 339.860, the commission shall hold oral or written examinations at such times and places as the commission may determine.

3. Each applicant for a broker or salesperson license shall be at least eighteen years of age and shall pay the broker examination fee or the salesperson examination fee.

4. Each applicant for a broker license shall be required to have satisfactorily completed the salesperson license examination prescribed by the commission. For the purposes of this section only, the commission may permit a person who is not associated with a licensed broker to take the salesperson examination.

5. Each application for a broker license shall include a certificate from the applicant's broker or brokers that the applicant has been actively engaged in the real estate business as a licensed salesperson for at least [one year] two years immediately preceding the date of application, [or, in lieu thereof,] and shall include a certificate from a school accredited by the commission under the provisions of section 339.045 that the applicant has, within six months prior to the date of application, successfully completed the prescribed broker curriculum or broker correspondence course offered by such school, except that the commission may waive all or part of the [educational] requirements set forth in this subsection when an applicant presents proof of other educational background or experience acceptable to the commission.

6. Each application for a salesperson license shall include a certificate from a school accredited by the commission under the provisions of section 339.045 that the applicant has, within six months prior to the date of application, successfully completed the prescribed salesperson curriculum or salesperson correspondence course offered by such school, except that the commission may waive all or part of the educational requirements set forth in this subsection when an applicant presents proof of other educational background or experience acceptable to the commission.

7. The commission may issue a temporary work permit pending final review and printing of the license to an applicant who appears to have satisfied the requirements for licenses. The commission may, at its discretion, withdraw the work permit at any time.

8. Every active broker, salesperson, officer, partner, or associate shall provide upon request to the commission evidence that during the two years preceding he or she has completed twelve hours of real estate instruction in courses approved by the commission. The commission may, by rule and regulation, provide for individual waiver of this requirement.

9. Each entity that provides continuing education required under the provisions of subsection 8 of this section may make available instruction courses that the entity conducts through means of distance delivery. The commission shall by rule set standards for such courses. The commission may by regulation require the individual completing such distance-delivered course to complete an examination on the contents of the course. Such examination shall be designed to ensure that the licensee displays adequate knowledge of the subject matter of the course, and shall be designed by the entity producing the course and approved by the commission.

10. In the event of the death or incapacity of a licensed broker, or of one or more of the licensed partners, officers, or associates of a real estate partnership, corporation, or association whereby the affairs of the broker, partnership, or corporation cannot be carried on, the commission may issue, without examination or fee, to the legal representative or representatives of the deceased or incapacitated individual, or to another individual approved by the commission, a temporary broker license which shall authorize such individual to continue for a period to be designated by the commission to transact business for the sole purpose of winding up the affairs of the broker, partnership or corporation under the supervision of the commission.

339.100. 1. The commission may, upon its own motion, and shall upon receipt of a written complaint filed by any person, investigate any real estate-related activity of a licensee licensed under sections 339.010 to 339.180 and sections 339.710 to 339.860 or an individual or entity acting as or representing themselves as a real estate licensee. In conducting such investigation, if the questioned activity or written complaint involves an affiliated licensee, the commission may forward a copy of the information received to the affiliated licensee's designated broker. The commission shall have the power to hold an investigatory hearing to determine whether there is a probability of a violation of sections 339.010 to 339.180 and sections 339.710 to 339.860. The commission shall have the power to issue a subpoena to compel the production of records and papers bearing on the complaint. The commission shall have the power to issue a subpoena and to compel any person in this state to come before the commission to offer testimony or any material specified in the subpoena. Subpoenas and subpoenas duces tecum issued pursuant to this section shall be served in the same manner as subpoenas in a criminal case. The fees and mileage of witnesses shall be the same as that allowed in the circuit court in civil cases.

2. The commission may cause a complaint to be filed with the administrative hearing commission as provided by the provisions of chapter 621, RSMo, against any person or entity licensed under this chapter or any licensee who has failed to renew or has surrendered his or her individual or entity license for any one or any combination of the following acts:

(1) Failure to maintain and deposit in a special account, separate and apart from his or her personal or other business accounts, all moneys belonging to others entrusted to him or her while acting as a real estate broker or as the temporary custodian of the funds of others, until the transaction involved is consummated or terminated, unless all parties having an interest in the funds have agreed otherwise in writing;

(2) Making substantial misrepresentations or false promises or suppression, concealment or omission of material facts in the conduct of his or her business or pursuing a flagrant and continued course of misrepresentation through agents, salespersons, advertising or otherwise in any transaction;

(3) Failing within a reasonable time to account for or to remit any moneys, valuable documents or other property, coming into his or her possession, which belongs to others;

(4) Representing to any lender, guaranteeing agency, or any other interested party, either verbally or through the preparation of false documents, an amount in excess of the true and actual sale price of the real estate or terms differing from those actually agreed upon;

(5) Failure to timely deliver a duplicate original of any and all instruments to any party or parties executing the same where the instruments have been prepared by the licensee or under his or her supervision or are within his or her control, including, but not limited to, the instruments relating to the employment of the licensee or to any matter pertaining to the consummation of a lease, listing agreement or the purchase, sale, exchange or lease of property, or any type of real estate transaction in which he or she may participate as a licensee;

(6) Acting for more than one party in a transaction without the knowledge of all parties for whom he or she acts, or accepting a commission or valuable consideration for services from more than one party in a real estate transaction without the knowledge of all parties to the transaction;

(7) Paying a commission or valuable consideration to any person for acts or services performed in violation of sections 339.010 to 339.180 and sections 339.710 to 339.860;

(8) Guaranteeing or having authorized or permitted any licensee to guarantee future profits which may result from the resale of real property;

(9) Having been finally adjudicated and been found guilty of the violation of any state or federal statute which governs the sale or rental of real property or the conduct of the real estate business as defined in subsection 1 of section 339.010;

(10) Obtaining a certificate or registration of authority, permit or license for himself or herself or anyone else by false or fraudulent representation, fraud or deceit;

(11) Representing a real estate broker other than the broker with whom associated without the express written consent of the broker with whom associated;

(12) Accepting a commission or valuable consideration for the performance of any of the acts referred to in section 339.010 from any person except the broker with whom associated at the time the commission or valuable consideration was earned;

(13) Using prizes, money, gifts or other valuable consideration as inducement to secure customers or clients to purchase, lease, sell or list property when the awarding of such prizes, money, gifts or other valuable consideration is conditioned upon the purchase, lease, sale or listing; or soliciting, selling or offering for sale real property by offering free lots, or conducting lotteries or contests, or offering prizes for the purpose of influencing a purchaser or prospective purchaser of real property;

(14) Placing a sign on or advertising any property offering it for sale or rent without the written consent of the owner or his or her duly authorized agent;

(15) Violation of, or attempting to violate, directly or indirectly, or assisting or enabling any person to violate, any provision of sections 339.010 to 339.180 and sections 339.710 to 339.860, or of any lawful rule adopted pursuant to sections 339.010 to 339.180 and sections 339.710 to 339.860;

(16) Committing any act which would otherwise be grounds for the commission to refuse to issue a license under section 339.040;

(17) Failure to timely inform seller of all written offers unless otherwise instructed in writing by the seller;

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

(19) Any other conduct which constitutes untrustworthy, improper or fraudulent business dealings, demonstrates bad faith or incompetence, misconduct, or gross negligence;

(20) Disciplinary action against the holder of a license or other right to practice any profession regulated under sections 339.010 to 339.180 and sections 339.710 to 339.860 granted by another state, territory, federal agency, or country upon grounds for which revocation, suspension, or probation is authorized in this state;

(21) Been found by a court of competent jurisdiction of having used any controlled substance, as defined in chapter 195, RSMo, to the extent that such use impairs a person's ability to perform the work of any profession licensed or regulated by sections 339.010 to 339.180 and sections 339.710 to 339.860;

(22) Been finally adjudged insane or incompetent by a court of competent jurisdiction;

(23) Assisting or enabling any person to practice or offer to practice any profession licensed or regulated under sections 339.010 to 339.180 and sections 339.710 to 339.860 who is not registered and currently eligible to practice under sections 339.010 to 339.180 and sections 339.710 to 339.860;

(24) Use of any advertisement or solicitation which is knowingly false, misleading or deceptive to the general public or persons to whom the advertisement or solicitation is primarily directed.

3. After the filing of such complaint, the proceedings will be conducted in accordance with the provisions of law relating to the administrative hearing commission. A finding of the administrative hearing commissioner that the licensee has performed or attempted to perform one or more of the foregoing acts shall be grounds for the suspension or revocation of his license by the commission, or the placing of the licensee on probation on such terms and conditions as the real estate commission shall deem appropriate.

4. The commission may prepare a digest of the decisions of the administrative hearing commission which concern complaints against licensed brokers or salespersons and cause such digests to be mailed to all licensees periodically. Such digests may also contain reports as to new or changed rules adopted by the commission and other information of significance to licensees. 5. Notwithstanding other provisions of this section, a broker or salesperson's license shall be revoked, or in the case of an applicant, shall not be issued, if the licensee or applicant has pleaded guilty to, entered a plea of nolo contendere, to or been found guilty of any of the following offenses or offenses of a similar nature established under the laws of this, any other state, the United States, or any other country, notwithstanding whether sentence is imposed:

(1) Any dangerous felony as defined under section 556.061, RSMo, or murder in the first degree;

(2) Any of the following sexual offenses: rape, statutory rape in the first degree, statutory rape in the second degree, sexual assault, forcible sodomy, statutory sodomy in the first degree, statutory sodomy in the second degree, child molestation in the first degree, child molestation in the second degree, deviate sexual assault, sexual misconduct involving a child, sexual misconduct in the first degree, sexual abuse, enticement of a child, or attempting to entice a child;

(3) Any of the following offenses against the family and related offenses: incest, abandonment of a child in the first degree, abandonment of a child in the second degree, endangering the welfare of a child in the first degree, abuse of a child, using a child in a sexual performance, promoting sexual performance by a child, or trafficking in children; and

(4) Any of the following offenses involving child pornography and related offenses: promoting obscenity in the first degree, promoting obscenity in the second degree when the penalty is enhanced to a class D felony, promoting child pornography in the first degree, promoting child pornography in the second degree, possession of child pornography in the first degree, possession of child pornography in the second degree, furnishing child pornography to a minor, furnishing pornographic materials to minors, or coercing acceptance of obscene material.

6. A person whose license was revoked under subsection 5 of this section may appeal such revocation to the administrative hearing commission. Notice of such appeal must be received by the administrative hearing commission within ninety days of mailing, by certified mail, the notice of revocation. Failure of a person whose license was revoked to notify the administrative hearing commission of his or her intent to appeal waives all rights to appeal the revocation. Upon notice of such person's intent to appeal, a hearing shall be held before the administrative hearing commissioner.

621.045. 1. The administrative hearing commission shall conduct hearings and make findings of fact and conclusions of law in those cases when, under the law, a license issued by any of the following agencies may be revoked or suspended or when the licensee may be placed on probation or when an agency refuses to permit an applicant to be examined upon his qualifications or refuses to issue or renew a license of an applicant who has passed an examination for licensure or who possesses the qualifications for licensure without examination:

Missouri State Board of Accountancy

Missouri State Board [of Registration] for Architects, Professional Engineers [and], Professional Land Surveyors and Landscape Architects

Board of Barber Examiners

Board of Cosmetology

Board of Chiropody and Podiatry

Board of Chiropractic Examiners

Missouri Dental Board

Board of Embalmers and Funeral Directors

Board of Registration for the Healing Arts

Board of Nursing

Board of Optometry

Board of Pharmacy

Missouri Real Estate Commission

Missouri Veterinary Medical Board

Supervisor of Liquor Control

Department of Health and Senior Services

Department of Insurance

Department of Mental Health.

2. If in the future there are created by law any new or additional administrative agencies which have the power to issue, revoke, suspend, or place on probation any license, then those agencies are under the provisions of this law.

3. The administrative hearing commission is authorized to conduct hearings and make findings of fact and conclusions of law in those cases brought by the Missouri state board for architects, professional engineers, professional land surveyors and landscape architects against unlicensed persons under section 327.076, RSMo.

4. Notwithstanding any other provision of this section to the contrary, after August 28, 1995, in order to encourage settlement of disputes between any agency described in subsection 1 or 2 of this section and its licensees, any such agency shall:

(1) Provide the licensee with a written description of the specific conduct for which discipline is sought and a citation to the law and rules allegedly violated, together with copies of any documents which are the basis thereof and the agency's initial settlement offer, or file a contested case against the licensee;

(2) If no contested case has been filed against the licensee, allow the licensee at least sixty days, from the date of mailing, to consider the agency's initial settlement offer and to contact the agency to discuss the terms of such settlement offer;

(3) If no contested case has been filed against the licensee, advise the licensee that the licensee may, either at the time the settlement agreement is signed by all parties, or within fifteen days thereafter, submit the agreement to the administrative hearing commission for determination that the facts agreed to by the parties to the settlement constitute grounds for denying or disciplining the license of the licensee; and

(4) In any contact pursuant to this subsection by the agency or its counsel with a licensee who is not represented by counsel, advise the licensee that the licensee has the right to consult an attorney at the licensee's own expense.

[4.] 5. If the licensee desires review by the administrative hearing commission pursuant to subdivision (3) of subsection [3] 4 of this section at any time prior to the settlement becoming final, the licensee may rescind and withdraw from the settlement and any admissions of fact or law in the agreement shall be deemed withdrawn and not admissible for any purposes under the law against the licensee. Any settlement submitted to the administrative hearing commission shall not be effective and final unless and until findings of fact and conclusions of law are entered by the administrative hearing commission that the facts agreed to by the parties to the settlement constitute grounds for denying or disciplining the license of the licensee.

701.353. 1. There is hereby established an "Elevator Safety Board" to be composed of eleven members, one of whom shall be the director of the department of public safety. The remaining ten members of the board shall be appointed by the governor with the advice and consent of the senate. Each member appointed by the governor shall be appointed for a term of five years or until his or her successor is appointed. The governor shall fill any vacancy on the board for the remainder of the unexpired term with a representative of the same interest as that of the member whose term is vacant. No more than six members of the board, who are not employees of state or local government, shall be members of the same political party.

2. Two members of the board shall represent the interests of labor and shall be involved in the elevator industry. [Two members] One member of the board shall be [representatives] a representative of manufacturers of elevators used in this state. One member of the board shall be an elevator installer. One member of the board shall be an architect or mechanical engineer. One member of the board shall be a representative of owners of buildings affected by sections 701.350 to 701.380. Two members shall be building officials with responsibility for administering elevator regulations, one from each municipality having a population of at least three hundred fifty thousand inhabitants. One member of the board shall be a representative of the disabled community who is familiar with the provisions of the Federal Americans with Disabilities Act. One member shall be a representative of the special inspectors.

3. The director of the department shall call the first meeting of the board within sixty days after all members have been appointed and qualified. The members from among their membership shall elect a chairman. After the initial meeting the members shall meet at the call of the chairman, but shall meet at least four times per year. Six members of the board shall constitute a quorum.

4. The members of the board shall serve without pay, but they shall receive per diem expenses in an equivalent amount as allowed for members of the general assembly.

[186.018. The council shall prepare a state plan to identify and prioritize targeted populations in terms of employment accessibility and geographic regions, which plan shall be reviewed and revised annually. The state plan shall include but not be limited to:

(1) A needs-assessment of the state to determine specific economic and employment problems that exist in which geographic areas of the state;

(2) A statement of short- and long-term goals relating to economic factors which include evaluation, labor, work availability, small business opportunities, employment, training, household, and family with special emphasis on rural women and the underprivileged sectors of society;

(3) An inventory of existing federal, state, community and private programs and facilities relating to economic and employment needs of women;

(4) Plans for addressing those identified prioritized and targeted populations including special strategies for specific groups or regions with unique needs in the employment or training area.]

[186.019. 1. Prior to April first of each year, starting in 1992, the information described in subdivisions (1), (2), (3) and (4) of this subsection shall be delivered in report form to the Missouri women's council, the governor's office, the secretary of the senate, and the chief clerk of the house of representatives. The information shall apply only to activities which occurred during the previous calendar year. Reports shall be required from the following:

(1) The department of labor and industrial relations, and the division of job development and training of the department of economic development, who shall assemble all available data and report on all business start-ups and business failures which are fifty-one percent or more owned by women. The reports shall distinguish, as best as possible, those businesses which are sole proprietorships, partnerships, or corporations;

(2) The department of economic development, who shall assemble all available data and report on financial assistance or other incentives given to all businesses which are fifty-one percent or more owned by women. The report shall contain information relating to assistance or incentives awarded for the retention of existing businesses, the expansion of existing businesses, or the start-up of new businesses;

(3) The department of revenue, who shall assemble all available data and report on the number, gross receipts and net income of all businesses which are fifty-one percent or more owned by women. The reports shall distinguish those businesses which are sole proprietorships, partnerships or corporations;

(4) The division of purchasing of the office of administration, who shall assemble all available data and report on businesses which are fifty-one percent or more owned by women which are recipients of contracts awarded by the state of Missouri.

2. Prior to December first of each year, starting in 1990, the information described in subdivisions (1) and (2) of this subsection shall be delivered in report form to the Missouri women's council, the governor's office, the secretary of the senate, and the chief clerk of the house of representatives. The information shall apply only to activities which occurred during the previous school year. Reports shall be required from the following:

(1) The department of elementary and secondary education shall assemble all available data from the Vocational and Education Data System (VEDS) on class enrollments by Instruction Program Codes (CIP); by secondary and postsecondary schools; and, secondary, postsecondary, and adult level classes; and by gender. This data shall also be reported by classes of traditional and nontraditional occupational areas.

(2) The coordinating board for higher education shall assemble all available data and report on higher education degrees awarded by academic discipline; type of degree; type of school; and gender. All available data shall also be reported on salaries received upon completion of degree program and subsequent hire, as well as any data available on follow-up salaries.]

[301.3112. 1. Any person may receive special license plates as prescribed by this section, for any motor vehicle such person owns, either solely or jointly, other than an apportioned motor vehicle or a commercial motor vehicle licensed in excess of eighteen thousand pounds gross weight, after an annual contribution of an emblem-use authorization fee to the Friends of the Missouri Women's Council. Any contribution given pursuant to this section shall be designated for breast cancer services only. The Friends of the Missouri Women's Council hereby authorizes the use of its official emblem to be affixed on multiyear personalized license plates as provided in this section. Any contribution to the Friends of the Missouri Women's Council derived from this section, except reasonable administrative costs, shall be used solely for the purpose of providing breast cancer services. Any person may annually apply for the use of the emblem.

2. Upon annual application and payment of a twenty-five dollar emblem-use contribution to the Friends of the Missouri Women's Council, the organization shall issue to the vehicle owner, without further charge, an emblem-use authorization statement, which shall be presented by the owner to the department of revenue at the time of registration of a motor vehicle. Upon presentation of the annual statement, payment of a fifteen dollar fee in addition to the registration fee and documents which may be required by law, the department of revenue shall issue to the vehicle owner a personalized license plate which shall bear the emblem of the Friends of the Missouri Women's Council and shall bear the words "BREAST CANCER AWARENESS" in place of the words "SHOW-ME STATE". Such license plates shall be made with fully reflective material with a common color scheme and design, shall be clearly visible at night, and shall be aesthetically attractive, as prescribed by section 301.130. Notwithstanding the provisions of section 301.144, no additional fee shall be charged for the personalization of license plates pursuant to this section.

3. A vehicle owner, who was previously issued a plate with the Friends of the Missouri Women's Council emblem authorized by this section but who does not provide an emblem-use authorization statement at a subsequent time of registration, shall be issued a new plate which does not bear the Friends of the Missouri Women's Council emblem, as otherwise provided by law. The director of revenue shall make necessary rules and regulations for the administration of this section, and shall design all necessary forms required by this section. No rule or portion of a rule promulgated pursuant to the authority of this section shall become effective unless it has been promulgated pursuant to the provisions of chapter 536, RSMo.]

[327.111. Any person who practices architecture in Missouri as defined in section 327.091, who is not exempt pursuant to the provisions of section 327.101, or who is not the holder of a currently valid license or certificate of authority to practice architecture in Missouri, or who pretends or attempts to use as such person's own the license or certificate of authority or the seal of another architect or who affixes his or her or another's architect's seal on any plans, specifications, drawings, or reports which have not been prepared by such person or under such person's immediate personal supervision, is guilty of a class A misdemeanor.]

[327.201. Any person who practices professional engineering in Missouri as defined in section 327.181, who is not exempt pursuant to the provisions of section 327.191 and who is not the holder of a currently valid license or certificate of authority to practice professional engineering in Missouri, or who pretends or attempts to use as such person's own the license or certificate of authority or the seal of another professional engineer, or who affixes such person's or another professional engineer's seal on any plans, specifications, drawings or reports which have not been prepared by such person or under such person's immediate personal supervision is guilty of a class A misdemeanor.]

[327.291. Any person who practices as a professional land surveyor in Missouri as defined in section 327.272, who is not a holder of a currently valid license or certificate of authority to practice professional land surveying in Missouri, or who pretends or attempts to use as such person's own the license or certificate of authority or the seal of another professional land surveyor or who affixes such person's or another professional land surveyor's seal on any map, plat, survey or other document which has not been prepared by such person or under such person's immediate personal supervision is guilty of a class A misdemeanor.]

[327.633. Any person violating any of the provisions of sections 327.600 to 327.635 is deemed guilty of a class A misdemeanor.]

Section B. Because immediate action is necessary to ensure appropriate membership on the elevator safety board the repeal and reenactment of section 701.353 of this act is deemed necessary for the immediate preservation of the public health, welfare, peace, and safety, and is hereby declared to be an emergency act within the meaning of the constitution, and the repeal and reenactment of section 701.353 of this act shall be in full force and effect upon its passage and approval.

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