EXPLANATION-Matter enclosed in bold-faced brackets [thus] in this bill is not enacted
and is intended to be omitted in the law.
FIRST REGULAR SESSION
SENATE BILL NO. 491
103RD GENERAL ASSEMBLY
INTRODUCED BY SENATOR SCHNELTING.
1648S.01I KRISTINA MARTIN, Secretary
AN ACT
To repeal sections 386.600, 386.754, 386.756, and 386.760, RSMo, and to enact in lieu thereof
five new sections relating to action against certain utilities for violations.
Be it enacted by the General Assembly of the State of Missouri, as follows:
Section A. Sections 386.600, 386.754, 386.756, and 1
386.760, RSMo, are repealed and five new sections enacted in 2
lieu thereof, to be known as sections 386.600, 386.752, 386.754, 3
386.756, and 386.760, to read as follows:4
386.600. An action to recover a penalty or a 1
forfeiture under this chapter or to enforce the powers of 2
the commission under this or any other la w may be brought in 3
any circuit court in this state in the name of the state of 4
Missouri and shall be commenced and prosecuted to final 5
judgment by the general counsel to the commission or the 6
attorney general. No filing or docket fee shall be require d 7
of the general counsel or the attorney general . In any such 8
action all penalties and forfeitures incurred up to the time 9
of commencing the same may be sued for and recovered 10
therein, and the commencement of an action to recover a 11
penalty or forfeiture shall not be, or be held to be, a 12
waiver of the right to recover any other penalty or 13
forfeiture; if the defendant in such action shall prove that 14
during any portion of the time for which it is sought to 15
recover penalties or forfeitures for a viola tion of an order 16
or decision of the commission the defendant was actually and 17 SB 491 2
in good faith prosecuting a suit to review such order or 18
decision in the manner as provided in this chapter, the 19
court shall remit the penalties or forfeitures incurred 20
during the pendency of such proceeding. All moneys 21
recovered as a penalty or forfeiture shall be paid to the 22
public school fund of the state. Any such action may be 23
compromised or discontinued on application of the commission 24
upon such terms as the court shall approve and order. 25
386.752. The provisions of sections 386.752 to 386.764 1
shall be known as and may be cited to as the "Fair 2
Competition Law". 3
386.754. For the purposes of sections [386.754] 1
386.752 to 386.764, the following terms mean: 2
(1) "Affiliate", any entity not regulated by the 3
public service commission which is owned, controlled by , 4
[or] under common control , or acting in concert with a 5
utility and is engaged in HVAC services; 6
(2) "HVAC services", the warranty, sale, lease, 7
rental, installation, construction, modernization, retrofit, 8
maintenance or repair of heating, ventilating and air 9
conditioning equipment; 10
(3) "Utility", an electrical corporation, gas 11
corporation or heatin g company, as defined in section 12
386.020; 13
(4) "Utility contractor", a person, including an 14
individual, corporation, firm, incorporated or 15
unincorporated association or other business or legal 16
entity, that contracts, whether in writing or not in 17
writing, with a utility to engage in or assist any entity in 18
engaging in HVAC services, but does not include employees of 19
a utility. 20 SB 491 3
386.756. 1. [Except by an affiliate, ] A utility may 1
not engage in HVAC services, unless otherwise p rovided in 2
subsection [7 or] 8 of this section. 3
2. No affiliate or utility contractor may use any 4
vehicles, service tools, instruments, employees, or any 5
other utility assets, the cost of which are recoverable in 6
the regulated rates for utility s ervice, to engage in HVAC 7
services unless the utility is compensated for the use of 8
such assets at cost to the utility. 9
3. A utility may not use or allow any affiliate or 10
utility contractor to use the name of such utility to engage 11
in HVAC services unless the utility, affiliate or utility 12
contractor discloses, in plain view and in bold type on the 13
same page as the name is used on all advertisements or in 14
plain audible language during all solicitations of such 15
services, a disclaimer that states the services provided are 16
not regulated by the public service commission. 17
4. A utility may not engage in or assist any affiliate 18
or utility contractor in engaging in HVAC services in a 19
manner which subsidizes the activities of such utility, 20
affiliate or utility contractor to the extent of changing 21
the rates or charges for the utility's regulated services 22
above or below the rates or charges that would be in effect 23
if the utility were not engaged in or assisting any 24
affiliate or utility contrac tor in engaging in such 25
activities. 26
5. Any affiliates or utility contractors engaged in 27
HVAC services shall maintain accounts, books and records 28
separate and distinct from the utility. 29
6. The provisions of this section shall apply to any 30
affiliate or utility contractor engaged in HVAC services 31
that is owned, controlled or under common control with a 32 SB 491 4
utility providing regulated utility service in this state or 33
any other state. 34
7. A utility engaging in HVAC services in this state 35
five years prior to August 28, 1998, may continue providing, 36
to existing as well as new customers, the same type of 37
services as those provided by the utility five years prior 38
to August 28, 1998. The provisions of this section only 39
apply to the area of se rvice which the utility was actually 40
supplying service to on a regular basis prior to August 28, 41
1993. The provisions of this section shall not apply to any 42
subsequently expanded areas of service made by a utility 43
through either existing affiliates or subsidiaries or 44
through affiliates or subsidiaries purchased after August 45
28, 1993, unless such services were being provided in the 46
expanded area prior to August 28, 1993. 47
8. The provisions of this section shall not be 48
construed to prohibit a ut ility from providing emergency 49
service, providing any service required by law or providing 50
a program pursuant to an existing tariff, rule or order of 51
the public service commission that is consistent with the 52
provisions of this section . 53
9. A utility that violates any provision of this 54
section is guilty of a civil offense and may be subject to a 55
civil penalty of up to twelve thousand five hundred dollars 56
for each violation. The attorney general may enforce the 57
provisions of this section pursuan t to any powers granted to 58
him or her pursuant to any relevant provisions provided by 59
Missouri statutes or the Missouri Constitution. 60
10. If the commission receives information that 61
provisions of sections 386.752 to 386.764 have been 62
violated, the commission shall conduct an investigation. 63
Upon a finding that a violation occurred, the commission 64 SB 491 5
shall ask the attorney general to file a civil action in a 65
court of competent jurisdiction. If the court finds that a 66
violation of sections 386.752 to 386.764 occurred, the court 67
may grant damages, injunctive relief, attorney fees, and any 68
such other relief the court deems appropriate. 69
11. Any person informing the commission of any 70
violation under subsection 10 of this section shall not be 71
made a party in an action by the attorney general but may be 72
allowed to intervene without being subject to any burden of 73
proof on the initial filing of the intervention. Any person 74
informing the commission of any violation of the provisions 75
of sections 386.752 to 386.764, or any other interested 76
person, shall be provided a copy of any investigation, 77
settlement, order, or other disposition of the complaint 78
upon a request, but not the work -product of the attorney 79
general. 80
[10.] 12. Any utility claiming an exemption as 81
provided in subsection 7 of this section shall comply with 82
all applicable state and local laws, ordinances or 83
regulations relating to the installation or maintenance of 84
HVAC systems including all permit requirements. A 85
continuing pattern of failure to comply with said 86
requirements shall provide the basis for a finding by any 87
court of competent jurisdiction or the public service 88
commission that the utility has waived its claim of 89
exemption pursuant to subsection 7 of this se ction. 90
386.760. 1. The public service commission shall have 1
full authority to administer and ensure compliance with 2
sections 386.754 to 386.764, provided that the commission 3
shall not impose, by rule or otherwise, requirements 4
regarding HVAC services that are inconsistent with or in 5 SB 491 6
addition to those set forth in sections 386.754 to 386.764 6
or with requirements set forth in section 386.315. 7
2. The public service commission shall not adopt any 8
rule, tariff, order, or any oth er action that purports to 9
allow a violation of sections 386.754 to 386.764. 10
[2.] 3. No rule or portion of a rule promulgated 11
pursuant to the provisions of sections 386.754 to 386.764 12
shall become effective unless it has been promulgated 13
pursuant to the provisions of chapter 536. 14