Chapter 630
Oregon Laws 2011
AN ACT
SB 939
Relating to
state financial administration; creating new provisions; amending ORS 171.305,
184.642, 284.126, 284.335, 377.838, 475.304, 676.150, 676.160, 676.410,
676.606, 676.610, 676.612, 676.613, 676.622, 676.625, 676.992, 691.405,
691.415, 691.435, 691.445, 691.465, 691.485, 701.005, 701.068, 701.088,
701.117, 701.133, 701.139, 701.140, 701.145, 701.146, 701.149, 701.150,
701.153, 701.180, 701.235, 835.020, 835.035, 835.100, 835.106 and 836.072 and
sections 8b and 9e, chapter 877, Oregon Laws 2007, section 5, chapter 755,
Oregon Laws 2009, sections 19 and 20, chapter 827, Oregon Laws 2009, and
sections 9 and 10, chapter 93, Oregon Laws 2010; repealing ORS 87.058, 691.425,
691.455, 691.495, 691.505, 691.515, 691.535, 691.545, 691.555, 691.565,
691.575, 691.580, 691.585, 691.955 and 701.148 and section 5, chapter 93,
Oregon Laws 2010, and section 6, chapter 604, Oregon Laws 2011 (Enrolled House
Bill 2049); and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SEMI-INDEPENDENT
AGENCIES
SECTION 1. ORS 284.126 is amended to
read:
284.126. (1) The Oregon Tourism
Commission shall adopt budgets on a biennial basis using classifications of
expenditures and revenue required by ORS 291.206 (1). That portion of the
budget that is funded by appropriations from the General Fund or by allocations
of lottery funds is subject to review and approval by the Legislative Assembly
and to future modification by the Emergency Board or the Legislative Assembly.
The remainder of the budget is subject to review and recommendation by the
Legislative Assembly.
(2) The commission shall adopt or
modify a budget only after a public hearing on the budget. At least 15 days
prior to a public hearing, the commission shall give notice of the hearing to
all persons known to be interested in the proceedings of the commission and to
any person who has requested a notice. The commission shall file a copy of
the adopted or modified budget with the Legislative Fiscal Officer not later
than five business days after the commission adopts or modifies a budget.
(3) The commission shall follow
generally accepted accounting principles and keep such financial and
statistical information as is necessary to completely and accurately disclose
the financial condition and financial operations of the commission as may be
required by the Secretary of State.
(4) The commission shall prepare an
annual financial statement of commission revenues and expenses and shall make
the statement available for public review. The commission shall file a copy
of the annual financial statement with the Legislative Fiscal Officer not later
than five business days after the statement is prepared or adopted by the
commission.
SECTION 2. ORS 284.335 is amended to
read:
284.335. (1) Except as provided in
subsection (2) of this section, when carrying out the duties, functions and
powers of the Oregon Film and Video Office, the director of the office may
contract with any state agency for the performance of such duties, functions
and powers that the director considers appropriate.
(2) The director of the office [shall] may not, without the prior
approval of the Film and Video Board:
(a) Award any contract for goods or
professional services in excess of $25,000;
(b) Authorize any expenditure of
moneys in excess of $25,000;
(c) Sell or otherwise dispose of real
or personal property valued in excess of $25,000;
(d) Commence a civil legal action or
proceeding;
(e) Sell, transfer and convey property
to a buyer or lease property to a tenant;
(f) Borrow money and give guarantees;
(g) Finance, conduct or cooperate in
the financing of facilities and projects to assist the film, video and emerging
media industries; or
(h) In accordance with ORS chapter
183, adopt rules necessary for the administration of laws that the office is
charged with administering.
(3) The Film and Video Board shall
approve the lease of property to a tenant only when the sale, transfer or
conveyance of the property cannot be effected with reasonable promptness or at
a reasonable price.
(4) The Film and Video Board [shall] may not allow the director
to borrow money or give guarantees under subsection (2)(f) of this section
unless the indebtedness or other obligations of the office are payable solely
out of its own resources and do not constitute a pledge of the full faith and
credit of the State of Oregon or any of the revenues of this state.
(5) The office shall file with the
Governor, [and] the
Legislative Assembly and the Legislative Fiscal Officer a biennial
report of the activities and operations of the office. The report shall include
a full and complete reporting of the financial activities and transactions of
the office during the biennium, including at least the information required under
ORS 284.365 (5).
SECTION 3. ORS 377.838 is amended to
read:
377.838. (1) Except as provided in
subsection (2) of this section, in carrying out the duties, functions and
powers of the Travel Information Council, the director of the Travel Information
Council may contract with any state agency for the performance of such duties,
functions and powers as the council considers appropriate.
(2) The director of the Travel
Information Council [shall] may
not, without the prior approval of the council:
(a) Award any contract for goods or
professional services in excess of $25,000; or
(b) Authorize any expenditure of
moneys in excess of $25,000.
(3) The council shall file with the
Governor, [and] the
Legislative Assembly and the Legislative Fiscal Officer an annual report
of the activities and operations of the council.
OREGON HEALTH
LICENSING AGENCY
SECTION 4. ORS 691.405 is amended to
read:
691.405. As used in ORS 691.405 to
691.585:
[(1)
“American Dietetic Association” means the national professional organization of
dietitians that provides direction and leadership for quality dietetic
practice, education and research.]
[(2)
“Board” means the Board of Examiners of Licensed Dietitians established under
ORS 691.485.]
[(3)
“Commission on Dietetic Registration” means the commission on dietetic
registration that is a member of the National Commission for Certifying
Agencies.]
[(4)]
(1) “Dietetics practice” means the integration and application of
principles derived from the sciences of nutrition, biochemistry, food,
management, physiology and behavioral and social sciences to achieve and
maintain the health of people through:
(a) Assessing the nutritional needs of
clients;
(b) Establishing priorities, goals and
objectives that meet nutritional needs of clients;
(c) Advising and assisting individuals
or groups on appropriate nutritional intake by integrating information from a
nutritional assessment with information on food and other sources of nutrients
and meal preparation; and
(d) Evaluating[,] and making changes in [and] food, diets and nutrition services, maintaining
appropriate standards of nutritional quality in food and maintaining
appropriate standards of nutrition services.
[(5)]
(2) “Licensed dietitian” means a dietitian licensed as provided in ORS
691.435.
SECTION 5. ORS 691.415 is amended to
read:
691.415. [On or after the date stated in the administrative rules adopted by the
Board of Examiners of Licensed Dietitians, no] A person who is not
licensed under ORS 691.435 [shall] may
not practice or attempt to practice as a licensed dietitian using in
connection with the name of the person the words or letters “L.D.,” or “Licensed
Dietitian.”
SECTION 6. ORS 691.485 is amended to
read:
691.485. (1) There is established [a], within the Oregon Health
Licensing Agency, the Board [of
Examiners] of Licensed Dietitians [for
the purpose of carrying out and enforcing the provisions of ORS 691.405 to
691.585] to advise the agency with regard to the regulation of
dietitians. The board consists of seven members appointed by the Governor [and subject to confirmation by the Senate in
the manner provided in ORS 171.562 and 171.565]. All members of the board
must be residents of this state. Of the members of the board:
(a) Two must be members of the general
public who are not otherwise qualified for membership on the board and who are
not a spouse, domestic partner, child, parent or sibling of a licensed
dietitian;
(b) One must be a physician trained in
clinical nutrition; and
(c) Four must be licensed dietitians
who have been engaged in the practice of dietetics for [no fewer than] at least five years.
[(2)(a)
Board members required to be licensed dietitians may be selected by the
Governor from a list of three to five nominees for each vacancy, submitted by a
professional organization representing dietitians.]
[(b)
In selecting the members of the board, the Governor shall strive to balance the
representation on the board according to:]
[(A)
Geographic areas of this state; and]
[(B)
Ethnic group.]
[(3)]
(2) The term of office of each member is [three] four years, but a member serves at the pleasure of
the Governor. [The terms must be
staggered so that no more than three terms end each year.] A member is
eligible for reappointment. If a person serves two consecutive full terms, a
period of at least four years must elapse before the person is again eligible
for appointment to serve on the board. If there is a vacancy on the board
for any reason, the Governor shall make an appointment to become immediately
effective for the unexpired term. A member shall hold the member’s office
until the appointment and qualification of a successor.
[(4)]
(3) Members of the board are entitled to compensation and expenses as
provided in ORS 292.495. The [board] agency
may provide by rule for compensation to board members for the performance of
official duties at a rate that is greater than the rate provided in ORS
292.495.
(4) The board shall meet at least
once per year.
SECTION 7. ORS 691.435 is amended to
read:
691.435. [An applicant shall be granted a license as a dietitian if the person
has:] The Oregon Health Licensing Agency, in consultation with the Board
of Licensed Dietitians, shall issue a dietitian license to an applicant who:
(1) [Filed] Files an application [and paid the required application fee;] as prescribed by the
agency;
(2) Pays fees established by the
agency; and
[(2)]
(3) Demonstrates to the satisfaction of the agency that the applicant has:
(a)
Received a baccalaureate or post-baccalaureate degree from a regionally
accredited college or university in the United States with a major course of
study in human nutrition, dietetics, foods and nutrition or food systems
management approved by the board [of
Examiners of Licensed Dietitians] as meeting the standards for approval of
the course of study under ORS 691.405 to 691.585;
[(3)
Demonstrated knowledge of the Code of Ethics of the Dietetic Profession; and
either]
[(4)
Satisfactorily completed continuing education requirements established by the
board; or]
[(5)]
(b) Completed a planned, continuous program of dietetic experience
approved by the [board] agency
of 900 hours under the supervision of a licensed dietitian; and
[(6)]
(c) Passed an examination prescribed by the [board] agency.
SECTION 8. ORS 691.445 is amended to
read:
691.445. The Oregon Health
Licensing Agency, in consultation with the Board [of Examiners] of Licensed Dietitians, may waive the
examination requirement and grant a dietitian license to an applicant [for a license as a dietitian] who:
(1) Files an application as
prescribed by the agency;
(2) Pays fees established by the
agency; and
[(1)]
(3) Presents satisfactory evidence [to
the board] of:
(a)
Current registration as a dietitian with [the
Commission on Dietetic Registration;] a credentialing body approved by
the board; or
(b) Current licensure under the laws
of any other state or territory in the United States, if the requirements for
licensure of dietitians in the state or territory in which the applicant is
licensed are not less than those required by ORS 691.405 to 691.585.
[(2)
Was a practicing dietitian before 1990 and has been employed in the practice of
dietetics for at least three of the 10 years prior to October 3, 1989; or]
[(3)
At the time of application, received a doctorate degree in nutrition, dietetics
or related physical sciences under a curriculum approved by the board and been
involved in dietetics through practice, teaching or research related to
nutrition care.]
SECTION 9. ORS 691.465 is amended to read:
691.465. [(1) The Board of Examiners of Licensed Dietitians shall issue a license
with a duration of not more than two years to each person approved to be
licensed. The license shall be prima facie evidence of the right of the person
to whom it is issued to represent the person as a licensed dietitian subject to
the provisions of ORS 691.405 to 691.585.]
[(2)
Each licensed dietitian shall apply to the board for a renewal of the license
at least 30 days before the expiration date. Licenses shall expire on October
31 of odd-numbered years or on such date as may be specified by board rule.
Each applicant for renewal shall submit the required fee and present evidence
of completion of at least 30 hours of continuing education or present evidence
of the minimum continuing education requirements of the American Dietetic
Association. Any license that is not renewed by the expiration date shall be
automatically suspended. The board may reinstate a suspended license upon
payment of a nonrefundable penalty fee and all past unpaid renewal fees.]
[(3)
The license fee for a license issued for a period of less than 24 months shall
be prorated on a monthly basis to reflect the shorter licensing period.]
[(4)
A license that has been suspended by reason of nonpayment of fees for a period
of two years or more shall be renewed upon reapplication and payment of all
applicable fees.]
[(5)
Subject to prior approval of the Oregon Department of Administrative Services
and a report to the Emergency Board prior to adopting the fees and charges, the
fees and charges established under this section shall not exceed the cost of
administering the regulatory program for which the fee or charge is
established, as authorized by the Legislative Assembly within the board’s
budget to implement ORS 691.405 to 691.585, as the budget may be modified by
the Emergency Board.]
(1) Except as provided in
subsections (2) and (3) of this section, a license issued under ORS 691.405 to
691.585 expires one year from the date of issuance. To renew the license, the
licensee must submit to the Oregon Health Licensing Agency:
(a) A completed renewal application;
(b) The required renewal fee; and
(c) Satisfactory evidence of having
completed any required continuing education credits on or before the expiration
date of the license as specified by agency rule.
(2) The agency may vary the date of
license renewal by giving the applicant written notice of the renewal date
being assigned and by making prorated adjustments to the renewal fee.
(3) The agency shall adopt by rule
requirements for late renewal of a license, reactivation of a dormant or
expired license or reinstatement of a license that has been expired for more
than three consecutive years.
SECTION 10. Sections 11 to 13 of
this 2011 Act are added to and made a part of ORS 691.405 to 691.585.
SECTION 11. The Oregon Health
Licensing Agency, in consultation with the Board of Licensed Dietitians, shall:
(1) Adopt rules necessary for the
administration of ORS 691.405 to 691.585;
(2) Issue, deny, revoke, suspend and
renew dietitian licenses;
(3) Determine the qualifications,
training, education and fitness of applicants for licenses, renewals of
licenses and reciprocal licenses for dietitians;
(4) Determine requirements for
reciprocity and equivalency for licensed dietetics practice;
(5) Establish a code of professional
responsibility and standards of practice for licensed dietitians;
(6) Develop, approve or recognize
examinations to test an applicant’s knowledge relating to dietitian techniques
and methods and any other subjects the board may determine to be necessary to
assess an applicant’s fitness to practice as a licensed dietitian;
(7) Provide for waivers of
examinations; and
(8) Establish continuing education
requirements for renewal of a dietitian license.
SECTION 12. (1) The Oregon Health
Licensing Agency shall establish by rule and collect fees and charges for the
following related to licensed dietitians:
(a) Application;
(b) Original license;
(c) License renewal;
(d) Temporary practice registration;
(e) Examinations;
(f) License reactivation;
(g) Late renewal;
(h) Replacement or duplicate license;
(i) Reciprocity; and
(j) Providing copies of official
documents or records and for recovering administrative costs associated with
compiling, photocopying or preparing and delivering the documents or records.
(2) All moneys received by the agency
under subsection (1) of this section shall be paid into the General Fund of the
State Treasury and credited to the Oregon Health Licensing Agency Account.
SECTION 13. In the manner
prescribed in ORS chapter 183 for contested cases and in consultation with the
Board of Licensed Dietitians, the Oregon Health Licensing Agency may impose a
form of discipline listed in ORS 676.612 against any person practicing
dietetics for any of the grounds listed in ORS 676.612 and for any violation of
the provisions of ORS 691.405 to 691.585, or the rules adopted under ORS
691.405 to 691.585.
SECTION 14. ORS 676.606 is amended to
read:
676.606. Pursuant to ORS 676.607, the
Oregon Health Licensing Agency shall provide administrative and regulatory
oversight and centralized service for the following boards, advisory councils
and programs:
(1) Board of Athletic Trainers, as
provided in ORS 688.701 to 688.734;
(2) Board of Cosmetology, as provided
in ORS 690.005 to 690.235;
(3) State Board of Denture Technology,
as provided in ORS 680.500 to 680.565;
(4) State Board of Direct Entry
Midwifery, as provided in ORS 687.405 to 687.495;
(5) Respiratory Therapist Licensing
Board, as provided in ORS 688.800 to 688.840;
(6) Environmental Health Registration
Board, as provided in ORS chapter 700;
(7) Advisory Council for
Electrologists and Permanent Color Technicians and Tattoo Artists, as provided
in ORS 690.350 to 690.430;
(8) Advisory Council on Hearing Aids,
as provided in ORS 694.015 to 694.185;
(9) Body piercing technician
registration program and body piercing facility licensing program, as provided
in ORS 690.500 to 690.570;
(10) Sex Offender Treatment Board, as
provided in ORS 675.360 to 675.410; [and]
(11) Nursing Home Administrators
Board, as provided in ORS 678.710 to 678.820; and
(12) Board of Licensed Dietitians, as
provided in ORS 691.405 to 691.585.
SECTION 15. ORS 676.610 is amended to
read:
676.610. (1)(a) The Oregon Health
Licensing Agency is under the supervision and control of a director, who is
responsible for the performance of the duties, functions and powers and for the
organization of the agency.
(b) The Director of the Oregon Department
of Administrative Services shall establish the qualifications for and appoint
the Director of the Oregon Health Licensing Agency, who holds office at the
pleasure of the Director of the Oregon Department of Administrative Services.
(c) The Director of the Oregon Health
Licensing Agency shall receive a salary as provided by law or, if not so
provided, as prescribed by the Director of the Oregon Department of
Administrative Services.
(d) The Director of the Oregon Health
Licensing Agency shall be in the unclassified service.
(2) The Director of the Oregon Health
Licensing Agency shall provide the boards, councils and programs administered
by the agency with such services and employees as the agency requires to carry
out the agency’s duties. Subject to any applicable provisions of the State
Personnel Relations Law, the Director of the Oregon Health Licensing Agency
shall appoint all subordinate officers and employees of the agency, prescribe
their duties and fix their compensation.
(3) The Director of the Oregon Health
Licensing Agency shall be responsible for carrying out the duties, functions
and powers under ORS 675.360 to 675.410, 676.605 to 676.625, 676.992, 678.710
to 678.820, 680.500 to 680.565, 687.405 to 687.495, 687.895, 688.701 to
688.734, 688.800 to 688.840, 690.005 to 690.235, 690.350 to 690.430, 690.500 to
690.570, 691.405 to 691.585 and 694.015 to 694.185 and ORS chapter 700.
(4) The enumeration of duties,
functions and powers in subsection (3) of this section is not intended to be
exclusive or to limit the duties, functions and powers imposed on or vested in
the Oregon Health Licensing Agency by other statutes.
SECTION 16. ORS 676.612 is amended to
read:
676.612. (1) In the manner prescribed
in ORS chapter 183 for contested cases and as specified in ORS 675.385,
678.780, 680.535, 687.445, 688.734, 688.836, 690.167, 690.407, 690.515, 694.147
and 700.111 and section 13 of this 2011 Act, the Oregon Health Licensing
Agency may refuse to issue or renew, may suspend or revoke or may otherwise condition
or limit a certificate, license, permit or registration to practice issued by
the agency or may discipline or place on probation a holder of a certificate,
license, permit or registration for commission of the prohibited acts listed in
subsection (2) of this section.
(2) A person subject to the authority
of a board, council or program listed in ORS 676.606 commits a prohibited act
if the person engages in:
(a) Fraud, misrepresentation,
concealment of material facts or deception in applying for or obtaining an
authorization to practice in this state, or in any written or oral
communication to the agency concerning the issuance or retention of the
authorization.
(b) Using, causing or promoting the
use of any advertising matter, promotional literature, testimonial, guarantee,
warranty, label, insignia or any other representation, however disseminated or
published, that is false, misleading or deceptive.
(c) Making a representation that the
certificate, license, permit or registration holder knew or should have known
is false or misleading regarding skill or the efficacy or value of treatment or
remedy administered by the holder.
(d) Practicing under a false,
misleading or deceptive name, or impersonating another certificate, license,
permit or registration holder.
(e) Permitting a person other than the
certificate, license, permit or registration holder to use the certificate,
license, permit or registration.
(f) Practicing with a physical or
mental condition that presents an unreasonable risk of harm to the holder of a
certificate, license, permit or registration or to the person or property of
others in the course of performing the holder’s duties.
(g) Practicing while under the
influence of alcohol, controlled substances or other skill-impairing
substances, or engaging in the illegal use of controlled substances or other
skill-impairing substances so as to create a risk of harm to the person or
property of others in the course of performing the duties of a holder of a
certificate, license, permit or registration.
(h) Failing to properly and reasonably
accept responsibility for the actions of employees.
(i) Employing, directly or indirectly,
any suspended, uncertified, unlicensed or unregistered person to practice a
regulated occupation or profession subject to the authority of the boards,
councils and programs listed in ORS 676.606.
(j) Unprofessional conduct,
negligence, incompetence, repeated violations or any departure from or failure
to conform to standards of practice in performing services or practicing in a
regulated occupation or profession subject to the authority of the boards,
councils and programs listed under ORS 676.606.
(k) Conviction of any criminal
offense, subject to ORS 670.280. A copy of the record of conviction, certified
by the clerk of the court entering the conviction, is conclusive evidence of
the conviction. A plea of no contest or an admission of guilt shall be
considered a conviction for purposes of this paragraph.
(L) Failing to report any adverse
action, as required by statute or rule, taken against the certificate, license,
permit or registration holder by another regulatory jurisdiction or any peer
review body, health care institution, professional association, governmental
agency, law enforcement agency or court for acts or conduct similar to acts or
conduct that would constitute grounds for disciplinary action as described in
this section.
(m) Violation of a statute regulating
an occupation or profession subject to the authority of the boards, councils
and programs listed in ORS 676.606.
(n) Violation of any rule regulating
an occupation or profession subject to the authority of the boards, councils
and programs listed in ORS 676.606.
(o) Failing to cooperate with the
agency in any investigation, inspection or request for information.
(p) Selling or fraudulently obtaining
or furnishing any certificate, license, permit or registration to practice in a
regulated occupation or profession subject to the authority of the boards,
councils and programs listed in ORS 676.606, or aiding or abetting such an act.
(q) Selling or fraudulently obtaining
or furnishing any record related to practice in a regulated occupation or
profession subject to the authority of the boards, councils and programs listed
in ORS 676.606, or aiding or abetting such an act.
(r) Failing to pay an outstanding
civil penalty or fee that is due or failing to meet the terms of any order
issued by the agency that has become final.
(3) For the purpose of requesting a
state or nationwide criminal records check under ORS 181.534, the agency may
require the fingerprints of a person who is:
(a) Applying for a certificate,
license, permit or registration that is issued by the agency;
(b) Applying for renewal of a
certificate, license, permit or registration that is issued by the agency; or
(c) Under investigation by the agency.
(4) If the agency places a holder of a
certificate, license, permit or registration on probation under subsection (1)
of this section, the agency, in consultation with the appropriate board,
council or program, may determine and at any time modify the conditions of the
probation.
(5) If a certificate, license, permit
or registration is suspended, the holder may not practice during the term of
suspension. Upon the expiration of the term of suspension, the certificate,
license, permit or registration may be reinstated by the agency if the
conditions of suspension no longer exist and the holder has satisfied all
requirements in the relevant statutes or administrative rules for issuance,
renewal or reinstatement.
SECTION 17. ORS 676.613 is amended to
read:
676.613. (1) In addition to all other
remedies, when it appears to the Oregon Health Licensing Agency that a person
is engaged in, has engaged in or is about to engage in any act, practice or
transaction that violates any provision of ORS 675.360 to 675.410, 676.617,
678.710 to 678.820, 680.500 to 680.565, 687.405 to 687.495, 688.701 to 688.734,
688.800 to 688.840, 690.005 to 690.235, 690.350 to 690.430, 690.500 to 690.570,
691.405 to 691.585 or 694.015 to 694.185 or ORS chapter 700, the agency
may, through the Attorney General or the district attorney of the county in
which the act, practice or transaction occurs or will occur, apply to the court
for an injunction restraining the person from the act, practice or transaction.
(2) A court may issue an injunction
under this section without proof of actual damages. An injunction issued under
this section does not relieve a person from any other prosecution or
enforcement action taken for violation of statutes listed in subsection (1) of
this section.
SECTION 18. ORS 676.622 is amended to
read:
676.622. (1) A transaction conducted
through a state or local system or network that provides electronic access to
the Oregon Health Licensing Agency information and services is exempt from any
requirement under ORS 675.360 to 675.410, 676.605 to 676.625, 676.992, 680.500
to 680.565, 687.405 to 687.495, 688.701 to 688.734, 688.800 to 688.840, 690.005
to 690.235, 690.350 to 690.430, 690.500 to 690.570, 691.405 to 691.585
and 694.015 to 694.185 and ORS chapter 700, and rules adopted thereunder,
requiring an original signature or the submission of handwritten materials.
(2) Electronic signatures subject to
ORS 84.001 to 84.061 and facsimile signatures are acceptable and have the same
force as original signatures.
SECTION 19. ORS 676.625 is amended to
read:
676.625. (1) The Oregon Health
Licensing Agency shall establish by rule and shall collect fees and charges to
carry out the agency’s responsibilities under ORS 676.605 to 676.625 and
676.992 and any responsibility imposed on the agency pertaining to the boards,
councils and programs administered and regulated by the agency pursuant to ORS
676.606.
(2) The Oregon Health Licensing Agency
Account is established in the General Fund of the State Treasury. The account
shall consist of the moneys credited to the account by the Legislative
Assembly. All moneys in the account are appropriated continuously to and shall
be used by the Oregon Health Licensing Agency for payment of expenses of the
agency in carrying out the duties, functions and obligations of the agency, and
for payment of the expenses of the boards, councils and programs administered
and regulated by the agency pursuant to ORS 676.606. The agency shall keep a
record of all moneys credited to the account and report the source from which
the moneys are derived and the activity of each board, council or program that
generated the moneys.
(3) Subject to prior approval of the
Oregon Department of Administrative Services and a report to the Emergency
Board prior to adopting fees and charges credited to the account, the fees and
charges may not exceed the cost of administering the agency and the boards,
councils and programs within the agency, as authorized by the Legislative
Assembly within the agency’s budget, as the budget may be modified by the
Emergency Board.
(4) All moneys credited to the account
pursuant to ORS 675.405, 676.617, 680.525, 687.435, 688.728, 688.834, 690.235,
690.415, 690.550, 694.185 and 700.080 and section 12 of this 2011 Act,
and moneys credited to the account from other agency and program fees
established by the agency by rule, are continuously appropriated to the agency
for carrying out the duties, functions and powers of the agency under ORS
676.605 to 676.625 and 676.992.
(5) The moneys received from civil
penalties assessed under ORS 676.992 shall be deposited and accounted for as
are other moneys received by the agency and shall be for the administration and
enforcement of the statutes governing the boards, councils and programs
administered by the agency.
SECTION 20. ORS 676.992 is amended to
read:
676.992. (1) Except as provided in
subsection (3) of this section, and in addition to any other penalty or remedy
provided by law, the Oregon Health Licensing Agency may impose a civil penalty
not to exceed $5,000 for each violation of the following statutes and any rule
adopted thereunder:
(a) ORS 688.701 to 688.734 (athletic
training);
(b) ORS 690.500 to 690.570 (body piercing);
(c) ORS 690.005 to 690.235
(cosmetology);
(d) ORS 680.500 to 680.565 (denture
technology);
(e) ORS 687.405 to 687.495 (direct
entry midwifery);
(f) ORS 690.350 to 690.430
(electrology and permanent coloring or tattooing);
(g) ORS 694.015 to 694.185 (dealing in
hearing aids);
(h) ORS 688.800 to 688.840
(respiratory therapy);
(i) ORS chapter 700 (environmental
sanitation);
(j) ORS 676.617 (single facility
licensure);
(k) ORS 675.360 to 675.410 (sex
offender treatment);
(L) ORS 678.710 to 678.820 (nursing
home administrators); [and]
(m) ORS 691.405 to 691.585
(dietitians); and
[(m)]
(n) ORS 676.612 (prohibited acts).
(2) The agency may take any other
disciplinary action that it finds proper, including but not limited to
assessment of costs of disciplinary proceedings, not to exceed $5,000, for
violation of any statute listed in subsection (1) of this section or any rule
adopted under any statute listed in subsection (1) of this section.
(3) Subsection (1) of this section
does not limit the amount of the civil penalty resulting from a violation of
ORS 694.042.
(4) In imposing a civil penalty
pursuant to this section, the agency shall consider the following factors:
(a) The immediacy and extent to which
the violation threatens the public health or safety;
(b) Any prior violations of statutes,
rules or orders;
(c) The history of the person
incurring a penalty in taking all feasible steps to correct any violation; and
(d) Any other aggravating or
mitigating factors.
(5) Civil penalties under this section
shall be imposed as provided in ORS 183.745.
(6) The moneys received by the agency
from civil penalties under this section shall be paid into the General Fund of
the State Treasury and credited to the Oregon Health Licensing Agency Account
established under ORS 676.625. Such moneys are continuously appropriated to the
agency for the administration and enforcement of the laws the agency is charged
with administering and enforcing that govern the person against whom the
penalty was imposed.
SECTION 21. ORS 676.150 is amended to
read:
676.150. (1) As used in this section:
(a) “Board” means the:
(A) State Board of Examiners for
Speech-Language Pathology and Audiology;
(B) State Board of Chiropractic
Examiners;
(C) State Board of Licensed Social
Workers;
(D) Oregon Board of Licensed
Professional Counselors and Therapists;
(E) Oregon Board of Dentistry;
(F) Board [of Examiners] of Licensed Dietitians;
(G) State Board of Massage Therapists;
(H) Oregon Board of Naturopathic
Medicine;
(I) Oregon State Board of Nursing;
(J) Nursing Home Administrators Board;
(K) Oregon Board of Optometry;
(L) State Board of Pharmacy;
(M) Oregon Medical Board;
(N) Occupational Therapy Licensing
Board;
(O) Physical Therapist Licensing
Board;
(P) State Board of Psychologist
Examiners;
(Q) Board of Radiologic Technology;
(R) State Board of Direct Entry
Midwifery;
(S) State Board of Denture Technology;
(T) Respiratory Therapist Licensing
Board;
(U) Department of Human Services, to
the extent that the department certifies emergency medical technicians;
(V) Oregon State Veterinary Medical
Examining Board; or
(W) State Mortuary and Cemetery Board.
(b) “Licensee” means a health
professional licensed or certified by or registered with a board.
(c) “Prohibited conduct” means conduct
by a licensee that:
(A) Constitutes a criminal act against
a patient or client; or
(B) Constitutes a criminal act that
creates a risk of harm to a patient or client.
(d) “Unprofessional conduct” means
conduct unbecoming a licensee or detrimental to the best interests of the
public, including conduct contrary to recognized standards of ethics of the
licensee’s profession or conduct that endangers the health, safety or welfare
of a patient or client.
(2) Unless state or federal laws
relating to confidentiality or the protection of health information prohibit
disclosure, a licensee who has reasonable cause to believe that another
licensee has engaged in prohibited or unprofessional conduct shall report the
conduct to the board responsible for the licensee who is believed to have
engaged in the conduct. The reporting licensee shall report the conduct without
undue delay, but in no event later than 10 working days after the reporting
licensee learns of the conduct.
(3) A licensee who is convicted of a
misdemeanor or felony or who is arrested for a felony crime shall report the
conviction or arrest to the licensee’s board within 10 days after the
conviction or arrest.
(4) The board responsible for a
licensee who is reported to have engaged in prohibited or unprofessional
conduct shall investigate in accordance with the board’s rules. If the board
has reasonable cause to believe that the licensee has engaged in prohibited
conduct, the board shall present the facts to an appropriate law enforcement
agency without undue delay, but in no event later than 10 working days after
the board finds reasonable cause to believe that the licensee engaged in
prohibited conduct.
(5) A licensee who fails to report
prohibited or unprofessional conduct as required by subsection (2) of this
section or the licensee’s conviction or arrest as required by subsection (3) of
this section is subject to discipline by the board responsible for the
licensee.
(6) A licensee who fails to report
prohibited conduct as required by subsection (2) of this section commits a
Class A violation.
(7) Notwithstanding any other
provision of law, a report under subsection (2) or (3) of this section is
confidential under ORS 676.175. A board may disclose a report as provided in
ORS 676.177.
(8) Except as part of an application
for a license or for renewal of a license and except as provided in subsection
(3) of this section, a board may not require a licensee to report the licensee’s
criminal conduct.
(9) The obligations imposed by this
section are in addition to and not in lieu of other obligations to report
unprofessional conduct as provided by statute.
(10) A licensee who reports to a board
in good faith as required by subsection (2) of this section is immune from
civil liability for making the report.
(11) A board and the members,
employees and contractors of the board are immune from civil liability for
actions taken in good faith as a result of a report received under subsection
(2) or (3) of this section.
SECTION 22. ORS 676.160 is amended to
read:
676.160. As used in ORS 676.165 to
676.180, “health professional regulatory board” means the:
(1) State Board of Examiners for
Speech-Language Pathology and Audiology;
(2) State Board of Chiropractic
Examiners;
(3) State Board of Licensed Social
Workers;
(4) Oregon Board of Licensed
Professional Counselors and Therapists;
(5) Oregon Board of Dentistry;
(6) Board [of Examiners] of Licensed Dietitians;
(7) State Board of Massage Therapists;
(8) State Mortuary and Cemetery Board;
(9) Oregon Board of Naturopathic
Medicine;
(10) Oregon State Board of Nursing;
(11) Nursing Home Administrators
Board;
(12) Oregon Board of Optometry;
(13) State Board of Pharmacy;
(14) Oregon Medical Board;
(15) Occupational Therapy Licensing
Board;
(16) Physical Therapist Licensing
Board;
(17) State Board of Psychologist
Examiners;
(18) Board of Medical Imaging;
(19) Oregon State Veterinary Medical
Examining Board; and
(20) Oregon Health Authority to the
extent that the authority certifies emergency medical technicians.
SECTION 23. ORS 676.410 is amended to
read:
676.410. (1) As used in this section, “healthcare
workforce regulatory board” means the:
(a) Occupational Therapy Licensing
Board;
(b) Oregon Medical Board;
(c) Oregon State Board of Nursing;
(d) Oregon Board of Dentistry;
(e) Physical Therapist Licensing
Board;
(f) State Board of Pharmacy; and
(g) Board [of Examiners] of Licensed Dietitians.
(2)(a) An applicant for a license from
a healthcare workforce regulatory board or renewal of a license by a healthcare
workforce regulatory board shall provide the information prescribed by the
Office for Oregon Health Policy and Research pursuant to subsection (3) of this
section.
(b) Except as provided in subsection
(4) of this section, a healthcare workforce regulatory board may not approve a
subsequent application for a license or renewal of a license until the
applicant provides the information.
(3) The Administrator for the Office
for Oregon Health Policy and Research shall collaborate with the healthcare
workforce regulatory boards to adopt rules for the manner, form and content for
reporting, and the information that must be provided to a healthcare workforce
regulatory board under subsection (2) of this section, which may include:
(a) Demographics, including race and
ethnicity.
(b) Education information.
(c) License information.
(d) Employment information.
(e) Primary and secondary practice
information.
(f) Anticipated changes in the
practice.
(g) Languages spoken.
(4)(a) A healthcare workforce
regulatory board shall report healthcare workforce information collected under
subsection (2) of this section to the Office for Oregon Health Policy and
Research.
(b) A healthcare workforce regulatory
board shall keep confidential and not release personally identifiable data
collected under this section for a person licensed, registered or certified by
a board. This paragraph does not apply to the release of information to a law
enforcement agency for investigative purposes or to the release to the Office
for Oregon Health Policy and Research for state health planning purposes.
(5) The requirements of subsection (2)
of this section apply to an applicant for issuance or renewal of a license who
is or who is applying to become:
(a) An occupational therapist or
certified occupational therapy assistant as defined in ORS 675.210;
(b) A physician as defined in ORS
677.010;
(c) A physician assistant as defined
in ORS 677.495;
(d) A nurse or nursing assistant
licensed or certified under ORS 678.010 to 678.410;
(e) A dentist or dental hygienist as
defined in ORS 679.010;
(f) A physical therapist or physical
therapist assistant as defined in ORS 688.010;
(g) A pharmacist or pharmacy
technician as defined in ORS 689.005; or
(h) A licensed dietitian, as defined
in ORS 691.405.
(6) A healthcare workforce regulatory
board may adopt rules as necessary to perform the board’s duties under this
section.
(7) In addition to licensing fees that
may be imposed by a healthcare workforce regulatory board, the Oregon Health
Policy Board shall establish fees to be paid by applicants for issuance or
renewal of licenses reasonably calculated to reimburse the actual cost of
obtaining or reporting information as required by subsection (2) of this
section.
SECTION 24. ORS 691.425, 691.455,
691.495, 691.505, 691.515, 691.535, 691.545, 691.555, 691.565, 691.575,
691.580, 691.585 and 691.955 are repealed.
SECTION 25. The unexpended balance
of the Board of Examiners of Licensed Dietitians Account established in ORS
691.565 is transferred to the Oregon Health Licensing Agency Account
established in ORS 676.625 for expenditure by the agency for the biennium
beginning July 1, 2011, as provided in ORS 676.625.
SECTION 26. (1) The repeal of ORS
691.505, 691.535, 691.545, 691.555 and 691.955 by section 24 of this 2011 Act
does not affect any proceeding under ORS 691.505, 691.535, 691.545, 691.555 or
691.955 begun before and pending on the effective date of this 2011 Act, except
that the Oregon Health Licensing Agency is substituted for the Board of
Examiners of Licensed Dietitians in the proceeding.
(2) The amendments to ORS 691.485 by
section 6 of this 2011 Act are intended to change the name of the Board of
Examiners of Licensed Dietitians to the Board of Licensed Dietitians.
(3) For the purpose of harmonizing and
clarifying statutory law, the Legislative Counsel may substitute for words
designating the Board of Examiners of Licensed Dietitians, wherever they occur
in statutory law, other words designating the Board of Licensed Dietitians.
SECRETARY OF
STATE
SECTION 27. Notwithstanding ORS
56.041 and in addition to the transfers required by ORS 56.041 (4), the amount
of $4,700,000 is transferred from the Operating Account to the General Fund for
general governmental purposes. The transfer shall be made on May 31, 2012.
STATE FINANCE
SECTION 28. (1) Notwithstanding
any provision of ORS 291.232 to 291.260, state agencies may submit estimates
for allotment periods, and the Oregon Department of Administrative Services
shall approve estimates and administer the allotment system provided for in ORS
291.232 to 291.260 in a manner that allows state agencies to expend, during the
period beginning July 1, 2011, and ending June 30, 2012, up to 54 percent of
the amount appropriated to the agency for the biennium beginning July 1, 2011.
(2) Notwithstanding any provision of
law, the Oregon Department of Administrative Services shall establish a process
for allocating available moneys in the Administrative Services Economic
Development Fund in a manner that allows state agencies to expend, during the
period beginning July 1, 2011, and ending June 30, 2012, up to 54 percent of
the amount allocated to the agency for the biennium beginning July 1, 2011.
AVIATION DEPARTMENT
SECTION 29. (1) The Department of
Transportation shall provide the following central business operating services
for the Oregon Department of Aviation:
(a) Budget preparation services;
(b) Daily processing for accounts
payable, accounts receivable, payroll, receipts and disbursements;
(c) Records and inventory maintenance
accounting services;
(d) Financial management reports and
revenue and expenditure projections;
(e) Purchasing, leasing and
contracting services;
(f) Internal audit services;
(g) Computer and information system
services; and
(h) Human resource services.
(2) The Oregon Department of Aviation
shall comply with all rules adopted by the Department of Transportation related
to the services described in subsection (1) of this section.
(3) The Department of Transportation
may charge the Oregon Department of Aviation a fee for the services the
Department of Transportation provides under this section. The Department of
Transportation shall calculate the rate of the fee using the same methodology
the Department of Transportation uses to calculate the central services
assessment imposed within the Department of Transportation for similar
services. The Oregon Department of Aviation shall pay any fees imposed under
this section within 30 days of receiving the request for payment.
(4) All moneys received by the
Department of Transportation under this section shall be paid into the State
Treasury each month and credited to the Department of Transportation Operating
Fund established by ORS 184.642.
(5) The Department of Transportation
shall adopt rules for the administration and implementation of this section.
SECTION 30. ORS 835.020 is amended to
read:
835.020. Subject to section 29 of
this 2011 Act, the Director of the Oregon Department of Aviation may enter
into any contracts authorized by the State Aviation Board and necessary to the
execution of the powers granted by this chapter. All contracts made by the
director, either as the agent of the state or as the agent of any municipality,
shall be made pursuant to the laws of the state governing the making of like
contracts; however, where the planning, acquisition, construction, improvement,
maintenance or operation of any airport, or any navigation facility is financed
wholly or in part with federal money, the director as the agent of the state or
any municipality may let contracts in the manner prescribed by the federal
authorities acting under the laws of the United States and any rules or
regulations made thereunder.
SECTION 31. ORS 835.035 is amended to
read:
835.035. (1) Subject to section 29
of this 2011 Act, the State Aviation Board may perform such acts, adopt or
amend and issue such orders, rules and regulations, and make, promulgate and
amend such minimum standards, all consistent with the provisions of this
chapter, as it considers necessary to carry out the provisions of this chapter
and to perform its duties thereunder.
(2) No such rule, regulation or order
of the board shall apply to airports or air navigation facilities owned or
operated by the United States.
(3) All authority, power and duty
delegated to the board by the provisions of this section shall be exercised and
performed in all respects commensurate with and for the purpose of protecting
and insuring the general public interest and safety, the safety of persons
receiving instruction concerning, or operating, or using or traveling in
aircraft, and of persons or property on land or water, and to develop and
promote aviation in this state.
(4) Promulgation of rules, conduct of
hearings and issuance and judicial review of rules and orders shall be in
accordance with ORS chapter 183.
SECTION 32. ORS 835.100 is amended to
read:
835.100. (1) The Oregon Department of
Aviation is established.
(2) The department is under the
supervision and control of a director, who is responsible for the performance
of the duties, functions and powers of the department, subject to section 29
of this 2011 Act.
(3) For purposes of administration,
subject to the approval of the State Aviation Board, the director may organize
and reorganize the department as the director considers necessary to conduct
properly the work of the department.
SECTION 33. ORS 835.106 is amended to
read:
835.106. (1) The Governor shall
appoint the Director of the Oregon Department of Aviation, subject to
confirmation by the Senate pursuant to ORS 171.562 and 171.565, who holds
office at the pleasure of the Governor.
(2) Subject to section 29 of this
2011 Act and the policy direction by the State Aviation Board, the
director shall:
(a) Be the administrative head of the
department;
(b) Have power, within applicable
budgetary limitations, and in accordance with ORS chapter 240, to hire, assign,
reassign and coordinate personnel of the department and prescribe their duties
and fix their compensation, subject to the State Personnel Relations Law;
(c) Administer the laws of the state
concerning aviation; and
(d) Intervene, as authorized by the
board, pursuant to the rules of practice and procedure, in the proceedings of
state and federal agencies that may substantially affect the interests of the
consumers and providers of aviation services within Oregon.
(3) Subject to section 29 of this
2011 Act, in addition to duties otherwise required by law, the director
shall prescribe regulations for the government of the department, the conduct
of its employees, the assignment and performance of its business and the
custody, use and preservation of its records, papers and property in a manner
consistent with applicable law.
(4) The director may delegate to any
of the employees of the department the exercise or discharge in the director’s
name of any duty, function or power of whatever character, vested in or imposed
by law upon the director, including duties, functions or powers delegated to
the director by the board. The official act of any person acting in the
director’s name and by the authority of the director shall be considered to be
an official act of the director.
(5) The director shall have authority
to require a fidelity bond of any officer or employee of the department who has
charge of, handles or has access to any state money or property, and who is not
otherwise required by law to give a bond. The amounts of the bonds shall be
fixed by the director, except as otherwise provided by law, and the sureties
shall be approved by the director. The department shall pay the premiums on the
bonds.
(6) The director shall prepare and
submit to the board on or about December 31 of each year an annual report for
the 12 months ending the prior June 30. The annual report shall set forth all
that the department has done during the year. The report shall contain a
statement of the parts of the state aviation system that were constructed,
reconstructed or improved during the period, together with a statement showing
in a general way the status of the state aviation system.
SECTION 34. ORS 184.642 is amended to
read:
184.642. (1) The Department of
Transportation Operating Fund is established in the State Treasury separate and
distinct from the General Fund and separate and distinct from the State Highway
Fund. Except as otherwise provided in subsection (3)(e) of this section, moneys
in the Department of Transportation Operating Fund are continuously
appropriated to the Department of Transportation to pay expenses of the
department that are incurred in the performance of functions the department is
statutorily required or authorized to perform and that may not constitutionally
be paid from revenues described in section 3a, Article IX of the Oregon
Constitution.
(2) The operating fund shall consist
of the following:
(a) Taxes paid on motor vehicle fuels
or on the use of fuel in a motor vehicle for which a person is entitled to a
refund under a provision described in this paragraph but for which no refund is
claimed, in amounts determined under ORS 184.643. This paragraph applies to
refund entitlements described in ORS 319.280 (1)(a) and (e), 319.320 (1)(a) and
319.831 (1)(b).
(b) Fees collected under ORS 822.700
for issuance or renewal of:
(A) Dismantler certificates;
(B) Vehicle dealer certificates;
(C) Driver training certificates;
(D) Commercial driver training school
certificates; and
(E) Appraiser certificates.
(c) Fees collected under ORS 822.705.
(d) Moneys from civil penalties
imposed under ORS 822.009.
(e) Fees collected under ORS 807.410
for identification cards.
(f) Fees collected by the department
for issuance of permits to engage in activities described in ORS 374.305 to
374.330 that are not directly connected to the construction, reconstruction,
improvement, repair, maintenance, operation and use of a public highway, road,
street or roadside rest area.
(g) Fees collected under section 29
of this 2011 Act for services provided to the Oregon Department of Aviation.
[(g)]
(h) Interest and other earnings on moneys in the operating fund.
(3) Moneys in the Department of
Transportation Operating Fund established by subsections (1) and (2) of this
section may be spent only as follows:
(a) Taxes described in subsection
(2)(a) of this section may be used only for payment of expenses of the
Department of Transportation that:
(A) May not constitutionally be paid
from revenues described in section 3a, Article IX of the Oregon Constitution;
(B) Are incurred in the performance of
functions the department is statutorily required or authorized to perform; and
(C) Are not payable from moneys
described in paragraphs (b) to (e) of this subsection.
(b) Fees collected under subsection
(2)(b) of this section may be used only to carry out the regulatory functions
of the department relating to the businesses that generate the fees.
(c) Fees collected under ORS 822.705
may be used only for the purposes described in ORS 822.705.
(d) Moneys collected from civil
penalties imposed under ORS 822.009 may be used only for regulation of vehicle
dealers.
(e) Moneys collected under ORS 807.410
from fees for identification cards shall be used first to pay the expenses of
the department for performing the functions of the department relating to
identification cards. After paying the expenses related to identification
cards, the department shall transfer the remaining moneys collected under ORS
807.410 to the Elderly and Disabled Special Transportation Fund established in
ORS 391.800.
(f) Moneys from the permits described
in subsection (2)(f) of this section may be used for costs of issuing the
permits and monitoring the activities that generate the fees.
(g) Moneys from interest and other
earnings on moneys in the operating fund may be used for any purpose for which
other moneys in the fund may be used.
SECTION 35. ORS 836.072, as amended
by sections 7 and 8, chapter 107, Oregon Laws 2010, is amended to read:
836.072. (1) Moneys from the increases
in taxes by the amendments to ORS 319.020 by sections 1 and 3, chapter 1037,
Oregon Laws 1999, shall be used by the Oregon Department of Aviation to
establish and fund a program to maintain and preserve the pavements used for
runways, taxiways and aircraft parking areas at public use airports in this
state.
(2) Projects for maintenance and
preservation of pavements at public use airports that are identified in the
plan developed under ORS 835.015 are eligible for funding under this section.
The following expenses of projects selected may be funded under this section:
(a) Construction expenses;
(b) Engineering expenses; and
(c) Administrative expenses.
(3) The Director of the Oregon
Department of Aviation shall prepare a list of recommended projects. Factors to
be used by the director include, but are not limited to:
(a) The age and condition of
pavements;
(b) An airport’s role in the state’s
aviation system, as described by the plan developed under ORS 835.015; and
(c) Local financial participation in
projects.
(4) The director shall forward the
list of recommended projects to the State Aviation Board for approval.
(5) The department may adopt such
rules as it deems necessary for implementation of the airport pavement
preservation program.
(6) No more than 55 percent of the
combined tax revenue from aircraft fuel used or distributed by a dealer and
aircraft fuel usable in aircraft operated by turbine engines may be used for
operating expenses of the department.
(7) For purposes of this section, “operating
expenses of the department” includes, but is not limited to, expenses for
personal services, central business operating services described in section 29
(1) of this 2011 Act, supplies and capital outlay.
SECTION 36. The amendments to ORS
836.072 by section 35 of this 2011 Act become operative July 1, 2012.
OLCC BOTTLE
SURCHARGE
SECTION 37. For the biennium
beginning July 1, 2011, notwithstanding ORS 471.810, amounts to be distributed
from the Oregon Liquor Control Commission Account that are attributable to a
per bottle surcharge imposed by the Oregon Liquor Control Commission on June 3,
2009, and extended on May 27, 2011, shall be credited to the General Fund.
CONSTRUCTION
CONTRACTORS BOARD
SECTION 38. ORS 701.005, as amended
by section 4, chapter 77, Oregon Laws 2010, is amended to read:
701.005. As used in this chapter:
(1) “Board” means the Construction
Contractors Board.
(2) “Commercial contractor” means a
licensed contractor that holds an endorsement as a:
(a) Commercial general contractor
level 1;
(b) Commercial specialty contractor
level 1;
(c) Commercial general contractor
level 2;
(d) Commercial specialty contractor
level 2; or
(e) Commercial developer.
(3) “Commercial developer” means a
developer of property that is zoned for or intended for use compatible with a small
commercial or large commercial structure.
(4) “Construction debt” means an
amount owed under:
(a) An order or arbitration award
issued by the board that has become final by operation of law;
(b) A judgment, arbitration award
or civil penalty that has become final by operation of law arising from
construction activities within the United States; or
(c) A judgment or civil penalty that
has become final by operation of law arising from a failure to comply with ORS
656.017.
(5) “Contractor” means any of the
following:
(a) A person that, for compensation or
with the intent to sell, arranges or undertakes or offers to undertake or
submits a bid to construct, alter, repair, add to, subtract from, improve,
inspect, move, wreck or demolish, for another, a building, highway, road,
railroad, excavation or other structure, project, development or improvement
attached to real estate, or to do any part thereof.
(b) A person that purchases or owns
property and constructs or for compensation arranges for the construction of
one or more residential structures or small commercial structures with the
intent of selling the structures.
(c) A school district, as defined in
ORS 332.002, that permits students to construct a residential structure or
small commercial structure as an educational experience to learn building
techniques and sells the completed structure.
(d) A community college district, as
defined in ORS 341.005, that permits students to construct a residential
structure or small commercial structure as an educational experience to learn
building techniques and sells the completed structure.
(e) A person except a landscape
contracting business, nurseryman, gardener or person engaged in the commercial
harvest of forest products, that is engaged as an independent contractor to
remove trees, prune trees, remove tree limbs or stumps or to engage in tree or
limb guying.
(f) A business that supplies the
services of a home inspector certified under ORS 701.350 or a cross-connection
inspector and backflow assembly tester certified under ORS 448.279.
(g) A person that for compensation
arranges, undertakes, offers to undertake or submits a bid to clean or service
chimneys.
(6) “Developer” means a contractor
that owns property or an interest in property and engages in the business of
arranging for construction work or performing other activities associated with
the improvement of real property, with the intent to sell the property.
(7)(a) “General contractor” means a
contractor whose business operations require the use of more than two unrelated
building trades or crafts that the contractor supervises or performs in whole
or part, whenever the sum of all contracts on any single property, including
materials and labor, exceeds an amount established by rule by the board.
(b) “General contractor” does not mean
a specialty contractor or a residential limited contractor.
(8)(a) “Home improvement” means a
renovation, remodel, repair or alteration by a residential contractor to an
existing owner-occupied:
(A) Residence that is a site-built
home;
(B) Condominium, rental residential
unit or other residential dwelling unit that is part of a larger structure, if
the property interest in the unit is separate from the property interest in the
larger structure;
(C) Modular home constructed off-site;
(D) Manufactured dwelling; or
(E) Floating home, as defined in ORS
830.700.
(b) “Home improvement” does not
include a renovation, remodel, repair or alteration by a residential
contractor:
(A) To a structure that contains one
or more dwelling units and is four stories or less above grade; or
(B) That the residential contractor
performed in the course of constructing a new residential structure.
(9)(a) “Home inspector” means a person
who, for a fee, inspects and provides written reports on the overall physical
condition of a residential structure and the appurtenances of the residential
structure.
(b) “Home inspector” does not include
persons certified under ORS chapter 455 to inspect new, repaired or altered
structures for compliance with the state building code.
(10) “Key employee” means an employee
or owner of a contractor who is a corporate officer, manager, superintendent,
foreperson or lead person or any other employee the board identifies by rule.
(11) “Large commercial structure”
means a structure that is not a residential structure or small commercial
structure.
(12) “Officer” means any of the
following persons:
(a) A president, vice president,
secretary, treasurer or director of a corporation.
(b) A general partner in a limited
partnership.
(c) A manager in a manager-managed
limited liability company.
(d) A member of a member-managed
limited liability company.
(e) A trustee.
(f) A person the board defines by rule
as an officer. The definition of officer adopted by board rule may include
persons not listed in this subsection who may exercise substantial control over
a business.
(13) “Residential contractor” means a
licensed contractor that holds an endorsement as a:
(a) Residential general contractor;
(b) Residential specialty contractor;
(c) Residential limited contractor; or
(d) Residential developer.
(14) “Residential developer” means a
developer of property that is zoned for or intended for use compatible with a
residential or small commercial structure.
(15)(a) “Residential structure” means:
(A) A residence that is a site-built
home;
(B) A structure that contains one or
more dwelling units and is four stories or less above grade;
(C) A condominium, rental residential
unit or other residential dwelling unit that is part of a larger structure, if
the property interest in the unit is separate from the property interest in the
larger structure;
(D) A modular home constructed
off-site;
(E) A manufactured dwelling; or
(F) A floating home as defined in ORS
830.700.
(b) “Residential structure” does not
mean:
(A) Subject to paragraph (a)(C) of
this subsection, a structure that contains both residential and nonresidential
units;
(B) Transient lodging;
(C) A residential school or residence
hall;
(D) A state or local correctional
facility other than a local facility for persons enrolled in work release
programs maintained under ORS 144.460;
(E) A youth correction facility as
defined in ORS 420.005;
(F) A youth care center operated by a
county juvenile department under administrative control of a juvenile court
pursuant to ORS 420.855 to 420.885;
(G) A detention facility as defined in
ORS 419A.004;
(H) A nursing home;
(I) A hospital; or
(J) A place constructed primarily for
recreational activities.
(16) “Responsible managing individual”
means an individual who:
(a) Is an owner described in ORS
701.094 or an employee of the business;
(b) Exercises management or
supervisory authority, as defined by the board by rule, over the construction
activities of the business; and
(c)(A) Successfully completed the
training and testing required for licensing under ORS 701.122 within a period
the board identifies by rule;
(B) Demonstrated experience the board
requires by rule; or
(C) Complied with the licensing
requirements of ORS 446.395.
(17) “Small commercial structure”
means:
(a) A nonresidential structure that
has a ground area of 10,000 square feet or less, including exterior walls, and
a height of not more than 20 feet from the top surface of the lowest flooring
to the highest interior overhead finish of the structure;
(b) A nonresidential leasehold, rental
unit or other unit that is part of a larger structure, if the unit has a ground
area of 12,000 square feet or less, excluding exterior walls, and a height of
not more than 20 feet from the top surface of the lowest flooring to the
highest interior overhead finish of the unit; or
(c) A nonresidential structure of any
size for which the contract price of all construction contractor work to be
performed on the structure as part of a construction project does not total
more than $250,000.
(18) “Specialty contractor” means a
contractor who performs work on a structure, project, development or
improvement and whose operations as such do not fall within the definition of “general
contractor.” “Specialty contractor” includes a person who performs work
regulated under ORS 446.395.
(19) “Zero-lot-line dwelling” means a
single-family dwelling unit constructed in a group of attached units in which:
(a) Each attached unit extends from
foundation to roof with open space on two sides; and
(b) Each dwelling unit is separated by
a property line.
SECTION 39. ORS 701.068 is amended to
read:
701.068. (1) An applicant for issuance
or renewal of a contractor license shall file with the Construction Contractors
Board a surety bond with one or more corporate sureties authorized to do
business in this state in the amount set forth in ORS 701.081 or 701.084.
(2) If an applicant for issuance,
renewal or an additional endorsement of a license will hold endorsements as
both a residential contractor and a commercial contractor, the applicant shall
file with the board a surety bond for each endorsement in the amount set forth
in ORS 701.081 or 701.084.
(3) The surety bond for a residential
contractor must provide that the applicant, with regard to work subject to this
chapter, will pay amounts [ordered paid]
determined by the board as provided under ORS 701.145. The surety
bond for a commercial contractor must provide that the applicant, with regard
to work subject to this chapter, will pay amounts [ordered paid] determined by the board as provided
under ORS 701.146. Bonds filed under this section shall remain in effect for at
least one year or until depleted by payments under ORS 701.150, 701.153 and
701.157, unless the surety sooner cancels the bond. At the discretion of the
surety the bond may be continued for an additional period by continuation
certificate. Except as provided in subsection (4) of this section, the
aggregate liability of the surety under the bond for complaints against the
contractor may not exceed the penal sum of the bond no matter how many years
the bond is in force. Except as provided in subsection (4) of this section, an
extension by continuation certificate, reinstatement, reissue or renewal of the
bond may not increase the liability of the surety.
(4) The board, by rule, may require a
licensee to obtain a new surety bond if, pursuant to a board [order for payment of a complaint described
in ORS 701.140] determination issued under ORS 701.145 or 701.146,
the surety pays an amount out of the bond of the licensee. The new surety bond
must be in the applicable amount set forth in ORS 701.081 or 701.084 unless a
higher amount is required by a board condition or rule described in subsection
(5) or (6) of this section. The board may allow a licensee to obtain, instead
of a new bond, a certification that the surety remains liable for the full
penal sum of the bond, notwithstanding payment by the surety on the complaint.
(5) If the amount the licensee must
pay against the bond under subsection (3) of this section exceeds the amount of
the bond, the board shall suspend the contractor’s license until the amount
owed is paid. The board, as a condition of ending the suspension, may require a
contractor requesting reinstatement of a license to file a bond of an amount up
to five times as much as the amount required ordinarily of a licensee under ORS
701.081 or 701.084.
(6) The board by rule may establish
conditions for applicants or persons licensed under this chapter under which
the applicant or licensee must file a bond of an amount up to five times as
much as the amount required ordinarily of an applicant or licensee under ORS
701.081 or 701.084. The board may reduce the amount of bond it would otherwise
require if the contractor demonstrates satisfactory completion of approved
elective classes on dispute resolution and prevention, basic accounting and
record keeping or such other classes as the board may prescribe.
[(7)
The bond required under this section is for the exclusive purpose of payment of
final orders and arbitration awards of the board in accordance with this
chapter.]
[(8)
Upon determination under ORS 701.145 or 701.146 of a complaint against a
contractor who holds a bond required under this section, the board shall notify
the surety on the bond of the final order in a manner determined by the board
by rule. The notification shall include a list of all complaints upon which a
final order has been issued.]
(7) The bond required under this
section is for the exclusive purpose of payment of amounts for which the board
has determined the surety to have responsibility.
(8) Upon issuance of a determination
under ORS 701.145 or 701.146 for a complaint against a contractor who holds a
bond required under this section, the board shall notify the surety on the bond
of the determination in a manner determined by the board by rule. The
notification shall include a list of all board determinations for payment by
the surety from the bond.
(9) A court action may not be
commenced against a surety on a bond required under this section until 30 days
after the date that the surety is notified by the board under ORS 701.150 that
payment is due on the [final order]
determination.
(10) In any action against a surety on
a bond under this section that is based on the failure of the surety to pay [a final order] an amount determined
by the board, the court may award:
(a) Costs;
(b) Reasonable attorney fees to the
prevailing party as part of the costs; and
[(c)
Twice the amount of any damages that the board ordered the surety to pay on the
complaint, if the surety arbitrarily and capriciously refused to pay upon order
of the board.]
(c) Twice the amount that the board
determined the surety must pay on the complaint, if the surety arbitrarily and
capriciously refused to pay.
SECTION 40. ORS 701.088 is amended to
read:
701.088. (1) As used in this section:
(a) “Illegal drug manufacturing site”
has the meaning given that term in ORS 453.858.
(b) “Nonprofit organization” means an
organization or group of organizations described in section 501(c)(3) of the
Internal Revenue Code that is exempt from income tax under section 501(a) of
the Internal Revenue Code.
(2) The Construction Contractors Board
shall adopt rules prescribing terms and conditions under which a general or
specialty contractor that is a nonprofit organization engaged in rehabilitating
an illegal drug manufacturing site may substitute a letter of credit from a
bank authorized to do business in this state, or substitute a cash deposit, for
a bond required under ORS 701.068. A letter of credit or cash deposit described
in this section substitutes for a bond only for purposes of work the contractor
performs on an illegal drug manufacturing site. The letter of credit or cash
deposit must be equivalent in amount to the bond that would otherwise be
required of the contractor under ORS 701.068.
(3) The board may charge a contractor
a fee to cover any expense incurred by the board in allowing the contractor to
substitute a letter of credit or cash deposit under this section.
(4) A contractor that supplies a
letter of credit or cash deposit under this section is considered to be bonded
under ORS 701.068 for purposes of performing rehabilitation work on illegal
drug manufacturing sites. A letter of credit or cash deposit that a contractor
supplies under this section is considered to be a surety bond issued under ORS
701.068 for purposes of claims involving the contractor’s rehabilitation work
on illegal drug manufacturing sites. The issuer of a letter of credit described
in this section is considered to be a surety for a bond only for purposes of
receiving [notice] notification of
a determination under ORS 701.068 or 701.146.
SECTION 41. ORS 701.117 is amended to
read:
701.117. A contractor shall notify the
Construction Contractors Board of any change of address while licensed and for
one year following the date the contractor’s license expires or otherwise
becomes inactive. The contractor shall so notify the board within 10 days of
the date upon which the change of address occurs. Initial notice of a contested
case [or arbitration] directed by the
board to the last-known address of record shall be considered delivered when
deposited in the United States mail and sent registered or certified or post
office receipt secured. Any other communication directed by the board to the
last-known address of record shall be considered delivered when deposited in
the United States mail, regular mail.
SECTION 42. ORS 701.133, as amended
by section 49, chapter 107, Oregon Laws 2010, is amended to read:
701.133. (1) Unless otherwise provided
by the Construction Contractors Board by rule, before filing a complaint under
ORS 701.139, a person must send notice to the contractor that the person
intends to file the complaint. The person must send the notice at least 30 days
before filing the complaint. The notice must be mailed by certified mail to the
last known address of the contractor as shown in board records. The board by
rule may:
(a) Specify the manner in which the
person may show compliance with this subsection at the time of filing the
complaint.
(b) Provide that all or part of the
requirements for sending a notice under this subsection may be waived if the
contractor, by other means, has actual notice of the dispute with the person
filing the complaint.
(2) If the notice described in
subsection (1) of this section is mailed to the contractor fewer than 45 days
before expiration of the time limitation under ORS 701.143 for the board to
receive the complaint, the time limitation for the board to receive the
complaint does not expire until 60 days after the notice is mailed.
(3) The board by rule may impose a
processing fee for complaints filed under ORS 701.139. The fee amount may not
exceed the amount of the filing fee provided by ORS 21.110 (6) for a plaintiff
filing a civil action in circuit court. The board may impose different
processing fees for complaints processed under ORS 701.145 than for complaints
processed under ORS 701.146.
(4) If the board adopts rules under
subsection (3) of this section, the rules:
(a) Except as provided in paragraphs
(b) and (c) of this subsection, must provide that a prevailing complainant
recover processing fees [as damages in
the final order of the board].
(b) Must provide that the board may
waive or defer all or part of the processing fee upon application by the person
filing the complaint that shows the person is unable to pay all or part of the
fee. The application must be made under oath and notarized. The application
must show the average monthly income and expenses of the complainant, assets
and liabilities of the complainant and any other information required by board
rule.
(c) May provide for the processing fee
to be waived for all complaints that are based on the furnishing of labor by a
complainant to a contractor. The board may provide for processing fee waiver
under this paragraph only if, in the opinion of the board, a majority of
complainants who file complaints based on the furnishing of labor to
contractors are eligible for fee waivers as described in paragraph (b) of this
subsection.
SECTION 43. ORS 701.133, as amended
by sections 49 and 50, chapter 107, Oregon Laws 2010, is amended to read:
701.133. (1) Unless otherwise provided
by the Construction Contractors Board by rule, before filing a complaint under
ORS 701.139, a person must send notice to the contractor that the person
intends to file the complaint. The person must send the notice at least 30 days
before filing the complaint. The notice must be mailed by certified mail to the
last known address of the contractor as shown in board records. The board by
rule may:
(a) Specify the manner in which the
person may show compliance with this subsection at the time of filing the
complaint.
(b) Provide that all or part of the
requirements for sending a notice under this subsection may be waived if the
contractor, by other means, has actual notice of the dispute with the person
filing the complaint.
(2) If the notice described in
subsection (1) of this section is mailed to the contractor fewer than 45 days
before expiration of the time limitation under ORS 701.143 for the board to
receive the complaint, the time limitation for the board to receive the
complaint does not expire until 60 days after the notice is mailed.
(3) The board by rule may impose a
processing fee for complaints filed under ORS 701.139. The fee amount may not
exceed the amount of the filing fee provided by ORS 21.110 (1) for a plaintiff
filing a civil action in circuit court. The board may impose different
processing fees for complaints processed under ORS 701.145 than for complaints
processed under ORS 701.146.
(4) If the board adopts rules under
subsection (3) of this section, the rules:
(a) Except as provided in paragraphs
(b) and (c) of this subsection, must provide that a prevailing complainant
recover processing fees [as damages in
the final order of the board].
(b) Must provide that the board may
waive or defer all or part of the processing fee upon application by the person
filing the complaint that shows the person is unable to pay all or part of the
fee. The application must be made under oath and notarized. The application
must show the average monthly income and expenses of the complainant, assets
and liabilities of the complainant and any other information required by board
rule.
(c) May provide for the processing fee
to be waived for all complaints that are based on the furnishing of labor by a
complainant to a contractor. The board may provide for processing fee waiver
under this paragraph only if, in the opinion of the board, a majority of
complainants who file complaints based on the furnishing of labor to
contractors are eligible for fee waivers as described in paragraph (b) of this
subsection.
SECTION 44. ORS 701.139 is amended to
read:
701.139. The Construction Contractors
Board may determine the validity of a complaint described in ORS 701.140 filed
against a licensed contractor. A person must file the complaint within the
applicable time limitation described in ORS 701.143. The complaint must be
filed and resolved as follows:
(1) A complaint against a residential
contractor that is not also endorsed as a commercial contractor involving work
on a residential or small commercial structure or an appurtenance to a
residential or small commercial structure must be resolved as provided in ORS
701.145.
(2) A complaint against a commercial
contractor that is not also endorsed as a residential contractor involving work
on a small commercial or large commercial structure or an appurtenance to a
small commercial or large commercial structure must be resolved as provided in
ORS 701.146.
(3) A complaint against a contractor
that is endorsed as both a residential contractor and a commercial contractor:
(a) Involving work on a residential
structure or an appurtenance to a residential structure must be resolved as
provided under ORS 701.145.
(b) Involving work on a small
commercial structure or an appurtenance to a small commercial structure may be
resolved as provided in ORS 701.145 or 701.146, at the complainant’s election.
(c) Involving work on a large
commercial structure or an appurtenance to a large commercial structure must be
resolved as provided in ORS 701.146.
[(4)
Notwithstanding subsections (1) to (3) of this section and except as provided
in ORS 701.148, with prior agreement of the complainant and the licensed
contractor, a complaint may be resolved by the board through binding
arbitration under ORS 701.148.]
SECTION 45. ORS 701.140 is amended to
read:
701.140. A complaint under ORS 701.139
must arise from the performance, or a contract for the performance, of work
that requires a contractor license issued by the Construction Contractors
Board. The complaint must be of one or more of the following types:
(1) A complaint against a contractor
by the owner of a structure or other real property for the following:
(a) Negligent work.
(b) Improper work.
(c) Breach of contract.
(2) A complaint against a contractor
by the owner of a structure or other real property to discharge, or to recoup
funds expended in discharging, a lien established under ORS 87.010 to 87.060
and 87.075 to 87.093 under circumstances described under this subsection. [If the complaint is processed under ORS
701.145, the Construction Contractors Board may reduce the amount of the
complaint by any amount the complainant owes the contractor.] The board
shall process complaints described in this subsection under ORS 701.145 only
if:
(a) The owner paid the contractor for
that contractor’s work subject to this chapter;
(b) A lien is filed against the
property of the owner under ORS 87.010 to 87.060 and 87.075 to 87.093 because
the contractor failed to pay the person claiming the lien for that person’s
contribution toward completion of the improvement; and
(c) The complaint is described in ORS
701.139 (1) or (3)(a) or (b).
(3) A complaint against a licensed
subcontractor by a licensed contractor for the following:
(a) Negligent work;
(b) Improper work; or
(c) Breach of contract.
(4) A complaint by a person furnishing
labor to a contractor or owed employee benefits by a contractor.
(5) A complaint, as limited by rule of
the board, by a person furnishing material or renting or supplying equipment to
a contractor. The minimum limit set by the board may not exceed $150.
(6) A complaint by a subcontractor
against a contractor for unpaid labor or materials arising out of a contract.
SECTION 46. ORS 701.145 is amended to
read:
701.145. For a complaint described in
ORS 701.139 (1) or (3)(a) or a complaint under ORS 701.139 (3)(b) that a
complainant elects to have resolved under this section:
(1) The complainant must file the
complaint with the Construction Contractors Board in a form prescribed by the
board.
(2) The board may suspend processing
of the complaint if:
(a) The same facts and issues involved
in the complaint have been submitted to a court of competent jurisdiction for
determination or have been submitted to any other entity authorized by law or
the parties to effect a resolution or settlement; or
(b) The board determines that the
nature or complexity of the dispute described in the complaint is such that a
court is the appropriate forum for the adjudication of the dispute.
(3) The board may dismiss or close the
complaint as established by rule of the board if any of the following
conditions apply:
(a) The complainant does not respond
to a board request and the request is necessary to the board’s investigation of
the complaint.
(b) The complainant does not allow the
board to conduct one or more on-site meetings to mediate or investigate the
complaint.
(c) The complainant does not permit
the contractor against whom the complaint is filed to be present at an on-site
investigation made by the board.
[(d)
The board determines that the contractor against whom the complaint is filed is
capable of complying with recommendations made by the board relative to the
complaint, but the complainant does not permit the contractor to comply with
the recommendations. The board may refuse to accept or further process a
complaint under this paragraph only if the contractor was licensed at the time
the work was first performed and is licensed at the time the board makes its
recommendations.]
[(e)]
(d) The amount in controversy is less than an amount adopted by the board
and not more than $250.
[(4)
Upon acceptance of the complaint, the board shall give notice to the contractor
against whom the complaint is made and shall initiate proceedings to determine
the validity of the complaint. If, after investigation, the board determines
that a violation of this chapter or of any rule adopted thereunder has
occurred, or damage has been caused by the contractor, the board may recommend
to the contractor such action as the board considers appropriate to compensate
the complainant. If the contractor performs accordingly, the board shall give
that fact due consideration in any subsequent disciplinary proceeding brought
by the board. The board may conduct one or more on-site meetings to mediate or
investigate the complaint.]
[(5)
Subject to ORS 701.148, if the board is unable to resolve the complaint under
subsection (4) of this section, the board may issue a contested case notice
under ORS 183.415 and:]
[(a)
Issue a proposed default order under ORS 183.417 to become effective only if a
party does not request a contested case hearing; or]
[(b)
Refer the matter for hearing.]
[(6)
The board shall send a copy of the notice and any proposed order described in
subsection (5) of this section to the surety on the contractor bond required by
ORS 701.068.]
(4) Upon acceptance of the
complaint, the board shall give notice to the contractor against whom the
complaint is made and shall initiate proceedings to determine board
jurisdiction over the complaint. The board shall attempt to conduct one or more
meetings on-site or by telephone to mediate a dispute. During mediation of a
dispute, the board may recommend to the contractor such action as the board
considers appropriate to compensate the complainant. If the contractor performs
accordingly, the board shall give that fact due consideration in any subsequent
disciplinary proceeding brought by the board.
(5) If the parties do not resolve or
settle the complaint, except as provided in subsection (6) of this section, the
complainant may recover payment from the bond of the contractor only by
obtaining:
(a) A final judgment against the
contractor issued by a court of competent jurisdiction; or
(b) An arbitration award against the
contractor that a court has reduced to a final judgment.
(6) If the complaint is filed under
ORS 701.140 (4), the complainant may recover payment from the bond of the
contractor as provided in subsection (5)(a) of this section or by obtaining a
final order issued by the Bureau of Labor and Industries that states an amount
of unpaid wages that the licensed contractor owes under ORS 652.140 or ORS
653.010 to 653.261.
(7) For purposes of subsections (5)
and (6) of this section, “final” means that the judgment or order has become
final by operation or law or on appeal.
(8) The board shall send the surety on
the contractor bond required under ORS 701.068 a copy of the final judgment or
bureau final order, and a copy of a determination issued by the board that the
surety must pay the amount stated by the board. A determination issued by the
board may not include payment of any attorney fees awarded in the final
judgment or bureau final order. The determination issued by the board is an
order in other than a contested case proceeding. The determination order is not
recordable under ORS 701.153 (1) and (2) to create a lien.
SECTION 47. ORS 701.146 is amended to
read:
701.146. For a complaint described in
ORS 701.139 (2) or (3)(c) or a complaint under ORS 701.139 (3)(b) that a
complainant elects to have resolved under this section:
(1) The person seeking to file the
complaint with the Construction Contractors Board must:
(a) Bring an action on the dispute
against the licensed contractor in a court of competent jurisdiction; or
(b) Initiate a proceeding to resolve
the dispute through binding arbitration substantially in conformance with ORS
36.600 to 36.740.
(2) The complainant must file the
complaint with the Construction Contractors Board by delivering to the board a
copy of the complainant’s court pleading or the demand for arbitration or other
document necessary to initiate arbitration. The pleading, demand or other
document must be accompanied by a completed board complaint form. The
complainant must also give notice to the surety on the bond by delivering to
the surety a copy of the complainant’s court pleading or the demand for
arbitration or other document necessary to initiate arbitration and a copy of
the completed board complaint form. Delivery to the board and the surety must
be accomplished by certified mail, return receipt requested, no later than the
earlier of:
(a) The 90th day after filing the
court action or after filing or making the arbitration demand or other
initiation of arbitration;
(b) The 14th day before the first day
of trial or arbitration; or
(c) The 30th day before:
(A) The court issues a judgment in the
action; or
(B) The arbitrator issues an award on
the arbitration.
(3) Filing the complaint with the
board under subsection (2) of this section constitutes filing the complaint for
purposes of establishing timeliness of the complaint under ORS 701.143 and
priority of the complaint for possible payment from the bond under ORS 701.157.
(4) Except as provided in this
subsection and subsection (7) of this section, if the complainant properly
gives notice to the surety under subsection (2) of this section, a judgment or
award against the contractor entered in the action or arbitration is binding on
the surety. If the complainant delivers the notice required under subsection
(2) of this section to the wrong surety, the surety receiving the notice may
avoid being bound by a judgment or award by delivering notice of the mistake to
the complainant or the complainant’s attorney of record, and to the board, on
or before the 30th day after the surety receives notice under subsection (2) of
this section. Delivery of the notice of mistake must be by certified mail,
return receipt requested, or by facsimile machine or other form of transmission
with an acknowledgment of receipt.
(5) A surety under subsection (2) of
this section has an absolute right to intervene in an action or arbitration
brought or initiated under subsection (1) of this section. A complainant may
not join a surety as a party to an action or arbitration unless the complainant
disputes the validity or timeliness of the surety’s notice of mistake or the
surety disputes the validity or timeliness of the delivery to the surety of the
notice required by subsection (2) of this section. If the surety elects to
intervene or is joined as a party, the surety is bound by all issues of fact
and law determined by the court or arbitrator and may not seek board review of
those determinations.
(6) If a court issues a judgment on an
action, or reduces an arbitration award to judgment, against a contractor on a
complaint described in subsection (1) of this section, the complainant must
deliver a certified copy of the judgment to the board and to the surety no
later than the 30th day after entry of the judgment in order to maintain the
complaint and possibly receive payment from the bond. The entry of a final
judgment against the contractor concludes the contractor’s involvement in any
proceedings to determine whether the complaint is subject to payment from the
bond. The complainant and the surety are the only parties to the administrative
process set forth in subsection (7) of this section.
(7) Upon receipt of a timely delivered
certified copy of the judgment as described in subsection (6) of this section,
the board shall issue a [proposed order
in] determination that the surety must pay the amount stated by the
board. The determination issued by the board is an order in other than a
contested case proceeding. The determination shall include the amount of
the judgment together with any costs, interest and attorney fees awarded under
the judgment, to the extent that the judgment, costs, interest and fees are
within the jurisdiction of the board. The board’s determination of the
complaint is limited to whether the complaint comes within the jurisdiction of
the board and is subject to payment by the surety. [The board shall issue the proposed order in a form that indicates the
surety’s maximum liability to the complainant. If a hearing is not requested
within the time set forth in the proposed order, the proposed order becomes
final without any further action by the board. If a hearing is requested,
unless review of an issue is precluded under subsection (5) of this section,
the board may determine:]
[(a)
Whether the complaint was timely filed with the board as provided in ORS
701.143.]
[(b)
Whether the surety received timely notice as provided in subsections (2) and
(6) of this section.]
[(c)
Whether the complaint is for work subject to this chapter.]
[(d)
The extent of the surety’s liability to the complainant.]
SECTION 48. ORS 701.149 is amended to
read:
701.149. [(1) An arbitration conducted under ORS 701.148 must be held before an
administrative law judge assigned under ORS 183.605 to 183.690 to act as
arbitrator on behalf of the Construction Contractors Board. The assignment of
an administrative law judge to act as arbitrator is subject to a request for a
different arbitrator under ORS 183.645 or a rule adopted pursuant to ORS
183.645.]
[(2)
If a party to a complaint under ORS 701.145 requests a contested case hearing,
the board shall schedule the hearing.]
[(3)
The board may adopt rules governing the avoidance of a contested case hearing.
The rules may include, but need not be limited to, a limit on the time period
during which a party to a complaint may avoid a contested case hearing by
filing a court action.]
[(4)
Contested case hearings before the board must be conducted by an administrative
law judge assigned under ORS 183.605 to 183.690. Notwithstanding ORS 670.325,
the board may delegate authority to the administrative law judge to issue a
final order in any matter.]
[(5)
In assigning administrative law judges for arbitration and contested case
hearings conducted under this section, the chief administrative law judge of
the Office of Administrative Hearings established under ORS 183.605 shall defer
to board requests.]
[(6)]
(1) [If a complainant to the board
files a court action,] If the Construction Contractors Board suspends
the processing of a complaint because of the complaint having been submitted to
a court or arbitrator or because of a court having stayed action on the
complaint, the board may require that the complainant provide status
reports on the pending court action or arbitration. The board may
dismiss or close a complaint filed under ORS 701.139 if the complainant fails
to submit status reports on a pending court action or arbitration.
[(7)]
(2) ORS 183.605 to 183.690 do not limit in any way the ability of the board
to make full use of alternative dispute resolution, including mediation or referral
for arbitration, to resolve complaints against contractors filed under ORS
701.139.
SECTION 49. ORS 701.150 is amended to
read:
701.150. [(1) A Construction Contractors Board final order that is not paid by
the contractor and that:]
[(a)
Arises out of a complaint filed under ORS 701.145 must be satisfied from a bond
required for a residential contractor.]
[(b)
Arises out of a complaint filed under ORS 701.146 must be satisfied from a bond
required for a commercial contractor.]
(1) If a licensed contractor fails
to pay a complainant amounts due under a court judgment or under a final order
of the Bureau of Labor and Industries, the Construction Contractors Board shall
issue a determination stating the amount that a surety must pay the
complainant. The surety shall pay the amount required under the determination
as follows:
(a) If the complaint was filed under
ORS 701.145, the surety shall pay the amount from a bond required for a
residential contractor.
(b) If the complaint was filed under
ORS 701.146, the surety shall pay the amount from a bond required for a
commercial contractor.
(2) [If a board final order is not paid by the contractor, the board shall
notify the surety on the bond.] The surety may not pay on a complaint until
the surety receives notice from the board that the complaint is ready for
payment.
(3) Notwithstanding ORS 701.153 and
701.157, a bond is not subject to payment for a complaint that is filed more
than 14 months after the earlier of:
(a) The expiration or cancellation
date of the license that was in force when the work that is the subject of the
complaint was completed or abandoned; or
(b) The date that the surety canceled
the bond.
SECTION 50. ORS 701.153 is amended to
read:
701.153. (1) If an order of the
Construction Contractors Board [that]
determines a complaint [under ORS 701.145]
against a residential contractor that was filed with the board prior to July
1, 2011, and the order becomes final by operation of law or on appeal and
remains unpaid 10 days after the date the order becomes final, the complainant
may file the order with the county clerk in any county of this state.
(2) Upon receipt of an order
described in subsection (1) of this section, the clerk shall record the
order in the County Clerk Lien Record. In addition to any other remedy provided
by law, recording an order described in subsection (1) of this section
in the County Clerk Lien Record pursuant to the provisions of this section has
the effect provided for in ORS 205.125 and 205.126, and the order may be
enforced as provided in ORS 205.125 and 205.126.
(3)(a) Payments from the surety bond
of a residential contractor pursuant to [board
order and notice] a board determination under ORS 701.145 are
satisfied in the following priority in any 90-day period:
(A) Board [orders] determinations as a result of complaints against a
residential contractor by the owner of a residential or small commercial
structure have payment priority to the full extent of the bond over all other
types of complaints.
[(B)
If the complaints described in subparagraph (A) of this paragraph do not
exhaust the bond, then amounts due as a result of all other types of
residential or small commercial structure complaints filed within that 90-day
period may be satisfied from the bond, except that the total amount paid from
any one bond to nonowner complainants may not exceed $3,000.]
(B) If the determinations described
in subparagraph (A) of this paragraph do not exhaust the bond, then amounts due
under board determinations for all other types of residential or small
commercial structure complaints filed with the board within that 90-day period
may be paid from the bond, except that the total amount paid from any one bond
to nonowner complainants may not exceed $3,000.
(b) A 90-day period begins on the date
the first complaint is filed with the board. Subsequent 90-day periods begin on
the date the first complaint is filed with the board after the close of the
preceding 90-day period.
[(4)
If the total complaints filed with the board against a residential contractor
within 90 days after the board receives notice of the first complaint against
the contractor exceed the amount of the bond available for those complaints,
the bond shall be apportioned as the board determines, subject to the
priorities established under this section.]
[(5)
If the total amounts due as a result of complaints filed with the board within
90 days after the first complaint is filed do not exceed the amount of the bond
available for those complaints, all amounts due as a result of complaints filed
within the 90-day period shall have priority over all complaints subsequently
filed until the amount of the bond available for the payment of complaints is
exhausted.]
[(6)
The total amount paid from a residential contractor bond for costs, interest
and attorney fees may not exceed $3,000.]
(4) If the total amount payable
under determinations issued by the board for complaints against a residential
contractor filed with the board within 90 days after the board receives notice
of the first complaint against the contractor exceed the amount of the bond
available for payment, subject to the priorities under this section, the board
shall decide how payment of the determined amounts from the bond is to be
apportioned.
(5) If the total amount payable under
determinations issued by the board as a result of complaints that were filed
with the board within 90 days after the board receives notice of the first
complaint do not exceed the amount of the bond available for payment, those
determinations have payment priority over amounts due under determinations
resulting from subsequently filed complaints.
(6) The total amount paid from a
residential contractor bond for costs and interest under all determinations
issued by the board under ORS 701.145 may not exceed $3,000.
SECTION 51. ORS 701.180 is amended to
read:
701.180. Notwithstanding the
provisions of ORS 36.600 to 36.740, any other provision of law or any
contractual provision, failure of a contractor to initiate mediation or
arbitration proceedings within 30 days after notification by the Construction
Contractors Board of a complaint under ORS 701.145 is a waiver by the
contractor of any contractual right to a mediation or arbitration[.] process in lieu of mediation by
the board under ORS 701.145. If the parties do not resolve or settle the
dispute pursuant to board mediation under ORS 701.145, unless otherwise
provided by law regarding a dispute described under ORS 652.140 or 653.010 to
653.261, the complainant must comply with any contractual provision for
mediation or arbitration of the dispute as a condition for obtaining the
judgment required under ORS 701.145 (5).
SECTION 52. ORS 701.235 is amended to
read:
701.235. (1) The Construction
Contractors Board shall adopt rules to carry out the provisions of this chapter
including, but not limited to, rules that:
(a) Establish language for surety
bonds;
(b) Establish processing requirements
for different types of complaints described in this chapter;
(c) Limit whether a complaint may be
processed by the board if there is no direct contractual relationship between
the complainant and the contractor;
(d) Subject to ORS 701.145,
701.153 and 701.157, exclude or limit recovery from the contractor’s bond
required by ORS 701.068 of amounts awarded by a court or arbitrator for
interest, service charges, costs and attorney fees arising from commencing the
arbitration or court action and proving damages; and
(e) Designate a form to be used by an
owner of residential property under ORS 87.007 for the purpose of indicating
the method the owner has selected to comply with the requirements of ORS 87.007
(2) or to indicate that ORS 87.007 (2) does not apply.
(2) The board may adopt rules
prescribing terms and conditions under which a contractor may substitute a
letter of credit from a bank authorized to do business in this state instead of
the bond requirements prescribed in ORS 701.068.
SECTION 53. ORS 87.058 and 701.148
are repealed.
SECTION 54. (1) The amendments to
ORS 701.005, 701.068, 701.088, 701.117, 701.133, 701.139, 701.140, 701.145,
701.146, 701.149, 701.150, 701.153, 701.180 and 701.235 by sections 38 to 52 of
this 2011 Act apply to complaints filed with the Construction Contractors Board
on or after July 1, 2011. The Legislative Assembly expressly intends that the
amendments to ORS 701.005, 701.068, 701.088, 701.117, 701.133, 701.139,
701.140, 701.145, 701.146, 701.149, 701.150, 701.153, 701.180 and 701.235 by
sections 38 to 52 of this 2011 Act may be applied retroactively if necessary to
process a complaint filed with the board on or after July 1, 2011.
(2) Notwithstanding the repeal of ORS
701.148 by section 53 of this 2011 Act, the board shall complete the processing
and resolution of any complaint filed with the board prior to July 1, 2011, and
pending on July 1, 2011, in accordance with ORS 87.058, 701.005, 701.068,
701.088, 701.117, 701.133, 701.139, 701.140, 701.145, 701.146, 701.148, 701.149,
701.150, 701.153, 701.180 and 701.235 as amended and in effect immediately
prior to July 1, 2011.
(3) The repeal of ORS 87.058 by
section 53 of this 2011 Act does not affect any stay of proceedings issued by a
court prior to July 1, 2011, under ORS 87.058. Notwithstanding the repeal of
ORS 87.058 by section 53 of this 2011 Act, an owner of a structure subject to a
lien perfected under ORS 87.035 who files a complaint with the board prior to
July 1, 2011, may obtain on or after July 1, 2011, a stay of proceedings as
described on the suit to foreclose the lien as described in ORS 87.058 as
amended and in effect immediately prior to July 1, 2011.
SECTION 55. Section 56 of this
2011 Act is added to and made a part of ORS 87.001 to 87.060.
SECTION 56. (1) As used in this
section:
(a) Notwithstanding ORS 87.005, “contractor”
has the meaning given that term in ORS 701.005.
(b) “Board” means the Construction
Contractors Board established in ORS 701.205.
(2) If a person files a suit to
enforce a lien perfected under ORS 87.035 and the owner of the structure
subject to that lien files a complaint that is being processed by the board
under ORS 701.145 against a contractor who performed work on the structure, the
owner may obtain a stay of proceedings on the suit to enforce the lien if:
(a) The owner already has paid the
contractor for that contractor’s work that is subject to this chapter on the
structure;
(b) The person suing to enforce the
lien perfected under ORS 87.035:
(A) Performed work that is subject to
ORS chapter 701 on the structure for the contractor who has been paid by the
owner;
(B) Furnished labor, services or
materials or rented or supplied equipment used on the structure to the
contractor who has been paid by the owner; or
(C) Otherwise acquired the lien as a
result of a contribution toward completion of the structure for which the
contractor has been paid by the owner; and
(c) The continued existence of the
lien on which the suit is pending is attributable to the failure of the
contractor who has been paid by the owner to pay the person suing for that
person’s contribution toward completion of the structure.
(3) The owner may petition for the
stay of proceedings described in subsection (2) of this section by filing the
following papers in the circuit court in which the suit on the lien is pending:
(a) A certified copy of the complaint
filed for processing by the board under ORS 701.145; and
(b) An affidavit signed by the owner
that contains:
(A) A description of the structure;
(B) The street address of the
structure;
(C) A statement that the structure is
the structure upon which the suit to enforce the lien is pending; and
(D) A statement that the petitioner is
the owner of the structure.
(4) Upon receipt of a complete
petition described in subsection (3) of this section, the circuit court shall
stay proceedings on the suit to enforce the lien.
(5) After the board order on the
complaint becomes final and the board issues any required notice for payment
against the contractor’s bond or deposit, the circuit court shall dissolve the
stay ordered under subsection (4) of this section.
SECTION 57. Section 58 of this
2011 Act is added to and made a part of ORS chapter 701.
SECTION 58. (1) Subject to
subsection (4) of this section, if the resolution of a complaint under ORS
701.145 requires a hearing, the Construction Contractors Board may require that
the hearing be conducted as a binding arbitration under rules adopted by the
board under subsection (3) of this section. This subsection does not authorize
the board to require binding arbitration of a complaint that is subject to ORS
701.146.
(2) The board may use mediation or
arbitration to resolve a construction dispute between any parties who agree to
follow the rules of the board, other than a dispute involving work on a large
commercial structure.
(3) Except as provided in this
subsection, rules adopted by the board to regulate arbitration under
subsections (1) and (2) of this section must substantially conform with the
provisions of ORS 36.600, 36.610 to 36.630, 36.635 (2), 36.640, 36.645 (2),
36.650 to 36.680, 36.685 (1) and 36.690 to 36.740. The rules may:
(a) Require that a hearing under ORS
183.413 to 183.470 be conducted for issues for which a petition could be filed
under ORS 36.615, 36.620, 36.625 and 36.640;
(b) Limit orders and awards made by
the arbitrator as necessary to comply with this chapter;
(c) Require that a request that an
arbitrator modify or correct an award under ORS 36.690 be submitted in a form
specified by the rule;
(d) Require that a petition under ORS
36.705 (2) or 36.710 (1) be filed in a shorter period of time than provided by
ORS 36.705 and 36.710; and
(e) Include any other provision
necessary to conform the arbitration to this chapter.
(4) A party to a complaint that is
subject to a board order of binding arbitration under subsection (1) of this
section may avoid the arbitration if the party requests to have the complaint
resolved through a contested case hearing or files a court action. A party
making a hearing request or filing a court action under this subsection is
subject to the following provisions:
(a) If the party requests to have a
complaint resolved through a contested case hearing, the party must, within the
time specified in paragraph (c) of this subsection, deliver the request in
writing to the board and to all parties entitled by board rule to receive a
copy of the request.
(b) If the party files a court action,
the party must, within the time specified in paragraph (c) of this subsection,
deliver a copy of the party’s court pleading to the board and to all persons
entitled by board rule to receive a copy of the pleading. If the party filing
the court action is the complainant to the board, the complainant must plead
all facts and issues of the board complaint in the court action. If the court
action is filed by the contractor against whom a board complaint is alleged,
the court action must be an action for damages, an action for declaratory
judgment or another action that allows the board complainant to file a response
pleading all facts and issues of the board complaint. The board complainant has
the burden of proving the elements of the board complaint in a court action
described in this paragraph.
(c) A party that is subject to
paragraph (a) or (b) of this subsection must deliver the contested case hearing
request or the copy of the party’s court pleading to the board as described in
paragraphs (a) and (b) of this subsection no later than the 30th day after the
board sends notice that an arbitration hearing has been scheduled. Failure to
timely deliver a request or court pleading under this paragraph constitutes
consent to the binding arbitration.
(d) If a party makes a timely request
under paragraph (a) of this subsection for a contested case hearing and another
party timely files a court action and complies with paragraph (b) of this
subsection, the filing of the court action supersedes the request for a
contested case hearing.
(e) A party may not withdraw a request
made in compliance with paragraph (a) of this subsection unless all parties
agree to the withdrawal.
(f) The board may adopt a rule that a
contested case hearing for a complaint seeking less than $1,000 is not
available under this subsection.
(g) The provisions of paragraph (b) of
this subsection are in addition to any other requirements imposed by law
regarding the filing of a court action.
(5) The board may refuse to accept a
dispute for mediation or arbitration under subsection (1) or (2) of this
section if the board determines that the nature or complexity of the dispute is
such that a court or other forum is more appropriate for resolution of the
dispute.
SECTION 59. ORS 701.005, as amended
by section 4, chapter 77, Oregon Laws 2010, and section 38 of this 2011 Act, is
amended to read:
701.005. As used in this chapter:
(1) “Board” means the Construction
Contractors Board.
(2) “Commercial contractor” means a
licensed contractor that holds an endorsement as a:
(a) Commercial general contractor
level 1;
(b) Commercial specialty contractor
level 1;
(c) Commercial general contractor
level 2;
(d) Commercial specialty contractor
level 2; or
(e) Commercial developer.
(3) “Commercial developer” means a
developer of property that is zoned for or intended for use compatible with a
small commercial or large commercial structure.
(4) “Construction debt” means an
amount owed under:
(a) An order or arbitration award
issued by the board that has become final by operation of law;
(b) A judgment[, arbitration award] or civil penalty that has become final by
operation of law arising from construction activities within the United States;
or
(c) A judgment or civil penalty that
has become final by operation of law arising from a failure to comply with ORS
656.017.
(5) “Contractor” means any of the
following:
(a) A person that, for compensation or
with the intent to sell, arranges or undertakes or offers to undertake or
submits a bid to construct, alter, repair, add to, subtract from, improve,
inspect, move, wreck or demolish, for another, a building, highway, road,
railroad, excavation or other structure, project, development or improvement
attached to real estate, or to do any part thereof.
(b) A person that purchases or owns
property and constructs or for compensation arranges for the construction of
one or more residential structures or small commercial structures with the
intent of selling the structures.
(c) A school district, as defined in
ORS 332.002, that permits students to construct a residential structure or
small commercial structure as an educational experience to learn building
techniques and sells the completed structure.
(d) A community college district, as
defined in ORS 341.005, that permits students to construct a residential
structure or small commercial structure as an educational experience to learn
building techniques and sells the completed structure.
(e) A person except a landscape
contracting business, nurseryman, gardener or person engaged in the commercial
harvest of forest products, that is engaged as an independent contractor to
remove trees, prune trees, remove tree limbs or stumps or to engage in tree or
limb guying.
(f) A business that supplies the
services of a home inspector certified under ORS 701.350 or a cross-connection
inspector and backflow assembly tester certified under ORS 448.279.
(g) A person that for compensation
arranges, undertakes, offers to undertake or submits a bid to clean or service
chimneys.
(6) “Developer” means a contractor
that owns property or an interest in property and engages in the business of
arranging for construction work or performing other activities associated with
the improvement of real property, with the intent to sell the property.
(7)(a) “General contractor” means a
contractor whose business operations require the use of more than two unrelated
building trades or crafts that the contractor supervises or performs in whole
or part, whenever the sum of all contracts on any single property, including
materials and labor, exceeds an amount established by rule by the board.
(b) “General contractor” does not mean
a specialty contractor or a residential limited contractor.
(8)(a) “Home improvement” means a
renovation, remodel, repair or alteration by a residential contractor to an
existing owner-occupied:
(A) Residence that is a site-built
home;
(B) Condominium, rental residential
unit or other residential dwelling unit that is part of a larger structure, if
the property interest in the unit is separate from the property interest in the
larger structure;
(C) Modular home constructed off-site;
(D) Manufactured dwelling; or
(E) Floating home, as defined in ORS
830.700.
(b) “Home improvement” does not
include a renovation, remodel, repair or alteration by a residential
contractor:
(A) To a structure that contains one
or more dwelling units and is four stories or less above grade; or
(B) That the residential contractor
performed in the course of constructing a new residential structure.
(9)(a) “Home inspector” means a person
who, for a fee, inspects and provides written reports on the overall physical
condition of a residential structure and the appurtenances of the residential
structure.
(b) “Home inspector” does not include
persons certified under ORS chapter 455 to inspect new, repaired or altered
structures for compliance with the state building code.
(10) “Key employee” means an employee
or owner of a contractor who is a corporate officer, manager, superintendent,
foreperson or lead person or any other employee the board identifies by rule.
(11) “Large commercial structure”
means a structure that is not a residential structure or small commercial
structure.
(12) “Officer” means any of the
following persons:
(a) A president, vice president,
secretary, treasurer or director of a corporation.
(b) A general partner in a limited
partnership.
(c) A manager in a manager-managed
limited liability company.
(d) A member of a member-managed
limited liability company.
(e) A trustee.
(f) A person the board defines by rule
as an officer. The definition of officer adopted by board rule may include
persons not listed in this subsection who may exercise substantial control over
a business.
(13) “Residential contractor” means a
licensed contractor that holds an endorsement as a:
(a) Residential general contractor;
(b) Residential specialty contractor;
(c) Residential limited contractor; or
(d) Residential developer.
(14) “Residential developer” means a
developer of property that is zoned for or intended for use compatible with a
residential or small commercial structure.
(15)(a) “Residential structure” means:
(A) A residence that is a site-built
home;
(B) A structure that contains one or
more dwelling units and is four stories or less above grade;
(C) A condominium, rental residential
unit or other residential dwelling unit that is part of a larger structure, if
the property interest in the unit is separate from the property interest in the
larger structure;
(D) A modular home constructed
off-site;
(E) A manufactured dwelling; or
(F) A floating home as defined in ORS
830.700.
(b) “Residential structure” does not
mean:
(A) Subject to paragraph (a)(C) of
this subsection, a structure that contains both residential and nonresidential
units;
(B) Transient lodging;
(C) A residential school or residence
hall;
(D) A state or local correctional
facility other than a local facility for persons enrolled in work release
programs maintained under ORS 144.460;
(E) A youth correction facility as
defined in ORS 420.005;
(F) A youth care center operated by a
county juvenile department under administrative control of a juvenile court
pursuant to ORS 420.855 to 420.885;
(G) A detention facility as defined in
ORS 419A.004;
(H) A nursing home;
(I) A hospital; or
(J) A place constructed primarily for
recreational activities.
(16) “Responsible managing individual”
means an individual who:
(a) Is an owner described in ORS
701.094 or an employee of the business;
(b) Exercises management or
supervisory authority, as defined by the board by rule, over the construction
activities of the business; and
(c)(A) Successfully completed the
training and testing required for licensing under ORS 701.122 within a period
the board identifies by rule;
(B) Demonstrated experience the board
requires by rule; or
(C) Complied with the licensing
requirements of ORS 446.395.
(17) “Small commercial structure”
means:
(a) A nonresidential structure that
has a ground area of 10,000 square feet or less, including exterior walls, and
a height of not more than 20 feet from the top surface of the lowest flooring
to the highest interior overhead finish of the structure;
(b) A nonresidential leasehold, rental
unit or other unit that is part of a larger structure, if the unit has a ground
area of 12,000 square feet or less, excluding exterior walls, and a height of
not more than 20 feet from the top surface of the lowest flooring to the
highest interior overhead finish of the unit; or
(c) A nonresidential structure of any
size for which the contract price of all construction contractor work to be
performed on the structure as part of a construction project does not total
more than $250,000.
(18) “Specialty contractor” means a
contractor who performs work on a structure, project, development or
improvement and whose operations as such do not fall within the definition of “general
contractor.” “Specialty contractor” includes a person who performs work
regulated under ORS 446.395.
(19) “Zero-lot-line dwelling” means a
single-family dwelling unit constructed in a group of attached units in which:
(a) Each attached unit extends from
foundation to roof with open space on two sides; and
(b) Each dwelling unit is separated by
a property line.
SECTION 60. ORS 701.068, as amended
by section 39 of this 2011 Act, is amended to read:
701.068. (1) An applicant for issuance
or renewal of a contractor license shall file with the Construction Contractors
Board a surety bond with one or more corporate sureties authorized to do
business in this state in the amount set forth in ORS 701.081 or 701.084.
(2) If an applicant for issuance,
renewal or an additional endorsement of a license will hold endorsements as
both a residential contractor and a commercial contractor, the applicant shall
file with the board a surety bond for each endorsement in the amount set forth
in ORS 701.081 or 701.084.
(3) The surety bond for a residential
contractor must provide that the applicant, with regard to work subject to this
chapter, will pay amounts [determined]
ordered paid by the board [as
provided] under ORS 701.145. The surety bond for a commercial contractor
must provide that the applicant, with regard to work subject to this chapter,
will pay amounts [determined]
ordered paid by the board [as
provided] under ORS 701.146. Bonds filed under this section shall remain in
effect for at least one year or until depleted by payments under ORS 701.150,
701.153 and 701.157, unless the surety sooner cancels the bond. At the
discretion of the surety the bond may be continued for an additional period by
continuation certificate. Except as provided in subsection (4) of this section,
the aggregate liability of the surety under the bond for complaints against the
contractor may not exceed the penal sum of the bond no matter how many years
the bond is in force. Except as provided in subsection (4) of this section, an
extension by continuation certificate, reinstatement, reissue or renewal of the
bond may not increase the liability of the surety.
(4) The board, by rule, may require a
licensee to obtain a new surety bond if, pursuant to a board [determination issued under ORS 701.145 or
701.146] order for payment of a complaint described in ORS 701.140,
the surety pays an amount out of the bond of the licensee. The new surety bond
must be in the applicable amount set forth in ORS 701.081 or 701.084 unless a
higher amount is required by a board condition or rule described in subsection
(5) or (6) of this section. The board may allow a licensee to obtain, instead
of a new bond, a certification that the surety remains liable for the full
penal sum of the bond, notwithstanding payment by the surety on the complaint.
(5) If the amount the licensee must
pay against the bond under subsection (3) of this section exceeds the amount of
the bond, the board shall suspend the contractor’s license until the amount owed
is paid. The board, as a condition of ending the suspension, may require a
contractor requesting reinstatement of a license to file a bond of an amount up
to five times as much as the amount required ordinarily of a licensee under ORS
701.081 or 701.084.
(6) The board by rule may establish
conditions for applicants or persons licensed under this chapter under which
the applicant or licensee must file a bond of an amount up to five times as
much as the amount required ordinarily of an applicant or licensee under ORS
701.081 or 701.084. The board may reduce the amount of bond it would otherwise
require if the contractor demonstrates satisfactory completion of approved
elective classes on dispute resolution and prevention, basic accounting and
record keeping or such other classes as the board may prescribe.
[(7)
The bond required under this section is for the exclusive purpose of payment of
amounts for which the board has determined the surety to have responsibility.]
[(8)
Upon issuance of a determination under ORS 701.145 or 701.146 for a complaint
against a contractor who holds a bond required under this section, the board
shall notify the surety on the bond of the determination in a manner determined
by the board by rule. The notification shall include a list of all board
determinations for payment by the surety from the bond.]
(7) The bond required under this
section is for the exclusive purpose of payment of final orders and arbitration
awards of the board in accordance with this chapter.
(8) Upon determination under ORS
701.145 or 701.146 of a complaint against a contractor who holds a bond
required under this section, the board shall notify the surety on the bond of
the final order in a manner determined by the board by rule. The notification
shall include a list of all complaints upon which a final order has been
issued.
(9) A court action may not be
commenced against a surety on a bond required under this section until 30 days
after the date that the surety is notified by the board under ORS 701.150 that
payment is due on the [determination]
final order.
(10) In any action against a surety on
a bond under this section that is based on the failure of the surety to pay [an amount determined by the board] a
final order, the court may award:
(a) Costs;
(b) Reasonable attorney fees to the
prevailing party as part of the costs; and
[(c)
Twice the amount that the board determined the surety must pay on the
complaint, if the surety arbitrarily and capriciously refused to pay.]
(c) Twice the amount of any damages
that the board ordered the surety to pay on the complaint, if the surety
arbitrarily and capriciously refused to pay upon order of the board.
SECTION 61. ORS 701.088, as amended
by section 40 of this 2011 Act, is amended to read:
701.088. (1) As used in this section:
(a) “Illegal drug manufacturing site”
has the meaning given that term in ORS 453.858.
(b) “Nonprofit organization” means an
organization or group of organizations described in section 501(c)(3) of the
Internal Revenue Code that is exempt from income tax under section 501(a) of
the Internal Revenue Code.
(2) The Construction Contractors Board
shall adopt rules prescribing terms and conditions under which a general or
specialty contractor that is a nonprofit organization engaged in rehabilitating
an illegal drug manufacturing site may substitute a letter of credit from a
bank authorized to do business in this state, or substitute a cash deposit, for
a bond required under ORS 701.068. A letter of credit or cash deposit described
in this section substitutes for a bond only for purposes of work the contractor
performs on an illegal drug manufacturing site. The letter of credit or cash
deposit must be equivalent in amount to the bond that would otherwise be
required of the contractor under ORS 701.068.
(3) The board may charge a contractor
a fee to cover any expense incurred by the board in allowing the contractor to
substitute a letter of credit or cash deposit under this section.
(4) A contractor that supplies a
letter of credit or cash deposit under this section is considered to be bonded
under ORS 701.068 for purposes of performing rehabilitation work on illegal
drug manufacturing sites. A letter of credit or cash deposit that a contractor
supplies under this section is considered to be a surety bond issued under ORS
701.068 for purposes of claims involving the contractor’s rehabilitation work
on illegal drug manufacturing sites. The issuer of a letter of credit described
in this section is considered to be a surety for a bond only for purposes of
receiving [notification of a
determination] notice under ORS 701.068 or 701.146.
SECTION 62. ORS 701.117, as amended
by section 41 of this 2011 Act, is amended to read:
701.117. A contractor shall notify the
Construction Contractors Board of any change of address while licensed and for
one year following the date the contractor’s license expires or otherwise
becomes inactive. The contractor shall so notify the board within 10 days of
the date upon which the change of address occurs. Initial notice of a contested
case or arbitration directed by the board to the last-known address of
record shall be considered delivered when deposited in the United States mail
and sent registered or certified or post office receipt secured. Any other
communication directed by the board to the last-known address of record shall
be considered delivered when deposited in the United States mail, regular mail.
SECTION 63. ORS 701.133, as amended
by sections 49 and 50, chapter 107, Oregon Laws 2010, and section 43 of this
2011 Act, is amended to read:
701.133. (1) Unless otherwise provided
by the Construction Contractors Board by rule, before filing a complaint under
ORS 701.139, a person must send notice to the contractor that the person
intends to file the complaint. The person must send the notice at least 30 days
before filing the complaint. The notice must be mailed by certified mail to the
last known address of the contractor as shown in board records. The board by
rule may:
(a) Specify the manner in which the
person may show compliance with this subsection at the time of filing the
complaint.
(b) Provide that all or part of the
requirements for sending a notice under this subsection may be waived if the
contractor, by other means, has actual notice of the dispute with the person
filing the complaint.
(2) If the notice described in
subsection (1) of this section is mailed to the contractor fewer than 45 days
before expiration of the time limitation under ORS 701.143 for the board to
receive the complaint, the time limitation for the board to receive the
complaint does not expire until 60 days after the notice is mailed.
(3) The board by rule may impose a
processing fee for complaints filed under ORS 701.139. The fee amount may not
exceed the amount of the filing fee provided by ORS 21.110 (1) for a plaintiff
filing a civil action in circuit court. The board may impose different
processing fees for complaints processed under ORS 701.145 than for complaints
processed under ORS 701.146.
(4) If the board adopts rules under
subsection (3) of this section, the rules:
(a) Except as provided in paragraphs
(b) and (c) of this subsection, must provide that a prevailing complainant
recover processing fees as damages in the final order of the board.
(b) Must provide that the board may
waive or defer all or part of the processing fee upon application by the person
filing the complaint that shows the person is unable to pay all or part of the
fee. The application must be made under oath and notarized. The application must
show the average monthly income and expenses of the complainant, assets and
liabilities of the complainant and any other information required by board
rule.
(c) May provide for the processing fee
to be waived for all complaints that are based on the furnishing of labor by a
complainant to a contractor. The board may provide for processing fee waiver
under this paragraph only if, in the opinion of the board, a majority of
complainants who file complaints based on the furnishing of labor to
contractors are eligible for fee waivers as described in paragraph (b) of this
subsection.
SECTION 64. ORS 701.139, as amended
by section 44 of this 2011 Act, is amended to read:
701.139. The Construction Contractors
Board may determine the validity of a complaint described in ORS 701.140 filed
against a licensed contractor. A person must file the complaint within the
applicable time limitation described in ORS 701.143. The complaint must be
filed and resolved as follows:
(1) A complaint against a residential
contractor that is not also endorsed as a commercial contractor involving work
on a residential or small commercial structure or an appurtenance to a
residential or small commercial structure must be resolved as provided in ORS
701.145.
(2) A complaint against a commercial
contractor that is not also endorsed as a residential contractor involving work
on a small commercial or large commercial structure or an appurtenance to a
small commercial or large commercial structure must be resolved as provided in
ORS 701.146.
(3) A complaint against a contractor
that is endorsed as both a residential contractor and a commercial contractor:
(a) Involving work on a residential
structure or an appurtenance to a residential structure must be resolved as
provided under ORS 701.145.
(b) Involving work on a small
commercial structure or an appurtenance to a small commercial structure may be
resolved as provided in ORS 701.145 or 701.146, at the complainant’s election.
(c) Involving work on a large
commercial structure or an appurtenance to a large commercial structure must be
resolved as provided in ORS 701.146.
(4) Notwithstanding subsections (1)
to (3) of this section and except as provided in section 58 of this 2011 Act,
with prior agreement of the complainant and the licensed contractor, a
complaint may be resolved by the board through binding arbitration under
section 58 of this 2011 Act.
SECTION 65. ORS 701.140, as amended
by section 45 of this 2011 Act, is amended to read:
701.140. A complaint under ORS 701.139
must arise from the performance, or a contract for the performance, of work
that requires a contractor license issued by the Construction Contractors
Board. The complaint must be of one or more of the following types:
(1) A complaint against a contractor
by the owner of a structure or other real property for the following:
(a) Negligent work.
(b) Improper work.
(c) Breach of contract.
(2) A complaint against a contractor
by the owner of a structure or other real property to discharge, or to recoup
funds expended in discharging, a lien established under ORS 87.010 to 87.060
and 87.075 to 87.093 under circumstances described under this subsection. If
the complaint is processed under ORS 701.145, the Construction Contractors
Board may reduce the amount of the complaint by any amount the complainant owes
the contractor. The board shall process complaints described in this
subsection under ORS 701.145 only if:
(a) The owner paid the contractor for
that contractor’s work subject to this chapter;
(b) A lien is filed against the
property of the owner under ORS 87.010 to 87.060 and 87.075 to 87.093 because
the contractor failed to pay the person claiming the lien for that person’s
contribution toward completion of the improvement; and
(c) The complaint is described in ORS
701.139 (1) or (3)(a) or (b).
(3) A complaint against a licensed
subcontractor by a licensed contractor for the following:
(a) Negligent work;
(b) Improper work; or
(c) Breach of contract.
(4) A complaint by a person furnishing
labor to a contractor or owed employee benefits by a contractor.
(5) A complaint, as limited by rule of
the board, by a person furnishing material or renting or supplying equipment to
a contractor. The minimum limit set by the board may not exceed $150.
(6) A complaint by a subcontractor
against a contractor for unpaid labor or materials arising out of a contract.
SECTION 66. ORS 701.145, as amended
by section 46 of this 2011 Act, is amended to read:
701.145. For a complaint described in
ORS 701.139 (1) or (3)(a) or a complaint under ORS 701.139 (3)(b) that a
complainant elects to have resolved under this section:
(1) The complainant must file the
complaint with the Construction Contractors Board in a form prescribed by the
board.
(2) The board may suspend processing
of the complaint if:
(a) The same facts and issues involved
in the complaint have been submitted to a court of competent jurisdiction for
determination or have been submitted to any other entity authorized by law or
the parties to effect a resolution or settlement; or
(b) The board determines that the
nature or complexity of the dispute described in the complaint is such that a
court is the appropriate forum for the adjudication of the dispute.
(3) The board may dismiss or close the
complaint as established by rule of the board if any of the following
conditions apply:
(a) The complainant does not respond
to a board request and the request is necessary to the board’s investigation of
the complaint.
(b) The complainant does not allow the
board to conduct one or more on-site meetings to mediate or investigate the
complaint.
(c) The complainant does not permit
the contractor against whom the complaint is filed to be present at an on-site
investigation made by the board.
(d) The board determines that the
contractor against whom the complaint is filed is capable of complying with
recommendations made by the board relative to the complaint, but the
complainant does not permit the contractor to comply with the recommendations.
The board may refuse to accept or further process a complaint under this
paragraph only if the contractor was licensed at the time the work was first
performed and is licensed at the time the board makes its recommendations.
[(d)]
(e) The amount in controversy is less than an amount adopted by the board
and not more than $250.
[(4)
Upon acceptance of the complaint, the board shall give notice to the contractor
against whom the complaint is made and shall initiate proceedings to determine
board jurisdiction over the complaint. The board shall attempt to conduct one
or more meetings on-site or by telephone to mediate a dispute. During mediation
of a dispute, the board may recommend to the contractor such action as the
board considers appropriate to compensate the complainant. If the contractor performs
accordingly, the board shall give that fact due consideration in any subsequent
disciplinary proceeding brought by the board.]
[(5)
If the parties do not resolve or settle the complaint, except as provided in
subsection (6) of this section, the complainant may recover payment from the
bond of the contractor only by obtaining:]
[(a)
A final judgment against the contractor issued by a court of competent
jurisdiction; or]
[(b)
An arbitration award against the contractor that a court has reduced to a final
judgment.]
[(6)
If the complaint is filed under ORS 701.140 (4), the complainant may recover
payment from the bond of the contractor as provided in subsection (5)(a) of
this section or by obtaining a final order issued by the Bureau of Labor and Industries
that states an amount of unpaid wages that the licensed contractor owes under
ORS 652.140 or ORS 653.010 to 653.261.]
[(7)
For purposes of subsections (5) and (6) of this section, “final” means that the
judgment or order has become final by operation or law or on appeal.]
[(8)
The board shall send the surety on the contractor bond required under ORS
701.068 a copy of the final judgment or bureau final order, and a copy of a
determination issued by the board that the surety must pay the amount stated by
the board. A determination issued by the board may not include payment of any
attorney fees awarded in the final judgment or bureau final order. The
determination issued by the board is an order in other than a contested case
proceeding. The determination order is not recordable under ORS 701.153 (1) and
(2) to create a lien.]
(4) Upon acceptance of the
complaint, the board shall give notice to the contractor against whom the
complaint is made and shall initiate proceedings to determine the validity of
the complaint. If, after investigation, the board determines that a violation
of this chapter or of any rule adopted thereunder has occurred, or damage has
been caused by the contractor, the board may recommend to the contractor such
action as the board considers appropriate to compensate the complainant. If the
contractor performs accordingly, the board shall give that fact due
consideration in any subsequent disciplinary proceeding brought by the board.
The board may conduct one or more on-site meetings to mediate or investigate
the complaint.
(5) Subject to section 58 of this 2011
Act, if the board is unable to resolve the complaint under subsection (4) of
this section, the board may issue a contested case notice under ORS 183.415
and:
(a) Issue a proposed default order
under ORS 183.417 to become effective only if a party does not request a
contested case hearing; or
(b) Refer the matter for hearing.
(6) The board shall send a copy of the
notice and any proposed order described in subsection (5) of this section to
the surety on the contractor bond required by ORS 701.068.
SECTION 67. ORS 701.146, as amended
by section 47 of this 2011 Act, is amended to read:
701.146. For a complaint described in
ORS 701.139 (2) or (3)(c) or a complaint under ORS 701.139 (3)(b) that a
complainant elects to have resolved under this section:
(1) The person seeking to file the
complaint with the Construction Contractors Board must:
(a) Bring an action on the dispute
against the licensed contractor in a court of competent jurisdiction; or
(b) Initiate a proceeding to resolve
the dispute through binding arbitration substantially in conformance with ORS
36.600 to 36.740.
(2) The complainant must file the
complaint with the Construction Contractors Board by delivering to the board a
copy of the complainant’s court pleading or the demand for arbitration or other
document necessary to initiate arbitration. The pleading, demand or other
document must be accompanied by a completed board complaint form. The
complainant must also give notice to the surety on the bond by delivering to
the surety a copy of the complainant’s court pleading or the demand for
arbitration or other document necessary to initiate arbitration and a copy of
the completed board complaint form. Delivery to the board and the surety must
be accomplished by certified mail, return receipt requested, no later than the
earlier of:
(a) The 90th day after filing the
court action or after filing or making the arbitration demand or other
initiation of arbitration;
(b) The 14th day before the first day
of trial or arbitration; or
(c) The 30th day before:
(A) The court issues a judgment in the
action; or
(B) The arbitrator issues an award on
the arbitration.
(3) Filing the complaint with the
board under subsection (2) of this section constitutes filing the complaint for
purposes of establishing timeliness of the complaint under ORS 701.143 and
priority of the complaint for possible payment from the bond under ORS 701.157.
(4) Except as provided in this
subsection and subsection (7) of this section, if the complainant properly
gives notice to the surety under subsection (2) of this section, a judgment or
award against the contractor entered in the action or arbitration is binding on
the surety. If the complainant delivers the notice required under subsection
(2) of this section to the wrong surety, the surety receiving the notice may
avoid being bound by a judgment or award by delivering notice of the mistake to
the complainant or the complainant’s attorney of record, and to the board, on
or before the 30th day after the surety receives notice under subsection (2) of
this section. Delivery of the notice of mistake must be by certified mail,
return receipt requested, or by facsimile machine or other form of transmission
with an acknowledgment of receipt.
(5) A surety under subsection (2) of
this section has an absolute right to intervene in an action or arbitration
brought or initiated under subsection (1) of this section. A complainant may
not join a surety as a party to an action or arbitration unless the complainant
disputes the validity or timeliness of the surety’s notice of mistake or the
surety disputes the validity or timeliness of the delivery to the surety of the
notice required by subsection (2) of this section. If the surety elects to
intervene or is joined as a party, the surety is bound by all issues of fact
and law determined by the court or arbitrator and may not seek board review of
those determinations.
(6) If a court issues a judgment on an
action, or reduces an arbitration award to judgment, against a contractor on a
complaint described in subsection (1) of this section, the complainant must
deliver a certified copy of the judgment to the board and to the surety no
later than the 30th day after entry of the judgment in order to maintain the
complaint and possibly receive payment from the bond. The entry of a final
judgment against the contractor concludes the contractor’s involvement in any
proceedings to determine whether the complaint is subject to payment from the
bond. The complainant and the surety are the only parties to the administrative
process set forth in subsection (7) of this section.
(7) Upon receipt of a timely delivered
certified copy of the judgment as described in subsection (6) of this section,
the board shall issue a [determination
that the surety must pay the amount stated by the board. The determination
issued by the board is an order in other than a contested case proceeding. The
determination shall include] proposed order in the amount of the
judgment together with any costs, interest and attorney fees awarded under the
judgment, to the extent that the judgment, costs, interest and fees are within
the jurisdiction of the board. The board’s determination of the complaint is
limited to whether the complaint comes within the jurisdiction of the board and
is subject to payment by the surety. The board shall issue the proposed
order in a form that indicates the surety’s maximum liability to the
complainant. If a hearing is not requested within the time set forth in the
proposed order, the proposed order becomes final without any further action by
the board. If a hearing is requested, unless review of an issue is precluded
under subsection (5) of this section, the board may determine:
(a) Whether the complaint was timely
filed with the board as provided in ORS 701.143.
(b) Whether the surety received timely
notice as provided in subsections (2) and (6) of this section.
(c) Whether the complaint is for work
subject to this chapter.
(d) The extent of the surety’s
liability to the complainant.
SECTION 68. ORS 701.149, as amended
by section 48 of this 2011 Act, is amended to read:
701.149. (1) [If the Construction Contractors Board suspends the processing of a
complaint because of the complaint having been submitted to a court or
arbitrator or because of a court having stayed action on the complaint,]
An arbitration conducted under section 58 of this 2011 Act must be held before
an administrative law judge assigned under ORS 183.605 to 183.690 to act as
arbitrator on behalf of the Construction Contractors Board. The assignment of
an administrative law judge to act as arbitrator is subject to a request for a
different arbitrator under ORS 183.645 or a rule adopted pursuant to ORS 183.645.
(2) If a party to a complaint under
ORS 701.145 requests a contested case hearing, the board shall schedule the
hearing.
(3) The board may adopt rules
governing the avoidance of a contested case hearing. The rules may include, but
need not be limited to, a limit on the time period during which a party to a
complaint may avoid a contested case hearing by filing a court action.
(4) Contested case hearings before the
board must be conducted by an administrative law judge assigned under ORS
183.605 to 183.690. Notwithstanding ORS 670.325, the board may delegate
authority to the administrative law judge to issue a final order in any matter.
(5) In assigning administrative law
judges for arbitration and contested case hearings conducted under this
section, the chief administrative law judge of the Office of Administrative
Hearings established under ORS 183.605 shall defer to board requests.
(6) If a complainant to the board
files a court action, the board may require that the complainant provide
status reports on the pending court action [or
arbitration]. The board may dismiss or close a complaint filed under ORS
701.139 if the complainant fails to submit status reports on a pending court
action [or arbitration].
[(2)]
(7) ORS 183.605 to 183.690 do not limit in any way the ability of the
board to make full use of alternative dispute resolution, including mediation
or [referral for] arbitration, to
resolve complaints against contractors filed under ORS 701.139.
SECTION 69. ORS 701.150, as amended
by section 49 of this 2011 Act, is amended to read:
701.150. [(1) If a licensed contractor fails to pay a complainant amounts due
under a court judgment or under a final order of the Bureau of Labor and
Industries, the Construction Contractors Board shall issue a determination
stating the amount that a surety must pay the complainant. The surety shall pay
the amount required under the determination as follows:]
[(a)
If the complaint was filed under ORS 701.145, the surety shall pay the amount
from a bond required for a residential contractor.]
[(b)
If the complaint was filed under ORS 701.146, the surety shall pay the amount
from a bond required for a commercial contractor.]
(1) A Construction Contractors
Board final order that is not paid by the contractor and that:
(a) Arises out of a complaint filed
under ORS 701.145 must be satisfied from a bond required for a residential
contractor.
(b) Arises out of a complaint filed
under ORS 701.146 must be satisfied from a bond required for a commercial
contractor.
(2) If a board final order is not
paid by the contractor, the board shall notify the surety on the bond. The
surety may not pay on a complaint until the surety receives notice from the
board that the complaint is ready for payment.
(3) Notwithstanding ORS 701.153 and
701.157, a bond is not subject to payment for a complaint that is filed more
than 14 months after the earlier of:
(a) The expiration or cancellation
date of the license that was in force when the work that is the subject of the
complaint was completed or abandoned; or
(b) The date that the surety canceled
the bond.
SECTION 70. ORS 701.153, as amended
by section 50 of this 2011 Act, is amended to read:
701.153. (1) If an order of the
Construction Contractors Board that determines a complaint [against a residential contractor that was
filed with the board prior to July 1, 2011, and the order] under ORS
701.145 becomes final by operation of law or on appeal and remains unpaid
10 days after the date the order becomes final, the complainant may file the
order with the county clerk in any county of this state.
(2) Upon receipt [of an order described in subsection (1) of this section], the clerk
shall record the order in the County Clerk Lien Record. In addition to any
other remedy provided by law, recording an order [described in subsection (1) of this section] in the County Clerk
Lien Record pursuant to the provisions of this section has the effect provided
for in ORS 205.125 and 205.126, and the order may be enforced as provided in
ORS 205.125 and 205.126.
(3)(a) Payments from the surety bond
of a residential contractor pursuant to [a
board determination under ORS 701.145] board order and notice are
satisfied in the following priority in any 90-day period:
(A) Board [determinations] orders as a result of complaints against a
residential contractor by the owner of a residential or small commercial
structure have payment priority to the full extent of the bond over all other
types of complaints.
[(B)
If the determinations described in subparagraph (A) of this paragraph do not
exhaust the bond, then amounts due under board determinations for all other
types of residential or small commercial structure complaints filed with the
board within that 90-day period may be paid from the bond, except that the total
amount paid from any one bond to nonowner complainants may not exceed $3,000.]
(B) If the complaints described in
subparagraph (A) of this paragraph do not exhaust the bond, then amounts due as
a result of all other types of residential or small commercial structure
complaints filed within that 90-day period may be satisfied from the bond,
except that the total amount paid from any one bond to nonowner complainants
may not exceed $3,000.
(b) A 90-day period begins on the date
the first complaint is filed with the board. Subsequent 90-day periods begin on
the date the first complaint is filed with the board after the close of the
preceding 90-day period.
[(4)
If the total amount payable under determinations issued by the board for
complaints against a residential contractor filed with the board within 90 days
after the board receives notice of the first complaint against the contractor
exceed the amount of the bond available for payment, subject to the priorities
under this section, the board shall decide how payment of the determined
amounts from the bond is to be apportioned.]
[(5)
If the total amount payable under determinations issued by the board as a
result of complaints that were filed with the board within 90 days after the
board receives notice of the first complaint do not exceed the amount of the
bond available for payment, those determinations have payment priority over
amounts due under determinations resulting from subsequently filed complaints.]
[(6)
The total amount paid from a residential contractor bond for costs and interest
under all determinations issued by the board under ORS 701.145 may not exceed
$3,000.]
(4) If the total complaints filed
with the board against a residential contractor within 90 days after the board
receives notice of the first complaint against the contractor exceed the amount
of the bond available for those complaints, the bond shall be apportioned as
the board determines, subject to the priorities established under this section.
(5) If the total amounts due as a
result of complaints filed with the board within 90 days after the first
complaint is filed do not exceed the amount of the bond available for those
complaints, all amounts due as a result of complaints filed within the 90-day
period shall have priority over all complaints subsequently filed until the
amount of the bond available for the payment of complaints is exhausted.
(6) The total amount paid from a
residential contractor bond for costs, interest and attorney fees may not
exceed $3,000.
SECTION 71. ORS 701.180, as amended
by section 51 of this 2011 Act, is amended to read:
701.180. Notwithstanding the
provisions of ORS 36.600 to 36.740, any other provision of law or any
contractual provision, failure of a contractor to initiate mediation or arbitration
proceedings within 30 days after notification by the Construction Contractors
Board of a complaint under ORS 701.145 is a waiver by the contractor of any
contractual right to [a] mediation or
arbitration. [process in lieu of
mediation by the board under ORS 701.145. If the parties do not resolve or
settle the dispute pursuant to board mediation under ORS 701.145, unless
otherwise provided by law regarding a dispute described under ORS 652.140 or
653.010 to 653.261, the complainant must comply with any contractual provision
for mediation or arbitration of the dispute as a condition for obtaining the
judgment required under ORS 701.145 (5).]
SECTION 72. ORS 701.235, as amended
by section 52 of this 2011 Act, is amended to read:
701.235. (1) The Construction
Contractors Board shall adopt rules to carry out the provisions of this chapter
including, but not limited to, rules that:
(a) Establish language for surety
bonds;
(b) Establish processing requirements
for different types of complaints described in this chapter;
(c) Limit whether a complaint may be
processed by the board if there is no direct contractual relationship between
the complainant and the contractor;
(d) Subject to ORS [701.145,] 701.153 and 701.157, exclude
or limit recovery from the contractor’s bond required by ORS 701.068 of amounts
awarded by a court or arbitrator for interest, service charges, costs and
attorney fees arising from commencing the arbitration or court action and
proving damages; and
(e) Designate a form to be used by an
owner of residential property under ORS 87.007 for the purpose of indicating
the method the owner has selected to comply with the requirements of ORS 87.007
(2) or to indicate that ORS 87.007 (2) does not apply.
(2) The board may adopt rules prescribing
terms and conditions under which a contractor may substitute a letter of credit
from a bank authorized to do business in this state instead of the bond
requirements prescribed in ORS 701.068.
SECTION 73. (1) Sections 56 and 58
of this 2011 Act and the amendments to ORS 701.005, 701.068, 701.088, 701.117,
701.133, 701.139, 701.140, 701.145, 701.146, 701.149, 701.150, 701.153, 701.180
and 701.235 by sections 59 to 72 of this 2011 Act become operative July 1,
2017, and apply to complaints filed with the Construction Contractors Board on
or after July 1, 2017.
(2) The board shall complete the
processing and resolution of any complaint filed with the board prior to July
1, 2017, and pending on July 1, 2017, in accordance with ORS 701.005, 701.068,
701.088, 701.117, 701.133, 701.139, 701.140, 701.145, 701.146, 701.149,
701.150, 701.153, 701.180 and 701.235 as amended and in effect immediately
prior to July 1, 2017. Any determination authorized under this subsection is
payable as provided under ORS 701.068, 701.145, 701.146, 701.150 and 701.153 as
amended and in effect immediately prior to July 1, 2017.
PROJECT CLEAN
SLATE
SECTION 74. Notwithstanding any
other provision of law, during the biennium beginning July 1, 2011, the
Department of Justice is authorized to grant to Project Clean Slate an amount
not to exceed $300,000 from moneys appropriated to the department, out of the
General Fund, for the biennium beginning July 1, 2011.
PUBLIC SAFETY
SECTION 75. Notwithstanding ORS
180.180, the amount of $6,000,000 is transferred from the Department of Justice
Operating Account to the General Fund for general governmental purposes. The
transfer shall be made on the effective date of this 2011 Act or July 1, 2011,
whichever is later.
DEPARTMENT OF
REVENUE
SECTION 76. Notwithstanding and in
lieu of section 7 (4), chapter 710, Oregon Laws 2009, the amount of $2,600,000
is transferred from the Tax Amnesty Fund to the General Fund for general
governmental purposes. The transfer shall be made on the effective date of this
2011 Act or July 1, 2011, whichever is later.
SECTION 77. (1) Notwithstanding
ORS 293.205 to 293.225, on a date determined by the State Treasurer and the
Director of the Department of Revenue, the State Treasurer shall transfer the
amount of $19 million of unexpended moneys in the Common School Fund to the
credit of the Senior Property Tax Deferral Revolving Account established under
ORS 311.701.
(2) As soon as practicable after June
15, 2013, the Department of Revenue shall transfer the amount of $19 million,
plus interest at a rate equal to the average positive rate of interest earned
on all other unexpended moneys from the Common School Fund invested over the
period of time beginning with the date of the transfer required under
subsection (1) of this section and ending on June 1, 2013, from the Senior
Property Tax Deferral Revolving Account to the State Treasurer for deposit in
the Common School Fund.
(3) Notwithstanding subsection (2) of
this section:
(a) If, on February 15, 2013, the
Department of Revenue determines that the balance in the Senior Property Tax
Deferral Revolving Account on June 15, 2013, will not be sufficient to make the
transfer required under subsection (2) of this section, the Department of
Revenue shall, not later than March 15, 2013, submit a report to the
Legislative Assembly that:
(A) Explains the impact of the reforms
made by chapter 723, Oregon Laws 2011 (Enrolled House Bill 2543), on the
homestead property tax deferral program;
(B) Includes revenue projections for
the program and an assessment of the long-term viability of the program; and
(C) Recommends changes necessary to
ensure the long-term viability of the program without further temporary
transfers of funds.
(b) If, on June 3, 2013, the
Department of Revenue determines that the balance in the Senior Property Tax
Deferral Revolving Account will not be sufficient to make the transfer required
under subsection (2) of this section, the Department of Revenue shall, as soon
as practicable, transfer to the State Treasurer for deposit in the Common
School Fund any positive balance in the Senior Property Tax Deferral Revolving
Account in excess of the amounts required to be paid to the respective county
tax collectors pursuant to ORS 311.676.
(4)(a) Upon receipt of a report
pursuant to subsection (3)(a) of this section, the Legislative Assembly shall
make a determination of the long-term viability of the homestead property tax
deferral program and consider alternatives to the program, including
curtailment to ensure the long-term viability of the program and elimination of
the program.
(b) If the Department of Revenue
determines pursuant to subsection (3)(b) of this section that there are
insufficient funds to make the transfer required under subsection (2) of this section,
the Legislative Assembly shall, not later than June 15, 2013, appropriate to
the credit of the Common School Fund:
(A) An amount equal to the difference
between the amount required to be transferred under subsection (2) of this
section and any amount actually transferred pursuant to subsection (3)(b) of
this section; or
(B) If there is no positive balance in
the Senior Property Tax Deferral Revolving Account as described in subsection
(3)(b) of this section, the amount required under subsection (2) of this
section.
OREGON
GOVERNMENT
ETHICS
COMMISSION
SECTION 78. Section 8b, chapter 877,
Oregon Laws 2007, as amended by section 24, chapter 68, Oregon Laws 2009, is
amended to read:
Sec. 8b. The amendments to ORS
171.772 by section 8a, chapter 877, Oregon Laws 2007, become operative January
1, [2013] 2015.
SECTION 79. Section 9e, chapter 877,
Oregon Laws 2007, as amended by section 25, chapter 68, Oregon Laws 2009, is
amended to read:
Sec. 9e. The amendments to ORS
244.290 by section 9d, chapter 877, Oregon Laws 2007, become operative January
1, [2013] 2015.
LEGISLATIVE
ASSEMBLY
SECTION 80. Notwithstanding ORS
171.072 (4), a member of the Legislative Assembly may not receive an allowance
for expenses incurred in the performance of official duties during any period
in the month of June 2011 when the Legislative Assembly is not in session.
SECTION 81. ORS 171.305 is amended to
read:
171.305. (1) The proceeds from the
sale of an edition or publication made pursuant to ORS 171.275 shall be deposited
in the State Treasury to the credit of a revolving account for the use of the
Legislative Counsel Committee in publishing and distributing future editions or
publications. The account, to be known as the ORS Revolving Account, is
continuously appropriated to the committee for this purpose.
(2) There shall also be deposited to
the credit of the ORS Revolving Account any moneys received through the sale of
a medium of publication belonging to the Legislative Counsel Committee or any
moneys received by the committee in connection with the use of a medium, or
material printed with a medium pursuant to ORS 171.295.
(3) The Legislative Counsel Committee,
from time to time, may cause to be transferred from the ORS Revolving Account
to the General Fund the moneys that the committee considers unnecessary for use
in publishing and distributing future editions or publications.
(4) Any unexpended and unobligated
balance in the ORS Revolving Account in excess of [$400,000] $500,000 as of July 1 of any odd-numbered year, as
certified by the Legislative Counsel, shall be transferred from the account to
the General Fund to be available for general governmental expenditures.
HUMAN SERVICES
SECTION 82. If House Bill 2049
becomes law, section 6, chapter 604, Oregon Laws 2011 (Enrolled House Bill
2049), is repealed.
SECTION 83. Notwithstanding ORS
412.124, for the biennium beginning July 1, 2011, the Department of Human
Services may provide aid described in ORS 412.124 subject to available funding
as approved in the legislatively adopted or legislatively approved budget for
the department.
(2) As used in this section:
(a) “Legislatively adopted budget” has
the meaning given that term in ORS 291.002.
(b) “Legislatively approved budget”
has the meaning given that term in ORS 291.002.
SECTION 84. Section 19, chapter 827,
Oregon Laws 2009, is amended to read:
Sec. 19. Notwithstanding
section 24, chapter 736, Oregon Laws 2003, for the biennium beginning July 1, [2009] 2011, the Department of
Human Services may limit [the
administrative cost and property expense components of the allowable costs that
are reimbursed pursuant to section 24 (4)(f), chapter 736, Oregon Laws 2003]
reimbursement paid to Medicaid-certified long term care facilities to the rates
in effect on June 30, 2011, in accordance with the legislatively adopted
budget.
SECTION 85. Section 20, chapter 827,
Oregon Laws 2009, is amended to read:
Sec. 20. Section 19 [of this 2009 Act], chapter 827,
Oregon Laws 2009, is repealed on June 30, [2011] 2013.
SECTION 86. (1) Notwithstanding
ORS 427.340, during the period beginning July 1, 2012, and ending June 30,
2013, the Department of Human Services may transfer from the Community Housing
Trust Account established by ORS 427.340 to the Department of Human Services
Account established by ORS 409.060 no more than $6,950,134.
(2) Moneys transferred from the
Community Housing Trust Account under subsection (1) of this section may be
used only for services provided to children and adults with intellectual or
other developmental disabilities.
EDUCATION
SECTION 87. Section 5, chapter 755,
Oregon Laws 2009, is amended to read:
Sec. 5. (1) Section 4,
chapter 755, Oregon Laws 2009, [of
this 2009 Act] is repealed on January 2, 2012.
(2) Any moneys remaining in the Oregon
School Facilities Task Force Fund on January 2, 2012, that are unexpended,
unobligated and not subject to any conditions shall [revert to the General Fund] be transferred to the Administrative
Services Economic Development Fund established under ORS 461.540.
ECONOMIC
DEVELOPMENT
SECTION 88. Section 5, chapter 93,
Oregon Laws 2010, as amended by section 8, chapter 93, Oregon Laws 2010, is
repealed.
SECTION 89. Section 9, chapter 93,
Oregon Laws 2010, is amended to read:
Sec. 9. Sections 2 to [5 of this 2010 Act] 4, chapter 93,
Oregon Laws 2010, are repealed on June 30, 2013.
SECTION 90. Section 10, chapter 93,
Oregon Laws 2010, is amended to read:
Sec. 10. (1) All moneys
remaining in the Tax Enforcement Fund on [June
30, 2011,] the effective date of this 2011 Act shall be transferred
to the General Fund.
(2) All moneys remaining in the
Building Opportunities for Oregon Small Business Today Account on June 30,
2013, shall be transferred to the General Fund.
[(3)
All moneys remaining in the Tax Enforcement Fund on June 30, 2013, shall be
transferred to the General Fund.]
ADMINISTRATIVE
SECTION 91. Notwithstanding ORS
283.076, the amount of $9,101,000 is transferred from the Oregon Department of
Administrative Services Operating Fund to the General Fund for general
governmental purposes. The transfer shall be made on the effective date of this
2011 Act, or July 1, 2011, whichever is later.
OREGON HEALTH
AUTHORITY
SECTION 92. ORS 475.304 is amended to
read:
475.304. (1) The Oregon Health Authority
shall establish by rule a marijuana grow site registration system to authorize
production of marijuana by a registry identification cardholder, a designated
primary caregiver who grows marijuana for the cardholder or a person who is
responsible for a marijuana grow site. The marijuana grow site registration
system adopted must require a registry identification cardholder to submit an
application to the authority that includes:
(a) The name of the person responsible
for the marijuana grow site;
(b) The address of the marijuana grow
site;
(c) The registry identification card
number of the registry cardholder for whom the marijuana is being produced; and
(d) Any other information the
authority considers necessary.
(2) The authority shall issue a
marijuana grow site registration card to a registry identification cardholder
who has met the requirements of subsection (1) of this section.
(3) A person who has been issued a
marijuana grow site registration card under this section must display the
registration card at the marijuana grow site at all times when marijuana is
being produced.
(4) A marijuana grow site registration
card must be obtained and posted for each registry identification cardholder
for whom marijuana is being produced at a marijuana grow site.
(5) All usable marijuana, plants,
seedlings and seeds associated with the production of marijuana for a registry
identification cardholder by a person responsible for a marijuana grow site are
the property of the registry identification cardholder and must be provided to
the registry identification cardholder upon request.
(6)(a) The authority shall conduct a
criminal records check under ORS 181.534 of any person whose name is submitted
as a person responsible for a marijuana grow site.
(b) A person convicted of a Class A or
Class B felony under ORS 475.840 to 475.920 for the manufacture or delivery of
a controlled substance in Schedule I or Schedule II may not be issued a
marijuana grow site registration card or produce marijuana for a registry identification
cardholder for five years from the date of conviction.
(c) A person convicted more than once
of a Class A or Class B felony under ORS 475.840 to 475.920 for the manufacture
or delivery of a controlled substance in Schedule I or Schedule II may not be
issued a marijuana grow site registration card or produce marijuana for a
registry identification cardholder.
(7) A registry identification
cardholder or the designated primary caregiver of the cardholder may reimburse
the person responsible for a marijuana grow site for the costs of supplies and
utilities associated with the production of marijuana for the registry
identification cardholder. No other costs associated with the production of
marijuana for the registry identification cardholder, including the cost of
labor, may be reimbursed.
(8) The authority may adopt rules
imposing a fee in an amount established by the authority for registration of a
marijuana grow site under this section.
SECTION 93. Notwithstanding ORS
431.832 (2), the amount of $1,733,000 is transferred from the Tobacco Use
Reduction Account to the General Fund for general governmental purposes. The
transfer shall be made on the effective date of this 2011 Act or July 1, 2011,
whichever is later.
LOTTERY
SECTION 94. (1) Notwithstanding
ORS 461.558, the lottery ending balance for the biennium beginning July 1,
2011, shall not be transferred as provided in ORS 461.558 (2). The lottery
ending balance for the biennium beginning July 1, 2011, shall be maintained in
the Administrative Services Economic Development Fund.
(2) As used in this section, “lottery
ending balance” has the meaning given that term in ORS 461.558.
INSURANCE FUND
SECTION 95. Notwithstanding ORS
30.282 and 278.425, the amount of $5,000,000 is transferred from the Insurance
Fund to the General Fund for general governmental purposes. The transfer shall
be made on the effective date of this 2011 Act or July 1, 2011, whichever is
later.
TRANSFERS
SECTION 96. The transfers
described in sections 27, 75, 76, 91, 93 and 95 of this 2011 Act shall be made
from moneys maintained, on the effective date of this 2011 Act, in the funds or
accounts from which the transfers are made.
CAPTIONS AND
EMERGENCY CLAUSE
SECTION 97. The unit captions used
in this 2011 Act are provided only for the convenience of the reader and do not
become part of the statutory law of this state or express any legislative
intent in the enactment of this 2011 Act.
SECTION 98. This 2011 Act being
necessary for the immediate preservation of the public peace, health and
safety, an emergency is declared to exist, and this 2011 Act takes effect on
its passage.
Approved by
the Governor July 6, 2011
Filed in the
office of Secretary of State July 6, 2011
Effective date
July 6, 2011
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