68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1598
Minority Report
B-Engrossed
Senate Bill 601
Ordered by the House June 6
Including Senate Amendments dated May 26 and House Minority
Report
Amendments dated June 6
Sponsored by nonconcurring members of the House Committee on
Judiciary: Representatives BROWN, COURTNEY
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Modifies certain provisions relating to apportionment of fault
and right of contribution in comparative negligence actions.
Establishes requirements for trier of fact in comparing fault and
determining damages awards. Requires that court enter judgment
against any third party defendant found to be liable even if
plaintiff did not make direct claim against third party
defendant. Requires that several liability of each defendant and
third party defendant be set out separately in judgment based on
percentages of fault determined by trier of fact.
{ + Establishes rule for award of attorney fees in certain
cases.
Provides joint and several liability for certain defendants in
actions arising out of drunk driving where fact trier finds
percentage of fault attributable to defendant is 15 percent or
more. + }
Applies only to causes of action arising on or after effective
date of Act.
A BILL FOR AN ACT
Relating to liability; creating new provisions; and amending ORS
18.450, 18.455, 18.470, 18.480, 18.485, 18.570, 59.115, 59.127,
59.255, 59.890, 59.925, 65.207, 86.720, 133.739, 166.725,
192.590, 223.615, 311.673, 460.165, 469.421, 474.085, 478.965,
480.600, 540.120, 545.104, 548.620, 548.660, 553.560, 585.150,
645.225, 646.140, 646.240, 646.638, 646.639, 646.760, 646.770,
646.775, 646.780, 650.020, 650.065, 650.250, 656.052, 658.220,
692.180, 697.762, 697.792, 756.185, 759.720 and 759.900; and
repealing sections 32, 33, 34, 36, 37, 40, 50, 57, 58, 59, 60,
61, 63, 72, 74, 75, 76, 78, 80, 82, 84, 85, 86, 90, 93, 94, 95,
98, 101, 102, 103, 104, 107, 108, 109, 113, 114, 121, 122, 123,
132, 133 and 134, chapter ___, Oregon Laws 1995 (Enrolled
Senate Bill 385).
Be It Enacted by the People of the State of Oregon:
**************************** SECTION 1. ORS 18.450 is amended
to read:
18.450. (1) Whether or not judgment has been entered in an
action against two or more tortfeasors for the same injury or
wrongful death, contribution may be enforced by separate action.
(2) Where a judgment has been entered in an action against two
or more tortfeasors for the same injury or wrongful death,
contribution may be enforced in that action by judgment in favor
of one against other judgment defendants by motion upon notice to
all parties to the action.
(3) If there is a judgment for the injury or wrongful death
against the tortfeasor seeking contribution, any separate action
by the tortfeasor to enforce contribution must be commenced
within two years after the judgment has become final by lapse of
time for appeal or after appellate review.
(4) If there is no judgment for the injury or wrongful death
against the tortfeasor seeking contribution, the right of
contribution of that tortfeasor is barred unless the tortfeasor
has either:
(a) Discharged by payment the common liability within the
statute of limitations period applicable to claimant's right of
action against the tortfeasor and has commenced action for
contribution within two years after payment; or
(b) Agreed while action is pending against the tortfeasor to
discharge the common liability and has within two years after the
agreement paid the liability and commenced action for
contribution.
(5) The running of the statute of limitations applicable to a
claimant's right of recovery against a tortfeasor shall not
operate to bar recovery of contribution against the
tortfeasor { + or the claimant's right of recovery against a
tortfeasor specified in ORS 18.470 (2) who has been made a party
by another tortfeasor + }.
(6) The recovery of a judgment for an injury or wrongful death
against one tortfeasor does not of itself discharge the other
tortfeasors from liability for the injury or wrongful death
unless the judgment is satisfied. The satisfaction of the
judgment does not impair any right of contribution.
(7) The judgment of the court in determining the liability of
the several defendants to the claimant for an injury or wrongful
death shall be binding as among such defendants in determining
their right to contribution.
**************************** SECTION 2. ORS 18.455 is amended
to read:
18.455. (1) When a covenant not to sue or not to enforce
judgment is given in good faith to one of two or more persons
liable in tort for the same injury { + to person or property + }
or the same wrongful death or claimed to be liable in tort for
the same injury or the same wrongful death:
(a) It does not discharge any of the other tortfeasors from
liability for the injury or wrongful death unless its terms so
provide; but { - it reduces the claim against the others to the
extent of any amount stipulated by the covenant, or in the amount
of the consideration paid for it, whichever is the greater - }
{ + the claimant's claim against all other persons specified in
ORS 18.470 (2) for the injury or wrongful death is reduced by the
share of the obligation of the tortfeasor who is given the
covenant, as determined under ORS 18.480 and 18.485 + }; and
(b) It discharges the tortfeasor to whom it is given from all
liability for contribution to any other tortfeasor.
(2) When a covenant described in subsection (1) of this section
is given, the claimant shall give notice of all of the terms of
the covenant to all persons against whom the claimant makes
claims.
**************************** SECTION 3. ORS 18.470 is amended
to read:
18.470. { + (1) + } Contributory negligence shall not bar
recovery in an action by any person or the legal representative
of the person to recover damages for death or injury to person or
property if the fault attributable to the { - person seeking
recovery - } { + claimant + } was not greater than the combined
fault of { - the person or persons against whom recovery is
sought - } { + all persons specified in subsection (2) of this
section + }, but any damages allowed shall be diminished in the
proportion to the percentage of fault attributable to the
{ - person recovering - } { + claimant + }. This section is
not intended to create or abolish any defense.
{ + (2) The trier of fact shall compare the fault of the
claimant with the fault of any party against whom recovery is
sought, the fault of third party defendants who are liable in
tort to the claimant, and the fault of any person with whom the
claimant has settled. The failure of a claimant to make a direct
claim against a third party defendant does not affect the
requirement that the fault of the third party defendant be
considered by the trier of fact under this subsection. Except for
persons who have settled with the claimant, there shall be no
comparison of fault with any person:
(a) Who is immune from liability to the claimant;
(b) Who is not subject to the jurisdiction of the court; or
(c) Who is not subject to action because the claim is barred by
a statute of limitation or statute of ultimate repose.
(3) A defendant who files a third party complaint against a
person alleged to be at fault in the matter, or who alleges that
a person who has settled with the claimant is at fault in the
matter, has the burden of proof in establishing:
(a) The fault of the third party defendant or the fault of the
person who settled with the claimant; and
(b) That the fault of the third party defendant or the person
who settled with the claimant was a contributing cause to the
injury or death under the law applicable in the matter.
(4) Any party to an action may seek to establish that the fault
of a person should not be considered by the trier of fact by
reason that the person does not meet the criteria established by
subsection (2) of this section for the consideration of fault by
the trier of fact.
(5) This section does not prevent a party from alleging that
the party was not at fault in the matter because the injury or
death was the sole and exclusive fault of a person who is not a
party in the matter. + }
**************************** SECTION 4. ORS 18.480 is amended
to read:
18.480. (1) When requested by any party the trier of fact shall
answer special questions indicating:
(a) The amount of damages to which a party seeking recovery
would be entitled, assuming that party not to be at
fault { + . + } { - ; - }
(b) The degree of { - each party's - } fault { + of each
person + }
{ - expressed as a percentage of the total fault attributable
to all parties represented in the action - } { + specified in
ORS 18.470 (2). The degree of each person's fault so determined
shall be expressed as a percentage of the total fault
attributable to all persons considered by the trier of fact
pursuant to ORS 18.470 + }.
(2) A jury shall be informed of the legal effect of its answer
to the questions listed in subsection (1) of this section.
{ + (3) The jury shall not be informed of any settlement made
by the claimant for damages arising out of the injury or death
that is the subject of the action.
(4) For the purposes of subsection (1) of this section, the
court may order that two or more persons be considered a single
person for the purpose of determining the degree of fault of the
persons specified in ORS 18.470 (2). + }
**************************** SECTION 5. ORS 18.485 is amended
to read:
18.485. { - (1) As used in this section, 'economic damages '
and 'noneconomic damages' have the meaning given those terms in
ORS 18.560. - }
{ - (2) - } { + (1) Except as otherwise provided in this
section, + }in any civil action arising out of bodily injury,
death or property damage, including claims for emotional injury
or distress, loss of care, comfort, companionship and society,
and loss of consortium, the liability of each defendant for
{ - noneconomic - } damages awarded to plaintiff shall be
several only and shall not be joint.
{ - (3) The liability of a defendant who is found to be less
than 15 percent at fault for the economic damages awarded the
plaintiff shall be several only. - }
{ - (4) The liability of a defendant who is found to be at
least 15 percent at fault for the economic damages awarded the
plaintiff shall be joint and several, except that a defendant
whose percentage of fault is less than that allocated to the
plaintiff is liable to the plaintiff only for that percentage of
the recoverable economic damages. - }
{ + (2) In any action described in subsection (1) of this
section, the court shall determine the award of damages to each
claimant in accordance with the percentages of fault determined
by the trier of fact under ORS 18.480 and shall enter judgment
against each party determined to be liable. The court shall enter
a judgment in favor of the plaintiff against any third party
defendant who is found to be liable in any degree, even if the
plaintiff did not make a direct claim against the third party
defendant. The several liability of each defendant and third
party defendant shall be set out separately in the judgment,
based on the percentages of fault determined by the trier of fact
under ORS 18.480. The court shall calculate and state in the
judgment a monetary amount reflecting the share of the obligation
of each person specified in ORS 18.470 (2). Each person's share
of the obligation shall be equal to the total amount of the
damages found by the trier of fact, with no reduction for amounts
paid in settlement of the claim or by way of contribution,
multiplied by the percentage of fault determined for the person
by the trier of fact under ORS 18.480.
(3) Upon motion made not later than one year after judgment has
become final by lapse of time for appeal or after appellate
review, the court shall determine whether all or part of a
party's share of the obligation determined under subsection (2)
of this section is uncollectible. If the court determines that
all or part of any party's share of the obligation is
uncollectible, the court shall reallocate any uncollectible share
among the other parties. The reallocation shall be made on the
basis of each party's respective percentage of fault determined
by the trier of fact under ORS 18.480. The claimant's share of
the reallocation shall be based on any percentage of fault
determined to be attributable to the claimant by the trier of
fact under ORS 18.480, plus any percentage of fault attributable
to a person who has settled with the claimant. Reallocation of
obligations under this subsection does not affect any right to
contribution from the party whose share of the obligation is
determined to be uncollectible. Unless the party has entered into
a covenant not to sue or not to enforce a judgment with the
claimant, reallocation under this subsection does not affect
continuing liability on the judgment to the claimant by the party
whose share of the obligation is determined to be uncollectible.
(4) Notwithstanding subsection (3) of this section, a party's
share of the obligation to a claimant may not be increased by
reason of reallocation under subsection (3) of this section if:
(a) The percentage of fault of the claimant is equal to or
greater than the percentage of fault of the party as determined
by the trier of fact under ORS 18.480; or
(b) The percentage of fault of the party is 30 percent or less
as determined by the trier of fact under ORS 18.480.
(5) If any party's share of the obligation to a claimant is not
increased by reason of the application of subsection (4) of this
section, the amount of that party's share of the reallocation
shall be considered uncollectible and shall be reallocated among
all other parties who are not subject to subsection (4) of this
section, including the claimant, in the same manner as otherwise
provided for reallocation under subsection (3) of this
section. + }
{ - (5) - } { + (6) + } { - Subsections (1) to (4) of - }
This section { - do - } { + does + } not apply to:
(a) A civil action resulting from the violation of a standard
established by Oregon or federal statute, rule or regulation for
the spill, release or disposal of any hazardous waste, as defined
in ORS 466.005, hazardous substance, as defined in ORS 453.005 or
radioactive waste, as defined in ORS 469.300.
(b) A civil action resulting from the violation of Oregon or
federal standards for air pollution, as defined in ORS 468A.005
or water pollution, as defined in ORS 468B.005.
{ + (7) Notwithstanding any other provision of this section,
in any civil action for injury or death arising out of the
operation of a motor vehicle in which it is claimed that a
defendant was intoxicated while operating the motor vehicle, the
liability of the following defendants shall be joint and several
if the trier of fact determines under ORS 18.480 that the
percentage of fault attributable to the defendant is 15 percent
or more:
(a) The defendant who is claimed to have been intoxicated while
operating the motor vehicle.
(b) Any defendant found to be liable under the provisions of
ORS 30.950 for having served or provided alcoholic beverages to
the defendant who was operating the motor vehicle while
intoxicated. + }
**************************** SECTION 6. ORS 18.570 is amended
to read:
18.570. A verdict shall set forth separately economic damages
and noneconomic damages, if any, as defined in ORS 18.560.
{ - Whenever a judgment includes both economic and noneconomic
damages, payment by or on behalf of any defendant shall be
applied first to noneconomic damages and then to economic
damages. - }
**************************** SECTION 7. { + The amendments to
ORS 18.450, 18.455, 18.470, 18.480, 18.485 and 18.570 by sections
1 to 6 of this Act apply only to causes of action arising on or
after the effective date of this Act. + }
**************************** SECTION 8. { + Sections 32
(amending ORS 59.115), 33 (amending ORS 59.127), 34 (amending ORS
59.255), 36 (amending ORS 59.890), 37 (amending ORS 59.925), 40
(amending ORS 65.207), 50 (amending ORS 86.720), 57 (amending ORS
133.739), 58 (amending ORS 166.725), 59 (amending ORS 192.590),
60 (amending ORS 223.615), 61 (amending ORS 279.365), 63
(amending ORS 311.673), 72 (amending ORS 460.165), 74 (amending
ORS 469.421), 75 (amending ORS 474.085), 76 (amending ORS
478.965), 78 (amending ORS 480.600), 80 (amending ORS 540.120),
82 (amending ORS 545.104), 84 (amending ORS 548.620), 85
(amending ORS 548.660), 86 (amending ORS 553.560), 90 (amending
ORS 585.150), 93 (amending ORS 645.225), 94 (amending ORS
646.140), 95 (amending ORS 646.240), 98 (amending ORS 646.638),
101 (amending ORS 646.760), 102 (amending ORS 646.770), 103
(amending ORS 646.775), 104 (amending ORS 646.780), 107 (amending
ORS 650.020), 108 (amending ORS 650.065), 109 (amending ORS
650.250), 113 (amending ORS 656.052), 114 (amending ORS 658.220),
121 (amending ORS 692.180), 122 (amending ORS 697.762), 123
(amending ORS 697.792), 132 (amending ORS 756.185), 133 (amending
ORS 759.720) and 134 (amending ORS 759.900), chapter ___ , Oregon
Laws 1995 (Enrolled Senate Bill 385) are repealed. + }
**************************** SECTION 9. If Senate Bill 385
becomes law, ORS 59.115 is amended to read:
59.115. (1) A person who sells a security is liable as provided
in subsection (2) of this section to a purchaser of the security
if the person:
(a) Sells a security in violation of the Oregon Securities Law
or of any condition, limitation or restriction imposed upon a
registration or license under the Oregon Securities Law; or
(b) Sells a security by means of an untrue statement of a
material fact or an omission to state a material fact necessary
in order to make the statements made, in light of the
circumstances under which they are made, not misleading (the
buyer not knowing of the untruth or omission), and who does not
sustain the burden of proof that the person did not know, and in
the exercise of reasonable care could not have known, of the
untruth or omission.
(2) The purchaser may recover { - , in addition to costs and
reasonable attorney fees at trial and on appeal - } :
(a) Upon tender of the security, the consideration paid for the
security, and interest from the date of payment equal to the
greater of the rate of interest specified in ORS 82.010 for
judgments and decrees for the payment of money or the rate
provided in the security if the security is an interest-bearing
obligation, less any amount received on the security; or
(b) If the purchaser no longer owns the security, damages in
the amount that would be recoverable upon a tender, less the
value of the security when the purchaser disposed of it and less
interest on such value at the rate of interest specified in ORS
82.010 for judgments and decrees for the payment of money from
the date of disposition.
(3) Every person who directly or indirectly controls a seller
liable under subsection (1) of this section, every partner,
officer, or director of such seller, every person occupying a
similar status or performing similar functions, and every person
who participates or materially aids in the sale is also liable
jointly and severally with and to the same extent as the seller,
unless the nonseller sustains the burden of proof that the
nonseller did not know, and, in the exercise of reasonable care,
could not have known, of the existence of the facts on which the
liability is based. Any person held liable under this section
shall be entitled to contribution from those jointly and
severally liable with that person.
(4) Notwithstanding the provisions of subsection (3) of this
section, a person whose sole function in connection with the sale
of a security is to provide ministerial functions of escrow,
custody or deposit services in accordance with applicable law is
liable only if the person participates or materially aids in the
sale and the purchaser sustains the burden of proof that the
person knew of the existence of the facts on which liability is
based or that the person's failure to know of the existence of
such facts was the result of the person's recklessness or gross
negligence.
(5) Any tender specified in this section may be made at any
time before entry of judgment.
(6) Except as otherwise provided in this subsection, no action
or suit may be commenced under this section more than three years
after the sale. An action under this section for a violation of
subsection (1)(b) of this section or ORS 59.135 may be commenced
within three years after the sale or two years after the person
bringing the action discovered or should have discovered the
facts on which the action is based, whichever is later. Failure
to commence an action on a timely basis is an affirmative
defense.
(7) No action may be commenced under this section solely
because an offer was made prior to registration of the
securities.
(8) Any person having a right of action against a
broker-dealer, investment adviser or against a salesperson acting
within the course and scope or apparent course and scope of
authority of the salesperson, under this section shall have a
right of action under the bond or irrevocable letter of credit
provided in ORS 59.175.
(9) Subsection (4) of this section shall not limit the
liability of any person:
(a) For conduct other than in the circumstances described in
subsection (4) of this section; or
(b) Under any other law, including any other provisions of the
Oregon Securities Law.
{ + (10) Except as provided in subsection (11) of this
section, the court may award reasonable attorney fees to the
prevailing party in an action under this section.
(11) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (10) of this section
if the action under this section is maintained as a class action
pursuant to ORCP 32. + }
**************************** SECTION 10. If Senate Bill 385
becomes law, ORS 59.127 is amended to read:
59.127. (1) A person who purchases a security is liable as
provided in subsection (2) of this section to the person selling
the security, if the person:
(a) Purchases a security in violation of any condition,
limitation or restriction imposed upon a registration under the
Oregon Securities Law; or
(b) Purchases a security by means of an untrue statement of a
material fact or an omission to state a material fact necessary
in order to make the statements made, in light of the
circumstances under which they were made, not misleading (the
seller not knowing of the untruth or omission), and if the person
does not sustain the burden of proof that the person did not
know, and in the exercise of reasonable care could not have
known, of the untruth or omission.
(2) The seller may recover { - , in addition to costs and
reasonable attorney fees at trial and on appeal - } :
(a) Upon a tender of the consideration paid for the security,
the security plus interest from the date of purchase equal to the
greater of the rate of interest specified in ORS 82.010 for
judgments and decrees for the payment of money, or the rate
provided in the security if the security is an interest-bearing
obligation;
(b) Damages in the amount that would be recoverable upon a
tender, plus any amount received on the security, less the
consideration paid for the security; or
(c) If the purchaser no longer owns the security, damages equal
to the value of the security when the purchaser disposed of it
plus interest on such value at the rate of interest specified in
ORS 82.010 for judgments and decrees for the payment of money
from the date of disposition, less the consideration paid for the
security.
(3) Every person who directly or indirectly controls a
purchaser liable under subsection (1) of this section, every
partner, officer, or director of such purchaser, every person
occupying a similar status or performing similar functions, and
every person who participates or materially aids in the purchase
is also liable jointly and severally with and to the same extent
as the purchaser, unless the nonpurchaser sustains the burden of
proof that the nonpurchaser did not know, and, in the exercise of
reasonable care, could not have known, of the existence of the
facts on which the liability is based. Any person held liable
under this section shall be entitled to contribution from those
jointly and severally liable with the person.
(4) Notwithstanding the provisions of subsection (3) of this
section, a person whose sole function in connection with the
purchase of a security is to provide ministerial functions of
escrow, custody or deposit services in accordance with applicable
law is liable only if the person participates or materially aids
in the purchase and the seller sustains the burden of proof that
the person knew of the existence of the facts on which liability
is based or that the person's failure to know of the existence of
such facts was the result of the person's recklessness or gross
negligence.
(5) Any tender specified in this section may be made at any
time before entry of judgment.
(6) Except as otherwise provided in this subsection, no action
or suit may be commenced under this section more than three years
after the purchase. An action under this section for a violation
of subsection (1)(b) of this section or ORS 59.135 may be
commenced within three years after the purchase or two years
after the person bringing the action discovered or should have
discovered the facts on which the action is based, whichever is
later. Failure to commence an action on a timely basis is an
affirmative defense.
(7) Any person having a right of action against a
broker-dealer, investment adviser or against a salesperson acting
within the course and scope or apparent course and scope of the
authority of the salesperson, under this section shall have a
right of action under the bond or irrevocable letter of credit
provided in ORS 59.175.
(8) Subsection (4) of this section shall not limit the
liability of any persons:
(a) For conduct other than in the circumstances described in
subsection (4) of this section; or
(b) Under any other law, including any other provisions of the
Oregon Securities Law.
{ + (9) Except as provided in subsection (10) of this
section, the court may award reasonable attorney fees to the
prevailing party in an action under this section.
(10) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (9) of this section
if the action under this section is maintained as a class action
pursuant to ORCP 32. + }
**************************** SECTION 11. If Senate Bill 385
becomes law, ORS 59.255 is amended to read:
59.255. (1) Whenever it appears to the Director of the
Department of Consumer and Business Services that a person has
engaged or is about to engage in an act or practice constituting
a violation of any provision of the Oregon Securities Law or any
rule or order of the director, the director may bring suit in the
name and on behalf of the State of Oregon in the circuit court of
any county of this state to enjoin the acts or practices and to
enforce compliance with the Oregon Securities Law or such rule or
order. Upon a proper showing, a permanent or temporary
injunction, restraining order or writ of mandamus shall be
granted. The court may fine the person against whom the order is
entered not more than $5,000 for each violation, which shall be
entered as a judgment and paid to the General Fund of the State
Treasury. Each violation is a separate offense. In the case of a
continuing violation, each day's continuance is a separate
violation, but the maximum penalty for any continuing violation
shall not exceed $20,000. If the court finds that the defendant
has violated any provision of the Oregon Securities Law or any
such rule or order, the court may appoint a receiver, who may be
the director, for the defendant or the defendant's assets.
{ - The court may not require the director to post a bond. If
the director prevails, the director shall be entitled to costs,
and reasonable attorney fees at trial and on appeal to be fixed
by the court. - } { + The court may award reasonable attorney
fees to the director if the director prevails in an action under
this section. The court may award reasonable attorney fees to a
defendant who prevails in an action under this section if the
court determines that the director had no objectively reasonable
basis for asserting the claim or no reasonable basis for
appealing an adverse decision of the trial court. + }
(2) The director may include in any action authorized by
subsection (1) of this section:
(a) A claim for restitution or damages under ORS 59.115 or
59.127, on behalf of the persons injured by the act or practice
constituting the subject matter of the action. The court shall
have jurisdiction to award appropriate relief to such persons, if
the court finds that enforcement of the rights of such persons by
private civil action, whether by class action or otherwise, would
be so burdensome or expensive as to be impractical; or
(b) A claim for disgorgement of illegal gains or profits
derived. Any recovery under this paragraph shall be turned over
to the General Fund of the State Treasury unless the court
requires other disposition.
**************************** SECTION 12. If Senate Bill 385
becomes law, ORS 59.890 is amended to read:
59.890. (1) Whenever the Director of the Department of Consumer
and Business Services has reasonable cause to believe that a
person has been engaged or is engaging in any violation of any
provision of ORS 59.840 to 59.960 or any rule or order of the
director, the director may bring suit in the name and on behalf
of the State of Oregon in the circuit court of any county of this
state to enjoin the violation and to enforce compliance with any
provision of ORS 59.840 to 59.960 or such rule or order. Upon a
proper showing, a permanent or temporary injunction, restraining
order or writ of mandamus shall be granted. The court may fine
the person against whom the order is entered not more than $5,000
for each violation, which shall be entered as a judgment and paid
to the General Fund of the State Treasury. Each violation is a
separate offense. In the case of a continuing violation, each
day's continuance is a separate violation, but the maximum
penalty for any continuing violation shall not exceed $20,000 for
each offense. If the court finds that the defendant has violated
any provision of ORS 59.840 to 59.960 or any such rule or order,
the court may appoint a receiver, who may be the director, for
the defendant or the defendant's assets. The court may not
require the director to post a bond. { - If the director
prevails, the director shall be entitled to costs and reasonable
attorney fees at trial and on appeal to be fixed by the
court. - } { + The court may award reasonable attorney fees to
the director if the director prevails in an action under this
section. The court may award reasonable attorney fees to a
defendant who prevails in an action under this section if the
court determines that the director had no objectively reasonable
basis for asserting the claim or no reasonable basis for
appealing an adverse decision of the trial court. + }
(2) The director may include in any action authorized by
subsection (1) of this section:
(a) A claim for restitution or damages under ORS 59.925 on
behalf of the persons injured by the act or practice constituting
the subject matter of the action. The court shall have
jurisdiction to award appropriate relief to such persons, if the
court finds that enforcement of the rights of such persons by
private civil action, whether by class action or otherwise, would
be so burdensome or expensive as to be impractical; or
(b) A claim for disgorgement of illegal gains or profits
derived. Any recovery under this paragraph shall be turned over
to the General Fund of the State Treasury unless the court
requires other disposition.
**************************** SECTION 13. If Senate Bill 385
becomes law, ORS 59.925 is amended to read:
59.925. (1) A mortgage banker or mortgage broker is liable as
provided in subsection (2) of this section to any person who
suffers any ascertainable loss of money or property, real or
personal, if the mortgage banker or mortgage broker:
(a) Transacts business as a mortgage banker or mortgage broker
in violation of any provision of ORS 59.840 to 59.960; or
(b) Transacts business as a mortgage banker or mortgage broker
by means of an untrue statement of a material fact or an omission
to state a material fact necessary in order to make the
statements made, in light of the circumstances under which they
are made, not misleading, and who does not sustain the burden of
proof that the person did not know, and in the exercise of
reasonable care could not have known, of the untruth or omission.
(2) The person suffering ascertainable loss may recover all
damages, including direct, indirect or consequential damages
{ - , in addition to costs and reasonable attorney fees at trial
and on appeal - } .
(3) A person whose sole function in connection with a
transaction is to provide ministerial functions of escrow,
custody or deposit services in accordance with applicable law is
liable only if the person participates or materially aids in the
transaction and the plaintiff sustains the burden of proof that
the person knew of the existence of the facts on which liability
is based or that the person's failure to know of the existence of
such facts was the result of the person's recklessness or gross
negligence.
(4) Except as otherwise provided in this subsection, no action
or suit may be commenced under this section more than three years
after the transaction. An action under this section for a
violation under subsection (1)(b) of this section or ORS 59.930
may be commenced within three years after the transaction or two
years after the person bringing the action discovered or should
have discovered the facts on which the action is based, whichever
is later, but in no event more than five years after the date of
the transaction. Failure to commence an action on a timely basis
is an affirmative defense.
(5) Any person having a right of action against a mortgage
banker or mortgage broker shall under this section have a right
of action under the bond or irrevocable letter of credit provided
in ORS 59.850.
(6) Subsection (3) of this section shall not limit the
liability of any person:
(a) For conduct other than in the circumstances described in
subsection (3) of this section; or
(b) Under any other law.
{ + (7) Except as provided in subsection (8) of this section,
the court may award reasonable attorney fees to the prevailing
party in an action under this section.
(8) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (7) of this section
if the action under this section is maintained as a class action
pursuant to ORCP 32. + }
**************************** SECTION 14. If Senate Bill 385
becomes law, ORS 65.207 is amended to read:
65.207. (1) The circuit court of the county where a
corporation's principal office is located, or, if the principal
office is not in this state, where the registered office of the
corporation is or was last located, may summarily order a meeting
to be held:
(a) On application of any member or other person entitled to
participate in an annual or regular meeting or, in the case of a
public benefit corporation, the Attorney General, if an annual
meeting was not held within the earlier of six months after the
end of the corporation's fiscal year or 15 months after its last
annual meeting;
(b) On application of any member or other person entitled to
participate in a regular meeting or, in the case of a public
benefit corporation, the Attorney General, if a regular meeting
is not held within 40 days after the date it was required to be
held; or
(c) On application of a member who signed a demand for a
special meeting valid under ORS 65.204, a person or persons
entitled to call a special meeting or, in the case of a public
benefit corporation, the Attorney General, if notice of the
special meeting was not given within 30 days after the date the
demand was delivered to the corporation's secretary or the
special meeting was not held in accordance with the notice.
(2) The court may fix the time and place of the meeting,
determine the members entitled to participate in the meeting,
specify a record date for determining members entitled to notice
of and to vote at the meeting, prescribe the form and content of
the meeting notice, fix the quorum required for specific matters
to be considered at the meeting or direct that the votes
represented at the meeting constitute a quorum for action on
those matters, and enter other orders necessary to accomplish the
purpose or purposes of the meeting.
(3) { + (a) + } { - If the court orders a meeting, it may
also order the corporation to pay the member's costs, including
reasonable attorney fees, incurred to obtain the order. - }
{ + Except as provided in paragraph (b) of this subsection, the
court may award reasonable attorney fees to the prevailing party
in an action under this section.
(b) The court may not award attorney fees to the state or a
political subdivision of the state if the state or political
subdivision prevails in an action under this section. + }
(4) The request shall be set for hearing at the earliest
possible time and shall take precedence over all matters, except
matters of the same character and hearings on preliminary
injunctions under ORCP 79 B(3). No order shall be issued by the
court under this section without notice to the corporation at
least five days in advance of the time specified for the hearing
unless a different period is fixed by order of the court.
**************************** SECTION 15. If Senate Bill 385
becomes law, ORS 86.720 is amended to read:
86.720. (1) Within 30 days after performance of the obligation
secured by the trust deed, the beneficiary shall deliver a
written request to the trustee to reconvey the estate of real
property described in the trust deed to the grantor. Within 30
days after the beneficiary delivers the written request to
reconvey to the trustee, the trustee shall reconvey the estate of
real property described in the trust deed to the grantor. In the
event the obligation is performed and the beneficiary refuses to
request reconveyance or the trustee refuses to reconvey the
property, the beneficiary or trustee so refusing shall be liable
as provided by ORS 86.140 in the case of refusal to execute a
discharge or satisfaction of a mortgage on real property. The
trustee may charge a reasonable fee for all services involved in
the preparation, execution and recordation of any reconveyance
executed pursuant to this section.
(2) If a full reconveyance of a trust deed has not been
executed and recorded pursuant to the provisions of subsection
(1) of this section within 60 calendar days of the date the
obligation was fully satisfied, then:
(a) If the obligation was satisfied by a title insurance
company or agent or by payment through an escrow transacted by
the title insurance company or agent, upon the written request of
the grantor or the grantor's successor in interest, the tender of
reasonable charges and the compliance with the notice
requirements of subsection (3) of this section, the title
insurance company or agent shall prepare, execute and record a
release of trust deed.
(b) In all cases not described in paragraph (a) of this
subsection, upon the written request of the grantor or the
grantor's successor in interest, the tender of reasonable charges
and the compliance with the notice requirements of subsection (3)
of this section, the title insurance company or agent may
prepare, execute and record a release of trust deed.
(3) Prior to the issuance and recording of a release pursuant
to this section, the title insurance company or agent shall give
notice of the intention to record a release of trust deed to the
trustee (except when the title company or agent is the trustee),
grantor and beneficiary of record, or their successors in
interest of record. Notice shall be effective upon receipt. Such
notice shall:
(a) Provide that the parties to whom such notice is sent shall
have a period of 30 days to send to the title company or agent
their written objections to the execution and recording of the
release of trust deed; and
(b) Be delivered by certified mail with return receipt and
postage prepaid, addressed to the named interested parties at
their last-known addresses.
(4) The release of trust deed shall recite on the first page
that it has been executed and recorded pursuant to the provisions
of this section. The release shall be properly acknowledged and
shall set forth:
(a) The name of the beneficiary to whom the payment was made;
(b) The name of the original grantor of the trust deed and any
successor in interest on whose behalf payment was made;
(c) The recording reference to the trust deed that is to be
released;
(d) A recital that the obligation secured by the trust deed has
been paid in full;
(e) The date and amount of payment;
(f) The date of receipt of notice required by this section; and
(g) A recital that no written objections were received by the
title insurance company or agent.
(5) The release of trust deed executed pursuant to this section
shall be entitled to recordation and, when recorded, shall be
deemed to be the equivalent of a reconveyance of a trust deed.
(6) The title insurance company or agent shall not record or
cause to be recorded a release of trust deed when any of the
following circumstances exist:
(a) The 30-day period following notice given under this section
has not expired; or
(b) Written objection to such recordation has been received by
the title insurance company or agent from any of the parties to
whom notice was sent.
(7) The trustee, title insurance company or agent may charge a
reasonable fee for all services involved in the preparation,
execution, recordation and compliance with this section, to
effect the release of trust deed.
(8) Subsection (2) of this section does not excuse the
beneficiary or trustee from compliance with subsection (1) of
this section.
(9) In addition to any other remedy provided by law, a title
insurance company or agent preparing, executing or recording a
release of trust deed shall be liable to any party for damages
{ - , including attorney fees, - } that any person may sustain
by reason of the negligence or willful misconduct of the title
insurance company or agent in connection with the issuance,
execution or recording of the release pursuant to this section.
{ + Except as provided in subsection (10) of this section, the
court may award reasonable attorney fees to the prevailing party
in an action under this section.
(10) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (9) of this section
if the action under this section is maintained as a class action
pursuant to ORCP 32. + }
{ - (10) - } { + (11) + } As used in this section, 'agent'
means an authorized issuer of title insurance policies of a title
insurance company who is licensed as an agent for that purpose
pursuant to ORS chapter 744.
{ - (11) - } { + (12) + } Subsections (2) to { - (10) - }
{ + (11) + } of this section shall be applicable only to full
reconveyances of the property described in the trust deed and not
to reconveyances of parts or portions of the property.
{ - (12) - } { + (13) + } Subsections (1) to { - (11) - }
{ + (12) + } of this section are applicable to all trust deeds,
whether executed before, on or after November 4, 1993.
{ - (13) - } { + (14) + } A title insurance company or
agent is not required to prepare, execute and record a release of
trust deed under subsections (2) to { - (11) - } { + (12) + }
of this section if the obligation secured by the trust deed was
satisfied prior to November 4, 1993.
**************************** SECTION 16. If Senate Bill 385
becomes law, ORS 133.739 is amended to read:
133.739. (1) Any person whose wire, electronic or oral
communication was intercepted, disclosed or used in violation of
ORS 133.724 or 133.737 shall have a civil cause of action against
any person who willfully intercepts, discloses or uses, or
procures any other person to intercept, disclose or use such
communication and shall be entitled to recover from any such
person:
(a) Actual damages but not less than damages computed at the
rate of $100 a day for each day of violation or $1,000, whichever
is greater; { + and + }
(b) Punitive damages { + . + } { - ; and - }
{ - (c) Reasonable attorney fees at trial and on appeal. - }
(2) A good faith reliance on a court order or legislative
authorization shall constitute a complete defense to any civil
action brought under this section.
(3) Nothing in ORS 41.910, 133.721 to 133.739 and 133.992 is
intended to abrogate any other private civil remedy for invasion
of privacy.
{ + (4) Except as provided in subsection (5) of this section,
the court may award reasonable attorney fees to the prevailing
party in an action under this section.
(5) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (4) of this section
if the action under this section is maintained as a class action
pursuant to ORCP 32. + }
**************************** SECTION 17. If Senate Bill 385
becomes law, ORS 166.725 is amended to read:
166.725. (1) Any circuit court may, after making due provision
for the rights of innocent persons, enjoin violations of the
provisions of ORS 166.720 (1) to (4) by issuing appropriate
orders and judgments, including, but not limited to:
(a) Ordering a divestiture by the defendant of any interest in
any enterprise, including real property.
(b) Imposing reasonable restrictions upon the future activities
or investments of any defendant, including, but not limited to,
prohibiting any defendant from engaging in the same type of
endeavor as the enterprise in which the defendant was engaged in
violation of the provisions of ORS 166.720 (1) to (4).
(c) Ordering the dissolution or reorganization of any
enterprise.
(d) Ordering the suspension or revocation of a license, permit
or prior approval granted to any enterprise by any agency of the
state.
(e) Ordering the forfeiture of the charter of a corporation
organized under the laws of this state, or the revocation of a
certificate of authority authorizing a foreign corporation to
conduct business within this state, upon finding that the board
of directors or a managerial agent acting on behalf of the
corporation, in conducting the affairs of the corporation, has
authorized or engaged in conduct in violation of ORS 166.720 (1)
to (4) and that, for the prevention of future criminal activity,
the public interest requires the charter of the corporation
forfeited and the corporation dissolved or the certificate of
authority revoked.
(2) All property, real or personal, including money, used in
the course of, derived from or realized through conduct in
violation of a provision of ORS 166.715 to 166.735 is subject to
civil forfeiture to the state. The state shall dispose of all
forfeited property as soon as commercially feasible. If property
is not exercisable or transferable for value by the state, it
shall expire. All forfeitures or dispositions under this section
shall be made with due provision for the rights of innocent
persons. Forfeited property shall be distributed as follows:
(a)(A) All moneys and the clear proceeds of all other property
forfeited shall be deposited with the State Treasurer to the
credit of the Common School Fund.
(B) For purposes of subparagraph (A) of this paragraph, ' clear
proceeds' means proceeds of forfeited property less costs of
maintaining and preserving property pending its sale or other
disposition, less costs of sale or disposition and, if the
Department of Justice has not otherwise recovered its costs and
expenses of the investigation and prosecution leading to the
forfeiture, less 30 percent of the remaining proceeds of the
property which is awarded to the department as reasonable
reimbursement for costs of such investigation and prosecution.
(b) Any amounts awarded to the Department of Justice pursuant
to paragraph (a) of this subsection shall be deposited in the
Criminal Justice Revolving Account in the State Treasury.
(3) Property subject to forfeiture under this section may be
seized by a police officer, as defined in ORS 133.525 (2), upon
court process. Seizure without process may be made if:
(a) The seizure is incident to a lawful arrest or search or an
inspection under an administrative inspection warrant; or
(b) The property subject to seizure has been the subject of a
prior judgment in favor of the state in a forfeiture proceeding
based upon this section.
(4) In the event of a seizure under subsection (3) of this
section, a forfeiture proceeding shall be instituted promptly.
Property taken or detained under this section shall not be
subject to replevin, but is deemed to be in the custody of the
police officer making the seizure, subject only to the order of
the court. When property is seized under this section, pending
forfeiture and final disposition, the police officer may:
(a) Place the property under seal;
(b) Remove the property to a place designated by the court; or
(c) Require another agency authorized by law to take custody of
the property and remove it to an appropriate location.
(5) The Attorney General, any district attorney or any state
agency having jurisdiction over conduct in violation of a
provision of ORS 166.715 to 166.735 may institute civil
proceedings under this section. In any action brought under this
section, the circuit court shall give priority to the hearing and
determination. Pending final determination, the circuit court may
at any time enter such injunctions, prohibitions or restraining
orders, or take such actions, including the acceptance of
satisfactory performance bonds, as the court may deem proper. The
Attorney General, district attorney or state agency bringing an
action under this section { - shall be entitled to recover - }
{ + may be awarded + }, upon entry of a final judgment or
decree in favor of the state, { - attorney fees and - } costs
of investigation and litigation, reasonably incurred. Amounts
recovered may include costs and expenses of state and local
governmental departments and agencies incurred in connection with
the investigation or litigation.
(6) Any aggrieved person may institute a proceeding under
subsection (1) of this section. In such proceeding, relief shall
be granted in conformity with the principles that govern the
granting of injunctive relief from threatened loss or damage in
other civil cases, except that no showing of special or
irreparable damage to the person shall have to be made. Upon the
execution of proper bond against damages for an injunction
improvidently granted and a showing of immediate danger of
significant loss or damage, a temporary restraining order and a
preliminary injunction may be issued in any such action before a
final determination on the merits.
(7)(a) Any person who is injured by reason of any violation of
the provisions of ORS 166.720 (1) to (4) shall have a cause of
action for three-fold the actual damages sustained and, when
appropriate, punitive damages. { - Such person shall also
recover attorney fees in the trial and appellate courts and costs
of investigation and litigation, reasonably incurred. - }
(b) The defendant or any injured person may demand a trial by
jury in any civil action brought pursuant to this section.
(c) Any injured person shall have a right or claim to forfeited
property or to the proceeds derived therefrom superior to any
right or claim the state has in the same property or proceeds.
(8) An investigative agency may bring an action for civil
penalties for any violation of ORS 166.720 (1) to (4). Upon proof
of any such violation, the court shall impose a civil penalty of
not more than $250,000.
(9) A final judgment or decree rendered in favor of the state
in any criminal proceeding under ORS 166.715 to 166.735 shall
estop the defendant in any subsequent civil action or proceeding
brought by the state or any other person as to all matters as to
which such judgment or decree would be an estoppel as between the
state and the defendant.
(10) The Attorney General may, upon timely application,
intervene in any civil action or proceeding brought under
subsection (6) or subsection (7) of this section if the Attorney
General certifies that, in the opinion of the Attorney General,
the action or proceeding is of general public importance. In such
action or proceeding, the state shall be entitled to the same
relief as if the Attorney General instituted the action or
proceeding.
(11) Notwithstanding any other provision of law, a criminal or
civil action or proceeding under ORS 166.715 to 166.735 may be
commenced at any time within five years after the conduct in
violation of a provision of ORS 166.715 to 166.735 terminates or
the cause of action accrues. If a criminal prosecution or civil
action or other proceeding is brought, or intervened in, to
punish, prevent or restrain any violation of the provisions of
ORS 166.715 to 166.735, the running of the period of limitations
prescribed by this section with respect to any cause of action
arising under subsection (6) or subsection (7) of this section
which is based in whole or in part upon any matter complained of
in any such prosecution, action or proceeding shall be suspended
during the pendency of such prosecution, action or proceeding and
for two years following its termination.
(12) The application of one civil remedy under any provision of
ORS 166.715 to 166.735 shall not preclude the application of any
other remedy, civil or criminal, under ORS 166.715 to 166.735 or
any other provision of law. Civil remedies under ORS 166.715 to
166.735 are supplemental and not mutually exclusive.
{ + (13) In an action brought under the provisions of this
section by a person other than the Attorney General, a district
attorney or a state agency, the court may award reasonable
attorney fees to the prevailing party. In a civil action brought
under the provisions of this section by the Attorney General, a
district attorney or a state agency:
(a) The court may award reasonable attorney fees to the
Attorney General, district attorney or state agency if the
Attorney General, district attorney or state agency prevails in
the action; and
(b) The court may award reasonable attorney fees to a defendant
who prevails in an action under this section if the court
determines that the Attorney General, district attorney or state
agency had no objectively reasonable basis for asserting the
claim or no reasonable basis for appealing an adverse decision of
the trial court. + }
**************************** SECTION 18. If Senate Bill 385
becomes law, ORS 192.590 is amended to read:
192.590. (1) Any customer who suffers any ascertainable loss as
a result of a willful violation of ORS 192.550 to 192.595 by any
person, may bring an individual action in an appropriate court to
recover actual damages or $1,000, whichever is greater.
(2) Any customer who suffers any ascertainable loss as a result
of a negligent violation of ORS 192.550 to 192.595 by any person,
may bring an individual action in an appropriate court to recover
actual damages.
(3) { + (a) + } { - In any successful action to enforce civil
liability for violation of the provisions of ORS 192.550 to
192.595, the customer may recover the cost of the action,
together with reasonable attorney fees at trial and on appeal as
determined by the court. - } { + Except as provided in
paragraph (b) of this subsection, the court may award reasonable
attorney fees to the prevailing party in an action under this
section.
(b) The court may not award attorney fees to the state or a
political subdivision of the state if the state or political
subdivision prevails in an action under this section. + }
(4) An action to enforce any provision of ORS 192.550 to
192.595 must be commenced within two years after the date on
which the violation occurred.
(5) Evidence obtained in violation of ORS 192.550 to 192.595 is
inadmissible in any proceeding.
**************************** SECTION 19. If Senate Bill 385
becomes law, ORS 223.615 is amended to read:
223.615. { - In any suit authorized by ORS 223.610, if a
decree of foreclosure is entered, the governmental unit is
entitled to recover, as part of the moneys to be made on the sale
on execution of the property involved, such sum as the court may
deem reasonable as attorney fees at trial and on appeal. The sum
so allowed shall be a lien upon the property. - } { + In any
action authorized by ORS 223.610, the court may award reasonable
attorney fees to the government unit bringing the action if the
government unit prevails in the action. The court may award
reasonable attorney fees to a defendant who prevails in the
action if the court determines that the government unit had no
objectively reasonable basis for asserting the claim or no
reasonable basis for appealing an adverse decision of the trial
court. + }
**************************** SECTION 20. If Senate Bill 385
becomes law, ORS 311.673 is amended to read:
311.673. (1) The department shall have a lien against the
tax-deferred property for the payment of the deferred taxes plus
interest thereon and any fees paid to the county clerk by the
department in connection with the recording, release or
satisfaction of the lien. The liens for deferred taxes shall
attach to the property on July 1 of the year in which the taxes
were assessed. The deferred property tax liens shall have the
same priority as other real property tax liens except that the
lien of mortgages or trust deeds which are recorded prior in time
to the attachment of the lien for deferred taxes shall be prior
to the liens for deferred taxes.
(2) The lien may be foreclosed by the department as if it were
a purchase money mortgage under ORS chapter 88. { - Reasonable
attorney fees at trial and on appeal and costs may be granted the
department in a suit for foreclosure of its lien. - } { + The
court may award reasonable attorney fees to the department if the
department prevails in a foreclosure action under this section.
The court may award reasonable attorney fees to a defendant who
prevails in a foreclosure action under this section if the court
determines that the department had no objectively reasonable
basis for asserting the claim or no reasonable basis for
appealing an adverse decision of the trial court. + }
(3) Receipts from foreclosure proceedings shall be credited in
the same manner as other repayments of deferred property taxes
under ORS 311.701.
(4) This section applies only to liens arising prior to October
3, 1989.
**************************** SECTION 21. If Senate Bill 385
becomes law, ORS 460.165 is amended to read:
460.165. Subject to ORS 460.035 (1) and 460.085 (1), the
maximum fees described in this section may be collected by the
Department of Consumer and Business Services for examining plans,
for the inspection of elevators, for issuing or renewing an
elevator contractor's license and for processing reports and
issuing the annual permit for the operation of an elevator, as
the case may be. Actual fees shall be prescribed by the
department with approval of the Oregon Department of
Administrative Services. This section applies to the following
fees:
(1) For an elevator contractor's license for each place of
business operated by the applicant, $195.
(2) With the submission of plans and other pertinent data, for
each elevator, $78.
(3) For each periodical or other inspection made by a member of
the department's staff of elevator inspectors, except as provided
in subsection (6) of this section, the following schedule of
maximum fees shall apply:
(a) Dumbwaiter, sidewalk elevator, residential elevator,
residential inclinator or subveyor, $52.
(b) Escalator, lowerator, manlift, stagelift, inclined
elevator, platform hoist or moving walk, $78.
(c) Power-driven elevator with a four floor rise or under, $78.
(d) Power-driven elevator with over a four floor rise, but
under a 10-floor rise, $98.
(e) Power-driven elevator with over 10-floor rise, but under
20-floor rise, $124.
(f) Power-driven elevator with a 20-floor rise or over, $147.
(g) A call back made on a mechanism listed in paragraphs (a) to
(f) of this subsection and made by request or in the continued
existence of a defect, $52.
(4) Special inspections of hoisting or lowering mechanisms
other than elevators or under special agreement between the
department and a person requesting a special inspection shall be
at the maximum rate of $55 per hour for travel and inspection
time.
(5) For the processing of each report of an inspection required
under the provisions of ORS 460.005 to 460.175, $20.
(6) Maximum inspection fee in the case of installation or
alteration of an elevator, if the total cost of the installation
or alteration, other than the inspection fee, is:
(a) $1,000 or under, the maximum fee is $98.
(b) Over $1,000 but under $15,000, the maximum fee is $98 plus
$13 for each $1,000 or fraction of $1,000 by which the cost
exceeds $1,000.
(c) $15,000 or over but under $50,000, the maximum fee is $280
plus $8 for each $1,000 or fraction of $1,000 by which the cost
exceeds $15,000.
(d) $50,000 or over, the maximum fee is $553 plus $3 for each
$1,000 or fraction of $1,000 by which the cost exceeds $50,000.
(7) Whenever an owner or user of any elevator equipment fails
to pay a fee required under this section within 90 days after the
date of depositing written notification in the United States
mail, postage prepaid, and addressed to the last-known address of
said owner or user, the fee shall be considered delinquent and
the fee shall be doubled unless the owner or user of the elevator
equipment establishes to the satisfaction of the department
justification for failure to pay. { - When the department
prevails in an action for the collection of a fee required by
this section, the court shall also award to the department costs
and disbursements, and reasonable attorney fees at trial and on
appeal. - } { + The court may award reasonable attorney fees to
the department if the department prevails in an action for the
collection of a fee required by this section. The court may award
reasonable attorney fees to a defendant who prevails in an action
for the collection of a fee required by this section if the court
determines that the department had no objectively reasonable
basis for asserting the claim or no reasonable basis for
appealing an adverse decision of the trial court. + }
**************************** SECTION 22. If Senate Bill 385
becomes law, ORS 469.421 is amended to read:
469.421. (1) Subject to the provisions of ORS 469.441, any
person submitting a notice of intent, a request for exemption
under ORS 469.320, a request for an expedited review under ORS
469.370, an application for a site certificate or a request to
amend a site certificate shall pay all expenses incurred by the
Energy Facility Siting Council and the Department of Energy
related to the review and decision of the council. These expenses
may include legal expenses, expenses incurred in processing and
evaluating the application, issuing a final order or site
certificate, commissioning an independent study by a contractor
or state agency under ORS 469.360, and changes to the rules of
the council that are specifically required and related to the
particular site certificate application.
(2) Every person submitting a notice of intent to file for a
site certificate, a request for exemption or a request for
expedited review shall submit the fee required under the fee
schedule established under ORS 469.441 to the department when the
notice or request is submitted to the council. To the extent
possible, the full cost of the evaluation shall be paid from the
fee paid under this subsection. However, if costs of the
evaluation exceed the fee, the person submitting the notice or
request shall pay any excess costs shown in an itemized statement
prepared by the council. In no event shall the council incur
evaluation expenses in excess of 110 percent of the fee initially
paid unless the council provides prior notification to the
applicant and a detailed projected budget the council believes
necessary to complete the project. If costs are less than the fee
paid, the excess shall be refunded to the person submitting the
notice or request.
(3) Before submitting a site certificate application, the
applicant shall request from the department an estimate of the
costs expected to be incurred in processing the application. The
department shall inform the applicant of that amount and require
the applicant to make periodic payments of such costs pursuant to
a cost reimbursement agreement. The cost reimbursement agreement
shall provide for payment of 25 percent of the estimated costs
when the applicant submits the application. If costs of the
evaluation exceed the estimate, the applicant shall pay any
excess costs shown in an itemized statement prepared by the
council. In no event shall the council incur evaluation expenses
in excess of 110 percent of the fee initially estimated unless
the council provided prior notification to the applicant and a
detailed projected budget the council believes is necessary to
complete the project. If costs are less than the fee paid, the
council shall refund the excess to the applicant.
(4) Any person who is delinquent in the payment of fees under
subsections (1) to (3) of this section shall be subject to the
provisions of subsection (11) of this section.
(5) Subject to the provisions of ORS 469.441, each holder of a
certificate shall pay an annual fee, due every July 1 following
issuance of a site certificate. For each fiscal year, upon
approval of the department's budget authorization by a regular
session of the Legislative Assembly or as revised by the
Emergency Board, the director promptly shall enter an order
establishing an annual fee based on the amount of revenues that
the director estimates is needed to fund the cost of assuring
that the facility is being operated consistently with the terms
and conditions of the site certificate and any applicable health
or safety standards. In determining this cost, the director shall
include both the actual direct cost to be incurred by the council
and the department to assure that the facility is being operated
consistently with the terms and conditions of the site
certificate and any applicable health or safety standards, and
the general costs to be incurred by the council and the
department to assure that all certificated facilities are being
operated consistently with the terms and conditions of the site
certificates and any applicable health or safety standards that
cannot be allocated to an individual, licensed facility. Not more
than 20 percent of the annual fee charged each facility shall be
for the recovery of these general costs. The fees for direct
costs shall reflect the size and complexity of the facility and
its certificate conditions.
(6) Each holder of a site certificate executed after July 1 of
any fiscal year shall pay a fee for the remaining portion of the
year. The amount of the fee shall be set at the cost of
regulating the facility during the remaining portion of the year
determined in the same manner as the annual fee.
(7) When the actual costs of regulation incurred by the council
and the department for the year, including that portion of the
general regulation costs that have been allocated to a particular
facility, are less than the annual fees for that facility, the
unexpended balance shall be refunded to the site certificate
holder. When the actual regulation costs incurred by the council
and the department for the year, including that portion of the
general regulation costs that have been allocated to a particular
facility, are projected to exceed the annual fee for that
facility, the director may issue an order revising the annual
fee.
(8) In addition to any other fees required by law, each energy
resource supplier shall pay to the department annually its share
of an assessment to fund the activities of the department,
determined by the director in the following manner:
(a) Upon approval of the department's budget authorization by a
regular session of the Legislative Assembly, the director shall
promptly enter an order establishing the amount of revenues
required to be derived from an assessment pursuant to this
subsection in order to fund the activities of the department,
including those enumerated in ORS 469.030 and others authorized
by law, for the first fiscal year of the forthcoming biennium. On
or before June 1 of each even-numbered year, the director shall
enter an order establishing the amount of revenues required to be
derived from an assessment pursuant to this subsection in order
to fund the activities of the department, including those
enumerated in ORS 469.030 and others authorized by law, for the
second fiscal year of the biennium which order shall take into
account any revisions to the department's biennial budget made by
the Emergency Board or by a special session of the Legislative
Assembly subsequent to the most recently concluded regular
session of the Legislative Assembly.
(b) Each order issued by the director pursuant to paragraph (a)
of this subsection shall allocate the aggregate assessment set
forth therein to energy resource suppliers in accordance with
paragraph (c) of this subsection.
(c) The amount assessed to an energy resource supplier shall be
based on the ratio which that supplier's annual gross operating
revenue derived within this state in the preceding calendar year
bears to the total gross operating revenue derived within this
state during that year by all energy resource suppliers. The
assessment against an energy resource supplier shall not exceed
five-tenths of one percent of the supplier's gross operating
revenue derived within this state in the preceding calendar year.
The director shall exempt from payment of an assessment any
individual energy resource supplier whose calculated share of the
annual assessment is less than $250.
(d) The director shall send each energy resource supplier
subject to assessment pursuant to this subsection a copy of each
order issued, by registered or certified mail. The amount
assessed to the energy resource supplier pursuant to the order
shall be considered to the extent otherwise permitted by law a
government-imposed cost and recoverable by the energy resource
supplier as a cost included within the price of the service or
product supplied.
(e) The amounts assessed to individual energy resource
suppliers pursuant to paragraph (c) of this subsection shall be
paid to the department as follows:
(A) Amounts assessed for the first fiscal year of a biennium
shall be paid not later than 90 days following the close of the
regular session of the Legislative Assembly; and
(B) Amounts assessed for the second fiscal year of a biennium
shall be paid not later than July 1 of each even-numbered year.
(f) An energy resource supplier shall provide the director, on
or before May 1 of each year, a verified statement showing its
gross operating revenues derived within the state for the
preceding calendar year. The statement shall be in the form
prescribed by the director and is subject to audit by the
director. The statement shall include an entry showing the total
operating revenue derived by petroleum suppliers from fuels sold
that are subject to the requirements of section 3, Article IX of
the Oregon Constitution, ORS 319.020 with reference to aircraft
fuel and motor vehicle fuel, and ORS 319.530. The director may
grant an extension of not more than 15 days for the requirements
of this subsection if:
(A) The energy supplier makes a showing of hardship caused by
the deadline;
(B) The energy supplier provides reasonable assurance that the
energy supplier can comply with the revised deadline; and
(C) The extension of time does not prevent the department from
fulfilling its statutory responsibilities.
(g) As used in this section:
(A) 'Energy resource supplier' means an electric utility,
natural gas utility or petroleum supplier supplying electricity,
natural gas or petroleum products in Oregon.
(B) 'Gross operating revenue' means gross receipts from sales
or service made or provided within this state during the regular
course of the energy supplier's business, but does not include
either revenue derived from interutility sales within the state
or revenue received by a petroleum supplier from the sale of
fuels that are subject to the requirements of section 3, Article
IX of the Oregon Constitution, ORS 319.020 or 319.530.
(C) 'Petroleum supplier' has the meaning given that term in ORS
469.020.
(h) In determining the amount of revenues which must be derived
from any class of energy resource suppliers by assessment
pursuant to this subsection, the director shall take into account
all other known or readily ascertainable sources of revenue to
the department, including, but not limited to, fees imposed under
this section and federal funds, and may take into account any
funds previously assessed pursuant to ORS 469.420 (1979
Replacement Part) or section 7, chapter 792, Oregon Laws 1981.
(i) Orders issued by the director pursuant to this section
shall be subject to judicial review under ORS 183.484. The taking
of judicial review shall not operate to stay the obligation of an
energy resource supplier to pay amounts assessed to it on or
before the statutory deadline.
(9)(a) In addition to any other fees required by law, each
operator of a nuclear fueled thermal power plant or nuclear
installation within this state shall pay to the department
annually on July 1, an assessment in an amount determined by the
director to be necessary to fund the activities of the state and
the counties associated with emergency preparedness for a nuclear
fueled thermal power plant or nuclear installation. The
assessment shall not exceed $461,250 per year. Moneys collected
as assessments under this subsection are continuously
appropriated to the department for this purpose.
(b) The department shall maintain and shall cause other state
agencies and counties to maintain time and billing records for
the expenditure of any fees collected from an operator of a
nuclear fueled thermal power plant under paragraph (a) of this
subsection.
(10) Reactors operated by a college, university or graduate
center for research purposes and electric utilities not connected
to the Northwest Power Grid are exempt from the fee requirements
of subsections (5), (8) and (9) of this section.
(11)(a) All fees assessed by the director against holders of
site certificates for facilities that have an installed capacity
of 500 megawatts or greater may be paid in several installments,
the schedule for which shall be negotiated between the director
and the site certificate holder.
(b) Energy resource suppliers or applicants or holders of a
site certificate who fail to pay a fee provided under subsections
(1) to (9) of this section or the fees required under ORS 469.360
after it is due and payable shall pay, in addition to that fee, a
penalty of two percent of the fee a month for the period that the
fee is past due. Any payment made according to the terms of a
schedule negotiated under paragraph (a) of this subsection shall
not be considered past due. The director may bring an action to
collect an unpaid fee or penalty in the name of the State of
Oregon in a court of competent jurisdiction. { - The director
shall be entitled to recover all costs and attorney fees
connected with the action. - } { + The court may award
reasonable attorney fees to the director if the director prevails
in an action under this subsection. The court may award
reasonable attorney fees to a defendant who prevails in an action
under this subsection if the court determines that the director
had no objectively reasonable basis for asserting the claim or no
reasonable basis for appealing an adverse decision of the trial
court. + }
(12) The provisions of ORS 293.445 shall not apply to any fee
or assessment paid under ORS chapter 469.
**************************** SECTION 23. If Senate Bill 385
becomes law, ORS 474.085 is amended to read:
474.085. (1) Any party to a wholesale distribution agreement
aggrieved by a violation of any provision of ORS 474.005 to
474.095 shall be entitled to:
(a) Injunctive relief enjoining the violation; and
(b) Recovery for damages caused by the violation.
(2) { - The party is entitled to reasonable attorney fees and
costs at trial and on appeal. - } { + Except as provided in
subsection (3) of this section, the court may award reasonable
attorney fees to the prevailing party in an action under this
section.
(3) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (2) of this section
if the action under this section is maintained as a class action
pursuant to ORCP 32. + }
{ - (3) - } { + (4) + } If the violation consists of a
termination, cancellation, refusal to renew or refusal to permit
a transfer of the wholesaler's business in contravention of ORS
474.005 to 474.095, damages shall include the decrease in the
value of the wholesaler's business caused by the violation,
including any decrease attributable to the loss of good will,
less any mitigation.
**************************** SECTION 24. If Senate Bill 385
becomes law, ORS 478.965 is amended to read:
478.965. (1) If the fire-fighting apparatus or personnel, or
either of a district, are required to respond and be used
actively or on a standby basis in connection with the
extinguishment or control of a fire that has been started or
allowed to spread in willful violation of ORS 478.960 (1) to (5),
the person responsible therefor shall be liable to the district
furnishing such apparatus or personnel, or both, for the actual
costs incurred by the district in controlling, extinguishing or
patrolling the fire. Such costs may be recovered in an action
prosecuted in the name of the district. { - If the district
prevails in such action, there shall be taxed and allowed to the
district, at trial and on appeal, a reasonable amount to be fixed
by the court as attorney fees for the prosecution of the
action. - } { + The court may award reasonable attorney fees to
the district if the district prevails in an action under this
section. The court may award reasonable attorney fees to a
defendant who prevails in an action under this section if the
court determines that the district had no objectively reasonable
basis for asserting the claim or no reasonable basis for
appealing an adverse decision of the trial court. + }
(2) An itemized statement of the actual costs incurred by the
district, certified under oath by the treasurer of the district,
shall be accepted as prima facie evidence of such costs in the
action authorized by this section.
**************************** SECTION 25. If Senate Bill 385
becomes law, ORS 480.600 is amended to read:
480.600. (1) The permit fee established under ORS 480.510 to
480.665, for a quantity of pressure vessels available for
inspection at the same location, shall be fixed by the board at
cost, in accordance with the time required to conduct the
inspection and the inspector's mileage to the place of
inspection. However, in no case shall the total payment be more
than the total of the individual pressure vessel fees fixed by
ORS 480.510 to 480.665.
(2) The owner or user of any vessel which is to be inspected
during the inspection period under the provisions of ORS 480.570
shall pay to the Department of Consumer and Business Services a
special permit fee of $25, except that the department may require
payment of a permit fee as provided in ORS 480.595 where it finds
the vessel to be in violation of the minimum safety standards
during the inspection period. In addition, for a quantity of
pressure vessels inspected at the same location, the board may
establish a different special permit fee which recognizes the
lower costs of handling, but in no such case shall the total
payment be more than the total of individual pressure vessel fees
fixed by ORS 480.510 to 480.665.
(3) If there is a lengthened inspection interval under ORS
480.560 (2), the permit fee interval shall be lengthened
correspondingly.
(4) Whenever an insurance company notifies its insured that it
will no longer insure a boiler or pressure vessel, or that
insurance on a boiler or pressure vessel is no longer in force,
the insurance company shall also notify the chief boiler
inspector, in a form and manner prescribed by the chief boiler
inspector, of the description and vessel registration numbers of
the boilers or pressure vessels for which insurance is canceled
or suspended or is not to be renewed.
(5) Whenever an owner or user of a boiler or pressure vessel
fails to pay any fee required by this chapter within 60 days
after the date of depositing written notification in the United
States mail, postage prepaid, and addressed to the last-known
address of the owner or user, the fee shall be considered
delinquent and the fee shall be doubled. { - If court action is
taken the department shall be awarded by the court or judge a
reasonable attorney fee at trial and on appeal, in addition to
its costs and disbursements, if it prevails. - } { + The court
may award reasonable attorney fees to the department if the
department prevails in an action to collect a fee required by
this chapter. The court may award reasonable attorney fees to a
defendant who prevails in an action to collect a fee required by
this chapter if the court determines that the department had no
objectively reasonable basis for asserting the claim or no
reasonable basis for appealing an adverse decision of the trial
court. + }
**************************** SECTION 26. If Senate Bill 385
becomes law, ORS 540.120 is amended to read:
540.120. (1) If one or more of the water users concerned in a
distribution or division under ORS 540.100 pay the wages and
expenses for another user who fails to contribute a just share or
proportion of the wages and expenses, the user paying the wages
and expenses shall be entitled to a lien upon the lands of the
delinquent user entitled to use of water, in the amount of the
delinquent user's just share or proportion.
(2) The lien shall be made effective by filing written notice
of intent to claim a lien for payment of wages and expenses under
subsection (1) of this section with the county clerk of the
county in which the lands of the delinquent water user are
situated.
(3) The notice of intent filed under subsection (2) of this
section shall:
(a) Be verified by the watermaster or assistant watermaster;
(b) Specify the particular items of wages and expenses for
which the lien is claimed;
(c) Describe the lands of each water user upon which the lien
is claimed; and
(d) State the name of the owner or reputed owner of the lands.
(4) The lien shall be filed within 60 days from the completion
of the distribution or division, and suit to foreclose the lien
shall be brought in the circuit court of the county in which the
lands or any part of the lands are situated, within six months
from the date of filing the notice of lien.
(5) { - If suit is necessary to foreclose the lien, the
plaintiff may recover reasonable attorney fees at trial and on
appeal in addition to the costs and disbursements prescribed by
law. - } The lien shall be foreclosed in the manner provided by
law for the foreclosure of liens against real property.
{ + Except as provided in subsection (6) of this section, the
court may award reasonable attorney fees to the prevailing party
in an action to foreclose a lien under this section.
(6) The court may not award attorney fees to the state or a
political subdivision of the state if the state or political
subdivision prevails in an action to foreclose a lien under this
section. + }
{ - (6) - } { + (7) + } A lien filed under this section
shall not be considered an exclusive remedy.
**************************** SECTION 27. ORS 545.104, as
amended by section 58, chapter 42, Oregon Laws 1995 (Enrolled
Senate Bill 263), is further amended to read:
545.104. (1) Any person or irrigation district that supplies
water to any person or irrigation district for irrigation of
crops shall, upon complying with subsection (2) of this section,
have a lien upon all crops raised by the use of such water for
the reasonable value of the water supplied as of the date when
the water was first supplied for the crops. The lien shall be a
continuing one and shall bind the crops after, as well as before,
they have been gathered. The lien shall be preferred to all other
liens or encumbrances upon the crops, except mortgages given to
the state for the purchase of seed wheat.
(2) The person or irrigation district so supplying water,
within 40 days after the water has been furnished, or within 40
days after the close of the irrigation season, shall file with
the county clerk of the county in which the lands, or some part
of the lands, are situated and where the water has been
furnished, a claim containing a true statement of the account due
for the water after deducting all just credits and offsets. The
claim shall also contain the date when the water was first
supplied, the name of the owner of the crops or reputed owner, if
known, the name of the person to whom the water was furnished and
a description of the lands upon which the crops were grown
sufficient for identification. The claim shall be verified by
oath of some person having knowledge of the facts and shall be
filed with and recorded by the county clerk in the book kept for
the purpose of recording liens claimed under ORS 87.035. The
record shall be indexed as deeds and other conveyances are
required by law to be indexed, and the clerk shall receive the
same fees as required by law for recording deeds and other
instruments.
(3) The lien may be enforced by a suit in equity { - , and
upon decree of foreclosure the court shall allow a reasonable sum
as attorney fees at trial and on appeal - } . The remedy provided
by this section does not abrogate any other remedy provided by
law for the collection of dues, charges or assessment for water
furnished. { + The court may award reasonable attorney fees to a
person or irrigation district if the person or district prevails
in an action to foreclose a lien under this section. The court
may award reasonable attorney fees to a defendant who prevails in
an action to foreclose a lien under this section if the court
determines that the plaintiff had no objectively reasonable basis
for asserting the claim or no reasonable basis for appealing an
adverse decision of the trial court. + }
(4) If all or part of the crop is sold prior to the filing of
the lien, or possession delivered to an agent, broker,
cooperative agency or other person to be sold or otherwise
disposed of, and its identity lost or destroyed or if the crop is
commingled with like crops so that it cannot be segregated, and
if the purchaser, agent, broker, cooperative agency or other
person was notified of the filing of the lien by being furnished
with a certified copy of the claim of lien, then the lien
attaches to the proceeds of sale remaining in the possession of
the purchaser, agent, broker, cooperative agency or other person
at the time of the notice. The lien shall be as effective against
the proceeds as against the crop itself.
**************************** SECTION 28. If Senate Bill 385
becomes law, ORS 548.620 is amended to read:
548.620. The irrigation or drainage district may, at any time
after the expiration of one year from the first date of
delinquency of any tax included in such certificate of
delinquency, foreclose the same in the manner provided by the
general laws of the state for the foreclosure of delinquency
certificates by individuals. The district may include in one
foreclosure suit and may foreclose by that suit as many
certificates of delinquency as it may hold. The holder of such
certificate may recover as a part of the judgment the costs,
disbursements and expenses in such foreclosure { - , including a
reasonable attorney fee at trial and on appeal as determined by
the court - } . { + The court may award reasonable attorney fees
to an irrigation or drainage district if the district prevails in
a foreclosure action under this section. The court may award
reasonable attorney fees to a defendant who prevails in a
foreclosure action under this section if the court determines
that the district had no objectively reasonable basis for
asserting the claim or no reasonable basis for appealing an
adverse decision of the trial court. + }
**************************** SECTION 29. If Senate Bill 385
becomes law, ORS 548.660 is amended to read:
548.660. In any such suit the irrigation or drainage district
shall be entitled to recover, as a part of the moneys to be paid
therein, { - such sum as the court may adjudge reasonable as
attorney fees at trial and on appeal, and - } any payment
required for the issuance of the certificate. { + The court may
award reasonable attorney fees to an irrigation or drainage
district if the district prevails in the proceeding. The court
may award reasonable attorney fees to a defendant who prevails in
the proceeding if the court determines that the district had no
objectively reasonable basis for asserting the claim or no
reasonable basis for appealing an adverse decision of the trial
court. + } { - Such sums - } { + Amounts awarded to the
district + } shall be a lien upon the property.
**************************** SECTION 30. If Senate Bill 385
becomes law, ORS 553.560 is amended to read:
553.560. (1) After the date fixed as the time when an
assessment shall become due, the board, by resolution, shall
direct that all delinquent assessments then unpaid, whether for
operation and maintenance, improvement, construction, or other
purposes, shall be foreclosed by the district. Such foreclosure
shall follow the general procedures of a suit in equity and shall
be filed in the circuit court of the county in which the land to
be foreclosed is situated. If land in two or more counties is to
be foreclosed, separate proceedings shall be commenced in each
county as to the lands therein. The district may recover in such
suit the costs and disbursements and other expenses of
foreclosure { - , together with a reasonable sum as attorney
fees at trial and on appeal to be allowed by the court - } . Any
number of tracts of lands, whether they are delinquent for the
same or any number of assessments or for the same or several
years, may be foreclosed in the same suit. { + The court may
award reasonable attorney fees to the district if the district
prevails in a foreclosure action under this section. The court
may award reasonable attorney fees to a defendant who prevails in
a foreclosure action under this section if the court determines
that the district had no objectively reasonable basis for
asserting the claim or no reasonable basis for appealing an
adverse decision of the trial court. + }
(2) The decree in such suit shall order the sale of such
property and fix the time for holding the sale, which shall be
not more than four weeks from the date of the decree, and shall
order the sheriff of the county to hold the same as other
foreclosure sales, upon giving notice thereof for two consecutive
weeks prior to the day of sale, by publication of notice once
each week in a newspaper published in the county in which the
land to be sold is situated and by posting notices in three
public and conspicuous places in the county at least two weeks
prior to the day of sale.
(3) The district may be a bidder and purchaser of property upon
such sale. Upon such sale the sheriff immediately shall issue a
deed to the property sold, and no right of redemption shall
exist.
**************************** SECTION 31. If Senate Bill 385
becomes law, ORS 585.150 is amended to read:
585.150. (1) The department shall enforce the provisions of ORS
585.010 to 585.220, and to that end the department has the
authority granted in this section.
(2) The department may investigate and attempt equitably to
adjust controversies between any grower or growers, and any
wholesale produce dealer, retail produce peddler, or any person
acting or assuming to act in the capacity of any of such persons.
(3) The department may take assignments of claims, arising out
of any controversies between the parties named in subsection (2)
of this section, in trust for the assigning grower or growers.
All such assignments shall run to the Director of Agriculture and
successors in office. The Director of Agriculture may, as
assignee of any such claim, sue any of the persons mentioned in
subsection (2) of this section or any combination of such persons
{ - , and, in case such suit or action is brought by the
director, the director is entitled to recover, in addition to
costs and disbursements, the sum the court or judge adjudges
reasonable as attorney fees at trial and on appeal - } . The
director shall not bring a suit or action on any claim until the
parties to be sued have been notified of the assignment of claims
and have been given a reasonable opportunity to make an equitable
adjustment thereof with the department. Any claim so assigned to
the director authorizes the director to make any adjustment
thereof which, in the opinion of the director, is equitable. The
moneys received by the department on any claims so assigned to it
shall be paid into the Department of Agriculture Account; and
such moneys shall be paid to the assignor after first deducting
any costs and expenses incurred by the department in the
collection of any such claim, and also after deducting five
percent of any sum collected. The five percent deducted shall be
used, together with other moneys collected under the provisions
of ORS 585.010 to 585.220, to pay the expenses in the
administration of ORS 585.010 to 585.220.
(4) The Director of Agriculture may make complaint in a
criminal action for any violation of any provision of ORS 585.010
to 585.220 which constitutes a crime. The director shall
prosecute all legal proceedings in official capacity, but in the
name of the State of Oregon. The director may act through any
authorized officer, employee or deputy of the department in any
proceeding authorized by this section.
{ + (5) The court may award reasonable attorney fees to the
director if the director prevails in an action under subsection
(3) of this section. The court may award reasonable attorney fees
to a defendant who prevails in an action under subsection (3) of
this section if the court determines that the director had no
objectively reasonable basis for asserting the claim or no
reasonable basis for appealing an adverse decision of the trial
court. + }
**************************** SECTION 32. If Senate Bill 385
becomes law, ORS 645.225 is amended to read:
645.225. (1) Whenever it appears to the director that a person
has engaged in an act or practice constituting a violation of any
provision of this chapter or any rule or order of the director,
the director may bring an action in the name and on behalf of the
State of Oregon in any circuit court of this state to enjoin the
acts or practices and to enforce compliance with this chapter or
such rule or order. Upon a proper showing, a permanent or
temporary injunction, restraining order or writ of mandamus shall
be granted. If the court finds that the defendant has violated
any provision of this chapter or any such rule or order, the
court may appoint a receiver, who may be the director, for the
defendant or the defendant's assets. The court may not require
the director to post a bond. { - If the director prevails, the
director shall be entitled to costs and reasonable attorney fees
at trial and on appeal to be fixed by the court. - } { + The
court may award reasonable attorney fees to the director if the
director prevails in an action under this section. The court may
award reasonable attorney fees to a defendant who prevails in an
action under this section if the court determines that the
director had no objectively reasonable basis for asserting the
claim or no reasonable basis for appealing an adverse decision of
the trial court. + }
(2) The director may include in any action authorized by
subsection (1) of this section:
(a) A claim for restitution on behalf of persons injured by the
act or practice constituting the subject matter of the action;
and
(b) A claim for disgorgement of illegal gains or profits
derived.
(3) Any recovery under subsection (2) of this section shall be
turned over to the General Fund of the State Treasury unless the
court requires other disposition.
**************************** SECTION 33. If Senate Bill 385
becomes law, ORS 646.140 is amended to read:
646.140. (1) Any person injured by any violation, or who will
suffer injury from any threatened violation, of ORS 646.010 to
646.180 may maintain an action in any court of general equitable
jurisdiction of this state, to prevent, restrain or enjoin the
violation or threatened violation. If in such action, a violation
or threatened violation of ORS 646.010 to 646.180 is established,
the court shall enjoin and restrain or otherwise prohibit such
violation or threatened violation, and the plaintiff in the
action is entitled to recover three-fold the damages sustained by
the plaintiff { - , and the costs of suit and a reasonable
attorney fee at trial and on appeal - } . { + Except as provided
in subsection (2) of this section,the court may award reasonable
attorney fees to the prevailing party in an action under this
section.
(2) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (1) of this section
if the action under this section is maintained as a class action
pursuant to ORCP 32. + }
{ - (2) - } { + (3) + } Actions brought under this section
shall be commenced within four years from the date of the injury.
**************************** SECTION 34. If Senate Bill 385
becomes law, ORS 646.240 is amended to read:
646.240. (1) The Attorney General may bring an action in the
name of the state against any mail agent for violation of ORS
646.225 or 646.229. Upon proof by a preponderance of the evidence
of a violation of ORS 646.225 or 646.229, a mail agent shall
forfeit and pay a civil penalty of not more than $1,000 for an
initial violation. For a second or subsequent violation, the mail
agent shall forfeit and pay a civil penalty of not more than
$5,000 for each violation.
(2) The Attorney General may bring an action in the name of the
state against any mail agent or other person or entity to
restrain or prevent any violation of ORS 646.225 or 646.229.
(3) { - If the state prevails in whole or part in any action
brought by the Attorney General under this section, the Attorney
General shall be entitled to reasonable attorney fees and costs
of investigation, preparation and litigation. - } { + The court
may award reasonable attorney fees and costs of investigation,
preparation and litigation to the Attorney General if the
Attorney General prevails in an action under this section. The
court may award reasonable attorney fees and costs of
investigation, preparation and litigation to a defendant who
prevails in an action under this section if the court determines
that the Attorney General had no objectively reasonable basis for
asserting the claim or no reasonable basis for appealing an
adverse decision of the trial court. + }
**************************** SECTION 35. If Senate Bill 385
becomes law, ORS 646.638 is amended to read:
646.638. (1) Except as provided in subsection { - (7) - }
{ + (8) + } of this section, any person who suffers any
ascertainable loss of money or property, real or personal, as a
result of willful use or employment by another person of a
method, act or practice declared unlawful by ORS 646.608, may
bring an individual action in an appropriate court to recover
actual damages or $200, whichever is greater. The court or the
jury, as the case may be, may award punitive damages and the
court may provide such equitable relief as it deems necessary or
proper.
(2) Upon commencement of any action brought under subsection
(1) of this section the party bringing the action shall mail a
copy of the complaint or other initial pleading to the Attorney
General and, upon entry of any judgment or decree in the action,
shall mail a copy of such judgment or decree to the Attorney
General. Failure to mail a copy of the complaint shall not be a
jurisdictional defect, but no judgment shall be entered for the
plaintiff until proof of mailing is filed with the court. Proof
of mailing may be by affidavit or by return receipt of mailing.
{ - (3) In any action brought by a person under this section,
the court may award, in addition to the relief provided in this
section, reasonable attorney fees at trial and on appeal and
costs. If the defendant prevails, the court may award reasonable
attorney fees at trial and on appeal and costs if it finds the
action to be frivolous. - }
{ + (3) Except as provided in subsection (4) of this section,
the court may award reasonable attorney fees to the prevailing
party in an action under this section.
(4) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (3) of this section
if the action under this section is maintained as a class action
pursuant to ORCP 32. + }
{ - (4) - } { + (5) + } Any permanent injunction or final
judgment or order of the court made under ORS 646.632 or 646.636
shall be prima facie evidence in an action brought under this
section that the respondent used or employed a method, act or
practice declared unlawful by ORS 646.608, but an assurance of
voluntary compliance, whether or not approved by the court, shall
not be evidence of such violation.
{ - (5) - } { + (6) + } Actions brought under this section
shall be commenced within one year from the discovery of the
unlawful method, act or practice. However, whenever any complaint
is filed by a prosecuting attorney to prevent, restrain or punish
violations of ORS 646.608, running of the statute of limitations
with respect to every private right of action under this section
and based in whole or in part on any matter complained of in said
proceeding shall be suspended during the pendency thereof.
{ - (6) - } { + (7) + } Notwithstanding subsection
{ - (5) - } { + (6) + } of this section, in any action brought
by a seller or lessor against a purchaser or lessee of real
estate, goods or services, such purchaser or lessee may assert
any counterclaim the purchaser or lessee has arising out of a
violation of ORS 646.605 to 646.652.
{ - (7) - } { + (8) + } This section does not apply to any
method, act or practice described in ORS 646.608 (1)(w). Actions
for violation of laws relating to odometers are provided under
ORS 815.410 and 815.415.
**************************** SECTION 36. If Senate Bill 385
becomes law, ORS 646.760 is amended to read:
646.760. (1) The Attorney General may prosecute an action for
appropriate injunctive relief and civil penalties in the name of
the state for any violation of ORS 646.725 or 646.730. The court
may assess for the benefit of the state a civil penalty of not
more than $100,000 for each violation of ORS 136.617, 646.705 to
646.805 and 646.990. Any act or series of acts by one or more
individual persons (officers, agents or partners) on behalf of a
corporation or other business entity may be found to constitute a
violation or violations by such individual person or persons as
well as by the corporation or other business entity, and separate
penalties may be imposed against each of such individual
defendants and corporate or other business entity defendants for
such a violation. { - If the state prevails it shall also
recover its necessary reasonable investigative costs and
reasonable experts' fees and a reasonable attorney fee at trial
and on appeal. - } { + The court may award reasonable attorney
fees, expert witness fees and costs of investigation to the
Attorney General if the Attorney General prevails in an action
under this section. The court may award reasonable attorney fees,
expert witness fees and costs of investigation to a defendant who
prevails in an action under this section if the court determines
that the Attorney General had no objectively reasonable basis for
asserting the claim or no reasonable basis for appealing an
adverse decision of the trial court. + }
(2) The complaint may also seek and the court may order, in an
appropriate case, the forfeiture of any corporate franchise,
professional or business license, right to do business or to use
an assumed business name, where the court finds the use by any
defendant of such franchise, license or right has been material
to a violation of ORS 646.725 or 646.730.
(3) The court shall take into consideration in mitigation of
any penalty assessed under this section, any fine or penalty
imposed against the defendant by a United States court in a final
judgment under sections 1 to 45 of Title 15 of the United States
Code, which the court finds to be based on the same or
substantially the same acts of defendant.
**************************** SECTION 37. If Senate Bill 385
becomes law, ORS 646.770 is amended to read:
646.770. { + (1) + } Any person including the state or any
municipal corporation or political subdivision threatened with
injury in its business or property by a violation of ORS 646.725
or 646.730 may prosecute a suit for equitable relief, and in
addition to such relief shall recover the costs of suit,
including necessary reasonable investigative costs and reasonable
experts' fees { - , and a reasonable attorney fee at trial and
on appeal - } .
{ + (2) Except as provided in subsection (3) of this section,
in an action brought under the provisions of this section by a
person other than the state or any municipal corporation or
political subdivision of the state, the court may award
reasonable attorney fees to the prevailing party. Except as
provided in subsection (3) of this section, in a civil action
brought under the provisions of this section by the state or any
municipal corporation or political subdivision of the state:
(a) The court may award reasonable attorney fees to the state
or political subdivision of the state if the state or political
subdivision prevails in the action; and
(b) The court may award reasonable attorney fees to a defendant
who prevails in an action under this section if the court
determines that the state or any municipal corporation or
political subdivision of the state had no objectively reasonable
basis for asserting the claim or no reasonable basis for
appealing an adverse decision of the trial court. + } { +
(3) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (2) of this section
if the action under this section is maintained as a class action
pursuant to ORCP 32. + }
**************************** SECTION 38. If Senate Bill 385
becomes law, ORS 646.775 is amended to read:
646.775. (1)(a) The Attorney General may bring a civil action
in the name of the State of Oregon, as parens patriae on behalf
of natural persons residing in the state, in any circuit court in
which venue is proper under ORS 646.790, to secure equitable and
monetary relief as provided in this section for injury sustained
by such natural persons to their property by reason of a
violation of ORS 646.725 or 646.730.
(b) The court shall exclude from the amount of monetary relief
awarded in an action pursuant to paragraph (a) of this subsection
any amount of monetary relief (A) which duplicates amounts which
have been awarded for the same injury, or (B) which is properly
allocable to (i) natural persons who have excluded their claims
pursuant to subsection (2)(b) of this section, and (ii) any
business entity.
(c) The court shall award the state as monetary relief
threefold the total damages sustained, as described in paragraph
(b) of this subsection, and the costs of suit { + . + } { - ,
and a reasonable attorney fee at trial and on appeal. The amount
of such attorney fee, if any, shall be determined by the court.
The court may, in its discretion, award a reasonable attorney fee
at trial and on appeal to a prevailing defendant upon a finding
that the Attorney General acted in bad faith, vexatiously,
wantonly or for oppressive reasons. - } { + The court may award
reasonable attorney fees to the Attorney General if the Attorney
General prevails in an action under this section. The court may
award reasonable attorney fees to a defendant who prevails in an
action under this section if the court determines that the
Attorney General had no objectively reasonable basis for
asserting the claim or no reasonable basis for appealing an
adverse decision of the trial court. + }
(2)(a) In any action pursuant to subsection (1)(a) of this
section, the Attorney General shall, at such times, in such
manner, and with such content as the court may direct, cause
notice thereof to be given by publication. If the court finds
that notice given solely by publication would deny due process of
law to any person or persons, the court may direct further notice
to such person or persons according to the circumstances of the
case.
(b) Any person on whose behalf an action is brought pursuant to
subsection (1)(a) of this section may elect to exclude from
adjudication the portion of the claim for monetary relief
attributable to the person by filing notice of such election with
the court within such time as specified in the notice given
pursuant to paragraph (a) of this subsection.
(c) The final judgment in an action pursuant to subsection
(1)(a) of this section shall be res judicata as to any claim
under this section by any person on behalf of whom such action
was brought and who fails to give the notice specified in
paragraph (b) of this subsection within the period specified in
the notice given pursuant to paragraph (a) of this subsection.
(3) An action pursuant to subsection (1)(a) of this section
shall not be dismissed or compromised without the approval of the
court, and the notice of any proposed dismissal or compromise
shall be given in such manner as the court directs.
(4) In any action pursuant to subsection (1)(a) of this section
in which there has been a determination that a defendant agreed
to fix prices in violation of ORS 646.725, damages may be proved
and assessed in the aggregate by statistical or sampling methods,
by the computation and pro rata allocation of illegal
overcharges, or by such other reasonable system of estimating
aggregate damages as the court in its discretion may permit
without the necessity of separately proving the individual claim
of, or amount of damage to, persons on whose behalf the suit was
brought.
(5)(a) Monetary relief recovered in an action pursuant to
subsection (1)(a) of this section shall be distributed in such
manner as the court in its discretion may authorize, subject to
the requirement that any distribution procedure adopted afford
each person on whose behalf the suit was brought a reasonable
opportunity to secure their appropriate portion of the net
monetary relief.
(b) The Attorney General shall deposit that portion of the
monetary relief awarded by the court as costs of suit and a
reasonable attorney fee in the Consumer Protection and Education
Revolving Account established pursuant to ORS 180.095.
(c) To the extent that the monetary relief awarded by the court
is not exhausted by distribution pursuant to paragraphs (a) and
(b) of this subsection, the remaining funds shall be deemed a
civil penalty by the court and assessed as such for the benefit
of the state pursuant to ORS 646.760.
(6) The powers granted in this section are in addition to and
not in derogation of the common law powers of the Attorney
General to act as parens patriae, or the powers of the Attorney
General to sue as a representative party on behalf of a class
pursuant to
{ - ORS 13.210 to 13.410 (1977 Replacement Part) - } { + ORCP
32 + }.
**************************** SECTION 39. If Senate Bill 385
becomes law, ORS 646.780 is amended to read:
646.780. (1)(a) A person including the state or any municipal
corporation or political subdivision { + of the state + }
injured in its business or property by a violation of ORS 646.725
or 646.730 may sue therefor and shall recover threefold the
damages sustained
{ - and the costs of suit, including necessary reasonable
investigative costs and reasonable experts' fees, and a
reasonable attorney fee at trial and on appeal - } , except that
the state may recover only its actual damages sustained { - ,
plus costs of suit including necessary reasonable investigative
costs and reasonable experts' fees, and a reasonable attorney fee
at trial and on appeal - } { + and any attorney fees, expert
witness fees or investigative costs that may be awarded under
subsection (3) of this section + }, if it brings an action
pursuant to ORS 646.760 or commences a prosecution under ORS
646.815 and 646.990 (2).
(b) Notwithstanding paragraph (a) of this subsection, in any
action under this section in which the plaintiff prevails solely
on the basis of a judgment or decree entered in a proceeding
under sections 1 to 45 of Title 15 of the United States Code or
in another action by the state under ORS 646.760, 646.770 or this
section, used as collateral estoppel against a defendant pursuant
to ORS 646.805, plaintiff's recovery shall be limited to the
actual damages sustained and { - the costs of suit, including
necessary reasonable investigative costs and reasonable experts'
fees, and a reasonable attorney fee at trial and on appeal - }
{ + any attorney fees, expert witness fees or investigative
costs that may be awarded under subsection (3) of this
section + }.
(2) Unless there is a subsequent judgment that the court lacks
jurisdiction, the taking of any testimony at the commencement of
trial on a civil complaint for damages filed under the antitrust
laws of the United States shall constitute an absolute bar and
waiver of any right of a plaintiff in such action to recover
damages from the same defendant under this section for the same
or substantially the same acts of plaintiff.
{ + (3)(a) Except as provided in subsection (4) of this
section, in an action brought under the provisions of this
section by a person other than the state or any municipal
corporation or political subdivision of the state, the court may
award reasonable attorney fees, expert witness fees and
investigative costs to the prevailing party.
(b) Except as provided in subsection (4) of this section, in a
civil action brought under the provisions of this section or
under ORS 646.760 by the state or any municipal corporation or
political subdivision of the state:
(A) The court may award reasonable attorney fees, expert
witness fees and investigative costs to the state or any
municipal corporation or political subdivision of the state if
the state or any municipal corporation or political subdivision
prevails in the action; and
(B) The court may award reasonable attorney fees, expert
witness fees and investigative costs to a defendant who prevails
in an action under this section if the court determines that the
state or any municipal corporation or political subdivision of
the state had no objectively reasonable basis for asserting the
claim or no reasonable basis for appealing an adverse decision of
the trial court. + } { +
(4) The court may not award attorney fees, expert witness fees
or investigative costs to a prevailing defendant under the
provisions of this section if the action is maintained as a class
action pursuant to ORCP 32. + }
**************************** SECTION 40. If Senate Bill 385
becomes law, ORS 650.020 is amended to read:
650.020. (1) Any person who sells a franchise is liable as
provided in subsection (3) of this section to the franchisee if
the seller:
(a) Employs any device, scheme or artifice to defraud; or
(b) Makes any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements
made, in light of the circumstances under which they were made,
not misleading.
(2) It shall be an affirmative defense to any action for legal
or equitable remedies brought under subsection (1) of this
section if the franchisee knew of the untruth or omission.
(3) The franchisee may recover any amounts to which the
franchisee would be entitled upon an action for a rescission
{ - , reasonable attorney fees at trial and on appeal and court
costs - } . { + Except as provided in subsection (4) of this
section, the court may award reasonable attorney fees to the
prevailing party in an action under this section.
(4) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (3) of this section
if the action under this section is maintained as a class action
pursuant to ORCP 32. + }
{ - (4) - } { + (5) + } Every person who directly or
indirectly controls a franchisor liable under subsection (1) of
this section, every partner, officer or director of the
franchisor, every person occupying a similar status or performing
similar functions, and every person who participates or
materially aids in the sale of a franchise is also liable jointly
and severally to the same extent as the franchisor, unless the
nonseller did not know, and, in the exercise of reasonable care,
could not have known, of the existence of the facts on which the
liability is based.
{ - (5) - } { + (6) + } An action may not be commenced
under this section more than three years after the sale.
{ - (6) - } { + (7) + } A corporation which is liable under
ORS 650.005 to 650.085 shall have a right of indemnification
against any of its principal executive officers, directors and
controlling persons whose willful violation of any provision of
ORS 650.005 to 650.085 gave rise to the liability. All persons
liable under ORS 650.005 to 650.085 shall have a right of
contribution against all other persons similarly liable, based
upon each person's proportionate share of the total liability,
except:
(a) A person willfully misrepresenting or failing to disclose
shall not have any right of contribution against any other person
guilty merely of a negligent violation; and
(b) A principal executive officer, director, or controlling
person shall not have any right of contribution against the
corporation to which the person sustains that relationship.
**************************** SECTION 41. If Senate Bill 385
becomes law, ORS 650.065 is amended to read:
650.065. (1) Whenever the director determines that any person
has engaged in, or is about to engage in, any act or practice
which the director believes would give rise to liability under
ORS 650.020, the director may bring suit in the name of the State
of Oregon in any circuit court of this state to enjoin the acts
or practices. { - If the director prevails, the director shall
recover court costs and a reasonable attorney fee at trial and on
appeal to be fixed by the court. - } Upon a proper showing, the
court shall grant a permanent or temporary injunction or
restraining order and may appoint a receiver or conservator for
the defendant or the defendant's assets. The court shall not
require the director to post a bond. { + The court may award
reasonable attorney fees to the director if the director prevails
in an action under this section. The court may award reasonable
attorney fees to a defendant who prevails in an action under this
section if the court determines that the director had no
objectively reasonable basis for asserting the claim or no
reasonable basis for appealing an adverse decision of the trial
court. + }
(2) The director may include in any suit authorized by
subsection (1) of this section a claim for any amount the
franchisee could recover under ORS 650.020 or a claim for damages
on behalf of other persons injured by any act or practice against
which an injunction or restraining order is sought. The court may
award appropriate relief to the franchisee or such other persons
if the court finds that enforcement of the right of the
franchisee or other persons by private civil action or suit,
whether by class action or otherwise, would be so burdensome or
expensive as to be impractical.
**************************** SECTION 42. If Senate Bill 385
becomes law, ORS 650.250 is amended to read:
650.250. { + (1) + } Any person who is injured in the person's
business or property by reason of a violation of ORS 650.250 to
650.250 may sue therefor in any court having jurisdiction in the
county where the defendant resides or is found, or any agent
resides or is found, or where service may be obtained, for
injunctive relief or to recover the damages sustained by the
person { - , and may be awarded attorney fees together with the
costs of the suit - } . Any action brought pursuant to this
section shall be commenced within four years after the cause of
action accrued. { + Except as provided in subsection (2) of
this section, the court may award reasonable attorney fees to the
prevailing party in an action under this section.
(2) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (1) of this section
if the action under this section is maintained as a class action
pursuant to ORCP 32. + }
**************************** SECTION 43. If Senate Bill 385
becomes law, ORS 656.052 is amended to read:
656.052. (1) No person shall engage as a subject employer
unless and until the person has provided coverage pursuant to ORS
656.017 for subject workers the person employs.
(2) Whenever the director has reason to believe that any person
has violated subsection (1) of this section, the director shall
serve upon the person a proposed order declaring the person to be
a noncomplying employer and containing the amount, if any, of
civil penalty to be assessed pursuant to ORS 656.735 (1).
(3) If any person fails to comply with ORS 656.017 after an
order declaring the person to be a noncomplying employer has
become final by operation of law or on appeal, the circuit court
of the county in which the person resides or in which the person
employs workers shall, upon the commencement of a suit by the
director for that purpose, enjoin the person from further
employing subject workers until the person has complied with ORS
656.017. Upon the filing of such a suit, the court shall set a
day for hearing and shall cause notice thereof to be served upon
the noncomplying employer. The hearing shall be not less than
five days from the service of the notice.
(4) { - When the director prevails in any suit brought
pursuant to subsection (3) of this section, the director is
entitled to recover from the noncomplying employer court costs
and attorney fees incurred by the director. If the noncomplying
employer is a corporation, other than a nonprofit corporation,
the corporation and the officers and directors thereof shall be
jointly and severally liable for such court costs and attorney
fees. - } { + The court may award reasonable attorney fees to
the director if the director prevails in an action under
subsection (3) of this section. The court may award reasonable
attorney fees to a defendant who prevails in an action under
subsection (3) of this section if the court determines that the
director had no objectively reasonable basis for asserting the
claim or no reasonable basis for appealing an adverse decision of
the trial court. + }
**************************** SECTION 44. If Senate Bill 385
becomes law, ORS 658.220 is amended to read:
658.220. (1) When it appears to the commissioner that any
person is engaged or about to engage in an act or practice that
constitutes a violation of ORS 658.005 to 658.245 or the rules
adopted pursuant thereto, the commissioner may, without bond,
obtain an order from an appropriate circuit court enjoining any
such act or practice. { - If the commissioner prevails, the
commissioner is entitled to recover, in addition to costs, such
sum as the court or judge may adjudge reasonable as attorney fees
at trial and on appeal. - } { + The court may award reasonable
attorney fees to the commissioner if the commissioner prevails in
an action under this subsection. The court may award reasonable
attorney fees to a defendant who prevails in an action under this
subsection if the court determines that the commissioner had no
objectively reasonable basis for asserting the claim or no
reasonable basis for appealing an adverse decision of the trial
court. + }
(2) The commissioner may issue subpoenas in any investigation
in a contested case the commissioner is conducting outside of a
court proceeding or as otherwise necessary for the performance of
any of the duties of the commissioner under ORS 658.005 to
658.245.
**************************** SECTION 44a. { + If Senate Bill
385 and House Bill 3114 become law, section 44 of this Act
(amending ORS 658.220) is repealed. + }
**************************** SECTION 45. If Senate Bill 385
becomes law, ORS 692.180 is amended to read:
692.180. (1) Upon complaint or upon its own motion, the board
may investigate any complaint concerning any person, licensee or
holder of a certificate of authority made by any person or by the
board. If the board finds any of the causes described in this
section in regard to any person, licensee or applicant or the
holder of a certificate of authority, the board may impose a
civil penalty of not more than $1,000 for each violation, suspend
or revoke a license to practice or to operate under this chapter
or refuse to grant or renew a license. The causes are as follows:
(a) Misrepresentation in the conduct of business or in
obtaining a license.
(b) Fraudulent or dishonest conduct where such conduct bears a
demonstrable relationship to funeral service practice or
embalming practice, or the operation of cemeteries or
crematoriums.
(c) Except as provided in ORS 128.400 to 128.440, 128.990,
128.991 and 692.285, solicitation of human dead bodies by the
licensee or any agent, assistant or employee of the licensee,
either before or after death.
(d) Offensive treatment of dead human bodies or a body in the
person's custody has been disposed of in violation of ORS chapter
432 or rules adopted pursuant thereto.
(e) Aiding or abetting a person who is not a licensee or an
apprentice in any act involving the disposition of dead human
bodies before the bodies undergo cremation, entombment or burial
or before the bodies are transported out of the State of Oregon.
(f) Sale or reuse of any casket or body container which has
been previously utilized for the placement of a deceased human
body. This does not include use of a rental cover as defined in
ORS 692.010.
(g) Violation of any of the provisions of this chapter or any
rules adopted under this chapter.
(h) Violation of any provision of ORS 128.412 or 128.415 or
regulations adopted by the Federal Trade Commission regulating
funeral industry practices.
(i) Conviction of a crime where such crime bears a demonstrable
relationship to funeral service practice or embalming practice or
the operation of cemeteries or crematoriums. A copy of the record
of such conviction certified to by the clerk or the court
entering the conviction, shall be conclusive evidence of the
conviction.
(j) Violation of ORS chapter 97 as it relates to disposition of
human bodies and to cemeteries.
(k) Refusing to surrender promptly the custody of a dead human
body, upon the express order of the person lawfully entitled to
the custody of the body.
(L) Acting as the legal representative of any deceased person
for whom the licensee has rendered services governed by this
chapter. This subsection does not prohibit a licensee from acting
as the legal representative of a deceased relative or a deceased
licensee if the deceased licensee was a partner, employee or
employer in the licensee's practice.
(m) Failure to pay any civil penalty imposed by the board
within 10 days after the order is entered or, if appealed, within
10 days after the order is sustained on appeal.
(2) All amounts recovered under this section shall be deposited
in accordance with ORS 692.375.
(3) Civil penalties under this section shall be imposed as
provided in ORS 183.090.
{ - (4) In any judicial review of orders under this section,
the court may assess costs and reasonable attorney fees against
the licensee on trial and on appeal. Costs and fees shall be
payable and collectible in the same manner as the civil
penalty. - }
**************************** SECTION 46. If Senate Bill 385
becomes law, ORS 697.762 is amended to read:
697.762. (1) When the director determines that any person has
engaged in, is engaging in or is about to engage in any act or
practice which the director believes is in violation of ORS
697.612 or any provision of ORS 697.652 to 697.702, the director
may bring suit in the name of the State of Oregon in any circuit
court of this state to enjoin the acts or practices. { - If the
director prevails, the director shall recover court costs and a
reasonable attorney fee to be fixed by the court. - } Upon a
proper showing, the court shall grant a permanent or temporary
injunction or restraining order and may appoint a receiver or
conservator for the defendant or the defendant's assets. The
court shall not require the director to post a bond. { + The
court may award reasonable attorney fees to the director if the
director prevails in an action under this section. The court may
award reasonable attorney fees to a defendant who prevails in an
action under this section if the court determines that the
director had no objectively reasonable basis for asserting the
claim or no reasonable basis for appealing an adverse decision of
the trial court. + }
(2) The director may include in any suit authorized by
subsection (1) of this section a claim for damages on behalf of
any other person injured by any act or practice against which an
injunction or restraining order is sought. The court may award
appropriate relief to the person if the court finds that
enforcement of the right of the person by private civil action or
suit, whether by class action or otherwise, would be so
burdensome or expensive as to be impracticable.
**************************** SECTION 47. If Senate Bill 385
becomes law, ORS 697.792 is amended to read:
697.792. (1) If any claim in an amount of more than $200 is
filed with the director against a debt consolidating agency under
ORS 697.782, the debt consolidating agency may remove the claim
from the director's determination by filing within 20 days of the
debt consolidating agency's receipt of notice of the claim, a
request with the director to remove the claim.
(2) Upon receipt of a request to remove a claim under
subsection (1) of this section, the director shall:
(a) Discontinue hearings procedures under ORS 697.782; and
(b) Notify the person filing the claim that the director cannot
determine the claim but that the person may file the claim in an
appropriate court of this state.
(3) { + Except as provided in subsection (4) of this
section, + } { + the court may award reasonable attorney fees
to the prevailing party in an action on a claim removed from the
director under this section. + } { - If a court of this state
awards damages on a claim against a debt consolidating agency to
the person bringing the suit or action, the court shall award
reasonable costs, expert witness fees and attorney fees at trial
and on appeal to the person bringing the suit or action if the
same claim has been: - }
{ - (a) Filed with the director under ORS 697.782; and - }
{ - (b) Removed from the director under this section. - }
{ + (4) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (3) of this section
if the action removed from the director under this section is
maintained as a class action pursuant to ORCP 32 + }.
{ - (4) - } { + (5) + } The director shall provide a debt
consolidating agency with notice of rights and liabilities under
this section when the director gives the debt consolidating
agency notice of a claim filed against the debt consolidating
agency under ORS 697.782.
{ - (5) - } { + (6) + } A person whose claim is removed
from the director under this section does not have a claim filed
with the director for purposes of establishing priority under ORS
697.812.
**************************** SECTION 48. If Senate Bill 385
becomes law, ORS 756.185 is amended to read:
756.185. (1) Any public utility, railroad, air carrier or motor
carrier which does, or causes or permits to be done, any matter,
act or thing prohibited by ORS chapter 756, 757, 758, 760, 761,
763, 764, 767 or 773 or omits to do any act, matter or thing
required to be done by such statutes, is liable to the person
injured thereby in the amount of damages sustained in consequence
of such violation. If the party seeking damages alleges and
proves that the wrong or omission was the result of gross
negligence or willful misconduct, the public utility, railroad,
air carrier or motor carrier is liable to the person injured
thereby in treble the amount of damages sustained in consequence
of the violation.
{ - If damages are awarded, the court may also fix and award
reasonable attorney fees at trial and on appeal. - } { + Except
as provided in subsection (2) of this section, the court may
award reasonable attorney fees to the prevailing party in an
action under this section.
(2) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (1) of this section
if the action under this section is maintained as a class action
pursuant to ORCP 32. + }
{ - (2) - } { + (3) + } Any recovery under this section
does not affect recovery by the state of the penalty, forfeiture
or fine prescribed for such violation.
{ - (3) - } { + (4) + } This section does not apply with
respect to the liability of any public utility, railroad, air
carrier or motor carrier for personal injury or property damage.
**************************** SECTION 49. If Senate Bill 385
becomes law, ORS 759.720 is amended to read:
759.720. (1) Any customer, telecommunications utility or local
exchange carrier who suffers damages from a violation of ORS
646.608, 646.639 and 759.700 to 759.720 by an information
provider has a cause of action against such information provider.
The court may award the greater of three times the actual damages
or $500, { + or + } order an injunction or restitution
{ - and award attorney fees and court costs to the prevailing
plaintiff - } . { + Except as provided in subsection (2) of this
section, the court may award reasonable attorney fees to the
prevailing party in an action under this section.
(2) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (1) of this section
if the action under this section is maintained as a class action
pursuant to ORCP 32. + }
{ - (2) - } { + (3) + } When an information provider has
failed to comply with any provision of ORS 646.608, 646.639 and
759.700 to 759.720, any obligation by a customer that may have
arisen from the dialing of a pay-per-call telephone number is
void and unenforceable.
{ - (3) - } { + (4) + } Any obligation that may have arisen
from the dialing of a pay-per-call telephone number is void and
unenforceable if made by:
(a) An unemancipated child under 18 years of age; or
(b) A person whose physician substantiates that:
(A) The person has a mental or emotional disorder generally
recognized in the medical or psychological community that makes
the person incapable of rational judgments and comprehending the
consequences of the person's action; and
(B) The disorder was diagnosed before the obligation was
incurred.
{ - (4) - } { + (5) + } Upon written notification to the
information provider or the billing agent for the information
provider that a bill for information delivery services is void
and unenforceable under subsection (2) or { - (3) - } { +
(4) + } of this section, no further billing or collection
activities shall be undertaken in regard to that obligation.
{ - (5) - } { + (6) + } The telecommunications utility or
local exchange carrier may require the customer to take
pay-per-call telephone blocking service after the initial
obligation has been voided.
**************************** SECTION 50. If Senate Bill 385
becomes law, ORS 646.639 is amended to read:
646.639. (1) As used in subsection (2) of this section:
(a) 'Consumer' means a natural person who purchases or acquires
property, services or credit for personal, family or household
purposes.
(b) 'Consumer transaction' means a transaction between a
consumer and a person who sells, leases or provides property,
services or credit to consumers.
(c) 'Commercial creditor' means a person who in the ordinary
course of business engages in consumer transactions.
(d) 'Credit' means the right granted by a creditor to a
consumer to defer payment of a debt, to incur a debt and defer
its payment, or to purchase or acquire property or services and
defer payment therefor.
(e) 'Debt' means any obligation or alleged obligation arising
out of a consumer transaction.
(f) 'Debtor' means a consumer who owes or allegedly owes an
obligation arising out of a consumer transaction.
(g) 'Debt collector' means any person who by any direct or
indirect action, conduct or practice, enforces or attempts to
enforce an obligation that is owed or due to any commercial
creditor, or alleged to be owed or due to any commercial
creditor, by a consumer as a result of a consumer transaction.
(h) 'Person' means an individual, corporation, trust,
partnership, incorporated or unincorporated association or any
other legal entity.
(2) It shall be an unlawful collection practice for a debt
collector, while collecting or attempting to collect a debt to do
any of the following:
(a) Use or threaten the use of force or violence to cause
physical harm to a debtor or to the debtor's family or property.
(b) Threaten arrest or criminal prosecution.
(c) Threaten the seizure, attachment or sale of a debtor's
property when such action can only be taken pursuant to court
order without disclosing that prior court proceedings are
required.
(d) Use profane, obscene or abusive language in communicating
with a debtor or the debtor's family.
(e) Communicate with the debtor or any member of the debtor's
family repeatedly or continuously or at times known to be
inconvenient to that person with intent to harass or annoy the
debtor or any member of the debtor's family.
(f) Communicate or threaten to communicate with a debtor's
employer concerning the nature or existence of the debt.
(g) Communicate without the debtor's permission or threaten to
communicate with the debtor at the debtor's place of employment
if the place is other than the debtor's residence, except that
the debt collector may:
(A) Write to the debtor at the debtor's place of employment if
no home address is reasonably available and if the envelope does
not reveal that the communication is from a debt collector other
than a provider of the goods, services or credit from which the
debt arose.
(B) Telephone a debtor's place of employment without informing
any other person of the nature of the call or identifying the
caller as a debt collector but only if the debt collector in good
faith has made an unsuccessful attempt to telephone the debtor at
the debtor's residence during the day or during the evening
between the hours of 6:00 p.m. and 9:00 p.m. The debt collector
may not contact the debtor at the debtor's place of employment
more frequently than once each business week and may not
telephone the debtor at the debtor's place of employment if the
debtor notifies the debt collector not to telephone at the
debtor's place of employment or if the debt collector knows or
has reason to know that the debtor's employer prohibits the
debtor from receiving such communication. For the purposes of
this subparagraph, any language in any instrument creating the
debt which purports to authorize telephone calls at the debtor's
place of employment shall not be considered as giving permission
to the debt collector to call the debtor at the debtor's place of
employment.
(h) Communicate with the debtor in writing without clearly
identifying the name of the debt collector, the name of the
person, if any, for whom the debt collector is attempting to
collect the debt and the debt collector's business address, on
all initial communications. In subsequent communications
involving multiple accounts, the debt collector may eliminate the
name of the person, if any, for whom the debt collector is
attempting to collect the debt, and the term 'various' may be
substituted in its place.
(i) Communicate with the debtor orally without disclosing to
the debtor within 30 seconds the name of the individual making
the contact and the true purpose thereof.
(j) Cause any expense to the debtor in the form of long
distance telephone calls, telegram fees or other charges incurred
by a medium of communication, by concealing the true purpose of
the debt collector's communication.
(k) Attempt to or threaten to enforce a right or remedy with
knowledge or reason to know that the right or remedy does not
exist, or threaten to take any action which the debt collector in
the regular course of business does not take.
(L) Use any form of communication which simulates legal or
judicial process or which gives the appearance of being
authorized, issued or approved by a governmental agency,
governmental official or an attorney at law when it is not in
fact so approved or authorized.
(m) Represent that an existing debt may be increased by the
addition of attorney fees, investigation fees or any other fees
or charges when such fees or charges may not legally be added to
the existing debt.
(n) Collect or attempt to collect any interest or any other
charges or fees in excess of the actual debt unless they are
expressly authorized by the agreement creating the debt or
expressly allowed by law.
(o) Threaten to assign or sell the debtor's account with an
attending misrepresentation or implication that the debtor would
lose any defense to the debt or would be subjected to harsh,
vindictive or abusive collection tactics.
(3) It shall be an unlawful collection practice for a debt
collector, by use of any direct or indirect action, conduct or
practice, to enforce or attempt to enforce an obligation made
void and unenforceable by the provisions of ORS 759.720 { - (2)
to (4) - } { + (3) to (5) + }.
**************************** SECTION 51. If Senate Bill 385
becomes law, ORS 759.900 is amended to read:
759.900. (1) Any telecommunications utility which does, or
causes or permits to be done, any matter, act or thing prohibited
by this chapter or ORS chapter 756, 757 or 758 or omits to do any
act, matter or thing required to be done by such statutes, is
liable to the person injured thereby in the amount of damages
sustained in consequence of such violation. { - If damages are
awarded, the court may also fix and award reasonable attorney
fees at trial and on appeal. - } { + Except as provided in
subsection (2) of this section, the court may award reasonable
attorney fees to the prevailing party in an action under this
section.
(2) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (1) of this section
if the action under this section is maintained as a class action
pursuant to ORCP 32. + }
{ - (2) - } { + (3) + } Any recovery under this section
does not affect recovery by the state of the penalty, forfeiture
or fine prescribed for such violation.
{ - (3) - } { + (4) + } This section does not apply with
respect to the liability of any telecommunications utility for
personal injury or property damage.
**************************** SECTION 52. { + The amendments to
statutes by sections 8 to 51 of this Act apply only to actions
and proceedings that are commenced on or after the effective date
of this Act. + }
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