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 3624
Senate Bill 940
Sponsored by Senator KENNEMER, Representative REPINE;
Representatives LUKE, MARKHAM
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 as
introduced.
Modifies travel charter or tour operator registration law.
Modifies list of persons exempted from registration requirement.
Modifies registration procedures.
A BILL FOR AN ACT
Relating to unlawful trade practices; amending ORS 646.200,
646.204, 646.208, 646.212, 646.216 and 646.608.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 646.200 is amended to read:
646.200. As used in ORS 646.200 to 646.218 and 646.608:
(1) 'Adequate { - bond - } { + financial security + } '
means a bond executed by an authorized surety insurer { + , an
irrevocable letter of credit issued by a financial institution as
defined in ORS 706.005 or such other security as the Director of
the Department of Consumer and Business Services may approve by
rule, + }for the benefit of every person for whom services have
not been delivered by the wrongful act of the travel charter or
tour operator acting in the course and scope of the operator's
occupation or business or by any official, agent or employee of
the operator acting in the course or scope of that person's
employment or agency. The
{ - bond - } { + financial security + } shall be in an amount
not less than
{ - $100,000 or any amount equal to 10 percent of the total
revenue of the two highest consecutive months for the travel
charter or tour operator's business during the prior calendar
year, whichever is greater, but in no case shall the bond be more
than $500,000 - } { + $10,000 + }. The { - bond - }
{ + financial security + } shall be continuous until canceled
and shall remain in full force and unimpaired at all times to
comply with this subsection. { - The surety insurer shall give
the director at least 30 days' written notice before it cancels
or terminates its liability under the bond. - }
(2) 'Advertise' means to make any representation in conjunction
with, or to effect the sale of, travel services and includes
communication with other members of the same partnership,
corporation, joint venture, association, organization, group or
other entity.
(3) 'Department' means the Department of Consumer and Business
Services.
(4) 'Director' means the Director of the Department of Consumer
and Business Services.
(5) 'Passenger' means a person { - who - } { + that + }
purchases travel arrangements in Oregon and on whose behalf money
or other consideration has been given to another, including
another member of the same partnership, corporation, joint
venture, association, organization, group or other entity, for
procuring transportation or other travel services.
(6) 'Travel certificate' means a document that represents that
the holder is entitled to air, sea or land transportation at a
discount or reduced price or to purchase air, sea or land
transportation at a discount or reduced price from a specified
source, whether or not the holder is required to pay additional
money or fulfill any requirements in order to use the
certificate.
(7) 'Travel charter or tour operator' means a person
{ - who - } { + that + } sells, provides, furnishes,
contracts for, arranges or advertises in this state that the
person can or may arrange or has arranged air, sea or land
transportation either separately or in conjunction with other
services. 'Travel charter or tour operator' does not include:
(a) An air carrier { + as defined in ORS 756.010 that is in
compliance with all applicable requirements of ORS chapter 756
and with all applicable rules of the Public Utility Commission or
an air taxi service or air charter service + };
(b) An ocean carrier { + or a person licensed to operate ocean
charter vessels under ORS 830.430 to 830.460 that is in
compliance with all applicable requirements of ORS chapter 830
and with all applicable rules of the State Marine Board + };
{ + (c) A person that is a booking agent for a licensed
operator of ocean charter vessels to the extent that the person
books passage for a licensed operator of ocean charter
vessels; + }
{ - (c) - } { + (d) + } A motor carrier { + as defined in
ORS 767.005 that is in compliance with all applicable
requirements of ORS chapter 767 and with all applicable rules of
the Department of Transportation + };
{ - (d) - } { + (e) + } A { - rail carrier - }
{ + railroad as defined in ORS 760.005 + };
{ - (e) - } { + (f) + } A charter { - party carrier - }
{ + service as defined in ORS 767.005 + };
{ - (f) An auto transportation carrier; - }
{ - (g) A person who operates a travel agency business and
meets standards no less than those required on January 1, 1989,
for authorized agents of the Airline Reporting Corporation; - }
{ - (h) - } { + (g) + } A person { - who - }
{ + that + } sells membership in an organization, club or
association that entitles the purchaser to obtain transportation
or other services from a travel charter or tour operator and
{ - who - } { + that + } does not arrange or provide for
transportation;
{ - (i) - } { + (h) + } A public charter operator engaged
in the sale or solicitation of public transportation
{ - who - } { + that + } is complying with regulations of the
United States Department of Transportation;
{ - or - }
{ - (j) - } { + (i) + } A person { - who - } { +
that + }:
(A) Has operated a travel tour or charter business in this
state for at least three consecutive years under the same
ownership or management and name immediately before the
transaction in question;
(B) Has total annual revenue, not including airline
transportation fares, of at least $500,000;
(C) Has a certificate of insurance issued by a company
authorized to conduct an insurance business under the laws of any
state for at least $1 million for errors and omissions; and
(D) Has in effect a surety bond for at least $300,000 to the
benefit of any consumer who has made payment to the person
operating the travel tour or charter business { + ; + }
{ - . - }
{ + (j) A person that:
(A) Is exempt from payment of federal income taxes as a
charitable, fraternal or religious organization;
(B) Has held such tax exempt status for at least one year
preceding the person's activity as a travel tour or charter
business; and
(C) Has engaged primarily in the person's charitable, fraternal
or religious purpose for at least one year preceding the person's
activity as a travel tour or charter business;
(k) A person registered under ORS chapter 704 as an outfitter
and guide that is in compliance with all applicable requirements
of ORS chapter 704 and with all applicable rules of the State
Marine Board;
(L) A private van operator or a person operating privately
owned taxicabs, limousines and other vehicles for hire that are
licensed, controlled and regulated by cities or counties pursuant
to ORS 221.495;
(m) A person operating a motor vehicle in a nonprofit operation
exempt from ORS chapter 767 by operation of ORS 767.022; or
(n) A person that does not receive from any individual
passenger who is a natural person more than $50 in return for the
promise to arrange air, sea or land transportation either
separately or in conjunction with other services. + }
SECTION 2. ORS 646.204 is amended to read:
646.204. (1) At or prior to the time a person or passenger
makes full or partial payment for air, sea or land transportation
or any other services offered by the travel charter or tour
operator in conjunction with such transportation, the operator
shall furnish to the passenger or person making the payment a
written statement conspicuously setting forth the following
information:
(a) The name, registration number, business address and
telephone number of the travel charter or tour operator;
(b) The telephone number of the Department of Consumer and
Business Services where the consumer can confirm that the travel
charter or tour operator's registration is valid and current;
(c) The amount paid, the date of such payment, the purpose of
the payment made and an itemized statement of the balance due, if
any;
(d) The location and number of the trust account or
{ - bond - } { + adequate financial security + } required by
ORS 646.208;
(e) The name of the carrier with whom the travel charter or
tour operator has contracted to provide the transportation, the
type of equipment contracted and the date, time and place of each
departure;
(f) The conditions, if any, upon which the contract between the
travel charter or tour operator and the passenger may be
canceled, and the rights and obligations of all parties in the
event of such cancellation;
(g) The name and address of a registered agent authorized to
accept service on behalf of the travel charter or tour operator;
and
(h) A statement in eight-point boldfaced type in substantially
the following form:
_________________________________________________________________
If transportation or other services are canceled by the travel
charter or tour operator, all sums paid to the travel charter or
tour operator for services not performed in accordance with the
contract between the travel charter or tour operator and the
passenger will be refunded to the passenger or the party who
contracted for the passenger within 14 days after the
cancellation by the travel charter or tour operator unless
mutually acceptable alternative travel arrangements are provided.
_________________________________________________________________
(2) The information required by subsection (1)(e) of this
section shall be provided only at the time of final payment.
SECTION 3. ORS 646.208 is amended to read:
646.208. (1) Except as provided in subsection (3) of this
section, a travel charter or tour operator shall deposit 90
percent of all sums received for transportation or any other
services offered by the travel charter or tour operator in
conjunction with such transportation in a trust account in a
federally insured financial institution, as defined in ORS
706.005, located in this state.
(2) The trust account required by this section shall be created
and maintained for the benefit of the passengers paying money to
the travel charter or tour operator. The travel charter or tour
operator shall not in any manner encumber the corpus of the
account and shall not withdraw money except:
(a) In an amount equal to partial or full payment for the
services contracted for the passengers to the carrier or person
providing the other services offered by the travel charter or
tour operator; or
(b) To make the refunds as required by ORS 646.206 or as
provided for by written contract between the travel charter or
tour operator and passengers. A travel charter or tour operator
may withdraw from the account any interest earned and credited to
the trust account for the sole benefit of the travel charter or
tour operator after all services have been provided as
contracted.
(3) A travel charter or tour operator, instead of maintaining a
trust account as provided in subsections (1) and (2) of this
section, may maintain { - an adequate bond - } { + adequate
financial security + }, as defined in ORS 646.200.
{ + (4) Any person having a right of action against a travel
charter or tour operator shall have a right of action under the
financial security as defined in ORS 646.200, but must file a
claim against the financial security not later than 90 days after
the date that the activity giving rise to the cause of action
occurred. + }
SECTION 4. ORS 646.212 is amended to read:
646.212. A travel charter or tour operator is exempt from ORS
646.208 if a written agreement exists between the travel charter
or tour operator and a person who meets the requirements of ORS
646.200 { - (7)(j) - } { + (7)(i) + } to provide full service
in the event the travel charter or tour operator defaults in
providing services to passengers, and the travel charter or tour
operator states the existence of this agreement in all of its
promotional brochures.
SECTION 5. ORS 646.216 is amended to read:
646.216. (1) A travel charter or tour operator shall file a
registration statement with the Department of Consumer and
Business Services before conducting business in this state. The
department by rule shall establish a registration system for
travel charter or tour operators. The system shall provide for
{ - annual - } renewals of registrations.
(2) Applications for registration or renewal shall be in
writing { - , under oath, on a form prescribed by the
department - } and shall be accompanied by a fee { - in an
amount to be established by the director by rule - } { + of
$100 + }.
(3) The registration statement shall contain information that
the Director { + of the Department of Consumer and Business
Services + } requires and that is consistent with provisions of
ORS 646.200 to 646.218 including, but not limited to:
(a) The name, telephone number and address of the travel
charter or tour operator, including the name under which the
operator is doing or intending to do business, if different from
the name of the operator { + ; + } { - . - }
(b) The name and address of any owner or the chief executive
and operating officers of the travel charter or tour operator
business { + ; + } { - . - }
(c) The name and address of the surety insurer { + , financial
institution or other person + } issuing any { - surety bond
issued - } { + financial security required + } under ORS 646.200
to 646.218 and the name and address of the financial institution
holding any account required under ORS 646.208 and the account
number { + ; + } { - . - }
(d) The name and address of a registered agent authorized to
accept service on behalf of the travel charter or tour
operator { + ; and + } { - . - }
(e) If the operator is a wholesaler, a copy of all travel
certificates, if any, which are or will be sold, marketed or
distributed to any person or entity by the operator.
(4) The registration statement shall also contain either:
(a) A full and complete disclosure of any litigation or
unresolved complaint filed with a governmental authority of this
state, any other state or the United States relating to the
operation of the travel charter or tour operator; or
(b) A notarized affidavit stating that there has been no
litigation or unresolved complaint filed with a governmental
authority of this state, any other state or the United States
relating to the operation of the travel charter or tour operator.
(5) { + + } { - Except as provided in this subsection, - }
The travel charter or tour operator shall update a registration
statement not later than the 30th day after the date on which a
change in the information required to be listed on the statement
occurs. { - The travel charter or tour operator shall update a
registration statement not later than 10 days before there is a
change in any information required under subsection (3)(a) of
this section. - }
(6) { + + }Each travel charter or tour operator registering
under this section shall maintain a copy of the registration
statement in the operator's files. The travel charter or tour
operator shall allow a consumer { + , the director or the
Department of Justice + } to inspect the registration statement
upon request.
(7) If the director receives a registration statement that
complies with this section and any rules of the director, the
director shall register the travel charter or tour operator.
(8) Nothing in ORS 646.200 to 646.218 { + + }shall prevent
the voluntary registration, for a nominal fee determined by the
director, of a business that offers the same or similar services
in this state as a travel charter or tour operator but that is
not a travel charter or tour operator as defined in ORS 646.200.
{ - (9) The Department of Consumer and Business Services, by
rule, may establish and collect fees determined by the department
as necessary for the administration and enforcement of ORS
646.200 to 646.218. - }
{ - (10) - } { + (9) + } All moneys received by the
Department of Consumer and Business Services under ORS 646.200 to
646.218 { + + }shall be paid into the Consumer and Business
Services Fund and are appropriated continuously to the department
for the administration and enforcement of ORS 646.200 to 646.218.
SECTION 6. ORS 646.608 is amended to read:
646.608. (1) A person engages in an unlawful practice when in
the course of the person's business, vocation or occupation the
person does any of the following:
(a) Passes off real estate, goods or services as those of
another.
(b) Causes likelihood of confusion or of misunderstanding as to
the source, sponsorship, approval, or certification of real
estate, goods or services.
(c) Causes likelihood of confusion or of misunderstanding as to
affiliation, connection, or association with, or certification
by, another.
(d) Uses deceptive representations or designations of
geographic origin in connection with real estate, goods or
services.
(e) Represents that real estate, goods or services have
sponsorship, approval, characteristics, ingredients, uses,
benefits, quantities or qualities that they do not have or that a
person has a sponsorship, approval, status, qualification,
affiliation, or connection that the person does not have.
(f) Represents that real estate or goods are original or new if
they are deteriorated, altered, reconditioned, reclaimed, used or
secondhand.
(g) Represents that real estate, goods or services are of a
particular standard, quality, or grade, or that real estate or
goods are of a particular style or model, if they are of another.
(h) Disparages the real estate, goods, services, property or
business of a customer or another by false or misleading
representations of fact.
(i) Advertises real estate, goods or services with intent not
to provide them as advertised, or with intent not to supply
reasonably expectable public demand, unless the advertisement
discloses a limitation of quantity.
(j) Makes false or misleading representations of fact
concerning the reasons for, existence of, or amounts of price
reductions.
(k) Makes false or misleading representations concerning credit
availability or the nature of the transaction or obligation
incurred.
(L) Makes false or misleading representations relating to
commissions or other compensation to be paid in exchange for
permitting real estate, goods or services to be used for model or
demonstration purposes or in exchange for submitting names of
potential customers.
(m) Performs service on or dismantles any goods or real estate
when not authorized by the owner or apparent owner thereof.
(n) Solicits potential customers by telephone or door to door
as a seller unless the person provides the information required
under ORS 646.611.
(o) In a sale, rental or other disposition of real estate,
goods or services, gives or offers to give a rebate or discount
or otherwise pays or offers to pay value to the customer in
consideration of the customer giving to the person the names of
prospective purchasers, lessees, or borrowers, or otherwise
aiding the person in making a sale, lease, or loan to another
person, if earning the rebate, discount or other value is
contingent upon occurrence of an event subsequent to the time the
customer enters into the transaction.
(p) Makes any false or misleading statement about a prize,
contest or promotion used to publicize a product, business or
service.
(q) Promises to deliver real estate, goods or services within a
certain period of time with intent not to deliver them as
promised.
(r) Organizes or induces or attempts to induce membership in a
pyramid club.
(s) Makes false or misleading representations of fact
concerning the offering price of, or the person's cost for real
estate, goods or services.
(t) Concurrent with tender or delivery of any real estate,
goods or services fails to disclose any known material defect or
material nonconformity.
(u) Engages in any other unfair or deceptive conduct in trade
or commerce.
(v) Violates any of the provisions relating to auction sales,
auctioneers or auction marts under ORS 698.640, whether in a
commercial or noncommercial situation.
(w) Violates the provisions of ORS 803.375, 803.385 or 815.410
to 815.430.
(x) Violates ORS 646.850 (1).
(y) Violates any requirement of ORS 646.661 to 646.686.
(z) Violates the provisions of ORS 128.801 to 128.898.
(aa) Violates ORS 646.883 or 646.885.
(bb) Violates any provision of ORS 646.202, 646.204, 646.206,
646.208, 646.212 { + , + } { - or - } 646.214 { + or
646.216 + }.
(cc) Violates ORS 646.569.
(dd) Violates the provisions of ORS 646.859.
(ee) Violates ORS 759.290.
(ff) Violates ORS 646.872.
(gg) Violates ORS 646.553 or 646.557 or any rule adopted
pursuant thereto.
(hh) Violates ORS 646.563.
(ii) Violates ORS 759.690 or any rule adopted pursuant thereto.
(jj) Violates the provisions of ORS 759.705, 759.710 and
759.720 or any rule adopted pursuant thereto.
(kk) Violates ORS 646.892 or 646.894.
(LL) Violates any provision of ORS 646.249 to 646.259.
(mm) Violates ORS 646.384.
(nn) Violates ORS 646.871.
(2) A representation under subsection (1) of this section or
ORS 646.607 may be any manifestation of any assertion by words or
conduct, including, but not limited to, a failure to disclose a
fact.
(3) In order to prevail in an action or suit under ORS 646.605
to 646.652, a prosecuting attorney need not prove competition
between the parties or actual confusion or misunderstanding.
(4) No action or suit shall be brought under subsection (1)(u)
of this section unless the Attorney General has first established
a rule in accordance with the provisions of ORS 183.310 to
183.550 declaring the conduct to be unfair or deceptive in trade
or commerce.
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