Chapter 194 Oregon Laws 1999
Session Law
AN ACT
SB 218
Relating to sellers of
travel; creating new provisions; amending ORS 646.200 and 646.608; repealing
ORS 646.203, 646.205, 646.207 and 646.209; and declaring an emergency.
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 646.209 [and 646.608]:
(1) "Accommodations" means the provision of land, sea
or air transportation or a combination of transportation and any goods and
services sold in conjunction with that transportation, including but not
limited to lodging, meals and entertainment.
(2) "Adequate financial security" means a bond
executed by an authorized surety insurer or an irrevocable letter of credit
issued by an insured institution as defined in ORS 706.008 for the benefit of
every person for whom services have not been delivered by the wrongful act of
the seller of travel acting in the course and scope of the seller's occupation
or business or by any official, agent or employee of the seller acting in the
course or scope of that person's employment or agency. The financial security
shall be in an amount not less than $10,000. The financial security shall be
continuous until canceled and shall remain in full force and unimpaired at all
times to comply with this subsection. If the financial security is a bond, the
surety insurer shall give the Director of the Department of Consumer and
Business Services at least 30 days' written notice before it cancels or terminates
its liability under the bond.
[(3)
"Advertise" means to make any representation in conjunction with, or
to effect the sale of, accommodations and includes communication with other
members of the same partnership, corporation, joint venture, association,
organization, group or other entity.]
[(4)] (3) "Consumer" means a person
that purchases accommodations 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 accommodations.
(4)
"Department" means the Department of Consumer and Business Services.
(5) "Director"
means the Director of the Department of Consumer and Business Services.
[(5)] (6) "Seller of travel" or
"seller" means a person that sells, provides, furnishes, contracts
for, arranges or advertises in this state that the person can or may arrange or
has arranged accommodations either separately or in conjunction with other
services.
(7) "State of
Oregon certified association" or "certified association" means
an association of sellers of travel that has been certified by the director as
described in section 5 of this 1999 Act.
SECTION 2. Sections 3 to 7 of this 1999 Act are added
to and made a part of ORS 646.200 to 646.209.
SECTION 3. An association of sellers of travel may
apply to the Director of the Department of Consumer and Business Services for
certification as a certified association by filing an application on a form
approved by the director. The application shall be accompanied by:
(1) A business plan
describing provisions for enforcement of the requirements of ORS 646.200 to
646.209 by the association;
(2) A copy of the governing
rules or bylaws of the association;
(3) A description of the
source of revenue for administration of the association; and
(4) Any other information
required by rule or order of the director.
SECTION 4. (1) An association of sellers of travel
shall be eligible for certification as a certified association if the Director
of the Department of Consumer and Business Services determines that:
(a) The rules or bylaws of
the association require members of the association to:
(A) Maintain adequate
financial security as defined in ORS 646.200 or maintain a client trust
account. A client trust account shall be established and verified as provided
in the rules or bylaws of the association and shall be used solely for the
purpose of depositing and disbursing funds received from consumers for the
purchase of accommodations;
(B) Maintain errors and
omissions insurance;
(C) Participate in a program
for mediation of disputes between sellers of travel and consumers under which
members of the association agree to submit all unresolved consumer complaints
to an independent mediator agreed to by all parties and where costs of the
mediation are paid by the seller, subject to a final determination of costs by
the mediator; and
(D) Comply with a written
code of ethics;
(b) The rules or bylaws of
the association contain provisions for the suspension or revocation of members
of the association who do not comply with the rules or bylaws of the
association or with the provisions of ORS 646.200 to 646.209 or rules adopted by
the director under ORS 646.200 to 646.209; and
(c) The association has
complied with any other requirements for certification as set by rule by the
director.
(2) The code of ethics
referred to in subsection (1) of this section shall set requirements for:
(a) Advertising and
promotion policies;
(b) Disclosure of consumer
rights, responsibilities and risks;
(c) Disclosure of policies
and procedures for refunds to consumers;
(d) Disclosure of the limits
of liability of the seller of travel in all transactions;
(e) Disclosure of mediation rights;
and
(f) Disclosure of actions
filed against the seller of travel and other enforcement actions taken against
the seller of travel as described in subsection (3) of this section.
(3)(a) For purposes of this
subsection:
(A) "Owner" means
a person who owns or controls 10 percent or more of the equity of, or otherwise
has claim to 10 percent or more of the net income of, the seller of travel.
(B) "Principal"
means an owner, an officer of a corporation, a general partner of a partnership
or a sole proprietor of a sole proprietorship.
(b) The disclosure required
under subsection (2)(f) of this section shall include whether the seller of
travel or any principal of the seller of travel, or any other seller of travel
owned or managed by the seller of travel or by any principal of the seller of
travel:
(A) Has had entered against
the seller of travel or principal any judgment, including a stipulated
judgment, or order or has made a plea of nolo contendere;
(B) Is the subject of an
order of any federal, state or local administrative agency denying, suspending
or revoking any license or other indicator of authority to engage in business
as a seller of travel;
(C) Is subject to any civil
penalties imposed by any federal, state or local administrative agency;
(D) Has been the subject of
any civil action involving allegations of financial misconduct and damages in
an amount of $1,000 or more, or a lower amount adopted by the director by rule.
For purposes of this subparagraph, "civil action" includes actions filed
in any court, arbitration or alternative dispute resolution proceedings and
administrative actions initiated by a state, a subdivision of a state, the
United States or any agency of the United States; or
(E) Has been convicted of
any criminal violation.
(c) Actions described in
paragraph (b) of this subsection must be disclosed only if they occur:
(A) In connection with the
conduct of business as a seller of travel; and
(B) During the period
beginning 10 years prior to the date the disclosure is made.
(d) The disclosures
described under this subsection shall identify:
(A) The person, the court or
the federal, state or local administrative agency rendering the judgment,
order, civil penalty or conviction or before which the plea of nolo contendere
was made;
(B) The person, the court or
the federal, state or local administrative agency that filed the civil action
or with which any civil action has been filed;
(C) The docket number, if
any, of the action;
(D) The date of the
judgment, order, civil penalty, conviction or plea;
(E) The date and location of
the filing of the civil action;
(F) The location where the
judgment, order, civil penalty or record of conviction or plea was filed or was
imposed; and
(G) The nature of the case,
civil action or judgment.
(4) The director by rule may
establish additional requirements for certification as a certified association.
SECTION 5. (1) If the Director of the Department of
Consumer and Business Services determines that an association of sellers of
travel that has applied for certification under section 4 of this 1999 Act has
satisfied the requirements of ORS 646.200 to 646.209 and rules adopted by the
director under ORS 646.200 to 646.209, the director shall certify the
association as a State of Oregon certified association.
(2)(a) Certification under
this section shall remain in effect until the certificate is surrendered by the
association or revoked or suspended by the director as provided in section 6 of
this 1999 Act.
(b) A certificate issued
under subsection (1) of this section need not be renewed.
(3) The director by rule
shall provide for periodic review of the operation of each certified
association. The review shall be conducted at least once every 24 months and
shall be designed to determine whether the certified association is complying
with the provisions of ORS 646.200 to 646.209, with rules adopted by the
director under ORS 646.200 to 646.209 and with the rules, bylaws and business
plan of the certified association. The director may assess the association for
the actual and reasonable costs of the review.
SECTION 6. (1) The Director of the Department of
Consumer and Business Services may deny certification or suspend or revoke any
certification issued pursuant to section 5 of this 1999 Act if the director
finds that:
(a) The business plan of the
association does not satisfy the requirements of section 3 of this 1999 Act;
(b) The association has
violated any provision of ORS 646.200 to 646.209, any rule adopted by the
director under ORS 646.200 to 646.209 or any order of the director; or
(c) The association has
violated or is not complying with its rules, bylaws or business plan.
(2) If the director proposes
to deny, suspend or revoke a certificate, an opportunity for a hearing shall be
accorded as provided in ORS 183.310 to 183.550.
(3) Judicial review of
orders under subsection (2) of this section shall be as provided in ORS 183.310
to 183.550.
SECTION 7. (1) A person shall not claim membership in
a certified association or utilize any logo or other indicia of membership in a
certified association unless the person is a member in good standing of the
certified association.
(2) Prior to taking any
enforcement action under ORS 646.608, the Attorney General may refer any
complaint alleging violation of any provision of ORS 646.200 to 646.209 or any
rule adopted by the director under ORS 646.200 to 646.209 by a member of a certified
association to the member for resolution or mediation.
SECTION 8. (1) Moneys received by the Department of Consumer
and Business Services under ORS 646.216 (1995 Edition) and that remain unspent
in the Consumer and Business Services Fund may be spent by the Director of the
Department of Consumer and Business Services for the administration and
enforcement of ORS 646.200 to 646.209 or disbursed to associations of sellers
of travel who are certified by the director under ORS 646.200 to 646.209.
(2) The director shall adopt
rules specifying the criteria and requirements for disbursing moneys to
certified associations.
SECTION 9.
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 646.203 to 646.209.]
(bb) Violates any
provision of section 7 of this 1999 Act.
(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.
(oo) Violates ORS 822.046.
(pp) Violates ORS 128.001.
(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.
SECTION 10. Section 11 of this 1999 Act is added to and
made a part of ORS chapter 332.
SECTION 11. Each district school board shall adopt
policies governing the solicitation and sale of travel services to students
enrolled in kindergarten through grade 12. The policies shall address the
solicitation and sale of travel services to students on school property under
the jurisdiction of the school district, at activities under the jurisdiction
of the school district and at interscholastic activities administered by a
voluntary organization approved by the State Board of Education under ORS
339.430.
SECTION 12. Each district school board shall adopt the
policies described in section 11 of this 1999 Act to be effective as soon as
possible, but not later than the beginning of the 2000-2001 school year.
SECTION 13. ORS 646.203, 646.205, 646.207 and 646.209
are repealed.
SECTION 14. This 1999 Act being necessary for the
immediate preservation of the public peace, health and safety, an emergency is
declared to exist, and this 1999 Act takes effect on its passage.
Approved by the Governor May
21, 1999
Filed in the office of
Secretary of State May 21, 1999
Effective date May 21, 1999
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