Chapter 692 Oregon Laws 1999

Session Law

AN ACT

SB 176

Relating to abandoned vessels; creating new provisions; amending ORS 830.600 and 830.990; and repealing ORS 830.905, 830.910, 830.915, 830.920, 830.925, 830.930 and 830.935.

Be It Enacted by the People of the State of Oregon:

SECTION 1. Sections 2 to 10 of this 1999 Act are added to and made a part of ORS chapter 830.

SECTION 2. As used in sections 2 to 10 of this 1999 Act:

(1) "Boathouse" has the meaning given that term in ORS 830.700.

(2) "Established or attended moorage" means a place where a boat, floating home or boathouse is attached to a pier, piling or marina in such a way as to be secure.

(3) "Floating home" has the meaning given that term in ORS 830.700.

(4) "Law enforcement agency" has the meaning given that term in ORS 98.245.

SECTION 3. (1) A person commits the offense of abandoning a boat, floating home or boathouse if the person leaves a boat, floating home or boathouse on the waters of this state or upon any public or private property except with the permission of the property owner, or at an established or attended moorage or in any area leased for occupation by the Division of State Lands under ORS chapter 274.

(2) The owner of the boat, floating home or boathouse as shown by the records of the State Marine Board shall be considered responsible for the abandonment of the boat, floating home or boathouse in the manner prohibited by this section and shall be liable for the cost of removal and disposition of the abandoned boat, floating home or boathouse.

(3) A boat, floating home or boathouse abandoned in violation of this section is subject to the provisions for removal of an abandoned boat, floating home or boathouse under sections 4 and 5 of this 1999 Act and to being sold or disposed of as provided under ORS 98.245.

SECTION 4. (1) After providing notice required under section 6 of this 1999 Act, a law enforcement agency may take a boat, floating home or boathouse into custody and remove the boat, floating home or boathouse if:

(a) The law enforcement agency has reason to believe the boat, floating home or boathouse is abandoned; and

(b) The boat, floating home or boathouse is left on the waters of this state or upon public or private property for a period in excess of 48 hours without permission of the property owner or authorization by statute or local ordinance.

(2) The authority in this section to remove and take a boat, floating home or boathouse into custody is in addition to any authority to remove and take a boat, floating home or boathouse into custody under section 5 of this 1999 Act.

(3) A boat, floating home or boathouse removed and taken into custody under this section is subject to disposition under ORS 98.245 if the boat, floating home or boathouse is not claimed as provided under ORS 98.245 or returned to the custody of the owner or person entitled to possession.

SECTION 5. (1) A law enforcement agency may immediately take custody of a boat, floating home or boathouse that is disabled, abandoned or left unattended on the waters of this state and that is in such a location as to constitute a hazard or obstruction to other boats, floating homes or boathouses using the waterway.

(2) The State Marine Board, by rule, shall establish additional criteria for determining when a boat, floating home or boathouse on the waters of this state or upon public or private property is subject to being taken into immediate custody under this section.

SECTION 6. If a law enforcement agency proposes to take custody of a boat, floating home or boathouse under section 4 of this 1999 Act, the law enforcement agency shall provide notice and shall provide an explanation of procedures available for obtaining a hearing under section 9 of this 1999 Act and for filing a claim under ORS 98.245. The notice required under this section shall comply with all of the following:

(1) Notice shall be given by affixing a notice to the boat, floating home or boathouse with the required information. The notice shall be affixed to the boat, floating home or boathouse before the boat, floating home or boathouse is taken into custody.

(2) The notice shall state all of the following:

(a) That the boat, floating home or boathouse will be subject to being taken into custody and removed by the law enforcement agency if the boat, floating home or boathouse is not removed before the time set by the law enforcement agency. Unless the boat presents a hazard, the law enforcement agency shall allow a sufficient time before taking the boat into custody to allow a hearing under section 9 of this 1999 Act.

(b) The statute, ordinance or rule under which the law enforcement agency proposes to take custody of the boat, floating home or boathouse.

(c) The place where the boat, floating home or boathouse will be held in custody or the telephone number and address of the law enforcement agency.

(d) That the boat, floating home or boathouse, if taken into custody and removed by the law enforcement agency, will be subject to salvage, towing and storage charges and disposition under ORS 98.245.

(e) That the boat, floating home or boathouse will be sold to satisfy the costs of salvage, towing and storage if the charges are not paid.

(f) That the owner, possessor or person having an interest in the boat, floating home or boathouse has five days, not including holidays, Saturdays or Sundays, to request a hearing before the boat, floating home or boathouse is taken into custody.

(g) That the owner, possessor or person having an interest in the boat, floating home or boathouse may also challenge the reasonableness of any salvage, towing and storage charges at the hearing.

(h) The time within which a hearing must be requested and the method for requesting a hearing.

SECTION 7. If a law enforcement agency takes custody of a boat, floating home or boathouse under section 5 of this 1999 Act, the law enforcement agency shall comply with the provisions of ORS 98.245 for disposition of the boat, floating home or boathouse.

SECTION 8. If there is no boat, floating home or boathouse identification number on a boat, floating home or boathouse and there is no registration number or other markings through which the State Marine Board could identify the owner of the boat, floating home or boathouse, then a law enforcement agency otherwise required to provide notice under section 6 of this 1999 Act is not required to provide such notice and the boat, floating home or boathouse may be removed and disposed of as provided in ORS 98.245.

SECTION 9. A person provided notice under section 6 of this 1999 Act or any other person who reasonably appears to have an interest in the boat, floating home or boathouse may request a hearing under this section to contest the validity of the proposed removal and custody of a boat, floating home or boathouse under section 4 of this 1999 Act by submitting a request for hearing to the law enforcement agency not more than five days after the posting of the notice. The five-day period in this section does not include holidays, Saturdays or Sundays. A hearing under this section shall comply with all of the following:

(1) If the law enforcement agency proposing to remove a boat, floating home or boathouse under section 4 of this 1999 Act receives a request for hearing before the boat, floating home or boathouse is taken into custody and removed, the boat, floating home or boathouse shall not be removed unless the boat, floating home or boathouse constitutes a hazard.

(2) A request for hearing shall be in writing and shall state the grounds upon which the person requesting the hearing believes that the custody and removal of the boat, floating home or boathouse is not justified.

(3) Upon receipt of a request for a hearing under this section, the law enforcement agency shall set a time for the hearing within 72 hours of the receipt of the request and shall provide notice of the hearing to the person requesting the hearing and to the owners of the boat, floating home or boathouse and any lessors or security interest holders shown in the records of the State Marine Board, if not the same as the person requesting the hearing. The 72-hour period in this subsection does not include holidays, Saturdays or Sundays.

(4) If the law enforcement agency finds, after hearing and by substantial evidence on the record, that the custody and removal of a boat, floating home or boathouse was:

(a) Invalid, the law enforcement agency shall order the immediate release of the boat, floating home or boathouse to the owner or person with right of possession.

(b) Valid, the law enforcement agency shall order that the boat, floating home or boathouse be held in custody until the costs of the hearing and all salvage, towing and storage costs are paid by the party claiming the boat, floating home or boathouse. If the boat, floating home or boathouse has not yet been removed, the law enforcement agency shall order its removal.

(5) A person who fails to appear at a hearing under this section is not entitled to another hearing unless the person provides reasons satisfactory to the law enforcement agency for the person's failure to appear.

(6) A law enforcement agency is required to provide only one hearing under this section for each time the law enforcement agency takes a boat, floating home or boathouse into custody and removes the boat, floating home or boathouse or proposes to do so.

(7) A hearing under this section may be used to determine the reasonableness of any charges that may be imposed for salvage, towing and storage of the boat, floating home or boathouse. Salvage, towing and storage charges set by law, ordinance or rule or that comply with law, ordinance or rule are reasonable for purposes of this subsection.

(8) A law enforcement agency shall provide to the person requesting a hearing under this section a written statement of the results of the hearing.

(9) Hearings held under this section may be informal in nature, but the presentation of evidence in a hearing shall be consistent with the presentation of evidence required for contested cases under ORS 183.450.

(10) The hearings officer at a hearing under this section may be an officer, official or employee of the law enforcement agency but shall not have participated in any determination or investigation related to taking into custody and removing the boat, floating home or boathouse that is the subject of the hearing.

(11) The determination of a hearings officer at a hearing under this section is a final order and is subject to appeal to the circuit court for the county in which the boat, floating home or boathouse is located at the time notice is posted under section 6 of this 1999 Act.

SECTION 10. If a hearing is not conducted under section 9 of this 1999 Act and a boat, floating home or boathouse taken into custody under section 6 of this 1999 Act is not reclaimed within 60 days after it is taken into custody, the law enforcement agency with custody of the boat, floating home or boathouse shall dispose of the boat, floating home or boathouse in accordance with ORS 98.245.

SECTION 11. ORS 830.600 is amended to read:

830.600. The provisions of ORS 830.172, 830.200, 830.210 to 830.240, 830.245, 830.250, 830.260, 830.270, 830.375, 830.410, 830.415, 830.420, 830.430 to 830.460, 830.700 to 830.870[, 830.875,] and 830.880 to 830.895 [and 830.905 to 830.935] do not apply to seaplanes as defined in ORS 835.080.

SECTION 12. ORS 830.990 is amended to read:

830.990. (1) A person who violates one of the following provisions of this chapter commits a Class B boating infraction: ORS 830.050, 830.110, 830.175, 830.180, 830.185, 830.195, 830.210, 830.215, 830.220, 830.225, 830.230, 830.235, 830.240, 830.245, 830.250, 830.260, 830.300, 830.315 (2) and (3), 830.335, 830.340, 830.345, 830.350, 830.355, 830.360, 830.365, 830.370, 830.375, 830.410, 830.415, 830.420, 830.475 (4), 830.480, 830.495, 830.710, 830.720, 830.770, 830.775, 830.780, 830.785, 830.795, 830.805, 830.810, 830.825, 830.830, 830.850[,] and 830.855 [and 830.905].

(2) A person who violates one of the following provisions of this chapter commits a Class A infraction: ORS 830.305 and 830.390 and rules adopted thereunder.

(3) A person who violates one of the following [provision] provisions of this chapter commits a Class B misdemeanor: ORS 830.383 and section 3 of this 1999 Act.

(4) A person who violates one of the following provisions of this chapter commits a Class A misdemeanor: ORS 830.035 (2), 830.315 (1), 830.325, 830.475 (1), 830.730 and 830.955 (1).

(5) A person who violates ORS 830.475 (2) commits a Class C felony.

SECTION 13. ORS 830.905, 830.910, 830.915, 830.920, 830.925, 830.930 and 830.935 are repealed.

SECTION 14. Sections 1 to 10 of this 1999 Act, the amendments to ORS 830.600 and 830.990 by sections 11 and 12 of this 1999 Act and the repeal of statutes by section 13 of this 1999 Act apply to any boat, floating home or boathouse abandoned after the effective date of this 1999 Act.

Approved by the Governor July 14, 1999

Filed in the office of Secretary of State July 15, 1999

Effective date October 23, 1999

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