71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
Enrolled
House Bill 3007
Sponsored by Representatives WITT, MERKLEY; Representative
DEVLIN, Senators CASTILLO, COURTNEY
CHAPTER ................
AN ACT
Relating to business relationships; creating new provisions;
amending ORS 459.045, 459.995, 465.012, 646.563, 646.608,
646.638, 646.850, 671.610, 701.100 and 701.102; repealing
section 1, chapter 108, Oregon Laws 2001 (Enrolled House Bill
2194), and sections 1 and 2, chapter 380, Oregon Laws 2001
(Enrolled Senate Bill 320); and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) The Legislative Assembly finds that mercury
is a potent neurotoxin that can cause long-lasting health
problems. In order to reduce the amount of mercury entering the
environment from the solid waste stream:
(a) A manufacturer of thermostats that contain mercury:
(A) Shall make available a program for the collection of such
thermostats to be managed as a universal waste.
(B) Shall provide incentives for and sufficient information to
purchasers of thermostats to ensure that the mercury contained in
the thermostats does not become part of the solid waste stream.
(C) Is not liable for improper disposal of thermostats
containing mercury by consumers if the manufacturer complies with
this paragraph.
(b) A person may not crush a motor vehicle without first
attempting to remove mercury light switches that are mounted on
the hood or trunk of the vehicle. The mercury light switches
removed from motor vehicles under this paragraph are subject to
the universal waste management standards adopted by the
Environmental Quality Commission.
(2) For purposes of this section, 'thermostat' means a device
commonly used to sense and, through electrical communication with
heating, cooling or ventilation equipment, control room
temperature. + }
SECTION 2. { + Section 3 of this 2001 Act is added to and made
a part of ORS chapter 455. + }
SECTION 3. { + (1) The Director of the Department of Consumer
and Business Services shall, by rule:
(a) Prohibit the installation of thermostats that contain
mercury in commercial and residential buildings. The director may
not, under rules developed pursuant to this paragraph, prohibit
the installation of thermostats that contain mercury on
industrial equipment used for safety controls.
(b) Establish a uniform notification and process for disposal
and delivery of mercury thermostats by persons installing
Enrolled House Bill 3007 (HB 3007-B) Page 1
heating, ventilation or air conditioning systems. Persons
installing heating, ventilation or air conditioning systems shall
dispose of mercury thermostats according to the process
established pursuant to this paragraph.
(2) As used in this section, 'thermostat' means a device
commonly used to sense and, through electrical communication with
heating, cooling or ventilation equipment, control room
temperature. + }
SECTION 4. { + The Director of the Department of Consumer and
Business Services shall make any rules adopted:
(1) Under section 3 (1)(a) of this 2001 Act effective on and
after January 1, 2006; and
(2) Under section 3 (1)(b) of this 2001 Act effective on and
after January 1, 2003. + }
SECTION 5. { + (1) A person may not sell or offer for sale a
novelty item that contains encapsulated liquid mercury.
(2) Upon notification to the Department of Environmental
Quality by any person that a novelty item for sale in the state
contains encapsulated liquid mercury, the department shall notify
persons identified as selling the novelty item of the prohibition
on the sale of such items.
(3) The department may impose a penalty as provided in ORS
459.995 if a person continues to sell a novelty item that
contains encapsulated liquid mercury after notification of the
prohibition on the sale of such items. + }
SECTION 6. { + Section 7 of this 2001 Act is added to and made
a part of the Oregon Vehicle Code. + }
SECTION 7. { + A person commits the offense of providing a
vehicle with a mercury light switch if the person sells or offers
for sale in this state a vehicle manufactured after January 1,
2006, that contains a mercury light switch mounted on the hood or
trunk. + }
SECTION 8. ORS 459.995 is amended to read:
459.995. (1) Except as provided in subsection (2) of this
section, in addition to any other penalty provided by law:
(a) Any person who violates ORS 459.205, 459.270, 459.272,
459.386 to 459.405, 459.705 to 459.790, 459A.005 to 459A.620,
459A.675 to 459A.685 { + or section 5 of this 2001 Act + } or
any rule or order of the Environmental Quality Commission
pertaining to the disposal, collection, storage or reuse or
recycling of solid wastes, as defined by ORS 459.005, or any rule
or order pertaining to the disposal, storage or transportation of
waste tires, as defined by ORS 459.705, { + or any rule or order
pertaining to the sale of novelty items that contain encapsulated
liquid mercury, + } shall incur a civil penalty not to exceed
$10,000 a day for each day of the violation.
(b) Any person who violates the provisions of ORS 459.420 to
459.426 shall incur a civil penalty not to exceed $500 for each
violation. Each battery that is disposed of improperly shall be a
separate violation. Each day an establishment fails to post the
notice required under ORS 459.426 shall be a separate violation.
(c) For each day a city, county or metropolitan service
district fails to provide the opportunity to recycle as required
under ORS 459A.005, the city, county or metropolitan service
district shall incur a civil penalty not to exceed $500 for each
violation.
(2) Any product manufacturer or package manufacturer who
violates ORS 459A.650 to 459A.665 or any rule adopted under ORS
459A.650 to 459A.665 shall incur a civil penalty not to exceed
$1,000 per day for each day of the violation. A violation of ORS
Enrolled House Bill 3007 (HB 3007-B) Page 2
459A.650 to 459A.665 shall not be subject to additional penalties
under subsection (1) of this section.
(3) Any civil penalty authorized by subsection (1) or (2) of
this section shall be imposed in the manner provided by ORS
468.135.
SECTION 9. ORS 465.012 is amended to read:
465.012. (1) The Department of Environmental Quality shall
provide technical assistance to toxics users and conditionally
exempt generators. In identifying the users and generators to
which the department shall give priority in providing technical
assistance, the department shall consider at least the following:
(a) Amounts and toxicity of toxics used and amounts of
hazardous waste disposed of, discharged and released;
(b) Potential for current and future toxics use reduction and
hazardous waste reduction; and
(c) The toxics related exposures and risks posed to public
health, safety and the environment.
(2) In providing technical assistance, the department shall
give priority to assisting toxics users and conditionally exempt
generators in developing and implementing an adequate toxics use
reduction and hazardous waste reduction plan as established under
ORS 465.015. The assistance may include but need not be limited
to:
(a) Information clearinghouse activities;
(b) Telephone hotline assistance;
(c) Toxics use reduction and hazardous waste reduction training
workshops;
(d) Establishing a technical publications library;
(e) The development of a system to evaluate the effectiveness
of toxics use reduction and hazardous waste reduction measures;
(f) The development of a recognition program to publicly
acknowledge toxics users and conditionally exempt generators who
develop and implement successful toxics use reduction and
hazardous waste reduction plans; and
(g) Direct on-site assistance to toxics users and conditionally
exempt generators in developing the plans.
(3) The department shall:
(a) Coordinate its technical assistance efforts with industry
trade associations and local colleges and universities as
appropriate.
(b) Follow up with toxics users who receive technical
assistance to determine whether the user or generator implemented
a toxics use reduction and hazardous waste reduction plan.
{ + (c) Coordinate and work with local agencies to provide
technical assistance to businesses involved in the crushing of
motor vehicles concerning the safe removal and proper disposal of
mercury light switches from motor vehicles. + }
(4) Technical assistance services provided under this section
shall not result in inspections or other enforcement actions
unless there is reasonable cause to believe there exists a clear
and immediate danger to the public health and safety or to the
environment. The Environmental Quality Commission may develop
rules to carry out the intent of this subsection.
SECTION 10. { + The Department of Environmental Quality shall
coordinate with and encourage entities such as associations
representing motor vehicle repair shops to offer to the public
the replacement and recycling of motor vehicle mercury light
switches. The department shall make available to the public
information concerning services to replace and recycle motor
vehicle mercury light switches. + }
Enrolled House Bill 3007 (HB 3007-B) Page 3
SECTION 11. 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.
Enrolled House Bill 3007 (HB 3007-B) Page 4
(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) Manufactures mercury fever thermometers.
(x) Sells or supplies mercury fever thermometers unless the
thermometer is required by federal law, or is:
(A) Prescribed by a person licensed under ORS chapter 677; and
(B) Supplied with instructions on the careful handling of the
thermometer to avoid breakage and on the proper cleanup of
mercury should breakage occur.
(y) Sells a thermostat that contains mercury unless the
thermostat is labeled in a manner to inform the purchaser that
mercury is present in the thermostat and that the thermostat may
not be disposed of until the mercury is removed, reused, recycled
or otherwise managed to ensure that the mercury does not become
part of the solid waste stream or wastewater. For purposes of
this paragraph, 'thermostat' means a device commonly used to
sense and, through electrical communication with heating, cooling
or ventilation equipment, control room temperature. + }
{ - (w) - } { + (z) + } Violates the provisions of ORS
803.375, 803.385 or 815.410 to 815.430.
{ - (x) - } { + (aa) + } Violates ORS 646.850 (1).
{ - (y) - } { + (bb) + } Violates any requirement of ORS
646.661 to 646.686.
{ - (z) - } { + (cc) + } Violates the provisions of ORS
128.801 to 128.898.
{ - (aa) - } { + (dd) + } Violates ORS 646.883 or 646.885.
{ - (bb) - } { + (ee) + } Violates any provision of ORS
646.195.
{ - (cc) - } { + (ff) + } Violates ORS 646.569.
{ - (dd) - } { + (gg) + } Violates the provisions of ORS
646.859.
{ - (ee) - } { + (hh) + } Violates ORS 759.290.
{ - (ff) - } { + (ii) + } Violates ORS 646.872.
{ - (gg) - } { + (jj) + } Violates ORS 646.553 or 646.557
or any rule adopted pursuant thereto.
{ - (hh) - } { + (kk) + } Violates ORS 646.563.
{ - (ii) - } { + (LL) + } Violates ORS 759.690 or any rule
adopted pursuant thereto.
{ - (jj) - } { + (mm) + } Violates the provisions of ORS
759.705, 759.710 and 759.720 or any rule adopted pursuant
thereto.
{ - (kk) - } { + (nn) + } Violates ORS 646.892 or 646.894.
Enrolled House Bill 3007 (HB 3007-B) Page 5
{ - (LL) - } { + (oo) + } Violates any provision of ORS
646.249 to 646.259.
{ - (mm) - } { + (pp) + } Violates ORS 646.384.
{ - (nn) - } { + (qq) + } Violates ORS 646.871.
{ - (oo) - } { + (rr) + } Violates ORS 822.046.
{ - (pp) - } { + (ss) + } Violates ORS 128.001.
{ - (qq) - } { + (tt) + } Violates ORS 646.649 (2) to (4).
{ - (rr) - } { + (uu) + } Violates ORS 646.877 (2) to (5).
{ - (ss) - } { + (vv) + } Violates ORS 87.686.
{ - (tt) - } { + (ww) + } Violates ORS 646.651.
{ - (uu) - } { + (xx) + } Violates ORS 646.879.
(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 12. { + The amendments to ORS 646.608 by section 11 of
this 2001 Act become operative on July 1, 2002. + }
SECTION 13. ORS 646.608, as amended by section 11 of this 2001
Act, 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.
Enrolled House Bill 3007 (HB 3007-B) Page 6
(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) Manufactures mercury fever thermometers.
(x) Sells or supplies mercury fever thermometers unless the
thermometer is required by federal law, or is:
(A) Prescribed by a person licensed under ORS chapter 677; and
(B) Supplied with instructions on the careful handling of the
thermometer to avoid breakage and on the proper cleanup of
mercury should breakage occur.
(y) Sells a thermostat that contains mercury unless the
thermostat is labeled in a manner to inform the purchaser that
mercury is present in the thermostat and that the thermostat may
not be disposed of until the mercury is removed, reused, recycled
or otherwise managed to ensure that the mercury does not become
part of the solid waste stream or wastewater. For purposes of
this paragraph, 'thermostat' means a device commonly used to
sense and, through electrical communication with heating, cooling
or ventilation equipment, control room temperature.
Enrolled House Bill 3007 (HB 3007-B) Page 7
{ + (z) Sells or offers for sale a motor vehicle manufactured
after January 1, 2006, that contains mercury light switches. + }
{ - (z) - } { + (aa) + } Violates the provisions of ORS
803.375, 803.385 or 815.410 to 815.430.
{ - (aa) - } { + (bb) + } Violates ORS 646.850 (1).
{ - (bb) - } { + (cc) + } Violates any requirement of ORS
646.661 to 646.686.
{ - (cc) - } { + (dd) + } Violates the provisions of ORS
128.801 to 128.898.
{ - (dd) - } { + (ee) + } Violates ORS 646.883 or 646.885.
{ - (ee) - } { + (ff) + } Violates any provision of ORS
646.195.
{ - (ff) - } { + (gg) + } Violates ORS 646.569.
{ - (gg) - } { + (hh) + } Violates the provisions of ORS
646.859.
{ - (hh) - } { + (ii) + } Violates ORS 759.290.
{ - (ii) - } { + (jj) + } Violates ORS 646.872.
{ - (jj) - } { + (kk) + } Violates ORS 646.553 or 646.557
or any rule adopted pursuant thereto.
{ - (kk) - } { + (LL) + } Violates ORS 646.563.
{ - (LL) - } { + (mm) + } Violates ORS 759.690 or any rule
adopted pursuant thereto.
{ - (mm) - } { + (nn) + } Violates the provisions of ORS
759.705, 759.710 and 759.720 or any rule adopted pursuant
thereto.
{ - (nn) - } { + (oo) + } Violates ORS 646.892 or 646.894.
{ - (oo) - } { + (pp) + } Violates any provision of ORS
646.249 to 646.259.
{ - (pp) - } { + (qq) + } Violates ORS 646.384.
{ - (qq) - } { + (rr) + } Violates ORS 646.871.
{ - (rr) - } { + (ss) + } Violates ORS 822.046.
{ - (ss) - } { + (tt) + } Violates ORS 128.001.
{ - (tt) - } { + (uu) + } Violates ORS 646.649 (2) to (4).
{ - (uu) - } { + (vv) + } Violates ORS 646.877 (2) to (5).
{ - (vv) - } { + (ww) + } Violates ORS 87.686.
{ - (ww) - } { + (xx) + } Violates ORS 646.651.
{ - (xx) - } { + (yy) + } Violates ORS 646.879.
(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 14. { + The amendments to ORS 646.608 by section 13 of
this 2001 Act become operative on January 1, 2006. + }
SECTION 15. ORS 646.563 is amended to read:
646.563. A person { - is in violation of ORS 646.608
(1)(hh) - } { + engages in an unlawful practice + } if, during a
telephone solicitation, the called party states a desire not to
be called again and the person making the telephone solicitation
makes a subsequent telephone solicitation of the called party at
that number.
SECTION 16. ORS 646.638 is amended to read:
Enrolled House Bill 3007 (HB 3007-B) Page 8
646.638. (1) Except as provided in subsection (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) 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.
(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.
(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.
(7) Notwithstanding subsection (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.
(8) This section does not apply to any method, act or practice
described in ORS 646.608 { - (1)(w) - } { + (1)(z) + }.
Actions for violation of laws relating to odometers are provided
under ORS 815.410 and 815.415.
SECTION 17. { + The amendments to ORS 646.638 by section 16 of
this 2001 Act become operative on July 1, 2002. + }
SECTION 18. ORS 646.638, as amended by section 16 of this 2001
Act, is amended to read:
646.638. (1) Except as provided in subsection (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,
Enrolled House Bill 3007 (HB 3007-B) Page 9
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) 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.
(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.
(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.
(7) Notwithstanding subsection (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.
(8) This section does not apply to any method, act or practice
described in ORS 646.608 { - (1)(z) - } { + (1)(aa) + }.
Actions for violation of laws relating to odometers are provided
under ORS 815.410 and 815.415.
SECTION 19. { + The amendments to ORS 646.638 by section 18 of
this 2001 Act become operative on January 1, 2006. + }
SECTION 20. ORS 646.850 is amended to read:
646.850. (1) Any person offering for sale or selling new or
reconditioned telephone handsets or keysets, private branch
exchanges or private automatic branch exchanges of not more than
a 20-station capacity shall disclose clearly, in writing, when
reasonable, before sale all of the following information:
(a) Whether the equipment uses pulse, tone, pulse-or-tone or
other signaling methods.
(b) Whether the equipment can access tone generated services.
(c) Whether the equipment is registered with the Federal
Communications Commission under applicable federal regulations.
(d) The person responsible for repair of the equipment.
(e) Minimum charges, if any, for repairs, handling and
shipping.
(f) The terms of any written warranty offered with the
equipment.
Enrolled House Bill 3007 (HB 3007-B) Page 10
(2) A person who violates subsection (1) of this section
commits an unlawful practice under ORS 646.608 { - (1)(x) - } .
The requirement under subsection (1) of this section is subject
to enforcement and penalty as provided under ORS 646.605 to
646.652.
SECTION 21. { + Section 22 of this 2001 Act is added to and
made a part of ORS chapter 701. + }
SECTION 22. { + The Construction Contractors Board shall
provide an annual notice to each contractor licensed under this
chapter that informs contractors of the rules developed by the
Director of the Department of Consumer and Business Services
pursuant to section 3 of this 2001 Act prohibiting the
installation of thermostats that contain mercury and requiring
proper disposal of thermostats that contain mercury. + }
SECTION 23. ORS 459.045 is amended to read:
459.045. (1) The Environmental Quality Commission shall adopt
reasonable and necessary solid waste management rules governing
the:
(a) Accumulation, storage, collection, transportation and
disposal of solid wastes to prevent vector production and
sustenance, transmission of diseases to humans or animals, air
pollution, pollution of surface or ground waters, and hazards to
service or disposal workers or to the public.
(b) Location of disposal sites, giving consideration to:
(A) The adaptability of each disposal site to the population
served, topography and geology of the area and other
characteristics as they affect protection of ground and surface
waters and air pollution;
(B) Minimum standards of design, management and operation of
disposal sites; and
(C) Salvage operations at disposal sites.
(c) Construction, loading and operation of vehicles used in
performing collection service to prevent the contents of the
vehicles from dropping, sifting, leaking or escaping onto public
highways.
(d) Definition of other 'wastes' subject to regulation under
ORS 459.005 to 459.105, 459.205 to 459.385 and 459.992 (1) and
(2).
(e) Closure and post-closure maintenance of land disposal
sites.
(2) The commission may by rule:
(a) Exempt a class of land disposal sites other than those
receiving domestic solid waste from the requirement to provide
financial assurance under ORS 459.272; or
(b) Establish criteria that a land disposal site must meet to
be exempted from the requirement to provide financial assurance
under ORS 459.272.
(3) The commission shall adopt rules on other subjects as
necessary to carry out { + : + }
{ + (a) + } ORS 459.005 to 459.105 and 459.205 to 459.385.
{ + (b) ORS 646.608 (1)(y). Rules adopted under this
paragraph shall, to the greatest extent practicable, be
consistent with the labeling requirements of other states. + }
(4) The commission shall adopt rules which have modified or
limited application in different geographic areas of the state
when special conditions prevail in specified geographic areas.
Special conditions that shall be considered include, but are not
limited to, climatic conditions, zone classification of the area,
population characteristics, methods and costs of solid waste
management, solid waste management plans and other conditions in
Enrolled House Bill 3007 (HB 3007-B) Page 11
the area. Modifications or limitations shall not be unreasonable,
arbitrary or inimical to the policy and purposes of ORS 459.005
to 459.105 and 459.205 to 459.385.
(5) All rules adopted under this section shall be adopted after
public hearing and in accordance with ORS 183.310 to 183.550.
(6) Unless a rule adopted under this section is adopted
pursuant to the authority granted by ORS 183.335 (5), the
commission shall mail copies of the proposed rules to all persons
who have requested such copies. The copies shall be mailed at
least 30 days prior to the hearing required by subsection (5) of
this section.
SECTION 24. ORS 701.100 is amended to read:
701.100. (1) The failure of a contractor to comply with the
provisions of this section and ORS 656.021, 657.665, 670.600,
701.035, 701.065 to 701.075, 701.135, 701.240 and 701.250 or to
be in conformance with the provisions of ORS chapter 316, 656 or
657 { + or ORS chapter 455 and the rules adopted thereunder + }
is a basis for suspension of the contractor's license, revocation
of the contractor's license, refusal to issue or reissue a
contractor's license, assessment of a civil penalty as set forth
in ORS 701.992 or a combination of these sanctions.
(2) Any action against a contractor under this section shall be
conducted in conformance with the provisions of ORS 183.413 to
183.497.
(3) When imposing a sanction for a violation of ORS 701.055
(1), if the Construction Contractors Board does not have evidence
that a contractor has worked without a license, and no consumer
has suffered damages from the work of the contractor, the civil
penalty imposed by the Construction Contractors Board shall not
exceed $1,000.
SECTION 25. { + Section 1, chapter 108, Oregon Laws 2001
(Enrolled House Bill 2194) (amending ORS 671.610), and sections 1
(amending ORS 701.102) and 2, chapter 380, Oregon Laws 2001
(Enrolled Senate Bill 320), are repealed. + }
SECTION 26. ORS 671.610 is amended to read:
671.610. (1) { + In addition to any civil penalty assessed
under ORS 671.720, + } the State Landscape Contractors Board may
suspend, revoke or refuse to issue or renew the license of any
person { - who - } { + that + }:
(a) Has obtained or attempted to obtain a license under ORS
671.510 to 671.710 by fraud or material misrepresentation;
(b) Has made a material misrepresentation about the quality of
any material or service the person provides;
(c) Has performed defective work;
(d) Has furnished defective materials;
(e) Has made misleading statements when advertising services or
materials;
(f) Has violated a provision of ORS 671.510 to 671.710;
(g) Has had the bond or deposit required by ORS 671.690
terminated, canceled or reduced or withdrawn; or
(h) Has violated a voluntary compliance agreement entered into
under ORS 646.605 to 646.652.
{ - (2) The board may suspend or refuse to license any
corporation, partnership or individual if any individual who is
an owner or officer of the business is or was the owner or
officer of a business that: - }
{ + (2) The board may suspend the license of or refuse to
license a person if the person, or the owner or holder of a
direct or indirect interest in the person, is a business or the
Enrolled House Bill 3007 (HB 3007-B) Page 12
owner or holder of a direct or indirect interest in a business
that: + }
(a) Owes any amount pursuant to a final order or arbitration
award of the board; { - or - }
(b) Owes any amount pursuant to a court order or civil penalty
arising from landscaping or construction business activities in
this or any other state of the United States { - . - } { + ;
(c) Owes any amount to a surety company that has paid money
from the surety bond of a landscaping business; or
(d) Has had a license to operate as a landscaping business
revoked by the landscape contractor licensing agency of any
state.
(3) The board shall adopt rules defining the ownership or
holding of a direct or indirect interest for purposes of
subsection (2) of this section.
(4) The board may hold the suspension or refusal of a license
under subsection (2) of this section in abeyance if the person is
adhering to a board-approved plan for restitution of the amount
owed. + }
{ - (3) - } { + (5) + } { - A person - } { + An
individual + } who has been a sole proprietor, partner { + ,
limited liability company member, limited liability partnership
member + } or corporate officer of a landscaping business the
license of which has been suspended or revoked may be denied a
license if the { - person - } { + individual + } knowingly
participated in the conduct that led to the suspension or
revocation.
{ - (4) - } { + (6) + } A person whose license is revoked
or not renewed pursuant to this section { - shall - }
{ + is + } not { - be - } eligible to apply for a license
under ORS 671.510 to 671.710 until two years after the effective
date of the revocation or of the nonrenewal.
{ - (5) - } { + (7) + } In addition to the remedies of
license denial, suspension, revocation or refusal to renew a
license, when it appears to the board that a person has engaged
in, or is engaging in, any act, practice or transaction
{ - which - } { + that + } violates the provisions of this
chapter, the board may direct the Attorney General to apply to
the court for an injunction restraining the person from violating
the provisions of this chapter.
{ - (6)(a) - } { + (8)(a) + } The board may suspend, revoke
or refuse to reissue a license to a landscape contractor if the
board determines, after notice and opportunity for a hearing,
that the contractor was working with another landscape contractor
or landscape contractors on the same task and work site where one
of the contractors is registered exempt under ORS 671.525 (2)(b)
and the total number of landscape contractors working on the task
exceeded:
(A) Two sole proprietors;
(B) One partnership;
(C) One corporation; or
(D) One limited liability company.
(b) The board may assess a civil penalty as provided under ORS
671.720 (4) for a violation of paragraph (a) of this subsection.
SECTION 27. ORS 701.102 is amended to read:
701.102. (1) The Construction Contractors Board may suspend
{ - a - } { + the + } license of or refuse to license
{ - any corporation, partnership or individual if any individual
who is an owner, shareholder or officer of the business is or was
the owner or officer of a business that: - } { + a person if
Enrolled House Bill 3007 (HB 3007-B) Page 13
the person, or the owner or holder of a direct or indirect
interest in the person, is a business or the owner or holder of a
direct or indirect interest in a business that: + }
(a) Owes any amount pursuant to a final order or arbitration
award of the board;
{ - (b) Has an outstanding final judgment of a court that a
bond under ORS 701.085 would have been subject to; or - }
{ - (c) - } { + (b) + } { - Owes any amount pursuant to a
court order - } { + Owes any amount under final judgment of a
court + } or civil penalty arising from construction business
activities in { + Oregon or + } any other state of the United
States { - . - } { + ; or
(c) Has had a license to operate as a construction contractor
revoked by a construction contractor licensing agency of any
state.
(2) The board may hold the suspension or refusal of a license
under subsection (1) of this section in abeyance if the person is
adhering to a board-approved plan for restitution of the amount
owed.
(3) The board shall adopt rules defining the ownership or
holding of a direct or indirect interest for purposes of
subsection (1) of this section. The rules may not define direct
or indirect interest in a manner that includes the interest of an
investor who has no right to manage a business, including but not
limited to, the interest of:
(a) A person who is solely a minority shareholder in a
corporation;
(b) A member of a manager-managed limited liability company; or
(c) A limited partner in a limited partnership who does not
participate in the control of the business of the limited
partnership. + }
{ - (2) - } { + (4) + } The board may place a contractor on
probation if { + a total of + } three or more claims are filed
{ - against the contractor - } with the board within a 12-month
period { + against the contractor or a former licensed
construction company in which the contractor held at least a 10
percent ownership interest, measured as determined by board
rule + }. A contractor may not be placed on probation unless the
board determines after investigation that it is likely that the
contractor has caused harm to the claimants. The board may
require a contractor that is placed on probation to develop a
corrective action plan, to attend specific classes and to resolve
outstanding claims. The board may require a contractor that is
placed on probation to take any education and training described
under ORS 701.280 and to pass an examination on subjects relating
to business practices and laws affecting construction
contractors. The board shall take action to terminate the
contractor's license if the contractor is unwilling or unable to
comply with the conditions of probation.
SECTION 28. { + Sections 1 to 7, 10, 21 and 22 of this 2001
Act and the amendments to ORS 459.045, 459.995, 465.012, 646.563,
646.850, 671.610 and 701.100 by sections 8, 9, 15, 20, 23, 24 and
26 of this 2001 Act become operative on January 1, 2002. + }
SECTION 29. { + This 2001 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2001 Act takes effect on
its passage. + }
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Enrolled House Bill 3007 (HB 3007-B) Page 14
Passed by House May 29, 2001
Repassed by House July 4, 2001
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate July 3, 2001
...........................................................
President of Senate
Enrolled House Bill 3007 (HB 3007-B) Page 15
Received by Governor:
......M.,............., 2001
Approved:
......M.,............., 2001
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2001
...........................................................
Secretary of State
Enrolled House Bill 3007 (HB 3007-B) Page 16