Chapter 198 Oregon Laws 2001

AN ACT

HB 2201

Relating to landscaping businesses; creating new provisions; and amending ORS 671.550, 671.690 and 671.703.

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

SECTION 1. ORS 671.550 is amended to read:

671.550. (1) The State Landscape Contractors Board may inquire into and inspect:

(a) Any services performed or materials furnished by a licensee under ORS 671.510 to 671.710.

(b) The financial records of a person who it reasonably believes is operating in violation of ORS 671.530.

(c) The services performed or materials furnished by a person who it reasonably believes is operating in violation of ORS 671.530.

(2) Except when used for legal action or [by the board] to determine negligent or improper work under ORS 671.703, the information obtained by an inspection authorized by this section is confidential. However, the board shall furnish copies of any inspection to the licensee or other person that is subjected to [such] an inspection.

SECTION 2. ORS 671.690 is amended to read:

671.690. (1) An applicant for a license as a landscaping business shall file with the State Landscape Contractors Board a surety bond with one or more corporate sureties authorized to do business in this state, or an irrevocable letter of credit issued by an insured institution, as defined in ORS 706.008. The amount of the bond or letter of credit shall be:

(a) $3,000; or

(b) $10,000 for an applicant who constructs fences, decks, arbors, driveways, walkways or retaining walls not in conjunction with landscaping work.

(2) The bond or letter of credit required under subsection (1) of this section shall be conditioned that the applicant pays:

(a) All taxes and contributions due to the State of Oregon;

(b) All persons furnishing labor or material, or renting or supplying equipment to the business;

(c) All amounts that may be adjudged against the business by reason of negligent or improper work or breach of contract in performing any work subject to ORS 671.510 to 671.710; and

(d) All amounts from the bond or deposit the board orders paid under ORS 671.703.

(3) In lieu of the surety bond or letter of credit required under subsection (1) of this section, the landscaping business may file with the board, under the same terms and conditions as when a bond is filed, a deposit in cash or negotiable securities acceptable to the board.

(4) The deposit, [or] bond or letter of credit required by this section [shall] must be continuously on file with the board in the amount required by this section and is for the exclusive purpose of payment of final orders and arbitration awards of the board in accordance with ORS [671.510 to 671.710] 671.703. Upon termination or cancellation of the bond, withdrawal of the deposit or reduction of the deposit, bond[,] or letter of credit [or deposit] to less than the required amount, the licensee shall immediately:

(a) File a replacement deposit, bond[,] or letter of credit [or deposit]; or

(b) Surrender the license to the board and cease operating as a landscaping business.

(5) The landscaping business is responsible for all landscaping and other work performed.

SECTION 3. ORS 671.703 is amended to read:

671.703. (1) If [any] a person has a claim against a licensed landscaping business [issued a license under ORS 671.560] for negligent or improper work performed by the landscaping business, or for [the person or the person has] alleged breach of contract [against] by the landscaping business, the person may file the claim [and a request for hearing] with the State Landscape Contractors Board.

(2) Upon receipt of a claim [and request for hearing] that qualifies under subsection (1) of this section, the board shall initiate an investigation. [and,] Upon completion of the investigation, if the board determines that facts exist supporting an order for payment, the board may [initiate hearings procedures on the claim. The parties involved in the claim shall have the right to appear and be heard at the hearing. A hearing under this section is subject to the provisions of ORS 183.310 to 183.550.] order the landscaping business to pay the claim. A party to the claim may request a hearing on the order issued by the board.

(3) [With the prior agreement of the claimant and the landscaping business, the board may resolve the claim through] Subject to subsection (6) of this section, if the resolution of a claim under this section requires a hearing, the board may require that the hearing be conducted as a binding arbitration under rules adopted by the board [generally in conformance with ORS 36.300 to 36.365. The board may also use the arbitration procedure to resolve a] under subsection (5) of this section.

(4) The board may use arbitration to resolve a landscaping dispute between [a person bringing a claim and any landscaping business that agrees] any parties who agree to follow the rules of the board, including parties to a dispute not described under subsection (1) of this section.

(5) Rules adopted by the board to regulate arbitration under subsections (3) and (4) of this section must substantially conform with the provisions of ORS 36.300 to 36.365. The rules may include, but are not limited to, requirements that:

(a) The arbitrator send copies of an arbitration award to the parties and the board and allow the parties an opportunity to request reconsideration of the award;

(b) The arbitrator address in writing any issue raised in a request for reconsideration of the award;

(c) The arbitrator delay submitting to the clerk of the circuit court an arbitration award that is or may become subject to a request for reconsideration; and

(d) The request for reconsideration and the arbitrator’s response to the request, including any matter the arbitrator is required to address, be included with the award of the arbitrator and the written agreement to submit that is sent to the clerk of the circuit court under ORS 36.350.

(6) A party to a claim that is subject to a board order of binding arbitration under subsection (3) of this section may avoid the arbitration if the party requests to have the claim resolved through a contested case hearing or files a complaint in a court. A party making a request or filing a complaint under this subsection is subject to the following provisions:

(a) If the party requests to have a claim resolved through a contested case hearing, the party must, within the time specified in paragraph (c) of this subsection, deliver the request in writing to the board and to all parties entitled by board rule to receive a copy of the request.

(b) If the party files a complaint in a court, the party must, within the time specified in paragraph (c) of this subsection, deliver a copy of the complaint to the board and to all parties entitled by the board rule to receive a copy of the complaint. If the party filing the complaint is the claimant, the claimant must allege all elements of the claim in the complaint. If the complaint is filed by the licensed landscaping business against whom a claim is alleged, the complaint may be a complaint for damages, a complaint for declaratory judgment or other complaint that allows the claimant to file a response alleging the elements of the claim. The claimant has the burden of proving the elements of the claim in any complaint described in this paragraph.

(c) A party that is subject to paragraph (a) or (b) of this subsection must deliver a request or complaint to the board as described in paragraphs (a) and (b) of this subsection no later than the 30th day after the board sends notice that an arbitration hearing has been scheduled. Failure to timely deliver a request or complaint under this paragraph constitutes consent to the binding arbitration.

(d) If a party makes a timely request under paragraph (a) of this subsection for a contested case hearing and another party timely files a complaint in compliance with paragraph (b) of this subsection, the filing of the complaint supersedes the request for a contested case hearing.

(e) A party may not withdraw a request made in compliance with paragraph (a) of this subsection unless all parties agree to the withdrawal.

(f) The provisions of paragraph (b) of this subsection are in addition to any other requirements imposed by law regarding the filing of a complaint.

(7) An arbitration conducted under subsection (3) or (4) of this section must be held before a hearing officer acting as arbitrator. The hearing officer assigned to act as arbitrator of the case on behalf of the board must be from the Hearing Officer Panel established under section 3, chapter 849, Oregon Laws 1999. The assignment of a hearing officer to act as arbitrator is subject to a request for a different arbitrator under section 11, chapter 849, Oregon Laws 1999, or a rule adopted pursuant to section 11, chapter 849, Oregon Laws 1999.

(8) If a party to a claim under subsection (1) of this section requests a contested case hearing, the board shall schedule the hearing. If a party requests that the claim be resolved by a court, the board shall suspend further processing of the claim until the claim is resolved by an appropriate court.

(9) If the claim is submitted for determination by a court, the board may require that the claimant provide status reports on the pending action. The board may dismiss or close a claim filed under subsection (1) of this section as established by rule of the board if the claimant fails to submit status reports on a pending action.

[(4) If, after investigation and opportunity for hearing as provided in ORS 183.413 to 183.470, the board determines that the landscaping business performed negligent or improper work or breached its contract, the board, after final resolution of any appeals permitted under ORS 183.310 to 183.550, shall order the landscaping business to pay the claim determined by the board within 20 days.]

(10) The board shall issue a final order or arbitration award in a form that indicates the maximum amount payable from the deposit, bond or letter of credit. If the landscaping business does not pay the claim [as required by this subsection] on or before the 30th day after receiving the board order or award, the board shall order the claim paid out of the deposit, [or] bond or letter of credit [required] filed under ORS 671.690.

[(5)] (11) The board may [refuse to accept, or refuse at any time to continue processing,] dismiss or close a claim as established by rule of the board if:

[(a) The same facts and issues involved in the claim have been submitted to a court of competent jurisdiction for determination or have been submitted to any other entity authorized by law or the parties to effect a resolution and settlement;]

[(b)] (a) The claimant does not permit the person against whom the claim is filed to be present at any inspection made by the board; or

[(c)] (b) The board determines that the person against whom the claim is filed is capable of complying with recommendations made by the board relative to the claim, but the claimant does not permit the person to comply with the recommendations. [However,] The board may [refuse to accept or further process] dismiss or close a claim under this paragraph only if the person was licensed at the time the work was first performed and is licensed at the time the board makes its recommendations.[; or]

[(d)] (12) The board may suspend processing a claim if the board determines that the nature or complexity of the claim is such that a court is the appropriate forum for the adjudication of the claim.

SECTION 4. ORS 671.703, as amended by section 3 of this 2001 Act, is amended to read:

671.703. (1) If a person has a claim against a licensed landscaping business for negligent or improper work performed by the landscaping business, or for alleged breach of contract by the landscaping business, the person may file the claim with the State Landscape Contractors Board.

(2) Upon receipt of a claim that qualifies under subsection (1) of this section, the board shall initiate an investigation. Upon completion of the investigation, if the board determines that facts exist supporting an order for payment, the board may order the landscaping business to pay the claim. A party to the claim may request a hearing on the order issued by the board.

(3) Subject to subsection (6) of this section, if the resolution of a claim under this section requires a hearing, the board may require that the hearing be conducted as a binding arbitration under rules adopted by the board under subsection (5) of this section.

(4) The board may use arbitration to resolve a landscaping dispute between any parties who agree to follow the rules of the board, including parties to a dispute not described under subsection (1) of this section.

(a) The arbitrator send copies of an arbitration award to the parties and the board and allow the parties an opportunity to request reconsideration of the award;

(b) The arbitrator address in writing any issue raised in a request for reconsideration of the award;

(c) The arbitrator delay submitting to the clerk of the circuit court an arbitration award that is or may become subject to a request for reconsideration; and

(e) A party may not withdraw a request made in compliance with paragraph (a) of this subsection unless all parties agree to the withdrawal.

(f) The provisions of paragraph (b) of this subsection are in addition to any other requirements imposed by law regarding the filing of a complaint.

(7) An arbitration conducted under subsection (3) or (4) of this section must be held before a hearing officer [acting] designated by the board to act as arbitrator. [The hearing officer assigned to act as arbitrator of the case on behalf of the board must be from the Hearing Officer Panel established under section 3, chapter 849, Oregon Laws 1999. The assignment of a hearing officer to act as arbitrator is subject to a request for a different arbitrator under section 11, chapter 849, Oregon Laws 1999, or a rule adopted pursuant to section 11, chapter 849, Oregon Laws 1999.]

(10) The board shall issue a final order or arbitration award in a form that indicates the maximum amount payable from the deposit, bond or letter of credit. If the landscaping business does not pay the claim on or before the 30th day after receiving the board order or award, the board shall order the claim paid out of the deposit, bond or letter of credit filed under ORS 671.690.

(11) The board may dismiss or close a claim as established by rule of the board if:

(a) The claimant does not permit the person against whom the claim is filed to be present at any inspection made by the board; or

(b) The board determines that the person against whom the claim is filed is capable of complying with recommendations made by the board relative to the claim, but the claimant does not permit the person to comply with the recommendations. The board may dismiss or close a claim under this paragraph only if the person was licensed at the time the work was first performed and is licensed at the time the board makes its recommendations.

(12) The board may suspend processing a claim if the board determines that the nature or complexity of the claim is such that a court is the appropriate forum for the adjudication of the claim.

SECTION 5. The amendments to ORS 671.703 by section 4 of this 2001 Act become operative January 1, 2004.

Approved by the Governor May 25, 2001

Filed in the office of Secretary of State May 25, 2001

Effective date January 1, 2002

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