71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
 
SA to A-Eng. HB 2189 (A to RC)
 
LC 1024/HB 2189-A3
 
                      SENATE AMENDMENTS TO
                   A-ENGROSSED HOUSE BILL 2189
           (INCLUDING AMENDMENTS TO RESOLVE CONFLICTS)
 
    By COMMITTEE ON BUSINESS, LABOR, AND ECONOMIC DEVELOPMENT
 
                              May 7
 
  On page 1 of the printed A-engrossed bill, line 2, delete '
and'.
  In line 3, before the period insert '; and repealing sections 4
and 5, chapter ___, Oregon Laws 2001 (Enrolled House Bill 2188),
and section 280, chapter 104, Oregon Laws 2001 (Enrolled House
Bill 2609)'.
  In line 19, delete 'because' and insert 'and'.
  In line 23, delete 'because' and insert 'and'.
  On page 2, line 1, after '(5)' insert 'Except as otherwise
provided in this section,'.
  In line 6, after '(6)' insert 'Except as otherwise provided in
this section,'.
  In line 10, delete 'because' and insert 'and'.
  On page 4, after line 31, insert:
  '  { +  SECTION 5a. + }  { + If House Bill 2188 becomes law,
sections 4 and 5, chapter ___, Oregon Laws 2001 (Enrolled House
Bill 2188) (amending ORS 701.145), are repealed and section 5 of
this 2001 Act is amended to read: + }
  '  { +  Sec. 5. + } (1) With the prior agreement of a claimant
and a licensed contractor, the Construction Contractors Board may
resolve a claim against the contractor's bond required by ORS
701.085 through binding arbitration under rules adopted by the
board substantially in conformance with ORS 36.300 to 36.365.
  ' (2) The board may resolve through mediation or arbitration a
construction dispute between any persons who agree to follow the
rules of the board.
  ' (3) The board may refuse to accept a dispute for mediation or
arbitration under subsection (1) or (2) of this section if the
board determines that the nature or complexity of the dispute is
such that a court or other forum is more appropriate for
resolution of the dispute.
  ' (4) The board may require claims against the contractor's
bond of less than $1,000 to be subject to mediation or resolved
through binding arbitration.
  ' (5) Contested case hearings before the board must be
conducted by a hearing officer assigned from the Hearing Officer
Panel established by section 3, chapter 849, Oregon Laws 1999.
 { +  Notwithstanding ORS 670.325, + } the board may delegate
authority to the hearing officer to issue a final order in any
matter.
  ' (6) Sections 2 to 21, chapter 849, Oregon Laws 1999, do not
limit in any way the ability of the board to make full use of
alternative dispute resolution, including mediation or
arbitration, to resolve claims against contractors filed under
the provisions of section 2 of this 2001 Act.
  ' (7) In assigning hearing officers for hearings conducted
under the provisions of this section, the chief hearing officer
of the Hearing Officer Panel established under section 3, chapter
849, Oregon Laws 1999, shall defer to board requests.
  ' (8) The board, by rule, may require a deposit not to exceed
$100 for the filing of a claim, a request for hearing or
exceptions. The party may recover the deposit upon prevailing on
the claim or exceptions.'.
  On page 5, after line 13, insert:
  '  { +  SECTION 7a. + }  { + If House Bill 2188 becomes law,
sections 6 and 7 of this 2001 Act are repealed and section 5 of
this 2001 Act, as amended by section 5a of this 2001 Act, is
amended to read: + }
  '  { +  Sec. 5. + } (1) With the prior agreement of a claimant
and a licensed contractor, the Construction Contractors Board may
resolve a claim against the contractor's bond required by ORS
701.085 through binding arbitration under rules adopted by the
board substantially in conformance with ORS 36.300 to 36.365.
  ' (2) The board may resolve through mediation or arbitration a
construction dispute between any persons who agree to follow the
rules of the board.
  ' (3) The board may refuse to accept a dispute for mediation or
arbitration under subsection (1) or (2) of this section if the
board determines that the nature or complexity of the dispute is
such that a court or other forum is more appropriate for
resolution of the dispute.
  ' (4) The board may require claims against the contractor's
bond of less than $1,000 to be subject to mediation or resolved
through binding arbitration.
  ' (5) Contested case hearings before the board must be
conducted by   { - a hearing officer assigned from the Hearing
Officer Panel established by section 3, chapter 849, Oregon Laws
1999 - }  { +  the board or by a hearing officer designated by
the board + }.  Notwithstanding ORS 670.325, the board may
delegate authority to the hearing officer to issue a final order
in any matter.
  '  { - (6) Sections 2 to 21, chapter 849, Oregon Laws 1999, do
not limit in any way the ability of the board to make full use of
alternative dispute resolution, including mediation or
arbitration, to resolve claims against contractors filed under
the provisions of section 2 of this 2001 Act. - }
  '  { - (7) In assigning hearing officers for hearings conducted
under the provisions of this section, the chief hearing officer
of the Hearing Officer Panel established under section 3, chapter
849, Oregon Laws 1999, shall defer to board requests. - }
  '  { - (8) - }  { +  (6) + } The board, by rule, may require a
deposit not to exceed $100 for the filing of a claim, a request
for hearing or exceptions. The party may recover the deposit upon
prevailing on the claim or exceptions.
  '  { +  SECTION 7b. + }  { + The amendments to section 5 of
this 2001 Act by section 7a of this 2001 Act become operative
January 1, 2004. + } ' .
  On page 6, delete lines 5 through 45 and insert:
  '  { +  SECTION 9. + } ORS 701.005 is amended to read:
  ' 701.005. As used in this chapter:
  ' (1) 'Board' means the Construction Contractors Board.
  '  { - (2) 'Consultant' means a person registered as a
contractor with the board who inspects or otherwise provides
services to a property owner or other contractor but who does not
substantively add to or subtract from a structure. 'Consultant'
includes but is not limited to home inspectors certified under
ORS 701.350, lead-based paint inspectors licensed under ORS
701.515, and cross connection and backflow prevention device
inspectors certified under ORS 448.279. - }
  '  { - (3) - }  { +  (2) + } 'Contractor' means a person who,
for compensation or with the intent to sell, arranges or
undertakes or offers to undertake or submits a bid to construct,
alter, repair, add to, subtract from, improve, inspect, move,
wreck or demolish, for another, any building, highway, road,
railroad, excavation or other structure, project, development or
improvement attached to real estate or to do any part thereof.
'Contractor' includes general contractors, residential-only
contractors and specialty contractors as defined in this section.
  '  { - (4) - }  { +  (3) + } 'General contractor' means a
contractor whose business operations require the use of more than
two unrelated building trades or crafts that the contractor
supervises or performs in whole or part, whenever the sum of all
contracts on any single property, including materials and labor,
exceeds an amount established by rule by the board. 'General
contractor' does not include specialty contractors  { - , as
defined in subsection (8) of this section, - }  or limited
contractors, as described in ORS 701.085.
  '  { - (5) - }  { +  (4) + } 'Home inspector' means a person
who, for a fee, inspects and provides written reports on the
overall physical condition of a residential structure and the
appurtenances thereto. 'Home inspector' does not include persons
certified under ORS chapter 455 to inspect new, repaired or
altered structures for compliance with the state building code.
  '  { +  (5) 'Large commercial structure' means a structure that
is not a residential structure or small commercial structure. + }
  ' (6) 'Residential-only contractor' means a general contractor
or specialty contractor who performs work exclusively in
connection with residential structures  { + and small commercial
structures,  + }and the appurtenances thereto. 'Residential-only
contractor' includes, but is not limited to:
  ' (a) A person who purchases or owns property and constructs or
for compensation arranges for the construction of one or more
residential structures  { + or small commercial structures + }
with the intent of selling the   { - residential structure or - }
structures;
  ' (b) A school district, as defined in ORS 332.002, that
permits students to construct a  { + residential structure or
small commercial + } structure as an educational experience to
learn building techniques and  { - , upon completion of the
residential structure, the district - }  sells the completed
 { - residential - } structure;
  ' (c) A community college district, as defined in ORS 341.005,
that permits students to construct a residential structure
 { + or small commercial structure  + }as an educational
experience to learn building techniques and   { - upon completion
of the residential structure, the district - }  sells the
completed structure; or
  ' (d) Any person except a landscape contractor, nurseryman,
gardener or person engaged in the commercial harvest of forest
products who is engaged as an independent contractor to remove
trees, prune trees, remove tree limbs or stumps or to engage in
tree or limb guying.
  ' (7) 'Residential structure' means a residence, including a
site-built home,   { - a - }  modular home constructed off-site,
 { - a - } floating home as defined in ORS 830.700,   { - a - }
condominium { +  unit, + }
  { - and a - }  manufactured dwelling  { - , a - }  { +  or + }
duplex or { +  a + } multiunit residential building consisting of
four units or less { +  that is not part of a multistructure
complex of buildings + }.
  '  { +  (8) + }   { -  ' Residential structure' includes
any - }   { +  ' Small commercial structure' means a + }
nonresidential structure with a ground area of 4,000 square feet
or less { + , including exterior walls, + } and   { - is - }  not
more than 20 feet in height from the top surface of the lowest
flooring to the highest interior overhead finish of the
 { - building - }   { + structure + }.
  '  { - (8) - }  { +  (9) + } 'Specialty contractor' means a
contractor who performs work on a structure, project, development
or improvement and whose operations as such do not fall within
the definition of ' general contractor.' 'Specialty contractor'
includes a person who performs work regulated under ORS chapter
446.
  '  { +  SECTION 9a. + }  { + Section 280, chapter 104, Oregon
Laws 2001 (Enrolled House Bill 2609) (amending ORS 701.005), is
repealed. + } ' .
  On page 7, delete lines 1 through 14.
  On page 8, lines 28 and 29, restore the bracketed material and
delete the boldfaced material.
  On page 10, line 2, delete '(3)' and insert '(2)'.
  Delete lines 43 through 45 and delete page 11 and insert:
  '  { +  SECTION 12. + } ORS 701.085 is amended to read:
  ' 701.085. (1) A person who wishes to obtain a license as a
contractor or renew a license shall file with the Construction
Contractors Board a surety bond with one or more corporate
sureties authorized to do business in this state in the amount
set forth in subsections (2) to (5) of this section { + . + }
 { - , conditioned - }  { +  The surety bond must provide + }
that the applicant, with regard to work subject to this chapter,
will pay claims ordered paid by the board under ORS
 { - 701.140 - }  { +  701.145 or section 4 of this 2001 Act + }.
Bonds filed under this subsection shall remain in effect for at
least one year or until depleted by claims paid under ORS
  { - 701.140 - }  { +  701.150 + }, unless the surety sooner
cancels the bond. At the discretion of the surety the bond may be
continued for an additional period by continuation certificate.
The aggregate liability of the surety under the bond for claims
against the bond shall not exceed the penal sum of the bond no
matter how many years the bond is in force. No extension by
continuation certificate, reinstatement, reissue or renewal of
the bond shall increase the liability of the surety.
  ' (2) A general contractor shall obtain a surety bond in the
amount of $15,000.
  ' (3) A specialty contractor shall obtain a surety bond in the
amount of $10,000.
  ' (4) A consultant shall obtain a surety bond in the amount of
$10,000.
  ' (5) The board may reduce the amount of the surety bond
required by this section to $5,000 for a contractor upon a
showing that the contractor does not perform work as a contractor
exceeding $40,000 in gross annual volume and does not enter into
contracts that exceed $5,000.   { - These contractors shall be
designated as limited contractors. - }  { +  The board shall
designate the contractor as a limited contractor. + }
  ' (6) If the amount the licensee must pay against the bond
under this section exceeds the amount of the bond, the board
shall suspend the contractor's license until the amount owed is
paid.  The board, as a condition of ending the suspension, may
require a contractor requesting reinstatement of a license to
file a bond of an amount up to five times as much as the amount
required ordinarily of a licensee under this section.
  ' (7) The board by rule may establish conditions for applicants
or persons licensed under this chapter under which the applicant
or licensee must file a bond of an amount up to five times as
much as the amount required ordinarily of an applicant or
licensee under this section. The board may reduce the amount of
bond it would otherwise require if the contractor demonstrates
satisfactory completion of approved elective classes on dispute
resolution and prevention, basic accounting and record keeping or
such other classes as the board may prescribe.
  ' (8) The bond required under this section is for the exclusive
purpose of payment of final orders and arbitration awards of the
board in accordance with this chapter.
  ' (9) Upon determination  { + under ORS 701.145 or section 4 of
this 2001 Act  + }of a claim   { - under ORS 701.140 - }  against
a contractor who holds a bond required under this section, the
board shall notify the surety on the bond of the final order in a
manner determined by the board by rule. The notification shall
include a list of all claims upon which a final order has been
issued.
  ' (10)   { - No - }  { +  A + } suit or action may  { + not + }
be commenced against a surety on a bond required under this
section until 30 days after the date that the surety is notified
by the board under ORS
  { - 701.140 - }  { +  701.150 + } that payment is due on the
claim.
  ' (11) In any action against a surety on a bond under this
section that is based on the failure of the surety to pay a claim
or on the denial of a claim by the surety, the court may award:
  ' (a) Costs;
  ' (b) Reasonable attorney fees to the prevailing party as part
of the costs; and
  ' (c)   { - If the surety is ordered to pay a claim on the bond
that - }  { +  Twice the amount of any damages that the board
ordered the surety to pay on the claim, if + } the surety
arbitrarily and capriciously refused to pay upon order of the
board  { - , twice the amount of damages against the surety as
ordered by the board - } .'.
  On page 12, delete lines 1 and 2.
  On page 20, line 39, after 'initiate' insert 'mediation or'.
  In line 42, after 'to' insert 'mediation or'.
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