71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
 
HA to A-Eng. HB 2201
 
LC 1124/HB 2201-A3
 
                       HOUSE AMENDMENTS TO
                   A-ENGROSSED HOUSE BILL 2201
 
                    By COMMITTEE ON JUDICIARY
 
                             April 5
 
  On page 1 of the printed A-engrossed bill, line 2, after the
semicolon insert 'creating new provisions; and'.
  On page 2, line 29, delete '(5)' and insert '(6)'.
  In line 31, after 'board' delete the rest of the line and line
32 and insert 'under subsection (5) of this section.
  ' (4) The board may use arbitration to resolve a landscaping'.
  Delete line 36 and insert:
  ' (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'.
  In line 42, delete 'Notwithstanding ORS 36.350,' and delete '
must'.
  On page 3, line 1, delete 'must'.
  Delete lines 4 through 14 and insert:
  ' (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.'.
  In line 15, delete '(6)' and insert '(8)'.
  In line 19, delete '(7)' and insert '(9)'.
  In line 21, delete '(8)'.
  In line 22, after 'claimant' delete the rest of the line and
line 23 and insert 'fails to submit'.
  Delete lines 25 through 30.
  On page 4, after line 10, insert:
  '  { +  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.
  ' (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 action 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 - }  { + 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. - }
  ' (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.
  ' (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. + }
' .
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