71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 1124
 
                           B-Engrossed
 
                         House Bill 2201
                  Ordered by the House April 5
     Including House Amendments dated February 6 and April 5
 
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
  Presession filed (at the request of Governor John A. Kitzhaber,
  M.D., for State Landscape Contractors Board)
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
 
  Allows State Landscape Contractors Board to require that
hearings on claims be conducted as arbitration unless party
elects otherwise. Modifies procedural requirements for claimants
seeking to satisfy court judgment out of contractor deposit, bond
or letter of credit filed with board.
 
                        A BILL FOR AN ACT
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.
  (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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