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
 
                         House Bill 2201
 
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 as
introduced.
 
  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; 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 (5) 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 - }
 { +  substantially + } in conformance with ORS 36.300 to 36.365.
The board may also use the arbitration procedure 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 + }.
   { +  (4) Rules adopted by the board under subsection (3) of
this section 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) Notwithstanding ORS 36.350, the arbitrator must 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, must 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.
  (5) 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 and request to have the claim resolved
through a contested case hearing under ORS 183.310 to 183.550 or
by a court.  A party requesting to have a claim resolved through
a contested case hearing or by a court must deliver the request
in writing to the board and to all other parties. The party may
make the request at any time after the claim is filed, but no
later than the 30th day after the board sends notice that an
arbitration hearing has been scheduled. Failure to timely request
resolution through a contested case hearing or by a court
constitutes consent to the binding arbitration. If more than one
party makes a timely request, a request to have the claim
resolved by a court supersedes a request to have the claim
resolved through a contested case hearing. A party may not
withdraw a request unless all parties agree.
  (6) 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.
  (7) If the claim is submitted for determination by a court, the
board may require that the claimant provide status reports on the
pending action.
  (8) The board may dismiss a claim filed under subsection (1) of
this section if the claimant does not bring an action for
resolution by a court within a reasonable time as determined by
board rule or if the claimant fails to submit status reports on a
pending action.
  (9) If a party requests that the claim be resolved by a court,
the claimant is responsible for filing the court action.  This
section does not supersede any requirements otherwise imposed by
law for filing an action. If a court enters a judgment against a
landscape contractor in an action described in this section, the
claimant must deliver a copy of the judgment to the board no
later than the 30th day after the entry of the judgment in order
to retain a claim against the deposit, bond or letter of credit
filed under ORS 671.690. + }
    { - (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 + } a claim 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 + } 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.
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