71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
SA to B-Eng. HB 2202 (A to RC)
LC 1125/HB 2202-B5
SENATE AMENDMENTS TO
B-ENGROSSED HOUSE BILL 2202
(INCLUDING AMENDMENTS TO RESOLVE CONFLICTS)
By COMMITTEE ON JUDICIARY
May 23
On page 1 of the printed B-engrossed bill, line 2, delete '
and'.
In line 3, after '701.180' insert 'and section 3, chapter ___,
Oregon Laws 2001 (Enrolled House Bill 2189); and repealing
sections 4 and 5, chapter ___, Oregon Laws 2001 (Enrolled House
Bill 2188), and sections 5, 5a, 6, 7, 7a and 7b, chapter ___,
Oregon Laws 2001 (Enrolled House Bill 2189)'.
In line 19, delete 'because the' and insert 'and the licensed'.
In line 23, delete 'because' and insert 'and'.
In line 26, after '(5)' insert 'Except as otherwise provided in
this section,'.
On page 2, line 4, after '(6)' insert 'Except as otherwise
provided in this section,'.
In line 8, delete 'on a structure' and delete 'because ' and
insert 'on a structure and'.
On page 3, after line 37, insert:
' { + SECTION 3a. + } { + If House Bill 2189 becomes law,
section 3 of this 2001 Act is repealed. + } ' .
In line 43, after 'use' insert 'mediation or'.
On page 4, after line 40, insert:
' (f) The board may adopt a rule that a contested case hearing
for a claim of less than $1,000 is not available under this
subsection.'.
In line 41, delete '(f)' and insert '(g)'.
After line 42, insert:
' { + SECTION 4a. + } If House Bill 2189 becomes law, section
4 of this 2001 Act is amended to read:
' { + Sec. 4. + } (1) Subject to subsection (4) of this
section, if the resolution of a claim under ORS 701.145 requires
a hearing, the Construction Contractors Board may require that
the hearing be conducted as a binding arbitration under rules
adopted by the board under subsection (3) of this section. This
subsection does not authorize the board to require binding
arbitration of a claim that is subject to { - section 3 of this
2001 Act - } { + section 4, chapter ___, Oregon Laws 2001
(Enrolled House Bill 2189) + }.
' (2) The board may use mediation or arbitration to resolve a
construction dispute between any parties who agree to follow the
rules of the board, including but not limited to parties to a
claim that is subject to { - section 3 of this 2001 Act - }
{ + section 4, chapter ___, Oregon Laws 2001 (Enrolled House
Bill 2189) + }.
' (3) Rules adopted by the board to regulate arbitration under
subsections (1) and (2) 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 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.
' (4) A party to a claim that is subject to a board order of
binding arbitration under subsection (1) 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 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 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 contractor 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 board may adopt a rule that a contested case hearing
for a claim of less than $1,000 is not available under this
subsection.
' (g) The provisions of paragraph (b) of this subsection are in
addition to any other requirements imposed by law regarding the
filing of a complaint.
' { + (5) 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. + } ' .
On page 5, line 3, after 'dismiss' insert 'or close'.
After line 23, insert:
' { + SECTION 5a. + } { + If House Bill 2189 becomes law,
sections 5 and 5a, chapter ___, Oregon Laws 2001 (Enrolled House
Bill 2189), are repealed and section 3, chapter ___, Oregon Laws
2001 (Enrolled House Bill 2189), is amended to read:
' Sec. 3. + }Except as provided in { - section 5 (2) of this
2001 Act - } { + section 4 (2) of this 2001 Act + }, the
Construction Contractors Board may resolve a dispute against a
licensed contractor only if a claim is made against the
contractor's surety bond required by ORS 701.085. In order to
have access to the bond, a person must file a claim of a type
described in ORS 701.140 within the applicable time limitation
described in section 2 { + , chapter ___, Oregon Laws 2001
(Enrolled House Bill 2189) + } { - of this 2001 Act - } . The
claim must be filed and resolved as follows:
' (1) A claim that involves work on a residential structure or
an appurtenance to the structure must be resolved as provided
under ORS 701.145.
' (2) A claim that involves work on a small commercial
structure or an appurtenance thereto may be resolved as provided
in ORS 701.145 or section 4 { + , chapter ___, Oregon Laws 2001
(Enrolled House Bill 2189) + } { - of this 2001 Act - } .
' (3) Except as provided in subsections (4) and (5) of this
section, a claim that involves work on a large commercial
structure or an appurtenance thereto must be resolved as provided
in section 4 { + , chapter ___, Oregon Laws 2001 (Enrolled House
Bill 2189) + } { - of this 2001 Act - } .
' (4) A claim by an owner that involves work on a large
commercial structure or an appurtenance thereto when the total
contract involved in the claim is $25,000 or less may be resolved
as provided in ORS 701.145 or section 4 { + , chapter ___, Oregon
Laws 2001 (Enrolled House Bill 2189) + } { - of this 2001
Act - } .
' (5) Notwithstanding subsections (1) to (4) of this section,
{ + with prior agreement of the claimant and the licensed
contractor, + } a claim may be resolved by the board through
binding arbitration under { - section 5 of this 2001 Act - }
{ + section 4 of this 2001 Act + }.
' { + SECTION 5b. + } { + 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) If a party to a claim under ORS 701.145
requests a contested case hearing, the Construction Contractors
Board shall schedule the hearing. If a claim is filed in a court,
the board shall suspend further processing of the claim until the
claim is resolved by an appropriate court.
' (2) 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 ORS 701.145 if the claimant fails to submit status reports
on a pending action.
' (3) An arbitration conducted under section 4 (1) or (2) of
this 2001 Act 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.
' (4) 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.
' (5) 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
section 2 of this 2001 Act.
' (6) In assigning hearing officers for arbitration and
contested case 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.
' (7) 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 prevailing party may recover a deposit required
by this subsection.'.
In line 29, after 'dismiss' insert 'or close'.
On page 6, after line 6, insert:
' { + SECTION 7a. + } { + If House Bill 2189 becomes law,
sections 6, 7, 7a and 7b, chapter ___, Oregon Laws 2001 (Enrolled
House Bill 2189), are repealed. + }
' { + SECTION 7b. + } { + 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 5b of this 2001 Act, is
amended to read: + }
' { + Sec. 5. + } (1) If a party to a claim under ORS 701.145
requests a contested case hearing, the Construction Contractors
Board shall schedule the hearing. If a claim is filed in a court,
the board shall suspend further processing of the claim until the
claim is resolved by an appropriate court.
' (2) 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 ORS 701.145 if the claimant fails to submit status reports
on a pending action.
' (3) An arbitration conducted under section 4 (1) or (2) of
this 2001 Act 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. - }
' (4) 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 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.
' { - (5) 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
section 2 of this 2001 Act. - }
' { - (6) In assigning hearing officers for arbitration and
contested case 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. - }
' { - (7) - } { + (5) + } 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 prevailing party may recover a
deposit required by this subsection.
' { + SECTION 7c. + } { + The amendments to section 5 of
this 2001 Act by section 7b of this 2001 Act become operative
January 1, 2004. + } ' .
On page 7, after line 2, insert:
' { + SECTION 8a. + } { + If House Bill 2189 becomes law,
section 8 of this 2001 Act (amending ORS 701.140) is
repealed. + } ' .
On page 9, after line 43, insert:
' { + SECTION 9a. + } { + If House Bill 2189 becomes law,
section 9 of this 2001 Act (amending ORS 701.145) is repealed and
ORS 701.145, as amended by section 14, chapter ___, Oregon Laws
2001 (Enrolled House Bill 2189), is amended to read: + }
' 701.145. For a claim described in section 3 (1) { + ,
chapter ___, Oregon Laws 2001 (Enrolled House Bill 2189), + }
{ - of this 2001 Act - } involving work on a residential
structure or an appurtenance thereto, a claim described in
section 3 (2) { + , chapter ___, Oregon Laws 2001 (Enrolled House
Bill 2189), + } { - of this 2001 Act - } involving work on a
small commercial structure or an appurtenance thereto that is not
resolved under section 4 { + , chapter ___, Oregon Laws 2001
(Enrolled House Bill 2189) + } { - of this 2001 Act - } , or an
owner's claim described in section 3 (4) { + , chapter ___,
Oregon Laws 2001 (Enrolled House Bill 2189), + } { - of this
2001 Act - } involving work on a large commercial structure or
an appurtenance thereto that is not resolved under section
4 { + , chapter ___, Oregon Laws 2001 (Enrolled House Bill
2189) + } { - of this 2001 Act - } :
' (1) The person having the claim must file with the
Construction Contractors Board a statement of the claim in a form
prescribed by the board.
' (2) The board may suspend processing of the 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 or settlement; or
' (b) 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.
' (3) The board may dismiss or close the claim as established
by rule of the board if any of the following conditions apply:
' (a) The claimant does not permit the contractor against whom
the claim is filed to be present at an on-site investigation made
by the board.
' (b) The board determines that the contractor 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 contractor to comply with the recommendations. The
board may refuse to accept or further process a claim under this
paragraph only if the contractor was licensed at the time the
work was first performed and is licensed at the time the board
makes its recommendations.
' (c) The amount in controversy is less than an amount adopted
by the board and not more than $250.
' (4) Upon acceptance of the statement of claim, the board
shall give notice to the contractor against whom the claim is
made and shall initiate proceedings to determine the validity of
the claim. If, after investigation, the board determines that a
violation of this chapter or of any rule adopted thereunder has
occurred, or damage has been caused by the contractor, the board
may recommend to the contractor such action as the board
considers appropriate to compensate the claimant. If the
contractor performs accordingly, the board shall give that fact
due consideration in any subsequent disciplinary proceeding
brought by the board. If a claim is for less than $1,000, the
board may process the claim without conducting an on-site
investigation.
' (5) { + Subject to section 4 of this 2001 Act, + } if the
board is unable to resolve the claim under subsection (4) of this
section, the board may issue a contested case notice under ORS
183.415 and:
' (a) Issue a proposed default order under ORS 183.415 to
become effective only if a party does not request a contested
case hearing; or
' (b) Refer the matter for hearing.
' (6) The board shall send a copy of the notice and any
proposed order described in subsection (5) of this section to the
surety on the contractor bond required by ORS 701.085.'.
On page 12, delete lines 36 through 41 and insert:
' { + SECTION 10a. + } { + If House Bill 2189 becomes law,
section 10 of this 2001 Act (amending ORS 701.145) is repealed
and ORS 701.145, as amended by section 173, chapter 849, Oregon
Laws 1999, and section 15, chapter ___, Oregon Laws 2001
(Enrolled House Bill 2189), is amended to read: + }
' 701.145. For a claim described in section 3 (1) { + ,
chapter ___, Oregon Laws 2001 (Enrolled House Bill 2189), + }
{ - of this 2001 Act - } involving work on a residential
structure or an appurtenance thereto, a claim described in
section 3 (2) { + , chapter ___, Oregon Laws 2001 (Enrolled House
Bill 2189), + } { - of this 2001 Act - } involving work on a
small commercial structure or an appurtenance thereto that is not
resolved under section 4 { + , chapter ___, Oregon Laws 2001
(Enrolled House Bill 2189) + } { - of this 2001 Act - } , or an
owner's claim described in section 3 (4) { + , chapter ___,
Oregon Laws 2001 (Enrolled House Bill 2189), + } { - of this
2001 Act - } involving work on a large commercial structure or
an appurtenance thereto that is not resolved under section
4 { + , chapter ___, Oregon Laws 2001 (Enrolled House Bill
2189) + } { - of this 2001 Act - } :
' (1) The person having the claim must file with the
Construction Contractors Board a statement of the claim in a form
prescribed by the board.
' (2) The board may suspend processing of the 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 or settlement; or
' (b) 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.
' (3) The board may dismiss or close the claim as established
by rule of the board if any of the following conditions apply:
' (a) The claimant does not permit the contractor against whom
the claim is filed to be present at an on-site investigation made
by the board.
' (b) The board determines that the contractor 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 contractor to comply with the recommendations. The
board may refuse to accept or further process a claim under this
paragraph only if the contractor was licensed at the time the
work was first performed and is licensed at the time the board
makes its recommendations.
' (c) The amount in controversy is less than an amount adopted
by the board and not more than $250.
' (4) Upon acceptance of the statement of claim, the board
shall give notice to the contractor against whom the claim is
made and shall initiate proceedings to determine the validity of
the claim. If, after investigation, the board determines that a
violation of this chapter or of any rule adopted thereunder has
occurred, or damage has been caused by the contractor, the board
may recommend to the contractor such action as the board
considers appropriate to compensate the claimant. If the
contractor performs accordingly, the board shall give that fact
due consideration in any subsequent disciplinary proceeding
brought by the board. If a claim is for less than $1,000, the
board may process the claim without conducting an on-site
investigation.
' (5) { + Subject to section 4 of this 2001 Act, + } if the
board is unable to resolve the claim under subsection (4) of this
section, the board may issue a contested case notice under ORS
183.415 and:
' (a) Issue a proposed default order under ORS 183.415 to
become effective only if a party does not request a contested
case hearing; or
' (b) Refer the matter for hearing.
' (6) The board shall send a copy of the notice and any
proposed order described in subsection (5) of this section to the
surety on the contractor bond required by ORS 701.085.
' { + SECTION 11. + } ORS 701.180 is amended to read:
' 701.180. Notwithstanding the provisions of ORS 36.300 to
36.365, any other provision of law or any contractual provision,
failure of a contractor to initiate { + mediation or + }
arbitration proceedings within 30 days after notification by the
Construction Contractors Board { - that - } { + of + } a
claim under ORS 701.145 { - has been filed with the
Construction Contractors Board, - } is a waiver { + by the
contractor + } of any { + contractual + } right to
{ + mediation or + } arbitration.'.
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