71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
HA to HB 2816
LC 2092/HB 2816-10
HOUSE AMENDMENTS TO
HOUSE BILL 2816
By COMMITTEE ON SMART GROWTH AND COMMERCE
April 27
On page 1 of the printed bill, line 2, after 'ORS' delete the
rest of the line and insert '283.340, 326.051, 459.995, 465.012,
646.563,'.
In line 3, delete ', 646.661'.
Delete lines 5 through 25 and delete pages 2 through 14 and
insert:
' { + SECTION 1. + } { + The Legislative Assembly finds that
mercury is a potent neurotoxin that can cause long-lasting health
problems. In order to reduce the amount of mercury entering the
environment from the solid waste stream:
' (1) A manufacturer of thermostats that contain mercury:
' (a) Shall make available a program for the collection of such
thermostats to be managed as a universal waste.
' (b) Shall provide incentives for and sufficient information
to purchasers of thermostats to ensure that the mercury contained
in the thermostats does not become part of the solid waste
stream.
' (c) Is not liable for improper disposal of thermostats
containing mercury by consumers if the manufacturer complies with
this subsection.
' (2) A person may not crush a motor vehicle without first
attempting to remove mercury light switches that are mounted on
the hood or trunk of the vehicle. The mercury light switches
shall be treated by the Department of Environmental Quality as
universal waste and subject to the universal waste management
standards adopted by the Environmental Quality Commission. + }
' { + SECTION 2. + } { + The Department of Environmental
Quality shall receive a report from each manufacturer of
thermostats that contain mercury, or from an organization that
represents such manufacturers, no later than February 1 of each
year. The report shall include, but need not be limited to, the
number of thermostats and pounds of mercury collected by the
manufacturer or organization during the previous calendar
year. + }
' { + SECTION 3. + } { + For purposes of sections 1 and 2 of
this 2001 Act, 'thermostat' means a device commonly used to sense
and, through electrical communication with heating, cooling or
ventilation equipment, control room temperature. + }
' { + SECTION 4. + } { + Section 5 of this 2001 Act is added
to and made a part of ORS chapter 455. + }
' { + SECTION 5. + } { + (1) The Director of the Department
of Consumer and Business Services shall, by rule:
' (a) Prohibit the installation of thermostats that contain
mercury in commercial and residential buildings.
' (b) Require persons installing heating, ventilation or air
conditioning systems to properly dispose of thermostats that
contain mercury or to ensure that thermostats that contain
mercury are delivered to a facility that will ensure proper
disposal of the thermostats.
' (2) As used in this section, 'thermostat' means a device
commonly used to sense and, through electrical communication with
heating, cooling or ventilation equipment, control room
temperature. + }
' { + SECTION 6. + } { + The Director of the Department of
Consumer and Business Services shall make any rules adopted under
section 5 of this 2001 Act effective on and after January 1,
2003. + }
' { + SECTION 7. + } { + (1) A person may not sell or offer
for sale a novelty item that contains encapsulated liquid
mercury.
' (2) Upon notification to the Department of Environmental
Quality by any person that a novelty item for sale in the state
contains encapsulated liquid mercury, the department shall notify
persons identified as selling the novelty item of the prohibition
on the sale of such items.
' (3) The department may impose a penalty as provided in ORS
459.995 if a person continues to sell a novelty item that
contains encapsulated liquid mercury after notification of the
prohibition on the sale of such items. + }
' { + SECTION 8. + } { + Section 9 of this 2001 Act is added
to and made a part of the Oregon Vehicle Code. + }
' { + SECTION 9. + } { + A person commits the offense of
providing a vehicle with a mercury light switch if the person
sells or offers for sale in this state a vehicle manufactured
after January 1, 2006, that contains a mercury light switch
mounted on the hood or trunk. + }
' { + SECTION 10. + } ORS 283.340 is amended to read:
' 283.340. (1) It is the policy of this state that the Oregon
Department of Administrative Services adopt rules that narrowly
interpret the definitions of authorized driver and official state
business.
' (2) The department shall adopt rules necessary for the
efficient and economical operation, use, maintenance, repair and
replacement of and access to all motor vehicles, and shall
require the keeping of such records of use, access, costs and
operations and the making of such reports as will enable the
exercise of proper controls.
' (3) By rule, the department shall prohibit the operation of a
state-owned motor vehicle by any person under 18 years of age.
' (4) The department shall adopt rules that require uniform
schedules for preventive maintenance of state-owned motor
vehicles { + , including the removal of mercury light switches
during the regularly scheduled maintenance of the vehicles or by
January 1, 2004, whichever comes first + }.
' { + (5) The department shall adopt rules that require all
state agencies that acquire motor vehicles to obtain only motor
vehicles that do not contain mercury light switches. + }
' { + SECTION 11. + } ORS 326.051 is amended to read:
' 326.051. Subject to ORS 417.300 and 417.305:
' (1) In addition to such other duties as are prescribed by law
and pursuant to the requirement of ORS 183.310 to 183.550, the
State Board of Education shall:
' (a) Establish state standards for public kindergartens and
public elementary and secondary schools consistent with the
policies stated in ORS 326.011.
' (b) Adopt rules for the general governance of public
kindergartens and public elementary and secondary schools and
public community colleges.
' (c) Prescribe required or minimum courses of study.
' (d) Adopt rules regarding school and interscholastic
activities in accordance with standards established pursuant to
paragraph (f) of this subsection.
' (e) Adopt rules that provide that no public elementary or
secondary school shall discriminate in determining participation
in interscholastic activities. Discrimination is as defined in
ORS 659.150.
' (f) Adopt standards applicable to voluntary organizations
that administer interscholastic activities as provided in ORS
339.430.
' { + (g) Adopt rules that will eliminate the use and
purchase of elemental mercury, mercury compounds and
mercury-added instructional equipment and materials by public
elementary and secondary schools. + }
' (2) The State Board of Education may:
' (a) Consistent with the laws of this state, accept money or
property not otherwise provided for under paragraph (b) of this
subsection, which is donated for the use or benefit of the public
kindergartens and public elementary and secondary schools and
public community colleges and use such money or property for the
purpose for which it was donated. Until it is used, the board
shall deposit any money received under this paragraph in a
special fund with the State Treasurer as provided in ORS 293.265
to 293.275.
' (b) Apply for federal funds and accept and enter into any
contracts or agreements in behalf of the state for the receipt of
such funds from the federal government or its agencies for
educational purposes, including but not limited to any funds
available for the school lunch program, for career education
purposes, for professional technical educational purposes, for
adult education, for manpower programs and any grants available
to the state or its political subdivisions for general federal
aid for public kindergartens and public elementary and secondary
schools and public community colleges and their auxiliary
services, improvement of teacher preparation, teacher salaries,
construction of school buildings, administration of the
Department of Education and any other educational activities
under the jurisdiction of the State Board of Education.
' (3) The State Board of Education shall provide a separate,
identifiable place on its agenda six times a year for community
college issues. The state board may also consider matters
affecting community colleges at any regular or special meeting.
' { + SECTION 12. + } ORS 459.995 is amended to read:
' 459.995. (1) Except as provided in subsection (2) of this
section, in addition to any other penalty provided by law:
' (a) Any person who violates ORS 459.205, 459.270, 459.272,
459.386 to 459.405, 459.705 to 459.790, 459A.005 to 459A.620,
459A.675 to 459A.685 { + or section 7 of this 2001 Act + } or
any rule or order of the Environmental Quality Commission
pertaining to the disposal, collection, storage or reuse or
recycling of solid wastes, as defined by ORS 459.005, or any rule
or order pertaining to the disposal, storage or transportation of
waste tires, as defined by ORS 459.705, { + or any rule or order
pertaining to the sale of novelty items that contain encapsulated
liquid mercury, + } shall incur a civil penalty not to exceed
$10,000 a day for each day of the violation.
' (b) Any person who violates the provisions of ORS 459.420 to
459.426 shall incur a civil penalty not to exceed $500 for each
violation. Each battery that is disposed of improperly shall be a
separate violation. Each day an establishment fails to post the
notice required under ORS 459.426 shall be a separate violation.
' (c) For each day a city, county or metropolitan service
district fails to provide the opportunity to recycle as required
under ORS 459A.005, the city, county or metropolitan service
district shall incur a civil penalty not to exceed $500 for each
violation.
' (2) Any product manufacturer or package manufacturer who
violates ORS 459A.650 to 459A.665 or any rule adopted under ORS
459A.650 to 459A.665 shall incur a civil penalty not to exceed
$1,000 per day for each day of the violation. A violation of ORS
459A.650 to 459A.665 shall not be subject to additional penalties
under subsection (1) of this section.
' (3) Any civil penalty authorized by subsection (1) or (2) of
this section shall be imposed in the manner provided by ORS
468.135.
' { + SECTION 13. + } ORS 465.012 is amended to read:
' 465.012. (1) The Department of Environmental Quality shall
provide technical assistance to toxics users and conditionally
exempt generators. In identifying the users and generators to
which the department shall give priority in providing technical
assistance, the department shall consider at least the following:
' (a) Amounts and toxicity of toxics used and amounts of
hazardous waste disposed of, discharged and released;
' (b) Potential for current and future toxics use reduction and
hazardous waste reduction; and
' (c) The toxics related exposures and risks posed to public
health, safety and the environment.
' (2) In providing technical assistance, the department shall
give priority to assisting toxics users and conditionally exempt
generators in developing and implementing an adequate toxics use
reduction and hazardous waste reduction plan as established under
ORS 465.015. The assistance may include but need not be limited
to:
' (a) Information clearinghouse activities;
' (b) Telephone hotline assistance;
' (c) Toxics use reduction and hazardous waste reduction
training workshops;
' (d) Establishing a technical publications library;
' (e) The development of a system to evaluate the effectiveness
of toxics use reduction and hazardous waste reduction measures;
' (f) The development of a recognition program to publicly
acknowledge toxics users and conditionally exempt generators who
develop and implement successful toxics use reduction and
hazardous waste reduction plans; and
' (g) Direct on-site assistance to toxics users and
conditionally exempt generators in developing the plans.
' (3) The department shall:
' (a) Coordinate its technical assistance efforts with industry
trade associations and local colleges and universities as
appropriate.
' (b) Follow up with toxics users who receive technical
assistance to determine whether the user or generator implemented
a toxics use reduction and hazardous waste reduction plan.
' { + (c) Coordinate and work with local agencies to provide
technical assistance to businesses involved in the crushing of
motor vehicles concerning the safe removal and proper disposal of
mercury light switches from motor vehicles. + }
' (4) Technical assistance services provided under this section
shall not result in inspections or other enforcement actions
unless there is reasonable cause to believe there exists a clear
and immediate danger to the public health and safety or to the
environment. The Environmental Quality Commission may develop
rules to carry out the intent of this subsection.
' { + SECTION 14. + } { + The Department of Environmental
Quality shall coordinate with and encourage entities such as
associations representing motor vehicle repair shops to offer to
the public the replacement and recycling of motor vehicle mercury
light switches. The department shall make available to the
public information concerning services to replace and recycle
motor vehicle mercury light switches. + }
' { + SECTION 15. + } ORS 646.608 is amended to read:
' 646.608. (1) A person engages in an unlawful practice when in
the course of the person's business, vocation or occupation the
person does any of the following:
' (a) Passes off real estate, goods or services as those of
another.
' (b) Causes likelihood of confusion or of misunderstanding as
to the source, sponsorship, approval, or certification of real
estate, goods or services.
' (c) Causes likelihood of confusion or of misunderstanding as
to affiliation, connection, or association with, or certification
by, another.
' (d) Uses deceptive representations or designations of
geographic origin in connection with real estate, goods or
services.
' (e) Represents that real estate, goods or services have
sponsorship, approval, characteristics, ingredients, uses,
benefits, quantities or qualities that they do not have or that a
person has a sponsorship, approval, status, qualification,
affiliation, or connection that the person does not have.
' (f) Represents that real estate or goods are original or new
if they are deteriorated, altered, reconditioned, reclaimed, used
or secondhand.
' (g) Represents that real estate, goods or services are of a
particular standard, quality, or grade, or that real estate or
goods are of a particular style or model, if they are of another.
' (h) Disparages the real estate, goods, services, property or
business of a customer or another by false or misleading
representations of fact.
' (i) Advertises real estate, goods or services with intent not
to provide them as advertised, or with intent not to supply
reasonably expectable public demand, unless the advertisement
discloses a limitation of quantity.
' (j) Makes false or misleading representations of fact
concerning the reasons for, existence of, or amounts of price
reductions.
' (k) Makes false or misleading representations concerning
credit availability or the nature of the transaction or
obligation incurred.
' (L) Makes false or misleading representations relating to
commissions or other compensation to be paid in exchange for
permitting real estate, goods or services to be used for model or
demonstration purposes or in exchange for submitting names of
potential customers.
' (m) Performs service on or dismantles any goods or real
estate when not authorized by the owner or apparent owner
thereof.
' (n) Solicits potential customers by telephone or door to door
as a seller unless the person provides the information required
under ORS 646.611.
' (o) In a sale, rental or other disposition of real estate,
goods or services, gives or offers to give a rebate or discount
or otherwise pays or offers to pay value to the customer in
consideration of the customer giving to the person the names of
prospective purchasers, lessees, or borrowers, or otherwise
aiding the person in making a sale, lease, or loan to another
person, if earning the rebate, discount or other value is
contingent upon occurrence of an event subsequent to the time the
customer enters into the transaction.
' (p) Makes any false or misleading statement about a prize,
contest or promotion used to publicize a product, business or
service.
' (q) Promises to deliver real estate, goods or services within
a certain period of time with intent not to deliver them as
promised.
' (r) Organizes or induces or attempts to induce membership in
a pyramid club.
' (s) Makes false or misleading representations of fact
concerning the offering price of, or the person's cost for real
estate, goods or services.
' (t) Concurrent with tender or delivery of any real estate,
goods or services fails to disclose any known material defect or
material nonconformity.
' (u) Engages in any other unfair or deceptive conduct in trade
or commerce.
' (v) Violates any of the provisions relating to auction sales,
auctioneers or auction marts under ORS 698.640, whether in a
commercial or noncommercial situation.
' { + (w) Manufactures mercury fever thermometers.
' (x) Sells or supplies mercury fever thermometers unless the
thermometer is:
' (A) Prescribed by a person licensed under ORS chapter 677;
and
' (B) Supplied with instructions on the careful handling of the
thermometer to avoid breakage and on the proper cleanup of
mercury should breakage occur.
' (y) Sells a thermostat that contains mercury unless the
thermostat is labeled in a manner to inform the purchaser that
mercury is present in the thermostat and that the thermostat may
not be disposed of until the mercury is removed, reused, recycled
or otherwise managed to ensure that the mercury does not become
part of the solid waste stream or wastewater. For purposes of
this paragraph, 'thermostat' means a device commonly used to
sense and, through electrical communication with heating, cooling
or ventilation equipment, control room temperature. + }
' { - (w) - } { + (z) + } Violates the provisions of ORS
803.375, 803.385 or 815.410 to 815.430.
' { - (x) - } { + (aa) + } Violates ORS 646.850 (1).
' { - (y) - } { + (bb) + } Violates any requirement of ORS
646.661 to 646.686.
' { - (z) - } { + (cc) + } Violates the provisions of ORS
128.801 to 128.898.
' { - (aa) - } { + (dd) + } Violates ORS 646.883 or 646.885.
' { - (bb) - } { + (ee) + } Violates any provision of ORS
646.195.
' { - (cc) - } { + (ff) + } Violates ORS 646.569.
' { - (dd) - } { + (gg) + } Violates the provisions of ORS
646.859.
' { - (ee) - } { + (hh) + } Violates ORS 759.290.
' { - (ff) - } { + (ii) + } Violates ORS 646.872.
' { - (gg) - } { + (jj) + } Violates ORS 646.553 or 646.557
or any rule adopted pursuant thereto.
' { - (hh) - } { + (kk) + } Violates ORS 646.563.
' { - (ii) - } { + (LL) + } Violates ORS 759.690 or any rule
adopted pursuant thereto.
' { - (jj) - } { + (mm) + } Violates the provisions of ORS
759.705, 759.710 and 759.720 or any rule adopted pursuant
thereto.
' { - (kk) - } { + (nn) + } Violates ORS 646.892 or 646.894.
' { - (LL) - } { + (oo) + } Violates any provision of ORS
646.249 to 646.259.
' { - (mm) - } { + (pp) + } Violates ORS 646.384.
' { - (nn) - } { + (qq) + } Violates ORS 646.871.
' { - (oo) - } { + (rr) + } Violates ORS 822.046.
' { - (pp) - } { + (ss) + } Violates ORS 128.001.
' { - (qq) - } { + (tt) + } Violates ORS 646.649 (2) to (4).
' { - (rr) - } { + (uu) + } Violates ORS 646.877 (2) to (5).
' { - (ss) - } { + (vv) + } Violates ORS 87.686.
' { - (tt) - } { + (ww) + } Violates ORS 646.651.
' { - (uu) - } { + (xx) + } Violates ORS 646.879.
' (2) A representation under subsection (1) of this section or
ORS 646.607 may be any manifestation of any assertion by words or
conduct, including, but not limited to, a failure to disclose a
fact.
' (3) In order to prevail in an action or suit under ORS
646.605 to 646.652, a prosecuting attorney need not prove
competition between the parties or actual confusion or
misunderstanding.
' (4) No action or suit shall be brought under subsection
(1)(u) of this section unless the Attorney General has first
established a rule in accordance with the provisions of ORS
183.310 to 183.550 declaring the conduct to be unfair or
deceptive in trade or commerce.
' { + SECTION 16. + } { + The amendments to ORS 646.608 by
section 15 of this 2001 Act become operative on July 1, 2002. + }
' { + SECTION 17. + } ORS 646.608, as amended by section 15
of this 2001 Act, is amended to read:
' 646.608. (1) A person engages in an unlawful practice when in
the course of the person's business, vocation or occupation the
person does any of the following:
' (a) Passes off real estate, goods or services as those of
another.
' (b) Causes likelihood of confusion or of misunderstanding as
to the source, sponsorship, approval, or certification of real
estate, goods or services.
' (c) Causes likelihood of confusion or of misunderstanding as
to affiliation, connection, or association with, or certification
by, another.
' (d) Uses deceptive representations or designations of
geographic origin in connection with real estate, goods or
services.
' (e) Represents that real estate, goods or services have
sponsorship, approval, characteristics, ingredients, uses,
benefits, quantities or qualities that they do not have or that a
person has a sponsorship, approval, status, qualification,
affiliation, or connection that the person does not have.
' (f) Represents that real estate or goods are original or new
if they are deteriorated, altered, reconditioned, reclaimed, used
or secondhand.
' (g) Represents that real estate, goods or services are of a
particular standard, quality, or grade, or that real estate or
goods are of a particular style or model, if they are of another.
' (h) Disparages the real estate, goods, services, property or
business of a customer or another by false or misleading
representations of fact.
' (i) Advertises real estate, goods or services with intent not
to provide them as advertised, or with intent not to supply
reasonably expectable public demand, unless the advertisement
discloses a limitation of quantity.
' (j) Makes false or misleading representations of fact
concerning the reasons for, existence of, or amounts of price
reductions.
' (k) Makes false or misleading representations concerning
credit availability or the nature of the transaction or
obligation incurred.
' (L) Makes false or misleading representations relating to
commissions or other compensation to be paid in exchange for
permitting real estate, goods or services to be used for model or
demonstration purposes or in exchange for submitting names of
potential customers.
' (m) Performs service on or dismantles any goods or real
estate when not authorized by the owner or apparent owner
thereof.
' (n) Solicits potential customers by telephone or door to door
as a seller unless the person provides the information required
under ORS 646.611.
' (o) In a sale, rental or other disposition of real estate,
goods or services, gives or offers to give a rebate or discount
or otherwise pays or offers to pay value to the customer in
consideration of the customer giving to the person the names of
prospective purchasers, lessees, or borrowers, or otherwise
aiding the person in making a sale, lease, or loan to another
person, if earning the rebate, discount or other value is
contingent upon occurrence of an event subsequent to the time the
customer enters into the transaction.
' (p) Makes any false or misleading statement about a prize,
contest or promotion used to publicize a product, business or
service.
' (q) Promises to deliver real estate, goods or services within
a certain period of time with intent not to deliver them as
promised.
' (r) Organizes or induces or attempts to induce membership in
a pyramid club.
' (s) Makes false or misleading representations of fact
concerning the offering price of, or the person's cost for real
estate, goods or services.
' (t) Concurrent with tender or delivery of any real estate,
goods or services fails to disclose any known material defect or
material nonconformity.
' (u) Engages in any other unfair or deceptive conduct in trade
or commerce.
' (v) Violates any of the provisions relating to auction sales,
auctioneers or auction marts under ORS 698.640, whether in a
commercial or noncommercial situation.
' (w) Manufactures mercury fever thermometers.
' (x) Sells or supplies mercury fever thermometers unless the
thermometer is:
' (A) Prescribed by a person licensed under ORS chapter 677;
and
' (B) Supplied with instructions on the careful handling of the
thermometer to avoid breakage and on the proper cleanup of
mercury should breakage occur.
' (y) Sells a thermostat that contains mercury unless the
thermostat is labeled in a manner to inform the purchaser that
mercury is present in the thermostat and that the thermostat may
not be disposed of until the mercury is removed, reused, recycled
or otherwise managed to ensure that the mercury does not become
part of the solid waste stream or wastewater. For purposes of
this paragraph, 'thermostat' means a device commonly used to
sense and, through electrical communication with heating, cooling
or ventilation equipment, control room temperature.
' { + (z) Sells or offers for sale a motor vehicle
manufactured after January 1, 2006, that contains mercury light
switches. + }
' { - (z) - } { + (aa) + } Violates the provisions of ORS
803.375, 803.385 or 815.410 to 815.430.
' { - (aa) - } { + (bb) + } Violates ORS 646.850 (1).
' { - (bb) - } { + (cc) + } Violates any requirement of ORS
646.661 to 646.686.
' { - (cc) - } { + (dd) + } Violates the provisions of ORS
128.801 to 128.898.
' { - (dd) - } { + (ee) + } Violates ORS 646.883 or 646.885.
' { - (ee) - } { + (ff) + } Violates any provision of ORS
646.195.
' { - (ff) - } { + (gg) + } Violates ORS 646.569.
' { - (gg) - } { + (hh) + } Violates the provisions of ORS
646.859.
' { - (hh) - } { + (ii) + } Violates ORS 759.290.
' { - (ii) - } { + (jj) + } Violates ORS 646.872.
' { - (jj) - } { + (kk) + } Violates ORS 646.553 or 646.557
or any rule adopted pursuant thereto.
' { - (kk) - } { + (LL) + } Violates ORS 646.563.
' { - (LL) - } { + (mm) + } Violates ORS 759.690 or any rule
adopted pursuant thereto.
' { - (mm) - } { + (nn) + } Violates the provisions of ORS
759.705, 759.710 and 759.720 or any rule adopted pursuant
thereto.
' { - (nn) - } { + (oo) + } Violates ORS 646.892 or 646.894.
' { - (oo) - } { + (pp) + } Violates any provision of ORS
646.249 to 646.259.
' { - (pp) - } { + (qq) + } Violates ORS 646.384.
' { - (qq) - } { + (rr) + } Violates ORS 646.871.
' { - (rr) - } { + (ss) + } Violates ORS 822.046.
' { - (ss) - } { + (tt) + } Violates ORS 128.001.
' { - (tt) - } { + (uu) + } Violates ORS 646.649 (2) to (4).
' { - (uu) - } { + (vv) + } Violates ORS 646.877 (2) to (5).
' { - (vv) - } { + (ww) + } Violates ORS 87.686.
' { - (ww) - } { + (xx) + } Violates ORS 646.651.
' { - (xx) - } { + (yy) + } Violates ORS 646.879.
' (2) A representation under subsection (1) of this section or
ORS 646.607 may be any manifestation of any assertion by words or
conduct, including, but not limited to, a failure to disclose a
fact.
' (3) In order to prevail in an action or suit under ORS
646.605 to 646.652, a prosecuting attorney need not prove
competition between the parties or actual confusion or
misunderstanding.
' (4) No action or suit shall be brought under subsection
(1)(u) of this section unless the Attorney General has first
established a rule in accordance with the provisions of ORS
183.310 to 183.550 declaring the conduct to be unfair or
deceptive in trade or commerce.
' { + SECTION 18. + } { + The amendments to ORS 646.608 by
section 17 of this 2001 Act become operative on January 1,
2006. + }
' { + SECTION 19. + } ORS 646.563 is amended to read:
' 646.563. A person { - is in violation of ORS 646.608
(1)(hh) - } { + engages in an unlawful practice + } if, during a
telephone solicitation, the called party states a desire not to
be called again and the person making the telephone solicitation
makes a subsequent telephone solicitation of the called party at
that number.
' { + SECTION 20. + } ORS 646.638 is amended to read:
' 646.638. (1) Except as provided in subsection (8) of this
section, any person who suffers any ascertainable loss of money
or property, real or personal, as a result of willful use or
employment by another person of a method, act or practice
declared unlawful by ORS 646.608, may bring an individual action
in an appropriate court to recover actual damages or $200,
whichever is greater. The court or the jury, as the case may be,
may award punitive damages and the court may provide such
equitable relief as it deems necessary or proper.
' (2) Upon commencement of any action brought under subsection
(1) of this section the party bringing the action shall mail a
copy of the complaint or other initial pleading to the Attorney
General and, upon entry of any judgment or decree in the action,
shall mail a copy of such judgment or decree to the Attorney
General. Failure to mail a copy of the complaint shall not be a
jurisdictional defect, but no judgment shall be entered for the
plaintiff until proof of mailing is filed with the court. Proof
of mailing may be by affidavit or by return receipt of mailing.
' (3) Except as provided in subsection (4) of this section, the
court may award reasonable attorney fees to the prevailing party
in an action under this section.
' (4) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (3) of this section
if the action under this section is maintained as a class action
pursuant to ORCP 32.
' (5) Any permanent injunction or final judgment or order of
the court made under ORS 646.632 or 646.636 shall be prima facie
evidence in an action brought under this section that the
respondent used or employed a method, act or practice declared
unlawful by ORS 646.608, but an assurance of voluntary
compliance, whether or not approved by the court, shall not be
evidence of such violation.
' (6) Actions brought under this section shall be commenced
within one year from the discovery of the unlawful method, act or
practice. However, whenever any complaint is filed by a
prosecuting attorney to prevent, restrain or punish violations of
ORS 646.608, running of the statute of limitations with respect
to every private right of action under this section and based in
whole or in part on any matter complained of in said proceeding
shall be suspended during the pendency thereof.
' (7) Notwithstanding subsection (6) of this section, in any
action brought by a seller or lessor against a purchaser or
lessee of real estate, goods or services, such purchaser or
lessee may assert any counterclaim the purchaser or lessee has
arising out of a violation of ORS 646.605 to 646.652.
' (8) This section does not apply to any method, act or
practice described in ORS 646.608 { - (1)(w) - } { +
(1)(z) + }. Actions for violation of laws relating to odometers
are provided under ORS 815.410 and 815.415.
' { + SECTION 21. + } { + The amendments to ORS 646.638 by
section 20 of this 2001 Act become operative on July 1, 2002. + }
' { + SECTION 22. + } ORS 646.638, as amended by section 20
of this 2001 Act, is amended to read:
' 646.638. (1) Except as provided in subsection (8) of this
section, any person who suffers any ascertainable loss of money
or property, real or personal, as a result of willful use or
employment by another person of a method, act or practice
declared unlawful by ORS 646.608, may bring an individual action
in an appropriate court to recover actual damages or $200,
whichever is greater. The court or the jury, as the case may be,
may award punitive damages and the court may provide such
equitable relief as it deems necessary or proper.
' (2) Upon commencement of any action brought under subsection
(1) of this section the party bringing the action shall mail a
copy of the complaint or other initial pleading to the Attorney
General and, upon entry of any judgment or decree in the action,
shall mail a copy of such judgment or decree to the Attorney
General. Failure to mail a copy of the complaint shall not be a
jurisdictional defect, but no judgment shall be entered for the
plaintiff until proof of mailing is filed with the court. Proof
of mailing may be by affidavit or by return receipt of mailing.
' (3) Except as provided in subsection (4) of this section, the
court may award reasonable attorney fees to the prevailing party
in an action under this section.
' (4) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (3) of this section
if the action under this section is maintained as a class action
pursuant to ORCP 32.
' (5) Any permanent injunction or final judgment or order of
the court made under ORS 646.632 or 646.636 shall be prima facie
evidence in an action brought under this section that the
respondent used or employed a method, act or practice declared
unlawful by ORS 646.608, but an assurance of voluntary
compliance, whether or not approved by the court, shall not be
evidence of such violation.
' (6) Actions brought under this section shall be commenced
within one year from the discovery of the unlawful method, act or
practice. However, whenever any complaint is filed by a
prosecuting attorney to prevent, restrain or punish violations of
ORS 646.608, running of the statute of limitations with respect
to every private right of action under this section and based in
whole or in part on any matter complained of in said proceeding
shall be suspended during the pendency thereof.
' (7) Notwithstanding subsection (6) of this section, in any
action brought by a seller or lessor against a purchaser or
lessee of real estate, goods or services, such purchaser or
lessee may assert any counterclaim the purchaser or lessee has
arising out of a violation of ORS 646.605 to 646.652.
' (8) This section does not apply to any method, act or
practice described in ORS 646.608 { - (1)(z) - } { +
(1)(aa) + }. Actions for violation of laws relating to odometers
are provided under ORS 815.410 and 815.415.
' { + SECTION 23. + } { + The amendments to ORS 646.638 by
section 22 of this 2001 Act become operative on January 1,
2006. + }
' { + SECTION 24. + } ORS 646.850 is amended to read:
' 646.850. (1) Any person offering for sale or selling new or
reconditioned telephone handsets or keysets, private branch
exchanges or private automatic branch exchanges of not more than
a 20-station capacity shall disclose clearly, in writing, when
reasonable, before sale all of the following information:
' (a) Whether the equipment uses pulse, tone, pulse-or-tone or
other signaling methods.
' (b) Whether the equipment can access tone generated services.
' (c) Whether the equipment is registered with the Federal
Communications Commission under applicable federal regulations.
' (d) The person responsible for repair of the equipment.
' (e) Minimum charges, if any, for repairs, handling and
shipping.
' (f) The terms of any written warranty offered with the
equipment.
' (2) A person who violates subsection (1) of this section
commits an unlawful practice under ORS 646.608 { - (1)(x) - } .
The requirement under subsection (1) of this section is subject
to enforcement and penalty as provided under ORS 646.605 to
646.652.
' { + SECTION 25. + } { + Section 26 of this 2001 Act is
added to and made a part of ORS chapter 701. + }
' { + SECTION 26. + } { + The Construction Contractors Board
shall provide an annual notice to each contractor licensed under
this chapter that informs contractors of the rules developed by
the Director of the Department of Consumer and Business Services
pursuant to section 5 of this 2001 Act prohibiting the
installation of thermostats that contain mercury and requiring
proper disposal of thermostats that contain mercury. + }
' { + SECTION 27. + } { + (1) The Health Division may not
purchase or distribute a pediatric vaccine necessary for school
entry immunization requirements if the vaccine contains
thimerosal, unless thimerosal is detectable only in trace
amounts.
' (2) The division may purchase and distribute a pediatric
vaccine that contains thimerosal if:
' (a) The vaccine is not required for school entry; and
' (b) No other vaccine for the same purpose is commercially
available in a form that does not contain thimerosal. + } ' .
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