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 4179
House Bill 3965
Sponsored by Representative V WALKER, Senator COURTNEY
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.
Authorizes Governor to declare abnormal disruption of market by
proclamation. Prohibits merchants and wholesalers from charging
unconscionably excessive prices for essential consumer goods and
services during state of emergency or abnormal disruption of
market. Defines terms. Punishes violation as unlawful trade
practice.
A BILL FOR AN ACT
Relating to excessive prices; creating new provisions; and
amending ORS 401.025, 453.307 and 646.608.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) The Legislative Assembly finds that during
a state of emergency or abnormal disruption of the market, some
merchants and wholesalers have taken unfair advantage of
consumers by charging grossly excessive prices for essential
consumer goods and services.
(2) To prevent merchants and wholesalers from taking unfair
advantage of consumers during abnormal disruptions of the market,
the Legislative Assembly declares that the public interest
requires that charging unconscionably excessive prices be
prohibited and made subject to regulation as an unlawful trade
practice. + }
SECTION 2. { + Sections 3 and 4 of this 2001 Act are added to
and made a part of ORS 401.015 to 401.105. + }
SECTION 3. { + (1) The Governor may declare an abnormal
disruption of the market by proclamation at the request of a
county governing body or after determining that an abnormal
disruption of the market has occurred.
(2) A county governing body that requests the Governor to
declare an abnormal disruption of the market must send the
request to the Office of Emergency Management. Cities must submit
requests through the governing body of the county in which the
majority of the city's property is located. Requests from
counties must be in writing and include a description of the
abnormal disruption of the market.
(3) A proclamation of an abnormal disruption of the market must
specify the geographical area covered by the proclamation. The
area may be no larger than necessary to effectively respond to
the abnormal disruption of the market.
(4) The Governor shall terminate the proclamation of an
abnormal disruption of the market when the abnormal disruption no
longer exists.
(5) The abnormal disruption of the market proclaimed by the
Governor may be terminated at any time by joint resolution of the
Legislative Assembly. + }
SECTION 4. { + (1) During a state of emergency declared under
ORS 401.055 or an abnormal disruption of the market declared
under section 3 of this 2001 Act, a merchant or wholesaler may
not sell or offer to sell any essential consumer goods or
services for an amount that represents an unconscionably
excessive price.
(2) Whether a price is unconscionably excessive is a question
of law to be determined by the court and not by a jury. Proof
that a price is unconscionably excessive may be shown by evidence
that either:
(a) The amount charged for the essential consumer goods or
services exceeds by 20 percent or more the price at which the
goods or services were sold or offered for sale by the merchant
or wholesaler in the usual course of business immediately prior
to the state of emergency or abnormal disruption of the market;
or
(b) The amount charged for the essential consumer goods or
services exceeds by 20 percent or more the price at which the
same or similar goods or services were readily obtainable by
other consumers in the trade area.
(3) Evidence described in subsection (2) of this section
constitutes prima facie proof of a violation of this section. It
is an affirmative defense to any claim of a violation of this
section that the amount charged by the merchant or wholesaler is:
(a) Attributable to additional costs imposed by the merchant's
or wholesaler's suppliers or necessarily incurred in procuring
the essential consumer goods or services during the state of
emergency or abnormal disruption of the market; or
(b) The result of market factors unrelated to the state of
emergency or abnormal disruption of the market. + }
SECTION 5. ORS 401.025 is amended to read:
401.025. As used in ORS 401.015 to 401.105, 401.260 to 401.325
and 401.355 to 401.580, unless the context requires otherwise:
{ + (1) 'Abnormal disruption of the market' means any
man-made or natural event or circumstance that causes essential
consumer goods or services not to be readily available. + }
{ - (1) - } { + (2) + } 'Beneficiary' has the meaning given
that term in ORS 656.005.
{ - (2) - } { + (3) + } 'Commission' means the Seismic
Safety Policy Advisory Commission established under ORS 401.337.
{ - (3) - } { + (4) + } 'Director' means the Director of
the Office of Emergency Management.
{ - (4) - } { + (5) + } 'Emergency' includes any man-made
or natural event or circumstance causing or threatening loss of
life, injury to person or property, human suffering or financial
loss { - , and includes, but is not limited to, fire, explosion,
flood, severe weather, drought, earthquake, volcanic activity,
spills or releases of oil or hazardous material as defined in ORS
466.605, contamination, utility or transportation emergencies,
disease, blight, infestation, crisis influx of migrants
unmanageable by the county, civil disturbance, riot, sabotage and
war - } .
{ - (5) - } { + (6) + } 'Emergency management agency' means
an organization created and authorized under ORS 401.015 to
401.105, 401.260 to 401.325 and 401.355 to 401.580 by the state,
county or city to provide for and assure the conduct and
coordination of functions for comprehensive emergency program
management.
{ - (6) - } { + (7) + } 'Emergency program management'
includes all the tasks and activities necessary to provide,
support and maintain the ability of the emergency services system
to prevent or reduce the impact of emergency or disaster
conditions which includes, but is not limited to, coordinating
development of plans, procedures, policies, fiscal management,
coordination with nongovernmental agencies and organizations,
providing for a coordinated communications and alert and
notification network and a public information system, personnel
training and development and implementation of exercises to
routinely test the emergency services system.
{ - (7) - } { + (8) + } 'Emergency program manager' means
the person administering the emergency management agency of a
county or city.
{ - (8) - } { + (9) + } 'Emergency service agency' means an
organization within a local government which performs essential
services for the public's benefit prior to, during or following
an emergency. This includes, but is not limited to,
organizational units within local governments, such as law
enforcement, fire control, health, medical and sanitation
services, public works and engineering, public information and
communications.
{ - (9) - } { + (10) + } 'Emergency service worker' means
an individual who, under the direction of an emergency service
agency or emergency management agency, performs emergency
services and:
(a) Is a registered volunteer or independently volunteers to
serve without compensation and is accepted by the office or the
emergency management agency of a county or city; or
(b) Is a member of the Oregon State Defense Force acting in
support of the emergency services system.
{ - (10) - } { + (11) + } 'Emergency services' includes
those activities provided by state and local government agencies
with emergency operational responsibilities to prepare for and
carry out any activity to prevent, minimize, respond to or
recover from an emergency. These activities include, without
limitation, coordination, preparedness planning, training,
interagency liaison, fire fighting, oil or hazardous material
spill or release cleanup as defined in ORS 466.605, law
enforcement, medical, health and sanitation services, engineering
and public works, search and rescue activities, warning and
public information, damage assessment, administration and fiscal
management, and those measures defined as 'civil defense' in
section 3 of the Act of January 12, 1951, P.L. 81-920 (50 U.S.C.
2252).
{ - (11) - } { + (12) + } 'Emergency services system' means
that system composed of all agencies and organizations involved
in the coordinated delivery of emergency services.
{ + (13) 'Essential consumer goods or services' means goods
or services that:
(a) Are or may be bought or rendered primarily for personal,
family or household purposes, including but not limited to
residential construction; and
(b) Are necessary for the health, safety or welfare of
consumers. + }
{ - (12) - } { + (14) + } 'Injury' means any personal
injury sustained by an emergency service worker by accident,
disease or infection arising out of and in the course of
emergency services or death resulting proximately from the
performance of emergency services.
{ - (13) - } { + (15) + } 'Local government' means any
governmental entity authorized by the laws of this state.
{ - (14) - } { + (16) + } 'Major disaster' means any event
defined as a ' major disaster' by the Act of May 22, 1974, P.L.
93-288.
{ + (17) 'Man-made or natural event or circumstance'
includes, but is not limited to, fire, explosion, flood, severe
weather, drought, earthquake, volcanic activity, spills or
releases of oil or hazardous material as defined in ORS 466.605,
contamination, utility or transportation emergencies, disease,
blight, infestation, crisis influx of migrants unmanageable by
the county, civil disturbance, riot, sabotage and war.
(18) 'Merchant' and 'wholesaler' do not include a public body,
as defined in ORS 30.260. + }
{ - (15) - } { + (19) + } 'Office' means the Office of
Emergency Management of the Department of State Police.
{ - (16) - } { + (20) + } 'Oregon emergency management
plan' means the state emergency preparedness operations and
management plan. The Office of Emergency Management is
responsible for coordinating emergency planning with government
agencies and private organizations, preparing the plan for the
Governor's signature, and maintaining and updating the plan as
necessary.
{ - (17) - } { + (21) + } 'Search and rescue' means the
acts of searching for, rescuing or recovering, by means of ground
or marine activity, any person who is lost, injured or killed
while out of doors. However, 'search and rescue' does not include
air activity in conflict with the activities carried out by the
Oregon Department of Aviation.
{ - (18) - } { + (22) + } 'Sheriff' means the chief law
enforcement officer of a county.
SECTION 6. ORS 453.307 is amended to read:
453.307. As used in ORS 453.307 to 453.414:
(1) 'Community right to know regulatory program' or 'local
program' means any law, rule, ordinance, regulation or charter
amendment established, enforced or enacted by a local government
that requires an employer to collect or report information
relating to the use, storage, release, possession or composition
of hazardous substances and toxic substances if a primary intent
of the law, rule, ordinance, regulation or charter amendment is
the public distribution of the information.
(2) 'Emergency service personnel' includes those entities
providing emergency services as defined in ORS 401.025 { - (8)
and (10) - } .
(3) 'Employer' means:
(a) Any person operating a facility that is included in one or
more of the 21 standard industrial classification categories in
Appendix B of the Natural Resources Defense Council v. Train
Consent Decree of June 8, 1976 (8 E.R.C. 2120); or
(b) Any person operating a facility designated by the State
Fire Marshal.
(4) 'Fire district' means any agency having responsibility for
providing fire protection services.
(5) 'Hazardous substance' means:
(a) Any substance designated as hazardous by the Director of
the Department of Consumer and Business Services or by the State
Fire Marshal;
(b) Any substance for which a material safety data sheet is
required by the Director of the Department of Consumer and
Business Services under ORS 654.035 and which appears on the list
of Threshold Limit Values for Chemical Substances and Physical
Agents in the Work Environment by the American Conference of
Governmental Industrial Hygienists; or
(c) Radioactive waste and material as defined in ORS 469.300
and radioactive substance as defined in ORS 453.005.
(6) 'Health professional' means a physician as defined in ORS
677.010, registered nurse, industrial hygienist, toxicologist,
epidemiologist or emergency medical technician.
(7) 'Law enforcement agency' has the meaning given that term in
ORS 181.010.
(8) 'Local government' means a city, town, county, regional
authority or other political subdivision of this state.
(9) 'Person' includes individuals, corporations, associations,
firms, partnerships, joint stock companies, public and municipal
corporations, political subdivisions, the state and any agency
thereof, and the federal government and any agency thereof.
(10) 'Trade secret' has the meaning given that term in ORS
192.501 (2).
SECTION 7. 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) Violates the provisions of ORS 803.375, 803.385 or 815.410
to 815.430.
(x) Violates ORS 646.850 (1).
(y) Violates any requirement of ORS 646.661 to 646.686.
(z) Violates the provisions of ORS 128.801 to 128.898.
(aa) Violates ORS 646.883 or 646.885.
(bb) Violates any provision of ORS 646.195.
(cc) Violates ORS 646.569.
(dd) Violates the provisions of ORS 646.859.
(ee) Violates ORS 759.290.
(ff) Violates ORS 646.872.
(gg) Violates ORS 646.553 or 646.557 or any rule adopted
pursuant thereto.
(hh) Violates ORS 646.563.
(ii) Violates ORS 759.690 or any rule adopted pursuant thereto.
(jj) Violates the provisions of ORS 759.705, 759.710 and
759.720 or any rule adopted pursuant thereto.
(kk) Violates ORS 646.892 or 646.894.
(LL) Violates any provision of ORS 646.249 to 646.259.
(mm) Violates ORS 646.384.
(nn) Violates ORS 646.871.
(oo) Violates ORS 822.046.
(pp) Violates ORS 128.001.
(qq) Violates ORS 646.649 (2) to (4).
(rr) Violates ORS 646.877 (2) to (5).
(ss) Violates ORS 87.686.
(tt) Violates ORS 646.651.
(uu) Violates ORS 646.879.
{ + (vv) Violates section 4 of this 2001 Act. + }
(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 8. { + (1) Section 3 of this 2001 Act applies to
events or circumstances occurring after the effective date of
this 2001 Act.
(2) Section 4 of this 2001 Act and the amendments to ORS
646.608 by section 7 of this 2001 Act apply to sales or offers to
sell made on or after the effective date of this 2001 Act. + }
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