Chapter
693
AN ACT
HB 3628
Relating to waterways; creating new provisions; amending ORS 98.245, 830.140, 830.907, 830.909, 830.912, 830.914, 830.917, 830.919, 830.922, 830.924 and 830.927; appropriating money; and limiting expenditures.
Be It Enacted by the People of the State of
SECTION 1. Section 2 of this 2003 Act is added to and made a part of ORS 830.907 to 830.927.
SECTION 2. (1)
The Abandoned Boat Removal and Cleanup Subaccount is established within the
Boating Safety, Law Enforcement and Facility Account. The subaccount shall
consist of moneys deposited into the subaccount by the State Marine Board from
fees collected pursuant to ORS 830.790 and 830.850. The moneys in the
subaccount are continuously appropriated to the board for the purposes
specified in this section.
(2)
The board may not deposit more than $150,000 per biennium into the subaccount
and may not retain more than $150,000 in the subaccount at any time. After the
board has deposited $150,000 into the subaccount under this subsection or any
time there is more than $150,000 in the subaccount, any remaining moneys from
fees collected pursuant to ORS 830.790 and 830.850 shall be deposited in the
Boating Safety, Law Enforcement and Facility Account created under ORS 830.140.
(3)
If the board or a removing authority has been unsuccessful in collecting
reimbursement for removal from the water and cleanup expenses from an owner of
an abandoned boat, floating home or boathouse that imposes an environmental
threat or safety hazard to navigation, or the owner’s insurance, the board may
use the moneys in the subaccount for:
(a)
Paying the expenses of the board in implementing ORS 830.907 to 830.927,
limited to the expenses associated with the removal and cleanup of an abandoned
boat of less than 200 gross tons, an abandoned floating home or an abandoned
boathouse; or
(b) Paying a removing authority for no more than 75 percent of the costs of the removal and cleanup of an abandoned boat of less than 200 gross tons, an abandoned floating home or an abandoned boathouse, including any salvage, towing, storage or disposal costs.
SECTION 3. ORS 830.140 is amended to read:
830.140. (1) On or before the 10th day of each month, the State Marine Board shall pay into the State Treasury, except as provided in section 2 of this 2003 Act, all moneys received by the board during the preceding calendar month. The State Treasurer shall credit the moneys to the Boating Safety, Law Enforcement and Facility Account [in the General Fund], which account hereby is created, separate and distinct from the General Fund. The moneys in the account hereby are continuously appropriated to the board for the purpose of paying the expense of administering and enforcing the provisions of this chapter. The board shall keep a record of all moneys received and expended.
(2) After paying the necessary expenses incurred by the board in administering this chapter, the funds available in the account shall be distributed, in the amounts required, for the purpose of enforcing the provisions of this chapter and the regulations adopted pursuant thereto. The board shall determine the amount required for enforcement in each county, considering the survey conducted under ORS 830.115. The funds available shall be apportioned according to the amounts required and distributed, for enforcement in each county where there is a need, under a contract entered into with a city, with the Department of State Police or with the sheriff of the county. A contract with a city or a sheriff shall be entered into only with the approval of the governing body of the city or county. The board shall determine the intervals at which the moneys shall be distributed.
(3) The governing body of any county having within its boundaries a city providing recreational boating facilities including launching ramps, may contract with the city for the purpose of enforcing the provisions of this chapter and the rules and regulations made pursuant thereto.
(4) If the city enters into a contract with the board or with a county, the county is relieved of its enforcement responsibilities within the city as agreed to by the county and the city or by the board and the city.
SECTION 4. ORS 830.907 is amended to read:
830.907. As used in ORS 830.907 to 830.927:
(1) “Boathouse” has the meaning given that term in ORS 830.700.
(2) “Established or attended moorage” means a place where a boat, floating home or boathouse is attached to a pier, piling or marina in such a way as to be secure.
(3) “Floating home” has the meaning given that term in ORS 830.700.
[(4) “Law enforcement agency” has the meaning given that term in ORS 98.245.]
(4) “Removing authority” has the meaning given that term in ORS 98.245.
SECTION 5. ORS 830.909 is amended to read:
830.909. (1) A person commits the offense of abandoning a boat, floating home or boathouse if the person leaves a boat, floating home or boathouse on the waters of this state or upon any public or private property except with the permission of the property owner, or at an established or attended moorage or in any area leased for occupation by the Division of State Lands under ORS chapter 274.
(2) The owner of the boat, floating home or boathouse as shown by the records of the State Marine Board shall be considered responsible for the abandonment of the boat, floating home or boathouse in the manner prohibited by this section and shall be liable for the cost of removal, cleanup and disposition of the abandoned boat, floating home or boathouse.
(3) A boat, floating home or boathouse abandoned in violation of this section is subject to the provisions for removal of an abandoned boat, floating home or boathouse under ORS 830.912 and 830.914 and to being sold or disposed of as provided under ORS 98.245.
SECTION 6. ORS 830.912 is amended to read:
830.912. (1) After providing notice required under ORS 830.917, a [law enforcement agency] removing authority may take a boat, floating home or boathouse into custody and remove the boat, floating home or boathouse if:
(a) The [law enforcement agency] removing authority has reason to believe the boat, floating home or boathouse is abandoned; and
(b) The boat, floating home or boathouse is left on the waters of this state or upon public or private property for a period in excess of 48 hours without permission of the property owner or authorization by statute or local ordinance.
(2) The authority in this section to remove and take a boat, floating home or boathouse into custody is in addition to any authority to remove and take a boat, floating home or boathouse into custody under ORS 830.914.
(3) A boat, floating home or boathouse removed and taken into custody under this section is subject to disposition under ORS 98.245 if the boat, floating home or boathouse is not claimed as provided under ORS 98.245 or returned to the custody of the owner or person entitled to possession.
SECTION 7. ORS 830.914 is amended to read:
830.914. (1) A [law enforcement agency] removing authority may immediately take custody of a boat, floating home or boathouse that is disabled, abandoned or left unattended on the waters of this state and that is in such a location as to constitute a hazard or obstruction to other boats, floating homes or boathouses using the waterway.
(2) The State Marine Board, by rule, shall establish additional criteria for determining when a boat, floating home or boathouse on the waters of this state or upon public or private property is subject to being taken into immediate custody under this section.
SECTION 8. ORS 830.917 is amended to read:
830.917. If a [law enforcement agency] removing authority proposes to take custody of a boat, floating home or boathouse under ORS 830.912, the [law enforcement agency] removing authority shall provide notice and shall provide an explanation of procedures available for obtaining a hearing under ORS 830.924 and for filing a claim under ORS 98.245. The notice required under this section shall comply with all of the following:
(1) Notice shall be given by affixing a notice to the boat, floating home or boathouse with the required information. The notice shall be affixed to the boat, floating home or boathouse before the boat, floating home or boathouse is taken into custody.
(2) The notice shall state all of the following:
(a) That the boat, floating home or boathouse will be subject to being taken into custody and removed by the [law enforcement agency] removing authority if the boat, floating home or boathouse is not removed before the time set by the [law enforcement agency] removing authority. Unless the boat presents a hazard, the [law enforcement agency] removing authority shall allow a sufficient time before taking the boat into custody to allow a hearing under ORS 830.924.
(b) The statute, ordinance or rule under which the [law enforcement agency] removing authority proposes to take custody of the boat, floating home or boathouse.
(c) The place where the boat, floating home or boathouse will be held in custody or the telephone number and address of the [law enforcement agency] removing authority.
(d) That the boat, floating home or boathouse, if taken into custody and removed by the [law enforcement agency] removing authority, will be subject to salvage, towing and storage charges and disposition under ORS 98.245.
(e) That the boat, floating home or boathouse will be sold to satisfy the costs of salvage, towing and storage if the charges are not paid.
(f) That the owner, possessor or person having an interest in the boat, floating home or boathouse has five days, not including holidays, Saturdays or Sundays, to request a hearing before the boat, floating home or boathouse is taken into custody.
(g) That the owner, possessor or person having an interest in the boat, floating home or boathouse may also challenge the reasonableness of any salvage, towing and storage charges at the hearing.
(h) The time within which a hearing must be requested and the method for requesting a hearing.
SECTION 9. ORS 830.919 is amended to read:
830.919. If a [law enforcement agency] removing authority takes custody of a boat, floating home or boathouse under ORS 830.914, the [law enforcement agency] removing authority shall comply with the provisions of ORS 98.245 for disposition of the boat, floating home or boathouse.
SECTION 10. ORS 830.922 is amended to read:
830.922. If there is no boat, floating home or boathouse identification number on a boat, floating home or boathouse and there is no registration number or other markings through which the State Marine Board could identify the owner of the boat, floating home or boathouse, then a [law enforcement agency] removing authority otherwise required to provide notice under ORS 830.917 is not required to provide such notice and the boat, floating home or boathouse may be removed and disposed of as provided in ORS 98.245.
SECTION 11. ORS 830.924 is amended to read:
830.924. A person provided notice under ORS 830.917 or any other person who reasonably appears to have an interest in the boat, floating home or boathouse may request a hearing under this section to contest the validity of the proposed removal and custody of a boat, floating home or boathouse under ORS 830.912 by submitting a request for hearing to the [law enforcement agency] removing authority not more than five days after the posting of the notice. The five-day period in this section does not include holidays, Saturdays or Sundays. A hearing under this section shall comply with all of the following:
(1) If the [law enforcement agency] removing authority proposing to remove a boat, floating home or boathouse under ORS 830.912 receives a request for hearing before the boat, floating home or boathouse is taken into custody and removed, the boat, floating home or boathouse shall not be removed unless the boat, floating home or boathouse constitutes a hazard.
(2) A request for hearing shall be in writing and shall state the grounds upon which the person requesting the hearing believes that the custody and removal of the boat, floating home or boathouse is not justified.
(3) Upon receipt of a request for a hearing under this section, the [law enforcement agency] removing authority shall set a time for the hearing within 72 hours of the receipt of the request and shall provide notice of the hearing to the person requesting the hearing and to the owners of the boat, floating home or boathouse and any lessors or security interest holders shown in the records of the State Marine Board, if not the same as the person requesting the hearing. The 72-hour period in this subsection does not include holidays, Saturdays or Sundays.
(4) If the [law enforcement agency] removing authority finds, after hearing and by substantial evidence on the record, that the custody and removal of a boat, floating home or boathouse was:
(a) Invalid, the [law enforcement agency] removing authority shall order the immediate release of the boat, floating home or boathouse to the owner or person with right of possession.
(b) Valid, the [law enforcement agency] removing authority shall order that the boat, floating home or boathouse be held in custody until the costs of the hearing and all salvage, towing and storage costs are paid by the party claiming the boat, floating home or boathouse. If the boat, floating home or boathouse has not yet been removed, the [law enforcement agency] removing authority shall order its removal.
(5) A person who fails to appear at a hearing under this section is not entitled to another hearing unless the person provides reasons satisfactory to the [law enforcement agency] removing authority for the person’s failure to appear.
(6) A [law enforcement agency] removing authority is required to provide only one hearing under this section for each time the [law enforcement agency] removing authority takes a boat, floating home or boathouse into custody and removes the boat, floating home or boathouse or proposes to do so.
(7) A hearing under this section may be used to determine the reasonableness of any charges that may be imposed for salvage, towing and storage of the boat, floating home or boathouse. Salvage, towing and storage charges set by law, ordinance or rule or that comply with law, ordinance or rule are reasonable for purposes of this subsection.
(8) A [law enforcement agency] removing authority shall provide to the person requesting a hearing under this section a written statement of the results of the hearing.
(9) Hearings held under this section may be informal in nature, but the presentation of evidence in a hearing shall be consistent with the presentation of evidence required for contested cases under ORS 183.450.
(10) The hearings officer at a hearing under this section may be an officer, official or employee of the [law enforcement agency] removing authority but shall not have participated in any determination or investigation related to taking into custody and removing the boat, floating home or boathouse that is the subject of the hearing.
(11) The determination of a hearings officer at a hearing under this section is a final order and is subject to appeal to the circuit court for the county in which the boat, floating home or boathouse is located at the time notice is posted under ORS 830.917.
SECTION 12. ORS 830.927 is amended to read:
830.927. If a hearing is not conducted under ORS 830.924 and a boat, floating home or boathouse taken into custody under ORS 830.917 is not reclaimed within 60 days after it is taken into custody, the [law enforcement agency] removing authority with custody of the boat, floating home or boathouse shall dispose of the boat, floating home or boathouse in accordance with ORS 98.245.
SECTION 13. ORS 98.245 is amended to read:
98.245. (1) As used in this section:
[(a) “Law enforcement agency” means a sheriff’s office, municipal police department, state police office or law enforcement agency created by intergovernmental agreement.]
(a) “Removing authority” means a sheriff’s office, a municipal police department, a state police office, a law enforcement agency created by intergovernmental agreement or a port as defined in ORS 777.005 or 778.005.
(b) “Unclaimed property” means personal property that was seized by a [law enforcement agency] removing authority as evidence, abandoned property, found property or stolen property, and that has remained in the physical possession of that [law enforcement agency] removing authority for a period of more than 60 days following conclusion of all criminal actions related to the seizure of the evidence, abandoned property, found property or stolen property, or conclusion of the investigation if no criminal action is filed.
(2) Notwithstanding ORS 98.302 to 98.436, and in addition to any other method provided by law, a [law enforcement agency] removing authority may dispose of unclaimed property as follows:
(a) An inventory describing the unclaimed property shall be prepared by the [law enforcement agency] removing authority.
(b) The [law enforcement agency] removing authority shall publish a notice of intent to dispose of the unclaimed property described in the inventory prepared pursuant to paragraph (a) of this subsection. The notice shall be posted in three public places in the jurisdiction of the [law enforcement agency] removing authority, and shall also be published in a newspaper of general circulation in the jurisdiction of the [law enforcement agency] removing authority. The notice shall include a description of the unclaimed property as provided in the inventory, the address and telephone number of the [law enforcement agency] removing authority and a statement in substantially the following form:
______________________________________________________________________________
NOTICE
The [(law enforcement agency)] (removing authority) has in its physical possession the unclaimed personal property described below. If you have any ownership interest in any of that unclaimed property, you must file a claim with the [(law enforcement agency)] (removing authority) within 30 days from the date of publication of this notice, or you will lose your interest in that property.
______________________________________________________________________________
(c) A copy of the notice described in paragraph (b) of this subsection shall also be sent to any person that the [law enforcement agency] removing authority has reason to believe has an ownership or security interest in any of the unclaimed property described in the notice. A notice sent pursuant to this paragraph shall be sent by regular mail to the last known address of the person.
(d) Prior to the expiration of the time period stated in a notice issued pursuant to this section, a person may file a claim that presents proof satisfactory to the [law enforcement agency] removing authority issuing the notice that the person is the lawful owner or security interest holder of any property described in that notice. The [law enforcement agency] removing authority shall then return the property to that person.
(e) If a [law enforcement agency] removing authority fails to return property to a person that has timely filed a claim pursuant to paragraph (d) of this subsection, the person may file, within 30 days of the date of the failure to return the property, a petition seeking return of the property to the person. The petition shall be filed in the circuit court for the county in which the [law enforcement agency] removing authority is located. If one or more petitions are filed, the [law enforcement agency] removing authority shall hold the property pending receipt of an order of the court directing disposition of the property or dismissing the petition or petitions with prejudice. If the court grants the petition, the [agency] removing authority shall turn the unclaimed property over to the petitioner in accordance with the order.
(f) Unless the [law enforcement agency] removing authority or court upholds the claim or petition under paragraph (d) or (e) of this subsection, title to all unclaimed property described in a notice issued pursuant to this section shall pass to the [law enforcement agency] removing authority free of any interest or encumbrance thereon in favor of any person who has:
(A) A security interest in the property and to whom the [law enforcement agency] removing authority mailed a copy of the notice described in paragraph (b) of this subsection in accordance with paragraph (c) of this subsection; or
(B) Any ownership interest in the property.
(g) The [law enforcement agency] removing authority may transfer good and sufficient title to any subsequent purchaser or transferee, and the title shall be recognized by all courts and governmental agencies. Any department, agency or officer of the state or any political subdivision whose official functions include the issuance of certificates or other evidence of title shall be immune from civil or criminal liability when such issuance is pursuant to a bill of sale issued by the [law enforcement agency] removing authority.
SECTION 14. Notwithstanding any other law limiting expenditures, the amount of $150,000 is established for the biennium beginning July 1, 2003, as the maximum limit for payment of expenses under section 2 of this 2003 Act from fees, moneys or other revenues, including Miscellaneous Receipts, but excluding lottery funds and federal funds, collected or received by the State Marine Board under ORS 830.790 and 830.850.
Approved
by the Governor
Filed
in the office of Secretary of State
Effective
date
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