72nd OREGON LEGISLATIVE ASSEMBLY--2003 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 3582
A-Engrossed
House Bill 3628
Ordered by the House July 25
Including House Amendments dated July 25
Sponsored by COMMITTEE ON TRANSPORTATION (at the request of
Oregon Ports Group)
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.
Creates Abandoned Boat Removal and Cleanup Subaccount.
Appropriates moneys from subaccount for removal and cleanup of
abandoned boats, floating homes, boathouses and other hazards to
navigation.
Authorizes ports to dispose of abandoned boats, floating homes
and boathouses.
{ + Limits expenditures from fees, moneys or other revenues,
including Miscellaneous Receipts, but excluding lottery and
federal funds, collected or received by State Marine Board. + }
A BILL FOR AN ACT
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 Oregon:
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. + }
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