Chapter 338 Oregon Laws 2005

AN ACT

SB 120

Relating to enforcement powers of the Director of the Department of Consumer and Business Services in transactions involving financial service providers that do not receive insured deposits; creating new provisions; and amending ORS 97.947, 97.948, 97.949, 646.396, 697.039, 697.085, 697.095, 697.702, 697.732, 697.752, 697.762, 697.832, 697.990, 697.992, 717.290, 725.310, 725.400, 726.250 and 726.910.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 97.947 is amended to read:

97.947. (1)(a) [(1) Each certified provider or master trustee is subject to the examination of] The Director of the Department of Consumer and Business Services[. The director may conduct examinations of] may examine the conditions and resources, including sales contracts, of [each] a certified provider, [or] master trustee or person acting as a certified provider or master trustee without certification or registration[, including a review of sales contracts used by the certified provider or master trustee,] to determine whether the certified provider, [or] master trustee or person acting as a certified provider or master trustee without certification or registration is complying with [the requirements of] ORS 97.923 to 97.949, [the laws of this state and] the rules of the director[.] and any other laws of this state applicable to a certified provider or master trustee.

(b) In addition to the authority conferred by ORS 97.948, the director may require a certified [providers or] provider, master [trustees] trustee or person acting as a certified provider or master trustee without certification or registration to pay the actual and reasonable costs of the examination.

(2) For the purpose of an examination under this section, the director may administer oaths and affirmations, [subpoena witnesses and] compel [their] the attendance of witnesses, take evidence and require the production of books, papers, correspondence, memoranda, agreements or other documents or records that the director considers relevant or material to the examination.

(3) If a certified provider, [or] master trustee or person acting as a certified provider or master trustee without certification or registration fails to comply with a subpoena issued under this section or a party or witness refuses to testify on any matter, the judge of the circuit court for any county, on the application of the director, shall compel obedience by proceedings for contempt as in the case of disobedience of the requirements of a subpoena issued from the court or a refusal to testify on a matter before the court.

(4) Each witness who appears before the director under a subpoena issued under this section shall receive the fees and mileage provided for witnesses in ORS 44.415 (2), except that a witness subpoenaed at the instance of parties other than the director or an examiner may not be compensated for attendance or travel unless the director certifies that the testimony of the witness was material to the matter investigated.

(5) During the course of any examination, the director may cause the depositions of witnesses to be taken in the manner prescribed by law for like depositions in civil suits in the circuit court.

SECTION 2. ORS 97.948 is amended to read:

97.948. (1) The Director of the Department of Consumer and Business Services may discipline [as provided in this section any] a certified provider, [or] master trustee[,] or person acting as a certified provider or master trustee without [a] certification or registration[,] who has been found by an audit or examination conducted by the director:

(a) To be in violation of [one or more of the provisions of] ORS 97.923 to 97.949;

(b) To [be insolvent because the certified provider’s or master trustee’s] have liabilities that exceed [the certified provider’s or master trustee’s] assets;

(d) [The certified provider or master trustee is] To be in [such] a financial condition that [the certified provider or master trustee cannot] fails to adequately protect the interests of [the certified provider’s or master trustee’s] customers.

(2) In disciplining a certified provider, master trustee or person acting as a certified provider or master trustee without [a] certification or registration [as authorized by] under subsection (1) of this section, the director may take [any or all of] the following actions:

(a) Impose probation.

(b) Suspend the certificate or registration.

(d) Place limitations on the certificate or registration.

(e) Refuse to issue or renew a certificate or registration.

(f) Issue an order to cease and desist from the activities that support the discipline.

[(f)] (g) Take [such] any other disciplinary action [as] that the director [in the director’s discretion] finds proper, including assessment of the costs of the investigation and disciplinary proceedings and assessment of a civil penalty not to exceed $10,000 per violation.

(3) If the certificate or registration of a certified provider or master trustee is suspended under this section, the holder of the certificate or registration may not engage in the activities allowed by the certificate or registration during the term of suspension. Upon the expiration of the term of suspension, the director shall reinstate the certificate or registration if the conditions for which the certificate or registration was suspended no longer exist.

(4) The director shall enter each case of disciplinary action on the records of the Department of Consumer and Business Services.

(5) Civil penalties under this section may be imposed as provided in ORS 183.745.

(6) If the director takes disciplinary action under this section, the director may send a notice of the action to the State Mortuary and Cemetery Board and to the Attorney General.

SECTION 3. ORS 97.949 is amended to read:

97.949. (1) If the Director of the Department of Consumer and Business Services has reason to believe that a person has violated any provision of ORS 97.923 to 97.949, the director may give the information relative to the violation to the appropriate federal, state or local law enforcement officer having jurisdiction over the violation.

(2) If the director, in the course of taking an action against a certified provider, master trustee or person acting as a certified provider or master trustee without [a registration or] certification or registration, finds that a salesperson or person acting as a salesperson has violated any provision of ORS 97.923 to 97.949, the director shall provide the State Mortuary and Cemetery Board with a copy of the findings and the order of the director. The board shall, upon receipt of such information, discipline the salesperson or person acting as a salesperson as required by law.

SECTION 4. Sections 5 and 6 of this 2005 Act are added to and made a part of ORS 646.382 to 646.396.

SECTION 5. The Director of the Department of Consumer and Business Services may:

(1) Undertake the investigations, including investigations outside this state, that the director considers necessary to determine whether a person has violated, is violating or is about to violate ORS 646.382 to 646.396, a rule of the director adopted under ORS 646.386 or 646.396 or an order of the director issued to enforce ORS 646.382 to 646.396;

(2) Require a person to file a statement in writing, under oath or otherwise, concerning the matter being investigated;

(3) Take evidence from witnesses and compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, agreements or other documents or records that the director considers relevant or material to an investigation or proceeding; and

(4) If the director has reason to believe that a person has violated, is violating or is about to violate ORS 646.382 to 646.396, a rule of the director adopted under ORS 646.386 or 646.396 or an order of the director issued to enforce ORS 646.382 to 646.396, issue an order to cease and desist from the violation.

SECTION 6. (1) The Director of the Department of Consumer and Business Services shall serve an order under section 5 of this 2005 Act on the person named in the order.

(2) An order issued under section 5 of this 2005 Act becomes effective upon service on the person named in the order.

(3) ORS 183.413 to 183.470 apply to an order issued under section 5 of this 2005 Act.

(4) Notwithstanding subsection (3) of this section, a person may not obtain a hearing on the order unless the person requests the hearing in writing within 20 days after service of the order.

(5) A person who does not request a contested case hearing may not obtain judicial review of the order.

(6) The director may vacate or modify an order issued under section 5 of this 2005 Act. A modified order is effective upon service on the person named in the order.

SECTION 7. ORS 646.396 is amended to read:

646.396. In addition to the [provisions of] authority conferred by ORS 646.608:

(1) Upon the director’s own motion or upon receipt of a complaint by a customer of [the] a credit services organization or of a person acting as a credit services organization without registration, the director may audit the [credit services] organization’s customer records. If the director finds any discrepancies in the customer records [of the credit services organization], the director may [also] audit [the operating accounts and] any other accounts or records kept by the [credit services] organization for discrepancies. The credit services organization or person acting as a credit services organization without registration shall pay the reasonable cost of any audit under this section, as determined by the director.

(2) The director may refuse to issue or renew or may revoke or suspend any registration under ORS 646.386 if the Department of Consumer and Business Services determines that:

(a) Any information a credit services organization files with the department is false or untruthful;

(b) A credit services organization has violated [any of the provisions of] ORS 646.382 to 646.396;

(c) A credit services organization has violated any of the rules of the department adopted under [ORS 646.380 to 646.396] this section and ORS 646.608; or

(d) A credit services organization has failed to maintain in effect the bond or an irrevocable letter of credit required [under] by ORS 646.388.

(3) If the director issued an initial order of revocation of a registration before the expiration of the registration, the director may enter a final order of revocation even though the registration has expired.

[(3)] (4) The department may impose a civil penalty in an amount not to exceed $1,000 per violation for each violation of ORS 646.382 to 646.396. The civil penalties shall be imposed as provided in ORS 183.745.

[(4)] (5) Actions of the director under subsections (1) to (4) of this section are subject to the provisions of ORS chapter 183.

[(5)] (6) The director may adopt rules necessary for the administration of ORS 646.380 to 646.396 and 646.608.

SECTION 8. Sections 9 and 10 of this 2005 Act are added to and made a part of ORS 697.005 to 697.095.

SECTION 9. (1) The Director of the Department of Consumer and Business Services may:

(a) Undertake the investigations, including investigations outside this state, that the director considers necessary to determine whether a person has:

(A) Violated, is violating or is about to violate:

(i) ORS 697.015, 697.031, 697.045, 697.058, 697.091, 697.105 or 697.115;

(ii) A rule adopted under ORS 697.031, 697.085 or 697.086; or

(iii) An order issued under this section;

(B) Filed information under ORS 697.031 that is false or untruthful; or

(C) Failed to maintain in effect the bond or an irrevocable letter of credit required under ORS 697.031.

(b) Require a person to file a statement in writing, under oath or otherwise, concerning the matter being investigated.

(c) Take evidence from witnesses and compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, agreements or other documents or records that the director considers relevant or material to an investigation or proceeding.

(d) If the director has reason to believe that a person has:

(A) Violated, is violating or is about to violate ORS 697.015, 697.031, 697.045, 697.058, 697.091, 697.105 or 697.115 or a rule adopted under ORS 697.031, 697.085 or 697.086, issue an order to cease and desist from the violation.

(B) Filed information under ORS 697.031 that is false or untruthful, issue an order to correct the filing.

(C) Failed to maintain in effect the bond or an irrevocable letter of credit required under ORS 697.031, issue an order to remedy the failure.

(2) The authority conferred by this section is in addition to and not in lieu of any other authority conferred on the director.

SECTION 10. (1) The Director of the Department of Consumer and Business Services shall serve an order under section 9 of this 2005 Act on the person named in the order.

(2) An order issued under section 9 of this 2005 Act becomes effective upon service on the person named in the order.

(3) ORS 183.413 to 183.470 apply to an order issued under section 9 of this 2005 Act.

(4) Notwithstanding subsection (3) of this section, a person may not obtain a hearing on the order unless the person requests the hearing in writing within 20 days after service of the order.

(5) A person who does not request a contested case hearing may not obtain judicial review of the order.

(6) The director may vacate or modify an order issued under section 9 of this 2005 Act. A modified order is effective upon service on the person named in the order.

SECTION 11. ORS 697.039 is amended to read:

697.039. (1) The Director of the Department of Consumer and Business Services may refuse to issue or renew or may revoke or suspend any registration under ORS 697.031 if the director determines that:

(a) Any information a person files with the director under ORS 697.031 is false or untruthful;

(b) A person has violated any of the rules of the director for registration under ORS 697.031;

(d) A person has failed to maintain in effect the bond or an irrevocable letter of credit required under ORS 697.031;

(e) A person has died or become incapacitated;

(f) A person has engaged in dishonest, fraudulent or illegal practices or conduct in any business or profession; or

(g) A person has been convicted of a felony or misdemeanor, an essential element of which is fraud.

(2) A revocation or suspension under this section may be for a time certain or upon condition that certain acts be performed.

[(3)] (4) Actions of the director under this section are subject to the provisions of ORS chapter 183.

SECTION 12. ORS 697.085 is amended to read:

697.085. [In accordance with applicable provisions of ORS chapter 183,] The Director of the Department of Consumer and Business Services may adopt rules for the administration and enforcement of ORS 697.005 to 697.095, 697.105 and 697.115.

SECTION 13. ORS 697.095 is amended to read:

697.095. (1) In addition to any other penalty provided by law, a person who violates any provision of ORS 697.015 or 697.058 or any rule adopted under ORS 697.031, [or] 697.085 or 697.086 is subject to forfeiture and payment of a civil penalty to the Department of Consumer and Business Services in an amount of not more than $1,000 for each offense.

(2) Civil penalties under this section shall be imposed as provided in ORS 183.745.

(3) All penalties recovered shall be deposited in the Consumer and Business Services Fund created by ORS 705.145.

SECTION 14. Section 15 of this 2005 Act is added to and made a part of ORS 697.602 to 697.842.

SECTION 15. (1) The Director of the Department of Consumer and Business Services may, if the director has reason to believe that a person has:

(a) Violated, is violating or is about to violate ORS 697.612 or 697.642 to 697.702, a rule adopted under ORS 697.632 or an order issued under ORS 697.732 or 697.742, issue an order to cease and desist from the violation.

(b) Filed information under ORS 697.632 that is false or untruthful, issue an order to correct the filing.

(c) Failed to maintain in effect the bond required under ORS 697.642, issue an order to remedy the failure.

(2)(a) The director shall serve an order under this section on the person named in the order.

(b) An order issued under this section becomes effective upon service on the person named in the order.

(c) ORS 183.413 to 183.470 apply to an order issued under this section.

(d) Notwithstanding paragraph (c) of this subsection, a person may not obtain a hearing on the order unless the person requests the hearing in writing within 20 days after service of the order.

(e) A person who does not request a contested case hearing may not obtain judicial review of the order.

(f) The director may vacate or modify an order issued under this section. A modified order is effective upon service on the person named in the order.

(3) The authority conferred by this section is in addition to and not in lieu of any other authority conferred on the director.

SECTION 16. ORS 697.702 is amended to read:

697.702. (1) A person commits the offense of interfering with records of a debt consolidating agency if the person does either of the following to a record to which ORS 697.672 applies:

(a) Intentionally makes a false entry in the record.

(b) Intentionally mutilates, destroys or otherwise disposes of the record.

(2) Subsection (1)(b) of this section does not apply [when] to the disposal of records by a debt consolidating agency [disposes of records as authorized] that occurs after the expiration of the retention period in ORS 697.672 [(3)].

[(3) A debt consolidating agency which commits the offense described in this section is subject to ORS 697.752, 697.762, 697.832 and 697.990 (3).]

[(4) A person other than a debt consolidating agency who commits the offense described in this section is subject to ORS 697.762, 697.832 and 697.990 (3).]

SECTION 17. ORS 697.732 is amended to read:

697.732. (1) To enforce ORS 697.612 and 697.642 to 697.702,the Director of the Department of Consumer and Business Services [has the following investigatory powers for the purpose of enforcing ORS 697.612, 697.652 to 697.702] may:

(a) [The director,] Upon the director’s own motion or upon receipt of a complaint by a client of a debt consolidating agency or of a person acting as a debt consolidating agency without registration, [may] audit the trust accounts of the agency or person for the purpose of investigating any violation of ORS [697.652] 697.642 to 697.702. The debt consolidating agency or person acting as a debt consolidating agency without registration shall pay the reasonable cost of the audit, as determined by the director.

[(b) For the purpose of investigating violations of ORS 697.652 to 697.702, the director shall have free access during all reasonable hours to the offices and places of business, books, accounts, records, papers, files, safes and vaults of all debt consolidating agencies.]

[(c)] (b) [The director may make such public or private] Undertake investigations, [within or] including investigations outside of this state, that the director considers necessary to:

(A) Determine whether a person has violated, is violating or is about to violate ORS 697.612 or [any provision of ORS 697.652] 697.642 to 697.702 or any rule of the director adopted under ORS 697.632; or

(B) Aid in the enforcement of ORS 697.612[, 697.652] and 697.642 to 697.702 and in the formulation of rules and forms under ORS 697.632.

[(d)] (c) [The director may] Require a person to file a statement in writing, under oath or otherwise, [as the director determines, as to all the facts and circumstances] concerning the matter [to be] being investigated.

(2) All debt consolidating agencies and persons acting as debt consolidating agencies without registration shall provide the director with free access during all reasonable hours to offices and places of business, books, accounts, records, papers, files, safes and vaults for the purpose of investigating violations of ORS 697.612 or 697.642 to 697.702.

[(2)] (3) The director shall maintain for public inspection records of any civil penalty imposed under ORS 697.832, any suspension, revocation or refusal to renew the registration of a debt consolidating agency and any collection on the bond or deposit of a debt consolidating agency. The record of each [such] action shall show:

(a) The order of the director or the court relating to the action.

(b) The debt consolidating agency against whom the action was taken.

[(3)] (4) Except as provided in subsection [(2)] (3) of this section, [any] records, reports [or] and other information received or compiled by the director as a result of investigations under this section [shall be] are exempt from the public disclosure [as provided in ORS 192.501 to 192.505] required by ORS 192.420.

SECTION 18. ORS 697.752 is amended to read:

697.752. (1) The Director of the Department of Consumer and Business Services may refuse to issue or renew or may revoke or suspend the registration of a debt consolidating agency if the director determines any of the following facts:

(a) The debt consolidating agency has filed false or untruthful information with the director under ORS 697.632.

(b) The debt consolidating agency has violated any of the rules of the director adopted under ORS 697.632.

(d) Any person required to register to engage in the business of debt consolidating has been convicted of a felony or a misdemeanor, an essential element of which is fraud.

(e) There has been any lapse in or any reduction of the amount of any bond filed under ORS 697.642.

(2) A revocation or suspension under this section may be for a time certain or upon condition that the debt consolidating agency meets conditions specified by the director.

(3) The conduct of hearings, issuance of orders and judicial review of orders are governed by ORS chapter 183.

SECTION 19. ORS 697.762 is amended to read:

697.762. (1) [When] If the Director of the Department of Consumer and Business Services determines that any person has engaged in, is engaging in or is about to engage in any act or practice [which] that the director believes is in violation of ORS 697.612 or [any provision of ORS 697.652] 697.642 to 697.702, the director may bring suit in the name of the State of Oregon in any circuit court of this state to enjoin the acts or practices. Upon a proper showing, the court shall grant a permanent or temporary injunction or restraining order and may appoint a receiver or conservator for the defendant or the defendant’s assets. The court [shall] may not require the director to post a bond. The court may award reasonable attorney fees to the director if the director prevails in an action under this section. The court may award reasonable attorney fees to a defendant who prevails in an action under this section if the court determines that the director had no objectively reasonable basis for asserting the claim or no reasonable basis for appealing an adverse decision of the trial court.

(2) The director may include in any suit authorized by subsection (1) of this section a claim for damages on behalf of any other person injured by any act or practice against which an injunction or restraining order is sought. The court may award appropriate relief to the person if the court finds that enforcement of the right of the person by private civil action or suit, whether by class action or otherwise, would be so burdensome or expensive as to be impracticable.

SECTION 20. ORS 697.832 is amended to read:

697.832. (1) [As provided in this section,] In addition to any other liability or penalty provided by law, the Director of the Department of Consumer and Business Services may impose a civil penalty on a person in an amount not to exceed $1,000 for each violation of ORS 697.612 or [any provision of ORS 697.652] 697.642 to 697.702, [or violation of any] rules [required to be] adopted under ORS 697.632 or order issued under section 15 of this 2005 Act.

(2) The director shall impose a civil penalty on a person under this section in the manner provided by ORS 183.745.

(3) Notwithstanding ORS 183.745, the person to whom the notice is addressed shall have 10 days from the date of mailing of the notice in which to apply for a hearing before the director.

(4) The payment or tendering of payment of a civil penalty imposed under this section shall not relieve the obligation of a person to comply with the applicable statute or rule.

(5) All penalties recovered under this section shall be paid into the State Treasury and credited to the General Fund and are available for general governmental expenses.

SECTION 21. ORS 697.990 is amended to read:

697.990. (1) Violation of ORS 697.015 or 697.058 by an individual is a Class A violation.

(2) Violation of ORS 697.015 or 697.058 by a corporation or association is a Class A violation. Any officer or agent of a corporation or association who personally participates in any violation of ORS 697.015 or 697.058 by [such] the corporation or association is subject to the penalty prescribed in subsection (1) of this section.

(3) Violation of ORS 697.612 or [any provision of ORS 697.652] 697.642 to 697.702 is punishable, upon conviction, as a Class A misdemeanor.

SECTION 22. ORS 697.992 is amended to read:

697.992. Justice courts have concurrent jurisdiction with circuit courts in all criminal prosecutions for violation of ORS 697.015, 697.058, 697.612 and [697.652] 697.642 to 697.702.

SECTION 23. ORS 717.290 is amended to read:

717.290. (1) If the Director of the Department of Consumer and Business Services determines that any person has engaged in, is engaging in or is about to engage in any act or practice constituting a violation of [any provision of] ORS 717.200 to 717.320[, 717.900 and 717.905,] or of any rule adopted or order issued under ORS 717.200 to 717.320[, 717.900 and 717.905], the director may:

(a) Order the person to cease and desist from the unlawful act or practice; and

(b) Take any affirmative action as may be necessary to carry out the provisions of ORS 717.200 to 717.320, [717.900 and 717.905] including assessing the costs of any investigation.

(2) Except as provided in subsection (3) of this section, the director [shall] may not issue an order under this section without opportunity for a hearing in accordance with ORS chapter 183.

(3) If required for the immediate protection of the public interest, the director may issue a cease and desist order [may be issued] without a hearing in accordance with ORS 183.430 (2).

(4) A cease and desist order of the director under ORS 717.200 to 717.320, 717.900 and 717.905 [shall] must state the grounds upon which the order is based and, except for a summary order issued in accordance with ORS 183.430 (2), [shall] does not become effective for at least 20 days after written notice of the order has been sent by registered or certified mail to the person at the person’s principal place of business.

(5) Appeals from a cease and desist order of the director may be taken to the courts of this state as provided by ORS chapter 183.

SECTION 24. ORS 725.310 is amended to read:

725.310. (1) For discovering violations of this chapter and securing information required by the Director of the Department of Consumer and Business Services under this chapter, the director at any time may investigate the loans and business, including the books, accounts, records and files used [therein] in the loans and business, of every [licensee and every nonlicensee] person licensed or required to be licensed under this chapter.

(2) For purposes of subsection (1) of this section:

(a) A person licensed or required to be licensed under this chapter shall give the director [shall have] free access to the person’s place of business, books, accounts, safes and vaults [of all such persons].

(b) The director may:

(A) Make an investigation without prior notice to the person being investigated.

[(c)] (B) [The director shall have authority to] Compel the attendance of witnesses and examine the witnesses under oath [all persons whose testimony the director may require relative to such loans or business].

(C) Require the production of documents or records.

(3) Each person examined under this section shall pay the actual cost of an investigation to the director. The director may maintain an action for the recovery of [such] the costs in any court of competent jurisdiction.

SECTION 25. ORS 725.400 is amended to read:

725.400. (1) The Director of the Department of Consumer and Business Services may issue and serve upon [a licensee or a director, officer, employee or agent of a licensee] the following persons an order to cease and desist from a violation when the director has reasonable cause to believe that the person to whom the order is directed is violating, has violated or is about to violate any provision of this chapter or a rule or order of the director[.]:

(a) A licensee.

(b) A director, officer, employee or agent of a licensee.

(c) A person acting as a consumer finance lender without a license.

(2) An order under subsection (1) of this section [shall] must include the following:

(a) A statement of the facts constituting the violation.

(b) A provision requiring the person named in the order to cease and desist from the violation. The provision may be mandatory or otherwise.

(d) A notice to the person named in the order of the right to a contested case hearing under ORS chapter 183.

(3) An order under this section [shall be] is effective 30 days after the date of the order unless the person named in the order requests a hearing [thereon] on the order.

(4) An order under this section remains in effect until it is withdrawn by the director or by a court [order].

(5) If an individual named in an order under this section fails to comply with the order, the director may issue an order removing or suspending the [person] individual from the office or position held by the individual. The removal or suspension is in addition to any penalty provided by ORS 725.910 for failure to comply with an order issued under this section.

SECTION 26. Section 27 of this 2005 Act is added to and made a part of ORS chapter 726.

SECTION 27. (1) The Director of the Department of Consumer and Business Services may, if the director has reason to believe that a person has:

(a) Violated, is violating or is about to violate ORS 726.040, 726.100, 726.110, 726.130, 726.270, 726.280, 726.285, 726.290, 726.300, 726.390, 726.400 or 726.410, a rule adopted under ORS 726.260 or an order issued under this chapter, issue an order to cease and desist from the violation.

(b) Failed to file the annual report required by ORS 726.130, issue an order to file the report.

(c) Filed information under ORS 726.060, 726.110, 726.130 or 726.250 that is false or untruthful, issue an order to correct the filing.

(d) Failed to maintain in effect the bond or an irrevocable letter of credit required under ORS 726.070, issue an order to remedy the failure.

(2)(a) The director shall serve an order under this section on the person named in the order.

(b) An order issued under this section becomes effective upon service on the person named in the order.

(c) ORS 183.413 to 183.470 apply to an order issued under this section.

(d) Notwithstanding paragraph (c) of this subsection, a person may not obtain a hearing on the order unless the person requests the hearing in writing within 20 days after service of the order.

(e) A person who does not request a contested case hearing may not obtain judicial review of the order.

(f) The director may vacate or modify an order issued under this section. A modified order is effective upon service on the person named in the order.

(3) The authority conferred by this section is in addition to and not in lieu of any other authority conferred on the director.

SECTION 28. ORS 726.250 is amended to read:

726.250. (1)(a) For the purpose of discovering violations of this chapter or securing information required by the Director of the Department of Consumer and Business Services under this chapter, the director at any time, either personally or by an examiner or other employee of the Department of Consumer and Business Services, may investigate the pledge loans and business and examine the books, accounts, records and files used [therein] in the pledge loans and business of every pawnbroker and of every person [who] that the director has reason to believe is [doing the business described in ORS 726.010] acting as a pawnbroker without a license, whether that person acts or claims to act as principal or agent, or under or without the authority of this chapter.

(b) For [such purpose] the purposes of paragraph (a) of this subsection:

(A) Every pawnbroker and person that the director has reason to believe is acting as a pawnbroker without a license shall give the director, examiner or other employee of the department [shall have] free access to the person’s place of business, books, accounts, papers, records, files, safes and vaults [of all such persons.]; and

(B) The director, examiner or other employee may:

(i) Compel the attendance of witnesses and examine the witnesses under oath; and

(ii) Require the production of documents or records.

(c) The actual cost of each examination shall be paid to the director by every [licensee so] person examined. The director may maintain an action for recovery of [such] costs in any court of competent jurisdiction. [The director, examiner or other employee of the department may examine under oath all persons whose testimony may be required relative to such pledge loans or business.]

(2) At least once every two calendar years or as often as the director determines necessary, the director, examiner or other employee of the department shall make an examination of the pledge loans and business, office records and files of each licensed pawnbroker. The examination shall occur at the licensed location of the pawnbroker.

(3) At least once during any calendar year in which an examination is not conducted under subsection (2) of this section, each licensed pawnbroker shall submit to the director for examination, at the office of the director, those books, records and documents prescribed by the director by rule.

SECTION 29. ORS 726.910 is amended to read:

726.910. (1) Any person who violates ORS 726.040, 726.100, 726.110, 726.130, 726.270, 726.280, 726.285, 726.290, 726.300,726.390 [or], 726.400 or 726.410 or any rule adopted under ORS 726.260 or an order issued under section 27 of this 2005 Act shall forfeit a civil penalty in an amount determined by the Director of the Department of Consumer and Business Services of not more than $2,500. The civil penalty forfeited shall be paid into the State Treasury and credited as provided in ORS 705.145. In addition, the director may revoke the license of any licensee who violates any such provision.

(2) The civil penalty may be recovered in an action brought [thereon] in the name of the State of Oregon in any court of appropriate jurisdiction or may be imposed as provided in ORS 183.745.

(3) In any court action with respect to a civil penalty, including judicial review under ORS 183.745, the court may review the penalty as to both liability and reasonableness of amount.

SECTION 30. The amendments to ORS 97.947 by section 1 of this 2005 Act apply to:

(1) Conditions and resources, including sales contracts, in existence before, on or after the effective date of this 2005 Act.

(2) Conduct occurring before, on or after the effective date of this 2005 Act.

SECTION 31. The order authorized by the amendments to ORS 97.948 by section 2 of this 2005 Act applies to actions occurring before, on or after the effective date of this 2005 Act.

SECTION 32. Sections 5, 9, 15 and 27 of this 2005 Act apply to conduct occurring before, on or after the effective date of this 2005 Act.

SECTION 33. The amendments to ORS 646.396 by section 7 of this 2005 Act apply to customer records in existence before, on or after the effective date of this 2005 Act and registrations issued or renewed before, on or after the effective date of this 2005 Act.

SECTION 34. The amendments to ORS 697.039 by section 11 of this 2005 Act apply to registrations issued or renewed before, on or after the effective date of this 2005 Act.

SECTION 35. The amendments to ORS 697.095, 697.752, 697.762, 697.832, 697.990 and 697.992 by sections 13 and 18 to 22 of this 2005 Act apply to violations occurring on or after the effective date of this 2005 Act.

SECTION 36. The amendments to ORS 697.732 by section 17 of this 2005 Act apply to:

(1) Trust accounts in existence before, on or after the effective date of this 2005 Act.

(2) Conduct occurring before, on or after the effective date of this 2005 Act.

SECTION 37. The amendments to ORS 717.290 and 725.400 by sections 23 and 25 of this 2005 Act apply to violations occurring before, on or after the effective date of this 2005 Act.

SECTION 38. The amendments to ORS 725.310 by section 24 of this 2005 Act apply to loans and business in existence before, on or after the effective date of this 2005 Act.

SECTION 39. The amendments to ORS 726.250 by section 28 of this 2005 Act apply to pledge loans and business in existence before, on or after the effective date of this 2005 Act.

SECTION 40. The amendments to ORS 726.910 by section 29 of this 2005 Act apply to violations occurring on or after the effective date of this 2005 Act.

Approved by the Governor June 29, 2005

Filed in the office of Secretary of State June 29, 2005

Effective date January 1, 2006

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