Chapter 223
AN ACT
SB 118
Relating to protection of consumers from unconscionably excessive
prices; creating new provisions; amending ORS 401.025 and 646.607; and
declaring an emergency.
Be It Enacted by the People of
the State of
SECTION 1. (1)
The Legislative Assembly finds that during an abnormal disruption of the
market, some merchants and wholesalers have taken unconscionable advantage of
consumers by charging grossly excessive prices for essential consumer goods and
services.
(2) To prevent merchants
and wholesalers from taking unconscionable advantage of consumers during an
abnormal disruption 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 2007 Act are added to and made a part of ORS 401.015 to
401.105.
SECTION 3. (1)
If the Governor determines that an abnormal disruption of the market has
occurred, the Governor may declare an abnormal disruption of the market by a
proclamation, as part of a state of emergency declared under ORS 401.055, or
both.
(2) The Governor’s
declaration of an abnormal disruption of the market under subsection (1) of
this section shall specify:
(a) The geographical
area covered by the declaration. The area may be no larger than necessary to
effectively respond to the abnormal disruption of the market.
(b) The date and time at
which the abnormal disruption of the market commenced. The date of commencement
of the abnormal disruption of the market may precede the date on which the
declaration is made.
(c) That the declaration
will terminate automatically 30 days after the date on which the Governor makes
the declaration unless the Governor extends the declaration in accordance with
paragraph (d) of this subsection or unless the Governor or the Legislative
Assembly terminates the declaration sooner.
(d) That the Governor
may extend the declaration for additional 30-day periods by subsequent
declarations that the abnormal disruption of the market continues to exist.
(3) The Governor’s
declaration of an abnormal disruption of the market is subject to termination:
(a) By the Governor when
the Governor determines that an abnormal disruption of the market no longer
exists.
(b) At any time by joint
resolution of the Legislative Assembly.
(c) Automatically 30
days after the date on which the Governor makes the declaration unless the
Governor or the Legislative Assembly terminates the declaration sooner. The
Governor may extend the declaration for subsequent 30-day periods by declaring
for each such extension that the abnormal disruption of the market continues to
exist. An extension the Governor declares in accordance with this paragraph
also terminates 30 days after the date on which the Governor declared the
extension unless the Governor declares another extension or unless the Governor
or the Legislative Assembly terminates the extension sooner.
SECTION 4. (1)
As used in this section, the terms “merchant” and “wholesaler” do not include a
public body as that term is defined in ORS 174.109, a public utility as defined
in ORS 757.005 (1)(a)(A) or an electric utility as defined in ORS 757.600.
(2) A merchant or wholesaler
may not sell or offer to sell essential consumer goods or services for an
amount that represents an unconscionably excessive price during a declaration
of an abnormal disruption of the market under section 3 of this 2007 Act.
(3) It is a question of
law whether a price is unconscionably excessive. Proof that a price is
unconscionably excessive may be shown by evidence that:
(a) The amount charged
for essential consumer goods or services exceeds by 15 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 or
during a declaration of an abnormal disruption of the market; or
(b) The amount charged
for the essential consumer goods or services exceeds by 15 percent or more the
price at which the same or similar consumer goods or services were readily
obtainable by other consumers in or near the geographical area covered by the
declaration of an abnormal disruption of the market.
(4) Evidence described
in subsection (3) of this section constitutes prima facie proof of a violation
of this section. Evidence described in subsection (3) of this section is not
prima facie evidence of a violation of this section if 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
immediately prior to or during the declaration of an abnormal disruption of the
market; or
(b) The result of
increased internal costs or expenses related to the declaration of an abnormal
disruption of the market or the result of increased costs unrelated to the
declaration of an 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 human created or natural event or circumstance
that causes essential consumer goods or services to be not 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) “Emergency” includes any [human caused] human created 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] a
crisis influx of migrants unmanageable by a county.
[(4)] (5) “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.
[(5)] (6) “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.
[(6)] (7) “Emergency program manager” means the person
administering the emergency management agency of a county or city.
[(7)] (8) “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.
[(8)] (9) “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 of Emergency Management 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.
[(9)] (10) “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)] 50 U.S.C. app. 2252.
[(10)] (11) “Emergency services system” means that system
composed of all agencies and organizations involved in the coordinated delivery
of emergency services.
(12) “Essential
consumer goods or services” means goods or services that:
(a) Are or may be bought
or acquired primarily for personal, family or household purposes, including but
not limited to residential construction materials or labor, shelter for payment
such as a hotel room, food, water or petroleum products such as gasoline or
diesel fuel; and
(b) Are necessary for
the health, safety or welfare of consumers.
(13) “Human created or
natural event or circumstance” includes, but is not limited to, fire,
explosion, flood, severe weather, landslides or mud slides, drought,
earthquake, volcanic activity, tsunamis or other oceanic phenomena, spills or
releases of oil or hazardous material as defined in ORS 466.605, contamination,
utility or transportation emergencies, disease, blight, infestation, civil
disturbance, riot, sabotage, acts of terrorism or war.
[(11)] (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.
[(12)] (15) “Local government” means any governmental entity
authorized by the laws of this state.
[(13)] (16) “Major disaster” means any event defined as a “major
disaster” under 42 U.S.C. 5122(2).
[(14)] (17) “
[(15)] (18) “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.
[(16)] (19) “Sheriff” means the chief law enforcement officer
of a county.
SECTION 6.
ORS 646.607 is amended to read:
646.607. A person
engages in an unlawful practice when in the course of the person’s business,
vocation or occupation the person:
(1) Employs any
unconscionable tactic in connection with the sale, rental or other
disposition of real estate, goods or services, or collection or enforcement of
an obligation; [or]
(2) Fails to deliver all
or any portion of real estate, goods or services as promised, and upon request of
the customer, fails to refund any money that has been received from the
customer that was for the purchase of the undelivered real estate, goods or
services and that is not retained by the seller pursuant to any right, claim or
defense asserted in good faith. This subsection does not create a warranty
obligation and does not apply to a dispute over the quality of real estate,
goods or services delivered to a customer; or
(3) Violates section 4
of this 2007 Act.
SECTION 7. (1)
Section 3 of this 2007 Act applies to events or circumstances that occur on or
after the effective date of this 2007 Act.
(2) Section 4 of this
2007 Act and the amendments to ORS 646.607 by section 6 of this 2007 Act apply
to sales or offers to sell essential consumer goods or services that are made
on or after the effective date of this 2007 Act.
(3) The remedies
provided in section 4 of this 2007 Act and in the amendments to ORS 646.607 by
section 6 of this 2007 Act are in addition to any other remedies that may exist
under the law.
SECTION 8. This
2007 Act being necessary for the immediate preservation of the public peace,
health and safety, an emergency is declared to exist, and this 2007 Act takes
effect on its passage.
Approved by the Governor May 30, 2007
Filed in the office of Secretary of State May 31, 2007
Effective date May 30, 2007
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