Chapter 820
AN ACT
SB 684
Relating to consumer protection; creating new provisions; amending ORS
646.608; and declaring an emergency.
Be It Enacted by the People of
the State of
SECTION 1. As used in sections 1 to 6 of this 2007 Act:
(1) “Affiliated business”
means a business or business location that is directly or indirectly controlled
by, or under common control with, the business location listed in the notice of
a going out of business sale or that has a common ownership interest in the
merchandise to be sold at the business location listed in the notice of the
sale.
(2)(a) “Going out of
business sale” means a sale or auction advertised or held out to the public as
the disposal of merchandise in anticipation of cessation of business, including
but not limited to a sale or auction advertised or held out to the public as a “going
out of business sale,” a “closing out sale,” a “quitting business sale,” a “loss
of lease sale,” a “must vacate sale,” a “liquidation sale,” a “bankruptcy sale,”
a “sale to prevent bankruptcy” or another description suggesting price
reduction due to the imminent closure of the business.
(b) “Going out of
business sale” does not include a sale conducted by a bankruptcy trustee or a
court-appointed receiver.
(3) “Merchandise” means
goods, wares or other property or services capable of being the object of a
sale regulated under sections 1 to 6 of this 2007 Act.
(4) “Notice of intent”
means a notice filed with the Secretary of State that a person intends to
conduct a going out of business sale.
(5) “Person” has the
meaning given that term in ORS 646.605.
SECTION 2. (1) Except as provided in subsection (3) of
this section, a person may not sell, offer for sale or advertise for sale
merchandise at a going out of business sale unless the person has filed a
notice of intent with the Secretary of State.
(2) A person must
display a copy of the notice of intent filed with the Secretary of State in a
prominent place on the premises where the going out of business sale is being
conducted.
(3) If a going out of
business sale is conducted as part of a bankruptcy, receivership or other
court-ordered action, a person:
(a) Need not file a
notice of intent with the Secretary of State.
(b) Shall display the
court order or judgment ordering the sale in a prominent place on the premises
where the going out of business sale is being conducted.
(4) A person may not:
(a) Conduct a going out
of business sale for more than 90 days from the beginning date of the sale listed
on the notice of intent.
(b) Continue to conduct
a going out of business sale beyond the ending date listed on the notice of
intent.
(5) A person who has
conducted a going out of business sale may not conduct another going out of
business sale for a period of one year after the ending date of the sale listed
on the notice of intent.
SECTION 3. A person filing a notice of intent with the
Secretary of State shall provide all of the following information in the notice
of intent:
(1) The name, address and
telephone number of the owner of the merchandise to be sold. If the owner is a
corporation, trust, unincorporated association, partnership or other legal
entity, the person signing the notice must be an officer of the entity and must
identify the person’s title.
(2) The name, address
and telephone number of the person who will be in charge of and responsible for
the conduct of the sale.
(3) The descriptive
name, location and beginning and ending dates of the sale.
SECTION 4. A person may not conduct a going out of
business sale if a person who has an ownership interest in the business or in
the merchandise to be sold is subject to a court order resulting from a civil
enforcement action under ORS 646.608 or sections 1 to 6 of this 2007 Act.
SECTION 5. (1) A person intending to conduct a going
out of business sale may not transfer merchandise from an affiliated business
or business location to the location of the sale.
(2) A person, after
filing a notice of intent, may not buy or order merchandise, take merchandise
on consignment or receive a transfer of merchandise from an affiliated business
or business location for the purpose of selling the merchandise at the sale or
sell such merchandise in a going out of business sale.
SECTION 6. (1) Sections 1 to 6 and 7 of this 2007 Act
and ORS 646.608 (1)(fff) apply only to persons who
engage in the retail sale of merchandise in the regular course of their
business.
(2) Sections 1 to 6 and
7 of this 2007 Act and ORS 646.608 (1)(fff) do not
apply to public officials acting within the scope of their duties as public
officials.
SECTION 7. (1) As used in this section:
(a) “Appropriate court”
has the meaning given that term in ORS 646.605.
(b) “Relevant market”
means:
(A) A product market
that consists of products or services that a consumer would regard as
interchangeable or substitutable by reason of the products’ or services’
characteristics, prices and intended use; or
(B) A geographic market
that consists of the area in which the persons concerned are involved in the
supply of a product or service and in which the conditions of competition are
sufficiently homogenous.
(c) “Sham sale” means a
going out of business sale, as defined in section 1 of this 2007 Act, conducted
with the intent to continue the same or a similar business in the same location
or at a location within the same relevant market but that is a sale that is
represented as being conducted due to a cessation of business.
(2) A person may bring
an action in an appropriate court to enjoin another person in the same relevant
market from conducting a sham sale if the person reasonably believes the other
person is conducting a sham sale. The court may provide such equitable relief
as it deems necessary or proper.
(3) In an action brought
by a person under this section, the court may award reasonable attorney fees to
the person.
(4) It is prima facie
evidence that a person alleged to be conducting a sham sale has the intent to
continue the same or a similar business if:
(a) The person regularly
receives additional inventory during the sham sale or, immediately prior to the
sham sale, receives additional inventory that is not regularly delivered;
(b) The sham sale
exceeds 90 days; or
(c) The same or a
similar business that consists of inventory remaining from the sham sale and
that has the same principal ownership resumes business in the same relevant
market within 12 months from the cessation of the business.
(5) It is an affirmative
defense to an action brought under this section that, during an alleged sham
sale, the person no longer needed to go out of business and immediately
canceled the alleged sham sale.
SECTION 8. ORS 646.608 is amended to read:
646.608. (1) A person engages in an unlawful practice when in the course
of the person’s business, vocation or occupation the person does any of the
following:
(a) Passes off real
estate, goods or services as those of another.
(b) Causes likelihood of
confusion or of misunderstanding as to the source, sponsorship, approval, or
certification of real estate, goods or services.
(c) Causes likelihood of
confusion or of misunderstanding as to affiliation, connection, or association
with, or certification by, another.
(d) Uses deceptive
representations or designations of geographic origin in connection with real
estate, goods or services.
(e) Represents that real
estate, goods or services have sponsorship, approval, characteristics,
ingredients, uses, benefits, quantities or qualities that they do not have or
that a person has a sponsorship, approval, status, qualification, affiliation,
or connection that the person does not have.
(f) Represents that real
estate or goods are original or new if they are deteriorated, altered,
reconditioned, reclaimed, used or secondhand.
(g) Represents that real
estate, goods or services are of a particular standard, quality, or grade, or
that real estate or goods are of a particular style or model, if they are of
another.
(h) Disparages the real
estate, goods, services, property or business of a customer or another by false
or misleading representations of fact.
(i) Advertises real
estate, goods or services with intent not to provide them as advertised, or
with intent not to supply reasonably expectable public demand, unless the
advertisement discloses a limitation of quantity.
(j) Makes false or
misleading representations of fact concerning the reasons for, existence of, or
amounts of price reductions.
(k) Makes false or
misleading representations concerning credit availability or the nature of the
transaction or obligation incurred.
(L) Makes false or
misleading representations relating to commissions or other compensation to be
paid in exchange for permitting real estate, goods or services to be used for
model or demonstration purposes or in exchange for submitting names of
potential customers.
(m) Performs service on
or dismantles any goods or real estate when not authorized by the owner or
apparent owner thereof.
(n)
Solicits potential customers by telephone or door to door as a seller unless
the person provides the information required under ORS 646.611.
(o) In a sale, rental or
other disposition of real estate, goods or services, gives or offers to give a
rebate or discount or otherwise pays or offers to pay value to the customer in
consideration of the customer giving to the person the names of prospective
purchasers, lessees, or borrowers, or otherwise aiding the person in making a
sale, lease, or loan to another person, if earning the rebate, discount or
other value is contingent upon occurrence of an event subsequent to the time
the customer enters into the transaction.
(p) Makes any false or
misleading statement about a prize, contest or promotion used to publicize a
product, business or service.
(q) Promises to deliver
real estate, goods or services within a certain period of time with intent not
to deliver them as promised.
(r) Organizes or induces
or attempts to induce membership in a pyramid club.
(s) Makes false or
misleading representations of fact concerning the offering price of, or the person’s
cost for real estate, goods or services.
(t) Concurrent with
tender or delivery of any real estate, goods or services fails to disclose any
known material defect or material nonconformity.
(u) Engages in any other
unfair or deceptive conduct in trade or commerce.
(v) Violates any of the
provisions relating to auction sales, auctioneers or auction marts under ORS
698.640, whether in a commercial or noncommercial situation.
(w) Manufactures mercury
fever thermometers.
(x) Sells or supplies
mercury fever thermometers unless the thermometer is required by federal law,
or is:
(A) Prescribed by a
person licensed under ORS chapter 677; and
(B) Supplied with
instructions on the careful handling of the thermometer to avoid breakage and
on the proper cleanup of mercury should breakage occur.
(y) Sells a thermostat
that contains mercury unless the thermostat is labeled in a manner to inform
the purchaser that mercury is present in the thermostat and that the thermostat
may not be disposed of until the mercury is removed, reused, recycled or
otherwise managed to ensure that the mercury does not become part of the solid
waste stream or wastewater. For purposes of this paragraph, “thermostat” means
a device commonly used to sense and, through electrical communication with
heating, cooling or ventilation equipment, control room temperature.
(z) Sells or offers for
sale a motor vehicle manufactured after January 1, 2006, that contains mercury
light switches.
(aa)
Violates the provisions of ORS 803.375, 803.385 or 815.410 to
815.430.
(bb)
Violates ORS 646.850 (1).
(cc) Violates
any requirement of ORS 646.661 to 646.686.
(dd)
Violates the provisions of ORS 128.801 to 128.898.
(ee)
Violates ORS 646.883 or 646.885.
(ff)
Violates any provision of ORS 646.195.
(gg)
Violates ORS 646.569.
(hh)
Violates the provisions of ORS 646.859.
(ii) Violates ORS
759.290.
(jj)
Violates ORS 646.872.
(kk)
Violates ORS 646.553 or 646.557 or any rule adopted pursuant
thereto.
(LL) Violates ORS
646.563.
(mm)
Violates ORS 759.690 or any rule adopted pursuant thereto.
(nn)
Violates the provisions of ORS 759.705, 759.710 and 759.720
or any rule adopted pursuant thereto.
(oo)
Violates ORS 646.892 or 646.894.
(pp) Violates
any provision of ORS 646.249 to 646.259.
(qq)
Violates ORS 646.384.
(rr)
Violates ORS 646.871.
(ss) Violates
ORS 822.046.
(tt)
Violates ORS 128.001.
(uu)
Violates ORS 646.649 (2) to (4).
(vv)
Violates ORS 646.877 (2) to (4).
(ww)
Violates ORS 87.686.
(xx) Violates ORS
646.651.
(yy)
Violates ORS 646.879.
(zz)
Violates ORS 646.402 or any rule adopted under ORS 646.402 or
646.404.
(aaa)
Violates ORS 180.440 (1).
(bbb)
Commits the offense of acting as a vehicle dealer without a
certificate under ORS 822.005.
(ccc)
Violates ORS 87.007 (2) or (3).
(ddd)
Violates ORS 92.405 (1), (2) or (3).
(eee)
Engages in an unlawful practice under ORS 646.648.
(fff)
Violates section 2, 4 or 5 of this 2007 Act.
(2) A representation
under subsection (1) of this section or ORS 646.607 may be any manifestation of
any assertion by words or conduct, including, but not limited to, a failure to
disclose a fact.
(3) In order to prevail
in an action or suit under ORS 646.605 to 646.652, a prosecuting attorney need
not prove competition between the parties or actual confusion or
misunderstanding.
(4) An action or suit
may not be brought under subsection (1)(u) of this
section unless the Attorney General has first established a rule in accordance
with the provisions of ORS chapter 183 declaring the conduct to be unfair or
deceptive in trade or commerce.
(5) Notwithstanding any
other provision of ORS 646.605 to 646.652, if an action or suit is brought
under subsection (1)(aaa) of this section by a person other than a prosecuting
attorney, relief is limited to an injunction and the prevailing party may be
awarded reasonable attorney fees.
SECTION 9. Sections 1 to 6 and 7 of this 2007 Act and
the amendments to ORS 646.608 by section 8 of this 2007 Act become operative on
January 1, 2008.
SECTION 10. 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 July 17, 2007
Filed in the office of Secretary of State July 19, 2007
Effective date July 17, 2007
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