74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
Enrolled
Senate Bill 62
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Governor Theodore R.
Kulongoski for State Landscape Contractors Board)
CHAPTER ................
AN ACT
Relating to landscaping; creating new provisions; and amending
ORS 671.550, 671.607, 671.690, 671.700, 671.703, 671.707,
671.710 and 701.600.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Section 2 of this 2007 Act is added to and made
a part of ORS 671.510 to 671.710. + }
SECTION 2. { + A claim against a licensed landscaping business
is payable from the bond, letter of credit or deposit required of
the landscaping business under ORS 671.690 only if the claim
arises from the performance, or a contract for the performance,
of work that is subject to ORS 671.510 to 671.710. The claim must
be of one or more of the following types:
(1) A claim against the landscaping business by the property
owner or the owner's agent for any of the following:
(a) Negligent work.
(b) Improper work.
(c) Breach of contract.
(2) A claim against the landscaping business by the property
owner or the owner's agent to discharge, or to recoup funds
expended in discharging, a lien established under ORS 87.010 to
87.060 or 87.075 to 87.093. The State Landscape Contractors Board
may reduce a claim described in this subsection by any amount the
claimant owes the contractor. The board shall process claims
described in this subsection only if:
(a) The owner paid the landscaping business for work subject to
ORS 671.510 to 671.710; and
(b) A lien established against the property of the owner under
ORS 87.010 to 87.060 or 87.075 to 87.093 is filed because the
landscaping business failed to pay the person claiming the lien
for that person's contribution toward completion of the
improvement.
(3) A claim against a licensed subcontractor by a licensed
landscaping business or by a construction contractor licensed
under ORS chapter 701, for any of the following:
(a) Negligent work.
(b) Improper work.
(c) Breach of contract.
Enrolled Senate Bill 62 (SB 62-INTRO) Page 1
(4) A claim by a person furnishing labor to a landscaping
business.
(5) A claim, as limited by rule of the board, by a person
furnishing material or renting or supplying equipment to the
landscaping business. The minimum limit set by the board may not
be more than $150.
(6) A claim by a subcontractor against the landscaping business
for unpaid labor or materials arising out of a contract. + }
SECTION 3. ORS 671.550 is amended to read:
671.550. (1) The State Landscape Contractors Board may inquire
into and inspect:
(a) Any services performed or materials furnished by a licensee
under ORS 671.510 to 671.710.
(b) The financial records of a person who it reasonably
believes is operating in violation of ORS 671.530.
(c) The services performed or materials furnished by a person
who it reasonably believes is operating in violation of ORS
671.530.
(2) Except when used for legal action or to determine
{ - negligent or improper work under ORS 671.703 - } { + a
claim described in section 2 of this 2007 Act + }, the
information obtained by an inspection authorized by this section
is confidential. However, the board shall furnish copies of any
inspection to the licensee or other person that is subjected to
an inspection.
SECTION 4. ORS 671.607 is amended to read:
671.607. (1) As used in this section:
(a) 'Landscaping business debt' means an amount owed under:
(A) A final order or arbitration award issued { - by the
State Landscape Contractors Board for a claim filed - } under
ORS 671.703; or
(B) A judgment or civil penalty arising from landscaping
business activities in any state.
(b) 'Landscaping business license' means a license issued
within the United States to engage in a landscaping business.
(c) 'Officer' means any of the following persons:
(A) A president, vice president, secretary, treasurer or
director of a corporation.
(B) A general partner in a limited partnership.
(C) A manager in a manager-managed limited liability company.
(D) A member of a member-managed limited liability company.
(E) A trustee.
(F) A person qualifying as an officer under board rules. The
definition of officer adopted by board rule may include persons
not listed in this paragraph who may exercise substantial control
over a business.
(d) 'Owner' means a sole proprietor of, general partner in or
holder of a controlling interest in a business, or a person
defined as an owner by board rule.
(2) The board shall adopt rules defining an owner for purposes
of subsection (1) of this section. The rules may not define an
owner in a manner that includes an investor who has no right to
manage a business, including but not limited to:
(a) A person who is solely a minority shareholder in a
corporation;
(b) A member of a manager-managed limited liability company; or
(c) A limited partner in a limited partnership who does not
participate in the control of the business of the limited
partnership.
Enrolled Senate Bill 62 (SB 62-INTRO) Page 2
(3) The board may suspend or refuse to issue a landscaping
business license if:
(a) The business owes a landscaping business debt or has had a
landscaping business license revoked;
(b) An owner or officer of the landscaping business owes a
landscaping business debt or has had a landscaping business
license revoked; or
(c) An owner or officer of the landscaping business was an
owner or officer of another business at the time the other
business incurred a landscaping business debt that is owing or at
the time of an event that resulted in the revocation of the other
business's landscaping business license.
(4) The board may hold the suspension or refusal of a license
under subsection (3) of this section in abeyance if the person
owing a landscaping business debt is adhering to a board-approved
plan for restitution of the amount owed.
SECTION 5. ORS 671.690 is amended to read:
671.690. (1) An applicant for a license as a landscaping
business shall file with the State Landscape Contractors Board a
surety bond with one or more corporate sureties authorized to do
business in this state, or an irrevocable letter of credit issued
by an insured institution, as defined in ORS 706.008. The amount
of the bond or letter of credit shall be:
(a) $3,000 for an applicant, unless the applicant is described
in paragraph (b), (c) or (d) of this subsection.
(b) $10,000 for an applicant who, not in conjunction with the
performance of landscaping work, constructs fences, decks,
arbors, patios, landscape edging, driveways, walkways or
retaining walls, unless the applicant is made subject to
paragraph (d) of this subsection by work on other jobs performed
by the applicant.
(c) $10,000 for an applicant who charges more than $10,000, but
less than $25,000, for a landscape job.
(d) $15,000 for an applicant who charges $25,000 or more for a
landscape job.
(2) The bond or letter of credit required under subsection (1)
of this section shall be conditioned that the applicant pays:
(a) All taxes and contributions due to the State of Oregon;
(b) All persons furnishing labor or material, or renting or
supplying equipment to the business;
(c) All amounts that may be adjudged against the business by
reason of negligent or improper work or breach of contract in
performing any work subject to ORS 671.510 to 671.710; and
(d) All amounts from the bond, letter of credit or deposit the
board orders paid under ORS 671.703.
(3) In lieu of the surety bond or letter of credit required
under subsection (1) of this section, the landscaping business
may file with the board, under the same terms and conditions as
when a bond is filed, a deposit in cash or negotiable securities
acceptable to the board.
(4) The bond, letter of credit or deposit required by this
section must be continuously on file with the board in the amount
required by this section and is for the exclusive purpose of
payment of final orders and arbitration awards { - of the
board - } in accordance with ORS 671.703. Upon termination or
cancellation of the bond, withdrawal of the deposit or reduction
of the bond, letter of credit or deposit to less than the
required amount, the licensee shall immediately:
(a) File a replacement bond, letter of credit or deposit; or
Enrolled Senate Bill 62 (SB 62-INTRO) Page 3
(b) Surrender the license to the board and cease operating as a
landscaping business.
(5) If the cost of a project makes, or foreseeably will make, a
licensee subject to a higher bond or letter of credit requirement
under subsection (1) of this section, the licensee shall
immediately file additional bonds, letters of credit or deposits
to meet the higher requirements.
(6) The landscaping business is responsible for all work that
is subject to ORS 671.510 to 671.710.
SECTION 6. ORS 671.700 is amended to read:
671.700. { + (1) If a claim is filed with the State Landscape
Contractors Board against a licensed landscaping business for
payment from the bond, letter of credit or deposit required of
the business under ORS 671.690, the board may resolve the dispute
involving the landscaping business.
(2) + } A person having a claim against a landscaping business
shall give the { - State Landscape Contractors - } board
notice of the claim in writing 90 days before any action on the
bond { + , letter of credit + } or deposit is commenced.
{ + (3) The board may not accept a claim against a
landscaping business for processing if the claim is not filed
with the board within one year after the business substantially
completed work. The board may not issue an order for the payment
of a court judgment or arbitration award from the bond, letter of
credit or deposit of a landscaping business unless the person has
timely filed with the board a claim against the business
regarding the same matter that resulted in the judgment or
award. + }
SECTION 7. ORS 671.703 is amended to read:
671.703. { - (1) If a person has a claim against a licensed
landscaping business for negligent or improper work performed by
the landscaping business, or for alleged breach of contract by
the landscaping business, the person may file the claim with the
State Landscape Contractors Board. - }
{ - (2) Upon receipt of a claim that qualifies under
subsection (1) of this section, the - }
{ + (1) Upon acceptance of a claim described in section 2 of
this 2007 Act, the State Landscape Contractors + } Board shall
initiate an investigation. Upon completion of the investigation,
if the board determines that facts exist supporting an order for
payment, the board may order the landscaping business to pay the
claim. A party to the claim may request a hearing on the order
issued by the board.
{ - (3) - } { + (2) + } Subject to subsection { - (6) - }
{ + (5) + } of this section, if the resolution of { - a claim
under this section - } { + the claim + } requires a hearing,
the board may require that the hearing be conducted as a binding
arbitration under rules adopted by the board under subsection
{ - (5) - } { + (4) + } of this section.
{ - (4) - } { + (3) + } The board may use arbitration { + ,
mediation or other forms of dispute resolution + } to resolve a
landscaping dispute between any parties who agree to follow the
rules of the board, including parties to a dispute { - not
described under subsection (1) of this section - } { + that is
not a claim described in section 2 of this 2007 Act + }.
{ - (5) - } { + (4) + } Except as provided in this
subsection, rules adopted by the board to regulate arbitration
under subsections
{ - (3) - } { + (2) + } and { - (4) - } { + (3) + } of
this section must substantially conform with the provisions of
Enrolled Senate Bill 62 (SB 62-INTRO) Page 4
ORS 36.600, 36.610 to 36.630, 36.635 (2), 36.640, 36.645 (2),
36.650 to 36.680, 36.685 (1) and 36.690 to 36.740. The rules may:
(a) Require that a hearing under ORS 183.413 to 183.470 be
conducted for issues for which a petition could be filed under
ORS 36.615, 36.620, 36.625 and 36.640;
(b) Limit orders and awards made by the arbitrator as necessary
to comply with ORS 671.510 to 671.710;
(c) Require that a request that an arbitrator modify or correct
an award under ORS 36.690 be submitted in a form specified by the
rule;
(d) Require that a petition under ORS 36.705 (2) or 36.710 (1)
be filed in a shorter period of time than provided by ORS 36.705
and 36.710; and
(e) Include any other provision necessary to conform the
arbitration to ORS 671.510 to 671.710.
{ - (6) - } { + (5) + } A party to a claim that is subject
to a board order of binding arbitration under subsection
{ - (3) - } { + (2) + } of this section may avoid the
arbitration if the party requests to have the claim resolved
through a contested case hearing or files a complaint in a court.
A party making a request or filing a complaint under this
subsection is subject to the following provisions:
(a) If the party requests to have a claim resolved through a
contested case hearing, the party must, within the time specified
in paragraph (c) of this subsection, deliver the request in
writing to the board and to all parties entitled by board rule to
receive a copy of the request.
(b) If the party files a complaint in a court, the party must,
within the time specified in paragraph (c) of this subsection,
deliver a copy of the complaint to the board and to all parties
entitled by the board rule to receive a copy of the complaint. If
the party filing the complaint is the claimant, the claimant must
allege all elements of the claim in the complaint. If the
complaint is filed by the licensed landscaping business against
whom a claim is alleged, the complaint may be a complaint for
damages, a complaint for declaratory judgment or other complaint
that allows the claimant to file a response alleging the elements
of the claim. The claimant has the burden of proving the elements
of the claim in any action described in this paragraph.
(c) A party that is subject to paragraph (a) or (b) of this
subsection must deliver a request or complaint to the board as
described in paragraphs (a) and (b) of this subsection no later
than the 30th day after the board sends notice that an
arbitration hearing has been scheduled. Failure to timely deliver
a request or complaint under this paragraph constitutes consent
to the binding arbitration.
(d) If a party makes a timely request under paragraph (a) of
this subsection for a contested case hearing and another party
timely files a complaint in compliance with paragraph (b) of this
subsection, the filing of the complaint supersedes the request
for a contested case hearing.
(e) A party may not withdraw a request made in compliance with
paragraph (a) of this subsection unless all parties agree to the
withdrawal.
(f) The provisions of paragraph (b) of this subsection are in
addition to any other requirements imposed by law regarding the
filing of a complaint.
{ - (7) - } { + (6) + } An arbitration conducted under
subsection { - (3) - } { + (2) + } or { - (4) - } { +
(3) + } of this section must be held before an administrative law
Enrolled Senate Bill 62 (SB 62-INTRO) Page 5
judge acting as arbitrator. The administrative law judge assigned
to act as arbitrator of the case on behalf of the board must be
from the Office of Administrative Hearings established under ORS
183.605. The assignment of an administrative law judge to act as
arbitrator is subject to a request for a different arbitrator
under ORS 183.645 or a rule adopted pursuant to ORS 183.645.
{ - (8) - } { + (7) + } If a party to a claim { - under
subsection (1) of this section - } { + described in section 2
of this 2007 Act + } requests a contested case hearing, the board
shall schedule the hearing. If a party { - requests that the
claim be resolved by a court - } { + files a court action to
determine the matter described in the claim + }, the board shall
suspend further processing of the claim until the
{ - claim - } { + action + } is resolved by an appropriate
court.
{ - (9) - } { + (8) + } If the { + matter described in
a + } claim is submitted for determination by a court, the board
may require that the claimant provide status reports on the
pending action. The board may dismiss or close a claim
{ - filed under subsection (1) of this section - } { +
described in section 2 of this 2007 Act + } as established by
rule of the board if the claimant fails to submit status reports
on a pending action.
{ - (10) - } { + (9) + } The board shall issue a final
order { - or arbitration award - } in a form that indicates
the maximum amount { + that is + } payable from the
{ - deposit, - } bond { + , + } { - or - } letter of credit
{ + or deposit to satisfy an order, arbitration award or
judgment + }. If the landscaping business does not pay the claim
on or before the 30th day after receiving the board order
{ - or award - } , the board shall order the claim paid out of
the { - deposit, - } bond { + , + } { - or - } letter of
credit { + or deposit + } filed under ORS 671.690.
{ - (11) - } { + (10) + } The board may dismiss or close a
claim as established by rule of the board if:
(a) The claimant does not permit the person against whom the
claim is filed to be present at any { - inspection - } { +
on-site investigation + } made by the board; or
(b) The board determines that the person against whom the claim
is filed is capable of complying with recommendations made by the
board relative to the claim, but the claimant does not permit the
person to comply with the recommendations. The board may dismiss
or close a claim under this paragraph only if the person was
licensed at the time the work was first performed and is licensed
at the time the board makes its recommendations.
{ - (12) - } { + (11) + } The board may suspend processing
a claim if the board determines that the nature or complexity of
the claim is such that a court is the appropriate forum for the
adjudication of the claim.
SECTION 8. ORS 671.707 is amended to read:
671.707. (1) If a final order of the State Landscape
Contractors Board is not paid by the { - registrant - } { +
landscaping business + }, the board shall notify the surety on
the { - registrant's - } { + business's + } bond.
(2) An order of the board that determines a claim under ORS
671.703 that becomes final by operation of law or on appeal and
remains unpaid for 20 days after the order becomes final is an
order in favor of the claimant against the { - registrant - }
{ + landscaping business + } and may be recorded with the county
clerk in any county of this state.
Enrolled Senate Bill 62 (SB 62-INTRO) Page 6
(3) Upon receipt, the clerk shall record the order in the
County Clerk Lien Record. In addition to any other remedy
provided by law, recording an order in the County Clerk Lien
Record pursuant to this section has the effect provided for in
ORS 205.125 and 205.126, and the order may be enforced as
provided in ORS 205.125 and 205.126.
SECTION 9. ORS 671.710 is amended to read:
671.710. (1) Determinations by the State Landscape Contractors
Board or judgments against the surety bond, letter of credit or
deposit of a landscaping business for claims filed during a
90-day period shall be satisfied in the priority listed in
subsections (2) to (4) of this section. The payment of a claim
filed during a 90-day period has priority over any claim filed
during a subsequent 90-day period. A 90-day period begins on the
date the first claim is filed with the board. A subsequent 90-day
period begins on the date the first claim is filed with the board
after the close of the preceding 90-day period.
(2) Determinations and judgments as a result of claims filed
within { - the - } { + a + }90-day period against a
landscaping business by owners of property upon which landscaping
work was performed { - , - } or was contracted to perform,
{ + or by the agents of the owner, + }have payment priority to
the full extent of the bond, letter of credit or deposit over all
other claims filed within { - that - } { + the same + }
90-day period.
(3) If the total of all claims { + filed + } against a
landscaping business by { - owners of property - } { +
property owners or their agents + } under subsection (2) of this
section { + within a 90-day period + } does not exhaust the
bond, letter of credit or deposit, amounts due as a result of all
other claims filed within { - that - } { + the same + }
90-day period may be satisfied from the remainder of the bond,
letter of credit or deposit { + , except that the total amount
paid from any one bond to nonowner claimants may not exceed
$3,000 + }.
(4) If the total of all claims against a landscaping business
within a { + single + } 90-day period exceeds the amount of the
bond, letter of credit or deposit available for payment of those
claims, payment from the bond, letter of credit or deposit shall
be apportioned as the board determines, subject to the claim
payment priorities established under this section.
{ + (5) The total amount paid from any one bond for recovery
of dispute resolution costs, interest and attorney fees may not
exceed $3,000. + }
{ - (5) The bond, letter of credit or deposit may not be used
to satisfy claims filed more than one year following the date the
work was completed. - }
SECTION 10. ORS 701.600 is amended to read:
701.600. ORS 701.560 to 701.595 and 701.605 do not apply:
(1) To personal injury or death claims.
(2) To claims filed pursuant to ORS { - 671.703 or - }
701.139 { + or section 2 of this 2007 Act + }.
(3) To claims against a person licensed under ORS 671.010 to
671.220.
SECTION 11. { + (1) Section 2 of this 2007 Act and the
amendments to ORS 671.700, 671.710 and 701.600 by sections 6, 9
and 10 of this 2007 Act apply to claims filed with the State
Landscape Contractors Board on or after the effective date of
this 2007 Act.
Enrolled Senate Bill 62 (SB 62-INTRO) Page 7
(2) The amendments to ORS 671.703 by section 7 of this 2007 Act
apply to claims filed with the board before, on or after the
effective date of this 2007 Act. + }
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Passed by Senate February 12, 2007
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House May 14, 2007
...........................................................
Speaker of House
Enrolled Senate Bill 62 (SB 62-INTRO) Page 8
Received by Governor:
......M.,............., 2007
Approved:
......M.,............., 2007
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2007
...........................................................
Secretary of State
Enrolled Senate Bill 62 (SB 62-INTRO) Page 9