74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
Enrolled
Senate Bill 94
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 Construction Contractors Board)
CHAPTER ................
AN ACT
Relating to construction contractors; creating new provisions;
and amending ORS 18.635, 87.058, 87.093, 205.125, 205.126,
701.065, 701.085, 701.102, 701.103, 701.135, 701.139, 701.140,
701.143, 701.145, 701.146, 701.147, 701.148, 701.149, 701.150,
701.175, 701.180, 701.227, 701.235, 701.252 and 701.600.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 18.635 is amended to read:
18.635. (1) A writ of garnishment may be issued only by a
person specified in this section.
(2) The court administrator may issue a writ pursuant to ORS
18.638 and 18.640 only:
(a) For the enforcement of a judgment that requires the payment
of money and that has been entered in the register of a circuit
court or docketed in the docket of a justice or municipal court;
(b) Pursuant to an order for provisional process under ORCP 83
and 84; or
(c) On behalf of a { + complainant or + } claimant under an
order recorded pursuant to ORS 671.707 or 701.150, if the
{ + complainant or + } claimant has complied with the
requirements of ORS 205.126.
(3) An attorney who is an active member of the Oregon State Bar
may issue a writ for the purpose of enforcing:
(a) A judgment that requires payment of money and that has been
entered in the register of a circuit court of this state or
docketed in the docket of a justice or municipal court of this
state; and
(b) An order or warrant that an agency has recorded in the
County Clerk Lien Record as authorized by law, including any
order that has been recorded pursuant to ORS 671.707 or 701.150.
(4) The administrator, as defined in ORS 25.010, may issue
writs of garnishment only for the collection of past due support.
Writs issued under this subsection are subject to the provisions
of ORS 18.645.
SECTION 2. ORS 87.058 is amended to read:
87.058. (1) As used in this section:
(a) { + Notwithstanding ORS 87.005, + } 'contractor' has the
meaning given that term in ORS 701.005.
Enrolled Senate Bill 94 (SB 94-A) Page 1
(b) 'Board' means the Construction Contractors Board
established in ORS 701.205.
(2) { - When - } { + If a person files + } a suit to
enforce a lien perfected under ORS 87.035 { - is filed - } and
the owner of the structure subject to that lien files a
{ - claim - } { + complaint + } that is being processed by the
board under ORS 701.145 against a contractor who performed work
on the structure, the owner may obtain a stay of proceedings on
the suit to enforce the lien if:
(a) The owner already has paid the contractor for that
contractor's work that is subject to this chapter on the
structure;
(b) The person suing to enforce the lien perfected under ORS
87.035:
(A) Performed work that is subject to ORS chapter 701 on the
structure for the contractor who has been paid by the owner;
(B) Furnished labor, services or materials or rented or
supplied equipment used on the structure to the contractor who
has been paid by the owner; or
(C) Otherwise acquired the lien as a result of a contribution
toward completion of the structure for which the contractor has
been paid by the owner; and
(c) The continued existence of the lien on which the suit is
pending is attributable to the failure of the contractor who has
been paid by the owner to pay the person suing for that person's
contribution toward completion of the structure.
(3) The owner may petition for the stay of proceedings
described in subsection (2) of this section by filing the
following papers in the circuit court in which the suit on the
lien is pending:
(a) A certified copy of the { - claim - } { + complaint + }
filed for processing by the board under ORS 701.145; and
(b) An affidavit signed by the owner that contains:
(A) A description of the structure;
(B) The street address of the structure;
(C) A statement that the structure is the structure upon which
the suit to enforce the lien is pending; and
(D) A statement that the petitioner is the owner of the
structure.
(4) Upon receipt of a complete petition described in subsection
(3) of this section, the circuit court shall stay proceedings on
the suit to enforce the lien.
(5) After the board order on the { - claim - } { +
complaint + } becomes final and the board issues any required
notice for payment against the contractor's bond or deposit, the
circuit court shall dissolve the stay ordered under subsection
(4) of this section.
SECTION 3. ORS 87.093 is amended to read:
87.093. (1) The Construction Contractors Board shall adopt by
rule a form entitled 'Information Notice to Owner' which shall
describe, in nontechnical language and in a clear and coherent
manner using words in their common and everyday meanings, the
pertinent provisions of the Construction Lien Law of this state
and the rights and responsibilities of an owner of property and
an original contractor under that law. The rights and
responsibilities described in the form shall include, but not be
limited to:
(a) Methods by which an owner may avoid multiple payments for
the same materials and labor;
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(b) The right to file a { - claim - } { + complaint + }
against a licensed contractor with the Construction Contractors
Board and, { - when - } { + if + } appropriate, to be
reimbursed from the contractor's bond filed under ORS chapter
701; and
(c) The right to receive, upon written request therefor, a
statement of the reasonable value of materials, equipment,
services or labor provided from the persons providing the
materials, equipment, services or labor at the request of an
original contractor and who have also provided notices of right
to a lien.
(2)(a) Each original contractor shall provide a copy of the '
Information Notice to Owner' adopted by the Construction
Contractors Board under this section to:
(A) The first purchaser of residential property constructed by
the contractor and sold before or within the 75-day period
immediately following the completion of construction; and
(B) The owner or an agent of the owner, other than an original
contractor, at the time of signing a written residential
construction or improvement contract with the owner.
(b) { - When - } { + If + } the residential construction or
improvement contract is an oral contract, the original contractor
shall mail or otherwise deliver the 'Information Notice to Owner'
not later than five days after the contract is made.
(3) This section applies only to a residential construction or
improvement contract for which the aggregate contract price
exceeds $1,000. If the price of a { - home - } { +
residential + } improvement contract was initially less than
$1,000, but during the course of the performance of the contract
exceeds that amount, the original contractor shall mail or
otherwise deliver the 'Information Notice to Owner' not later
than five days after the contractor knows or should reasonably
know that the contract price will exceed $1,000.
(4) { + Notwithstanding subsections (2) and (3) of this
section, the original contractor need not send the owner + }an
'Information Notice to Owner' { - need not be sent when - }
{ + if + } the owner is a contractor licensed with the
Construction Contractors Board under ORS chapter 701.
(5) Notwithstanding ORS 87.010, if an original contractor does
not provide an owner or agent with an 'Information Notice to
Owner' as required under subsections (2) and (3) of this section,
the original contractor may not claim any lien created under ORS
87.010 upon any improvement, lot or parcel of land of the owner
for labor, services or materials supplied under the residential
construction or improvement contract for which the 'Information
Notice to Owner' was not provided.
(6) If an original contractor does not provide an owner or
agent with an 'Information Notice to Owner' as required under
subsection (2) of this section, the Construction Contractors
Board may suspend the license of the original contractor for any
period of time that the board considers appropriate or impose a
civil penalty of not more than $5,000 upon the original
contractor as provided in ORS 701.992.
(7) As used in this section:
(a) 'Residential construction or improvement' means the
original construction of residential property and constructing,
repairing, remodeling or altering residential property and
includes, but is not limited to, the construction, repair,
replacement or improvement of driveways, swimming pools,
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terraces, patios, fences, porches, garages, basements and other
structures or land adjacent to a residential dwelling.
(b) 'Residential construction or improvement contract ' means
an agreement, oral or written, between an original contractor and
an owner for the performance of a home improvement and includes
all labor, services and materials furnished and performed
thereunder.
SECTION 4. ORS 205.125 is amended to read:
205.125. (1) The County Clerk Lien Record maintained under ORS
205.130 shall contain the following information for each order or
warrant recorded:
(a) The name of any person subject to the order or warrant.
(b) The name of the officer and the agency that issued the
order or warrant or the name of the { + complainant or + }
claimant in whose favor an order of the Construction Contractors
Board or State Landscape Contractors Board has been given. The
name of the agency or board that issued the order or warrant must
be clearly printed on the order or warrant.
(c) The amount of any monetary obligation imposed by the order
or warrant, and the { - name - } { + names + } of all persons
against whom the obligation is imposed.
(d) The date on which the order or warrant was received and
recorded.
(e) Full or partial satisfaction, if any, of any lien claim
created by the order or warrant.
(f) County Clerk Lien Record instruments filed under ORS
205.130 (3)(c)(A) shall be on official letterhead and include the
seals, if any, of the officers and agencies.
(g) Such other information as may be considered necessary by
the county clerk.
(2) From the date that an order or warrant is recorded in the
County Clerk Lien Record, the order or warrant shall have the
attributes and effect of a judgment that has been entered in the
register of the circuit court for that county, including but not
limited to the creation of a judgment lien for any monetary
obligation in favor of the officer or agency issuing the order or
warrant or in favor of the { + complainant or + } claimant in
the proceedings before the Construction Contractors Board or
State Landscape Contractors Board, renewal and enforcement by
supplementary proceedings, writs of execution, notices of
garnishment and writs of garnishment.
(3) From the date that an order or warrant imposing a monetary
obligation is recorded in the County Clerk Lien Record, the order
or warrant becomes a lien upon the title to and interest in
property of the person against whom it is issued in the same
manner as a judgment that creates a judgment lien under ORS
chapter 18.
(4) In addition to any other remedy provided by law, orders and
warrants recorded in the County Clerk Lien Record may be enforced
as provided in ORS 205.126.
SECTION 5. ORS 205.126 is amended to read:
205.126. (1) At any time after recording an order or warrant in
the County Clerk Lien Record, a { + complainant or + }claimant
or an attorney for an agency { + , complainant + } or claimant
may file in the circuit court for the county where the order or
warrant is recorded, a copy of the original order or warrant
certified by the agency to be a true copy of original, and an
affidavit of the { + complainant, + }claimant or attorney
verifying that the order or warrant was recorded in the County
Clerk Lien Record for that county, the date that the order or
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warrant was recorded and the date on which any notice of renewal
was recorded under subsection (2) of this section. Subject to any
other requirements that may apply to the enforcement remedy
sought by the agency { + , complainant + } or claimant,
proceedings may thereafter be commenced by the agency { + ,
complainant + } or claimant for the enforcement of the order or
warrant, in the same manner as provided for the enforcement of
judgments issued by a court. Enforcement proceedings may include:
(a) Writ of execution proceedings under ORS 18.252 to 18.993.
(b) Proceedings in support of execution under ORS 18.265,
18.268 and 18.270.
(c) Garnishment proceedings under ORS 18.600 to 18.850.
(2) At any time within 10 years after the recording of an order
or warrant, an agency { + , complainant + } or claimant, acting
with or without the assistance of an attorney, may renew an order
or warrant by recording a notice of renewal in the County Clerk
Lien Record. A notice of renewal recorded within the time
specified by this subsection has the attributes and effect of an
extension of judgment remedies noted in the register under ORS
18.182, from the date that the notice is recorded. A notice of
renewal recorded under this section must state:
(a) The name of the agency that issued the { - warrant or - }
order { + or warrant + } or the name of the { + complainant
or + } claimant in whose favor an order of the Construction
Contractors Board or State Landscape Contractors Board has been
given;
(b) The { - name - } { + names + } of all persons against
whom a monetary obligation is imposed under the order or warrant;
and
(c) The date of recording and the recording number, the book
and page number for the recording, or the volume and page number
for the recording.
(3) For the purposes of this section:
(a) 'Agency' means any state officer, board, commission,
corporation, institution, department or other state body that has
authority to record an order or warrant in the County Clerk Lien
Record.
(b) ' { + Complainant or + } claimant' means a person in
favor of which a board order has been recorded under the
provisions of ORS 671.707 or 701.150.
SECTION 6. ORS 701.065 is amended to read:
701.065. (1) Except as provided in subsection (2) of this
section, a contractor may not perfect a { - claim of a
construction lien, or commence a claim with the Construction
Contractors Board, in arbitration or in any court of this
state - } { + construction lien, file a complaint with the
Construction Contractors Board or commence an arbitration or a
court action + } for compensation for the performance of any work
or for the breach of any contract for work that is subject to
this chapter, unless the contractor had a valid license issued by
the board:
(a) At the time the contractor bid or entered into the contract
for performance of the work; and
(b) Continuously while performing the work for which
compensation is sought.
(2) The board, arbitrator or court { - shall - } { +
may + } not apply the provisions of subsection (1) of this
section to a { - lien or claim - } { + contractor + } if the
board, arbitrator or court determines that:
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(a) The contractor either did not have a valid license at any
time required under subsection (1) of this section, or had an
initial issuance { - thereof - } { + of a valid license + },
and:
(A) The contractor was not aware of the requirement that the
contractor be licensed, and the contractor submitted a completed
application for a license within a number of days established by
the board, but not more than 90 days, of the date the contractor
became aware of the requirement;
(B) At the time the contractor perfected a { - claim of a - }
construction lien or commenced any { - other claim - } { +
proceeding + } subject to the provisions of subsection (1) of
this section, the contractor was licensed by the board; and
(C) Enforcement of the provisions of subsection (1) of this
section would result in substantial injustice to the contractor;
(b) The contractor was licensed by the board for some but not
all of the times required under subsection (1) of this section
and had a lapse in { - such - } { + the + } license and:
(A) The contractor was not aware of the lapse in the license
for more than a number of days established by the board, but not
to exceed 90 days, before submitting a completed application for
license renewal with the board;
(B) Except for perfection of a { - claim of a - }
construction lien and { - a suit - } { + a court action + }
to foreclose the lien, at the time the contractor commenced any
{ - other claim - } { + proceeding + } subject to the
provisions of subsection (1) of this section the contractor's
license was renewed under ORS 701.115 to include the entire time
period for which a license was required under subsection (1) of
this section; and
(C) For perfection of { - a claim of - } a construction lien
and a
{ - suit - } { + court action + } to foreclose the lien, the
contractor's license was renewed under ORS 701.115 for the entire
time period for which a license was required under subsection (1)
of this section, but not later than 90 days following perfection
of the lien;
(c)(A) The contractor is a licensed developer and did not have
a valid license during all or part of the period described in
subsection (1) of this section;
(B) The licensed developer was unaware of the license
requirement and obtained a license within a time established by
the board, not to exceed 90 days after the licensed developer
learned of the requirement;
(C) The licensed developer was licensed at the time the
licensed developer perfected the lien or commenced the
{ - claim - } { + proceeding + }; and
(D) Enforcement of subsection (1) of this section would result
in substantial injustice to the licensed developer; or
(d) The { - claim - } { + proceeding + }:
(A) Is directed against a person or entity that:
(i) Is subject to this chapter or ORS chapter 671 or 672;
(ii) Provides construction or design labor or services of any
kind; or
(iii) Manufactures, distributes, rents or otherwise provides
materials, supplies, equipment, systems or products; and
(B) Arises out of defects, deficiencies or inadequate
performance in the construction, design, labor, services,
materials, supplies, equipment, systems or products provided.
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(3) If a contractor falsely swears to information provided
under ORS 701.075 or knowingly violates the provisions of ORS
656.029, 670.600 or 701.075, the contractor may not perfect
{ - a claim of a construction lien, or commence a claim with the
board, in arbitration or in any court of this state - } { + a
construction lien, file a complaint with the board or commence an
arbitration or a court action + } for compensation for the
performance of any work on a residential structure or for the
breach of any contract for work on a residential structure that
is subject to this chapter.
SECTION 7. ORS 701.085 is amended to read:
701.085. (1) An applicant for issuance or renewal of a
contractor license shall file with the Construction Contractors
Board a surety bond with one or more corporate sureties
authorized to do business in this state in the amount set forth
in subsections (2) to (5) of this section. The surety bond must
provide that the applicant, with regard to work subject to this
chapter, will pay { - claims - } { + amounts + } ordered paid
by the board under ORS 701.145 or 701.146. Bonds filed under this
subsection shall remain in effect for at least one year or until
depleted by
{ - claims paid - } { + payments + } under ORS 701.150,
unless the surety sooner cancels the bond. At the discretion of
the surety the bond may be continued for an additional period by
continuation certificate. Except as provided in subsection (6)
of this section, the aggregate liability of the surety under the
bond for { - claims against the bond - } { + complaints
against the contractor + } may not exceed the penal sum of the
bond no matter how many years the bond is in force. Except as
provided in subsection (6) of this section, an extension by
continuation certificate, reinstatement, reissue or renewal of
the bond may not increase the liability of the surety.
(2) A general contractor or licensed developer shall obtain a
surety bond in the amount of $15,000.
(3) A specialty contractor shall obtain a surety bond in the
amount of $10,000.
(4) An inspector shall obtain a surety bond in the amount of
$10,000.
(5) The board may reduce the amount of the surety bond required
by this section to $5,000 for a contractor upon a showing that
the contractor does not perform work as a contractor exceeding
$40,000 in gross annual volume and does not enter into contracts
that exceed $5,000. The board shall designate the contractor as a
limited contractor.
(6) The board, by rule, may require a licensee to obtain a new
surety bond if, pursuant to a board order for payment of a
{ - claim - } { + complaint + } described in ORS 701.140, the
surety pays { - a claim - } { + an amount + } out of the bond
of the licensee. The new surety bond must be in the amount set
forth in subsections (2) to (5) of this section unless a higher
amount is required by a board condition or rule described in
subsection (7) or (8) of this section. The board may allow a
licensee to obtain, instead of a new bond, a certification that
the surety remains liable for the full penal sum of the bond,
notwithstanding payment by the surety on the { - claim - }
{ + complaint + }.
(7) If the amount the licensee must pay against the bond under
this section exceeds the amount of the bond, the board shall
suspend the contractor's license until the amount owed is paid.
The board, as a condition of ending the suspension, may require a
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contractor requesting reinstatement of a license to file a bond
of an amount up to five times as much as the amount required
ordinarily of a licensee under this section.
(8) The board by rule may establish conditions for applicants
or persons licensed under this chapter under which the applicant
or licensee must file a bond of an amount up to five times as
much as the amount required ordinarily of an applicant or
licensee under this section. The board may reduce the amount of
bond it would otherwise require if the contractor demonstrates
satisfactory completion of approved elective classes on dispute
resolution and prevention, basic accounting and record keeping or
such other classes as the board may prescribe.
(9) The bond required under this section is for the exclusive
purpose of payment of final orders and arbitration awards of the
board in accordance with this chapter.
(10) Upon determination under ORS 701.145 or 701.146 of a
{ - claim - } { + complaint + } against a contractor who
holds a bond required under this section, the board shall notify
the surety on the bond of the final order in a manner determined
by the board by rule. The notification shall include a list of
all { - claims - } { + complaints + } upon which a final
order has been issued.
(11) A { - suit or - } { + court + } action may not be
commenced against a surety on a bond required under this section
until 30 days after the date that the surety is notified by the
board under ORS 701.150 that payment is due on the
{ - claim - } { + final order + }.
(12) In any action against a surety on a bond under this
section that is based on the failure of the surety to pay { - a
claimor on the denial of a claim by the surety, - } { + a final
order, + } the court may award:
(a) Costs;
(b) Reasonable attorney fees to the prevailing party as part of
the costs; and
(c) Twice the amount of any damages that the board ordered the
surety to pay on the { - claim - } { + complaint + }, if the
surety arbitrarily and capriciously refused to pay upon order of
the board.
SECTION 8. ORS 701.102 is amended to read:
701.102. (1) As used in this section, 'construction contractor
license' means a license issued within the United States to
engage in the business of construction contracting.
(2) The Construction Contractors Board may suspend or refuse to
issue a license required under this chapter to a business if:
(a) The business owes a construction debt or has had a
construction contractor license revoked or suspended;
(b) An owner or officer of the business owes a construction
debt or has had a construction contractor license revoked or
suspended; or
(c) An owner or officer of the business was an owner or officer
of another business at the time the other business incurred a
construction debt that is owing or at the time of an event that
resulted in the revocation or suspension of the other business's
construction contractor license.
(3) The board may place a contractor on probation if a total of
three or more { - claims - } { + complaints + } are filed
with the board { + under ORS 701.139 + } within a 12-month
period against the contractor or a former licensed construction
contracting business in which the contractor held at least a 10
percent ownership interest, measured as determined by board rule.
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A contractor may not be placed on probation unless the board
determines after investigation that it is likely that the
contractor has caused harm to the { - claimants - }
{ + complainants + }. The board may require a contractor that is
placed on probation to develop a corrective action plan, to
attend specific classes and to resolve outstanding
{ - claims - } { + complaints + }. The board may require a
contractor that is placed on probation to take training and pass
a test, both as described in ORS 701.072. The board shall take
action to terminate the contractor's license if the contractor is
unwilling or unable to comply with the conditions of probation.
SECTION 9. ORS 701.103 is amended to read:
701.103. A lapse, surrender, suspension or other change in
license status does not affect any authority otherwise granted
the Construction Contractors Board to proceed with an
investigation, conduct a disciplinary hearing or take
disciplinary action against a person for a violation of this
chapter or rules of the board, or to determine a timely
{ - claim - } { + complaint + } described in ORS 701.140.
SECTION 10. ORS 701.135 is amended to read:
701.135. (1) The Construction Contractors Board may revoke,
suspend or refuse to issue or reissue a license and the board may
assess a civil penalty as provided in ORS 701.992 if the board
determines after notice and opportunity for hearing:
(a) That the licensee or applicant has violated ORS 701.055 or
701.078.
(b) That the licensee has violated a rule or order of the
board.
(c) That the licensee has knowingly assisted an unlicensed
person to act in violation of this chapter.
(d) That a lien was filed on a structure under ORS 87.010 to
87.060 and 87.075 to 87.093 because the licensee or applicant
wrongfully failed to perform a contractual duty to pay money to
the person claiming the lien.
(e) That the licensee has knowingly provided false information
to the board.
(f) That the licensee has worked without a construction permit
where a permit is required and the work resulted in a
{ - claim - } { + complaint + } being filed with the
board { + under ORS 701.139 + }. For purposes of this
paragraph, 'construction permit' includes a building permit,
electrical permit, mechanical permit or plumbing permit.
(g) That the number of licensed contractors working together on
the same task on the same job site, where one of the contractors
is licensed as exempt under ORS 701.035 (2)(b), exceeded the
following:
(A) Two sole proprietors;
(B) One partnership;
(C) One corporation; or
(D) One limited liability company.
(h) Consistent with the provisions of ORS 670.280, that the
licensee or applicant has been convicted of one of the following
crimes:
(A) Murder;
(B) Assault in the first degree;
(C) Kidnapping;
(D) Rape, sodomy or unlawful sexual penetration;
(E) Sexual abuse;
(F) Arson in the first degree;
(G) Robbery in the first degree;
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(H) Theft in the first degree; or
(I) Theft by extortion.
(i) That the licensee or applicant has not, within 90 days
after the date when payment was received from the public
contracting agency, or contractor in the case of a subcontractor,
made payment to any person for supplying labor or materials
contracted for with a public contract for a public improvement
plus the amount of interest due.
(j) That the licensee or applicant has repeatedly reported bad
faith or false { - claims - } { + complaints + } of
nonpayment against contractors or subcontractors.
(k) That the licensee or applicant has engaged in conduct as a
contractor that is dishonest or fraudulent and that the board
finds injurious to the welfare of the public.
(2)(a) The administrator of the board, in accordance with
administrative rules adopted by the board and after setting forth
specific reasons for the findings, may suspend or refuse to renew
a license without hearing in any case where the administrator
finds a serious danger to the public welfare, including but not
limited to:
(A) Lack of a surety bond required by ORS 701.085;
(B) Lack of liability insurance required by ORS 701.105;
(C) Hiring employees while licensed as exempt under ORS
701.035; or
(D) Conduct as a construction contractor that is dishonest or
fraudulent.
(b) If the licensee or applicant demands a hearing within 90
days after the date of notice to the licensee or applicant of the
suspension or refusal to renew, then a hearing must be granted to
the licensee or applicant as soon as practicable after the
demand, and the administrator shall issue an order pursuant to
the hearing as required by ORS chapter 183 confirming, altering
or revoking the administrator's earlier order. Notwithstanding
ORS 670.325, a hearing need not be held where the order of
suspension or refusal to renew is accompanied by or is pursuant
to a citation for violation that is subject to judicial
determination in any court of this state, and the order by its
terms will terminate in case of final judgment in favor of the
licensee or applicant.
(3) In addition to all other remedies, if it appears to the
board that a person has engaged in, or is engaging in, any act,
practice or transaction that violates the provisions of this
chapter, the board may direct the Attorney General or the
district attorney of the county in which the act, practice or
transaction occurs, to apply to the court for an injunction
restraining the person from violating the provisions of this
chapter. An injunction may not issue for failure to maintain the
list provided for in ORS 701.055 (11) unless the court determines
that the failure is intentional.
(4) A certified copy of the record of conviction shall be
conclusive evidence of a conviction under subsection (1)(h) of
this section.
(5) If the board suspends or revokes the license of an
individual contractor or contractor business for a violation of
subsection (1)(g) of this section, the board may not restore or
reissue the license unless the individual contractor or a
responsible managing individual, as defined in ORS 701.078, for
the contractor business has successfully completed the training
and testing described in ORS 701.072.
SECTION 11. ORS 701.139 is amended to read:
Enrolled Senate Bill 94 (SB 94-A) Page 10
701.139. Except as provided in ORS 701.148 (2), the
Construction Contractors Board may resolve a dispute against a
licensed contractor only if a { - claim - } { + complaint + }
is made against the contractor's surety bond required by ORS
701.085. In order to have access to the bond, a person must file
a { - claim - } { + complaint + } of a type described in ORS
701.140 within the applicable time limitation described in ORS
701.143. The { - claim - } { + complaint + } must be filed
and resolved as follows:
(1) A { - claim - } { + complaint + } that involves work on
a residential structure or an appurtenance to { - the - } { +
a residential + } structure must be resolved as provided under
ORS 701.145.
(2) A { - claim - } { + complaint + } that involves work on
a small commercial structure or an appurtenance { - thereto - }
{ + to a small commercial structure + } may be resolved as
provided in ORS 701.145 or 701.146.
(3) Except as provided in subsections (4) and (5) of this
section, a { - claim - } { + complaint + } that involves work
on a large commercial structure or an appurtenance
{ - thereto - } { + to a large commercial structure + } must
be resolved as provided in ORS 701.146.
(4) A { - claim - } { + complaint + } by an owner that
involves work on a large commercial structure or an appurtenance
{ - thereto - } { + to a large commercial structure + } when
the total contract involved in the
{ - claim - } { + complaint + } is $25,000 or less may be
resolved as provided in ORS 701.145 or 701.146.
(5) Notwithstanding subsections (1) to (4) of this section,
with prior agreement of the { - claimant - } { +
complainant + } and the licensed contractor, a { - claim - }
{ + complaint + } may be resolved by the board through binding
arbitration under ORS 701.148.
SECTION 12. ORS 701.140 is amended to read:
701.140. A { - claim - } { + complaint + } made against a
licensed contractor's bond required by ORS 701.085 must arise
from the performance, or a contract for the performance, of work
that is subject to this chapter. The { - claim - } { +
complaint + } must be of one or more of the following types:
(1) A { - claim - } { + complaint + } against a contractor
by the owner of a structure or other real property for the
following:
(a) Negligent work.
(b) Improper work.
(c) Breach of contract.
(2) A { - claim - } { + complaint + } against a contractor
by the owner of a structure or other real property to discharge,
or to recoup funds expended in discharging, a lien established
under ORS 87.010 to 87.060 and 87.075 to 87.093 under
circumstances described under this subsection. If the
{ - claim - } { + complaint + } is processed under ORS
701.145, the Construction Contractors Board may reduce { - a
claim - } { + the amount of the complaint + } by any amount the
{ - claimant - } { + complainant + } owes the contractor. The
board shall process { - claims - } { + complaints + }
described in this subsection under ORS 701.145 only if:
(a) The owner paid the contractor for that contractor's work
subject to this chapter; and
(b) A lien is filed against the property of the owner under ORS
87.010 to 87.060 and 87.075 to 87.093 because the contractor
Enrolled Senate Bill 94 (SB 94-A) Page 11
failed to pay the person claiming the lien for that person's
contribution toward completion of the improvement.
(3) A { - claim - } { + complaint + } against a licensed
subcontractor by a licensed contractor for the following:
(a) Negligent work;
(b) Improper work; or
(c) Breach of contract.
(4) A { - claim - } { + complaint + } by a person
furnishing labor to a contractor.
(5) A { - claim - } { + complaint + }, as limited by rule
of the board, by a person furnishing material or renting or
supplying equipment to a contractor. The minimum limit set by the
board { - shall - } { + may + } not exceed $150.
(6) A { - claim - } { + complaint + } by a subcontractor
against a contractor for unpaid labor or materials arising out of
a contract.
SECTION 13. ORS 701.143 is amended to read:
701.143. The Construction Contractors Board may not process a
{ - claim - } { + complaint + } against a licensed
contractor, including a
{ - claim - } { + complaint + } based upon a court judgment
or { + an + } arbitration award, unless the { - claim is
filed - } { + complaint is filed with the board + } in a timely
manner as follows:
(1) Except as otherwise provided in this section, if the owner
of a new structure files the { - claim - } { + complaint + },
the board must receive the { - claim - } { + complaint + } no
later than the earlier of:
(a) One year after the date the structure was first occupied;
or
(b) Two years after substantial completion of the structure by
the contractor filed against.
(2) Except as otherwise provided in this section, if the owner
of an existing structure files the { - claim - } { +
complaint + }, the board must receive the { - claim - } { +
complaint + } no later than one year after the date the work was
substantially completed by the contractor filed against.
(3) Regardless of whether the { - claim - } { +
complaint + } involves a new or { + an + } existing structure,
if the owner of the structure files the { - claim - } { +
complaint + } and the licensed contractor failed to begin the
work, the board must receive the { - claim - } { +
complaint + } no later than one year after the date the parties
entered into the contract.
(4) Regardless of whether the { - claim - } { +
complaint + } involves a new or { + an + } existing structure,
if the owner of the structure files the { - claim - } { +
complaint + } and the licensed contractor failed to substantially
complete the work, the board must receive the
{ - claim - } { + complaint + } no later than one year after
the date the contractor ceased to work on the structure.
(5) Except as otherwise provided in this section, if a licensed
contractor files the { - claim - } { + complaint + } against
the licensed contractor performing work as a subcontractor on a
new structure, the board must receive the { - claim - } { +
complaint + } no later than the earlier of:
(a) Fourteen months after the date the structure was first
occupied; or
(b) Two years after substantial completion of the structure.
Enrolled Senate Bill 94 (SB 94-A) Page 12
(6) Except as otherwise provided in this section, if a licensed
contractor files the { - claim - } { + complaint + } against
the licensed contractor performing work as a subcontractor on an
existing structure, the board must receive the { - claim - }
{ + complaint + } no later than 14 months after the date the
work on the structure was substantially completed.
(7) If a licensed contractor files the { - claim - } { +
complaint + } against the licensed contractor performing work as
a subcontractor on a structure and the subcontractor failed to
substantially complete the work, the board must receive the
{ - claim - } { + complaint + } no later than 14 months after
the date the subcontractor ceased to work on the structure.
(8) If the licensed contractor's employee, subcontractor or
material or equipment supplier files the { - claim - } { +
complaint + }, the board must receive the { - claim - } { +
complaint + } no later than one year after the date the
contractor incurred the indebtedness.
SECTION 14. ORS 701.145 is amended to read:
701.145. For a { - claim - } { + complaint + } described in
ORS 701.139 (1) involving work on a residential structure or an
appurtenance
{ - thereto, a claim - } { + to a residential structure, a
complaint + } described in ORS 701.139 (2) involving work on a
small commercial structure or an appurtenance { - thereto - }
{ + to a small commercial structure + } that is not resolved
under ORS 701.146 or an owner's
{ - claim - } { + complaint + } described in ORS 701.139 (4)
involving work on a large commercial structure or an appurtenance
{ - thereto - } { + to a large commercial structure + } that
is not resolved under ORS 701.146:
(1) The { - person having the claim must file with the
Construction Contractors Board a statement of the claim - }
{ + complainant must file the complaint with the Construction
Contractors Board + }in a form prescribed by the board.
(2) The board may suspend processing of the { - claim - }
{ + complaint + } if:
(a) The same facts and issues involved in the { - claim - }
{ + complaint + } have been submitted to a court of competent
jurisdiction for determination or have been submitted to any
other entity authorized by law or the parties to effect a
resolution or settlement; or
(b) The board determines that the nature or complexity of the
{ - claim - } { + dispute described in the complaint + } is
such that a court is the appropriate forum for the adjudication
of the { - claim - } { + dispute + }.
(3) The board may dismiss or close the { - claim - } { +
complaint + } as established by rule of the board if any of the
following conditions apply:
{ + (a) The complainant does not respond to a board request
and the request is necessary to the board's investigation of the
complaint.
(b) The complainant does not allow the board to conduct one or
more on-site meetings to mediate or investigate the
complaint. + }
{ - (a) - } { + (c) + } The { - claimant - } { +
complainant + } does not permit the contractor against whom the
{ - claim - } { + complaint + } is filed to be present at an
on-site investigation made by the board.
{ - (b) - } { + (d) + } The board determines that the
contractor against whom the { - claim - } { + complaint + }
Enrolled Senate Bill 94 (SB 94-A) Page 13
is filed is capable of complying with recommendations made by the
board relative to the { - claim, but the claimant - } { +
complaint, but the complainant + } does not permit the contractor
to comply with the recommendations. The board may refuse to
accept or further process a { - claim - } { + complaint + }
under this paragraph only if the contractor was licensed at the
time the work was first performed and is licensed at the time the
board makes its recommendations.
{ - (c) - } { + (e) + } The amount in controversy is less
than an amount adopted by the board and not more than $250.
(4) Upon acceptance of the { - statement of claim - } { +
complaint + }, the board shall give notice to the contractor
against whom the
{ - claim - } { + complaint + } is made and shall initiate
proceedings to determine the validity of the { - claim - }
{ + complaint + }. If, after investigation, the board
determines that a violation of this chapter or of any rule
adopted thereunder has occurred, or damage has been caused by the
contractor, the board may recommend to the contractor such action
as the board considers appropriate to compensate the
{ - claimant - } { + complainant + }. If the contractor
performs accordingly, the board shall give that fact due
consideration in any subsequent disciplinary proceeding brought
by the board. { - If a claim is for less than $1,000, the board
may process the claim without conducting an on-site
investigation. - } { + The board may conduct one or more
on-site meetings to mediate or investigate the complaint. + }
(5) Subject to ORS 701.148, if the board is unable to resolve
the { - claim - } { + complaint + } under subsection (4) of
this section, the board may issue a contested case notice under
ORS 183.415 and:
(a) Issue a proposed default order under ORS 183.415 to become
effective only if a party does not request a contested case
hearing; or
(b) Refer the matter for hearing.
(6) The board shall send a copy of the notice and any proposed
order described in subsection (5) of this section to the surety
on the contractor bond required by ORS 701.085.
SECTION 15. ORS 701.146 is amended to read:
701.146. For a { - claim - } { + complaint + } described in
ORS 701.139 (3) involving work on a large commercial structure or
an appurtenance
{ - thereto, a claim - } { + to a large commercial structure,
a complaint + } described in ORS 701.139 (2) involving work on a
small commercial structure or an appurtenance { - thereto - }
{ + to a small commercial structure + } that is not resolved
under ORS 701.145 or an owner's
{ - claim - } { + complaint + } described in ORS 701.139 (4)
involving work on a large commercial structure or an appurtenance
{ - thereto - } { + to a large commercial structure + } that
is not resolved under ORS 701.145:
(1) The person seeking to file the { - claim - } { +
complaint with the Construction Contractors Board + } must:
(a) Bring an action on the { - claim - } { + dispute + }
against the licensed contractor in a court of competent
jurisdiction; or
(b) Initiate a proceeding to resolve the { - claim - } { +
dispute + } through binding arbitration substantially in
conformance with ORS 36.600 to 36.740.
Enrolled Senate Bill 94 (SB 94-A) Page 14
(2) The { - claimant - } { + complainant + } must file the
{ - claim - } { + complaint + } with the Construction
Contractors Board by delivering to the board a copy of the
{ - complaint - } { + complainant's court pleading + } or the
demand for arbitration or other document necessary to initiate
arbitration. The { - complaint, - } { + pleading, + } demand
or other document must be accompanied by a { - statement of
claim in a form prescribed by board rule - } { + completed
board complaint form + }. The
{ - claimant - } { + complainant + } must also give notice to
the surety on the bond by delivering to the surety a copy of the
{ - complaint, - } { + complainant's court pleading or the + }
demand for arbitration or other document necessary to initiate
arbitration and a copy of the
{ - statement of claim - } { + completed board complaint
form + }. Delivery to the board and the surety must be
accomplished by certified mail, return receipt requested, no
later than the earlier of:
(a) The 90th day after { - the complaint, - } { + filing
the court action or after filing or making the arbitration
+ }demand or other
{ - document was filed or made - } { + initiation of
arbitration + };
(b) The 14th day before the first day of trial or arbitration;
or
(c) The 30th day before:
(A) The court issues a judgment { - on the complaint - }
{ + in the action + }; or
(B) The arbitrator issues an award on the arbitration.
(3) Filing the { - claim - } { + complaint + } with the
board under subsection (2) of this section constitutes filing the
{ - claim - } { + complaint + } for purposes of establishing
timeliness of the { - claim - } { + complaint + } under ORS
701.143 and priority of the { - claim - } { + complaint for
possible payment from the bond + } under ORS 701.150.
(4) Except as provided in this subsection and subsection (7) of
this section, if the { - claimant - } { + complainant + }
properly gives notice to the surety under subsection (2) of this
section, a judgment or award against the contractor entered in
the action or arbitration is binding on the surety. If the
{ - claimant - } { + complainant + } delivers the notice
required under subsection (2) of this section to the wrong
surety, the surety receiving the notice may avoid being bound by
a judgment or award by delivering notice of the mistake to the
{ - claimant - } { + complainant + } or the
{ - claimant's - } { + complainant's + } attorney of record,
and to the board, on or before the 30th day after the surety
receives notice under subsection (2) of this section. Delivery of
the notice of mistake must be by certified mail, return receipt
requested, or by facsimile machine or other form of transmission
with an acknowledgment of receipt.
(5) A surety under subsection (2) of this section has an
absolute right to intervene in an action or arbitration brought
or initiated under subsection (1) of this section. A
{ - claimant - } { + complainant + } may not join a surety as a
party to an action or arbitration unless the { - claimant - }
{ + complainant + } disputes the validity or timeliness of the
surety's notice of mistake or the surety disputes the validity or
timeliness of the delivery to the surety of the notice required
by subsection (2) of this section. If the surety elects to
Enrolled Senate Bill 94 (SB 94-A) Page 15
intervene or is joined as a party, the surety is bound by all
issues of fact and law determined by the court or arbitrator and
may not seek board review of those determinations.
(6) If a court issues a judgment on an action, or reduces an
arbitration award to judgment, against a contractor on a
{ - claim - } { + complaint + } described in subsection (1) of
this section, the
{ - claimant - } { + complainant + } must deliver a certified
copy of the judgment to the board and to the surety no later than
the 30th day after entry of the judgment in order to { - retain
a claim against - } { + maintain the complaint and possibly
receive payment from + } the bond. The entry of a final judgment
against the contractor concludes the contractor's involvement in
any proceedings to determine whether the { - bond - }
{ + complaint + } is subject to payment { - of the claim - }
{ + from the bond + }. The { - claimant - } { +
complainant + } and the surety are the only parties to the
administrative process set forth in subsection (7) of this
section.
(7) Upon receipt of a timely delivered certified copy of the
judgment as described in subsection (6) of this section, the
board shall issue a proposed order in the amount of the judgment
together with any costs, interest and attorney fees awarded under
the judgment, to the extent that the judgment, costs, interest
and fees are within the jurisdiction of the board. The board's
determination of the { - claim - } { + complaint + } is
limited to whether the
{ - claim - } { + complaint + } comes within the jurisdiction
of the board and is subject to payment by the surety. The board
shall issue the proposed order in a form that indicates the
surety's maximum liability to the { - claimant - } { +
complainant + }. If a hearing is not requested within the time
set forth in the proposed order, the proposed order becomes final
without any further action by the board. If a hearing is
requested, unless review of an issue is precluded under
subsection (5) of this section, the board may determine:
(a) Whether the { - claim - } { + complaint + } was timely
filed with the board as provided in ORS 701.143.
(b) Whether the surety received timely notice as provided in
subsections (2) and (6) of this section.
(c) Whether the { - claim - } { + complaint + } is for work
subject to this chapter.
(d) The extent of the surety's liability to the
{ - claimant - } { + complainant + }.
SECTION 16. ORS 701.147 is amended to read:
701.147. (1) Unless otherwise provided by the Construction
Contractors Board by rule, before filing a { - claim - } { +
complaint + } under ORS 701.139, a person must send notice to the
contractor that the person intends to file the { - claim - }
{ + complaint + }. The person must send the notice at least 30
days before filing the { - claim - } { + complaint + }. The
notice must be mailed by certified mail to the last known address
of the contractor as shown in board records. The board by rule
may:
(a) Specify the manner in which the person may show compliance
with this subsection at the time of filing the { - claim - }
{ + complaint + }.
(b) Provide that all or part of the requirements for sending a
notice under this subsection may be waived if the contractor, by
Enrolled Senate Bill 94 (SB 94-A) Page 16
other means, has actual notice of the dispute with the person
filing the { - claim - } { + complaint + }.
(2) If the notice described in subsection (1) of this section
is mailed to the contractor fewer than 45 days before expiration
of the time limitation under ORS 701.143 for the board to receive
the { - claim - } { + complaint + }, the time limitation for
the board to receive the { - claim - } { + complaint + } does
not expire until 60 days after the notice is mailed.
(3) The board by rule may impose a processing fee for
{ - claims - } { + complaints + } filed under ORS 701.139.
The fee amount may not exceed the amount of the filing fee
provided by ORS 21.110 (1) for a plaintiff filing a civil action
in circuit court. The board may impose different processing fees
for { - claims - } { + complaints + } processed under ORS
701.145 than for { - claims - } { + complaints + } processed
under ORS 701.146.
(4) If the board adopts rules under subsection (3) of this
section, the rules:
(a) Except as provided in paragraphs (b) and (c) of this
subsection, must provide that a prevailing { - claimant - }
{ + complainant + } recover processing fees as damages in the
final order of the board.
(b) Must provide that the board may waive or defer all or part
of the processing fee upon application by the person filing the
{ - claim - } { + complaint + } that shows the person is
unable to pay all or part of the fee. The application must be
made under oath and notarized. The application must show the
average monthly income and expenses of the { - claimant - }
{ + complainant + }, assets and liabilities of the
{ - claimant - } { + complainant + } and any other information
required by board rule.
(c) May provide for the processing fee to be waived for all
{ - claims - } { + complaints + } that are based on the
furnishing of labor by a
{ - claimant - } { + complainant + } to a contractor. The
board may provide for processing fee waiver under this paragraph
only if, in the opinion of the board, a majority of
{ - claimants - } { + complainants + } who file
{ - claims - } { + complaints + } based on the furnishing of
labor to contractors are eligible for fee waivers as described in
paragraph (b) of this subsection.
SECTION 17. ORS 701.148 is amended to read:
701.148. (1) Subject to subsection (4) of this section, if the
resolution of a { - claim - } { + complaint + } under ORS
701.145 requires a hearing, the Construction Contractors Board
may require that the hearing be conducted as a binding
arbitration under rules adopted by the board under subsection (3)
of this section. This subsection does not authorize the board to
require binding arbitration of a
{ - claim - } { + complaint + } that is subject to ORS
701.146.
(2) The board may use mediation or arbitration to resolve a
construction dispute between any parties who agree to follow the
rules of the board, including but not limited to parties to a
{ - claim - } { + complaint + } that is subject to ORS
701.146.
(3) Except as provided in this subsection, rules adopted by the
board to regulate arbitration under subsections (1) and (2) of
this section must substantially conform with the provisions of
Enrolled Senate Bill 94 (SB 94-A) Page 17
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 this chapter;
(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 this chapter.
(4) A party to a { - claim - } { + complaint + } that is
subject to a board order of binding arbitration under subsection
(1) of this section may avoid the arbitration if the party
requests to have the
{ - claim - } { + complaint + } resolved through a contested
case hearing or files { - a complaint in - } a court { +
action + }. A party making a { + hearing + } request or filing a
{ - complaint - } { + court action + } under this subsection
is subject to the following provisions:
(a) If the party requests to have a { - claim - } { +
complaint + } 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 - } court { +
action + }, the party must, within the time specified in
paragraph (c) of this subsection, deliver a copy of the
{ - complaint - } { + party's court pleading + } to the board
and to all { - parties - } { + persons + } entitled by board
rule to receive a copy of the { - complaint - }
{ + pleading + }. 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 contractor
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 - } { + court action
is the complainant to the board, the complainant must plead all
facts and issues of the board complaint in the court action. If
the court action is filed by the contractor against whom a board
complaint is alleged, the court action must be an action for
damages, an action for declaratory judgment or another action
that allows the board complainant to file a response pleading all
facts and issues of the board complaint. The board complainant
+ }has the burden of proving the elements of the { - claim in
any - } { + board complaint in a court + } 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 - } { +
the contested case hearing request or the copy of the party's
court pleading + } 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
Enrolled Senate Bill 94 (SB 94-A) Page 18
{ - complaint - } { + court pleading + } 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 - } { + court
action and complies + } with paragraph (b) of this subsection,
the filing of the
{ - complaint - } { + court action + } 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 board may adopt a rule that a contested case hearing
for a { - claim of - } { + complaint seeking + } less than
$1,000 is not available under this subsection.
(g) The provisions of paragraph (b) of this subsection are in
addition to any other requirements imposed by law regarding the
filing of a { - complaint - } { + court action + }.
(5) The board may refuse to accept a dispute for mediation or
arbitration under subsection (1) or (2) of this section if the
board determines that the nature or complexity of the dispute is
such that a court or other forum is more appropriate for
resolution of the dispute.
SECTION 18. ORS 701.149 is amended to read:
701.149. (1) An arbitration conducted under ORS 701.148 must be
held before an administrative law judge assigned under ORS
183.600 to 183.690 to act as arbitrator on behalf of the
Construction Contractors Board. 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.
(2) If a party to a { - claim - } { + complaint + } under
ORS 701.145 requests a contested case hearing, the board shall
schedule the hearing.
(3) The board may adopt rules governing the avoidance of a
contested case hearing. The rules may include, but need not be
limited to, a limit on the time period during which a party to a
{ - claim - } { + complaint + } may avoid a contested case
hearing by filing a
{ - complaint in a - } court { + action + }.
(4) Contested case hearings before the board must be conducted
by an administrative law judge assigned under ORS 183.600 to
183.690. Notwithstanding ORS 670.325, the board may delegate
authority to the administrative law judge to issue a final order
in any matter.
(5) In assigning administrative law judges for arbitration and
contested case hearings conducted under this section, the chief
administrative law judge of the Office of Administrative Hearings
established under ORS 183.605 shall defer to board requests.
(6) If a { - claim is submitted for determination by a
court - } { + complainant to the board files a court action + },
the board may require that the { - claimant - } { +
complainant + } provide status reports on the pending
{ + court + } action. The board may dismiss or close a
{ - claim - } { + complaint + } filed under ORS 701.139 if the
{ - claimant - } { + complainant + } fails to submit status
reports on a pending { + court + } action.
(7) ORS 183.600 to 183.690 do not limit in any way the ability
of the board to make full use of alternative dispute resolution,
including mediation or arbitration, to resolve
Enrolled Senate Bill 94 (SB 94-A) Page 19
{ - claims - } { + complaints + } against contractors filed
under ORS 701.139.
SECTION 19. ORS 701.150 is amended to read:
701.150. (1) If a Construction Contractors Board final order is
not paid by the contractor, the board shall notify the surety on
the bond. The surety may not pay { - a claim - } { + on a
complaint + } until the surety receives notice from the board
that the { - claim - } { + complaint + } is ready for payment.
(2) If an order of the board that determines a { - claim - }
{ + complaint + } under ORS 701.145 becomes final by operation
of law or on appeal and remains unpaid 10 days after the date the
order becomes final, the { - claimant - } { + complainant + }
may file the order with the county clerk in any county of this
state.
(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 the provisions of 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.
(4) Payments from the surety bond of a contractor pursuant to
board order and notice are satisfied in the following priority in
any 90-day period. A 90-day period begins on the date the first
{ - claim - } { + complaint + } is filed with the board.
Subsequent 90-day periods begin on the date the first
{ - claim - } { + complaint + } is filed with the board after
the close of the preceding 90-day period. Within a 90-day
period:
(a) Board orders as a result of { - claims - } { +
complaints + } against a contractor by the owner of a residential
or small commercial structure have payment priority to the full
extent of the bond over all other types of { - claims - } { +
complaints + }.
(b) If the { - claims - } { + complaints + } described in
paragraph (a) of this subsection do not exhaust the bond, then
amounts due as a result of all other types of residential or
small commercial structure { - claims - } { + complaints + }
filed within that 90-day period may be satisfied from the bond,
except that the total amount paid from any one bond to nonowner
{ - claimants - } { + complainants + } may not exceed $3,000.
(c) If payments involving residential and small commercial
structures do not exhaust the bond, board orders and notice
involving large commercial structure { - claims - } { +
complaints + } are satisfied in the following priority, except
that the total amount paid from any one bond to nonowner
{ - claimants - } { + complainants + } may not exceed $3,000:
(A) Labor, including employee benefits.
(B) All other { - claims - } { + complaints + } involving
large commercial structures except costs, interest and attorney
fees.
(C) Any costs, interest and attorney fees the plaintiff may be
entitled to recover.
(d) If the total { - claims - } { + complaints + } filed
with the board against a contractor within 90 days after the
board receives notice of the first { - claim - } { +
complaint + } against the contractor exceed the amount of the
bond available for those { - claims - } { + complaints + },
the bond shall be apportioned as the board determines, subject to
the priorities established under this section.
Enrolled Senate Bill 94 (SB 94-A) Page 20
(e) If the total amounts due as a result of { - claims - }
{ + complaints + } filed with the board within 90 days after the
first
{ - claim - } { + complaint + } is filed do not exceed the
amount of the bond available for those { - claims - } { +
complaints + }, all amounts due as a result of { - claims - }
{ + complaints + } filed within the 90-day period shall have
priority over all { - claims - } { + complaints + }
subsequently filed until the amount of the bond available for the
payment of { - claims - } { + complaints + } is exhausted.
(5) Notwithstanding subsection (4) of this section, a bond is
not subject to payment for a { - claim - } { + complaint + }
that is filed more than 14 months after the earlier of:
(a) The expiration or cancellation date of the license that was
in force when the work that is the subject of the { - claim - }
{ + complaint + } was completed or abandoned; or
(b) The date that the surety canceled the bond.
(6) The total amount paid from any one bond for costs, interest
and attorney fees may not exceed $3,000.
SECTION 20. ORS 701.175 is amended to read:
701.175. A contract that is for the performance of work on a
residential structure and that is subject to this chapter may not
contain a provision that limits the right of a person to file a
{ - claim - } { + complaint + } described in ORS 701.140 with
the Construction Contractors Board. A contract described in this
section may contain a provision requiring mediation or
arbitration of a dispute arising from the contract.
SECTION 21. ORS 701.180 is amended to read:
701.180. Notwithstanding the provisions of ORS 36.600 to
36.740, any other provision of law or any contractual provision,
failure of a contractor to initiate mediation or arbitration
proceedings within 30 days after notification by the Construction
Contractors Board of a { - claim - } { + complaint + } under
ORS 701.145 is a waiver by the contractor of any contractual
right to mediation or arbitration.
SECTION 22. ORS 701.227 is amended to read:
701.227. (1) The Construction Contractors Board shall begin an
action to determine whether a contractor or a subcontractor shall
{ - not - } be considered { + not + } qualified to hold or
participate in a public contract for a public improvement upon
receipt of information from a public contracting agency or from
any person who supplied labor or materials in connection with a
public contract for a public improvement indicating that the
contractor or subcontractor has not made payment to persons who
supplied labor or materials within 60 days after the date when
the payment was received by the contractor or subcontractor and
that the payment was not a subject of a good faith dispute as
defined in ORS 279C.580.
(2) If the board determines after notice and opportunity for
hearing that a contractor or a subcontractor did not make payment
to persons who supplied labor or materials in connection with a
public contract for a public improvement within 60 days after the
date when payment was received by the contractor or
subcontractor, the board shall place the contractor or the
subcontractor on the list of persons who have been determined
{ - not - } to be { + not + } qualified to hold or participate
in a public contract for a public improvement. The board may not
place a contractor or subcontractor on the list if the only
reason that the contractor or subcontractor did not make payment
to a person when payment was due is that the contractor or
Enrolled Senate Bill 94 (SB 94-A) Page 21
subcontractor did not receive payment from the public contracting
agency, contractor or subcontractor when payment was due. The
contractor or subcontractor shall remain on the list for a period
of not less than six months.
(3) If the board determines that the { - claim made - } { +
information supplied to the board + } against a contractor or
subcontractor was
{ - made - } { + supplied + } in bad faith or was false, the
person { - filing the bad faith or false claim - } { + who
supplied the information in bad faith or supplied false
information + } shall be placed on the list of persons who have
been determined { - not - } to be { + not + } qualified to
hold or participate in a public contract for a public
improvement.
(4) The board shall create and maintain a list of contractors
and subcontractors who have been determined { - not - } to be
{ + not + } qualified to hold or participate in a public
contract for a public improvement. The list may include any
corporation, partnership or other business entity of which the
contractor or subcontractor is an owner, shareholder or officer
of the business or was an owner or officer of the business. The
board shall provide access to the list to all public contracting
agencies, contractors and subcontractors.
SECTION 23. ORS 701.235 is amended to read:
701.235. (1) The Construction Contractors Board shall adopt
rules to carry out the provisions of this chapter including, but
not limited to, rules that:
(a) Establish language for surety bonds;
(b) Establish processing requirements for different types of
{ - claims - } { + complaints + } described in this chapter;
(c) Limit whether a { - claim - } { + complaint + } may be
processed by the board if there is no direct contractual
relationship between the
{ - claimant - } { + complainant + } and the contractor;
(d) Notwithstanding ORS 701.146 (7) and 701.150 (4) and subject
to ORS 701.150 (6), exclude or limit recovery from the
contractor's bond required by ORS 701.085 { - , - } of
{ - damages - } { + amounts + } awarded by a court or
arbitrator for interest, service charges, costs and attorney fees
arising from { - filing and proving the claim - }
{ + commencing the arbitration or court action and proving
damages + }; and
(e) Designate a form to be used by an owner of residential
property under ORS 87.007 for the purpose of indicating the
method the owner has selected to comply with the requirements of
ORS 87.007 (2) or to indicate that ORS 87.007 (2) does not apply.
(2) The board may adopt rules prescribing terms and conditions
under which a contractor may substitute a letter of credit from a
bank authorized to do business in this state instead of the bond
requirements prescribed in ORS 701.085.
SECTION 24. ORS 701.252 is amended to read:
701.252. The Construction Contractors Board shall maintain and
make available to the public a record of grievances made to the
board against contractors that are licensed under this chapter.
The board shall separately record:
(1) Inquiries for which no investigation has taken place;
(2) { - Claims - } { + Complaints + } that are being
processed but upon which action has not been completed;
Enrolled Senate Bill 94 (SB 94-A) Page 22
(3) { - Claims - } { + Complaints + } that have been
voluntarily settled by the contractor and the { - claimant - }
{ + complainant + };
(4) { - Claims - } { + Complaints + } that have resulted in
a final order of the board to dismiss the { - claim - } { +
complaint + }; and
(5) { - Claims - } { + Complaints + } that have resulted in
a final order of the board to require payment to the
{ - claimant - } { + complainant + }.
SECTION 25. 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 { + or complaints + } filed pursuant to ORS
671.703 or 701.139.
(3) To claims against a person licensed under ORS 671.010 to
671.220.
SECTION 26. { + A claim filed with the Construction
Contractors Board before the effective date of the amendments to
ORS 18.635, 87.058, 87.093, 205.125, 205.126, 701.065, 701.085,
701.102, 701.103, 701.135, 701.139, 701.140, 701.143, 701.145,
701.146, 701.147, 701.148, 701.149, 701.150, 701.175, 701.180,
701.227, 701.235, 701.252 and 701.600 by sections 1 to 25 of this
2007 Act is a complaint filed with the board for purposes of ORS
18.635, 87.058, 87.093, 205.125, 205.126, 701.065, 701.085,
701.102, 701.103, 701.135, 701.139, 701.140, 701.143, 701.145,
701.146, 701.147, 701.148, 701.149, 701.150, 701.175, 701.180,
701.227, 701.235, 701.252 and 701.600 as amended by sections 1 to
25 of this 2007 Act. + }
----------
Passed by Senate March 29, 2007
Repassed by Senate June 15, 2007
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House June 13, 2007
...........................................................
Speaker of House
Enrolled Senate Bill 94 (SB 94-A) Page 23
Received by Governor:
......M.,............., 2007
Approved:
......M.,............., 2007
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2007
...........................................................
Secretary of State
Enrolled Senate Bill 94 (SB 94-A) Page 24