74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1818
A-Engrossed
Senate Bill 460
Ordered by the Senate May 15
Including Senate Amendments dated May 15
Sponsored by Senator WESTLUND (at the request of Oregon PTA,
Oregon School Boards Association, Confederated Oregon School
Administrators, Oregon School Employees Association, Oregon
Education Association, American Federation of Teachers)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Provides that unused gift cards become abandoned
property. { + Provides that if issuer of gift card does not have
address for owner of gift card, value of gift card presumed
abandoned is subject to custody of this state if purchase,
issuance or last transaction by owner of gift card occurred in
this state. + }
Prohibits expiration dates for gift cards and certain fees
related to gift cards. Provides that violation of prohibitions is
unlawful trade practice.
A BILL FOR AN ACT
Relating to gift cards; creating new provisions; and amending ORS
98.302 and 646.608.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 98.302 is amended to read:
98.302. As used in ORS 98.302 to 98.436 and 98.992, unless the
context otherwise requires:
(1) 'Administrator' means the Director of the Department of
State Lands.
(2) 'Apparent owner' means the person whose name appears on the
records of the holder as the person entitled to property held,
issued or owing by the holder.
(3) 'Business association' means a nonpublic corporation, joint
stock company, business trust, partnership, investment company or
an association for business purposes of two or more individuals,
whether or not for profit, including a financial institution,
insurance company or utility.
(4) 'Domicile' means the state of incorporation of a
corporation and the state of the principal place of business of
an unincorporated person.
(5) 'Financial institution' means a financial institution or a
trust company, as those terms are defined in ORS 706.008, a safe
deposit company, a private banker, a savings and loan
association, a building and loan association or an investment
company.
{ + (6) 'Gift card' means a prefunded, electronic record,
sold or purchased at retail, evidencing a contract between the
issuer of the record and the owner of the record for goods or
services to be provided to the value shown in the record and
containing a microprocessor chip, magnetic stripe or other means
for storage of information relating to the value of the record.
'Gift card ' does not include prepaid telephone calling cards,
prepaid commercial mobile radio services as defined in 47 C.F.R.
20.3 or any gift card usable with more than one seller of goods
or services. + }
{ - (6) - } { + (7) + } 'Holder' means a person, wherever
organized or domiciled, who is in possession of property
belonging to another, a trustee or indebted to another on an
obligation.
{ - (7) - } { + (8) + } 'Insurance company' means an
association, corporation, fraternal or mutual benefit
organization, whether or not for profit, which is engaged in
providing insurance coverage, including accident, burial,
casualty, workers' compensation, credit life, contract
performance, dental, fidelity, fire, health, hospitalization,
illness, life (including endowments and annuities), malpractice,
marine, mortgage, surety and wage protection insurance.
{ - (8) - } { + (9) + } 'Intangible property' includes:
(a) Credit balances, customer overpayments, security deposits,
refunds, credit memos, unpaid wages, unused airline tickets and
unidentified remittances;
(b) Stocks and other intangible ownership interests in business
associations;
(c) Moneys deposited to redeem stocks, bonds, coupons, and
other securities, or to make distributions;
(d) Amounts due and payable under the terms of insurance
policies;
(e) Amounts distributed from a trust or custodial fund
established under a plan to provide health, welfare, pension,
vacation, severance, retirement, death, stock purchase, profit
sharing, employee savings, supplemental unemployment insurance or
similar benefits; and
(f) Moneys, checks, drafts, deposits, interest, dividends and
income.
{ - (9) - } { + (10) + } 'Last-known address' means a
description of the location of the apparent owner sufficient for
the purpose of delivery of mail.
{ - (10) - } { + (11) + } 'Lawful deduction' means a
deduction related to the purpose of an account or deposit, for
example, to satisfy unpaid utility bills.
{ - (11) - } { + (12) + } 'Owner' means a depositor in case
of a deposit, a beneficiary in case of a trust other than a
deposit in trust, a creditor, claimant, or payee in case of other
intangible property, or a person, or the person's legal
representative, having a legal or equitable interest in property.
{ - (12) - } { + (13) + } 'Person' means an individual,
business association, state or other government or political
subdivision or agency, public corporation, public authority,
estate, trust, two or more persons having a joint or common
interest, or any other legal or commercial entity.
{ - (13) - } { + (14) + } 'Service charge' means fees or
charges that are limited to a specific situation and that meet
basic contractual and notice requirements.
{ - (14) - } { + (15) + } 'State' means any state,
district, commonwealth, territory, insular possession or any
other area subject to the legislative authority of the United
States.
{ - (15) - } { + (16) + } 'Utility' means a person who owns
or operates for public use, any plant, equipment, property,
franchise or license for the transmission of communications or
the production, storage, transmission, sale, delivery or
furnishing of electricity, water, steam or gas.
SECTION 2. { + Section 3 of this 2007 Act is added to and made
a part of ORS 98.302 to 98.436. + }
SECTION 3. { + (1) The value of a gift card is presumed
abandoned if the value of the gift card has not been redeemed
within three years after the later of:
(a) The date of purchase or issuance of the gift card; or
(b) The date of the last transaction by the owner of the gift
card that increased or decreased the value of the gift card.
(2) If the issuer of a gift card does not have an address for
the owner of the gift card, the value of the gift card presumed
abandoned is subject to the custody of this state if the
purchase, issuance or last transaction by the owner of the gift
card occurred in this state.
(3) Notwithstanding ORS 98.302 (7), for purposes of ORS 98.302
to 98.436, the holder of a gift card is the issuer of the gift
card. + }
SECTION 4. { + (1) As used in this section, 'gift card' has
the meaning given that term in ORS 98.302.
(2) A person may not issue a gift card that has an expiration
date.
(3) A person who issues a gift card may not charge the owner a
fee related to the gift card, including but not limited to a
dormancy fee, an inactivity fee, a maintenance fee or a service
fee. + }
SECTION 5. ORS 646.608 is amended to read:
646.608. (1) A person engages in an unlawful practice when in
the course of the person's business, vocation or occupation the
person does any of the following:
(a) Passes off real estate, goods or services as those of
another.
(b) Causes likelihood of confusion or of misunderstanding as to
the source, sponsorship, approval, or certification of real
estate, goods or services.
(c) Causes likelihood of confusion or of misunderstanding as to
affiliation, connection, or association with, or certification
by, another.
(d) Uses deceptive representations or designations of
geographic origin in connection with real estate, goods or
services.
(e) Represents that real estate, goods or services have
sponsorship, approval, characteristics, ingredients, uses,
benefits, quantities or qualities that they do not have or that a
person has a sponsorship, approval, status, qualification,
affiliation, or connection that the person does not have.
(f) Represents that real estate or goods are original or new if
they are deteriorated, altered, reconditioned, reclaimed, used or
secondhand.
(g) Represents that real estate, goods or services are of a
particular standard, quality, or grade, or that real estate or
goods are of a particular style or model, if they are of another.
(h) Disparages the real estate, goods, services, property or
business of a customer or another by false or misleading
representations of fact.
(i) Advertises real estate, goods or services with intent not
to provide them as advertised, or with intent not to supply
reasonably expectable public demand, unless the advertisement
discloses a limitation of quantity.
(j) Makes false or misleading representations of fact
concerning the reasons for, existence of, or amounts of price
reductions.
(k) Makes false or misleading representations concerning credit
availability or the nature of the transaction or obligation
incurred.
(L) Makes false or misleading representations relating to
commissions or other compensation to be paid in exchange for
permitting real estate, goods or services to be used for model or
demonstration purposes or in exchange for submitting names of
potential customers.
(m) Performs service on or dismantles any goods or real estate
when not authorized by the owner or apparent owner thereof.
(n) Solicits potential customers by telephone or door to door
as a seller unless the person provides the information required
under ORS 646.611.
(o) In a sale, rental or other disposition of real estate,
goods or services, gives or offers to give a rebate or discount
or otherwise pays or offers to pay value to the customer in
consideration of the customer giving to the person the names of
prospective purchasers, lessees, or borrowers, or otherwise
aiding the person in making a sale, lease, or loan to another
person, if earning the rebate, discount or other value is
contingent upon occurrence of an event subsequent to the time the
customer enters into the transaction.
(p) Makes any false or misleading statement about a prize,
contest or promotion used to publicize a product, business or
service.
(q) Promises to deliver real estate, goods or services within a
certain period of time with intent not to deliver them as
promised.
(r) Organizes or induces or attempts to induce membership in a
pyramid club.
(s) Makes false or misleading representations of fact
concerning the offering price of, or the person's cost for real
estate, goods or services.
(t) Concurrent with tender or delivery of any real estate,
goods or services fails to disclose any known material defect or
material nonconformity.
(u) Engages in any other unfair or deceptive conduct in trade
or commerce.
(v) Violates any of the provisions relating to auction sales,
auctioneers or auction marts under ORS 698.640, whether in a
commercial or noncommercial situation.
(w) Manufactures mercury fever thermometers.
(x) Sells or supplies mercury fever thermometers unless the
thermometer is required by federal law, or is:
(A) Prescribed by a person licensed under ORS chapter 677; and
(B) Supplied with instructions on the careful handling of the
thermometer to avoid breakage and on the proper cleanup of
mercury should breakage occur.
(y) Sells a thermostat that contains mercury unless the
thermostat is labeled in a manner to inform the purchaser that
mercury is present in the thermostat and that the thermostat may
not be disposed of until the mercury is removed, reused, recycled
or otherwise managed to ensure that the mercury does not become
part of the solid waste stream or wastewater. For purposes of
this paragraph, 'thermostat' means a device commonly used to
sense and, through electrical communication with heating, cooling
or ventilation equipment, control room temperature.
(z) Sells or offers for sale a motor vehicle manufactured after
January 1, 2006, that contains mercury light switches.
(aa) Violates the provisions of ORS 803.375, 803.385 or 815.410
to 815.430.
(bb) Violates ORS 646.850 (1).
(cc) Violates any requirement of ORS 646.661 to 646.686.
(dd) Violates the provisions of ORS 128.801 to 128.898.
(ee) Violates ORS 646.883 or 646.885.
(ff) Violates any provision of ORS 646.195.
(gg) Violates ORS 646.569.
(hh) Violates the provisions of ORS 646.859.
(ii) Violates ORS 759.290.
(jj) Violates ORS 646.872.
(kk) Violates ORS 646.553 or 646.557 or any rule adopted
pursuant thereto.
(LL) Violates ORS 646.563.
(mm) Violates ORS 759.690 or any rule adopted pursuant thereto.
(nn) Violates the provisions of ORS 759.705, 759.710 and
759.720 or any rule adopted pursuant thereto.
(oo) Violates ORS 646.892 or 646.894.
(pp) Violates any provision of ORS 646.249 to 646.259.
(qq) Violates ORS 646.384.
(rr) Violates ORS 646.871.
(ss) Violates ORS 822.046.
(tt) Violates ORS 128.001.
(uu) Violates ORS 646.649 (2) to (4).
(vv) Violates ORS 646.877 (2) to (4).
(ww) Violates ORS 87.686.
(xx) Violates ORS 646.651.
(yy) Violates ORS 646.879.
(zz) Violates ORS 646.402 or any rule adopted under ORS 646.402
or 646.404.
(aaa) Violates ORS 180.440 (1).
(bbb) Commits the offense of acting as a vehicle dealer without
a certificate under ORS 822.005.
(ccc) Violates ORS 87.007 (2) or (3).
(ddd) Violates ORS 92.405 (1), (2) or (3).
(eee) Engages in an unlawful practice under ORS 646.648.
{ + (fff) Issues a gift card in violation of section 4 of
this 2007 Act. + }
(2) A representation under subsection (1) of this section or
ORS 646.607 may be any manifestation of any assertion by words or
conduct, including, but not limited to, a failure to disclose a
fact.
(3) In order to prevail in an action or suit under ORS 646.605
to 646.652, a prosecuting attorney need not prove competition
between the parties or actual confusion or misunderstanding.
(4) An action or suit may not be brought under subsection
(1)(u) of this section unless the Attorney General has first
established a rule in accordance with the provisions of ORS
chapter 183 declaring the conduct to be unfair or deceptive in
trade or commerce.
(5) Notwithstanding any other provision of ORS 646.605 to
646.652, if an action or suit is brought under subsection
(1)(aaa) of this section by a person other than a prosecuting
attorney, relief is limited to an injunction and the prevailing
party may be awarded reasonable attorney fees.
SECTION 6. { + Sections 3 and 4 of this 2007 Act apply to gift
cards that are issued on or after the effective date of this 2007
Act. + }
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