74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
Enrolled
Senate Bill 684
Sponsored by COMMITTEE ON COMMERCE
CHAPTER ................
AN ACT
Relating to consumer protection; creating new provisions;
amending ORS 646.608; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + As used in sections 1 to 6 of this 2007 Act:
(1) 'Affiliated business' means a business or business location
that is directly or indirectly controlled by, or under common
control with, the business location listed in the notice of a
going out of business sale or that has a common ownership
interest in the merchandise to be sold at the business location
listed in the notice of the sale.
(2)(a) 'Going out of business sale' means a sale or auction
advertised or held out to the public as the disposal of
merchandise in anticipation of cessation of business, including
but not limited to a sale or auction advertised or held out to
the public as a 'going out of business sale,' a 'closing out
sale,' a 'quitting business sale,' a 'loss of lease sale,' a '
must vacate sale,' a 'liquidation sale,' a 'bankruptcy sale,' a
'sale to prevent bankruptcy' or another description suggesting
price reduction due to the imminent closure of the business.
(b) 'Going out of business sale' does not include a sale
conducted by a bankruptcy trustee or a court-appointed receiver.
(3) 'Merchandise' means goods, wares or other property or
services capable of being the object of a sale regulated under
sections 1 to 6 of this 2007 Act.
(4) 'Notice of intent' means a notice filed with the Secretary
of State that a person intends to conduct a going out of business
sale.
(5) 'Person' has the meaning given that term in ORS
646.605. + }
SECTION 2. { + (1) Except as provided in subsection (3) of
this section, a person may not sell, offer for sale or advertise
for sale merchandise at a going out of business sale unless the
person has filed a notice of intent with the Secretary of State.
(2) A person must display a copy of the notice of intent filed
with the Secretary of State in a prominent place on the premises
where the going out of business sale is being conducted.
(3) If a going out of business sale is conducted as part of a
bankruptcy, receivership or other court-ordered action, a person:
(a) Need not file a notice of intent with the Secretary of
State.
Enrolled Senate Bill 684 (SB 684-B) Page 1
(b) Shall display the court order or judgment ordering the sale
in a prominent place on the premises where the going out of
business sale is being conducted.
(4) A person may not:
(a) Conduct a going out of business sale for more than 90 days
from the beginning date of the sale listed on the notice of
intent.
(b) Continue to conduct a going out of business sale beyond the
ending date listed on the notice of intent.
(5) A person who has conducted a going out of business sale may
not conduct another going out of business sale for a period of
one year after the ending date of the sale listed on the notice
of intent. + }
SECTION 3. { + A person filing a notice of intent with the
Secretary of State shall provide all of the following information
in the notice of intent:
(1) The name, address and telephone number of the owner of the
merchandise to be sold. If the owner is a corporation, trust,
unincorporated association, partnership or other legal entity,
the person signing the notice must be an officer of the entity
and must identify the person's title.
(2) The name, address and telephone number of the person who
will be in charge of and responsible for the conduct of the sale.
(3) The descriptive name, location and beginning and ending
dates of the sale. + }
SECTION 4. { + A person may not conduct a going out of
business sale if a person who has an ownership interest in the
business or in the merchandise to be sold is subject to a court
order resulting from a civil enforcement action under ORS 646.608
or sections 1 to 6 of this 2007 Act. + }
SECTION 5. { + (1) A person intending to conduct a going out
of business sale may not transfer merchandise from an affiliated
business or business location to the location of the sale.
(2) A person, after filing a notice of intent, may not buy or
order merchandise, take merchandise on consignment or receive a
transfer of merchandise from an affiliated business or business
location for the purpose of selling the merchandise at the sale
or sell such merchandise in a going out of business sale. + }
SECTION 6. { + (1) Sections 1 to 6 and 7 of this 2007 Act and
ORS 646.608 (1)(fff) apply only to persons who engage in the
retail sale of merchandise in the regular course of their
business.
(2) Sections 1 to 6 and 7 of this 2007 Act and ORS 646.608
(1)(fff) do not apply to public officials acting within the scope
of their duties as public officials. + }
SECTION 7. { + (1) As used in this section:
(a) 'Appropriate court' has the meaning given that term in ORS
646.605.
(b) 'Relevant market' means:
(A) A product market that consists of products or services that
a consumer would regard as interchangeable or substitutable by
reason of the products' or services' characteristics, prices and
intended use; or
(B) A geographic market that consists of the area in which the
persons concerned are involved in the supply of a product or
service and in which the conditions of competition are
sufficiently homogenous.
(c) 'Sham sale' means a going out of business sale, as defined
in section 1 of this 2007 Act, conducted with the intent to
continue the same or a similar business in the same location or
Enrolled Senate Bill 684 (SB 684-B) Page 2
at a location within the same relevant market but that is a sale
that is represented as being conducted due to a cessation of
business.
(2) A person may bring an action in an appropriate court to
enjoin another person in the same relevant market from conducting
a sham sale if the person reasonably believes the other person is
conducting a sham sale. The court may provide such equitable
relief as it deems necessary or proper.
(3) In an action brought by a person under this section, the
court may award reasonable attorney fees to the person.
(4) It is prima facie evidence that a person alleged to be
conducting a sham sale has the intent to continue the same or a
similar business if:
(a) The person regularly receives additional inventory during
the sham sale or, immediately prior to the sham sale, receives
additional inventory that is not regularly delivered;
(b) The sham sale exceeds 90 days; or
(c) The same or a similar business that consists of inventory
remaining from the sham sale and that has the same principal
ownership resumes business in the same relevant market within 12
months from the cessation of the business.
(5) It is an affirmative defense to an action brought under
this section that, during an alleged sham sale, the person no
longer needed to go out of business and immediately canceled the
alleged sham sale. + }
SECTION 8. ORS 646.608 is amended to read:
646.608. (1) A person engages in an unlawful practice when in
the course of the person's business, vocation or occupation the
person does any of the following:
(a) Passes off real estate, goods or services as those of
another.
(b) Causes likelihood of confusion or of misunderstanding as to
the source, sponsorship, approval, or certification of real
estate, goods or services.
(c) Causes likelihood of confusion or of misunderstanding as to
affiliation, connection, or association with, or certification
by, another.
(d) Uses deceptive representations or designations of
geographic origin in connection with real estate, goods or
services.
(e) Represents that real estate, goods or services have
sponsorship, approval, characteristics, ingredients, uses,
benefits, quantities or qualities that they do not have or that a
person has a sponsorship, approval, status, qualification,
affiliation, or connection that the person does not have.
(f) Represents that real estate or goods are original or new if
they are deteriorated, altered, reconditioned, reclaimed, used or
secondhand.
(g) Represents that real estate, goods or services are of a
particular standard, quality, or grade, or that real estate or
goods are of a particular style or model, if they are of another.
(h) Disparages the real estate, goods, services, property or
business of a customer or another by false or misleading
representations of fact.
(i) Advertises real estate, goods or services with intent not
to provide them as advertised, or with intent not to supply
reasonably expectable public demand, unless the advertisement
discloses a limitation of quantity.
Enrolled Senate Bill 684 (SB 684-B) Page 3
(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.
Enrolled Senate Bill 684 (SB 684-B) Page 4
(z) Sells or offers for sale a motor vehicle manufactured after
January 1, 2006, that contains mercury light switches.
(aa) Violates the provisions of ORS 803.375, 803.385 or 815.410
to 815.430.
(bb) Violates ORS 646.850 (1).
(cc) Violates any requirement of ORS 646.661 to 646.686.
(dd) Violates the provisions of ORS 128.801 to 128.898.
(ee) Violates ORS 646.883 or 646.885.
(ff) Violates any provision of ORS 646.195.
(gg) Violates ORS 646.569.
(hh) Violates the provisions of ORS 646.859.
(ii) Violates ORS 759.290.
(jj) Violates ORS 646.872.
(kk) Violates ORS 646.553 or 646.557 or any rule adopted
pursuant thereto.
(LL) Violates ORS 646.563.
(mm) Violates ORS 759.690 or any rule adopted pursuant thereto.
(nn) Violates the provisions of ORS 759.705, 759.710 and
759.720 or any rule adopted pursuant thereto.
(oo) Violates ORS 646.892 or 646.894.
(pp) Violates any provision of ORS 646.249 to 646.259.
(qq) Violates ORS 646.384.
(rr) Violates ORS 646.871.
(ss) Violates ORS 822.046.
(tt) Violates ORS 128.001.
(uu) Violates ORS 646.649 (2) to (4).
(vv) Violates ORS 646.877 (2) to (4).
(ww) Violates ORS 87.686.
(xx) Violates ORS 646.651.
(yy) Violates ORS 646.879.
(zz) Violates ORS 646.402 or any rule adopted under ORS 646.402
or 646.404.
(aaa) Violates ORS 180.440 (1).
(bbb) Commits the offense of acting as a vehicle dealer without
a certificate under ORS 822.005.
(ccc) Violates ORS 87.007 (2) or (3).
(ddd) Violates ORS 92.405 (1), (2) or (3).
(eee) Engages in an unlawful practice under ORS 646.648.
{ + (fff) Violates section 2, 4 or 5 of this 2007 Act. + }
(2) A representation under subsection (1) of this section or
ORS 646.607 may be any manifestation of any assertion by words or
conduct, including, but not limited to, a failure to disclose a
fact.
(3) In order to prevail in an action or suit under ORS 646.605
to 646.652, a prosecuting attorney need not prove competition
between the parties or actual confusion or misunderstanding.
(4) An action or suit may not be brought under subsection
(1)(u) of this section unless the Attorney General has first
established a rule in accordance with the provisions of ORS
chapter 183 declaring the conduct to be unfair or deceptive in
trade or commerce.
(5) Notwithstanding any other provision of ORS 646.605 to
646.652, if an action or suit is brought under subsection
(1)(aaa) of this section by a person other than a prosecuting
attorney, relief is limited to an injunction and the prevailing
party may be awarded reasonable attorney fees.
SECTION 9. { + Sections 1 to 6 and 7 of this 2007 Act and the
amendments to ORS 646.608 by section 8 of this 2007 Act become
operative on January 1, 2008. + }
Enrolled Senate Bill 684 (SB 684-B) Page 5
SECTION 10. { + This 2007 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2007 Act takes effect on
its passage. + }
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Passed by Senate May 11, 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 684 (SB 684-B) Page 6
Received by Governor:
......M.,............., 2007
Approved:
......M.,............., 2007
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2007
...........................................................
Secretary of State
Enrolled Senate Bill 684 (SB 684-B) Page 7