75th OREGON LEGISLATIVE ASSEMBLY--2009 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 2786
Senate Bill 915
Sponsored by Senator MORSE
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 as
introduced.
Prohibits municipality that enforces state building code
provision or building requirement by means of municipal ordinance
from assessing criminal penalty for ordinance violation if
violation of corresponding state building code provision or
building requirement is subject to civil penalty. Prohibits
municipality from imposing civil penalty for ordinance violation
that exceeds maximum civil penalty for violation of corresponding
state building code provision or building requirement. Requires
that fees municipality charges for investigation or other
activities regarding alleged violation of ordinance be approved
by Director of Department of Consumer and Business Services.
Revises grounds on which director may allow municipality to
adopt municipal ordinance, rule or regulation conflicting with
state building code.
Requires that rules for uniform enforcement of state building
code provide for building official or inspector to give violator
notice of penalties and procedural rights when issuing citation.
Requires that rules provide appeal process for denial of
certificate of occupancy if denial is based on violation of state
building code specialty code.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to the regulation of structures; creating new
provisions; amending ORS 455.040, 455.055, 455.080, 455.153 and
455.156; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 455.040 is amended to read:
455.040. { - (1) - } The state building code shall be
applicable and uniform throughout this state and in all
municipalities, and no municipality shall enact or enforce any
ordinance, rule or regulation relating to the same matters
encompassed by the state building code but { - which - } { +
that + } provides different requirements unless authorized by the
Director of the Department of Consumer and Business Services. The
director's authorization { - shall not be considered - } { +
under this section does not constitute + } an amendment to the
state building code under ORS 455.030. The director { - shall
encourage experimentation, innovation and cost effectiveness by
municipalities in the adoption of ordinances, rules or
regulations which conflict with the state building code. - }
{ + may authorize a municipality to adopt an ordinance, rule or
regulation that conflicts with the state building code only if
the director makes written findings that:
(1) A unique local geological or other condition makes
application of the state building code impracticable or is not
addressed by the code; and
(2) Adoption of the ordinance, rule or regulation will result
in better service to the public. + }
{ - (2) Subsection (1) of this section is operative: - }
{ - (a) With regard to the state structural code, July 1,
1974. - }
{ - (b) With regard to the state mechanical, heating and
ventilating code, on the effective date of such code as
determined under ORS 183.355. - }
{ - (c) With regard to each specialty code not named by
paragraphs (a) and (b) of this subsection, on the effective date,
as determined under ORS 183.355, of the first amendments to such
code adopted pursuant to this chapter. - }
SECTION 2. ORS 455.055 is amended to read:
455.055. { + (1) + } The Director of the Department of
Consumer and Business Services may adopt rules establishing
uniform permit, inspection and certificate of occupancy
requirements under the state building code.
{ + (2) + } The rules may include, but need not be limited
to, rules establishing standards for building inspections and
inspection procedures and rules establishing uniform forms for
certificates of occupancy.
{ + (3) The rules shall include the following:
(a) A requirement that a building official or inspector who
issues a citation for a violation of the state building code
include with the citation a notice stating the proposed penalty
amount, the maximum penalty for the violation and the procedure
for challenging the citation.
(b) A requirement that if a certificate of occupancy is denied
based on violation of a specialty code:
(A) If the denial is by a municipality, the denial may be
appealed to the municipal appeals board and then to the
appropriate advisory board under ORS 455.690.
(B) If the denial is by a municipality and no municipal appeals
board exists, the denial may be appealed directly to the
appropriate advisory board in the same manner as an appeal under
ORS 455.690.
(C) If the denial is by the department, the denial may be
appealed to the appropriate state advisory board under ORS
455.690.
(4) + }In adopting rules under this section, the director may
establish a process for a municipality to address conditions that
are unique to the municipality's enforcement of the state
building code or that are not addressed by the rules establishing
uniform permit, inspection and certificate of occupancy
requirements.
SECTION 3. ORS 455.080 is amended to read:
455.080. Notwithstanding ORS 455.630 (2), any inspector,
including a specialty code inspector licensed under ORS 455.457,
authorized by ORS { + 455.148, + } 455.150 or 455.153 to
determine compliance with the requirements of the state building
code or any specialty code under this chapter may, in accordance
with a compliance program as described in ORS 455.153
{ - (2) - } { + (3) + }, require any person who is engaged in
any activity regulated by the state building code to demonstrate
proof of compliance with the applicable licensing, registration
or certification requirements of ORS chapters 446, 447, 455, 460,
479, 480, 693 and 701.
SECTION 4. ORS 455.153 is amended to read:
455.153. (1) { + Subject to subsection (2) of this
section, + } a municipality may administer any specialty code or
building requirements as though the code or requirements were
ordinances of the municipality if the municipality is authorized
to administer:
(a) The specialty code under ORS chapter 447 or 455 or ORS
479.510 to 479.945 and 479.995.
(b) Mobile or manufactured dwelling parks requirements adopted
under ORS 446.062.
(c) Temporary parks requirements adopted under ORS 446.105.
(d) Manufactured dwelling installation, support and tiedown
requirements adopted under ORS 446.230.
(e) Park or camp requirements adopted under ORS 455.680.
{ + (2) A municipality that treats the violation of a state
building code provision or a building requirement as a violation
of a municipal ordinance may not:
(a) Impose a criminal penalty for the violation of a municipal
ordinance if violation of the state building code provision or
building requirement is subject to a civil penalty;
(b) Impose a civil penalty for the violation of a municipal
ordinance that exceeds the maximum civil penalty for violation of
the state building code provision or building requirement; or
(c) Assess an investigative fee or other fee in connection with
the violation of the municipal ordinance unless the fee is
adopted in compliance with ORS 455.210. + }
{ - (2) - } { + (3) + } Administration of any specialty
code or building requirement includes establishing a program
intended to verify compliance with state licensing requirements
and all other administrative and judicial aspects of enforcement
of the code or requirement. Nothing in this section affects the
concurrent jurisdiction of the Director of the Department of
Consumer and Business Services, the Building Codes Structures
Board, the State Plumbing Board, the Manufactured Structures and
Parks Advisory Board, the Electrical and Elevator Board, the
Residential Structures Board or the Mechanical Board to impose
civil penalties for violations committed within municipalities.
SECTION 5. ORS 455.156 is amended to read:
455.156. (1) Notwithstanding any other provision of this
chapter, ORS chapter 693 or ORS 447.010 to 447.156, 447.992,
479.510 to 479.945, 479.990 or 479.995, the Department of
Consumer and Business Services shall carry out the provisions of
this section.
(2)(a) A municipality that establishes a building inspection
program under ORS 455.148 or a plumbing inspection program under
ORS 455.150 covering installations under the plumbing specialty
code or Low-Rise Residential Dwelling Code may act on behalf of
the State Plumbing Board to investigate violations of and enforce
ORS 447.040, 693.030 and 693.040 and to issue notices of proposed
assessment of civil penalties for those violations.
(b) A municipality that establishes a building inspection
program under ORS 455.148 or an electrical inspection program
under ORS 455.150 covering installations under the electrical
specialty code or Low-Rise Residential Dwelling Code may act on
behalf of the Electrical and Elevator Board to investigate
violations of and enforce ORS 479.550 (1) and 479.620 and to
issue notices of proposed assessment of civil penalties for those
violations.
(c) A municipality that establishes a building inspection
program under ORS 455.148 or 455.150 may investigate violations
and enforce any provisions of the program administered by the
municipality.
(3) The department shall establish:
(a) Procedures, forms and standards to carry out the provisions
of this section, including but not limited to creating preprinted
notices of proposed assessment of penalties that can be completed
and served by municipal inspectors;
(b) A program to provide that all of the moneys recovered by
the department, less collection expenses, be paid to the
municipality that initiated the charges when a person charged
with a violation as provided in subsection (2) of this section,
other than a violation of a licensing requirement, agrees to the
entry of an assessment of civil penalty or does not request a
hearing, and an order assessing a penalty is entered against the
person;
(c) A uniform citation process to be used in all jurisdictions
of the state for violation of a licensing requirement. The
process may include but need not be limited to all program areas
administered by a municipality under ORS 455.148 or 455.150 and
may provide a uniform method for checking license status and
issuing citations for violation of a licensing requirement, and a
consistent basis for enforcement of licensing requirements and
treatment of violations, including { + schedules for imposing
statutorily authorized + }fine { + or civil penalty + }
amounts;
(d) A program to provide a division of the moneys recovered by
the department with the municipality that initiated the charges,
when a person charged with a violation as provided in subsection
(2) of this section, other than a violation of a licensing
requirement, requests a hearing and is assessed a penalty.
One-half of the amounts recovered shall be paid to the
municipality. The department shall keep an amount equal to its
costs of processing the proceeding and collection expenses out of
the remaining one-half and remit the balance, if any, to the
municipality; and
(e) A program to require municipalities to investigate
violations of the department's permit requirements for plumbing
installations and services under the plumbing specialty code and
for plumbing and electrical installations and services under the
Low-Rise Residential Dwelling Code, and to:
(A) Initiate notices of proposed assessment of civil penalties
as agents of the boards designated in subsection (2) of this
section; and
(B) Pay the agents of the boards out of net civil penalty
recoveries as if the recoveries were under paragraphs (b) and (d)
of this subsection.
(4) The assessment of a civil penalty under this section by a
municipality is subject to the amount limitations set forth in
ORS 455.895.
(5)(a) It shall be a defense for any person charged with a
penalty for violation of a building inspection program permit
requirement covering plumbing installations under the plumbing
specialty code, electrical permit requirements under ORS 479.550
or plumbing or electrical requirements under the Low-Rise
Residential Dwelling Code that the person was previously
penalized for the same occurrence.
(b) A building inspection program permit requirement is a
requirement contained in a specialty code or municipal ordinance
or rule requiring a permit before the particular installations
covered by the codes are commenced.
(c) A penalty for the same occurrence includes a combination of
two or more of the following that are based on the same plumbing
or electrical installation:
(A)(i) An investigative or other fee added to an electrical
permit fee when a permit was obtained after the electrical
installation was started;
(ii) A civil penalty pursuant to ORS 479.995 for violation of
ORS 479.550 for failure to obtain an electrical permit;
(iii) A civil penalty pursuant to ORS 455.895 for failure to
obtain an electrical permit under the Low-Rise Residential
Dwelling Code; or
(iv) A municipal penalty, other than an investigative fee, for
making an electrical installation under the electrical specialty
code or the Low-Rise Residential Dwelling Code without a permit;
or
(B)(i) An investigative or other fee added to a plumbing permit
fee when a permit was obtained after the plumbing installation
was started;
(ii) A civil penalty pursuant to ORS 447.992 for failure to
obtain a plumbing permit as required under the plumbing specialty
code;
(iii) A civil penalty pursuant to ORS 455.895 for failure to
obtain a plumbing permit under the Low-Rise Residential Dwelling
Code; or
(iv) A municipal penalty, other than an investigative fee, for
making a plumbing installation under the plumbing specialty code
or the Low-Rise Residential Dwelling Code without a permit.
SECTION 6. { + (1) The amendments to ORS 455.156 by section 5
of this 2009 Act apply to proceedings for an alleged violation of
a municipal ordinance, rule or regulation that become final by
operation of law or on appeal on or after the effective date of
this 2009 Act.
(2) The Director of the Department of Consumer and Business
Services shall adopt the rules described in the amendments to ORS
455.055 by section 2 of this 2009 Act in time for the rules to
become effective no later than January 1, 2010.
(3) Notwithstanding ORS 455.690, a person that is denied a
certificate of occupancy for a structure prior to the effective
date of the rules described in ORS 455.055 (3)(b) may, if the
person has not previously received review of the denial by the
appropriate advisory board, file an appeal of the denial with the
appropriate advisory board on or before March 1, 2010. An
advisory board shall review and issue a determination for a
denial described in this subsection no later than 60 days after
the appeal is filed. + }
SECTION 7. { + This 2009 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2009 Act takes effect on its
passage. + }
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