76th OREGON LEGISLATIVE ASSEMBLY--2011 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 3519
Senate Bill 727
Sponsored by COMMITTEE ON JUDICIARY (at the request of Northwest
Workers Justice Project and Oregon Coalition to Stop Wage
Theft)
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.
Requires Construction Contractors Board to investigate and
process complaint for unpaid wages if certain conditions met.
Prohibits board from rejecting complaint or refusing to open
investigation if rejection or refusal to open is based on certain
grounds.
Requires board to suspend license of contractor that fails to
satisfy judgment for unpaid wages and to post summary of unpaid
judgment information on board website.
Requires board, to extent practicable, to actively recruit and
hire multilingual persons when filling positions that require
contact with public. Repeals requirement on January 2, 2014.
Makes failure to comply with certain statutes regarding payment
of wages upon termination, wage rates or conditions of employment
grounds for imposing license sanctions or civil penalty against
contractor.
Expands requirement that construction contractor provide board
with copy of unpaid judgment against contractor.
Allows person that construction contractor permits or suffers
to perform work for contractor to file complaint for unpaid
wages.
Increases total amount that may be paid from residential
contractor bond to satisfy complaint of nonowner. Increases total
amount that may be paid from residential contractor bond for
costs, interest and attorney fees.
A BILL FOR AN ACT
Relating to the Construction Contractors Board; creating new
provisions; and amending ORS 701.005, 701.106, 701.109, 701.140
and 701.153.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2 and 3 of this 2011 Act are added to
and made a part of ORS chapter 701. + }
SECTION 2. { + (1) The Construction Contractors Board shall
accept for investigation and processing any complaint against a
contractor for unpaid wages that:
(a) Is timely filed;
(b) States the amount of unpaid wages alleged to be owed to the
person filing the complaint; and
(c) Identifies each contractor being complained against.
(2) The board may not reject a complaint described in
subsection (1) of this section, or refuse to open an
investigation of the complaint, if the rejection or refusal to
open is based upon the person filing the complaint:
(a) Being unable to specify the exact days, hours or locations
of the employment;
(b) Being unable to provide documentation of the employment by
a contractor alleged to be potentially responsible in whole or in
part for payment of the wages claimed;
(c) Being unable to provide witnesses to the employment who are
unrelated to the claimant; or
(d) Alleging that the person was jointly employed by a
contractor that did not have a direct contractual relationship
with the person. + }
SECTION 3. { + (1) If the Construction Contractors Board
learns that a judgment against a contractor for unpaid wages
remains unsatisfied more than 30 days after becoming final by
operation of law or on appeal, no later than 15 days after
learning that the judgment is unsatisfied the board shall:
(a) Suspend the license of the contractor; and
(b) Post a summary of the judgment information on a website
maintained by the board.
(2) The board shall keep a license suspended and information
posted as provided in subsection (1) of this section until the
board learns that the judgment for unpaid wages has been
satisfied. + }
SECTION 4. { + The Construction Contractors Board shall, to
the extent practicable:
(1) Actively recruit multilingual candidates when hiring for
positions requiring contact with the public; and
(2) Give hiring preference to multilingual candidates when
hiring for positions requiring contact with the public. + }
SECTION 5. { + Section 4 of this 2011 Act is repealed January
2, 2014. + }
SECTION 6. ORS 701.005, as amended by section 4, chapter 77,
Oregon Laws 2010, is amended to read:
701.005. As used in this chapter:
(1) 'Board' means the Construction Contractors Board.
(2) 'Commercial contractor' means a licensed contractor that
holds an endorsement as a:
(a) Commercial general contractor level 1;
(b) Commercial specialty contractor level 1;
(c) Commercial general contractor level 2;
(d) Commercial specialty contractor level 2; or
(e) Commercial developer.
(3) 'Commercial developer' means a developer of property that
is zoned for or intended for use compatible with a small
commercial or large commercial structure.
(4) 'Construction debt' means an amount owed under:
(a) An order or arbitration award issued by the board that has
become final by operation of law;
(b) A judgment or civil penalty that has become final by
operation of law arising from construction activities within the
United States; or
(c) A judgment or civil penalty that has become final by
operation of law arising from a failure to comply with ORS
656.017.
(5) 'Contractor' means any of the following:
(a) A person that, for compensation or with the intent to sell,
arranges or undertakes or offers to undertake or submits a bid to
construct, alter, repair, add to, subtract from, improve,
inspect, move, wreck or demolish, for another, a building,
highway, road, railroad, excavation or other structure, project,
development or improvement attached to real estate, or to do any
part thereof.
(b) A person that purchases or owns property and constructs or
for compensation arranges for the construction of one or more
residential structures or small commercial structures with the
intent of selling the structures.
(c) A school district, as defined in ORS 332.002, that permits
students to construct a residential structure or small commercial
structure as an educational experience to learn building
techniques and sells the completed structure.
(d) A community college district, as defined in ORS 341.005,
that permits students to construct a residential structure or
small commercial structure as an educational experience to learn
building techniques and sells the completed structure.
(e) A person except a landscape contracting business,
nurseryman, gardener or person engaged in the commercial harvest
of forest products, that is engaged as an independent contractor
to remove trees, prune trees, remove tree limbs or stumps or to
engage in tree or limb guying.
(f) A business that supplies the services of a home inspector
certified under ORS 701.350 or a cross-connection inspector and
backflow assembly tester certified under ORS 448.279.
(g) A person that for compensation arranges, undertakes, offers
to undertake or submits a bid to clean or service chimneys.
(6) 'Developer' means a contractor that owns property or an
interest in property and engages in the business of arranging for
construction work or performing other activities associated with
the improvement of real property, with the intent to sell the
property.
{ + (7) 'Employed' means permitted or suffered to perform
work. + }
{ - (7)(a) - } { + (8)(a) + } 'General contractor' means a
contractor whose business operations require the use of more than
two unrelated building trades or crafts that the contractor
supervises or performs in whole or part, whenever the sum of all
contracts on any single property, including materials and labor,
exceeds an amount established by rule by the board.
(b) 'General contractor' does not mean a specialty contractor
or a residential limited contractor.
{ - (8)(a) - } { + (9)(a) + } 'Home improvement' means a
renovation, remodel, repair or alteration by a residential
contractor to an existing owner-occupied:
(A) Residence that is a site-built home;
(B) Condominium, rental residential unit or other residential
dwelling unit that is part of a larger structure, if the property
interest in the unit is separate from the property interest in
the larger structure;
(C) Modular home constructed off-site;
(D) Manufactured dwelling; or
(E) Floating home, as defined in ORS 830.700.
(b) 'Home improvement' does not include a renovation, remodel,
repair or alteration by a residential contractor:
(A) To a structure that contains one or more dwelling units and
is four stories or less above grade; or
(B) That the residential contractor performed in the course of
constructing a new residential structure.
{ - (9)(a) - } { + (10)(a) + } 'Home inspector' means a
person who, for a fee, inspects and provides written reports on
the overall physical condition of a residential structure and the
appurtenances of the residential structure.
(b) 'Home inspector' does not include persons certified under
ORS chapter 455 to inspect new, repaired or altered structures
for compliance with the state building code.
{ - (10) - } { + (11) + } 'Key employee' means an employee
or owner of a contractor who is a corporate officer, manager,
superintendent, foreperson or lead person or any other employee
the board identifies by rule.
{ - (11) - } { + (12) + } 'Large commercial structure'
means a structure that is not a residential structure or small
commercial structure.
{ - (12) - } { + (13) + } 'Officer' means any of the
following persons:
(a) A president, vice president, secretary, treasurer or
director of a corporation.
(b) A general partner in a limited partnership.
(c) A manager in a manager-managed limited liability company.
(d) A member of a member-managed limited liability company.
(e) A trustee.
(f) A person the board defines by rule as an officer. The
definition of officer adopted by board rule may include persons
not listed in this subsection who may exercise substantial
control over a business.
{ - (13) - } { + (14) + } 'Residential contractor' means a
licensed contractor that holds an endorsement as a:
(a) Residential general contractor;
(b) Residential specialty contractor;
(c) Residential limited contractor; or
(d) Residential developer.
{ - (14) - } { + (15) + } 'Residential developer' means a
developer of property that is zoned for or intended for use
compatible with a residential or small commercial structure.
{ - (15)(a) - } { + (16)(a) + } 'Residential structure'
means:
(A) A residence that is a site-built home;
(B) A structure that contains one or more dwelling units and is
four stories or less above grade;
(C) A condominium, rental residential unit or other residential
dwelling unit that is part of a larger structure, if the property
interest in the unit is separate from the property interest in
the larger structure;
(D) A modular home constructed off-site;
(E) A manufactured dwelling; or
(F) A floating home as defined in ORS 830.700.
(b) 'Residential structure' does not mean:
(A) Subject to paragraph (a)(C) of this subsection, a structure
that contains both residential and nonresidential units;
(B) Transient lodging;
(C) A residential school or residence hall;
(D) A state or local correctional facility other than a local
facility for persons enrolled in work release programs maintained
under ORS 144.460;
(E) A youth correction facility as defined in ORS 420.005;
(F) A youth care center operated by a county juvenile
department under administrative control of a juvenile court
pursuant to ORS 420.855 to 420.885;
(G) A detention facility as defined in ORS 419A.004;
(H) A nursing home;
(I) A hospital; or
(J) A place constructed primarily for recreational activities.
{ - (16) - } { + (17) + } 'Responsible managing individual'
means an individual who:
(a) Is an owner described in ORS 701.094 or an employee of the
business;
(b) Exercises management or supervisory authority, as defined
by the board by rule, over the construction activities of the
business; and
(c)(A) Successfully completed the training and testing required
for licensing under ORS 701.122 within a period the board
identifies by rule;
(B) Demonstrated experience the board requires by rule; or
(C) Complied with the licensing requirements of ORS 446.395.
{ - (17) - } { + (18) + } 'Small commercial structure'
means:
(a) A nonresidential structure that has a ground area of 10,000
square feet or less, including exterior walls, and a height of
not more than 20 feet from the top surface of the lowest flooring
to the highest interior overhead finish of the structure;
(b) A nonresidential leasehold, rental unit or other unit that
is part of a larger structure, if the unit has a ground area of
12,000 square feet or less, excluding exterior walls, and a
height of not more than 20 feet from the top surface of the
lowest flooring to the highest interior overhead finish of the
unit; or
(c) A nonresidential structure of any size for which the
contract price of all construction contractor work to be
performed on the structure as part of a construction project does
not total more than $250,000.
{ - (18) - } { + (19) + } 'Specialty contractor' means a
contractor who performs work on a structure, project, development
or improvement and whose operations as such do not fall within
the definition of ' general contractor.' 'Specialty contractor'
includes a person who performs work regulated under ORS 446.395.
{ - (19) - } { + (20) + } 'Zero-lot-line dwelling' means a
single-family dwelling unit constructed in a group of attached
units in which:
(a) Each attached unit extends from foundation to roof with
open space on two sides; and
(b) Each dwelling unit is separated by a property line.
SECTION 7. ORS 701.106 is amended to read:
701.106. (1) A contractor that violates or fails to comply with
any of the following provisions or any rules adopted under those
provisions is subject to the suspension of, revocation of,
refusal to issue or refusal to renew a license, imposition of a
civil penalty under ORS 701.992, or a combination of those
sanctions:
(a) ORS 87.007 (2).
(b) ORS chapter 316 or 317.
(c) ORS 446.225 to 446.285.
(d) ORS 446.395 to 446.420.
(e) ORS 447.010 to 447.156.
(f) ORS chapter 455.
(g) ORS 460.005 to 460.175.
(h) ORS 479.510 to 479.945.
(i) ORS 480.510 to 480.670.
{ + (j) ORS 652.140.
(k) ORS 653.010 to 653.261. + }
{ - (j) - } { + (L) + } ORS chapter 656.
{ - (k) - } { + (m) + } ORS chapter 657.
{ - (L) - } { + (n) + } ORS 670.600.
{ - (m) - } { + (o) + } ORS 671.510 to 671.760.
{ - (n) - } { + (p) + } ORS chapter 693.
(2) The imposition of a sanction under this section is subject
to ORS 183.413 to 183.497.
SECTION 8. ORS 701.109 is amended to read:
701.109. (1) As used in this section, 'judgment' means:
(a) { - A judgment issued in a court action - } { + A
general judgment as defined in ORS 18.005 or an equivalent
judgment from another state or a United States court + }; or
(b) A court order that confirms an arbitration award.
(2) A contractor shall send the Construction Contractors Board
a copy of a { - final - } judgment entered by a circuit court
of this state, or by an equivalent court in another state { + or
a United States court + }, if the judgment orders the contractor
to pay damages that arise from a breach of contract { + , + }
{ - or from - } negligent or improper work { + or a failure to
pay wages, + } and that relate to the construction or proposed
construction of a residential structure. The contractor shall
cause the copy of the { - final - } judgment to be delivered
to the board no later than 45 days after the { - final - }
judgment is recorded.
(3) Notwithstanding subsection (2) of this section, a
contractor is not required to send the board a copy of a
{ - final - } judgment if:
(a) The contractor paid the damages and other amounts payable
by the contractor under the judgment no later than 30 days after
recording of the judgment; or
(b) The contractor is appealing the judgment and has filed any
undertaking on appeal required by ORS 19.300.
(4) In determining whether to impose a disciplinary sanction
under this chapter, the board shall give due consideration to any
past or current attempts by the contractor to make payments
toward satisfaction of a judgment.
SECTION 9. ORS 701.140 is amended to read:
701.140. A complaint under ORS 701.139 must arise from the
performance, or a contract for the performance, of work that
requires a contractor license issued by the Construction
Contractors Board. The complaint must be of one or more of the
following types:
(1) A 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 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 complaint is processed under ORS 701.145,
the Construction Contractors Board may reduce the amount of the
complaint by any amount the complainant owes the contractor. The
board shall process 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;
(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
failed to pay the person claiming the lien for that person's
contribution toward completion of the improvement; and
(c) The complaint is described in ORS 701.139 (1) or (3)(a) or
(b).
(3) A 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 complaint by a person furnishing labor to { + , + }
{ - a contractor - } { + employed by + } or owed employee
benefits by { + , + } a contractor.
(5) A 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 may not exceed
$150.
(6) A complaint by a subcontractor against a contractor for
unpaid labor or materials arising out of a contract.
SECTION 10. ORS 701.153 is amended to read:
701.153. (1) If an order of the Construction Contractors Board
that determines a 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 complainant may file the
order with the county clerk in any county of this state.
(2) 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.
(3)(a) Payments from the surety bond of a residential
contractor pursuant to board order and notice are satisfied in
the following priority in any 90-day period:
(A) Board orders as a result of complaints against a
residential 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 complaints.
(B) If the complaints described in subparagraph (A) of this
paragraph do not exhaust the bond, then amounts due as a result
of all other types of residential or small commercial structure
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 complainants may not exceed { - $3,000 - } { +
$5,000 + }.
(b) A 90-day period begins on the date the first complaint is
filed with the board. Subsequent 90-day periods begin on the date
the first complaint is filed with the board after the close of
the preceding 90-day period.
(4) If the total complaints filed with the board against a
residential contractor within 90 days after the board receives
notice of the first complaint against the contractor exceed the
amount of the bond available for those complaints, the bond shall
be apportioned as the board determines, subject to the priorities
established under this section.
(5) If the total amounts due as a result of complaints filed
with the board within 90 days after the first complaint is filed
do not exceed the amount of the bond available for those
complaints, all amounts due as a result of complaints filed
within the 90-day period shall have priority over all complaints
subsequently filed until the amount of the bond available for the
payment of complaints is exhausted.
(6) The total amount paid from a residential contractor bond
for costs, interest and attorney fees may not exceed
{ - $3,000 - } { + $5,000 + }.
SECTION 11. { + Section 2 of this 2011 Act applies to
complaints filed with the Construction Contractors Board on or
after the effective date of this 2011 Act. + }
SECTION 12. { + Section 3 of this 2011 Act applies to
judgments that become final by operation of law before, on or
after the effective date of this 2011 Act. + }
SECTION 13. { + The amendments to ORS 701.106 by section 7 of
this 2011 Act apply to violations or failures to comply with ORS
652.140 or 653.010 to 653.261 that occur on or after the
effective date of this 2011 Act. + }
SECTION 14. { + The amendments to ORS 701.109 by section 8 of
this 2011 Act apply to judgments recorded on or after the
effective date of this 2011 Act. + }
SECTION 15. { + The amendments to ORS 701.153 by section 10 of
this 2011 Act do not apply for the purpose of increasing the
amount payable from a bond for nonowner complaints or for costs,
interest and attorney fees pursuant to a notice and order issued
by the Construction Contractors Board before the effective date
of this 2011 Act. + }
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