Session Law
AN ACT
HB 3388
Relating to unlawful trade
practices; creating new provisions; and amending ORS 124.005, 124.020, 124.110
and 646.608.
Be It Enacted by the People of the State of Oregon:
SECTION 1. Section 2 of this 1999 Act is added to and
made a part of ORS 646.605 to 646.652.
SECTION 2. (1) As used in this section:
(a) "Contest"
means a procedure for awarding a prize in which the outcome depends at least in
part on the skill of the contestant. "Contest" includes any
competition in which a person is required to purchase anything, pay anything of
value or make a donation in order to participate. "Contest" also
includes a competition that is advertised in a way that creates a reasonable
impression that a payment of anything of value, purchase of anything or making
a donation is a condition of winning a prize or competing for or obtaining
information about a prize.
(b) "Sweepstakes"
means a procedure for awarding a prize that is based on chance.
"Sweepstakes" includes any such procedure in which a person is
required to purchase anything, pay anything of value or make a donation as a
condition of winning a prize or of receiving or obtaining information about a
prize. "Sweepstakes" also includes any such procedure that is
advertised in a way that creates a reasonable impression that a payment of
anything of value, purchase of anything or making a donation is a condition of
winning a prize or receiving or obtaining information about a prize.
(c) "Clearly and
conspicuously" means the message is conveyed in a manner that is
reasonably apparent to the audience to whom it is directed. In order for a
message to be considered clear and conspicuous, it shall, at a minimum:
(A) Not contradict or
substantially alter any terms it purports to clarify, explain or otherwise
relate to; and
(B) In the case of printed
solicitations:
(i) Be in close proximity to
the terms it purports to clarify, explain or otherwise relate to; and
(ii) Be of sufficient
prominence in terms of placement, font or color contrast as compared with the
remainder of the solicitation so as to be reasonably apparent to the audience
to whom it is directed.
(2) A person engages in an
unlawful practice when, in the course of the person's business, vocation or occupation,
the person uses the United States mail to solicit participation in a contest
and the person does not clearly and conspicuously disclose in the solicitation:
(a) The maximum number of
rounds or levels, if the contest has more than one round or level;
(b) The date the final
winner will be determined;
(c) The maximum total cost
the final winner will have paid to the sponsor to participate in the contest;
(d) Whether the final winner
must purchase or pay anything of value to a person other than the sponsor if
purchasing or paying is a condition of eligibility;
(e) If the contest involves
multiple rounds of increasing difficulty, an example illustrative of the last
determinative round or a statement that subsequent rounds will be more
difficult;
(f) If the contest is judged
by someone other than the sponsor, the identity of or description of the
qualifications of the judges;
(g) The method used in
judging; and
(h) The name and address of
the sponsor or the sponsor's agent.
(3) A person engages in an
unlawful practice when, in the course of the person's business, vocation or
occupation, the person uses the United States mail to solicit participation in
a sweepstakes and does not clearly and conspicuously disclose in the
solicitation:
(a) The odds of winning in
Arabic numerals, except that if the odds of winning depend on the number of
entries received, a statement to that effect will be deemed sufficient;
(b) The name and address of
the sponsor or the sponsor's agent, consistently stated wherever it is used;
and
(c) The procedure for entry
without purchase.
(4) A person engages in an
unlawful practice when, in the course of the person's business, vocation or
occupation, the person solicits participation in a contest or sweepstakes:
(a) By using the United
States mail to represent that a person has been selected to receive or has won
a particular prize, when that is not the case; or
(b) By using the United
States mail to represent that a person is a winner, is a finalist, is in first
place or is otherwise in a limited group of persons with an enhanced likelihood
of winning or receiving a prize, when more than 25 percent of the persons
receiving the solicitation have the same chance of winning.
SECTION 3.
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) Violates the provisions of ORS 803.375, 803.385 or 815.410
to 815.430.
(x) Violates ORS 646.850 (1).
(y) Violates any requirement of ORS 646.661 to 646.686.
(z) Violates the provisions of ORS 128.801 to 128.898.
(aa) Violates ORS 646.883 or 646.885.
(bb) Violates any provision of ORS 646.203 to 646.209.
(cc) Violates ORS 646.569.
(dd) Violates the provisions of ORS 646.859.
(ee) Violates ORS 759.290.
(ff) Violates ORS 646.872.
(gg) Violates ORS 646.553 or 646.557 or any rule adopted pursuant
thereto.
(hh) Violates ORS 646.563.
(ii) Violates ORS 759.690 or any rule adopted pursuant thereto.
(jj) Violates the provisions of ORS 759.705, 759.710 and
759.720 or any rule adopted pursuant thereto.
(kk) Violates ORS 646.892 or 646.894.
(LL) Violates any provision of ORS 646.249 to 646.259.
(mm) Violates ORS 646.384.
(nn) Violates ORS 646.871.
(oo) Violates ORS 822.046.
(pp) Violates ORS 128.001.
(qq) Violates section 2
of this 1999 Act.
(rr) Violates section 5 of
this 1999 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) No action or suit shall 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 183.310 to 183.550 declaring the conduct
to be unfair or deceptive in trade or commerce.
SECTION 4. Section 2 of this 1999 Act and the
amendments to ORS 646.608 by section 3 of this 1999 Act apply to solicitations
occurring on or after the effective date of this 1999 Act.
SECTION 5. (1) For the purposes of this section,
"removal request" means a written request to be removed from a
sweepstakes promotion mailing list or to be placed on a list of persons to whom
sweepstakes promotions may not be mailed.
(2) Any person who receives
a sweepstakes promotion, or a combination of sweepstakes promotions from the
same service, in the United States mail regardless of the identities of the
originators of the sweepstakes promotion may send a written removal request to
the originator of any sweepstakes promotion.
(3) The removal request
shall be mailed to the address to which the recipient would have sent a payment
for any goods or services promoted in the sweepstakes promotion had the
recipient ordered the goods or services instead of mailing a removal request.
(4) An originator of a
sweepstakes promotion who receives a removal request shall remove the
requestor's name from the originator's sweepstakes promotion mailing list or
shall place the requestor's name on a list of persons to whom sweepstakes
promotions may not be mailed.
(5) The Attorney General
shall adopt rules necessary to implement this section.
(6) As used in this section,
"sweepstakes promotion" has the meaning given that term in ORS
124.005.
SECTION 6.
ORS 124.005 is amended to read:
124.005. As used in ORS 124.005 to 124.040:
(1) "Abuse" means one or more of the following:
(a) Any physical injury caused by other than accidental means,
or that appears to be at variance with the explanation given of the injury.
(b) Neglect that leads to physical harm through withholding of
services necessary to maintain health and well-being.
(c) Abandonment, including desertion or willful forsaking of an
elderly person or the withdrawal or neglect of duties and obligations owed an
elderly person by a caregiver or other person.
(d) Willful infliction of physical pain or injury.
(e) Use of derogatory or inappropriate names, phrases or
profanity, ridicule, harassment, coercion, threats, cursing, intimidation or
inappropriate sexual comments of such a nature as to threaten significant
physical or emotional harm to the elderly person.
(f) Causing any
sweepstakes promotion to be mailed to an elderly, disabled or incapacitated
person who had received sweepstakes promotional material in the United States
mail, spent more than $500 in the preceding year on any sweepstakes promotions,
or any combination of sweepstakes promotions from the same service, regardless
of the identities of the originators of the sweepstakes promotion and who
represented to the court that the person felt the need for the court's
assistance to prevent the person from incurring further expense.
(2) "Elderly person" means any person 65 years of age
or older who is not subject to the provisions of ORS 441.640 to 441.665.
(3) "Interfere" means to interpose in a way that
hinders or impedes.
(4) "Intimidate" means to compel or deter conduct by
a threat.
(5) "Menace" means to act in a threatening manner.
(6) "Molest" means to annoy, disturb or persecute
with hostile intent or injurious effect.
(7)
"Sweepstakes" means a procedure for awarding a prize that is based on
chance. "Sweepstakes" includes any such procedure in which a person
is required to purchase anything, pay anything of value or make a donation as a
condition of winning a prize or of receiving or obtaining information about a
prize. "Sweepstakes" also includes any such procedure that is
advertised in a way that creates a reasonable impression that a payment of
anything of value, purchase of anything or making a donation is a condition of
winning a prize or receiving or obtaining information about a prize.
(8) "Sweepstakes
promotion" means an offer to participate in a sweepstakes.
SECTION 7.
ORS 124.020 is amended to read:
124.020. (1) When an elderly person files a petition under ORS
124.010, the circuit court shall hold an ex parte hearing in person or by
telephone on the day the petition is filed or on the following judicial day.
Upon a showing that the petitioner has been the victim of abuse committed by
the respondent within 180 days preceding the filing of the petition and that
there is an immediate and present danger of further abuse to the petitioner,
the court shall, if requested by the petitioner, order, for a period of one
year or until the order is withdrawn or amended, whichever is sooner:
(a) That the respondent be required to move from the
petitioner's residence, if in the sole name of the petitioner or if jointly
owned or rented by the petitioner and the respondent, or if the parties are
married to each other;
(b) That a peace officer accompany the party who is leaving or
has left the parties' residence to remove essential personal effects of the
party;
(c) That the respondent be restrained from abusing,
intimidating, molesting, interfering with or menacing the petitioner, or
attempting to abuse, intimidate, molest, interfere with or menace the
petitioner;
(d) That the respondent be restrained from entering, or
attempting to enter, on any premises when it appears to the court that such
restraint is necessary to prevent the respondent from abusing, intimidating,
molesting, interfering with or menacing the petitioner; [or]
(e) That the respondent
be:
(A) Restrained, effective on
a date not less than 150 days from the date of the order, from mailing the
petitioner any sweepstakes promotion;
(B) Required to remove the
petitioner from the respondent's sweepstakes promotion mailing list or place
the petitioner on a list of persons to whom sweepstakes promotions may not be
mailed; and
(C) Required to promptly
refund any payment received in any form from the petitioner after the date the
order is entered by the court; or
[(e)] (f) Other relief that the court
considers necessary to provide for the safety and welfare of the petitioner.
(2) The showing required under subsection (1) of this section
may be made by testimony of:
(a) The petitioner;
(b) Witnesses to the abuse; or
(c) Adult protective services workers who have conducted an
investigation.
(3) Immediate and present danger under this section includes
but is not limited to situations in which the respondent has recently
threatened the petitioner with additional abuse.
(4) An instruction brochure shall be available from the clerk
of the court explaining the rights set forth under ORS 124.005 to 124.040. The
petition, order and related forms shall be available from the clerk of the
court and shall be in substantially the following form:
___________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON FOR
THE COUNTY OF _________
_____, )
Petitioner ) PETITION FOR
(your name) ) RESTRAINING
ORDER
) TO
PREVENT
vs. ) ELDER
ABUSE
)
) NO.
____
_____, )
Respondent )
(person to be )
restrained) )
YOU MUST PROVIDE COMPLETE AND TRUTHFUL INFORMATION.
IF YOU DO NOT, THE COURT MAY DISMISS ANY RESTRAINING ORDER AND MAY ALSO HOLD
YOU IN CONTEMPT OF COURT.
If you wish to have your residential address or
telephone number withheld from respondent, use a contact address and telephone
number so the Court and the Sheriff can reach you if necessary.
ATTACH ADDITIONAL PAGES
IF NECESSARY.
I am the Petitioner and I state that the following
information is true:
I am a resident of ________ County, Oregon.
Respondent is a resident of ________ County, Oregon.
I am 65 years of age or older. I am _____ years of
age.
1. CHECK
AND FILL OUT THE SECTION(S) that apply to you and
respondent:
__ A. Respondent and I have been living
together since ______, 19___.
__ B. Respondent and I lived together from
______, 19___, to ______,
19___.
__ C. I have been under the care of respondent
since ______, 19___.
__ D. I was under the care of respondent from
______, 19___, to ______,
19___.
__ E. Respondent
has sent me sweepstakes promotions.
2. To
qualify for a restraining order, respondent must have done one or more
of the following:
Within the last 180 days,
respondent has:
__ A. Caused me physical injury by other than
accidental means.
__ B. Attempted to cause me physical injury by
other than accidental
means.
__ C. Placed me in fear of immediate serious
physical injury.
__ D. Caused me physical harm by withholding
services necessary to
maintain my
health and well-being.
__ E. Abandoned or deserted me by withdrawing
or neglecting to perform
duties and
obligations.
__ F. Used derogatory or inappropriate names,
phrases or profanity,
ridicule,
harassment, coercion, threats, cursing, intimidation or
inappropriate
sexual comments of such a nature as to place me in
fear of
significant physical or emotional harm.
__ G. Sent
me sweepstakes promotions, and I feel the need for the
court's assistance to protect me from further expense. I am an elderly,
disabled or incapacitated person. In the past year, I spent more than $500 on
sweepstakes promotions that I received in the United States mail.
NOTICE TO PETITIONER: Sweepstakes companies are allowed up to 150 days to stop sending you sweepstakes entry materials. For a time after the court issues a restraining order, you may receive additional solicitations from respondent. However, beginning on the date the restraining order is issued, the respondent must immediately reject any further orders from you and must return any money you send to the company after the date the restraining order is issued.
3. Any
period of time after the abuse occurred during which respondent was
incarcerated (in jail or
prison) or lived more than 100 miles from your home
is not counted as part of
the 180-day period, and you may still be eligible for a restraining order.
Respondent was incarcerated
from ______, 19___, to ______, 19___.
Respondent lived more than
100 miles from my home from ______, 19___,
to ______, 19___.
4. Did
the abuse happen within the last 180 days not including the times
respondent was incarcerated
(in jail or prison) or lived more than 100 miles
from your home? Yes No
Date and location of abuse:
________________________________
________________________________
How did respondent injure or
threaten to injure you?
________________________________
________________________________
________________________________
5. Are
there incidents other than those described in question 4 above, in which
respondent injured or
threatened to injure you? If yes, explain:
________________________________
________________________________
________________________________
6. The
abuse I am complaining about was witnessed by _______ (affidavit
attached). Other persons
with knowledge of the abuse are _______
(affidavit attached).
7. I am
in immediate and present danger of further abuse by respondent
because:
________________________________
________________________________
________________________________
8. In
any of the above incidents:
Were drugs, alcohol or
weapons involved? Yes No
Did you need medical help?
Yes No
Were the police or the
courts involved? Yes No
If you have circled yes to
any of the above questions, explain:
________________________________
________________________________
9. A. There (is) (is not) another Elder Abuse
Prevention Act or Abuse
Prevention Act
proceeding pending between respondent and me. It
is filed in
______ (County), ______ (State), and I am (Petitioner) or
(Respondent) in
that case.
The case number
of the case is: ___________
B. There (is) (is not) another lawsuit pending between
respondent and
me for divorce,
annulment or legal separation.
If yes, type of
lawsuit: ___________
It is filed in
______ (County), ______ (State).
10. Respondent
may be required to move from your residence if it is in your
sole name, or if it is
jointly owned or rented by you and respondent, or if
you and respondent are
married.
I (do) (do not) want
respondent to move from my residence.
My residence is:
Owned Leased Rented
By: ___________
PETITIONER ASKS THE COURT TO GRANT THE RELIEF INDICATED
IN THE "PETITIONER'S REQUEST" COLUMN OF THE PROPOSED RESTRAINING
ORDER, WHICH IS ATTACHED.
___________________________________________________________________
PETITIONER MUST NOTIFY THE
COURT
OF ANY CHANGE OF ADDRESS.
ALL NOTICES OF HEARING WILL
BE SENT TO THIS ADDRESS
AND DISMISSALS MAY BE
ENTERED IF YOU DO NOT APPEAR
AT A SCHEDULED HEARING.
If you wish to have your residential address or
telephone number withheld from respondent, use a contact address and telephone
number so the Court and the Sheriff can reach you if necessary.
____________
STATE OF OREGON )
) ss.
County of ____ )
SUBSCRIBED
AND SWORN TO before me this ____ day of ___________, 19___.
_____________________________
NOTARY PUBLIC FOR OREGON
My commission expires: _____
RELEVANT DATA
RESPONDENT ___________
Sex ___ Telephone # ______
Residence Address _________
City/State/Zip ___________
County ___________
Birthdate _____ Age ___
Race _____
Height ______ Weight ______
Eye Color ______
Hair Color ______
PETITIONER (you) _________
Sex ____ *Telephone # ______
*Residence Address _________
City/State/Zip ___________
County ___________
Birthdate ______ Age ____
Race ______
Height ______ Weight ______
Eye Color ______
Hair Color ______
*If you wish to have your
residential address or telephone number withheld from respondent, use a contact
address and telephone number so the Court and the Sheriff can reach you if
necessary.
PLEASE FILL OUT THIS
INFORMATION
TO AID IN SERVICE OF
THE RESTRAINING ORDER
Where is respondent most
likely to be located?
Residence Hours
______
Employment Hours
______
Address: _____
_________
Employment Hours
______
Address: _____
_________
Description of vehicle _________
________________________________
Does respondent have any weapons or access to
weapons? Explain:
________________________________
________________________________
Has respondent ever been arrested for or convicted
of a violent crime? Explain:
________________________________
________________________________
Is there anything about respondent's character, past
behavior or the present situation that indicates that respondent may be a
danger to self or other? Explain:
________________________________
________________________________
___________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON
FOR THE COUNTY OF _________
_______, )
Petitioner )
(your name) ) RESTRAINING ORDER
) TO PREVENT ABUSE
vs. )
) NO. ______
)
_______, )
Respondent )
(person to be restrained) )
)
TO THE RESPONDENT:
VIOLATION OF THIS
RESTRAINING ORDER
MAY RESULT IN YOUR ARREST
AND IN
CIVIL AND/OR CRIMINAL
PENALTIES.
REVIEW THIS ORDER CAREFULLY.
EACH PROVISION MUST BE
OBEYED.
SEE YOUR RIGHTS TO A
HEARING.
The Court, having reviewed
the petition, makes the following findings:
Judge's Initials
__ Petitioner
has been abused by respondent as defined by ORS 124.005;
__ The
abuse of petitioner by respondent occurred within the last 180 days as
provided in ORS 124.010;
__ There
is an immediate and present danger of further abuse to petitioner.
IT IS HEREBY ORDERED that:
Petitioner's Request
Judge's Initials
[ ] 1. Respondent is
restrained (prohibited) from intimidating, ____
molesting, interfering with or menacing
petitioner, or
attempting to intimidate, molest, interfere with
or menace petitioner.
[ ] 2. Respondent is restrained (prohibited) from
entering, or ____
attempting
to enter:
(Include
names and address unless withheld for safety reasons.)
[ ] Petitioner's residence. ____
[ ] Petitioner's business or place of
employment. ____
[ ] Petitioner's school.
____
[ ] Other locations.
____
[ ] 3. Respondent
is restrained (prohibited) from:
[ ] Contacting, or attempting to contact,
petitioner by telephone. ____
[ ] Contacting, or attempting to contact,
petitioner by mail. ____
[ ] 4. Respondent shall move from and not return
to the re- ____
sidence located at _________
except with a
peace officer in order to
remove essential personal
effects of the respondent,
including, but not
limited to: clothing,
toiletries, medications,
social security cards, birth
certificates,
identification and tools of
the trade.
[ ] 5. A peace officer shall accompany the
petitioner to the ____
parties' residence in order
to remove essential personal
effects of petitioner,
including, but not limited to:
clothing, toiletries,
medications, social security cards,
birth certificates,
identification and tools of the trade.
[ ] 6. Beginning
on a date not less than
____
150 days from the date of
this order, the
respondent shall not mail
the petitioner any
further sweepstakes
promotions.
[ ] 7. Respondent
shall remove the petitioner ____
from the
respondent's sweepstakes
promotion
mailing list or shall place the
petitioner on
the respondent's list of persons
to whom
sweepstakes promotions may not be mailed.
[ ] 8. Respondent
shall refund any payment
____
received in
any form from the petitioner
after the date
this order is entered by the court.
[ ] [6.] 9. Other relief: -________________ ____
________________________________
________________________________
[ ] [7.] 10. No further service is necessary because ____
respondent appeared in person before the Court.
IT IS FURTHER ORDERED that:
SECURITY
AMOUNT FOR VIOLATION OF ANY PROVISION OF
THIS ORDER IS $5,000 unless
otherwise specified.
Other Amount ($ )
THE ABOVE PROVISIONS OF THIS RESTRAINING ORDER ARE IN EFFECT FOR A PERIOD OF ONE YEAR OR UNTIL THE ORDER IS VACATED, MODIFIED OR SUPERSEDED, WHICHEVER EVER OCCURS FIRST.
DATED this ____ day of ___________, 19___.
___________________________
CIRCUIT COURT JUDGE (signature)
___________________________
CIRCUIT COURT JUDGE (printed)
___________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON
FOR THE COUNTY OF _______
)
_____, ) NO. ____
Petitioner, )
vs. ) AFFIDAVIT
OF PROOF
_____, ) OF SERVICE
Respondent. )
)
)
STATE OF )
OREGON )
) ss.
County of ___ )
I am a resident of the State of Oregon. I am a competent person
18 years of age or older. I am not an attorney for or a party to this case, or
an officer, director or employee of any party to this case.
On the ____ day of _____, 19___, I served the Restraining Order to Prevent Elder Abuse and the Petition for Restraining Order to Prevent Abuse in this case personally upon the above-named respondent in _______ County by delivering to the respondent a copy of those papers, each of which was certified to be a true copy of each original.
______________________
Signature of ____________
SUBSCRIBED AND SWORN TO before me this ____ day of _____,
19___.
____________________________
___________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON
FOR THE COUNTY OF _______
)
_____, ) NO. ____
Petitioner, )
vs. ) MOTION
AND ORDER
_____, ) OF DISMISSAL
Respondent. )
)
Comes now petitioner, ______, and moves this Court for an order
allowing the voluntary withdrawal and dismissal of the Restraining Order on
file herein.
___________________
Petitioner
SUBSCRIBED AND SWORN TO before me this ____ day of _____,
19___.
___________________________
NOTARY
PUBLIC FOR OREGON
IT IS SO ORDERED this ____ day of _____, 19___.
_____________
JUDGE
___________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON
FOR THE COUNTY OF _______
_____, )
(D.O.B. ____) ) NOTICE TO RESPONDENT
Petitioner, ) (Elder Abuse
) Prevention Act)
)
and ) NO.
____
)
_____, )
(D.O.B. ____) )
Respondent. )
THIS FORM MUST BE
ATTACHED TO SERVICE COPY
OF RESTRAINING ORDER
TO RESPONDENT: A TEMPORARY RESTRAINING ORDER HAS
BEEN ISSUED BY THE COURT WHICH AFFECTS YOUR RIGHTS AND IS NOW IN EFFECT. THIS
ORDER BECOMES EFFECTIVE IMMEDIATELY. IF YOU WISH TO CONTEST THE CONTINUATION OF
THIS ORDER, YOU MUST COMPLETE THIS FORM AND MAIL OR DELIVER IT TO:
REQUESTS FOR HEARING MUST BE MADE WITHIN 30 DAYS
AFTER YOU RECEIVE THE ORDER. YOU MUST INCLUDE YOUR ADDRESS AND TELEPHONE NUMBER
WITH YOUR REQUEST FOR A HEARING. THE HEARING WILL BE HELD WITHIN 21 DAYS. AT
THE HEARING, A JUDGE WILL DECIDE WHETHER THE ORDER SHOULD BE CANCELED OR
CHANGED. THE ONLY PURPOSE OF THIS HEARING WILL BE TO DETERMINE IF THE TERMS OF
THE COURT'S TEMPORARY ORDER SHOULD BE CANCELED, CHANGED OR EXTENDED.
Keep in mind that this order remains in effect until
the court that issued the order modifies or dismisses it. If you are arrested
for violating this order, the security amount (bail) is $5,000, unless a
different amount is ordered by the court. Violation of this order constitutes
contempt of court and is punishable by a fine of up to $500 or one percent of
your annual gross income, whichever is greater, a jail term of up to six
months, or both. Other sanctions may be imposed.
___________________________________________________________________
REQUEST FOR HEARING
I am the Respondent in the above-referenced action
and I request a hearing to contest all or part of the order as follows (mark
one or more):
__ The
order restraining me from contacting, or attempting to contact, the
petitioner.
__ Other
___________
I (will) (will not) be represented by an attorney at
the hearing.
Notice of the time and place of the hearing can be
mailed to me at the address below my signature.
Date: ___________
________________________
SIGNATURE OF RESPONDENT
________________________
________________________
________________________
TELEPHONE NUMBER
___________________________________________________________________
(5) If the court orders relief:
(a) The clerk of the court shall provide without charge the
number of certified true copies of the petition and order necessary to effect
service and shall have a true copy of the petition and order delivered to the
county sheriff for service upon the respondent, unless the court finds that
further service is unnecessary because the respondent appeared in person before
the court.
(b) The county sheriff shall serve the respondent personally
unless the petitioner elects to have the respondent served personally by a
private party or by a peace officer who is called to the scene of a domestic
disturbance at which the respondent is present, and who is able to obtain a
copy of the order within a reasonable amount of time. Proof of service shall be
made in accordance with ORS 124.030.
(c) A respondent accused
of committing abuse by means of a sweepstakes promotion may be served:
(A) Personally;
(B) By mailing certified
true copies of the petition and order by certified mail to the address to which
the petitioner would have sent the payment for goods or services promoted in
the sweepstakes promotion had the petitioner been ordering the goods or
services instead of serving the petition and order; or
(C) In the manner directed
by the court.
[(c)] (d) No filing fee, service fee or
hearing fee shall be charged for proceedings seeking only the relief provided
under ORS 124.005 to 124.040.
(6) If the county sheriff:
(a) Determines that the order and petition are incomplete, the
order and petition shall be returned to the clerk of the court. The clerk of
the court shall notify the petitioner, at the address provided by the
petitioner, of the error or omission.
(b) After accepting the order and petition, cannot complete
service within 10 days, the sheriff shall notify the petitioner, at the address
provided by the petitioner, that the documents have not been served. If the
petitioner does not respond within 10 days, the county sheriff shall hold the
order and petition for future service and file a return to the clerk of the
court showing that service was not completed.
(7)(a) Within 30 days after a restraining order is served under
this section, the respondent therein may request a court hearing upon any
relief granted. The hearing request form shall be available from the clerk of
the court and shall be in substantially the form provided in subsection (4) of
this section.
(b) If the respondent requests a hearing under paragraph (a) of
this subsection, the clerk of the court shall notify the petitioner of the date
and time of such hearing, and shall supply the petitioner with a copy of the
respondent's request for a hearing. The petitioner shall give to the clerk of
the court information sufficient to allow such notification.
(c) The hearing shall not be limited to the issues raised in
the respondent's request for hearing form and may include testimony from
witnesses to the abuse and adult protective services workers. The hearing may
be held in person or by telephone. If the respondent seeks to raise an issue at
the hearing not previously raised in the request for hearing form, the
petitioner shall be entitled to a reasonable continuance for the purpose of
preparing a response to the issue.
(d) The court shall exercise its discretion in a manner that
protects the petitioner from traumatic confrontation with the respondent.
SECTION 8.
ORS 124.110 is amended to read:
124.110. (1) An action may be brought under ORS 124.100 for
fiduciary abuse in the following circumstances:
(a) When a person, including but not limited to a person who
has the care or custody of an elderly or incapacitated person or who stands in
a position of trust to an elderly or incapacitated person, takes or
appropriates money or property of the elderly or incapacitated person for any
wrongful use or for any purpose not in the due and lawful execution of the
trust or duty of the person.
(b) When an elderly or incapacitated person requests that
another person transfer to the elderly or incapacitated person any money or
property that the other person holds or controls and that belongs to or is held
in express trust, constructive trust or resulting trust for the elderly or
incapacitated person, and the other person, without good cause, either
continues to hold the money or property or fails to take reasonable steps to
make the money or property readily available to the elderly or incapacitated
person when:
(A) The ownership or control of the money or property was
acquired in whole or in part by the other person or someone acting in concert
with the other person from the elderly or incapacitated person; and
(B) The other person acts in bad faith, or knew or should have
known of the right of the elderly or incapacitated person to have the money or
property transferred as requested or otherwise made available to the elderly or
incapacitated person.
(c) When a person has at
any time engaged in conduct constituting a violation of a restraining order
regarding sweepstakes that was issued under ORS 124.020.
(2) For the purposes of this section, a person has the care and
custody of an elderly or incapacitated person if the person voluntarily, by
contract or by order of the court undertakes the responsibility for providing
subsistence, medical or other care to an elderly or incapacitated person,
provides financial advice to an elderly or incapacitated person or manages the
finances or resources of an elderly or incapacitated person. Persons with the
care and custody of an elderly or incapacitated person include those persons
providing care including but not limited to medical care, custodial care,
personal care, mental health services, rehabilitative services or any other
kind of care provided that is required because of age or disability.
(3) A transfer of money or property that is made for the purpose of qualifying an elderly or incapacitated person for Medicaid benefits or for any other state or federal assistance program, or the holding and exercise of control over money or property after such a transfer, does not constitute a wrongful use under subsection (1)(a) of this section or the holding of money or property without good cause for the purposes of subsection (1)(b) of this section.
SECTION 9. For purposes of determining the eligibility
of a person on or after the effective date of this 1999 Act to obtain a
restraining order under ORS 124.020, the period during which a person must have
spent more than $500 on any sweepstakes promotion or on any combination of
sweepstakes promotions begins on the date that is one year prior to the
effective date of this 1999 Act.
Approved by the Governor
July 28, 1999
Filed in the office of
Secretary of State July 28, 1999
Effective date October 23,
1999
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