73rd OREGON LEGISLATIVE ASSEMBLY--2005 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 360
Corrected Title
Senate Bill 120
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Governor Theodore R.
Kulongoski for Department of Consumer and Business Services)
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.
Authorizes Director of Department of Consumer and Business
Services to examine conditions and resources of persons acting as
certified providers or master trustees of prearranged funeral and
cemetery services without certification or registration.
Authorizes director to issue cease and desist orders as
discipline for improper conduct by certified providers, master
trustees and persons acting as certified providers or master
trustees without certification or registration.
Authorizes director to investigate conduct of persons acting as
credit services organizations and to issue cease and desist
orders to remedy violations. Authorizes director to revoke
expired registration of credit services organization. Authorizes
director to audit customer records of persons acting as credit
services organizations without registration.
Authorizes director to investigate conduct of persons acting as
collection agencies and to issue cease and desist orders to
remedy violations. Authorizes director to revoke expired
registration of collection agency. Expands rulemaking authority
of director to include amount of fees charged by collection
agencies.
Authorizes director to investigate conduct of persons acting as
debt consolidating agencies and to issue cease and desist orders
to remedy violations. Authorizes director to audit trust accounts
of persons acting as debt consolidating agencies without
registration.
Authorizes director to issue civil penalty for violation of
cease and desist order issued to persons acting as collection
agencies, debt consolidating agencies or pawnbrokers.
Authorizes director to assess costs of investigation against
persons investigated.
Authorizes director to investigate conduct of persons acting as
consumer finance lenders without license and to issue cease and
desist orders to remedy violations.
Authorizes director to issue cease and desist orders to remedy
violations of pledge loan laws.
A BILL FOR AN ACT
Relating to enforcement powers of the Director of the Department
of Consumer and Business Services in transactions involving
financial service providers that do not receive insured
deposits; creating new provisions; and amending ORS 97.947,
97.948, 97.949, 646.396, 697.039, 697.085, 697.095, 697.702,
697.732, 697.752, 697.762, 697.832, 697.990, 697.992, 717.290,
725.310, 725.400, 726.250 and 726.910.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 97.947 is amended to read:
97.947. { + (1)(a) + } { - (1) Each certified provider or
master trustee is subject to the examination of - } The Director
of the Department of Consumer and Business Services { - . The
director may conduct examinations of - } { + may examine + }
the conditions and resources { + , including sales contracts, + }
of { - each - } { + a + } certified provider { + , + }
{ - or - } master trustee { + or person acting as a certified
provider or master trustee without certification or
registration + } { - , including a review of sales contracts
used by the certified provider or master trustee, - } to
determine whether the certified provider { + , + } { - or - }
master trustee { + or person acting as a certified provider or
master trustee without certification or registration + } is
complying with { - the requirements of - } ORS 97.923 to
97.949, { - the laws of this state and - } the rules of the
director { - . - } { + and any other laws of this state
applicable to a certified provider or master trustee.
(b) In addition to the authority conferred by ORS 97.948, + }
the director may require { + a + } certified { - providers
or - } { + provider, + } master
{ - trustees - } { + trustee or person acting as a certified
provider or master trustee without certification or
registration + } to pay the actual and reasonable costs of the
examination.
(2) For the purpose of an examination under this section, the
director may administer oaths and affirmations, { - subpoena
witnesses and - } compel { - their - } { + the + }
attendance { + of witnesses + }, take evidence and require the
production of books, papers, correspondence, memoranda,
agreements or other documents or records that the director
considers relevant or material to the examination.
(3) If a certified provider { + , + } { - or - } master
trustee { + or person acting as a certified provider or master
trustee without certification or registration + } fails to comply
with a subpoena issued under this section or a party or witness
refuses to testify on any matter, the judge of the circuit court
for any county, on the application of the director, shall compel
obedience by proceedings for contempt as in the case of
disobedience of the requirements of a subpoena issued from the
court or a refusal to testify on a matter before the court.
(4) Each witness who appears before the director under a
subpoena issued under this section shall receive the fees and
mileage provided for witnesses in ORS 44.415 (2), except that a
witness subpoenaed at the instance of parties other than the
director or an examiner may not be compensated for attendance or
travel unless the director certifies that the testimony of the
witness was material to the matter investigated.
(5) During the course of any examination, the director may
cause the depositions of witnesses to be taken in the manner
prescribed by law for like depositions in civil suits in the
circuit court.
SECTION 2. ORS 97.948 is amended to read:
97.948. (1) The Director of the Department of Consumer and
Business Services may discipline { - as provided in this
section any - } { + a + } certified provider { + , + }
{ - or - } master trustee { - , - } or person acting as a
certified provider or master trustee without { - a - }
certification or registration { - , - } who has been found by
an audit or examination conducted by the director:
(a) To be in violation of { - one or more of the provisions
of - } ORS 97.923 to 97.949;
(b) To { - be insolvent because the certified provider's or
master trustee's - } { + have + } liabilities { + that + }
exceed { - the certified provider's or master trustee's - }
assets;
(c) { - The certified provider or master trustee cannot - }
{ + To be unable to + } meet obligations as they come due; or
(d) { - The certified provider or master trustee is - }
{ + To be + } in
{ - such - } { + a + } financial condition that { - the
certified provider or master trustee cannot - } { + fails
to + } adequately protect the interests of { - the certified
provider's or master trustee's - } customers.
(2) In disciplining a certified provider, master trustee or
person acting as a certified provider or master trustee without
{ - a - } certification or registration { - as authorized
by - } { + under + } subsection (1) of this section, the
director may take { - any or all of - } the following actions:
(a) Impose probation.
(b) Suspend the certificate or registration.
(c) Revoke the certificate or registration.
(d) Place limitations on the certificate or registration.
(e) Refuse to issue or renew a certificate or registration.
{ + (f) Issue an order to cease and desist from the
activities that support the discipline. + }
{ - (f) - } { + (g) + } Take { - such - } { + any + }
other disciplinary action { - as - } { + that + } the
director { - in the director's discretion - } finds proper,
including assessment of the costs of the investigation and
disciplinary proceedings and assessment of a civil penalty not to
exceed $10,000 per violation.
(3) If the certificate or registration of a certified provider
or master trustee is suspended under this section, the holder of
the certificate or registration may not engage in the activities
allowed by the certificate or registration during the term of
suspension. Upon the expiration of the term of suspension, the
director shall reinstate the certificate or registration if the
conditions for which the certificate or registration was
suspended no longer exist.
(4) The director shall enter each case of disciplinary action
on the records of the Department of Consumer and Business
Services.
(5) Civil penalties under this section may be imposed as
provided in ORS 183.745.
(6) If the director takes disciplinary action under this
section, the director may send a notice of the action to the
State Mortuary and Cemetery Board and to the Attorney General.
SECTION 3. ORS 97.949 is amended to read:
97.949. (1) If the Director of the Department of Consumer and
Business Services has reason to believe that a person has
violated any provision of ORS 97.923 to 97.949, the director may
give the information relative to the violation to the appropriate
federal, state or local law enforcement officer having
jurisdiction over the violation.
(2) If the director, in the course of taking an action against
a certified provider, master trustee or person acting as a
certified provider or master trustee without { - a registration
or - } certification { + or registration + }, finds that a
salesperson or person acting as a salesperson has violated any
provision of ORS 97.923 to 97.949, the director shall provide the
State Mortuary and Cemetery Board with a copy of the findings and
the order of the director. The board shall, upon receipt of such
information, discipline the salesperson or person acting as a
salesperson as required by law.
SECTION 4. { + Sections 5 and 6 of this 2005 Act are added to
and made a part of ORS 646.382 to 646.396. + }
SECTION 5. { + The Director of the Department of Consumer and
Business Services may:
(1) Undertake the investigations, including investigations
outside this state, that the director considers necessary to
determine whether a person has violated, is violating or is about
to violate ORS 646.382 to 646.396, a rule of the director adopted
under ORS 646.386 or 646.396 or an order of the director issued
to enforce ORS 646.382 to 646.396;
(2) Require a person to file a statement in writing, under oath
or otherwise, concerning the matter being investigated;
(3) Take evidence from witnesses and compel the attendance of
witnesses and the production of books, papers, correspondence,
memoranda, agreements or other documents or records that the
director considers relevant or material to an investigation or
proceeding; and
(4) If the director has reason to believe that a person has
violated, is violating or is about to violate ORS 646.382 to
646.396, a rule of the director adopted under ORS 646.386 or
646.396 or an order of the director issued to enforce ORS 646.382
to 646.396, issue an order to cease and desist from the
violation. + }
SECTION 6. { + (1) The Director of the Department of Consumer
and Business Services shall serve an order under section 5 of
this 2005 Act on the person named in the order.
(2) An order issued under section 5 of this 2005 Act becomes
effective upon service on the person named in the order.
(3) ORS 183.413 to 183.470 apply to an order issued under
section 5 of this 2005 Act.
(4) Notwithstanding subsection (3) of this section, a person
may not obtain a hearing on the order unless the person requests
the hearing in writing within 20 days after service of the order.
(5) A person who does not request a contested case hearing may
not obtain judicial review of the order.
(6) The director may vacate or modify an order issued under
section 5 of this 2005 Act. A modified order is effective upon
service on the person named in the order. + }
SECTION 7. ORS 646.396 is amended to read:
646.396. In addition to the { - provisions of - }
{ + authority conferred by + } ORS 646.608:
(1) Upon the director's own motion or upon receipt of a
complaint by a customer of { - the - } { + a + } credit
services organization { + or of a person acting as a credit
services organization without registration + }, the director may
audit the { - credit services - } organization's customer
records. If the director finds any discrepancies in the customer
records { - of the credit services organization - } , the
director may { - also - } audit { - the operating accounts
and - } any other accounts or records kept by the { - credit
services - } organization for discrepancies. The credit services
organization { + or person acting as a credit services
organization without registration + } shall pay the reasonable
cost of any audit under this section, as determined by the
director.
(2) The director may refuse to issue or renew or may revoke or
suspend any registration under ORS 646.386 if the Department of
Consumer and Business Services determines that:
(a) Any information a credit services organization files with
the department is false or untruthful;
(b) A credit services organization has violated { - any of
the provisions of - } ORS 646.382 to 646.396;
(c) A credit services organization has violated any of the
rules of the department adopted under { - ORS 646.380 to
646.396 - } { + this section + } and { + ORS + } 646.608; or
(d) A credit services organization has failed to maintain in
effect the bond or an irrevocable letter of credit required
{ - under - } { + by + } ORS 646.388.
{ + (3) If the director issued an initial order of revocation
of a registration before the expiration of the registration, the
director may enter a final order of revocation even though the
registration has expired. + }
{ - (3) - } { + (4) + } The department may impose a civil
penalty in an amount not to exceed $1,000 per violation for each
violation of ORS 646.382 to 646.396. The civil penalties shall be
imposed as provided in ORS 183.745.
{ - (4) - } { + (5) + } Actions of the director under
subsections (1) to (4) of this section are subject to the
provisions of ORS chapter 183.
{ - (5) - } { + (6) + } The director may adopt rules
necessary for the administration of ORS 646.380 to 646.396 and
646.608.
SECTION 8. { + Sections 9 and 10 of this 2005 Act are added to
and made a part of ORS 697.005 to 697.095. + }
SECTION 9. { + (1) The Director of the Department of Consumer
and Business Services may:
(a) Undertake the investigations, including investigations
outside this state, that the director considers necessary to
determine whether a person has:
(A) Violated, is violating or is about to violate:
(i) ORS 697.015, 697.031, 697.045, 697.058, 697.091, 697.105 or
697.115;
(ii) A rule adopted under ORS 697.031, 697.085 or 697.086; or
(iii) An order issued under this section;
(B) Filed information under ORS 697.031 that is false or
untruthful; or
(C) Failed to maintain in effect the bond or an irrevocable
letter of credit required under ORS 697.031.
(b) Require a person to file a statement in writing, under oath
or otherwise, concerning the matter being investigated.
(c) Take evidence from witnesses and compel the attendance of
witnesses and the production of books, papers, correspondence,
memoranda, agreements or other documents or records that the
director considers relevant or material to an investigation or
proceeding.
(d) If the director has reason to believe that a person has:
(A) Violated, is violating or is about to violate ORS 697.015,
697.031, 697.045, 697.058, 697.091, 697.105 or 697.115 or a rule
adopted under ORS 697.031, 697.085 or 697.086, issue an order to
cease and desist from the violation.
(B) Filed information under ORS 697.031 that is false or
untruthful, issue an order to correct the filing.
(C) Failed to maintain in effect the bond or an irrevocable
letter of credit required under ORS 697.031, issue an order to
remedy the failure.
(2) The authority conferred by this section is in addition to
and not in lieu of any other authority conferred on the
director. + }
SECTION 10. { + (1) The Director of the Department of Consumer
and Business Services shall serve an order under section 9 of
this 2005 Act on the person named in the order.
(2) An order issued under section 9 of this 2005 Act becomes
effective upon service on the person named in the order.
(3) ORS 183.413 to 183.470 apply to an order issued under
section 9 of this 2005 Act.
(4) Notwithstanding subsection (3) of this section, a person
may not obtain a hearing on the order unless the person requests
the hearing in writing within 20 days after service of the order.
(5) A person who does not request a contested case hearing may
not obtain judicial review of the order.
(6) The director may vacate or modify an order issued under
section 9 of this 2005 Act. A modified order is effective upon
service on the person named in the order. + }
SECTION 11. ORS 697.039 is amended to read:
697.039. (1) The Director of the Department of Consumer and
Business Services may refuse to issue or renew or may revoke or
suspend any registration under ORS 697.031 if the director
determines that:
(a) Any information a person files with the director under ORS
697.031 is false or untruthful;
(b) A person has violated any of the rules of the director for
registration under ORS 697.031;
(c) A person has violated the provisions of ORS 697.045 or
697.058;
(d) A person has failed to maintain in effect the bond or an
irrevocable letter of credit required under ORS 697.031;
(e) A person has died or become incapacitated;
(f) A person has engaged in dishonest, fraudulent or illegal
practices or conduct in any business or profession; or
(g) A person has been convicted of a felony or misdemeanor, an
essential element of which is fraud.
(2) A revocation or suspension under this section may be for a
time certain or upon condition that certain acts be performed.
{ + (3) If the director issued an initial order of revocation
of a registration before the expiration of the registration, the
director may enter a final order of revocation even though the
registration has expired. + }
{ - (3) - } { + (4) + } Actions of the director under this
section are subject to the provisions of ORS chapter 183.
SECTION 12. ORS 697.085 is amended to read:
697.085. { - In accordance with applicable provisions of ORS
chapter 183, - } The Director of the Department of Consumer and
Business Services may adopt rules for the administration and
enforcement of ORS 697.005 to 697.095 { + , 697.105 and
697.115 + }.
SECTION 13. ORS 697.095 is amended to read:
697.095. (1) In addition to any other penalty provided by law,
a person who violates any provision of ORS 697.015 or 697.058 or
any rule adopted under ORS 697.031 { + , + } { - or - }
697.085 { + or 697.086 + } is subject to forfeiture and payment
of a civil penalty to the Department of Consumer and Business
Services in an amount of not more than $1,000 for each offense.
(2) Civil penalties under this section shall be imposed as
provided in ORS 183.745.
(3) All penalties recovered shall be deposited in the Consumer
and Business Services Fund created by ORS 705.145.
SECTION 14. { + Section 15 of this 2005 Act is added to and
made a part of ORS 697.602 to 697.842. + }
SECTION 15. { + (1) The Director of the Department of Consumer
and Business Services may, if the director has reason to believe
that a person has:
(a) Violated, is violating or is about to violate ORS 697.612
or 697.642 to 697.702, a rule adopted under ORS 697.632 or an
order issued under ORS 697.732 or 697.742, issue an order to
cease and desist from the violation.
(b) Filed information under ORS 697.632 that is false or
untruthful, issue an order to correct the filing.
(c) Failed to maintain in effect the bond required under ORS
697.642, issue an order to remedy the failure.
(2)(a) The director shall serve an order under this section on
the person named in the order.
(b) An order issued under this section becomes effective upon
service on the person named in the order.
(c) ORS 183.413 to 183.470 apply to an order issued under this
section.
(d) Notwithstanding paragraph (c) of this subsection, a person
may not obtain a hearing on the order unless the person requests
the hearing in writing within 20 days after service of the order.
(e) A person who does not request a contested case hearing may
not obtain judicial review of the order.
(f) The director may vacate or modify an order issued under
this section. A modified order is effective upon service on the
person named in the order.
(3) The authority conferred by this section is in addition to
and not in lieu of any other authority conferred on the
director. + }
SECTION 16. ORS 697.702 is amended to read:
697.702. (1) A person commits the offense of interfering with
records of a debt consolidating agency if the person does either
of the following to a record to which ORS 697.672 applies:
(a) Intentionally makes a false entry in the record.
(b) Intentionally mutilates, destroys or otherwise disposes of
the record.
(2) Subsection (1) { + (b) + } of this section does not apply
{ - when - } { + to the disposal of records by + } a debt
consolidating agency
{ - disposes of records as authorized - } { + that occurs
after the expiration of the retention period + } in ORS 697.672
{ - (3) - } .
{ - (3) A debt consolidating agency which commits the offense
described in this section is subject to ORS 697.752, 697.762,
697.832 and 697.990 (3). - }
{ - (4) A person other than a debt consolidating agency who
commits the offense described in this section is subject to ORS
697.762, 697.832 and 697.990 (3). - }
SECTION 17. ORS 697.732 is amended to read:
697.732. (1) { + To enforce ORS 697.612 and 697.642 to
697.702, + } the Director of the Department of Consumer and
Business Services
{ - has the following investigatory powers for the purpose of
enforcing ORS 697.612, 697.652 to 697.702 - } { + may + }:
(a) { - The director, - } Upon the director's own motion or
upon receipt of a complaint by a client of a debt consolidating
agency { + or of a person acting as a debt consolidating agency
without registration + }, { - may - } audit the trust accounts
of the agency { + or person + } for the purpose of investigating
any violation of ORS
{ - 697.652 - } { + 697.642 + } to 697.702. The debt
consolidating agency { + or person acting as a debt
consolidating agency without registration + } shall pay the
reasonable cost of the audit, as determined by the director.
{ - (b) For the purpose of investigating violations of ORS
697.652 to 697.702, the director shall have free access during
all reasonable hours to the offices and places of business,
books, accounts, records, papers, files, safes and vaults of all
debt consolidating agencies. - }
{ - (c) - } { + (b) + } { - The director may make such
public or private - } { + Undertake + } investigations { + , + }
{ - within or - } { + including investigations + } outside of
this state { + , + } that the director considers necessary to:
(A) Determine whether a person has violated { + , is
violating + } or is about to violate ORS 697.612 or { - any
provision of ORS 697.652 - } { + 697.642 + } to 697.702 or any
rule of the director { + adopted under ORS 697.632 + }; or
(B) Aid in the enforcement of ORS 697.612 { - , 697.652 - }
{ + and 697.642 + } to 697.702 and in the formulation of rules
and forms under ORS 697.632.
{ - (d) - } { + (c) + } { - The director may - } Require
a person to file a statement in writing, under oath or
otherwise { + , + } { - as the director determines, as to all
the facts and circumstances - } concerning the matter { - to
be - } { + being + } investigated.
{ + (2) All debt consolidating agencies and persons acting as
debt consolidating agencies without registration shall provide
the director with free access during all reasonable hours to
offices and places of business, books, accounts, records, papers,
files, safes and vaults for the purpose of investigating
violations of ORS 697.612 or 697.642 to 697.702. + }
{ - (2) - } { + (3) + } The director shall maintain for
public inspection records of any civil penalty imposed under ORS
697.832, any suspension, revocation or refusal to renew the
registration of a debt consolidating agency and any collection on
the bond or deposit of a debt consolidating agency. The record of
each { - such - } action shall show:
(a) The order of the director or the court relating to the
action.
(b) The debt consolidating agency against whom the action was
taken.
(c) The grounds for the action.
{ - (3) - } { + (4) + } Except as provided in subsection
{ - (2) - } { + (3) + } of this section, { - any - }
records, reports { - or - } { + and + } other information
received or compiled by the director as a result of
investigations under this section { - shall be - } { +
are + } exempt from { + the + } public disclosure { - as
provided in ORS 192.501 to 192.505 - } { + required by ORS
192.420 + }.
SECTION 18. ORS 697.752 is amended to read:
697.752. (1) The Director of the Department of Consumer and
Business Services may refuse to issue or renew or may revoke or
suspend the registration of a debt consolidating agency if the
director determines any of the following facts:
(a) The debt consolidating agency has filed false or untruthful
information with the director under ORS 697.632.
(b) The debt consolidating agency has violated any of the rules
of the director adopted under ORS 697.632.
(c) The debt consolidating agency has violated any provision of
ORS { - 697.652 - } { + 659.642 + } to 697.702.
(d) Any person required to register to engage in the business
of debt consolidating has been convicted of a felony or a
misdemeanor, an essential element of which is fraud.
(e) There has been any lapse in or any reduction of the amount
of any bond filed under ORS 697.642.
(2) A revocation or suspension under this section may be for a
time certain or upon condition that the debt consolidating agency
meets conditions specified by the director.
(3) The conduct of hearings, issuance of orders and judicial
review of orders are governed by ORS chapter 183.
SECTION 19. ORS 697.762 is amended to read:
697.762. (1) { - When - } { + If + } the Director of the
Department of Consumer and Business Services determines that any
person has engaged in, is engaging in or is about to engage in
any act or practice { - which - } { + that + } the director
believes is in violation of ORS 697.612 or { - any provision of
ORS 697.652 - } { + 697.642 + } to 697.702, the director may
bring suit in the name of the State of Oregon in any circuit
court of this state to enjoin the acts or practices. Upon a
proper showing, the court shall grant a permanent or temporary
injunction or restraining order and may appoint a receiver or
conservator for the defendant or the defendant's assets. The
court
{ - shall - } { + may + } not require the director to post a
bond. The court may award reasonable attorney fees to the
director if the director prevails in an action under this
section. The court may award reasonable attorney fees to a
defendant who prevails in an action under this section if the
court determines that the director had no objectively reasonable
basis for asserting the claim or no reasonable basis for
appealing an adverse decision of the trial court.
(2) The director may include in any suit authorized by
subsection (1) of this section a claim for damages on behalf of
any other person injured by any act or practice against which an
injunction or restraining order is sought. The court may award
appropriate relief to the person if the court finds that
enforcement of the right of the person by private civil action or
suit, whether by class action or otherwise, would be so
burdensome or expensive as to be impracticable.
SECTION 20. ORS 697.832 is amended to read:
697.832. (1) { - As provided in this section, - } In
addition to any other liability or penalty provided by law, the
Director of the Department of Consumer and Business Services may
impose a civil penalty on a person in an amount not to exceed
$1,000 for each violation of ORS 697.612 or { - any provision
of ORS 697.652 - } { + 697.642 + } to 697.702 { + , + } { - or
violation of any - } rules { - required to be - } adopted
under ORS 697.632 { + or order issued under section 15 of this
2005 Act + }.
(2) The director shall impose a civil penalty on a person under
this section in the manner provided by ORS 183.745.
(3) Notwithstanding ORS 183.745, the person to whom the notice
is addressed shall have 10 days from the date of mailing of the
notice in which to apply for a hearing before the director.
(4) The payment or tendering of payment of a civil penalty
imposed under this section shall not relieve the obligation of a
person to comply with the applicable statute or rule.
(5) All penalties recovered under this section shall be paid
into the State Treasury and credited to the General Fund and are
available for general governmental expenses.
SECTION 21. ORS 697.990 is amended to read:
697.990. (1) Violation of ORS 697.015 or 697.058 by an
individual is a Class A violation.
(2) Violation of ORS 697.015 or 697.058 by a corporation
{ + or association + } is a Class A violation. Any officer or
agent of a corporation or association who personally participates
in any violation of ORS 697.015 or 697.058 by { - such - }
{ + the + } corporation or association is subject to the penalty
prescribed in subsection (1) of this section.
(3) Violation of ORS 697.612 or { - any provision of ORS
697.652 - } { + 697.642 + } to 697.702 is punishable, upon
conviction, as a Class A misdemeanor.
SECTION 22. ORS 697.992 is amended to read:
697.992. Justice courts have concurrent jurisdiction with
circuit courts in all criminal prosecutions for violation of ORS
697.015, 697.058, 697.612 and { - 697.652 - } { + 697.642 + }
to 697.702.
SECTION 23. ORS 717.290 is amended to read:
717.290. (1) If the Director of the Department of Consumer and
Business Services determines that any person has engaged in, is
engaging in or is about to engage in any act or practice
constituting a violation of { - any provision of - } ORS
717.200 to 717.320 { - , 717.900 and 717.905, - } or of any
rule adopted or order issued under ORS 717.200 to 717.320 { - ,
717.900 and 717.905 - } , the director may { + :
(a) + } Order the person to cease and desist from the unlawful
act or practice { + ; + } and
{ + (b) + } Take any affirmative action as may be necessary
to carry out the provisions of ORS 717.200 to 717.320,
{ - 717.900 and 717.905 - } { + including assessing the costs
of any investigation + }.
(2) Except as provided in subsection (3) of this section, the
director { - shall - } { + may + } not issue an order under
this section without opportunity for a hearing in accordance with
ORS chapter 183.
(3) If required for the immediate protection of the public
interest, { + the director may issue + } a cease and desist
order { - may be issued - } without a hearing in accordance
with ORS 183.430 (2).
(4) A cease and desist order of the director under ORS 717.200
to 717.320, 717.900 and 717.905 { - shall - } { + must + }
state the grounds upon which the order is based and, except for a
summary order issued in accordance with ORS 183.430 (2),
{ - shall - } { + does + } not become effective for at least
20 days after written notice of the order has been sent by
registered or certified mail to the person at the person's
principal place of business.
(5) Appeals from a cease and desist order of the director may
be taken to the courts of this state as provided by ORS chapter
183.
SECTION 24. ORS 725.310 is amended to read:
725.310. (1) For discovering violations of this chapter and
securing information required by the Director of the Department
of Consumer and Business Services under this chapter { + , + }
the director at any time may investigate the loans and business,
including the books, accounts, records and files used
{ - therein - } { + in the loans and business + }, of every
{ - licensee and every nonlicensee - } { + person licensed
or + } required to be licensed under this chapter.
(2) For purposes of subsection (1) of this section:
(a) { + A person licensed or required to be licensed under
this chapter shall give + } the director { - shall have - }
free access to the { + person's + } place of business, books,
accounts, safes and vaults { - of all such persons - } .
(b) The director may { + :
(A) + } Make an investigation without prior notice to the
person being investigated.
{ - (c) - } { + (B) + } { - The director shall have
authority to - } { + Compel the attendance of witnesses and + }
examine { + the witnesses + } under oath { - all persons whose
testimony the director may require relative to such loans or
business - } .
{ + (C) Require the production of documents or records. + }
(3) Each person examined under this section shall pay the
actual cost of an investigation to the director. The director may
maintain an action for the recovery of { - such - }
{ + the + } costs in any court of competent jurisdiction.
SECTION 25. ORS 725.400 is amended to read:
725.400. (1) The Director of the Department of Consumer and
Business Services may issue and serve upon { - a licensee or a
director, officer, employee or agent of a licensee - } { + the
following persons + } an order to cease and desist from a
violation when the director has reasonable cause to believe that
the person to whom the order is directed is violating, has
violated or is about to violate any provision of this chapter or
a rule or order of the director { - . - } { + :
(a) A licensee.
(b) A director, officer, employee or agent of a licensee.
(c) A person acting as a consumer finance lender without a
license. + }
(2) An order under subsection (1) of this section
{ - shall - } { + must + } include the following:
(a) A statement of the facts constituting the violation.
(b) A provision requiring the person named in the order to
cease and desist from the violation. The provision may be
mandatory or otherwise.
(c) The effective date of the order.
(d) A notice to the person named in the order of the right to a
contested case hearing under ORS chapter 183.
(3) An order under this section { - shall be - } { + is + }
effective 30 days after the date of the order unless the person
named in the order requests a hearing { - thereon - } { + on
the order + }.
(4) An order under this section remains in effect until it is
withdrawn by the director or by a court { - order - } .
(5) If an individual named in an order under this section fails
to comply with the order, the director may issue an order
removing or suspending the { - person - } { + individual + }
from the office or position held by the individual. The removal
or suspension is in addition to any penalty provided by ORS
725.910 for failure to comply with an order issued under this
section.
SECTION 26. { + Section 27 of this 2005 Act is added to and
made a part of ORS chapter 726. + }
SECTION 27. { + (1) The Director of the Department of Consumer
and Business Services may, if the director has reason to believe
that a person has:
(a) Violated, is violating or is about to violate ORS 726.040,
726.100, 726.110, 726.130, 726.270, 726.280, 726.285, 726.290,
726.300, 726.390, 726.400 or 726.410, a rule adopted under ORS
726.260 or an order issued under this chapter, issue an order to
cease and desist from the violation.
(b) Failed to file the annual report required by ORS 726.130,
issue an order to file the report.
(c) Filed information under ORS 726.060, 726.110, 726.130 or
726.250 that is false or untruthful, issue an order to correct
the filing.
(d) Failed to maintain in effect the bond or an irrevocable
letter of credit required under ORS 726.070, issue an order to
remedy the failure.
(2)(a) The director shall serve an order under this section on
the person named in the order.
(b) An order issued under this section becomes effective upon
service on the person named in the order.
(c) ORS 183.413 to 183.470 apply to an order issued under this
section.
(d) Notwithstanding paragraph (c) of this subsection, a person
may not obtain a hearing on the order unless the person requests
the hearing in writing within 20 days after service of the order.
(e) A person who does not request a contested case hearing may
not obtain judicial review of the order.
(f) The director may vacate or modify an order issued under
this section. A modified order is effective upon service on the
person named in the order.
(3) The authority conferred by this section is in addition to
and not in lieu of any other authority conferred on the
director. + }
SECTION 28. ORS 726.250 is amended to read:
726.250. (1) { + (a) + } For the purpose of discovering
violations of this chapter or securing information required by
the Director of the Department of Consumer and Business Services
under this chapter, the director at any time, either personally
or by an examiner or other employee of the Department of Consumer
and Business Services, may investigate the pledge loans and
business and examine the books, accounts, records and files used
{ - therein - } { + in the pledge loans and business + } of
every pawnbroker and of every person { - who - } { + that + }
the director has reason to believe is { - doing the business
described in ORS 726.010 - } { + acting as a pawnbroker without
a license + }, whether that person acts or claims to act as
principal or agent, or under or without the authority of this
chapter.
{ + (b) + } For { - such purpose - } { + the purposes of
paragraph (a) of this subsection:
(A) Every pawnbroker and person that the director has reason to
believe is acting as a pawnbroker without a license shall
give + } the director, examiner or other employee of the
department { - shall have - } free access to the
{ + person's + } place of business, books, accounts, papers,
records, files, safes and vaults { - of all such persons. - }
{ + ; and
(B) The director, examiner or other employee may:
(i) Compel the attendance of witnesses and examine the
witnesses under oath; and
(ii) Require the production of documents or records.
(c) + } The actual cost of each examination shall be paid to
the director by every { - licensee so - } { + person + }
examined. The director may maintain an action for recovery of
{ - such - } costs in any court of competent jurisdiction.
{ - The director, examiner or other employee of the department
may examine under oath all persons whose testimony may be
required relative to such pledge loans or business. - }
(2) At least once every two calendar years or as often as the
director determines necessary, the director, examiner or other
employee of the department shall make an examination of the
pledge loans and business, office records and files of each
licensed pawnbroker. The examination shall occur at the licensed
location of the pawnbroker.
(3) At least once during any calendar year in which an
examination is not conducted under subsection (2) of this
section, each licensed pawnbroker shall submit to the director
for examination, at the office of the director, those books,
records and documents prescribed by the director by rule.
SECTION 29. ORS 726.910 is amended to read:
726.910. (1) Any person who violates ORS 726.040, 726.100,
726.110, { + 726.130, + } 726.270, { + 726.280, 726.285,
726.290, 726.300, + } 726.390 { - or - } { + , + } 726.400
{ + or 726.410 + } or any rule adopted under ORS 726.260 { + or
an order issued under section 27 of this 2005 Act + } shall
forfeit a civil penalty in an amount determined by the Director
of the Department of Consumer and Business Services of not more
than $2,500. The civil penalty forfeited shall be paid into the
State Treasury and credited as provided in ORS 705.145. In
addition, the director may revoke the license of any licensee who
violates any such provision.
(2) The civil penalty may be recovered in an action brought
{ - thereon - } in the name of the State of Oregon in any
court of appropriate jurisdiction or may be imposed as provided
in ORS 183.745.
(3) In any court action with respect to a civil penalty,
including judicial review under ORS 183.745, the court may review
the penalty as to both liability and reasonableness of amount.
SECTION 30. { + The amendments to ORS 97.947 by section 1 of
this 2005 Act apply to:
(1) Conditions and resources, including sales contracts, in
existence before, on or after the effective date of this 2005
Act.
(2) Conduct occurring before, on or after the effective date of
this 2005 Act. + }
SECTION 31. { + The order authorized by the amendments to ORS
97.948 by section 2 of this 2005 Act applies to actions occurring
before, on or after the effective date of this 2005 Act. + }
SECTION 32. { + Sections 5, 9, 15 and 27 of this 2005 Act
apply to conduct occurring before, on or after the effective date
of this 2005 Act. + }
SECTION 33. { + The amendments to ORS 646.396 by section 7 of
this 2005 Act apply to customer records in existence before, on
or after the effective date of this 2005 Act and registrations
issued or renewed before, on or after the effective date of this
2005 Act. + }
SECTION 34. { + The amendments to ORS 697.039 by section 11 of
this 2005 Act apply to registrations issued or renewed before, on
or after the effective date of this 2005 Act. + }
SECTION 35. { + The amendments to ORS 697.095, 697.752,
697.762, 697.832, 697.990 and 697.992 by sections 13 and 18 to 22
of this 2005 Act apply to violations occurring on or after the
effective date of this 2005 Act. + }
SECTION 36. { + The amendments to ORS 697.732 by section 17 of
this 2005 Act apply to:
(1) Trust accounts in existence before, on or after the
effective date of this 2005 Act.
(2) Conduct occurring before, on or after the effective date of
this 2005 Act. + }
SECTION 37. { + The amendments to ORS 717.290 and 725.400 by
sections 23 and 25 of this 2005 Act apply to violations occurring
before, on or after the effective date of this 2005 Act. + }
SECTION 38. { + The amendments to ORS 725.310 by section 24 of
this 2005 Act apply to loans and business in existence before, on
or after the effective date of this 2005 Act. + }
SECTION 39. { + The amendments to ORS 726.250 by section 28 of
this 2005 Act apply to pledge loans and business in existence
before, on or after the effective date of this 2005 Act. + }
SECTION 40. { + The amendments to ORS 726.910 by section 29 of
this 2005 Act apply to violations occurring on or after the
effective date of this 2005 Act. + }
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