74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
Enrolled
House Bill 3242
Sponsored by Representative SCHAUFLER; Representatives BRUUN,
GILLIAM, HOLVEY, RILEY, Senator MORRISETTE (at the request of
Oregon-Columbia Chapter of Associated General Contractors,
Oregon State Building and Construction Trades Council)
CHAPTER ................
AN ACT
Relating to construction contractors; creating new provisions;
amending ORS 18.635, 18.800, 205.126, 279C.375, 279C.465,
279C.585, 479.940, 646.551, 656.021, 656.027, 671.540, 701.005,
701.010, 701.035, 701.055, 701.060, 701.065, 701.072, 701.075,
701.078, 701.085, 701.105, 701.115, 701.135, 701.138, 701.139,
701.140, 701.145, 701.146, 701.148, 701.150, 701.205, 701.230,
701.235, 701.990 and 701.992 and sections 2 and 5, chapter 114,
Oregon Laws 2007 (Enrolled House Bill 2109); repealing ORS
701.058 and 701.252; limiting expenditures; and declaring an
emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2 to 12 of this 2007 Act are added to
and made a part of ORS chapter 701. + }
SECTION 2. { + (1) Except as provided in ORS 701.010, a person
or joint venture that undertakes, offers to undertake or submits
a bid to do work as a contractor must have a current license
issued by the Construction Contractors Board and possess an
appropriate endorsement as provided in this section.
(2) A person or joint venture that undertakes, offers to
undertake or submits a bid to do work as a contractor in
preparation for or in connection with a residential structure
must have one of the following endorsements:
(a) Residential general contractor.
(b) Residential specialty contractor.
(c) Residential limited contractor.
(d) Residential developer.
(3) A person or joint venture that undertakes, offers to
undertake or submits a bid to do work as a contractor in
preparation for or in connection with a small commercial
structure must have one of the following endorsements:
(a) Residential general contractor.
(b) Residential specialty contractor.
(c) Residential limited contractor.
(d) Residential developer.
(e) Commercial general contractor level 1.
(f) Commercial specialty contractor level 1.
(g) Commercial general contractor level 2.
(h) Commercial specialty contractor level 2.
(i) Commercial developer.
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(4) A person or joint venture that undertakes, offers to
undertake or submits a bid to do work as a contractor in
preparation for or in connection with a large commercial
structure must have one of the following endorsements:
(a) Commercial general contractor level 1.
(b) Commercial specialty contractor level 1.
(c) Commercial general contractor level 2.
(d) Commercial specialty contractor level 2.
(e) Commercial developer. + }
SECTION 3. { + (1) A residential general contractor shall:
(a) Obtain a surety bond under ORS 701.085 in the amount of
$20,000;
(b) Obtain general liability insurance under ORS 701.105 in an
amount of not less than $500,000; and
(c) Have a responsible managing individual who meets the
requirements of ORS 701.078.
(2) A residential specialty contractor shall:
(a) Obtain a surety bond under ORS 701.085 in the amount of
$15,000;
(b) Obtain general liability insurance under ORS 701.105 in an
amount not less than $300,000; and
(c) Have a responsible managing individual who meets the
requirements of ORS 701.078 + }.; { +
(3) A residential limited contractor shall:
(a) Obtain a surety bond under ORS 701.085 in the amount of
$10,000;
(b) Obtain general liability insurance under ORS 701.105 in an
amount not less than $100,000; and
(c) Have a responsible managing individual who meets the
requirements of ORS 701.078.
(4) A residential developer shall:
(a) Obtain a surety bond under ORS 701.085 in the amount of
$20,000; and
(b) Obtain general liability insurance under ORS 701.105 in an
amount not less than $500,000. + }
SECTION 4. { + (1) A commercial general contractor level 1
shall:
(a) Obtain a surety bond under ORS 701.085 in the amount of
$75,000;
(b) Obtain general liability insurance under ORS 701.105 in an
amount of not less than $2 million;
(c) Have a responsible managing individual who meets the
requirements of ORS 701.078; and
(d) Have one or more key employees with a combined total of at
least eight years of experience described in section 8 of this
2007 Act.
(2) A commercial specialty contractor level 1 shall:
(a) Obtain a surety bond under ORS 701.085 in the amount of
$50,000;
(b) Obtain general liability insurance under ORS 701.105 in an
amount not less than $1 million;
(c) Have a responsible managing individual who meets the
requirements of ORS 701.078; and
(d) Have one or more key employees with a combined total of at
least four years of experience described in section 8 of this
2007 Act.
(3) A commercial general contractor level 2 shall:
(a) Obtain a surety bond under ORS 701.085 in the amount of
$20,000;
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(b) Obtain general liability insurance under ORS 701.105 in an
amount of not less than $1 million;
(c) Have a responsible managing individual who meets the
requirements of ORS 701.078; and
(d) Have one or more key employees with a combined total of at
least eight years of experience described in section 8 of this
2007 Act.
(4) A commercial specialty contractor level 2 shall:
(a) Obtain a surety bond under ORS 701.085 in the amount of
$20,000;
(b) Obtain general liability insurance under ORS 701.105 in an
amount not less than $500,000;
(c) Have a responsible managing individual who meets the
requirements of ORS 701.078; and
(d) Have one or more key employees with a combined total of at
least four years of experience described in section 8 of this
2007 Act.
(5) A commercial developer shall:
(a) Obtain a surety bond under ORS 701.085 in the amount of
$20,000; and
(b) Obtain general liability insurance under ORS 701.105 in an
amount not less than $500,000. + }
SECTION 5. { + A residential limited contractor may not:
(1) Perform work as a contractor exceeding $40,000 in gross
annual volume; or
(2) Enter into contracts to perform work as a contractor in
excess of $5,000. + }
SECTION 6. { + A licensed developer or a residential or
commercial developer:
(1) Shall act only in association with licensed general
contractors, one or a combination of whom must have sole
responsibility for overseeing all phases of construction activity
on a property; and
(2) May not perform any construction work on a property. + }
SECTION 7. Section 6 of this 2007 Act is amended to read:
{ + Sec. 6. + } A { - licensed developer or a - }
residential or commercial developer:
(1) Shall act only in association with licensed general
contractors, one or a combination of whom must have sole
responsibility for overseeing all phases of construction activity
on a property; and
(2) May not perform any construction work on a property.
SECTION 8. { + (1) A commercial general contractor or
commercial specialty contractor shall certify upon license
application or renewal that the contractor has one or more key
employees with the combined total amount of experience required
under section 4 of this 2007 Act.
(2) Except as provided in subsection (3) of this section, the
experience certified under subsection (1) of this section must be
as a licensed contractor, journeyman, foreperson or supervisor or
as any other employee engaged in construction work for a licensed
contractor.
(3) The following experience or education may substitute for
construction experience described in subsection (2) of this
section:
(a) Completion of an apprenticeship program may substitute for
up to three years of experience;
(b) A bachelor's degree in a construction-related field may
substitute for up to three years of experience;
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(c) A bachelor's degree or master's degree in business, finance
or economics may substitute for up to two years of experience;
and
(d) An associate's degree in construction or building
management may substitute for up to one year of experience. + }
SECTION 9. { + (1) A commercial general contractor level 1 or
commercial specialty contractor level 1 shall have a key
employee, or combination of key employees, who completes at least
40 hours of continuing education per year.
(2) A commercial general contractor level 2 or commercial
specialty contractor level 2 shall have a key employee, or
combination of key employees, who completes the equivalent of at
least 16 hours of continuing education per year.
(3) Notwithstanding subsection (1) of this section, if a
commercial general contractor level 1 or commercial specialty
contractor level 1 has no more than four key employees, the
contractor shall have a key employee, or combination of key
employees, that completes continuing education each year
equivalent to the number of key employees multiplied by eight
hours.
(4) Continuing education may be provided by post-secondary
institutions, trade schools, trade associations, professional
societies, private companies, public agencies, business
associations and contractor-provided in-house training programs.
Continuing education topics may include, but need not be limited
to, construction means, methods and business practices.
(5) A contractor applying for renewal shall certify the number
of continuing education hours completed during the preceding
licensing period.
(6) A contractor subject to this section shall maintain records
of the continuing education completed by key employees.
(7) This section does not apply to a commercial contractor:
(a) That is subject to regulation under ORS 479.510 to 479.945
or 480.510 to 480.670 or ORS chapter 693; or
(b) As provided by rule by the Construction Contractors
Board. + }
SECTION 10. { + (1) If an order of the Construction
Contractors Board that determines a claim 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 claimant 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 claims 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 claims.
(B) If the claims 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
claims filed within that 90-day period may be satisfied from the
bond, except that the total amount paid from any one bond to
nonowner claimants may not exceed $3,000.
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(b) A 90-day period begins on the date the first claim is filed
with the board. Subsequent 90-day periods begin on the date the
first claim is filed with the board after the close of the
preceding 90-day period.
(4) If the total claims filed with the board against a
residential contractor within 90 days after the board receives
notice of the first claim against the contractor exceed the
amount of the bond available for those claims, 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 claims filed with
the board within 90 days after the first claim is filed do not
exceed the amount of the bond available for those claims, all
amounts due as a result of claims filed within the 90-day period
shall have priority over all claims subsequently filed until the
amount of the bond available for the payment of claims is
exhausted.
(6) The total amount paid from a residential contractor bond
for costs, interest and attorney fees may not exceed $3,000. + }
SECTION 11. { + (1)(a) Payments from the surety bond of a
commercial contractor pursuant to Construction Contractors Board
order and notice are satisfied in the following priority in any
90-day period:
(A) Board orders as a result of claims against a commercial
contractor by a person furnishing labor to a contractor or owed
employee benefits by a contractor have payment priority to the
full extent of the bond over all other types of claims.
(B) If the claims described in subparagraph (A) of this
paragraph do not exhaust the bond, then amounts due as a result
of all other types of small commercial or large commercial
structure claims may be satisfied from the bond, except claims
for costs, interest and attorney fees.
(C) If claims described in subparagraphs (A) and (B) of this
paragraph do not exhaust the bond, then claims for costs,
interest and attorney fees resulting from small commercial or
large commercial structure claims may be satisfied from the bond.
(b) A 90-day period begins on the date the first claim is filed
with the board. Subsequent 90-day periods begin on the date the
first claim is filed with the board after the close of the
preceding 90-day period.
(2) If the total claims filed with the board against a
commercial contractor within 90 days after the board receives
notice of the first claim against the contractor exceed the
amount of the bond available for those claims, the bond shall be
apportioned as the board determines, subject to the priorities
established under this section.
(3) If the total amounts due as a result of claims filed with
the board within 90 days after the first claim is filed do not
exceed the amount of the bond available for those claims, all
amounts due as a result of claims filed within the 90-day period
shall have priority over all claims subsequently filed until the
amount of the bond available for the payment of claims is
exhausted. + }
SECTION 12. { + A commercial general contractor level 1 or
level 2 that constructs a new large commercial structure shall
provide the owner with a two-year warranty of the building
envelope and penetration components against defects in materials
and workmanship. The warranty shall provide for the contractor to
annually inspect the building envelope and penetration components
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during the warranty period. The warranty need not cover
conditions resulting from improper maintenance by the owner. + }
SECTION 13. ORS 701.005 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. + }
{ - (2) - } { + (4) + } 'Construction debt' means an amount
owed under:
(a) A final order or arbitration award issued by the board; or
(b) A judgment or civil penalty arising from construction
activities within the United States.
{ - (3) - } { + (5) + } 'Contractor' means { + any of the
following:
(a) + }A person who, 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, any building,
highway, road, railroad, excavation or other structure, project,
development or improvement attached to real estate or to do any
part thereof. { - ' Contractor' includes general contractors,
residential-only contractors and specialty contractors as defined
in this section. - }
{ + (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) Any person except a landscape contractor, 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, a lead-based paint inspector
licensed under ORS 701.515 or a cross connection inspector and
backflow assembly tester certified under ORS 448.279.
(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. + }
{ - (4) - } { + (7) + } 'General contractor' { + :
(a) + } Means a contractor whose business operations require
the use of more than two unrelated building trades or crafts that
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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.
{ - ' General contractor' does not include specialty
contractors or limited contractors, as described in ORS
701.085. - }
{ + (b) Does not mean a specialty contractor or a residential
limited contractor. + }
{ - (5) - } { + (8) + } '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 thereto. '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.
{ - (6) 'Inspector' means a contractor registered with the
board who inspects or otherwise provides services to a property
owner or other contractor but does not substantively add to or
subtract from a structure. 'Inspector' includes but is not
limited to a home inspector certified under ORS 701.350, a
lead-based paint inspector licensed under ORS 701.515 and a cross
connection inspector and backflow assembly tester certified under
ORS 448.279. 'Inspector' does not include city or county
inspectors acting under ORS 701.225 or an inspector as defined in
ORS 455.715. - }
{ + (9) '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 identified by the
board by rule. + }
{ - (7) - } { + (10) + } 'Large commercial structure' means
a structure that is not a residential structure or small
commercial structure.
{ - (8) 'Licensed developer' means a contractor who owns
property or an interest in property and arranges for construction
work, if the contractor: - }
{ - (a) Engages in the business of arranging for construction
work and performing other activities associated with the
improvement of real property, with the intent to sell the
property; - }
{ - (b) Acts in association with one or more licensed general
contractors and the general contractor or combination of general
contractors have sole responsibility for overseeing all phases of
construction activity on the property; and - }
{ - (c) Does not perform any construction work on the
property. - }
{ - (9) - } { + (11) + } '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 defined as an officer under board rules. The
definition of officer adopted by board rule may include persons
not listed in this subsection who may exercise substantial
control over a business.
{ - (10) 'Residential-only contractor' means a general
contractor or specialty contractor who performs work exclusively
in connection with residential structures and small commercial
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structures, and the appurtenances thereto. 'Residential-only
contractor' includes, but is not limited to: - }
{ - (a) A person who 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; - }
{ - (b) 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; - }
{ - (c) 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; or - }
{ - (d) Any person except a landscape contractor, nurseryman,
gardener or person engaged in the commercial harvest of forest
products who is engaged as an independent contractor to remove
trees, prune trees, remove tree limbs or stumps or to engage in
tree or limb guying. - }
{ + (12) '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.
(13) 'Residential developer' means a developer of property that
is zoned for or intended for use compatible with a residential or
small commercial structure. + }
{ - (11) 'Residential structure' means a residence, including
a site-built home, modular home constructed off-site, floating
home as defined in ORS 830.700, condominium unit, manufactured
dwelling or duplex, or a multiunit residential building
consisting of four units or less that is not part of a
multistructure complex of buildings. - }
{ - (12) 'Small commercial structure' means a nonresidential
structure that has a ground area of 4,000 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. - }
{ + (14) 'Residential structure':
(a) 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) 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;
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(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.
(15) '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. + }
{ - (13) - } { + (16) + } '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
{ - chapter 446 - } { + 446.395 + }.
SECTION 14. ORS 701.010 is amended to read:
701.010. The Construction Contractors Board may adopt rules to
make licensure optional for persons who offer, bid or undertake
to perform work peripheral to construction, as defined by
administrative rule of the board. The following persons are
exempt from licensure under this chapter:
(1) A person who is constructing, altering, improving or
repairing personal property.
(2) A person who is constructing, altering, improving or
repairing a structure located within the boundaries of any site
or reservation under the jurisdiction of the federal government.
(3) A person who furnishes materials, supplies, equipment or
finished product and does not fabricate them into, or consume
them, in the performance of the work of a contractor.
(4) A person working on one structure or project, under one or
more contracts, when the aggregate price of all of that person's
contracts for labor, materials and all other items is less than
$500 and such work is of a casual, minor or inconsequential
nature. This subsection does not apply to a person who advertises
or puts out any sign or card or other device that might indicate
to the public that the person is a contractor.
(5) An owner who contracts for work to be performed by a
licensed contractor. This subsection does not apply to a person
who, in the pursuit of an independent business, constructs,
remodels, repairs or for compensation and with the intent to sell
the structure, arranges to have constructed, remodeled or
repaired a structure with the intent of offering the structure
for sale before, upon or after completion. It is prima facie
evidence that there was an intent of offering the structure for
sale if the person who constructed, remodeled or repaired the
structure or arranged to have the structure constructed,
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remodeled or repaired does not occupy the structure after its
completion.
(6) A person performing work on a property that person owns or
performing work as the owner's employee, whether the property is
occupied by the owner or not, or a person performing work on that
person's residence, whether or not that person owns the
residence. This subsection does not apply to a person performing
work on a structure owned by that person or the owner's employee
if the work is performed, in the pursuit of an independent
business, with the intent of offering the structure for sale
before, upon or after completion.
(7) A person licensed in one of the following trades or
professions when operating within the scope of that license:
(a) An architect licensed by the State Board of Architect
Examiners.
(b) A registered professional engineer licensed by the State
Board of Examiners for Engineering and Land Surveying.
(c) A water well contractor licensed by the Water Resources
Department.
(d) A sewage disposal system installer licensed by the
Department of Environmental Quality.
(e) A landscaping business licensed under ORS 671.510 to
671.710 that constructs fences, decks, arbors, patios, landscape
edging, driveways, walkways or retaining walls and that meets the
applicable bonding requirements under ORS 671.690.
(f) A pesticide operator licensed under ORS 634.116 who does
not conduct inspections for wood destroying organisms for the
transfer of real estate.
(g) An appraiser certified or licensed under ORS chapter 674 or
an appraiser assistant registered under ORS chapter 674 by the
Appraiser Certification and Licensure Board.
(8) A person who performs work subject to this chapter as an
employee of a contractor.
(9) A manufacturer of a manufactured home constructed under
standards established by the federal government.
(10) A person involved in the movement of:
(a) Modular buildings or structures other than manufactured
structures not in excess of 14 feet in width.
(b) Structures not in excess of 16 feet in width when the
structures are being moved by their owner if the owner is not a
contractor required to be licensed under this chapter.
(11) A commercial lending institution or surety company that
arranges for the completion, repair or remodeling of a structure.
As used in this subsection, 'commercial lending institution '
means any bank, mortgage banking company, trust company, savings
bank, savings and loan association, credit union, national
banking association, federal savings and loan association,
insurance company or federal credit union maintaining an office
in this state.
(12) A real estate licensee as defined in ORS 696.010 or the
employee of that licensee when performing work on a structure
that the real estate licensee manages under a contract.
(13) Units of government other than those specified in ORS
701.005 { - (10)(b) and (c) - } { + (5)(c) and (d) + }.
(14) A qualified intermediary in a property exchange that
qualifies under section 1031 of the Internal Revenue Code as
amended and in effect on January 1, 2004, if the qualified
intermediary is not performing construction activities.
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(15) A business that supplies personnel to a licensed
contractor for the performance of work under the direction and
supervision of the contractor.
{ + (16) City or county inspectors acting under ORS 701.225
or inspectors described in ORS 455.715. + }
SECTION 15. ORS 701.035 is amended to read:
701.035. (1) An applicant must qualify as an independent
contractor under ORS 670.600 to be eligible for a license with
the Construction Contractors Board.
(2) The board shall establish two classes of independent
contractor { - licenses - } :
(a) The nonexempt class is composed of the following entities:
(A) Sole proprietorships, partnerships, corporations, limited
liability companies with one or more employees; and
(B) Partnerships, corporations and limited liability companies
with more than two partners, corporate officers or members, if
any of the partners, corporate officers or members are not part
of the same family and related as parents, spouses, sisters,
brothers, daughters or sons, daughters-in-law or sons-in-law or
grandchildren.
(b) The exempt class is composed of all sole proprietorships,
partnerships, corporations and limited liability companies that
do not qualify as nonexempt. { - All partnerships, corporations
and limited liability companies must have an identification
number issued for federal tax purposes. - }
(3) If a person who qualifies for a license under subsection
(2)(b) of this section hires one or more employees or falls into
any of the categories set out in subsection (2)(a)(B) of this
section, the person is subject to penalties under ORS 701.992 for
improper licensing. The person must reapply to the board in the
correct class.
(4) The decision of the board that a person is an independent
contractor applies only when the person is performing work of the
nature described in { - ORS 701.055 and 701.060 - } { +
section 2 of this 2007 Act + }.
{ + (5) A person that is within the exempt class described in
subsection (2)(b) of this section and is licensed as a commercial
contractor shall procure and maintain workers' compensation
insurance as authorized by ORS 656.128. + }
SECTION 16. ORS 701.055, as amended by section 8, chapter 114,
Oregon Laws 2007 (Enrolled House Bill 2109), is amended to read:
701.055. { - (1) A person or joint venture may not undertake,
offer to undertake or submit a bid to do work as a contractor
unless that person or joint venture has a current, valid license
issued under this chapter by the Construction Contractors Board.
A partnership or joint venture is licensed for the purpose of
offering to undertake work as a contractor on a structure if any
of the partners or joint venturers whose name appears in the
business name of the partnership or joint venture is licensed
under this chapter. - }
{ - (2) - } { + (1) + } A contractor may not hire { - any
subcontractor or other - } { + a + } contractor to perform work
unless the { - subcontractor or - } contractor is licensed
under this chapter { + and properly endorsed for the work to be
performed + }or { + is + } exempt from licensure under ORS
701.010.
{ - (3) - } { + (2) + } Except as provided in ORS 671.540,
a contractor that is not licensed under ORS 671.560 shall hire a
person licensed under ORS 671.560 to perform landscaping work.
Enrolled House Bill 3242 (HB 3242-C) Page 11
SECTION 16a. Section 2, chapter 114, Oregon Laws 2007 (Enrolled
House Bill 2109), is amended to read:
{ + Sec. 2. + } (1) If a person is required under this
chapter to be licensed as a contractor, a city, county or state
agency may not issue the person a building permit unless the
person has a current, valid contractor license { + properly
endorsed for the work to be performed + }. A city, county or
state agency that requires the issuance of a permit for the
construction, alteration, improvement, demolition, movement or
repair of a building, structure or appurtenances to a structure
shall, as a condition for issuing the permit, require the
applicant for a permit to file a written statement signed by the
applicant. { - The statement must affirm that the applicant is
licensed under this chapter, give the - } { + If the applicant
is a contractor, the contractor shall provide the contractor's
+ }license number and state that the license is in full force
and effect { - , or, if the applicant is exempt from licensing
under this chapter, list the basis for the exemption - } . { +
If the applicant is exempt from licensing under this chapter, the
applicant shall state the basis for the exemption. + } The city,
county or state agency shall list the contractor's license number
on the permit issued to that contractor.
(2) If the applicant for a building permit is exempt from
licensure under ORS 701.010 (6), the city, county or state agency
shall supply the applicant with an Information Notice to Property
Owners About Construction Responsibilities. The city, county or
state agency may not issue a building permit for a residential
structure to the applicant until the applicant signs a statement
in substantially the following form:
_________________________________________________________________
(a) I have read and understand the Information Notice to
Property Owners About Construction Responsibilities; and
(b) I own, reside in or will reside in the completed dwelling.
My { + residential + } general contractor is ______,
Construction Contractors Board license no. ______, license
expiration date ______. I will instruct my { - general - }
contractor that all subcontractors who work on this dwelling must
be licensed with the Construction Contractors Board { + and
properly endorsed for the work to be performed + }; or
(c) I am performing work on property I own, a residence that I
reside in or a residence that I will reside in.
(d) I will be my own { - general - } contractor and, if I
hire
{ - subcontractors - } { + contractors + }, I will hire only
{ - subcontractors - } { + contractors + } licensed with the
Construction Contractors Board { + and properly endorsed for the
work to be performed + }.
(e) If I change my mind and do hire a { + residential + }
general contractor, I will contract with a { - general - }
contractor who is licensed with the Construction Contractors
Board and { + properly endorsed for the work to be
performed. + } I will immediately notify the office issuing this
building permit of the name { + and license number + } of the
{ - general - } contractor ______.
_________________________________________________________________
(3) The Construction Contractors Board shall adopt by rule a
form titled 'Information Notice to Property Owners About
Construction Responsibilities' that clearly describes in everyday
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language the responsibilities property owners are undertaking by
acting as their own { - general - } contractor and the
problems that could develop. The responsibilities described in
the form shall include, but not be limited to:
(a) Compliance with state and federal laws regarding Social
Security tax, income tax and unemployment tax.
(b) Workers' compensation insurance on workers.
(c) Liability and property damage insurance.
(4) The board shall develop and furnish to city, county and
state building permit offices, at no cost to the offices, the
Information Notice to Property Owners About Construction
Responsibilities and the statement to be signed by the permit
applicant.
(5) A city or county that requires a business license for
engaging in a business subject to regulation under this chapter
shall require that the licensee or applicant for issuance or
renewal of the business license file, or have on file, with the
city or county, a signed statement that the licensee or applicant
is licensed under this chapter.
(6) The provisions of this chapter are exclusive and a city,
county or other political subdivision may not require or issue
any registrations, licenses or surety bonds, nor charge any fee
for the regulatory or surety registration of any contractor
licensed with the board. This subsection does not affect the
authority of a city, county or political subdivision to:
(a) License and levy and collect a general and
nondiscriminatory license fee levied upon all businesses or upon
business conducted by any firm within the city, county or
political subdivision;
(b) Require a contractor to pay a fee, post a bond or require
insurance when the city, county or political subdivision is
contracting for the services of the contractor; or
(c) Regulate a contractor that is not required to be licensed
under this chapter.
SECTION 16b. If House Bill 2654 does not become law, section 5,
chapter 114, Oregon Laws 2007 (Enrolled House Bill 2109), is
amended to read:
{ + Sec. 5. + } (1) The Construction Contractors Board shall
prepare, and provide at no cost to all licensed contractors, a
consumer notification form designed to specifically inform
property owners what the property owners should do to protect
themselves in a residential repair, remodel or construction
project. The form shall include an explanation of the meaning of
licensure, including a statement that licensure is not { - an
endorsement - } { + a guarantee + } of a contractor's work, and
an explanation of the bond and insurance levels required of
contractors for the benefit of property owners. The form must not
be larger than one side of a sheet of paper that is 8-1/2 inches
by 11 inches.
(2) A contractor shall deliver the consumer notification form
to the property owner when the contractor submits a bid or
proposal for work on a residential structure. The contractor may
reproduce the form on the contractor's bid proposal.
SECTION 17. ORS 701.060, as amended by section 9, chapter 114,
Oregon Laws 2007 (Enrolled House Bill 2109), is amended to read:
701.060. { - (1) - } Any contractor licensed under this
chapter may at any time apply for { - a license in another
category - } { + an additional or different endorsement + }.
The Construction Contractors Board may charge a
{ - transfer - } fee not to exceed $20 for each
Enrolled House Bill 3242 (HB 3242-C) Page 13
{ - additional license - } { + application + }.
{ - (2) If a contractor applies for a license pursuant to
subsection (1) of this section, all construction, alteration,
improvement, moving over public highways, roads or streets,
demolition or repair performed by that contractor on buildings of
all types shall be subject to the provisions of this chapter and
to regulation by the board. Licensure under subsection (1) of
this section shall be exclusive as provided in section 2 (6) of
this 2007 Act. - }
SECTION 18. ORS 701.065 is amended to read:
701.065. (1) Except as provided in subsection (2) of this
section, a contractor may not perfect a claim of a construction
lien, or commence a claim with the Construction Contractors
Board, in arbitration or in any court of this state for
compensation for the performance of any work or for the breach of
any contract for work that is subject to this chapter, unless the
contractor had a valid license issued by the board { + and
properly endorsed for the work performed + }:
(a) At the time the contractor bid or entered into the contract
for performance of the work; and
(b) Continuously while performing the work for which
compensation is sought.
(2) The board, arbitrator or court shall not apply the
provisions of subsection (1) of this section to a lien or claim
if the board, arbitrator or court determines that:
(a) The contractor either did not have a valid license
{ + with a proper endorsement + } at any time required under
subsection (1) of this section, or had an initial issuance
thereof, and:
(A) The contractor was not aware of the requirement that the
contractor be licensed { + or properly endorsed for the work
performed + }, and the contractor submitted a completed
application for a license within a number of days established by
the board, but not more than 90 days, of the date the contractor
became aware of the requirement;
(B) At the time the contractor perfected a claim of a
construction lien or commenced any other claim subject to the
provisions of subsection (1) of this section, the contractor was
licensed by the board { + and properly endorsed for the work
performed + }; and
(C) Enforcement of the provisions of subsection (1) of this
section would result in substantial injustice to the contractor;
(b) The contractor was licensed by the board for some but not
all of the times required under subsection (1) of this section
and had a lapse in such license and:
(A) The contractor was not aware of the lapse in the license
for more than a number of days established by the board, but not
to exceed 90 days, before submitting a completed application for
license renewal with the board;
(B) Except for perfection of a claim of a construction lien and
a suit to foreclose the lien, at the time the contractor
commenced any other claim subject to the provisions of subsection
(1) of this section the contractor's license was renewed under
ORS 701.115 to include the entire time period for which a license
was required under subsection (1) of this section; and
(C) For perfection of a claim of a construction lien and a suit
to foreclose the lien, the contractor's license was renewed under
ORS 701.115 for the entire time period for which a license was
required under subsection (1) of this section, but not later than
90 days following perfection of the lien; { + or + }
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{ - (c)(A) The contractor is a licensed developer and did not
have a valid license during all or part of the period described
in subsection (1) of this section; - }
{ - (B) The licensed developer was unaware of the license
requirement and obtained a license within a time established by
the board, not to exceed 90 days after the licensed developer
learned of the requirement; - }
{ - (C) The licensed developer was licensed at the time the
licensed developer perfected the lien or commenced the claim;
and - }
{ - (D) Enforcement of subsection (1) of this section would
result in substantial injustice to the licensed developer; or - }
{ - (d) - } { + (c) + } The claim:
(A) Is directed against a person or entity that:
(i) Is subject to this chapter or ORS chapter 671 or 672;
(ii) Provides construction or design labor or services of any
kind; or
(iii) Manufactures, distributes, rents or otherwise provides
materials, supplies, equipment, systems or products; and
(B) Arises out of defects, deficiencies or inadequate
performance in the construction, design, labor, services,
materials, supplies, equipment, systems or products provided.
(3) If a contractor falsely swears to information provided
under ORS 701.075 or knowingly violates the provisions of ORS
656.029, 670.600 or 701.075, the contractor may not perfect a
claim of a construction lien, or commence a claim with the board,
in arbitration or in any court of this state for compensation for
the performance of any work on a residential structure or for the
breach of any contract for work on a residential structure that
is subject to this chapter.
SECTION 19. ORS 701.072 is amended to read:
701.072. (1) The Construction Contractors Board, by rule, shall
impose training requirements for individuals and businesses
seeking to be licensed under this chapter. The training required
by the board must relate to business practices and laws affecting
construction contractors. The board shall adopt standards for
programs that provide training that meets the requirements of
this subsection.
(2) In establishing training requirements under subsection (1)
of this section, the board shall take into consideration the
availability of training programs within the state and shall
encourage training providers to use the most up-to-date
technology. The board shall recognize and grant credit for
training provided by private organizations if the training
program meets the standards established by the board under
subsection (1) of this section. The board periodically shall
review the qualifications of private organizations and
instructors to determine compliance with the program standards.
The board shall develop and make available to the public a list
of public and private programs that provide training that meets
the training requirements established by the board under
subsection (1) of this section.
(3) The board, by rule, shall approve a test for applicants for
licensing under ORS 701.075. The test shall measure the
applicant's knowledge regarding business practices and laws that
are the subject of the training required under subsection (1) of
this section.
Enrolled House Bill 3242 (HB 3242-C) Page 15
(4) Subsections (1) and (3) of this section do not apply to an
applicant for licensing { + with endorsement solely + } as a
{ - licensed - } { + residential or commercial + } developer.
SECTION 20. ORS 701.075 is amended to read:
701.075. (1) An applicant for a construction contractor license
must submit the application on a form prescribed by the
Construction Contractors Board. The application shall include,
but not be limited to, the following information regarding the
applicant:
(a) { - Classification of the license - } { + The
endorsement + } being sought.
(b) A list of construction debts involving the applicant, or an
owner or officer of the applicant, if the order, award, penalty
or judgment that establishes the debt was issued within the
preceding five years.
(c) Social Security number.
(d) Workers' compensation insurance account number, if the
applicant is required to have workers' compensation insurance.
(e) Unemployment insurance account number, if the applicant is
required to have unemployment insurance.
(f) State withholding tax account number, if the applicant is
required to withhold state income tax.
(g) Federal employer identification number, if the applicant is
required to have a federal employer identification number.
(h) The name and address of:
(A) Each partner, if the applicant is a partnership, limited
liability partnership or foreign limited liability partnership.
(B) The general partner, if the applicant is a limited
partnership.
(C) Each joint venturer, if the applicant is a joint venture.
(D) The owner, if the applicant is a sole proprietorship.
(E) The officers, if the applicant is a corporation.
(F) The manager and each member, if the applicant is a
manager-managed limited liability company.
(G) Each member, if the applicant is a member-managed limited
liability company.
(i) The name and address of the following if the applicant is a
partnership, limited liability partnership, foreign limited
liability partnership, joint venture, manager-managed limited
liability company or member-managed limited liability company:
(A) Each partner in a partnership, limited liability
partnership or foreign limited liability partnership that is a
partner, joint venturer or member of the applicant.
(B) Each general partner in a limited partnership that is a
partner, joint venturer or member of the applicant.
(C) Each joint venturer in a joint venture that is a partner,
joint venturer or member of the applicant.
(D) The manager and each member of a manager-managed limited
liability company that is a partner, joint venturer or member of
the applicant.
(E) Each member of a member-managed limited liability company
that is a partner, joint venturer or member of the applicant.
(F) Each officer of a corporation that is a partner, joint
venturer or member of the applicant.
(G) The general partner in a limited partnership that is a
partner, joint venturer or member of the applicant.
(H) Each individual who has a controlling ownership interest
in, or management authority over, the applicant and who meets
criteria adopted by the board by rule.
Enrolled House Bill 3242 (HB 3242-C) Page 16
(j) The basis on which the applicant meets the standards for
independent contractor status under ORS 670.600.
(2) The application described in subsection (1) of this section
must be accompanied by proof satisfactory to the board that the
applicant:
(a) Is in compliance with ORS 701.078.
(b) Has the legal capacity to enter into contracts.
(3) Subsection (2)(a) of this section does not apply to { - a
licensed - } { + an applicant for licensing with endorsement
solely as a residential or commercial + } developer.
(4) An applicant shall conform to the information provided by
the applicant on the application and to the terms of the
application.
SECTION 21. ORS 701.078 is amended to read:
701.078. (1) As used in this section, 'responsible managing
individual' means an individual who:
(a)(A) Is an owner; or
(B) Is an employee of a business, designated by the owner, who
exercises management or supervisory authority over the
construction activities of the business; and
(b)(A) Has successfully completed the training and testing
required for licensing under ORS 701.072 within a period
identified by the Construction Contractors Board by rule;
(B) Has demonstrated experience required by the board by rule;
or
(C) Has complied with the licensing requirements of ORS
446.395.
(2) A business licensed under this chapter must at all times
have at least one responsible managing individual.
(3) Subsection (2) of this section does not apply to { - a
licensed - } { + a business licensed with endorsement solely as
a residential or commercial + }developer.
SECTION 22. ORS 701.085 is amended to read:
701.085. (1) An applicant for issuance or renewal of a
contractor license shall file with the Construction Contractors
Board a surety bond with one or more corporate sureties
authorized to do business in this state in the amount set forth
in
{ - subsections (2) to (5) of this section - } { + section 3
or 4 of this 2007 Act + }.
{ + (2) If an applicant for issuance, renewal or an
additional endorsement of a license will hold endorsements as
both a residential contractor and a commercial contractor, the
applicant shall file with the board a surety bond for each
endorsement in the amount set forth in section 3 or 4 of this
2007 Act.
(3) + }The surety bond must provide that the applicant, with
regard to work subject to this chapter, will pay claims ordered
paid by the board under ORS 701.145 or 701.146. Bonds filed under
this { - subsection - } { + section + } shall remain in
effect for at least one year or until depleted by claims paid
{ + as provided + }under ORS 701.150 { + and sections 10 and
11 of this 2007 Act + }, unless the surety sooner cancels the
bond. At the discretion of the surety the bond may be continued
for an additional period by continuation certificate. Except as
provided in subsection { - (6) - } { + (4) + } of this
section, the aggregate liability of the surety under the bond for
claims against the bond may not exceed the penal sum of the bond
no matter how many years the bond is in force. Except as provided
in subsection { - (6) - } { + (4) + } of this section, an
Enrolled House Bill 3242 (HB 3242-C) Page 17
extension by continuation certificate, reinstatement, reissue or
renewal of the bond may not increase the liability of the surety.
{ - (2) A general contractor or licensed developer shall
obtain a surety bond in the amount of $15,000. - }
{ - (3) A specialty contractor shall obtain a surety bond in
the amount of $10,000. - }
{ - (4) An inspector shall obtain a surety bond in the amount
of $10,000. - }
{ - (5) The board may reduce the amount of the surety bond
required by this section to $5,000 for a contractor upon a
showing that the contractor does not perform work as a contractor
exceeding $40,000 in gross annual volume and does not enter into
contracts that exceed $5,000. The board shall designate the
contractor as a limited contractor. - }
{ - (6) - } { + (4) + }The board, by rule, may require a
licensee to obtain a new surety bond if, pursuant to a board
order for payment of a claim described in ORS 701.140, the surety
pays a claim out of the bond of the licensee. The new surety bond
must be in the { + applicable + } amount set forth in
{ - subsections (2) to (5) of this section - } { + section 3
or 4 of this 2007 Act + }unless a higher amount is required by a
board condition or rule described in subsection { - (7) or
(8) - } { + (5) or (6) + } of this section. The board may allow
a licensee to obtain, instead of a new bond, a certification that
the surety remains liable for the full penal sum of the bond,
notwithstanding payment by the surety on the claim.
{ - (7) - } { + (5) + } If the amount the licensee must pay
against the bond under { + subsection (3) of + } this section
exceeds the amount of the bond, the board shall suspend the
contractor's license until the amount owed is paid. The board, as
a condition of ending the suspension, may require a contractor
requesting reinstatement of a license to file a bond of an amount
up to five times as much as the amount required ordinarily of a
licensee under { - this section - } { + section 3 or 4 of this
2007 Act + }.
{ - (8) - } { + (6) + } The board by rule may establish
conditions for applicants or persons licensed under this chapter
under which the applicant or licensee must file a bond of an
amount up to five times as much as the amount required ordinarily
of an applicant or licensee under { - this section - } { +
section 3 or 4 of this 2007 Act + }. The board may reduce the
amount of bond it would otherwise require if the contractor
demonstrates satisfactory completion of approved elective classes
on dispute resolution and prevention, basic accounting and record
keeping or such other classes as the board may prescribe.
{ - (9) - } { + (7) + } The bond required under this
section is for the exclusive purpose of payment of final orders
and arbitration awards of the board in accordance with this
chapter.
{ - (10) - } { + (8) + } Upon determination under ORS
701.145 or 701.146 of a claim against a contractor who holds a
bond required under this section, the board shall notify the
surety on the bond of the final order in a manner determined by
the board by rule. The notification shall include a list of all
claims upon which a final order has been issued.
{ - (11) - } { + (9) + } A suit or action may not be
commenced against a surety on a bond required under this section
until 30 days after the date that the surety is notified by the
board under ORS 701.150 that payment is due on the claim.
Enrolled House Bill 3242 (HB 3242-C) Page 18
{ - (12) - } { + (10) + } In any action against a surety on
a bond under this section that is based on the failure of the
surety to pay a claim or on the denial of a claim by the surety,
the court may award:
(a) Costs;
(b) Reasonable attorney fees to the prevailing party as part of
the costs; and
(c) Twice the amount of any damages that the board ordered the
surety to pay on the claim, if the surety arbitrarily and
capriciously refused to pay upon order of the board.
SECTION 23. ORS 701.105 is amended to read:
701.105. (1) Except as provided in subsection (2) of this
section, a contractor who possesses a license as required under
this chapter shall have in effect public liability, personal
injury and property damage insurance covering the work of the
contractor that is subject to this chapter, for an amount not
less than { + the applicable amount set forth in section 3 or 4
of this 2007 Act. + } { - : - }
{ - (a) $500,000 for a general contractor or licensed
developer. - }
{ - (b) $300,000 for a residential-only specialty
contractor. - }
{ - (c) $500,000 for all other specialty contractors. - }
{ - (d) $100,000 for a limited contractor. - }
{ - (e) $300,000 for an inspector. - }
(2) The Construction Contractors Board by rule, in consultation
with the Department of Consumer and Business Services, may allow
a { - general or specialty contractor that is a
residential-only - } { + residential general, residential
specialty or residential limited + } contractor to provide an
alternative form of security approved by the board instead of
procuring a public liability, personal injury and property damage
insurance policy. The board may approve an alternative form of
security if the board determines that the alternative form of
security provides protection to the public equivalent to the
protection provided by an insurance policy in the amounts
otherwise applicable to the
{ - residential-only contractor under subsection (1) of this
section - } { + residential general, residential specialty or
residential limited contractor under section 3 of this 2007
Act + }. A board-approved alternative form of security may
consist of a combination of financial resources.
(3) A { - residential-only - } { + residential general,
residential specialty or residential limited + }contractor who
provides a board-approved alternative form of security under
subsection (2) of this section is considered for purposes of this
chapter to have obtained insurance { - described in - } { +
as required by + } subsection (1) of this section. This
subsection does not subject to regulation as an insurer a person
who issues all or part of an alternative form of security, unless
the alternative form of security otherwise qualifies as an
insurance product.
(4) The contractor shall provide satisfactory evidence to the
board at the time of licensure and renewal that the insurance
policy or board-approved alternative form of security required by
this section has been procured and is in effect.
SECTION 24. ORS 701.105, as amended by section 2, chapter 766,
Oregon Laws 2003, is amended to read:
701.105. (1) A contractor who possesses a license as required
under this chapter shall have in effect public liability,
Enrolled House Bill 3242 (HB 3242-C) Page 19
personal injury and property damage insurance covering the work
of the contractor that is subject to this chapter, for an amount
not less than { + the applicable amount set forth in section 3
or 4 of this 2007 Act. + } { - : - }
{ - (a) $500,000 for a general contractor or licensed
developer. - }
{ - (b) $300,000 for a residential-only specialty
contractor. - }
{ - (c) $500,000 for all other specialty contractors. - }
{ - (d) $100,000 for a limited contractor. - }
{ - (e) $300,000 for an inspector. - }
(2) The contractor shall provide satisfactory evidence to the
Construction Contractors Board at the time of licensure and
renewal that the insurance required by subsection (1) of this
section has been procured and is in effect.
SECTION 25. ORS 701.115 is amended to read:
701.115. (1) A license is valid for two years from the date of
issuance unless the license is revoked or suspended as set forth
in ORS 701.135.
(2) A license may be renewed by submitting an application for
renewal on the prescribed form, providing any additional
information required, including evidence of completion of any
required education, and submitting the appropriate application
fee, as provided by Construction Contractors Board rule.
(3) The board may vary the dates of license renewal by giving
to the licensee written notice of the renewal date assigned and
by making appropriate adjustments in the fee for the license
renewal application.
(4) If a contractor applies for renewal not more than one year
after the contractor's license lapses, upon the contractor's
compliance with the requirements of subsection (2) of this
section, the board may renew the lapsed license. The board may
designate the effective date of renewal as the last date on which
the contractor was licensed.
(5) A contractor may convert a license to inactive status if
the contractor is not engaged in work as a contractor. A
contractor having an inactive license is subject to board
licensing requirements and application fees, but is not subject
to the bonding requirement of ORS 701.085 or the insurance
requirement of ORS 701.105. { + A commercial general or
commercial specialty contractor having an inactive license is not
subject to the key employee continuing education requirements of
section 9 of this 2007 Act. + }An inactive license is not
considered a valid license for purposes of offering to undertake
construction work, submitting a bid for construction work,
obtaining a building permit or performing construction work. A
license may not be placed or maintained in inactive status more
than once during any two-year licensing term.
(6) The board shall issue a pocket-card certificate of
licensure to a contractor licensed under this chapter indicating
the type of license issued.
SECTION 26. ORS 701.135 is amended to read:
701.135. (1) The Construction Contractors Board may revoke,
suspend or refuse to issue or reissue a license and the board may
assess a civil penalty as provided in ORS 701.992 if the board
determines after notice and opportunity for hearing:
(a) That the licensee or applicant has violated { - ORS
701.055 or 701.078 - } { + a provision of this chapter + }.
(b) That the licensee has violated a rule or order of the
board.
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(c) That the licensee has knowingly assisted an unlicensed
person to act in violation of this chapter.
{ + (d) That the licensee has knowingly assisted a licensed
contractor to perform work for which the contractor is not
properly endorsed. + }
{ - (d) - } { + (e) + } That a lien was filed on a
structure under ORS 87.010 to 87.060 and 87.075 to 87.093 because
the licensee or applicant wrongfully failed to perform a
contractual duty to pay money to the person claiming the lien.
{ - (e) - } { + (f) + } That the licensee has knowingly
provided false information to the board.
{ - (f) - } { + (g) + } That the licensee has worked
without a construction permit where a permit is required and the
work resulted in a claim being filed with the board. For purposes
of this paragraph, ' construction permit' includes a building
permit, electrical permit, mechanical permit or plumbing permit.
{ - (g) - } { + (h) + } That the number of licensed
contractors working together on the same task on the same job
site, where one of the contractors is { - licensed - } { +
classed + } as exempt under ORS 701.035 (2)(b), exceeded the
following:
(A) Two sole proprietors;
(B) One partnership;
(C) One corporation; or
(D) One limited liability company.
{ - (h) - } { + (i) + } Consistent with the provisions of
ORS 670.280, that the licensee or applicant has been convicted of
one of the following crimes:
(A) Murder;
(B) Assault in the first degree;
(C) Kidnapping;
(D) Rape, sodomy or unlawful sexual penetration;
(E) Sexual abuse;
(F) Arson in the first degree;
(G) Robbery in the first degree;
(H) Theft in the first degree; or
(I) Theft by extortion.
{ - (i) - } { + (j) + } That the licensee or applicant has
not, within 90 days after the date when payment was received from
the public contracting agency, or contractor in the case of a
subcontractor, made payment to any person for supplying labor or
materials contracted for with a public contract for a public
improvement plus the amount of interest due.
{ - (j) - } { + (k) + } That the licensee or applicant has
repeatedly reported bad faith or false claims of nonpayment
against contractors or subcontractors.
{ - (k) - } { + (L) + } That the licensee or applicant has
engaged in conduct as a contractor that is dishonest or
fraudulent and that the board finds injurious to the welfare of
the public.
(2)(a) The administrator of the board, in accordance with
administrative rules adopted by the board and after setting forth
specific reasons for the findings, may suspend or refuse to renew
a license without hearing in any case where the administrator
finds a serious danger to the public welfare, including but not
limited to:
(A) Lack of a surety bond required by ORS 701.085;
(B) Lack of liability insurance required by ORS 701.105;
(C) Hiring employees while { - licensed - } { + classed + }
as exempt under ORS 701.035; or
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(D) Conduct as a construction contractor that is dishonest or
fraudulent.
(b) If the licensee or applicant demands a hearing within 90
days after the date of notice to the licensee or applicant of the
suspension or refusal to renew, then a hearing must be granted to
the licensee or applicant as soon as practicable after the
demand, and the administrator shall issue an order pursuant to
the hearing as required by ORS chapter 183 confirming, altering
or revoking the administrator's earlier order. Notwithstanding
ORS 670.325, a hearing need not be held where the order of
suspension or refusal to renew is accompanied by or is pursuant
to a citation for violation that is subject to judicial
determination in any court of this state, and the order by its
terms will terminate in case of final judgment in favor of the
licensee or applicant.
(3) In addition to all other remedies, if it appears to the
board that a person has engaged in, or is engaging in, any act,
practice or transaction that violates the provisions of this
chapter, the board may direct the Attorney General or the
district attorney of the county in which the act, practice or
transaction occurs, to apply to the court for an injunction
restraining the person from violating the provisions of this
chapter. An injunction may not issue for failure to maintain the
list provided for in ORS 701.055 (11) unless the court determines
that the failure is intentional.
(4) A certified copy of the record of conviction shall be
conclusive evidence of a conviction under subsection
{ - (1)(h) - } { + (1)(i) + } of this section.
(5) If the board suspends or revokes the license of an
individual contractor or contractor business for a violation of
subsection { - (1)(g) - } { + (1)(h) + } of this section, the
board may not restore or reissue the license unless the
individual contractor or a responsible managing individual, as
defined in ORS 701.078, for the contractor business has
successfully completed the training and testing described in ORS
701.072.
SECTION 27. ORS 701.138 is amended to read:
701.138. (1) Every person offering to undertake or undertaking
construction of building sewer piping shall comply with the
requirements of ORS chapter 701.
(2) Every person submitting a bid or a written estimate of the
costs to construct building sewer piping shall provide to
potential customers, prior to an agreement to perform, the
following:
(a) The person's Construction Contractors Board license number
{ - and category - } ;
(b) The applicable bonding and liability coverage; and
(c) The statement described in ORS 701.055 (3).
(3) Any person licensed under ORS 701.055 may install a
building sewer after obtaining a permit for plumbing inspection
under ORS 447.095.
(4) As used in this section, 'building sewer' means that part
of the system of drainage piping that conveys sewage into a
septic tank, cesspool or other treatment unit that begins five
feet outside the building or structure within which the sewage
originates.
SECTION 28. ORS 701.139 is amended to read:
701.139. { - Except as provided in ORS 701.148 (2), the
Construction Contractors Board may resolve a dispute against a
licensed contractor only if a claim is made against the
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contractor's surety bond required by ORS 701.085. In order to
have access to the bond, - } { + The Construction Contractors
Board may determine the validity of a claim described in ORS
701.140 filed against a licensed contractor. + } A person must
file { - a claim of a type described in ORS 701.140 - } { +
the claim + } within the applicable time limitation described in
ORS 701.143. The claim must be filed and resolved as follows:
{ + (1) A claim against a residential contractor that is not
also endorsed as a commercial contractor must be resolved as
provided in ORS 701.145.
(2) A claim against a commercial contractor that is not also
endorsed as a residential contractor must be resolved as provided
in ORS 701.146.
(3) A claim against a contractor that is endorsed as both a
residential contractor and a commercial contractor: + }
{ - (1) - } { + (a) + } { - A claim - } That involves
work on a residential structure or an appurtenance to the
structure must be resolved as provided under ORS 701.145.
{ - (2) - } { + (b) + } A claim that involves work on a
small commercial structure or an appurtenance { - thereto - }
{ + to the structure + } may be resolved as provided in ORS
701.145 or 701.146 { + , at the claimant's election + }.
{ - (3) - } { + (c) + } { - Except as provided in
subsections (4) and (5) of this section, a claim - } That
involves work on a large commercial structure or an appurtenance
{ - thereto - } { + to the structure + } must be resolved as
provided in ORS 701.146.
{ - (4) A claim by an owner that involves work on a large
commercial structure or an appurtenance thereto when the total
contract involved in the claim is $25,000 or less may be resolved
as provided in ORS 701.145 or 701.146. - }
{ - (5) - } { + (4) + } Notwithstanding subsections (1) to
{ - (4) - } { + (3) + } of this section { + and except as
provided in ORS 701.148 + }, with prior agreement of the claimant
and the licensed contractor, a claim may be resolved by the board
through binding arbitration under ORS 701.148.
SECTION 29. ORS 701.140 is amended to read:
701.140. A claim { - made against a licensed contractor's
bond required by ORS 701.085 - } { + under ORS 701.139 + } must
arise from the performance, or a contract for the performance, of
work that { - is subject to this chapter - } { + requires a
contractor license issued by the Construction Contractors
Board + }. The claim must be of one or more of the following
types:
(1) A claim 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 claim 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 claim is processed under ORS 701.145, the
Construction Contractors Board may reduce a claim by any amount
the claimant owes the contractor. The board shall process claims
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; { - and - }
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(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 claim is described in ORS 701.139 (1) or (3)(a) or
(b). + }
(3) A claim against a licensed subcontractor by a licensed
contractor for the following:
(a) Negligent work;
(b) Improper work; or
(c) Breach of contract.
(4) A claim by a person furnishing labor to a contractor { +
or owed employee benefits by a contractor + }.
(5) A claim, 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 shall not exceed
$150.
(6) A claim by a subcontractor against a contractor for unpaid
labor or materials arising out of a contract.
SECTION 30. ORS 701.145 is amended to read:
701.145. For a claim described in ORS 701.139 { - (1)
involving work on a residential structure or an appurtenance
thereto, a claim described in ORS 701.139 (2) involving work on a
small commercial structure or an appurtenance thereto that is not
resolved under ORS 701.146 or an owner's claim described in ORS
701.139 (4) involving work on a large commercial structure or an
appurtenance thereto that is not resolved under ORS 701.146 - }
{ + (1) or (3)(a) or a claim under ORS 701.139 (3)(b) that a
claimant elects to have resolved under this section + }:
(1) The person having the claim must file with the Construction
Contractors Board a statement of the claim in a form prescribed
by the board.
(2) The board may suspend processing of the claim if:
(a) The same facts and issues involved in the claim have been
submitted to a court of competent jurisdiction for determination
or have been submitted to any other entity authorized by law or
the parties to effect a resolution or settlement; or
(b) The board determines that the nature or complexity of the
claim is such that a court is the appropriate forum for the
adjudication of the claim.
(3) The board may dismiss or close the claim as established by
rule of the board if any of the following conditions apply:
(a) The claimant does not permit the contractor against whom
the claim is filed to be present at an on-site investigation made
by the board.
(b) The board determines that the contractor against whom the
claim is filed is capable of complying with recommendations made
by the board relative to the claim, but the claimant does not
permit the contractor to comply with the recommendations. The
board may refuse to accept or further process a claim under this
paragraph only if the contractor was licensed at the time the
work was first performed and is licensed at the time the board
makes its recommendations.
(c) The amount in controversy is less than an amount adopted by
the board and not more than $250.
(4) Upon acceptance of the statement of claim, the board shall
give notice to the contractor against whom the claim is made and
shall initiate proceedings to determine the validity of the
claim. If, after investigation, the board determines that a
Enrolled House Bill 3242 (HB 3242-C) Page 24
violation of this chapter or of any rule adopted thereunder has
occurred, or damage has been caused by the contractor, the board
may recommend to the contractor such action as the board
considers appropriate to compensate the claimant. If the
contractor performs accordingly, the board shall give that fact
due consideration in any subsequent disciplinary proceeding
brought by the board. If a claim is for less than $1,000, the
board may process the claim without conducting an on-site
investigation.
(5) Subject to ORS 701.148, if the board is unable to resolve
the claim under subsection (4) of this section, the board may
issue a contested case notice under ORS 183.415 and:
(a) Issue a proposed default order under ORS 183.415 to become
effective only if a party does not request a contested case
hearing; or
(b) Refer the matter for hearing.
(6) The board shall send a copy of the notice and any proposed
order described in subsection (5) of this section to the surety
on the contractor bond required by ORS 701.085.
SECTION 31. ORS 701.146 is amended to read:
701.146. For a claim described in ORS 701.139 { - (3)
involving work on a large commercial structure or an appurtenance
thereto, a claim described in ORS 701.139 (2) involving work on a
small commercial structure or an appurtenance thereto that is not
resolved under ORS 701.145 or an owner's claim described in ORS
701.139 (4) involving work on a large commercial structure or an
appurtenance thereto that is not resolved under ORS 701.145 - }
{ + (2) or (3)(c) or a claim under ORS 701.139 (3)(b) that a
claimant elects to have resolved under this section + }:
(1) The person seeking to file the claim must:
(a) Bring an action on the claim against the licensed
contractor in a court of competent jurisdiction; or
(b) Initiate a proceeding to resolve the claim through binding
arbitration substantially in conformance with ORS 36.600 to
36.740.
(2) The claimant must file the claim with the Construction
Contractors Board by delivering to the board a copy of the
complaint or the demand for arbitration or other document
necessary to initiate arbitration. The complaint, demand or other
document must be accompanied by a statement of claim in a form
prescribed by board rule. The claimant must also give notice to
the surety on the bond by delivering to the surety a copy of the
complaint, demand for arbitration or other document necessary to
initiate arbitration and a copy of the statement of claim.
Delivery to the board and the surety must be accomplished by
certified mail, return receipt requested, no later than the
earlier of:
(a) The 90th day after the complaint, demand or other document
was filed or made;
(b) The 14th day before the first day of trial or arbitration;
or
(c) The 30th day before:
(A) The court issues a judgment on the complaint; or
(B) The arbitrator issues an award on the arbitration.
(3) Filing the claim with the board under subsection (2) of
this section constitutes filing the claim for purposes of
establishing timeliness of the claim under ORS 701.143 and
priority of the claim under { - ORS 701.150 - } { + section
11 of this 2007 Act + }.
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(4) Except as provided in this subsection and subsection (7) of
this section, if the claimant properly gives notice to the surety
under subsection (2) of this section, a judgment or award against
the contractor entered in the action or arbitration is binding on
the surety. If the claimant delivers the notice required under
subsection (2) of this section to the wrong surety, the surety
receiving the notice may avoid being bound by a judgment or award
by delivering notice of the mistake to the claimant or the
claimant's attorney of record, and to the board, on or before the
30th day after the surety receives notice under subsection (2) of
this section. Delivery of the notice of mistake must be by
certified mail, return receipt requested, or by facsimile machine
or other form of transmission with an acknowledgment of receipt.
(5) A surety under subsection (2) of this section has an
absolute right to intervene in an action or arbitration brought
or initiated under subsection (1) of this section. A claimant may
not join a surety as a party to an action or arbitration unless
the claimant disputes the validity or timeliness of the surety's
notice of mistake or the surety disputes the validity or
timeliness of the delivery to the surety of the notice required
by subsection (2) of this section. If the surety elects to
intervene or is joined as a party, the surety is bound by all
issues of fact and law determined by the court or arbitrator and
may not seek board review of those determinations.
(6) If a court issues a judgment on an action, or reduces an
arbitration award to judgment, against a contractor on a claim
described in subsection (1) of this section, the claimant must
deliver a certified copy of the judgment to the board and to the
surety no later than the 30th day after entry of the judgment in
order to retain a claim against the bond. The entry of a final
judgment against the contractor concludes the contractor's
involvement in any proceedings to determine whether the bond is
subject to payment of the claim. The claimant and the surety are
the only parties to the administrative process set forth in
subsection (7) of this section.
(7) Upon receipt of a timely delivered certified copy of the
judgment as described in subsection (6) of this section, the
board shall issue a proposed order in the amount of the judgment
together with any costs, interest and attorney fees awarded under
the judgment, to the extent that the judgment, costs, interest
and fees are within the jurisdiction of the board. The board's
determination of the claim is limited to whether the claim comes
within the jurisdiction of the board and is subject to payment by
the surety. The board shall issue the proposed order in a form
that indicates the surety's maximum liability to the claimant. If
a hearing is not requested within the time set forth in the
proposed order, the proposed order becomes final without any
further action by the board. If a hearing is requested, unless
review of an issue is precluded under subsection (5) of this
section, the board may determine:
(a) Whether the claim was timely filed with the board as
provided in ORS 701.143.
(b) Whether the surety received timely notice as provided in
subsections (2) and (6) of this section.
(c) Whether the claim is for work subject to this chapter.
(d) The extent of the surety's liability to the claimant.
SECTION 32. ORS 701.148 is amended to read:
701.148. (1) Subject to subsection (4) of this section, if the
resolution of a claim under ORS 701.145 requires a hearing, the
Construction Contractors Board may require that the hearing be
Enrolled House Bill 3242 (HB 3242-C) Page 26
conducted as a binding arbitration under rules adopted by the
board under subsection (3) of this section. This subsection does
not authorize the board to require binding arbitration of a claim
that is subject to ORS 701.146.
(2) The board may use mediation or arbitration to resolve a
construction dispute between any parties who agree to follow the
rules of the board, { - including but not limited to parties to
a claim that is subject to ORS 701.146 - } { + other than a
dispute involving work on a large commercial structure + }.
(3) Except as provided in this subsection, rules adopted by the
board to regulate arbitration under subsections (1) and (2) of
this section must substantially conform with the provisions of
ORS 36.600, 36.610 to 36.630, 36.635 (2), 36.640, 36.645 (2),
36.650 to 36.680, 36.685 (1) and 36.690 to 36.740. The rules may:
(a) Require that a hearing under ORS 183.413 to 183.470 be
conducted for issues for which a petition could be filed under
ORS 36.615, 36.620, 36.625 and 36.640;
(b) Limit orders and awards made by the arbitrator as necessary
to comply with this chapter;
(c) Require that a request that an arbitrator modify or correct
an award under ORS 36.690 be submitted in a form specified by the
rule;
(d) Require that a petition under ORS 36.705 (2) or 36.710 (1)
be filed in a shorter period of time than provided by ORS 36.705
and 36.710; and
(e) Include any other provision necessary to conform the
arbitration to this chapter.
(4) A party to a claim that is subject to a board order of
binding arbitration under subsection (1) of this section may
avoid the arbitration if the party requests to have the claim
resolved through a contested case hearing or files a complaint in
a court. A party making a request or filing a complaint under
this subsection is subject to the following provisions:
(a) If the party requests to have a claim resolved through a
contested case hearing, the party must, within the time specified
in paragraph (c) of this subsection, deliver the request in
writing to the board and to all parties entitled by board rule to
receive a copy of the request.
(b) If the party files a complaint in court, the party must,
within the time specified in paragraph (c) of this subsection,
deliver a copy of the complaint to the board and to all parties
entitled by board rule to receive a copy of the complaint. If the
party filing the complaint is the claimant, the claimant must
allege all elements of the claim in the complaint. If the
complaint is filed by the contractor against whom a claim is
alleged, the complaint may be a complaint for damages, a
complaint for declaratory judgment or other complaint that allows
the claimant to file a response alleging the elements of the
claim. The claimant has the burden of proving the elements of
the claim in any action described in this paragraph.
(c) A party that is subject to paragraph (a) or (b) of this
subsection must deliver a request or complaint to the board as
described in paragraphs (a) and (b) of this subsection no later
than the 30th day after the board sends notice that an
arbitration hearing has been scheduled. Failure to timely deliver
a request or complaint under this paragraph constitutes consent
to the binding arbitration.
(d) If a party makes a timely request under paragraph (a) of
this subsection for a contested case hearing and another party
timely files a complaint in compliance with paragraph (b) of this
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subsection, the filing of the complaint supersedes the request
for a contested case hearing.
(e) A party may not withdraw a request made in compliance with
paragraph (a) of this subsection unless all parties agree to the
withdrawal.
(f) The board may adopt a rule that a contested case hearing
for a claim of less than $1,000 is not available under this
subsection.
(g) The provisions of paragraph (b) of this subsection are in
addition to any other requirements imposed by law regarding the
filing of a complaint.
(5) The board may refuse to accept a dispute for mediation or
arbitration under subsection (1) or (2) of this section if the
board determines that the nature or complexity of the dispute is
such that a court or other forum is more appropriate for
resolution of the dispute.
SECTION 33. ORS 701.150 is amended to read:
701.150. (1) { + A Construction Contractors Board final order
that is not paid by the contractor and that:
(a) Arises out of a claim filed under ORS 701.145 must be
satisfied from a bond required for a residential contractor.
(b) Arises out of a claim filed under ORS 701.146 must be
satisfied from a bond required for a commercial contractor.
(2) + } If a { - Construction Contractors - } board final
order is not paid by the contractor, the board shall notify the
surety on the bond. The surety may not pay a claim until the
surety receives notice from the board that the claim is ready for
payment.
{ - (2) If an order of the board that determines a claim
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 claimant may file the order with the county clerk in
any county of this state. - }
{ - (3) 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. - }
{ - (4) Payments from the surety bond of a contractor
pursuant to board order and notice are satisfied in the following
priority in any 90-day period. A 90-day period begins on the date
the first claim is filed with the board. Subsequent 90-day
periods begin on the date the first claim is filed with the board
after the close of the preceding 90-day period. Within a 90-day
period: - }
{ - (a) Board orders as a result of claims against a
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 claims. - }
{ - (b) If the claims described in paragraph (a) of this
subsection do not exhaust the bond, then amounts due as a result
of all other types of residential or small commercial structure
claims filed within that 90-day period may be satisfied from the
bond, except that the total amount paid from any one bond to
nonowner claimants may not exceed $3,000. - }
{ - (c) If payments involving residential and small
commercial structures do not exhaust the bond, board orders and
notice involving large commercial structure claims are satisfied
Enrolled House Bill 3242 (HB 3242-C) Page 28
in the following priority, except that the total amount paid from
any one bond to nonowner claimants may not exceed $3,000: - }
{ - (A) Labor, including employee benefits. - }
{ - (B) All other claims involving large commercial
structures except costs, interest and attorney fees. - }
{ - (C) Any costs, interest and attorney fees the plaintiff
may be entitled to recover. - }
{ - (d) If the total claims filed with the board against a
contractor within 90 days after the board receives notice of the
first claim against the contractor exceed the amount of the bond
available for those claims, the bond shall be apportioned as the
board determines, subject to the priorities established under
this section. - }
{ - (e) If the total amounts due as a result of claims filed
with the board within 90 days after the first claim is filed do
not exceed the amount of the bond available for those claims, all
amounts due as a result of claims filed within the 90-day period
shall have priority over all claims subsequently filed until the
amount of the bond available for the payment of claims is
exhausted. - }
{ - (5) - } { + (3) + } Notwithstanding { - subsection
(4) of this section - } { + sections 10 and 11 of this 2007
Act + }, a bond is not subject to payment for a claim that is
filed more than 14 months after the earlier of:
(a) The expiration or cancellation date of the license that was
in force when the work that is the subject of the claim was
completed or abandoned; or
(b) The date that the surety canceled the bond.
{ - (6) The total amount paid from any one bond for costs,
interest and attorney fees may not exceed $3,000. - }
SECTION 34. ORS 701.205 is amended to read:
701.205. (1) The Construction Contractors Board is established,
consisting of nine members appointed by the Governor subject to
confirmation by the Senate in the manner provided by law. Three
of the members shall be { + residential + } contractors who
primarily work on residential or small commercial structures,
including one contractor engaged in the business of remodeling,
two shall be public members and one shall be an elected
representative of a governing body of local government. Two of
the members shall be { + commercial + } general contractors who
primarily work on large commercial structures, and one shall be a
{ + commercial + } specialty contractor who primarily works on
large commercial structures or a { + residential + } limited
contractor. One member who is a contractor may be certified as a
home inspector.
(2) The term of office of each member is four years, but a
member serves at the pleasure of the Governor. Before the
expiration of the term of a member, the Governor shall appoint a
successor whose term begins on July 1 next following. A member is
eligible for reappointment. If there is a vacancy for any cause,
the Governor shall make an appointment immediately effective for
the unexpired term.
(3) In order to be eligible for board membership, the six
contractor members of the board shall be licensed under this
chapter and shall maintain their licenses in good order during
their term of office.
SECTION 35. ORS 701.230 is amended to read:
701.230. At least once each month, the Construction Contractors
Board shall provide to investigative units of the Department of
Revenue, Department of Consumer and Business Services and
Enrolled House Bill 3242 (HB 3242-C) Page 29
Employment Department the name and address of each person who
acts as a contractor in violation of this chapter or who
knowingly assists an unlicensed person { + or a licensed
contractor that is not properly endorsed + } to act in violation
of this chapter.
SECTION 36. ORS 701.235 is amended to read:
701.235. (1) The Construction Contractors Board shall adopt
rules to carry out the provisions of this chapter including, but
not limited to, rules that:
(a) Establish language for surety bonds;
(b) Establish processing requirements for different types of
claims described in this chapter;
(c) Limit whether a claim may be processed by the board if
there is no direct contractual relationship between the claimant
and the contractor;
(d) { - Notwithstanding ORS 701.146 (7) and 701.150 (4) and
subject to ORS 701.150 (6) - } { + Subject to sections 10 and
11 of this 2007 Act + }, exclude or limit recovery from the
contractor's bond required by ORS 701.085, of damages awarded by
a court or arbitrator for interest, service charges, costs and
attorney fees arising from filing and proving the claim; and
(e) Designate a form to be used by an owner of residential
property under ORS 87.007 for the purpose of indicating the
method the owner has selected to comply with the requirements of
ORS 87.007 (2) or to indicate that ORS 87.007 (2) does not apply.
(2) The board may adopt rules prescribing terms and conditions
under which a contractor may substitute a letter of credit from a
bank authorized to do business in this state instead of the bond
requirements prescribed in ORS 701.085.
SECTION 37. ORS 701.990 is amended to read:
701.990. (1) Violation of { - ORS 701.055 (1) - } { +
section 2 of this 2007 Act + } is a Class A misdemeanor.
(2) The intentional use of a contractor's license number
without the authorization of the licensed contractor is a Class A
misdemeanor.
(3) Use of a contractor's license number, with or without the
authorization of the licensed contractor, with the intent to
deceive the public is a Class A misdemeanor.
SECTION 38. ORS 701.992 is amended to read:
701.992. (1) Except as provided in subsections (4) and (5) of
this section, any person who violates any provision of this
chapter or any rule adopted by the Construction Contractors Board
shall forfeit and pay into the General Fund of the State Treasury
a civil penalty in an amount determined by the board of not more
than $5,000 for each offense.
(2) Civil penalties under this section shall be imposed as
provided in ORS 183.745.
(3) The provisions of this section are in addition to and not
in lieu of any other penalty or sanction provided by law.
(4) The board shall impose sanctions for violation of ORS
701.135 { - (1)(g) - } { + (1)(h) + } on both the person to
whom the contract is awarded and the person who awards the
contract as follows:
(a) A penalty not less than $500 nor more than $1,000 for the
first offense;
(b) A penalty not less than $1,000 nor more than $2,000 for the
second offense;
(c) Suspension of the person's license for six months for a
third offense;
Enrolled House Bill 3242 (HB 3242-C) Page 30
(d) Suspension of the person's license for three years for a
fourth offense; and
(e) Revocation of the person's license for a fifth offense.
(5) The board may impose a civil penalty not to exceed $100 for
each violation of ORS 87.007 (3).
SECTION 39. ORS 18.635 is amended to read:
18.635. (1) A writ of garnishment may be issued only by a
person specified in this section.
(2) The court administrator may issue a writ pursuant to ORS
18.638 and 18.640 only:
(a) For the enforcement of a judgment that requires the payment
of money and that has been entered in the register of a circuit
court or docketed in the docket of a justice or municipal court;
(b) Pursuant to an order for provisional process under ORCP 83
and 84; or
(c) On behalf of a claimant under an order recorded pursuant to
ORS 671.707 or { - 701.150 - } { + section 10 of this 2007
Act + }, if the claimant has complied with the requirements of
ORS 205.126.
(3) An attorney who is an active member of the Oregon State Bar
may issue a writ for the purpose of enforcing:
(a) A judgment that requires payment of money and that has been
entered in the register of a circuit court of this state or
docketed in the docket of a justice or municipal court of this
state; and
(b) An order or warrant that an agency has recorded in the
County Clerk Lien Record as authorized by law, including any
order that has been recorded pursuant to ORS 671.707 or
{ - 701.150 - } { + section 10 of this 2007 Act + }.
(4) The administrator, as defined in ORS 25.010, may issue
writs of garnishment only for the collection of past due support.
Writs issued under this subsection are subject to the provisions
of ORS 18.645.
SECTION 40. ORS 18.800 is amended to read:
18.800. (1) Except as provided in this section, the provisions
of ORS 18.600 to 18.850 apply to all writs of garnishment issued
on behalf of agencies for the enforcement of agency orders or
warrants that are recorded in the County Clerk Lien Record.
(2) Notwithstanding ORS 18.690, a garnishee who receives a writ
of garnishment described in subsection (1) of this section need
not deliver a copy of the garnishee response to the court
administrator for the court identified as having authority over
the writ.
(3) Notwithstanding ORS 18.700, a debtor who wishes to make a
challenge to a writ of garnishment described in subsection (1) of
this section must deliver the challenge in person or by first
class mail to the garnishor within the time specified by ORS
18.700 (2).
(4) A person issuing a writ of garnishment described in
subsection (1) of this section shall modify the forms provided in
ORS 18.600 to 18.850 to reflect that:
(a) The writ of garnishment is issued pursuant to an order or
warrant recorded in the County Clerk Lien Record;
(b) A copy of the garnishee response need not be delivered or
mailed to the court administrator for the court identified in the
writ; and
(c) A challenge to a writ of garnishment described in
subsection (1) of this section must be delivered to the garnishor
and not to the court.
Enrolled House Bill 3242 (HB 3242-C) Page 31
(5) Within 14 days after receipt of a challenge to a
garnishment described in subsection (1) of this section, the
garnishor must either:
(a) Release all property claimed as exempt from or not subject
to garnishment under the challenge to the garnishment; or
(b) File with the court administrator a response to the
challenge attaching copies of the writ and garnishee response and
any supporting documentation necessary or helpful to the court in
making its determination on the challenge to the garnishment.
(6) The provisions of this section do not apply to writs of
garnishment issued by the court administrator, writs issued by an
attorney for the enforcement of an order recorded under ORS
671.707 or { - 701.150 - } { + section 10 of this 2007
Act + } or writs issued by the administrator, as defined in ORS
25.010, under ORS 18.645.
SECTION 41. ORS 205.126 is amended to read:
205.126. (1) At any time after recording an order or warrant in
the County Clerk Lien Record, a claimant or an attorney for an
agency or claimant may file in the circuit court for the county
where the order or warrant is recorded, a copy of the original
order or warrant certified by the agency to be a true copy of
original, and an affidavit of the claimant or attorney verifying
that the order or warrant was recorded in the County Clerk Lien
Record for that county, the date that the order or warrant was
recorded and the date on which any notice of renewal was recorded
under subsection (2) of this section. Subject to any other
requirements that may apply to the enforcement remedy sought by
the agency or claimant, proceedings may thereafter be commenced
by the agency or claimant for the enforcement of the order or
warrant, in the same manner as provided for the enforcement of
judgments issued by a court. Enforcement proceedings may include:
(a) Writ of execution proceedings under ORS 18.252 to 18.993.
(b) Proceedings in support of execution under ORS 18.265,
18.268 and 18.270.
(c) Garnishment proceedings under ORS 18.600 to 18.850.
(2) At any time within 10 years after the recording of an order
or warrant, an agency or claimant, acting with or without the
assistance of an attorney, may renew an order or warrant by
recording a notice of renewal in the County Clerk Lien Record. A
notice of renewal recorded within the time specified by this
subsection has the attributes and effect of an extension of
judgment remedies noted in the register under ORS 18.182, from
the date that the notice is recorded. A notice of renewal
recorded under this section must state:
(a) The name of the agency that issued the warrant or order or
the name of the claimant in whose favor an order of the
Construction Contractors Board or State Landscape Contractors
Board has been given;
(b) The name of all persons against whom a monetary obligation
is imposed under the order or warrant; and
(c) The date of recording and the recording number, the book
and page number for the recording, or the volume and page number
for the recording.
(3) For the purposes of this section:
(a) 'Agency' means any state officer, board, commission,
corporation, institution, department or other state body that has
authority to record an order or warrant in the County Clerk Lien
Record.
(b) 'Claimant' means a person in favor of which a board order
has been recorded under the provisions of ORS 671.707 or
Enrolled House Bill 3242 (HB 3242-C) Page 32
{ - 701.150 - } { + section 10 of this 2007 Act + }.
SECTION 42. ORS 279C.375 is amended to read:
279C.375. (1) After bids are opened and a determination is made
that a public improvement contract is to be awarded, the
contracting agency shall award the contract to the lowest
responsible bidder.
(2) At least seven days before the award of a public
improvement contract, unless the contracting agency determines
that seven days is impractical under rules adopted under ORS
279A.065, the contracting agency shall issue to each bidder or
post, electronically or otherwise, a notice of the contracting
agency's intent to award a contract. This subsection does not
apply to a contract excepted or exempted from competitive bidding
under ORS 279C.335 (1)(c) or (d) or (6). The notice and its
manner of posting or issuance must conform to rules adopted under
ORS 279A.065.
(3) In determining the lowest responsible bidder, a contracting
agency shall do all of the following:
(a) Check the list created by the Construction Contractors
Board under ORS 701.227 for bidders who are not qualified to hold
a public improvement contract.
(b) Determine whether the bidder has met the standards of
responsibility. In making the determination, the contracting
agency shall consider whether a bidder has:
(A) Available the appropriate financial, material, equipment,
facility and personnel resources and expertise, or the ability to
obtain the resources and expertise, necessary to meet all
contractual responsibilities.
(B) A satisfactory record of performance. The contracting
agency shall document the record of performance of a bidder if
the contracting agency finds the bidder not to be responsible
under this subparagraph.
(C) A satisfactory record of integrity. The contracting agency
shall document the record of integrity of a bidder if the
contracting agency finds the bidder not to be responsible under
this subparagraph.
(D) Qualified legally to contract with the contracting agency.
(E) Supplied all necessary information in connection with the
inquiry concerning responsibility. If a bidder fails to promptly
supply information requested by the contracting agency concerning
responsibility, the contracting agency shall base the
determination of responsibility upon any available information,
or may find the bidder not to be responsible.
(c) Document the contracting agency's compliance with the
requirements of paragraphs (a) and (b) of this subsection in
substantially the following form:
_________________________________________________________________
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
RESPONSIBILITY DETERMINATION FORM
Project Name: ________
Bid Number: ________
Business Entity Name: ________
CCB License Number: ________
Form Submitted By (Contracting Agency): ________
Enrolled House Bill 3242 (HB 3242-C) Page 33
Form Submitted By (Contracting Agency Representative's Name):
________
Title: ________
Date: ________
(The contracting agency must submit this form with
attachments, if any, to the Construction Contractors Board within
30 days after the date of contract award.)
The contracting agency has (check all of the following):
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
? Checked the list created by the
Construction Contractors Board
under ORS 701.227 for bidders who
are not qualified to hold a public
improvement contract.
? Determined whether the bidder has
met the standards of responsibility.
In so doing, the contracting agency
has considered whether the bidder:
? Has available the appropriate
financial, material, equipment,
facility and personnel resources
and expertise, or the ability to
obtain the resources and expertise,
necessary to meet all contractual
responsibilities.
? Has a satisfactory record of
performance.
? Has a satisfactory record of
integrity.
? Is qualified legally to contract with
the contracting agency.
? Has supplied all necessary
information in connection with the
inquiry concerning responsibility.
? Determined the bidder to be
(check one of the following):
? Responsible under ORS 279C.375
(3)(a) and (b).
? Not responsible under ORS 279C.375
(3)(a) and (b).
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
(Attach documentation if the contracting agency finds the
bidder not to be responsible.)
_________________________________________________________________
(d) Submit the form described in paragraph (c) of this
subsection, with any attachments, to the Construction Contractors
Board within 30 days after the date the contracting agency awards
the contract.
(4) The successful bidder shall:
(a) Promptly execute a formal contract; and
(b) Execute and deliver to the contracting agency a performance
bond and a payment bond when required under ORS 279C.380.
Enrolled House Bill 3242 (HB 3242-C) Page 34
{ + (5) A contracting agency may not exclude a commercial
contractor from competing for a public contract on the basis that
the license issued by the Construction Contractors Board is
endorsed as a level 1 or level 2 license. As used in this
section, ' commercial contractor' has the meaning given that term
in ORS 701.005. + }
SECTION 43. ORS 279C.375, as amended by section 18, chapter
103, Oregon Laws 2005, is amended to read:
279C.375. (1) After bids are opened and a determination is made
that a public improvement contract is to be awarded, the
contracting agency shall award the contract to the lowest
responsible bidder.
(2) At least seven days before the award of a public
improvement contract, unless the contracting agency determines
that seven days is impractical under rules adopted under ORS
279A.065, the contracting agency shall issue to each bidder or
post, electronically or otherwise, a notice of the contracting
agency's intent to award a contract. This subsection does not
apply to a contract excepted or exempted from competitive bidding
under ORS 279C.335 (1)(c) or (6). The notice and its manner of
posting or issuance must conform to rules adopted under ORS
279A.065.
(3) In determining the lowest responsible bidder, a contracting
agency shall do all of the following:
(a) Check the list created by the Construction Contractors
Board under ORS 701.227 for bidders who are not qualified to hold
a public improvement contract.
(b) Determine whether the bidder has met the standards of
responsibility. In making the determination, the contracting
agency shall consider whether a bidder has:
(A) Available the appropriate financial, material, equipment,
facility and personnel resources and expertise, or the ability to
obtain the resources and expertise, necessary to meet all
contractual responsibilities.
(B) A satisfactory record of performance. The contracting
agency shall document the record of performance of a bidder if
the contracting agency finds the bidder not to be responsible
under this subparagraph.
(C) A satisfactory record of integrity. The contracting agency
shall document the record of integrity of a bidder if the
contracting agency finds the bidder not to be responsible under
this subparagraph.
(D) Qualified legally to contract with the contracting agency.
(E) Supplied all necessary information in connection with the
inquiry concerning responsibility. If a bidder fails to promptly
supply information requested by the contracting agency concerning
responsibility, the contracting agency shall base the
determination of responsibility upon any available information,
or may find the bidder not to be responsible.
(c) Document the contracting agency's compliance with the
requirements of paragraphs (a) and (b) of this subsection in
substantially the following form:
_________________________________________________________________
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Enrolled House Bill 3242 (HB 3242-C) Page 35
RESPONSIBILITY DETERMINATION FORM
Project Name: ________
Bid Number: ________
Business Entity Name: ________
CCB License Number: ________
Form Submitted By (Contracting Agency): ________
Form Submitted By (Contracting Agency Representative's Name):
________
Title: ________
Date: ________
(The contracting agency must submit this form with
attachments, if any, to the Construction Contractors Board within
30 days after the date of contract award.)
The contracting agency has (check all of the following):
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
? Checked the list created by the
Construction Contractors Board
under ORS 701.227 for bidders who
are not qualified to hold a public
improvement contract.
? Determined whether the bidder has
met the standards of responsibility.
In so doing, the contracting agency
has considered whether the bidder:
? Has available the appropriate
financial, material, equipment,
facility and personnel resources
and expertise, or the ability to
obtain the resources and expertise,
necessary to meet all contractual
responsibilities.
? Has a satisfactory record of
performance.
? Has a satisfactory record of
integrity.
? Is qualified legally to contract with
the contracting agency.
? Has supplied all necessary
information in connection with the
inquiry concerning responsibility.
? Determined the bidder to be
(check one of the following):
? Responsible under ORS 279C.375
(3)(a) and (b).
? Not responsible under ORS 279C.375
(3)(a) and (b).
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
(Attach documentation if the contracting agency finds the
bidder not to be responsible.)
_________________________________________________________________
(d) Submit the form described in paragraph (c) of this
subsection, with any attachments, to the Construction Contractors
Enrolled House Bill 3242 (HB 3242-C) Page 36
Board within 30 days after the date the contracting agency awards
the contract.
(4) The successful bidder shall:
(a) Promptly execute a formal contract; and
(b) Execute and deliver to the contracting agency a performance
bond and a payment bond when required under ORS 279C.380.
{ + (5) A contracting agency may not exclude a commercial
contractor from competing for a public contract on the basis that
the license issued by the Construction Contractors Board is
endorsed as a level 1 or level 2 license. As used in this
section, ' commercial contractor' has the meaning given that term
in ORS 701.005. + }
SECTION 44. ORS 279C.465 is amended to read:
279C.465. (1) Any person that loses a competitive bid or
proposal for a contract involving the construction, repair,
remodeling, alteration, conversion, modernization, improvement,
rehabilitation, replacement or renovation of a building or
structure may bring an action for damages against another person
who is awarded the contract for which the bid or proposal was
made if the person making the losing bid or proposal can
establish that the other person knowingly violated ORS 279C.840,
656.017, 657.505 or 701.055 { + or section 2 of this 2007
Act + } while performing the work under the contract, or
knowingly failed to pay to the Department of Revenue all sums
withheld from employees under ORS 316.167.
(2) A person bringing an action under this section must
establish a violation of ORS 279C.840, 316.167, 656.017, 657.505
or 701.055 { + or section 2 of this 2007 Act + } by a
preponderance of the evidence.
(3) Upon establishing that the violation occurred, the person
shall recover, as liquidated damages, 10 percent of the total
amount of the contract or $5,000, whichever is greater.
(4) In any action under this section, the prevailing party is
entitled to an award of reasonable attorney fees.
(5) An action under this section must be commenced within two
years of the substantial completion of the construction, repair,
remodeling, alteration, conversion, modernization, improvement,
rehabilitation, replacement or renovation. For the purposes of
this subsection, 'substantial completion' has the meaning given
that term in ORS 12.135.
(6) A person may not recover any amounts under this section if
the defendant in the action establishes by a preponderance of the
evidence that the plaintiff:
(a) Was in violation of ORS 701.055 { + or section 2 of this
2007 Act + }at the time of making the bid or proposal on the
contract;
(b) Was in violation of ORS 316.167, 656.017 or 657.505 with
respect to any employees of the plaintiff as of the time of
making the bid or proposal on the contract; or
(c) Was in violation of ORS 279C.840 with respect to any
contract performed by the plaintiff within one year before making
the bid or proposal on the contract at issue in the action.
SECTION 45. ORS 279C.585 is amended to read:
279C.585. A contractor whose bid is accepted may substitute a
first-tier subcontractor that was not disclosed under ORS
279C.370 by submitting the name of the new subcontractor and the
reason for the substitution in writing to the contracting agency.
A contractor may substitute a first-tier subcontractor under this
section in the following circumstances:
Enrolled House Bill 3242 (HB 3242-C) Page 37
(1) When the subcontractor disclosed under ORS 279C.370 fails
or refuses to execute a written contract after having had a
reasonable opportunity to do so after the written contract, which
must be reasonably based upon the general terms, conditions,
plans and specifications for the public improvement project or
the terms of the subcontractor's written bid, is presented to the
subcontractor by the contractor.
(2) When the disclosed subcontractor becomes bankrupt or
insolvent.
(3) When the disclosed subcontractor fails or refuses to
perform the subcontract.
(4) When the disclosed subcontractor fails or refuses to meet
the bond requirements of the contractor that had been identified
prior to the bid submittal.
(5) When the contractor demonstrates to the contracting agency
that the subcontractor was disclosed as the result of an
inadvertent clerical error.
(6) When the disclosed subcontractor does not hold a license
from { + , or has a license that is not properly endorsed by, + }
the Construction Contractors Board and is required to be licensed
by the board.
(7) When the contractor determines that the work performed by
the disclosed subcontractor is substantially unsatisfactory and
not in substantial accordance with the plans and specifications
or that the subcontractor is substantially delaying or disrupting
the progress of the work.
(8) When the disclosed subcontractor is ineligible to work on a
public improvement contract under applicable statutory
provisions.
(9) When the substitution is for good cause. The Construction
Contractors Board shall define 'good cause' by rule. 'Good cause'
includes but is not limited to the financial instability of a
subcontractor. The definition of 'good cause' must reflect the
least-cost policy for public improvements established in ORS
279C.305.
(10) When the substitution is reasonably based on the contract
alternates chosen by the contracting agency.
SECTION 46. ORS 479.940 is amended to read:
479.940. (1) The licensure provisions of ORS 479.510 to 479.945
do not apply to the following activity on Class II and III
systems in one and two family dwellings regulated under the
Low-Rise Residential Dwelling Code:
(a) Prewiring of cable television and telephone systems owned
by the owner of the residence;
(b) Garage door openers;
(c) Vacuum systems;
(d) Audio and stereo systems;
(e) HVAC;
(f) Landscape sprinkler controls;
(g) Landscape lighting; and
(h) Doorbells.
(2) The provisions of subsection (1) of this section apply only
to { - persons or businesses licensed and in good standing
with - } { + residential contractors holding a current license
and proper endorsement issued by + }the Construction Contractors
Board.
(3)(a) The licensure provisions of ORS 479.510 to 479.945 do
not apply to limited energy electrical activity involving
landscape irrigation control wiring and outdoor landscape
Enrolled House Bill 3242 (HB 3242-C) Page 38
lighting installed by a business licensed under ORS 671.510 to
671.710.
(b) A business exempt from licensing under this section shall
issue an identification card to its landscape irrigation control
wiring or outdoor landscape lighting installer. The form for the
identification card shall be provided by the State Landscape
Contractors Board. The identification card shall include the name
of the installer, the name and State Landscape Contractors Board
identification number of the landscaping business and the date of
issue of the identification card. The card shall be carried by
the installer at the job site when performing the allowed
electric installations.
(4) The licensure provisions of ORS 479.510 to 479.945 do not
apply to limited energy electrical activity involving the
installation, maintenance or repair of lottery equipment at
retail locations by employees or vendors of the Oregon State
Lottery Commission. The exemption provided by this subsection
does not authorize work by unlicensed persons on systems of 115
volts or more.
(5) All nonlicensure requirements of ORS 479.510 to 479.945,
including permits for and compliance with the electrical
specialty code, apply to activities conducted under subsections
(1) to (4) of this section. If any person or business repeatedly
violates the permit or code compliance requirements, in addition
to any other remedy, the Electrical and Elevator Board may
suspend, condition or revoke a person's or business's right to
use this provision.
SECTION 47. ORS 646.551 is amended to read:
646.551. As used in ORS 646.551 to 646.557, unless the context
requires otherwise:
(1) 'Telephonic seller' means a person who, on the person's own
behalf, or on behalf of another person, causes or attempts to
cause a telephone solicitation to be made under the following
circumstances:
(a) The person initiates telephonic contact with a prospective
purchaser and represents or implies any of the following:
(A) That a prospective purchaser who buys one or more goods or
services unit will receive additional units, whether or not of
the same type as purchased, without further cost. As used in this
subparagraph, 'further cost' does not include actual postage or
common carrier delivery charges, if any;
(B) That a prospective purchaser will receive a prize or gift
if the person also encourages the prospective purchaser to do
either of the following:
(i) Purchase or rent any goods or services; or
(ii) Pay any money, including, but not limited to a delivery or
handling charge;
(C) That a prospective purchaser who buys goods or services,
because of some unusual event or imminent price increase, will be
able to buy these items at prices which are below those usually
charged or will be charged for those items;
(D) That the seller is a person other than the actual seller;
(E) That the items for sale or rent are manufactured or
supplied by a person other than the actual manufacturer or
supplier; or
(F) That the items for sale are gold, silver or other precious
metals, diamonds, rubies, sapphires or other precious stones or
any interest in oil, gas or mineral fields, wells or exploration
sites; or
Enrolled House Bill 3242 (HB 3242-C) Page 39
(b) The telephone solicitation is made by the person in
response to inquiries from prospective purchasers generated by
advertisement, on behalf of the person and the solicitation is
conducted as described in paragraph (a) of this subsection.
(2) 'Telephonic seller' does not include any of the following:
(a) A person selling a security as defined in ORS 59.015, or
securities which are exempt under ORS 59.025.
(b) A person licensed pursuant to ORS chapter 696 when the
transaction is governed by that chapter.
(c) A person licensed pursuant to { - ORS 701.055 - } { +
section 2 of this 2007 Act + } when the solicited transaction is
governed by ORS chapter 701.
(d) A person licensed pursuant to ORS chapter 744 when the
solicited transaction is governed by the Insurance Code.
(e) A person soliciting the sale of a franchise when the
solicited transaction is governed by ORS 650.005 to 650.100.
(f) A person primarily soliciting the sale of a subscription to
or advertising in a newspaper of general circulation.
(g) A person primarily soliciting the sale of a magazine or
periodical, or contractual plans, including book or record clubs:
(A) Under which the seller provides the consumer with a form
which the consumer may use to instruct the seller not to ship the
offered merchandise, and which is regulated by the Federal Trade
Commission trade regulation concerning 'Use of Negative Option
Plans by Sellers in Commerce'; or
(B) Using arrangements such as continuity plans, subscription
arrangements, standing order arrangements, supplements and series
arrangements under which the seller periodically ships
merchandise to a consumer who has consented in advance to receive
such merchandise on a periodic basis.
(h) A person soliciting business from prospective purchasers
who have previously purchased from the business enterprise for
which the person is calling.
(i) A person soliciting without the intent to complete and who
does not complete the sales presentation during the telephone
solicitation and who only completes the sale presentation at a
later face-to-face meeting between the solicitor and the
prospective purchaser, unless at that later meeting the solicitor
collects or attempts to collect payment for delivery of items
purchased.
(j) Any supervised financial institution or parent, subsidiary,
or affiliate thereof. As used in this paragraph, ' supervised
financial institution' means any financial institution or trust
company, as those terms are defined in ORS 706.008, or any
personal property broker, consumer finance lender, commercial
finance lender or insurer that is subject to regulation by an
official or agency of this state or the United States.
(k) A person soliciting the sale of funeral or burial services
regulated by ORS 59.670 and 59.680 or by ORS chapter 692.
(L) A person soliciting the sale of services provided by a
cable television system operating under authority of a franchise
or permit issued by a governmental agency of this state, or
subdivision thereof.
(m) A person or affiliate of a person whose business is
regulated by the Public Utility Commission, or a
telecommunications utility with access lines of 15,000 or less or
a cooperative telephone association.
(n) A person soliciting the sale of a farm product, as defined
in ORS 79.0102, if the solicitation does not result in a sale
which costs the purchaser in excess of $100.
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(o) An issuer or a subsidiary of an issuer that has a class of
securities that is subject to section 12 of the Securities
Exchange Act of 1934 and that is either registered or exempt from
registration under paragraph (A), (B), (C), (E), (F), (G) or (H)
of subsection (g) of that section.
(p) A person soliciting exclusively the sale of telephone
answering services to be provided by that person or that person's
employer.
(q) A person registered under the Charitable Solicitations Act.
SECTION 48. ORS 656.021 is amended to read:
656.021. Notwithstanding ORS 656.029 (1), a person who is
licensed pursuant to { + an application under + } ORS 701.075
and is acting under a contract to perform work described by ORS
chapter 701 shall be considered the subject employer for all
individuals employed by that person.
SECTION 49. ORS 656.027 is amended to read:
656.027. All workers are subject to this chapter except those
nonsubject workers described in the following subsections:
(1) A worker employed as a domestic servant in or about a
private home. For the purposes of this subsection 'domestic
servant' means any worker engaged in household domestic service
by private employment contract, including, but not limited to,
home health workers.
(2) A worker employed to do gardening, maintenance, repair,
remodeling or similar work in or about the private home of the
person employing the worker.
(3)(a) A worker whose employment is casual and either:
(A) The employment is not in the course of the trade, business
or profession of the employer; or
(B) The employment is in the course of the trade, business or
profession of a nonsubject employer.
(b) For the purpose of this subsection, 'casual' refers only to
employments where the work in any 30-day period, without regard
to the number of workers employed, involves a total labor cost of
less than $500.
(4) A person for whom a rule of liability for injury or death
arising out of and in the course of employment is provided by the
laws of the United States.
(5) A worker engaged in the transportation in interstate
commerce of goods, persons or property for hire by rail, water,
aircraft or motor vehicle, and whose employer has no fixed place
of business in this state.
(6) Firefighter and police employees of any city having a
population of more than 200,000 that provides a disability and
retirement system by ordinance or charter.
(7)(a) Sole proprietors, except those described in paragraph
(b) of this subsection. When labor or services are performed
under contract, the sole proprietor must qualify as an
independent contractor.
(b) Sole proprietors actively registered under ORS 671.525 or
licensed under { - ORS 701.035 - } { + section 2 of this 2007
Act + }. When labor or services are performed under contract for
remuneration, notwithstanding ORS 656.005 (30), the sole
proprietor must qualify as an independent contractor. Any sole
proprietor registered under ORS 671.525 or licensed under
{ - ORS 701.035 - } { + section 2 of this 2007 Act + } and
involved in activities subject thereto is conclusively presumed
to be an independent contractor.
(8) Except as provided in subsection (23) of this section,
partners who are not engaged in work performed in direct
Enrolled House Bill 3242 (HB 3242-C) Page 41
connection with the construction, alteration, repair,
improvement, moving or demolition of an improvement on real
property or appurtenances thereto. When labor or services are
performed under contract, the partnership must qualify as an
independent contractor.
(9) Except as provided in subsection (25) of this section,
members, including members who are managers, of limited liability
companies, regardless of the nature of the work performed.
However, members, including members who are managers, of limited
liability companies with more than one member, while engaged in
work performed in direct connection with the construction,
alteration, repair, improvement, moving or demolition of an
improvement on real property or appurtenances thereto, are
subject workers. When labor or services are performed under
contract, the limited liability company must qualify as an
independent contractor.
(10) Except as provided in subsection (24) of this section,
corporate officers who are directors of the corporation and who
have a substantial ownership interest in the corporation,
regardless of the nature of the work performed by such officers,
subject to the following limitations:
(a) If the activities of the corporation are conducted on land
that receives farm use tax assessment pursuant to ORS chapter
308A, corporate officer includes all individuals identified as
directors in the corporate bylaws, regardless of ownership
interest, and who are members of the same family, whether related
by blood, marriage or adoption.
(b) If the activities of the corporation involve the commercial
harvest of timber and all officers of the corporation are members
of the same family and are parents, daughters or sons,
daughters-in-law or sons-in-law or grandchildren, then all such
officers may elect to be nonsubject workers. For all other
corporations involving the commercial harvest of timber, the
maximum number of exempt corporate officers for the corporation
shall be whichever is the greater of the following:
(A) Two corporate officers; or
(B) One corporate officer for each 10 corporate employees.
(c) When labor or services are performed under contract, the
corporation must qualify as an independent contractor.
(11) A person performing services primarily for board and
lodging received from any religious, charitable or relief
organization.
(12) A newspaper carrier utilized in compliance with the
provisions of ORS 656.070 and 656.075.
(13) A person who has been declared an amateur athlete under
the rules of the United States Olympic Committee or the Canadian
Olympic Committee and who receives no remuneration for
performance of services as an athlete other than board, room,
rent, housing, lodging or other reasonable incidental subsistence
allowance, or any amateur sports official who is certified by a
recognized Oregon or national certifying authority, which
requires or provides liability and accident insurance for such
officials. A roster of recognized Oregon and national certifying
authorities will be maintained by the Department of Consumer and
Business Services, from lists of certifying organizations
submitted by the Oregon School Activities Association and the
Oregon Park and Recreation Society.
(14) Volunteer personnel participating in the ACTION programs,
organized under the Domestic Volunteer Service Act of 1973, P.L.
93-113, known as the Foster Grandparent Program and the Senior
Enrolled House Bill 3242 (HB 3242-C) Page 42
Companion Program, whether or not the volunteers receive a
stipend or nominal reimbursement for time and travel expenses.
(15) A person who has an ownership or leasehold interest in
equipment and who furnishes, maintains and operates the
equipment. As used in this subsection 'equipment' means:
(a) A motor vehicle used in the transportation of logs, poles
or piling.
(b) A motor vehicle used in the transportation of rocks,
gravel, sand, dirt or asphalt concrete.
(c) A motor vehicle operated as a taxicab as defined in ORS
825.017.
(d) A motor vehicle used in the transportation of property by a
for-hire motor carrier that is required under ORS 825.100 or
825.104 to possess a certificate or permit.
(16) A person engaged in the transportation of the public for
recreational down-river boating activities on the waters of this
state pursuant to a federal permit when the person furnishes the
equipment necessary for the activity. As used in this subsection,
' recreational down-river boating activities' means those boating
activities for the purpose of recreational fishing, swimming or
sightseeing utilizing a float craft with oars or paddles as the
primary source of power.
(17) A person who performs volunteer ski patrol activities who
receives no wage other than noncash remuneration.
(18) A person 19 years of age or older who contracts with a
newspaper publishing company or independent newspaper dealer or
contractor to distribute newspapers to the general public and
perform or undertake any necessary or attendant functions related
thereto.
(19) A person performing foster parent or adult foster care
duties pursuant to ORS chapter 411, 418, 430 or 443.
(20) A person performing services on a volunteer basis for a
nonprofit, religious, charitable or relief organization, whether
or not such person receives meals or lodging or nominal
reimbursements or vouchers for meals, lodging or expenses.
(21) A person performing services under a property tax work-off
program established under ORS 310.800.
(22) A person who performs service as a caddy at a golf course
in an established program for the training and supervision of
caddies under the direction of a person who is an employee of the
golf course.
(23)(a) Partners who are actively registered under ORS 671.525
or licensed { + + }under { - ORS 701.035 - } { + section 2
of this 2007 Act + } and who have a substantial ownership
interest in a partnership. If all partners are members of the
same family and are parents, spouses, sisters, brothers,
daughters or sons, daughters-in-law or sons-in-law or
grandchildren, all such partners may elect to be nonsubject
workers. For all other partnerships registered under ORS 671.510
to 671.710 or licensed under { - ORS chapter 701 - } { +
section 2 of this 2007 Act + }, the maximum number of exempt
partners shall be whichever is the greater of the following:
(A) Two partners; or
(B) One partner for each 10 partnership employees.
(b) When labor or services are performed under contract for
remuneration, notwithstanding ORS 656.005 (30), the partnership
qualifies as an independent contractor. Any partnership
registered under ORS 671.525 or licensed under { - ORS
701.035 - } { + section 2 of this 2007 Act + } and involved in
Enrolled House Bill 3242 (HB 3242-C) Page 43
activities subject thereto is conclusively presumed to be an
independent contractor.
(24)(a) Corporate officers who are directors of a corporation
actively registered under ORS 671.525 or licensed under { - ORS
701.035 - } { + section 2 of this 2007 Act + } and who have a
substantial ownership interest in the corporation, regardless of
the nature of the work performed. If all officers of the
corporation are members of the same family and are parents,
spouses, sisters, brothers, daughters or sons, daughters-in-law
or sons-in-law or grandchildren, all such officers may elect to
be nonsubject workers. For all other corporations registered
under ORS 671.510 to 671.710 or licensed under { - ORS chapter
701 - } { + section 2 of this 2007 Act + }, the maximum number
of exempt corporate officers shall be whichever is the greater of
the following:
(A) Two corporate officers; or
(B) One corporate officer for each 10 corporate employees.
(b) When labor or services are performed under contract for
remuneration, notwithstanding ORS 656.005 (30), the corporation
qualifies as an independent contractor. Any corporation
registered under ORS 671.525 or licensed under { - ORS
701.035 - } { + section 2 of this 2007 Act + } and involved in
activities subject thereto is conclusively presumed to be an
independent contractor.
(25)(a) Limited liability company members who are members of a
company actively registered under ORS 671.525 or licensed under
{ - ORS 701.035 - } { + section 2 of this 2007 Act + } and
who have a substantial ownership interest in the company,
regardless of the nature of the work performed. If all members of
the company are members of the same family and are parents,
spouses, sisters, brothers, daughters or sons, daughters-in-law
or sons-in-law or grandchildren, all such members may elect to be
nonsubject workers. For all other companies registered under ORS
671.510 to 671.710 or licensed under { - ORS chapter 701 - }
{ + section 2 of this 2007 Act + }, the maximum number of
exempt company members shall be whichever is the greater of the
following:
(A) Two company members; or
(B) One company member for each 10 company employees.
(b) When labor or services are performed under contract for
remuneration, notwithstanding ORS 656.005 (30), the company
qualifies as an independent contractor. Any company registered
under ORS 671.525 or licensed under { - ORS 701.035 - } { +
section 2 of this 2007 Act + } and involved in activities subject
thereto is conclusively presumed to be an independent contractor.
(26) A person serving as a referee or assistant referee in a
youth or adult recreational soccer match whose services are
retained on a match-by-match basis.
(27) A person performing language translator or interpreter
services that are provided for others through an agent or broker.
SECTION 50. ORS 671.540 is amended to read:
671.540. ORS 671.510 to 671.710 and 671.990 (2) do not apply
to:
(1) Any federal or state agency or any political subdivision
performing landscaping work on public property.
(2) Any landscape architect registered under ORS 671.310 to
671.459 and practicing as provided under ORS 671.310 to 671.459.
(3) Landscaping work performed by a landscape maintenance
business if:
Enrolled House Bill 3242 (HB 3242-C) Page 44
(a) The landscaping work is performed for a customer that in a
calendar year receives primarily landscape maintenance services
from the business;
(b) The value of all labor, materials or other items supplied
for landscaping work at a job site does not exceed $500 in a
calendar year; and
(c) The landscaping work is of a casual, minor or
inconsequential nature, as those terms are defined by the State
Landscape Contractors Board by rule.
(4) Installation of fences, decks, arbors, driveways, walkways
or retaining walls if performed by a person or business licensed
with the Construction Contractors Board.
(5) Rough grading of plots and areas of land performed in
conjunction with new or remodeling construction if performed by a
person or business licensed with the Construction Contractors
Board.
(6) Any owner of property who contracts for landscaping work to
be performed by a person licensed under ORS 671.560. The
exception provided by this subsection does not apply to a person
who, in pursuit of an independent business, performs or contracts
for the performance of landscaping work with the intent of
offering for sale before, upon or after completion of the
landscaping work the property upon which the landscaping work is
performed.
(7) Any landscaping work performed by a person on property that
the person owns or in which the person has a legal interest. The
exception provided by this subsection does not apply to a person
who, in pursuit of an independent business, performs or contracts
for the performance of landscaping work with the intent of
offering for sale before, upon or after completion of the
landscaping work the property on which the landscaping work is
performed.
(8) A { + residential + } general contractor licensed under
ORS chapter 701 who performs landscaping work if the total value
of the landscaping is less than $2,500 per residential dwelling
and the landscaping work is performed on residential property for
which the contractor is under contract for the construction of a
new dwelling. The exception provided by this subsection does not
apply to the performance of irrigation work by a
{ + residential + } general contractor. The State Landscape
Contractors Board shall revise the amount specified in this
subsection every five years, beginning in 2003, based on changes
in the Portland-Salem, OR-WA Consumer Price Index for All Urban
Consumers for All Items as published by the Bureau of Labor
Statistics of the United States Department of Labor.
(9) A { + residential + } general contractor licensed under
ORS chapter 701 who performs landscaping work on residential
property that is directly related to local building code
requirements or occupancy ordinances including, but not limited
to, the placement of street trees. The exception provided by this
subsection does not apply to the performance of irrigation work
by a general contractor.
(10) A person engaged in making plans or drawings for the
selection, placement or use of plants or other site features,
unless the plans or drawings are for the purpose of providing
construction details and specifications.
(11) Use by a person other than a landscape contractor of the
title 'landscape designer' when engaged in making plans or
drawings described in subsection (10) of this section.
Enrolled House Bill 3242 (HB 3242-C) Page 45
(12) A person providing recommendations or written
specifications for soil amendments or planting media if the
recommendations or specifications are solely for the purpose of
plant installation.
(13) A person registered under ORS 447.010 to 447.156 when
performing repair and maintenance on piping for irrigation
systems.
(14) An employee, as defined in ORS 657.015, of a { +
residential + } general contractor licensed under ORS chapter 701
when performing work that the contractor may perform under
subsection (8) or (9) of this section.
(15) An employee of a licensed landscaping business when
performing work for the business under the direct supervision of
a licensed landscape contractor.
(16) An employee of a worker leasing company or temporary
service provider, both as defined in ORS 656.850, when performing
work for a licensed landscaping business under the direct
supervision of a licensed landscape contractor.
SECTION 51. { + ORS 701.058 and 701.252 are repealed. + }
SECTION 52. If Senate Bill 94 becomes law, section 10 of this
2007 Act is amended to read:
{ + Sec. 10. + } (1) If an order of the Construction
Contractors Board that determines a { - claim - }
{ + 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 { - claimant - } { + 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 { - claims - }
{ + 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
{ - claims - } { + complaints + }.
(B) If the { - claims - } { + 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 { - claims - } { + 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
{ - claimants - } { + complainants + } may not exceed $3,000.
(b) A 90-day period begins on the date the first
{ - claim - } { + complaint + } is filed with the board.
Subsequent 90-day periods begin on the date the first
{ - claim - } { + complaint + } is filed with the board after
the close of the preceding 90-day period.
(4) If the total { - claims - } { + complaints + } filed
with the board against a residential contractor within 90 days
after the board receives notice of the first { - claim - }
{ + complaint + } against the contractor exceed the amount of
the bond available for those
Enrolled House Bill 3242 (HB 3242-C) Page 46
{ - claims - } { + 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 { - claims - }
{ + complaints + } filed with the board within 90 days after the
first
{ - claim - } { + complaint + } is filed do not exceed the
amount of the bond available for those { - claims - } { +
+ } { + complaints + }, all amounts due as a result of
{ - claims - } { + complaints + } filed within the 90-day
period shall have priority over all { - claims - }
{ + complaints + } subsequently filed until the amount of the
bond available for the payment of { - claims - }
{ + complaints + } is exhausted.
(6) The total amount paid from a residential contractor bond
for costs, interest and attorney fees may not exceed $3,000.
SECTION 53. If Senate Bill 94 becomes law, section 11 of this
2007 Act is amended to read:
{ + Sec. 11. + } (1)(a) Payments from the surety bond of a
commercial contractor pursuant to Construction Contractors Board
order and notice are satisfied in the following priority in any
90-day period:
(A) Board orders as a result of { - claims - }
{ + complaints + } against a commercial contractor by a person
furnishing labor to a contractor or owed employee benefits by a
contractor have payment priority to the full extent of the bond
over all other types of { - claims - } { + complaints + }.
(B) If the { - claims - } { + complaints + } described in
subparagraph (A) of this paragraph do not exhaust the bond, then
amounts due as a result of all other types of small commercial or
large commercial structure { - claims - } { + complaints + }
may be satisfied from the bond, except { - claims - }
{ + complaints + } for costs, interest and attorney fees.
(C) If { - claims - } { + complaints + } described in
subparagraphs (A) and (B) of this paragraph do not exhaust the
bond, then { - claims - } { + complaints + } for costs,
interest and attorney fees resulting from small commercial or
large commercial structure { - claims - } { + complaints + }
may be satisfied from the bond.
(b) A 90-day period begins on the date the first
{ - claim - } { + complaint + } is filed with the board.
Subsequent 90-day periods begin on the date the first
{ - claim - } { + complaint + } is filed with the board after
the close of the preceding 90-day period.
(2) If the total { - claims - } { + complaints + } filed
with the board against a commercial contractor within 90 days
after the board receives notice of the first { - claim - }
{ + complaint + } against the contractor exceed the amount of
the bond available for those
{ - claims - } { + complaints + }, the bond shall be
apportioned as the board determines, subject to the priorities
established under this section.
(3) If the total amounts due as a result of { - claims - }
{ + complaints + } filed with the board within 90 days after the
first
{ - claim - } { + complaint + } is filed do not exceed the
amount of the bond available for those { - claims - } { +
complaints + }, all amounts due as a result of { - claims - }
{ + complaints + } filed within the 90-day period shall have
priority over all { - claims - } { + complaints + }
Enrolled House Bill 3242 (HB 3242-C) Page 47
subsequently filed until the amount of the bond available for the
payment of { - claims - } { + complaints + } is exhausted.
SECTION 54. { + If Senate Bill 605 becomes law and House Bill
2117 does not become law, section 13 of this 2007 Act (amending
ORS 701.005) is repealed and ORS 701.005, as amended by section
1, chapter 511, Oregon Laws 2007 (Enrolled Senate Bill 605), 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. + }
{ - (2) - } { + (4) + } 'Construction debt' means an amount
owed under:
(a) A final order or arbitration award issued by the board; or
(b) A judgment or civil penalty arising from construction
activities within the United States.
{ - (3) - } { + (5) + } 'Contractor' means { + any of the
following:
(a) + }A person { - operating as a general contractor,
residential-only contractor or specialty contractor business or
other person - } who, 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, any building,
highway, road, railroad, excavation or other structure, project,
development or improvement attached to real estate, or to clean
or service chimneys, 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) Any person except a landscape contractor, 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, a lead-based paint inspector
licensed under ORS 701.515 or a cross connection inspector and
backflow assembly tester certified under ORS 448.279.
(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
Enrolled House Bill 3242 (HB 3242-C) Page 48
the improvement of real property, with the intent to sell the
property. + }
{ - (4) - } { + (7) + } 'General contractor' { + :
(a) + } 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.
{ - ' General contractor' does not include specialty
contractors or limited contractors, as described in ORS
701.085. - }
{ + (b) Does not mean a specialty contractor or a residential
limited contractor. + }
{ - (5) - } { + (8) + } '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 thereto. '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.
{ - (6) 'Inspector' means a contractor registered with the
board who inspects or otherwise provides services to a property
owner or other contractor but does not substantively add to or
subtract from a structure. 'Inspector' includes but is not
limited to a home inspector certified under ORS 701.350, a
lead-based paint inspector licensed under ORS 701.515 and a cross
connection inspector and backflow assembly tester certified under
ORS 448.279. 'Inspector' does not include city or county
inspectors acting under ORS 701.225 or an inspector as defined in
ORS 455.715. - }
{ + (9) '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 identified by the
board by rule. + }
{ - (7) - } { + (10) + } 'Large commercial structure' means
a structure that is not a residential structure or small
commercial structure.
{ - (8) 'Licensed developer' means a contractor who owns
property or an interest in property and arranges for construction
work, if the contractor: - }
{ - (a) Engages in the business of arranging for construction
work and performing other activities associated with the
improvement of real property, with the intent to sell the
property; - }
{ - (b) Acts in association with one or more licensed general
contractors and the general contractor or combination of general
contractors have sole responsibility for overseeing all phases of
construction activity on the property; and - }
{ - (c) Does not perform any construction work on the
property. - }
{ - (9) - } { + (11) + } '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 defined as an officer under board rules. The
definition of officer adopted by board rule may include persons
Enrolled House Bill 3242 (HB 3242-C) Page 49
not listed in this subsection who may exercise substantial
control over a business.
{ - (10) 'Residential-only contractor' means a general
contractor or specialty contractor who performs work exclusively
in connection with residential structures and small commercial
structures, and the appurtenances thereto. 'Residential-only
contractor' includes, but is not limited to: - }
{ - (a) A person who 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; - }
{ - (b) 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; - }
{ - (c) 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; or - }
{ - (d) Any person except a landscape contractor, nurseryman,
gardener or person engaged in the commercial harvest of forest
products who is engaged as an independent contractor to remove
trees, prune trees, remove tree limbs or stumps or to engage in
tree or limb guying. - }
{ + (12) '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.
(13) 'Residential developer' means a developer of property that
is zoned for or intended for use compatible with a residential or
small commercial structure. + }
{ - (11) 'Residential structure' means a residence, including
a site-built home, modular home constructed off-site, floating
home as defined in ORS 830.700, condominium unit, manufactured
dwelling or duplex, or a multiunit residential building
consisting of four units or less that is not part of a
multistructure complex of buildings. - }
{ - (12) 'Small commercial structure' means a nonresidential
structure that has a ground area of 4,000 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. - }
{ + (14) 'Residential structure':
(a) 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) Does not mean:
(A) Subject to paragraph (a)(C) of this subsection, a structure
that contains both residential and nonresidential units;
Enrolled House Bill 3242 (HB 3242-C) Page 50
(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.
(15) '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. + }
{ - (13) - } { + (16) + } '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
{ - chapter 446 - } { + 446.395 + }.
SECTION 55. { + If House Bill 2117 becomes law and Senate Bill
605 does not become law, section 13 of this 2007 Act (amending
ORS 701.005) is repealed and ORS 701.005, as amended by section
41, chapter ___, Oregon Laws 2007 (Enrolled House Bill 2117), 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. + }
{ - (2) - } { + (4) + } 'Construction debt' means an amount
owed under:
(a) A final order or arbitration award issued by the board; or
(b) A judgment or civil penalty arising from construction
activities within the United States.
{ - (3) - } { + (5) + } 'Contractor' means { + any of the
following:
(a) + }A person who, for compensation or with the intent to
sell, arranges or undertakes or offers to undertake or submits a
Enrolled House Bill 3242 (HB 3242-C) Page 51
bid to construct, alter, repair, add to, subtract from, improve,
inspect, move, wreck or demolish, for another, any building,
highway, road, railroad, excavation or other structure, project,
development or improvement attached to real estate or to do any
part thereof. { - ' Contractor' includes general contractors,
residential-only contractors and specialty contractors as defined
in this section. - }
{ + (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) Any 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, a lead-based paint inspector
licensed under ORS 701.515 or a cross connection inspector and
backflow assembly tester certified under ORS 448.279.
(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. + }
{ - (4) - } { + (7) + } 'General contractor' { + :
(a) + } 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.
{ - ' General contractor' does not include specialty
contractors or limited contractors, as described in ORS
701.085. - }
{ + (b) Does not mean a specialty contractor or a residential
limited contractor. + }
{ - (5) - } { + (8) + } '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 thereto. '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.
{ - (6) 'Inspector' means a contractor registered with the
board who inspects or otherwise provides services to a property
owner or other contractor but does not substantively add to or
subtract from a structure. 'Inspector' includes but is not
limited to a home inspector certified under ORS 701.350, a
lead-based paint inspector licensed under ORS 701.515 and a cross
connection inspector and backflow assembly tester certified under
ORS 448.279. 'Inspector' does not include city or county
Enrolled House Bill 3242 (HB 3242-C) Page 52
inspectors acting under ORS 701.225 or an inspector as defined in
ORS 455.715. - }
{ + (9) '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 identified by the
board by rule. + }
{ - (7) - } { + (10) + } 'Large commercial structure' means
a structure that is not a residential structure or small
commercial structure.
{ - (8) 'Licensed developer' means a contractor who owns
property or an interest in property and arranges for construction
work, if the contractor: - }
{ - (a) Engages in the business of arranging for construction
work and performing other activities associated with the
improvement of real property, with the intent to sell the
property; - }
{ - (b) Acts in association with one or more licensed general
contractors and the general contractor or combination of general
contractors have sole responsibility for overseeing all phases of
construction activity on the property; and - }
{ - (c) Does not perform any construction work on the
property. - }
{ - (9) - } { + (11) + } '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 defined as an officer under board rules. The
definition of officer adopted by board rule may include persons
not listed in this subsection who may exercise substantial
control over a business.
{ - (10) 'Residential-only contractor' means a general
contractor or specialty contractor who performs work exclusively
in connection with residential structures and small commercial
structures, and the appurtenances thereto. 'Residential-only
contractor' includes, but is not limited to: - }
{ - (a) A person who 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; - }
{ - (b) 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; - }
{ - (c) 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; or - }
{ - (d) Any person except a landscape contracting business,
nurseryman, gardener or person engaged in the commercial harvest
of forest products who is engaged as an independent contractor to
remove trees, prune trees, remove tree limbs or stumps or to
engage in tree or limb guying. - }
{ + (12) 'Residential contractor' means a licensed contractor
that holds an endorsement as a:
(a) Residential general contractor;
Enrolled House Bill 3242 (HB 3242-C) Page 53
(b) Residential specialty contractor;
(c) Residential limited contractor; or
(d) Residential developer.
(13) 'Residential developer' means a developer of property that
is zoned for or intended for use compatible with a residential or
small commercial structure. + }
{ - (11) 'Residential structure' means a residence, including
a site-built home, modular home constructed off-site, floating
home as defined in ORS 830.700, condominium unit, manufactured
dwelling or duplex, or a multiunit residential building
consisting of four units or less that is not part of a
multistructure complex of buildings. - }
{ - (12) 'Small commercial structure' means a nonresidential
structure that has a ground area of 4,000 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. - }
{ + (14) 'Residential structure':
(a) 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) 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.
(15) '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. + }
Enrolled House Bill 3242 (HB 3242-C) Page 54
{ - (13) - } { + (16) + } '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
{ - chapter 446 - } { + 446.395 + }.
SECTION 56. { + If both Senate Bill 605 and House Bill 2117
become law, section 13 of this 2007 Act (amending ORS 701.005) is
repealed and ORS 701.005, as amended by section 1, chapter 511,
Oregon Laws 2007 (Enrolled Senate Bill 605), and section 41,
chapter ___, Oregon Laws 2007 (Enrolled House Bill 2117), 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. + }
{ - (2) - } { + (4) + } 'Construction debt' means an amount
owed under:
(a) A final order or arbitration award issued by the board; or
(b) A judgment or civil penalty arising from construction
activities within the United States.
{ - (3) - } { + (5) + } 'Contractor' means { + any of the
following:
(a) + }A person { - operating as a general contractor,
residential-only contractor or specialty contractor business or
other person - } who, 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, any building,
highway, road, railroad, excavation or other structure, project,
development or improvement attached to real estate, or to clean
or service chimneys, 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) Any 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, a lead-based paint inspector
Enrolled House Bill 3242 (HB 3242-C) Page 55
licensed under ORS 701.515 or a cross connection inspector and
backflow assembly tester certified under ORS 448.279.
(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. + }
{ - (4) - } { + (7) + } 'General contractor' { + :
(a) + } 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.
{ - ' General contractor' does not include specialty
contractors or limited contractors, as described in ORS
701.085. - }
{ + (b) Does not mean a specialty contractor or a residential
limited contractor. + }
{ - (5) - } { + (8) + } '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 thereto. '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.
{ - (6) 'Inspector' means a contractor registered with the
board who inspects or otherwise provides services to a property
owner or other contractor but does not substantively add to or
subtract from a structure. 'Inspector' includes but is not
limited to a home inspector certified under ORS 701.350, a
lead-based paint inspector licensed under ORS 701.515 and a cross
connection inspector and backflow assembly tester certified under
ORS 448.279. 'Inspector' does not include city or county
inspectors acting under ORS 701.225 or an inspector as defined in
ORS 455.715. - }
{ + (9) '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 identified by the
board by rule. + }
{ - (7) - } { + (10) + } 'Large commercial structure' means
a structure that is not a residential structure or small
commercial structure.
{ - (8) 'Licensed developer' means a contractor who owns
property or an interest in property and arranges for construction
work, if the contractor: - }
{ - (a) Engages in the business of arranging for construction
work and performing other activities associated with the
improvement of real property, with the intent to sell the
property; - }
{ - (b) Acts in association with one or more licensed general
contractors and the general contractor or combination of general
contractors have sole responsibility for overseeing all phases of
construction activity on the property; and - }
{ - (c) Does not perform any construction work on the
property. - }
{ - (9) - } { + (11) + } '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.
Enrolled House Bill 3242 (HB 3242-C) Page 56
(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 defined as an officer under board rules. The
definition of officer adopted by board rule may include persons
not listed in this subsection who may exercise substantial
control over a business.
{ - (10) 'Residential-only contractor' means a general
contractor or specialty contractor who performs work exclusively
in connection with residential structures and small commercial
structures, and the appurtenances thereto. 'Residential-only
contractor' includes, but is not limited to: - }
{ - (a) A person who 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; - }
{ - (b) 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; - }
{ - (c) 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; or - }
{ - (d) Any person except a landscape contracting business,
nurseryman, gardener or person engaged in the commercial harvest
of forest products who is engaged as an independent contractor to
remove trees, prune trees, remove tree limbs or stumps or to
engage in tree or limb guying. - }
{ + (12) '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.
(13) 'Residential developer' means a developer of property that
is zoned for or intended for use compatible with a residential or
small commercial structure. + }
{ - (11) 'Residential structure' means a residence, including
a site-built home, modular home constructed off-site, floating
home as defined in ORS 830.700, condominium unit, manufactured
dwelling or duplex, or a multiunit residential building
consisting of four units or less that is not part of a
multistructure complex of buildings. - }
{ - (12) 'Small commercial structure' means a nonresidential
structure that has a ground area of 4,000 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. - }
{ + (14) 'Residential structure':
(a) 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;
Enrolled House Bill 3242 (HB 3242-C) Page 57
(E) A manufactured dwelling; or
(F) A floating home as defined in ORS 830.700.
(b) 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.
(15) '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. + }
{ - (13) - } { + (16) + } '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
{ - chapter 446 - } { + 446.395 + }.
SECTION 57. { + If House Bill 2498 becomes law, section 14 of
this 2007 Act (amending ORS 701.010) is repealed and ORS 701.010,
as amended by section 1, chapter ___, Oregon Laws 2007 (Enrolled
House Bill 2498), is amended to read: + }
701.010. The Construction Contractors Board may adopt rules to
make licensure optional for persons who offer, bid or undertake
to perform work peripheral to construction, as defined by
administrative rule of the board. The following persons are
exempt from licensure under this chapter:
(1) A person who is constructing, altering, improving or
repairing personal property.
(2) A person who is constructing, altering, improving or
repairing a structure located within the boundaries of any site
or reservation under the jurisdiction of the federal government.
(3) A person who furnishes materials, supplies, equipment or
finished product and does not fabricate them into, or consume
them, in the performance of the work of a contractor.
(4) A person working on one structure or project, under one or
more contracts, when the aggregate price of all of that person's
contracts for labor, materials and all other items is less than
$500 and such work is of a casual, minor or inconsequential
Enrolled House Bill 3242 (HB 3242-C) Page 58
nature. This subsection does not apply to a person who advertises
or puts out any sign or card or other device that might indicate
to the public that the person is a contractor.
(5) An owner who contracts for work to be performed by a
licensed contractor. This subsection does not apply to a person
who, in the pursuit of an independent business, constructs,
remodels, repairs or for compensation and with the intent to sell
the structure, arranges to have constructed, remodeled or
repaired a structure with the intent of offering the structure
for sale before, upon or after completion. It is prima facie
evidence that there was an intent of offering the structure for
sale if the person who constructed, remodeled or repaired the
structure or arranged to have the structure constructed,
remodeled or repaired does not occupy the structure after its
completion.
(6) An owner who contracts for one or more licensed contractors
to perform work wholly or partially within the same calendar year
on not more than three existing residential structures of the
owner. This subsection does not apply to an owner contracting for
work that requires a building permit unless the work that
requires a permit is performed by, or under the direction of, a
{ + residential + } general contractor.
(7) A person performing work on a property that person owns or
performing work as the owner's employee, whether the property is
occupied by the owner or not, or a person performing work on that
person's residence, whether or not that person owns the
residence. This subsection does not apply to a person performing
work on a structure owned by that person or the owner's employee,
if the work is performed in the pursuit of an independent
business with the intent of offering the structure for sale
before, upon or after completion.
(8) A person licensed in one of the following trades or
professions when operating within the scope of that license:
(a) An architect licensed by the State Board of Architect
Examiners.
(b) A registered professional engineer licensed by the State
Board of Examiners for Engineering and Land Surveying.
(c) A water well contractor licensed by the Water Resources
Department.
(d) A sewage disposal system installer licensed by the
Department of Environmental Quality.
(e) A landscaping business licensed under ORS 671.510 to
671.710 that constructs fences, decks, arbors, patios, landscape
edging, driveways, walkways or retaining walls and that meets the
applicable bonding requirements under ORS 671.690.
(f) A pesticide operator licensed under ORS 634.116 who does
not conduct inspections for wood destroying organisms for the
transfer of real estate.
(g) An appraiser certified or licensed under ORS chapter 674 or
an appraiser assistant registered under ORS chapter 674 by the
Appraiser Certification and Licensure Board.
(9) A person who performs work subject to this chapter as an
employee of a contractor.
(10) A manufacturer of a manufactured home constructed under
standards established by the federal government.
(11) A person involved in the movement of:
(a) Modular buildings or structures other than manufactured
structures not in excess of 14 feet in width.
Enrolled House Bill 3242 (HB 3242-C) Page 59
(b) Structures not in excess of 16 feet in width when the
structures are being moved by their owner if the owner is not a
contractor required to be licensed under this chapter.
(12) A commercial lending institution or surety company that
arranges for the completion, repair or remodeling of a structure.
As used in this subsection, 'commercial lending institution '
means any bank, mortgage banking company, trust company, savings
bank, savings and loan association, credit union, national
banking association, federal savings and loan association,
insurance company or federal credit union maintaining an office
in this state.
(13) A real estate licensee as defined in ORS 696.010 or the
employee of that licensee when performing work on a structure
that the real estate licensee manages under a contract.
(14) Units of government other than those specified in ORS
701.005 { - (10)(b) and (c) - } { + (5)(c) and (d) + }.
(15) A qualified intermediary in a property exchange that
qualifies under section 1031 of the Internal Revenue Code as
amended and in effect on January 1, 2004, if the qualified
intermediary is not performing construction activities.
(16) A business that supplies personnel to a licensed
contractor for the performance of work under the direction and
supervision of the contractor.
{ + (17) City or county inspectors acting under ORS 701.225
or inspectors described in ORS 455.715. + }
SECTION 58. { + If Senate Bill 94 becomes law, section 18 of
this 2007 Act (amending ORS 701.065) is repealed and ORS 701.065,
as amended by section 6, chapter ___, Oregon Laws 2007 (Enrolled
Senate Bill 94), is amended to read: + }
701.065. (1) Except as provided in subsection (2) of this
section, a contractor may not perfect a construction lien, file a
complaint with the Construction Contractors Board or commence an
arbitration or a court action for compensation for the
performance of any work or for the breach of any contract for
work that is subject to this chapter, unless the contractor had a
valid license issued by the board { + and properly endorsed for
the work performed + }:
(a) At the time the contractor bid or entered into the contract
for performance of the work; and
(b) Continuously while performing the work for which
compensation is sought.
(2) The board, arbitrator or court may not apply the provisions
of subsection (1) of this section to a contractor if the board,
arbitrator or court determines that:
(a) The contractor either did not have a valid license
{ + with a proper endorsement + } at any time required under
subsection (1) of this section, or had an initial issuance of a
valid license, and:
(A) The contractor was not aware of the requirement that the
contractor be licensed { + or properly endorsed for the work
performed + }, and the contractor submitted a completed
application for a license within a number of days established by
the board, but not more than 90 days, of the date the contractor
became aware of the requirement;
(B) At the time the contractor perfected a construction lien or
commenced any proceeding subject to the provisions of subsection
(1) of this section, the contractor was licensed by the
board { + and properly endorsed for the work performed + }; and
(C) Enforcement of the provisions of subsection (1) of this
section would result in substantial injustice to the contractor;
Enrolled House Bill 3242 (HB 3242-C) Page 60
(b) The contractor was licensed by the board for some but not
all of the times required under subsection (1) of this section
and had a lapse in the license and:
(A) The contractor was not aware of the lapse in the license
for more than a number of days established by the board, but not
to exceed 90 days, before submitting a completed application for
license renewal with the board;
(B) Except for perfection of a construction lien and a court
action to foreclose the lien, at the time the contractor
commenced any proceeding subject to the provisions of subsection
(1) of this section the contractor's license was renewed under
ORS 701.115 to include the entire time period for which a license
was required under subsection (1) of this section; and
(C) For perfection of a construction lien and a court action to
foreclose the lien, the contractor's license was renewed under
ORS 701.115 for the entire time period for which a license was
required under subsection (1) of this section, but not later than
90 days following perfection of the lien; { + or + }
{ - (c)(A) The contractor is a licensed developer and did not
have a valid license during all or part of the period described
in subsection (1) of this section; - }
{ - (B) The licensed developer was unaware of the license
requirement and obtained a license within a time established by
the board, not to exceed 90 days after the licensed developer
learned of the requirement; - }
{ - (C) The licensed developer was licensed at the time the
licensed developer perfected the lien or commenced the
proceeding; and - }
{ - (D) Enforcement of subsection (1) of this section would
result in substantial injustice to the licensed developer; or - }
{ - (d) - } { + (c) + } The proceeding:
(A) Is directed against a person or entity that:
(i) Is subject to this chapter or ORS chapter 671 or 672;
(ii) Provides construction or design labor or services of any
kind; or
(iii) Manufactures, distributes, rents or otherwise provides
materials, supplies, equipment, systems or products; and
(B) Arises out of defects, deficiencies or inadequate
performance in the construction, design, labor, services,
materials, supplies, equipment, systems or products provided.
(3) If a contractor falsely swears to information provided
under ORS 701.075 or knowingly violates the provisions of ORS
656.029, 670.600 or 701.075, the contractor may not perfect a
construction lien, file a complaint with the board or commence an
arbitration or a court action for compensation for the
performance of any work on a residential structure or for the
breach of any contract for work on a residential structure that
is subject to this chapter.
SECTION 58a. { + If House Bill 2654 becomes law, section 20 of
this 2007 Act (amending ORS 701.075) is repealed and ORS 701.075,
as amended by section 24, chapter ___, Oregon Laws 2007 (Enrolled
House Bill 2654), is amended to read: + }
701.075. (1) An applicant for a construction contractor license
must submit the application on a form prescribed by the
Construction Contractors Board. The application shall include,
but not be limited to, the following information:
(a) { - Classification of the license - } { + The
endorsement + } being sought.
Enrolled House Bill 3242 (HB 3242-C) Page 61
(b) A list of construction debts involving the applicant, or an
owner or officer of the applicant, if the order, award, penalty
or judgment that establishes the debt was issued within the
preceding five years.
(c) For each person described in paragraphs (h) and (i) of this
subsection, a Social Security number.
(d) Workers' compensation insurance account number, if the
applicant is required to have workers' compensation insurance.
(e) Unemployment insurance account number, if the applicant is
required to have unemployment insurance.
(f) State withholding tax account number, if the applicant is
required to withhold state income tax.
(g) Federal employer identification number, if the applicant is
required to have a federal employer identification number.
(h) The name and address of:
(A) Each partner, if the applicant is a partnership, limited
liability partnership or foreign limited liability partnership.
(B) The general partner, if the applicant is a limited
partnership.
(C) Each joint venturer, if the applicant is a joint venture.
(D) The owner, if the applicant is a sole proprietorship.
(E) The officers, if the applicant is a corporation.
(F) The manager and each member, if the applicant is a
manager-managed limited liability company.
(G) Each member, if the applicant is a member-managed limited
liability company.
(H) The responsible managing individual designated by the
applicant.
(i) The name and address of the following if the applicant is a
partnership, limited liability partnership, foreign limited
liability partnership, joint venture, manager-managed limited
liability company or member-managed limited liability company:
(A) Each partner in a partnership, limited liability
partnership or foreign limited liability partnership that is a
partner, joint venturer or member of the applicant.
(B) Each general partner in a limited partnership that is a
partner, joint venturer or member of the applicant.
(C) Each joint venturer in a joint venture that is a partner,
joint venturer or member of the applicant.
(D) The manager and each member of a manager-managed limited
liability company that is a partner, joint venturer or member of
the applicant.
(E) Each member of a member-managed limited liability company
that is a partner, joint venturer or member of the applicant.
(F) Each officer of a corporation that is a partner, joint
venturer or member of the applicant.
(G) The general partner in a limited partnership that is a
partner, joint venturer or member of the applicant.
(H) Each individual who has a controlling ownership interest
in, or management authority over, the applicant and who meets
criteria adopted by the board by rule.
(j) For each person described in paragraphs (h) and (i) of this
subsection, information as required by board rule regarding the
following if related to construction activities:
(A) A final judgment against the person by a court in any state
entered within five years preceding the application date that
requires the person to pay money to another person or to a public
body if the judgment remains unsatisfied on the application date.
(B) A final order against the person by an administrative
agency in any state issued within five years preceding the
Enrolled House Bill 3242 (HB 3242-C) Page 62
application date that requires the person to pay money to another
person or to a public body if the order remains unsatisfied on
the application date.
(C) A court action against the person in any state pending on
the application date that alleges the person owes money to
another person or to a public body.
(D) An action by an administrative agency in any state pending
on the application date that seeks an order that the person pay
money to another person or to a public body.
(E) A conviction for a crime listed in ORS 701.135
{ - (1)(h) - } { + (1)(i) + } entered within five years
preceding the application date.
(F) An indictment for a crime listed in ORS 701.135
{ - (1)(h) - } { + (1)(i) + } filed within five years preceding
the application date.
(k) The basis on which the applicant meets the standards for
independent contractor status under ORS 670.600.
(2) The application described in subsection (1) of this section
must be accompanied by proof satisfactory to the board that the
applicant:
(a) Is in compliance with ORS 701.078.
(b) Has the legal capacity to enter into contracts.
(3) Subsection (2)(a) of this section does not apply to { - a
licensed - } { + an applicant for licensing with endorsement
solely as a residential or commercial + } developer.
(4) An applicant shall conform to the information provided by
the applicant on the application and to the terms of the
application.
SECTION 59. { + If Senate Bill 94 becomes law and House Bill
2654 does not become law, section 22 of this 2007 Act (amending
ORS 701.085) is repealed and ORS 701.085, as amended by section
7, chapter ___, Oregon Laws 2007 (Enrolled Senate Bill 94), is
amended to read: + }
701.085. (1) An applicant for issuance or renewal of a
contractor license shall file with the Construction Contractors
Board a surety bond with one or more corporate sureties
authorized to do business in this state in the amount set forth
in
{ - subsections (2) to (5) of this section - } { + section 3
or 4 of this 2007 Act + }.
{ + (2) If an applicant for issuance, renewal or an
additional endorsement of a license will hold endorsements as
both a residential contractor and a commercial contractor, the
applicant shall file with the board a surety bond for each
endorsement in the amount set forth in section 3 or 4 of this
2007 Act.
(3) + }The surety bond must provide that the applicant, with
regard to work subject to this chapter, will pay amounts ordered
paid by the board under ORS 701.145 or 701.146. Bonds filed under
this { - subsection - } { + section + } shall remain in
effect for at least one year or until depleted by payments under
ORS 701.150 { + and sections 10 and 11 of this 2007 Act + },
unless the surety sooner cancels the bond. At the discretion of
the surety the bond may be continued for an additional period by
continuation certificate. Except as provided in subsection
{ - (6) - } { + (4) + } of this section, the aggregate
liability of the surety under the bond for complaints against the
contractor may not exceed the penal sum of the bond no matter how
many years the bond is in force. Except as provided in subsection
Enrolled House Bill 3242 (HB 3242-C) Page 63
{ - (6) - } { + (4) + } of this section, an extension by
continuation certificate, reinstatement, reissue or renewal of
the bond may not increase the liability of the surety.
{ - (2) A general contractor or licensed developer shall
obtain a surety bond in the amount of $15,000. - }
{ - (3) A specialty contractor shall obtain a surety bond in
the amount of $10,000. - }
{ - (4) An inspector shall obtain a surety bond in the amount
of $10,000. - }
{ - (5) The board may reduce the amount of the surety bond
required by this section to $5,000 for a contractor upon a
showing that the contractor does not perform work as a contractor
exceeding $40,000 in gross annual volume and does not enter into
contracts that exceed $5,000. The board shall designate the
contractor as a limited contractor. - }
{ - (6) - } { + (4) + }The board, by rule, may require a
licensee to obtain a new surety bond if, pursuant to a board
order for payment of a complaint described in ORS 701.140, the
surety pays an amount out of the bond of the licensee. The new
surety bond must be in the { + applicable + } amount set forth
in { - subsections (2) to (5) of this section - } { + section
3 or 4 of this 2007 Act + }unless a higher amount is required by
a board condition or rule described in subsection { - (7) or
(8) - } { + (5) or (6) + } of this section. The board may allow
a licensee to obtain, instead of a new bond, a certification that
the surety remains liable for the full penal sum of the bond,
notwithstanding payment by the surety on the complaint.
{ - (7) - } { + (5) + } If the amount the licensee must pay
against the bond under { + subsection (3) of + } this section
exceeds the amount of the bond, the board shall suspend the
contractor's license until the amount owed is paid. The board, as
a condition of ending the suspension, may require a contractor
requesting reinstatement of a license to file a bond of an amount
up to five times as much as the amount required ordinarily of a
licensee under { - this section - } { + section 3 or 4 of this
2007 Act + }.
{ - (8) - } { + (6) + } The board by rule may establish
conditions for applicants or persons licensed under this chapter
under which the applicant or licensee must file a bond of an
amount up to five times as much as the amount required ordinarily
of an applicant or licensee under { - this section - } { +
section 3 or 4 of this 2007 Act + }. The board may reduce the
amount of bond it would otherwise require if the contractor
demonstrates satisfactory completion of approved elective classes
on dispute resolution and prevention, basic accounting and record
keeping or such other classes as the board may prescribe.
{ - (9) - } { + (7) + } The bond required under this
section is for the exclusive purpose of payment of final orders
and arbitration awards of the board in accordance with this
chapter.
{ - (10) - } { + (8) + } Upon determination under ORS
701.145 or 701.146 of a complaint against a contractor who holds
a bond required under this section, the board shall notify the
surety on the bond of the final order in a manner determined by
the board by rule. The notification shall include a list of all
complaints upon which a final order has been issued.
{ - (11) - } { + (9) + } A court action may not be
commenced against a surety on a bond required under this section
until 30 days after the date that the surety is notified by the
board under ORS 701.150 that payment is due on the final order.
Enrolled House Bill 3242 (HB 3242-C) Page 64
{ - (12) - } { + (10) + } In any action against a surety on
a bond under this section that is based on the failure of the
surety to pay a final order, the court may award:
(a) Costs;
(b) Reasonable attorney fees to the prevailing party as part of
the costs; and
(c) Twice the amount of any damages that the board ordered the
surety to pay on the complaint, if the surety arbitrarily and
capriciously refused to pay upon order of the board.
SECTION 60. { + If House Bill 2654 becomes law and Senate Bill
94 does not become law, section 22 of this 2007 Act (amending ORS
701.085) is repealed and ORS 701.085, as amended by section 22,
chapter ___, Oregon Laws 2007 (Enrolled House Bill 2654), is
amended to read: + }
701.085. (1) An applicant for issuance or renewal of a
contractor license shall file with the Construction Contractors
Board a surety bond with one or more corporate sureties
authorized to do business in this state in the amount set forth
in
{ - subsections (2) to (5) of this section - } { + section 3
or 4 of this 2007 Act + }.
{ + (2) If an applicant for issuance, renewal or an
additional endorsement of a license will hold endorsements as
both a residential contractor and a commercial contractor, the
applicant shall file with the board a surety bond for each
endorsement in the amount set forth in section 3 or 4 of this
2007 Act.
(3) + }The surety bond must provide that the applicant, with
regard to work subject to this chapter, will pay claims ordered
paid by the board under ORS 701.145 or 701.146. Bonds filed under
this { - subsection - } { + section + } shall remain in
effect for at least one year or until depleted by claims paid
under ORS 701.150 { + and sections 10 and 11 of this 2007
Act + }, unless the surety sooner cancels the bond. At the
discretion of the surety the bond may be continued for an
additional period by continuation certificate. Except as
provided in subsection { - (6) - } { + (4) + } of this
section, the aggregate liability of the surety under the bond for
claims against the bond may not exceed the penal sum of the bond
no matter how many years the bond is in force. Except as provided
in subsection { - (6) - } { + (4) + } of this section, an
extension by continuation certificate, reinstatement, reissue or
renewal of the bond may not increase the liability of the surety.
{ - (2) A general contractor or licensed developer shall
obtain a surety bond in the amount of $20,000. - }
{ - (3) A specialty contractor shall obtain a surety bond in
the amount of $15,000. - }
{ - (4) An inspector shall obtain a surety bond in the amount
of $15,000. - }
{ - (5) The board may reduce the amount of the surety bond
required by this section to $10,000 for a contractor upon a
showing that the contractor does not perform work as a contractor
exceeding $40,000 in gross annual volume and does not enter into
contracts that exceed $5,000. The board shall designate the
contractor as a limited contractor. - }
{ - (6) - } { + (4) + }The board, by rule, may require a
licensee to obtain a new surety bond if, pursuant to a board
order for payment of a claim described in ORS 701.140, the surety
pays a claim out of the bond of the licensee. The new surety bond
must be in the { + applicable + } amount set forth in
Enrolled House Bill 3242 (HB 3242-C) Page 65
{ - subsections (2) to (5) of this section - } { + section 3
or 4 of this 2007 Act + }unless a higher amount is required by a
board condition or rule described in subsection { - (7) or
(8) - } { + (5) or (6) + } of this section. The board may allow
a licensee to obtain, instead of a new bond, a certification that
the surety remains liable for the full penal sum of the bond,
notwithstanding payment by the surety on the claim.
{ - (7) - } { + (5) + } If the amount the licensee must pay
against the bond under { + subsection (3) of + } this section
exceeds the amount of the bond, the board shall suspend the
contractor's license until the amount owed is paid. The board, as
a condition of ending the suspension, may require a contractor
requesting reinstatement of a license to file a bond of an amount
up to five times as much as the amount required ordinarily of a
licensee under { - this section - } { + section 3 or 4 of this
2007 Act + }.
{ - (8) - } { + (6) + } The board by rule may establish
conditions for applicants or persons licensed under this chapter
under which the applicant or licensee must file a bond of an
amount up to five times as much as the amount required ordinarily
of an applicant or licensee under { - this section - } { +
section 3 or 4 of this 2007 Act + }. The board may reduce the
amount of bond it would otherwise require if the contractor
demonstrates satisfactory completion of approved elective classes
on dispute resolution and prevention, basic accounting and record
keeping or such other classes as the board may prescribe.
{ - (9) - } { + (7) + } The bond required under this
section is for the exclusive purpose of payment of final orders
and arbitration awards of the board in accordance with this
chapter.
{ - (10) - } { + (8) + } Upon determination under ORS
701.145 or 701.146 of a claim against a contractor who holds a
bond required under this section, the board shall notify the
surety on the bond of the final order in a manner determined by
the board by rule. The notification shall include a list of all
claims upon which a final order has been issued.
{ - (11) - } { + (9) + } A suit or action may not be
commenced against a surety on a bond required under this section
until 30 days after the date that the surety is notified by the
board under ORS 701.150 that payment is due on the claim.
{ - (12) - } { + (10) + } In any action against a surety on
a bond under this section that is based on the failure of the
surety to pay a claim or on the denial of a claim by the surety,
the court may award:
(a) Costs;
(b) Reasonable attorney fees to the prevailing party as part of
the costs; and
(c) Twice the amount of any damages that the board ordered the
surety to pay on the claim, if the surety arbitrarily and
capriciously refused to pay upon order of the board.
SECTION 61. { + If both Senate Bill 94 and House Bill 2654
become law, section 22 of this 2007 Act (amending ORS 701.085) is
repealed and ORS 701.085, as amended by section 7, chapter ___,
Oregon Laws 2007 (Enrolled Senate Bill 94), and section 22,
chapter ___, Oregon Laws 2007 (Enrolled House Bill 2654), is
amended to read: + }
701.085. (1) An applicant for issuance or renewal of a
contractor license shall file with the Construction Contractors
Board a surety bond with one or more corporate sureties
Enrolled House Bill 3242 (HB 3242-C) Page 66
authorized to do business in this state in the amount set forth
in
{ - subsections (2) to (5) of this section - } { + section 3
or 4 of this 2007 Act + }.
{ + (2) If an applicant for issuance, renewal or an
additional endorsement of a license will hold endorsements as
both a residential contractor and a commercial contractor, the
applicant shall file with the board a surety bond for each
endorsement in the amount set forth in section 3 or 4 of this
2007 Act.
(3) + }The surety bond must provide that the applicant, with
regard to work subject to this chapter, will pay amounts ordered
paid by the board under ORS 701.145 or 701.146. Bonds filed under
this { - subsection - } { + section + } shall remain in
effect for at least one year or until depleted by payments under
ORS 701.150 { + and sections 10 and 11 of this 2007 Act + },
unless the surety sooner cancels the bond. At the discretion of
the surety the bond may be continued for an additional period by
continuation certificate. Except as provided in subsection
{ - (6) - } { + (4) + } of this section, the aggregate
liability of the surety under the bond for complaints against the
contractor may not exceed the penal sum of the bond no matter how
many years the bond is in force. Except as provided in subsection
{ - (6) - } { + (4) + } of this section, an extension by
continuation certificate, reinstatement, reissue or renewal of
the bond may not increase the liability of the surety.
{ - (2) A general contractor or licensed developer shall
obtain a surety bond in the amount of $20,000. - }
{ - (3) A specialty contractor shall obtain a surety bond in
the amount of $15,000. - }
{ - (4) An inspector shall obtain a surety bond in the amount
of $15,000. - }
{ - (5) The board may reduce the amount of the surety bond
required by this section to $10,000 for a contractor upon a
showing that the contractor does not perform work as a contractor
exceeding $40,000 in gross annual volume and does not enter into
contracts that exceed $5,000. The board shall designate the
contractor as a limited contractor. - }
{ - (6) - } { + (4) + }The board, by rule, may require a
licensee to obtain a new surety bond if, pursuant to a board
order for payment of a complaint described in ORS 701.140, the
surety pays an amount out of the bond of the licensee. The new
surety bond must be in the { + applicable + } amount set forth
in { - subsections (2) to (5) of this section - } { + section
3 or 4 of this 2007 Act + }unless a higher amount is required by
a board condition or rule described in subsection { - (7) or
(8) - } { + (5) or (6) + } of this section. The board may allow
a licensee to obtain, instead of a new bond, a certification that
the surety remains liable for the full penal sum of the bond,
notwithstanding payment by the surety on the complaint.
{ - (7) - } { + (5) + } If the amount the licensee must pay
against the bond under { + subsection (3) of + } this section
exceeds the amount of the bond, the board shall suspend the
contractor's license until the amount owed is paid. The board, as
a condition of ending the suspension, may require a contractor
requesting reinstatement of a license to file a bond of an amount
up to five times as much as the amount required ordinarily of a
licensee under { - this section - } { + section 3 or 4 of this
2007 Act + }.
Enrolled House Bill 3242 (HB 3242-C) Page 67
{ - (8) - } { + (6) + } The board by rule may establish
conditions for applicants or persons licensed under this chapter
under which the applicant or licensee must file a bond of an
amount up to five times as much as the amount required ordinarily
of an applicant or licensee under { - this section - } { +
section 3 or 4 of this 2007 Act + }. The board may reduce the
amount of bond it would otherwise require if the contractor
demonstrates satisfactory completion of approved elective classes
on dispute resolution and prevention, basic accounting and record
keeping or such other classes as the board may prescribe.
{ - (9) - } { + (7) + } The bond required under this
section is for the exclusive purpose of payment of final orders
and arbitration awards of the board in accordance with this
chapter.
{ - (10) - } { + (8) + } Upon determination under ORS
701.145 or 701.146 of a complaint against a contractor who holds
a bond required under this section, the board shall notify the
surety on the bond of the final order in a manner determined by
the board by rule. The notification shall include a list of all
complaints upon which a final order has been issued.
{ - (11) - } { + (9) + } A court action may not be
commenced against a surety on a bond required under this section
until 30 days after the date that the surety is notified by the
board under ORS 701.150 that payment is due on the final order.
{ - (12) - } { + (10) + } In any action against a surety on
a bond under this section that is based on the failure of the
surety to pay a final order, the court may award:
(a) Costs;
(b) Reasonable attorney fees to the prevailing party as part of
the costs; and
(c) Twice the amount of any damages that the board ordered the
surety to pay on the complaint, if the surety arbitrarily and
capriciously refused to pay upon order of the board.
SECTION 62. { + If House Bill 2654 does not become law,
section 26 of this 2007 Act (amending ORS 701.135) is repealed
and ORS 701.135, as amended by section 10, chapter 114, Oregon
Laws 2007 (Enrolled House Bill 2109), is amended to read: + }
701.135. (1) The Construction Contractors Board may revoke,
suspend or refuse to issue or reissue a license and the board may
assess a civil penalty as provided in ORS 701.992 if the board
determines after notice and opportunity for hearing:
(a) That the licensee or applicant has violated { - ORS
701.055 or 701.078 or section 4, 5, 6 or 7 of this 2007 Act - }
{ + a provision of this chapter + }.
(b) That the licensee has violated a rule or order of the
board.
(c) That the licensee has knowingly assisted an unlicensed
person to act in violation of this chapter.
{ + (d) That the licensee has knowingly assisted a licensed
contractor to perform work for which the contractor is not
properly endorsed. + }
{ - (d) - } { + (e) + } That a lien was filed on a
structure under ORS 87.010 to 87.060 and 87.075 to 87.093 because
the licensee or applicant wrongfully failed to perform a
contractual duty to pay money to the person claiming the lien.
{ - (e) - } { + (f) + } That the licensee has knowingly
provided false information to the board.
{ - (f) - } { + (g) + } That the licensee has worked
without a construction permit where a permit is required and the
work resulted in a claim being filed with the board. For purposes
Enrolled House Bill 3242 (HB 3242-C) Page 68
of this paragraph, ' construction permit' includes a building
permit, electrical permit, mechanical permit or plumbing permit.
{ - (g) - } { + (h) + } That the number of licensed
contractors working together on the same task on the same job
site, where one of the contractors is { - licensed - } { +
classed + } as exempt under ORS 701.035 (2)(b), exceeded the
following:
(A) Two sole proprietors;
(B) One partnership;
(C) One corporation; or
(D) One limited liability company.
{ - (h) - } { + (i) + } Consistent with the provisions of
ORS 670.280, that the licensee or applicant has been convicted of
one of the following crimes:
(A) Murder;
(B) Assault in the first degree;
(C) Kidnapping;
(D) Rape, sodomy or unlawful sexual penetration;
(E) Sexual abuse;
(F) Arson in the first degree;
(G) Robbery in the first degree;
(H) Theft in the first degree; or
(I) Theft by extortion.
{ - (i) - } { + (j) + } That the licensee or applicant has
not, within 90 days after the date when payment was received from
the public contracting agency, or contractor in the case of a
subcontractor, made payment to any person for supplying labor or
materials contracted for with a public contract for a public
improvement plus the amount of interest due.
{ - (j) - } { + (k) + } That the licensee or applicant has
repeatedly reported bad faith or false claims of nonpayment
against contractors or subcontractors.
{ - (k) - } { + (L) + } That the licensee or applicant has
engaged in conduct as a contractor that is dishonest or
fraudulent and that the board finds injurious to the welfare of
the public.
(2)(a) The administrator of the board, in accordance with
administrative rules adopted by the board and after setting forth
specific reasons for the findings, may suspend or refuse to renew
a license without hearing in any case where the administrator
finds a serious danger to the public welfare, including but not
limited to:
(A) Lack of a surety bond required by ORS 701.085;
(B) Lack of liability insurance required by ORS 701.105;
(C) Hiring employees while { - licensed - } { + classed + }
as exempt under ORS 701.035; or
(D) Conduct as a construction contractor that is dishonest or
fraudulent.
(b) If the licensee or applicant demands a hearing within 90
days after the date of notice to the licensee or applicant of the
suspension or refusal to renew, then a hearing must be granted to
the licensee or applicant as soon as practicable after the
demand, and the administrator shall issue an order pursuant to
the hearing as required by ORS chapter 183 confirming, altering
or revoking the administrator's earlier order. Notwithstanding
ORS 670.325, a hearing need not be held where the order of
suspension or refusal to renew is accompanied by or is pursuant
to a citation for violation that is subject to judicial
determination in any court of this state, and the order by its
Enrolled House Bill 3242 (HB 3242-C) Page 69
terms will terminate in case of final judgment in favor of the
licensee or applicant.
(3) In addition to all other remedies, if it appears to the
board that a person has engaged in, or is engaging in, any act,
practice or transaction that violates the provisions of this
chapter, the board may direct the Attorney General or the
district attorney of the county in which the act, practice or
transaction occurs, to apply to the court for an injunction
restraining the person from violating the provisions of this
chapter. An injunction may not issue for failure to maintain the
list provided for in section 4 { - of this 2007 Act - } { + ,
chapter 114, Oregon Laws 2007 (Enrolled House Bill 2109), + }
unless the court determines that the failure is intentional.
(4) A certified copy of the record of conviction shall be
conclusive evidence of a conviction under subsection
{ - (1)(h) - } { + (1)(i) + } of this section.
(5) If the board suspends or revokes the license of an
individual contractor or contractor business for a violation of
subsection { - (1)(g) - } { + (1)(h) + } of this section, the
board may not restore or reissue the license unless the
individual contractor or a responsible managing individual, as
defined in ORS 701.078, for the contractor business has
successfully completed the training and testing described in ORS
701.072.
SECTION 63. { + If House Bill 2654 becomes law, section 26 of
this 2007 Act (amending ORS 701.135) is repealed and ORS 701.135,
as amended by section 10, chapter 114, Oregon Laws 2007 (Enrolled
House Bill 2109), and section 28b, chapter ___, Oregon Laws 2007
(Enrolled House Bill 2654), is amended to read: + }
701.135. (1) The Construction Contractors Board may revoke,
suspend or refuse to issue or reissue a license and the board may
assess a civil penalty as provided in ORS 701.992 if the board
determines after notice and opportunity for hearing:
(a) That the licensee or applicant has violated a provision of
{ - ORS 701.055 or 701.078 or section 2 (1), 4 or 7, chapter
114, Oregon Laws 2007 (Enrolled House Bill 2109), or section 7,
11 or 13 of this 2007 Act or a rule adopted under section 14 (4)
of this 2007 Act - } { + this chapter + }.
(b) That the licensee has violated a rule or order of the
board.
(c) That the licensee has knowingly assisted an unlicensed
person to act in violation of this chapter.
{ + (d) That the licensee has knowingly assisted a licensed
contractor to perform work for which the contractor is not
properly endorsed. + }
{ - (d) - } { + (e) + } That a lien was filed on a
structure under ORS 87.010 to 87.060 and 87.075 to 87.093 because
the licensee or applicant wrongfully failed to perform a
contractual duty to pay money to the person claiming the lien.
{ - (e) - } { + (f) + } That the licensee has knowingly
provided false information to the board.
{ - (f) - } { + (g) + } That the licensee has worked
without a construction permit where a permit is required and the
work resulted in a claim being filed with the board. For purposes
of this paragraph, ' construction permit' includes a building
permit, electrical permit, mechanical permit or plumbing permit.
{ - (g) - } { + (h) + } That the number of licensed
contractors working together on the same task on the same job
site, where one of the contractors is { - licensed - }
Enrolled House Bill 3242 (HB 3242-C) Page 70
{ + classed + } as exempt under ORS 701.035 (2)(b), exceeded the
following:
(A) Two sole proprietors;
(B) One partnership;
(C) One corporation; or
(D) One limited liability company.
{ - (h) - } { + (i) + } Consistent with the provisions of
ORS 670.280, that the licensee or applicant, or an owner or
officer of the licensee or applicant has been convicted of one of
the following crimes in this state or an equivalent crime in
another state:
(A) Murder;
(B) Assault in the first degree;
(C) Kidnapping;
(D) Rape, sodomy or unlawful sexual penetration;
(E) Sexual abuse;
(F) Arson in the first degree;
(G) Robbery in the first degree;
(H) Theft in the first degree; or
(I) Theft by extortion.
{ - (i) - } { + (j) + } That the licensee or applicant has
not, within 90 days after the date when payment was received from
the public contracting agency, or contractor in the case of a
subcontractor, made payment to any person for supplying labor or
materials contracted for with a public contract for a public
improvement plus the amount of interest due.
{ - (j) - } { + (k) + } That the licensee or applicant has
repeatedly reported bad faith or false claims of nonpayment
against contractors or subcontractors.
{ - (k) - } { + (L) + } That the licensee or applicant has
engaged in conduct as a contractor that is dishonest or
fraudulent and that the board finds injurious to the welfare of
the public.
(2) The board may revoke, suspend or refuse to issue or reissue
a license if the board determines after notice and opportunity
for hearing that an applicant or licensee is unfit for licensure
based upon information submitted under ORS 701.075 or discovered
by a board investigation under ORS 701.225.
(3) The board may assess a civil penalty as provided in ORS
701.992 if the board determines after notice and opportunity for
hearing that any person has violated { - ORS 701.055 (1) - }
{ + section 2 of this 2007 Act + }.
(4)(a) The administrator of the board, in accordance with
administrative rules adopted by the board and after setting forth
specific reasons for the findings, may suspend or refuse to renew
a license without hearing in any case where the administrator
finds a serious danger to the public welfare, including but not
limited to:
(A) Lack of a surety bond required by ORS 701.085;
(B) Lack of liability insurance required by ORS 701.105;
(C) Hiring employees while { - licensed - } { + classed + }
as exempt under ORS 701.035;
(D) Conduct as a construction contractor that is dishonest or
fraudulent; or
(E) Failure to pay a construction debt.
(b) If the licensee or applicant demands a hearing within 90
days after the date of notice to the licensee or applicant of the
suspension or refusal to renew, then a hearing must be granted to
the licensee or applicant as soon as practicable after the
demand, and the administrator shall issue, pursuant to the
Enrolled House Bill 3242 (HB 3242-C) Page 71
hearing as required by ORS chapter 183, an order confirming,
altering or revoking the administrator's earlier order.
Notwithstanding ORS 670.325, a hearing need not be held where the
order of suspension or refusal to renew is accompanied by or is
pursuant to a citation for violation that is subject to judicial
determination in any court of this state, and the order by its
terms will terminate in case of final judgment in favor of the
licensee or applicant.
(5)(a) In addition to all other remedies, if the board has
reason to believe that a person is engaging in an act, practice
or transaction that violates this chapter or a board rule, the
board may issue an order directing the person to cease the act or
to take corrective action.
(b) The board shall mail a copy of an order issued under this
subsection to the person by first class mail with certificate of
mailing. The board shall include with the order a notice
informing the person of the right to request a hearing concerning
the order. The notice shall inform the person that any hearing
request must be received by the board no later than 21 days after
the date the order was mailed by the board.
(c) If the board receives a timely request for a hearing
concerning an order issued under this subsection, the board shall
schedule the hearing no later than 30 days after receiving the
request. The board shall mail written notice of the hearing to
the person by first class mail with certificate of mailing no
later than seven days before the scheduled hearing date.
(d) An order described in this subsection becomes final if the
person does not file a timely request for a hearing concerning
the order or fails to appear at the requested hearing as
scheduled.
(e) The issuance of a board order under this subsection is
subject to ORS 183.413 to 183.497.
(6) In addition to all other remedies, if it appears to the
board that a person has engaged in, or is engaging in, any act,
practice or transaction that violates the provisions of this
chapter, the board may direct the Attorney General or the
district attorney of the county in which the act, practice or
transaction occurs, to apply to the court for an injunction
restraining the person from violating the provisions of this
chapter. An injunction may not issue for failure to maintain the
list provided for in section 4, chapter 114, Oregon Laws 2007
(Enrolled House Bill 2109), unless the court determines that the
failure is intentional.
(7) A certified copy of the record of conviction shall be
conclusive evidence of a conviction under subsection
{ - (1)(h) - } { + (1)(i) + } of this section.
(8) If the board suspends or revokes the license of an
individual contractor or contractor business for a violation of
subsection { - (1)(g) - } { + (1)(h) + } of this section, the
board may not restore or reissue the license unless the
individual contractor or a responsible managing individual for
the contractor business has successfully completed the training
and testing described in ORS 701.072.
SECTION 64. { + If Senate Bill 94 becomes law, section 28 of
this 2007 Act (amending ORS 701.139) is repealed and ORS 701.139,
as amended by section 11, chapter ___, Oregon Laws 2007 (Enrolled
Senate Bill 94), is amended to read: + }
701.139. { - Except as provided in ORS 701.148 (2), the
Construction Contractors Board may resolve a dispute against a
licensed contractor only if a complaint is made against the
Enrolled House Bill 3242 (HB 3242-C) Page 72
contractor's surety bond required by ORS 701.085. In order to
have access to the bond, - } { + The Construction Contractors
Board may determine the validity of a complaint described in ORS
701.140 filed against a licensed contractor. + } A person must
file { - a - } { + the + } complaint { - of a type
described in ORS 701.140 - } within the applicable time
limitation described in ORS 701.143. The complaint must be filed
and resolved as follows:
{ + (1) A complaint against a residential contractor that is
not also endorsed as a commercial contractor must be resolved as
provided in ORS 701.145.
(2) A complaint against a commercial contractor that is not
also endorsed as a residential contractor must be resolved as
provided in ORS 701.146.
(3) A complaint against a contractor that is endorsed as both a
residential contractor and a commercial contractor: + }
{ - (1) - } { + (a) + } { - A complaint - } That
involves work on a residential structure or an appurtenance to a
residential structure must be resolved as provided under ORS
701.145.
{ - (2) - } { + (b) + } { - A complaint - } That
involves work on a small commercial structure or an appurtenance
to a small commercial structure may be resolved as provided in
ORS 701.145 or 701.146 { + , at the complainant's election + }.
{ - (3) - } { + (c) + } { - Except as provided in
subsections (4) and (5) of this section, a complaint - } That
involves work on a large commercial structure or an appurtenance
to a large commercial structure must be resolved as provided in
ORS 701.146.
{ - (4) A complaint by an owner that involves work on a large
commercial structure or an appurtenance to a large commercial
structure when the total contract involved in the complaint is
$25,000 or less may be resolved as provided in ORS 701.145 or
701.146. - } .
{ - (5) - } { + (4) + } Notwithstanding subsections (1) to
{ - (4) - } { + (3) + } of this section { + and except as
provided in ORS 701.148 + }, with prior agreement of the
complainant and the licensed contractor, a complaint may be
resolved by the board through binding arbitration under ORS
701.148.
SECTION 65. { + If Senate Bill 94 becomes law, section 29 of
this 2007 Act (amending ORS 701.140) is repealed and ORS 701.140,
as amended by section 12, chapter ___, Oregon Laws 2007 (Enrolled
Senate Bill 94), is amended to read: + }
701.140. A complaint { - made against a licensed contractor's
bond required by ORS 701.085 - } { + under ORS 701.139 + } must
arise from the performance, or a contract for the performance, of
work that
{ - is subject to this chapter - } { + 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
Enrolled House Bill 3242 (HB 3242-C) Page 73
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; { - and - }
(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
{ + 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 66. { + If Senate Bill 94 becomes law, section 30 of
this 2007 Act (amending ORS 701.145) is repealed and ORS 701.145,
as amended by section 14, chapter ___, Oregon Laws 2007 (Enrolled
Senate Bill 94), is amended to read: + }
701.145. For a complaint described in ORS 701.139 (1)
{ - involving work on a residential structure or an
appurtenance to a residential structure, a complaint described in
ORS 701.139 (2) involving work on a small commercial structure or
an appurtenance to a small commercial structure that is not
resolved under ORS 701.146 or an owner's complaint described in
ORS 701.139 (4) involving work on a large commercial structure or
an appurtenance to a large commercial structure that is not
resolved under ORS 701.146 - } { + or (3)(a) or a complaint
under ORS 701.139 (3)(b) that a complainant elects to have
resolved under this section + }:
(1) The complainant must file the complaint with the
Construction Contractors Board in a form prescribed by the board.
(2) The board may suspend processing of the complaint if:
(a) The same facts and issues involved in the complaint have
been submitted to a court of competent jurisdiction for
determination or have been submitted to any other entity
authorized by law or the parties to effect a resolution or
settlement; or
(b) The board determines that the nature or complexity of the
dispute described in the complaint is such that a court is the
appropriate forum for the adjudication of the dispute.
(3) The board may dismiss or close the complaint as established
by rule of the board if any of the following conditions apply:
(a) The complainant does not respond to a board request and the
request is necessary to the board's investigation of the
complaint.
(b) The complainant does not allow the board to conduct one or
more on-site meetings to mediate or investigate the complaint.
Enrolled House Bill 3242 (HB 3242-C) Page 74
(c) The complainant does not permit the contractor against whom
the complaint is filed to be present at an on-site investigation
made by the board.
(d) The board determines that the contractor against whom the
complaint is filed is capable of complying with recommendations
made by the board relative to the complaint, but the complainant
does not permit the contractor to comply with the
recommendations. The board may refuse to accept or further
process a complaint under this paragraph only if the contractor
was licensed at the time the work was first performed and is
licensed at the time the board makes its recommendations.
(e) The amount in controversy is less than an amount adopted by
the board and not more than $250.
(4) Upon acceptance of the complaint, the board shall give
notice to the contractor against whom the complaint is made and
shall initiate proceedings to determine the validity of the
complaint. If, after investigation, the board determines that a
violation of this chapter or of any rule adopted thereunder has
occurred, or damage has been caused by the contractor, the board
may recommend to the contractor such action as the board
considers appropriate to compensate the complainant. If the
contractor performs accordingly, the board shall give that fact
due consideration in any subsequent disciplinary proceeding
brought by the board. The board may conduct one or more on-site
meetings to mediate or investigate the complaint.
(5) Subject to ORS 701.148, if the board is unable to resolve
the complaint under subsection (4) of this section, the board may
issue a contested case notice under ORS 183.415 and:
(a) Issue a proposed default order under ORS 183.415 to become
effective only if a party does not request a contested case
hearing; or
(b) Refer the matter for hearing.
(6) The board shall send a copy of the notice and any proposed
order described in subsection (5) of this section to the surety
on the contractor bond required by ORS 701.085.
SECTION 67. { + If Senate Bill 94 becomes law, section 31 of
this 2007 Act (amending ORS 701.146) is repealed and ORS 701.146,
as amended by section 15, chapter ___, Oregon Laws 2007 (Enrolled
Senate Bill 94), is amended to read: + }
701.146. For a complaint described in ORS 701.139 { - (3)
involving work on a large commercial structure or an appurtenance
to a large commercial structure, a complaint described in ORS
701.139 (2) involving work on a small commercial structure or an
appurtenance to a small commercial structure that is not resolved
under ORS 701.145 or an owner's complaint described in ORS
701.139 (4) involving work on a large commercial structure or an
appurtenance to a large commercial structure that is not resolved
under ORS 701.145 - } { + (2) or (3)(c) or a complaint under
ORS 701.139 (3)(b) that a complainant elects to have resolved
under this section + }:
(1) The person seeking to file the complaint with the
Construction Contractors Board must:
(a) Bring an action on the dispute against the licensed
contractor in a court of competent jurisdiction; or
(b) Initiate a proceeding to resolve the dispute through
binding arbitration substantially in conformance with ORS 36.600
to 36.740.
(2) The complainant must file the complaint with the
Construction Contractors Board by delivering to the board a copy
of the complainant's court pleading or the demand for arbitration
Enrolled House Bill 3242 (HB 3242-C) Page 75
or other document necessary to initiate arbitration. The
pleading, demand or other document must be accompanied by a
completed board complaint form. The complainant must also give
notice to the surety on the bond by delivering to the surety a
copy of the complainant's court pleading or the demand for
arbitration or other document necessary to initiate arbitration
and a copy of the completed board complaint form. Delivery to the
board and the surety must be accomplished by certified mail,
return receipt requested, no later than the earlier of:
(a) The 90th day after filing the court action or after filing
or making the arbitration demand or other initiation of
arbitration;
(b) The 14th day before the first day of trial or arbitration;
or
(c) The 30th day before:
(A) The court issues a judgment in the action; or
(B) The arbitrator issues an award on the arbitration.
(3) Filing the complaint with the board under subsection (2) of
this section constitutes filing the complaint for purposes of
establishing timeliness of the complaint under ORS 701.143 and
priority of the complaint for possible payment from the bond
under
{ - ORS 701.150 - } { + section 11 of this 2007 Act + }.
(4) Except as provided in this subsection and subsection (7) of
this section, if the complainant properly gives notice to the
surety under subsection (2) of this section, a judgment or award
against the contractor entered in the action or arbitration is
binding on the surety. If the complainant delivers the notice
required under subsection (2) of this section to the wrong
surety, the surety receiving the notice may avoid being bound by
a judgment or award by delivering notice of the mistake to the
complainant or the complainant's attorney of record, and to the
board, on or before the 30th day after the surety receives notice
under subsection (2) of this section. Delivery of the notice of
mistake must be by certified mail, return receipt requested, or
by facsimile machine or other form of transmission with an
acknowledgment of receipt.
(5) A surety under subsection (2) of this section has an
absolute right to intervene in an action or arbitration brought
or initiated under subsection (1) of this section. A complainant
may not join a surety as a party to an action or arbitration
unless the complainant disputes the validity or timeliness of the
surety's notice of mistake or the surety disputes the validity or
timeliness of the delivery to the surety of the notice required
by subsection (2) of this section. If the surety elects to
intervene or is joined as a party, the surety is bound by all
issues of fact and law determined by the court or arbitrator and
may not seek board review of those determinations.
(6) If a court issues a judgment on an action, or reduces an
arbitration award to judgment, against a contractor on a
complaint described in subsection (1) of this section, the
complainant must deliver a certified copy of the judgment to the
board and to the surety no later than the 30th day after entry of
the judgment in order to maintain the complaint and possibly
receive payment from the bond. The entry of a final judgment
against the contractor concludes the contractor's involvement in
any proceedings to determine whether the complaint is subject to
payment from the bond. The complainant and the surety are the
only parties to the administrative process set forth in
subsection (7) of this section.
Enrolled House Bill 3242 (HB 3242-C) Page 76
(7) Upon receipt of a timely delivered certified copy of the
judgment as described in subsection (6) of this section, the
board shall issue a proposed order in the amount of the judgment
together with any costs, interest and attorney fees awarded under
the judgment, to the extent that the judgment, costs, interest
and fees are within the jurisdiction of the board. The board's
determination of the complaint is limited to whether the
complaint comes within the jurisdiction of the board and is
subject to payment by the surety. The board shall issue the
proposed order in a form that indicates the surety's maximum
liability to the complainant. If a hearing is not requested
within the time set forth in the proposed order, the proposed
order becomes final without any further action by the board. If a
hearing is requested, unless review of an issue is precluded
under subsection (5) of this section, the board may determine:
(a) Whether the complaint was timely filed with the board as
provided in ORS 701.143.
(b) Whether the surety received timely notice as provided in
subsections (2) and (6) of this section.
(c) Whether the complaint is for work subject to this chapter.
(d) The extent of the surety's liability to the complainant.
SECTION 68. { + If Senate Bill 94 becomes law, section 32 of
this 2007 Act (amending ORS 701.148) is repealed and ORS 701.148,
as amended by section 17, chapter ___, Oregon Laws 2007 (Enrolled
Senate Bill 94), is amended to read: + }
701.148. (1) Subject to subsection (4) of this section, if the
resolution of a complaint under ORS 701.145 requires a hearing,
the Construction Contractors Board may require that the hearing
be conducted as a binding arbitration under rules adopted by the
board under subsection (3) of this section. This subsection does
not authorize the board to require binding arbitration of a
complaint that is subject to ORS 701.146.
(2) The board may use mediation or arbitration to resolve a
construction dispute between any parties who agree to follow the
rules of the board, { - including but not limited to parties to
a complaint that is subject to ORS 701.146 - } { + other than a
dispute involving work on a large commercial structure + }.
(3) Except as provided in this subsection, rules adopted by the
board to regulate arbitration under subsections (1) and (2) of
this section must substantially conform with the provisions of
ORS 36.600, 36.610 to 36.630, 36.635 (2), 36.640, 36.645 (2),
36.650 to 36.680, 36.685 (1) and 36.690 to 36.740. The rules may:
(a) Require that a hearing under ORS 183.413 to 183.470 be
conducted for issues for which a petition could be filed under
ORS 36.615, 36.620, 36.625 and 36.640;
(b) Limit orders and awards made by the arbitrator as necessary
to comply with this chapter;
(c) Require that a request that an arbitrator modify or correct
an award under ORS 36.690 be submitted in a form specified by the
rule;
(d) Require that a petition under ORS 36.705 (2) or 36.710 (1)
be filed in a shorter period of time than provided by ORS 36.705
and 36.710; and
(e) Include any other provision necessary to conform the
arbitration to this chapter.
(4) A party to a complaint that is subject to a board order of
binding arbitration under subsection (1) of this section may
avoid the arbitration if the party requests to have the complaint
resolved through a contested case hearing or files a court
action. A party making a hearing request or filing a court
Enrolled House Bill 3242 (HB 3242-C) Page 77
action under this subsection is subject to the following
provisions:
(a) If the party requests to have a complaint resolved through
a contested case hearing, the party must, within the time
specified in paragraph (c) of this subsection, deliver the
request in writing to the board and to all parties entitled by
board rule to receive a copy of the request.
(b) If the party files a court action, the party must, within
the time specified in paragraph (c) of this subsection, deliver a
copy of the party's court pleading to the board and to all
persons entitled by board rule to receive a copy of the pleading.
If the party filing the court action is the complainant to the
board, the complainant must plead all facts and issues of the
board complaint in the court action. If the court action is filed
by the contractor against whom a board complaint is alleged, the
court action must be an action for damages, an action for
declaratory judgment or another action that allows the board
complainant to file a response pleading all facts and issues of
the board complaint. The board complainant has the burden of
proving the elements of the board complaint in a court action
described in this paragraph.
(c) A party that is subject to paragraph (a) or (b) of this
subsection must deliver the contested case hearing request or the
copy of the party's court pleading to the board as described in
paragraphs (a) and (b) of this subsection no later than the 30th
day after the board sends notice that an arbitration hearing has
been scheduled. Failure to timely deliver a request or court
pleading under this paragraph constitutes consent to the binding
arbitration.
(d) If a party makes a timely request under paragraph (a) of
this subsection for a contested case hearing and another party
timely files a court action and complies with paragraph (b) of
this subsection, the filing of the court action supersedes the
request for a contested case hearing.
(e) A party may not withdraw a request made in compliance with
paragraph (a) of this subsection unless all parties agree to the
withdrawal.
(f) The board may adopt a rule that a contested case hearing
for a complaint seeking less than $1,000 is not available under
this subsection.
(g) The provisions of paragraph (b) of this subsection are in
addition to any other requirements imposed by law regarding the
filing of a court action.
(5) The board may refuse to accept a dispute for mediation or
arbitration under subsection (1) or (2) of this section if the
board determines that the nature or complexity of the dispute is
such that a court or other forum is more appropriate for
resolution of the dispute.
SECTION 69. { + If Senate Bill 94 becomes law, section 33 of
this 2007 Act (amending ORS 701.150) is repealed and ORS 701.150,
as amended by section 19, chapter ___, Oregon Laws 2007 (Enrolled
Senate Bill 94), is amended to read: + }
701.150. (1) { + A Construction Contractors Board final order
that is not paid by the contractor and that:
(a) Arises out of a complaint filed under ORS 701.145 must be
satisfied from a bond required for a residential contractor.
(b) Arises out of a complaint filed under ORS 701.146 must be
satisfied from a bond required for a commercial contractor.
(2) + } If a { - Construction Contractors - } board final
order is not paid by the contractor, the board shall notify the
Enrolled House Bill 3242 (HB 3242-C) Page 78
surety on the bond. The surety may not pay on a complaint until
the surety receives notice from the board that the complaint is
ready for payment.
{ - (2) If an order of the 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. - }
{ - (3) 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. - }
{ - (4) Payments from the surety bond of a contractor
pursuant to board order and notice are satisfied in the following
priority in any 90-day period. 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. Within a
90-day period: - }
{ - (a) Board orders as a result of complaints against a
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 paragraph (a) of this
subsection 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. - }
{ - (c) If payments involving residential and small
commercial structures do not exhaust the bond, board orders and
notice involving large commercial structure complaints are
satisfied in the following priority, except that the total amount
paid from any one bond to nonowner complainants may not exceed
$3,000: - }
{ - (A) Labor, including employee benefits. - }
{ - (B) All other complaints involving large commercial
structures except costs, interest and attorney fees. - }
{ - (C) Any costs, interest and attorney fees the plaintiff
may be entitled to recover. - }
{ - (d) If the total complaints filed with the board against
a 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. - }
{ - (e) 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. - }
{ - (5) - } { + (3) + } Notwithstanding { - subsection
(4) of this section - } { + sections 10 and 11 of this 2007
Act + }, a bond is not subject to payment for a complaint that is
filed more than 14 months after the earlier of:
Enrolled House Bill 3242 (HB 3242-C) Page 79
(a) The expiration or cancellation date of the license that was
in force when the work that is the subject of the complaint was
completed or abandoned; or
(b) The date that the surety canceled the bond.
{ - (6) The total amount paid from any one bond for costs,
interest and attorney fees may not exceed $3,000. - }
SECTION 70. { + (1) Sections 3 to 6, 8 and 10 to 12 of this
2007 Act, the amendments to sections 10 and 11 of this 2007 Act
by sections 52 and 53 of this 2007 Act, the amendments to ORS
18.635, 18.800, 205.126, 279C.375, 656.021, 701.005, 701.010,
701.060, 701.072, 701.075, 701.078, 701.085, 701.105, 701.138,
701.139, 701.140, 701.145, 701.146, 701.148, 701.150, 701.205 and
701.235 by sections 13, 14, 17, 19 to 24, 27 to 34, 36, 39 to 43,
48, 54 to 57, 58a, 59 to 61 and 64 to 69 of this 2007 Act and the
repeal of ORS 701.058 and 701.252 by section 51 of this 2007 Act
become operative July 1, 2008.
(2) Sections 3, 4 and 8 of this 2007 Act and the amendments to
ORS 656.021, 701.060, 701.075, 701.085 and 701.105 by sections
17, 20, 22 to 24, 48, 58a and 59 to 61 of this 2007 Act apply to
licenses issued or renewed on or after July 1, 2008.
(3) Sections 10 and 11 of this 2007 Act and the amendments to
ORS 18.635, 18.800, 205.126, 701.139, 701.140, 701.145, 701.146,
701.150 and 701.235 by sections 28 to 31, 33, 36, 39 to 41, 64 to
67 and 69 of this 2007 Act apply to claims or complaints filed
against persons whose contractor licenses are issued or renewed
on or after July 1, 2008.
(4) Sections 2 and 9 of this 2007 Act, the amendments to
section 6 of this 2007 Act by section 7 of this 2007 Act and the
amendments to ORS 279C.465, 279C.585, 479.940, 646.551, 656.027,
671.540, 701.035, 701.055, 701.065, 701.115, 701.135, 701.230,
701.990 and 701.992 and sections 2 and 5, chapter 114, Oregon
Laws 2007 (Enrolled House Bill 2109), by sections 15, 16, 16a,
16b, 18, 25, 26, 35, 37, 38, 44 to 47, 49, 50, 58, 62 and 63 of
this 2007 Act become operative July 1, 2010.
(5) The amendments to ORS 701.205 by section 34 of this 2007
Act do not affect the term of office served by any member of the
Construction Contractors Board appointed to a term beginning
before July 1, 2009. For appointments to terms beginning on or
after July 1, 2009, the Governor shall appoint members to achieve
the board composition described in ORS 701.205 as amended by
section 34 of this 2007 Act no later than July 1, 2013.
(6) The Construction Contractors Board may take all necessary
actions prior to the operative dates specified in this section
for the efficient administration and enforcement of this 2007
Act. + }
SECTION 71. { + Notwithstanding any other law limiting
expenditures, the limitation on expenditures established by
section 1, chapter 462, Oregon Laws 2007 (Enrolled House Bill
5013), for the biennium beginning July 1, 2007, as the maximum
limit for payment of expenses from fees, moneys or other
revenues, including Miscellaneous Receipts, but excluding lottery
funds and federal funds, collected or received by the
Construction Contractors Board, is increased by $315,000 for the
purpose of carrying out the duties, functions and powers of the
board under sections 3 to 6, 8, 10 to 12 and 70 of this 2007 Act
and the amendments to ORS 701.005, 701.010, 701.060, 701.072,
701.075, 701.078, 701.085, 701.105, 701.138, 701.139, 701.140,
701.145, 701.146, 701.148, 701.150, 701.205 and 701.235 by
sections 13, 14, 17, 19 to 24, 27 to 34, 36, 54 to 57, 58a, 59 to
61 and 64 to 69 of this 2007 Act. + }
Enrolled House Bill 3242 (HB 3242-C) Page 80
SECTION 72. { + This 2007 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2007 Act takes effect
July 1, 2007. + }
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Enrolled House Bill 3242 (HB 3242-C) Page 81
Passed by House June 25, 2007
Repassed by House June 28, 2007
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate June 27, 2007
...........................................................
President of Senate
Enrolled House Bill 3242 (HB 3242-C) Page 82
Received by Governor:
......M.,............., 2007
Approved:
......M.,............., 2007
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2007
...........................................................
Secretary of State
Enrolled House Bill 3242 (HB 3242-C) Page 83