Bill Text: OR SB557 | 2013 | Regular Session | Engrossed

---

Bill Title: Relating to landscaping; declaring an emergency.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Failed) 2013-07-08 - In committee upon adjournment. [SB557 Detail]

Download: Oregon-2013-SB557-Engrossed.html

---

     77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 1797

                           A-Engrossed

                         Senate Bill 557
                 Ordered by the Senate April 25
           Including Senate Amendments dated April 25

Sponsored by Senator BOQUIST

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.

    { - Abolishes State Landscape Contractors Board. Transfers
duties, functions and powers of State Landscape Contractors Board
to Construction Contractors Board. Makes transfer operative
January 1, 2014. Appropriates transferred moneys. - }
    { - Creates licensing exemption for landscape contracting
businesses having less than threshold amount of gross
revenue. - }
   { +  Exempts work by landscape contracting business valued at
less than $500 from written contract requirements.
  Revises penalty provisions for violation of statutes and rules
related to landscape construction professionals.
  Establishes Landscape Construction Professionals Task
Force. + }
  Declares emergency, effective   { - July 1, 2013 - }  { +  on
passage + }.

                        A BILL FOR AN ACT
Relating to landscaping; creating new provisions; amending ORS
  671.603, 671.610, 671.625, 671.660, and 671.997; repealing ORS
  671.676; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 671.603 is amended to read:
  671.603. (1) A landscape construction professional or person
operating as a landscape contracting business shall notify the
State Landscape Contractors Board of a change of address for the
professional or business that occurs while the professional or
business is licensed by the board or within one year after a
license expires. The landscape construction professional or
landscape contracting business shall ensure that the board
receives notice of the change of address no later than the
 { - 10th - }  { +  30th + } day after the change of address
occurs.
  (2) Initial notice of a contested case or arbitration directed
by the board to the last-known address of record for a landscape
construction professional or landscape contracting business is
considered delivered to the professional or business when
deposited in the United States mail and sent registered,
certified or post office receipt secured. Any other communication
directed by the board to the last-known address of record for a
landscape construction professional or landscape contracting
business is considered delivered to the professional or business
when deposited in the United States mail, regular mail.
  SECTION 2. ORS 671.625 is amended to read:
  671.625. (1) The State Landscape Contractors Board shall by
rule adopt minimum standards for written contracts and billings
of the landscape contracting businesses. The standards shall set
forth requirements for information that must be contained in
contracts and billings. The information required shall be any
information the board determines is necessary to provide
protection for consumers of the services and materials provided
by landscape contracting businesses.
  (2)  { + Any + } work by a landscape contracting business
subject to ORS 671.510 to 671.760   { - shall only - }  { +  that
is + }  { +  valued at $500 or more must + } be performed subject
to a written contract. Any contract or billing for such work must
conform to the standards adopted under subsection (1) of this
section.
  (3) A contract that does not substantially comply with this
section may not be enforced by a landscape contracting business
in any court or other proceedings within this state.
  SECTION 3. ORS 671.660 is amended to read:
  671.660. (1) The fee for renewal of a license issued under ORS
671.510 to 671.760 shall be paid annually on or before the last
day of the month of the anniversary of issuance.
  (2) The State Landscape Contractors Board may not issue a new
license to a person who has been previously licensed under ORS
671.510 to 671.760 and whose license has expired, unless the
person makes written application on a form approved by the board
and pays the required annual fee. The board may require the
person to also pay a penalty fee.
  (3) If a license lapses for two years or more, the person must
reapply as for initial issuance of the license.
  (4) When a landscape contracting business renews its license,
the business must submit the names of all employees who are
licensed landscape construction professionals.
  (5) When a person renews a landscape construction professional
license, the person must  { - : - }
    { - (a) Submit - }  { +  submit + } the name of the employer
if the person is currently performing landscaping work { + . + }
 { - ; and - }
    { - (b) Demonstrate that the person has complied with the
continuing education requirement adopted by the board. - }
  SECTION 4. ORS 671.997 is amended to read:
  671.997. (1) Except as provided in subsection   { - (4) - }
 { + (6) + } of this section, a person who violates any provision
of ORS 671.510 to 671.760 or a rule adopted pursuant to ORS
670.310, 670.605 or 671.670 shall forfeit and pay to the State
Landscape Contractors Board a civil penalty in an amount
determined by the board of not more than $2,000 for each offense.
   { +  (2) In imposing a penalty under subsection (1) of this
section, the board shall consider the following factors:
  (a) The past history of the person incurring a penalty in
taking all feasible steps or procedures necessary or appropriate
to correct any violation.
  (b) Any prior violations of ORS 671.510 to 671.760 or a rule
adopted under ORS 670.310, 670.605 or 671.670.
  (c) The economic and financial conditions of the person
incurring a penalty.
  (3) If the person incurring a penalty under this section is
otherwise in compliance with the licensing requirements of ORS
671.510 to 671.760 and the penalty being imposed is not for a
violation of any backflow assembly installation requirement under
ORS 671.615 or rules adopted under ORS 671.615, the penalty

imposed for the first or second occurrence of a particular
violation may be remitted or mitigated on condition that:
  (a) The particular violation not continue or occur after a
certain period not to exceed 15 days; or
  (b) The person incurring the penalty participate in an
educational program related to the professional competency of
landscape construction professionals to be determined by the
board. + }
    { - (2) - }  { +  (4) + }   { - The board shall impose civil
penalties under this section as provided in ORS 183.745 - }  { +
Any civil penalties imposed under this section shall be imposed
as provided in ORS 183.745 + }.
    { - (3) - }  { +  (5) + } The provisions of this section are
in addition to and not in lieu of any other penalty or sanction
provided by law.
    { - (4) - }   { + (6) + } If a landscape contracting business
commits an act described under ORS 671.610 (5), the board
 { - shall - }   { + may + } impose penalties and sanctions on
both the landscape contracting business to which the contract is
awarded and the landscape contracting business that awards the
contract as follows:
  (a) A civil penalty of not less than $500 nor more than $1,000
for a first offense;
  (b) A civil penalty of not less than $1,000 nor more than
$2,000 for a second offense;
  (c) Suspension of license or refusal to reissue license for six
months for a third offense;
  (d) Revocation of license for three years for a fourth offense;
and
  (e) Permanent revocation of the landscape contracting
business's license for a fifth offense.
  SECTION 5. ORS 671.610 is amended to read:
  671.610. (1) In addition to any civil penalty assessed under
ORS 671.997, the State Landscape Contractors Board may suspend,
revoke or refuse to issue or renew the license of a landscape
construction professional or landscape contracting business that
does any of the following:
  (a) Obtains or attempts to obtain a license under ORS 671.510
to 671.760 by fraud or material misrepresentation.
  (b) Makes a material misrepresentation about the quality of any
material or service the person provides.
  (c) Performs defective work.
  (d) Furnishes defective materials.
  (e) Makes misleading statements when advertising services or
materials.
  (f) Violates a provision of ORS 671.510 to 671.760.
  (g) Fails to have a replacement bond, letter of credit or
deposit on file at the time of a termination, cancellation,
reduction or withdrawal of the bond, letter of credit or deposit
required by ORS 671.690.
  (h) Fails to maintain public liability, personal injury and
property damage insurance as required by ORS 671.565 throughout a
licensing period.
  (i) Fails to comply with ORS 671.527 or 671.562.
  (j) Fails to provide evidence of workers' compensation coverage
as described in ORS 671.565.
  (k) Violates a voluntary compliance agreement entered into
under ORS 646.605 to 646.652.
  (L) Performs work for which a permit is required under the
state building code without obtaining the required permit, if the
work results in the filing of a claim with the board.
  (m) Violates a rule or order of the board.
  (n) Refuses to comply with a subpoena issued by the board.
  (o) Fails to pay in full any amount owed to a claimant under a
final order of the board or an arbitration award, or under a
judgment rendered in this or any other state.
  (p) Does not make payment, including any interest due, for
labor or materials contracted for by the person pursuant to a
contract for a public improvement within 90 days after the date
the person receives payment from a public contracting agency or,
if the person is a subcontractor, from the contractor.
  (q) Engages in conduct as a landscape construction professional
or landscape contracting business that is dishonest or fraudulent
or that the board finds injurious to the welfare of the public.
  (r) Fails to comply with the requirements of ORS 652.120.
  (s) Is convicted of a crime under ORS 163.115, 163.185,
163.225, 163.235, 163.355, 163.365, 163.375, 163.385, 163.395,
163.405, 163.408, 163.411, 163.415, 163.425, 163.427, 164.055,
164.075, 164.325 or 164.415, provided that the facts supporting
the conviction and all intervening circumstances make the
determination to suspend, revoke or refuse to issue or renew the
license consistent with ORS 670.280.
  (2) The board may suspend or refuse to renew the license of a
landscape construction professional or landscape contracting
business without prior hearing if, after investigating and
setting forth in writing the facts supporting the action, the
board determines that continued activity by the landscape
construction professional or landscape contracting business poses
an imminent threat of serious harm to the public welfare. Facts
sufficient to support a suspension or refusal to renew under this
subsection include, but are not limited to:
  (a) The lack of a surety bond, letter of credit or deposit
required under ORS 671.690;
  (b) The lack of public liability, personal injury or property
damage insurance required under ORS 671.565;
  (c) The lack of workers' compensation insurance that is
required of the licensee under ORS 671.562;
  (d) The hiring of employees while licensed as exempt under ORS
671.525;
  (e) Conduct as a landscape construction professional or a
landscape contracting business that is dishonest;
  (f) Operation of a landscape contracting business that does not
employ at least one licensed landscape construction professional;
or
  (g) The failure to notify the board of any unpaid court
judgment, arbitration award or administrative agency final order
as required by ORS 671.563.
  (3) A person whose license is suspended or refused renewal
under subsection (2) of this section may request a hearing within
90 days after receiving the notice of the suspension or refusal
to renew. Except as provided in this subsection, the board shall
give a contested case hearing requested under this subsection
priority over other hearings and schedule the hearing for the
earliest practicable date. If a citation is issued to the person
and the order of suspension or refusal to renew will terminate by
its terms if a court renders a final judgment regarding the
citation in favor of the person, the person may request that the
board hold the requested contested case hearing in abeyance until
after the court has rendered a final judgment.
  (4) A person whose license is revoked under this section is not
eligible to apply for a license under ORS 671.510 to 671.760
until two years after the effective date of the revocation.
  (5) The board may suspend, revoke or refuse to reissue the
license of a landscape contracting business, and may impose a
civil penalty, all as provided under ORS 671.997   { - (4) - }
 { +  (6) + }, if the board determines, after notice and
opportunity for a hearing, that the landscape contracting
business was working with other landscape contracting businesses
on the same task and work site where one of the landscape
contracting businesses is licensed as an exempt independent
contractor under ORS 671.525 (2)(b) and the total number of
landscape contracting businesses working on the task exceeded:
  (a) Two sole proprietors;
  (b) One partnership;
  (c) One corporation; or
  (d) One limited liability company.
  (6) The board shall provide by rule a process and criteria that
must be met for restoration of a license that has not been
permanently revoked.
  SECTION 6.  { + ORS 671.676 is repealed. + }
  SECTION 7.  { + (1) The Landscape Construction Professionals
Task Force is established, consisting of at least seven members
appointed as follows:
  (a) The President of the Senate shall appoint two members from
among members of the Senate, one from the majority party and one
from the minority party.
  (b) The Speaker of the House of Representatives shall appoint
two members from among members of the House of Representatives,
one from the majority party and one from the minority party.
  (c) The Governor shall appoint at least three members as
follows:
  (A) At least one member of the State Landscape Contractors
Board;
  (B) At least one landscape construction professional; and
  (C) At least one other person knowledgeable about the licensing
and regulation of landscape construction professionals.
  (2) The task force shall:
  (a) Review the licensure examination requirements for landscape
construction professionals under ORS 671.510 to 671.760 and rules
adopted under ORS 671.510 to 671.760;
  (b) Make recommendations to the State Landscape Contractors
Board on any changes to the board's administrative rules and
recommendations to the Legislative Assembly on any changes to
statutes that are appropriate and necessary to ensure that
licensure examinations are designed to demonstrate that the
applicant has the necessary knowledge and skills to exercise the
responsibilities of a landscape construction professional; and
  (c) Make recommendations to the Legislative Assembly on whether
the State Landscape Contractors Board should have its power
transferred to the Construction Contractors Board.
  (3) A majority of the members of the task force constitutes a
quorum for the transaction of business.
  (4) Official action by the task force requires the approval of
a majority of the members of the task force.
  (5) The task force shall elect one of its members to serve as
chairperson.
  (6) If there is a vacancy for any cause, the appointing
authority shall make an appointment to become immediately
effective.
  (7) The task force shall meet at times and places specified by
the call of the chairperson or of a majority of the members of
the task force.
  (8) The task force may adopt rules necessary for the operation
of the task force.
  (9) The task force shall make a report based on its
recommendations to the Legislative Assembly no later than the
date of the convening of the 2014 regular session of the
Legislative Assembly as specified in ORS 171.010, and the task
force may file proposed legislative measures with the Legislative
Counsel in the manner allowed by both houses of the Legislative
Assembly.
  (10) The Legislative Administration Committee shall provide
staff support to the task force.
  (11) Members of the task force who are not members of the
Legislative Assembly are not entitled to compensation, but may be
reimbursed for actual and necessary travel and other expenses
incurred by them in the performance of their official duties in
the manner and amounts provided for in ORS 292.495. Claims for
expenses incurred in performing functions of the task force shall
be paid out of funds appropriated to the Legislative
Administration Committee for purposes of the task force.
  (12) All agencies of state government, as defined in ORS
174.111, are directed to assist the task force in the performance
of its duties and, to the extent permitted by laws relating to
confidentiality, to furnish such information and advice as the
members of the task force consider necessary to perform their
duties. + }
  SECTION 8.  { + Section 7 of this 2013 Act is repealed on the
date of the convening of the 2014 regular session of the
Legislative Assembly as specified in ORS 171.010. + }
  SECTION 9.  { + This 2013 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2013 Act takes effect on its
passage. + }
                         ----------