2007 Oregon Code - Chapter 646a :: Chapter 646A - Trade Regulation
Chapter 646A
— Trade Regulation
2007 EDITION
TRADE REGULATION
TRADE REGULATIONS AND PRACTICES
SALES
(Sellers of Travel)
646A.010Â Definitions
for ORS 646A.010 to 646A.020
646A.012Â Certification
of association of sellers of travel; application
646A.014Â Requirements
for certification; bylaws; code of ethics; disclosures; rules; definitions
646A.016Â Issuance
of certification; rules; duration; review
646A.018Â Denial,
suspension or revocation of certification
646A.020Â Prohibited
conduct; referral of complaints for mediation
(Health Spas)
646A.030Â Definitions
for ORS 646A.030 to 646A.042
646A.032Â Price
list for health spa services
646A.034Â Contracts;
contents
646A.036Â Contracts
and rules; delivery to buyer
646A.038Â Moneys
paid prior to facility opening; disposition; priority of claim; refund
646A.040Â Waiver
of provisions of ORS 646A.030 to 646A.042
646A.042Â Remedies
and obligations supplementary to existing remedies
(Manufactured Dwellings)
646A.050Â Definitions
646A.052Â Form
of purchase agreement
646A.054Â Rules
(Purchase of Used Goods)
646A.060Â Purchase
of used goods; records; application to pawnbrokers
646A.062Â Penalty
for violation of ORS 646A.060
(Telephonic Equipment)
646A.070Â
646A.072Â Exceptions
to disclosure requirements
(Miscellaneous Transactions)
646A.080Â
646A.085Â Sale
of rights by distributor to exhibit motion picture without first giving
exhibitor opportunity to view motion picture prohibited; attorney fees
646A.090Â Offer
to sell or lease motor vehicle subject to future acceptance by lender;
disposition of trade-in vehicle and items of value; liability
646A.095Â Disclosure
required when purchaser of product offered technical support through
information delivery system
646A.097Â Payment
of sales commissions following termination of contract between sales
representative and principal; definitions; civil action
(Going Out of Business Sales)
646A.100Â Definitions
for ORS 646A.100 to 646A.110
646A.102Â Notice
of intent to conduct going out of business sale; display and filing;
exceptions; prohibited activities
646A.104Â Information
required in notice of intent
646A.106Â Circumstances
in which going out of business sale prohibited
646A.108Â Prohibited
conduct
646A.110Â Applicability
of ORS 646A.100 to 646A.110 and 646A.112
646A.112Â Injunction
of sham sale; evidence; attorney fees; defense; definitions
RENTAL AND LEASE AGREEMENTS
(Lease-Purchase Agreements)
646A.120Â Definitions
for ORS 646A.120 to 646A.134
646A.122Â Applicability
of ORS 646A.120 to 646A.134
646A.124Â General
disclosure requirements
646A.126Â Specific
disclosure requirements
646A.128Â Provisions
prohibited in lease-purchase agreements
646A.130Â Reinstatement
of lease-purchase agreement by consumer; receipt for each payment
646A.132Â Renegotiation
or extension of lease-purchase agreement
646A.134Â Disclosures
required in advertisement for lease-purchase agreements
(Collision Damage Waivers in Vehicle Rentals)
646A.140Â Definitions
for ORS 646A.140 and 646A.142
646A.142Â Rental
vehicle collision damage waiver notice
SERVICE CONTRACTS
646A.150Â Applicability
of ORS 646A.150 to 646A.172
646A.152Â Definitions
for ORS 646A.150 to 646A.172
646A.154Â Service
contract defined; registration; proof of financial stability; bond; action;
rules; applicability of Insurance Code
646A.156Â Required
contents of service contracts
646A.158Â Prohibited
conduct
646A.160Â Service
contract obligor as agent of insurer; indemnification or subrogation rights of
insurer
646A.162Â Investigation
of violations; inspection of records; subpoenas; discontinue or desist order;
civil penalties
646A.164Â Complaints
and investigations confidential; exceptions
646A.166Â Refusal
to continue or suspension or revocation of registration
646A.168Â Assessment
fee; rules; purpose; registration fee
646A.170Â Remedies
not exclusive
646A.172Â Rules;
exemption of certain obligors
CREDIT AND PURCHASING
(Credit and Debit Card Receipts)
646A.200Â Definitions
for ORS 646A.202 and 646A.204
646A.202Â Payment
processing systems
646A.204Â Customer
information
646A.206Â Rules
(Numbers, Expiration Dates or Personal
Information in Credit or Debit Card Transactions)
646A.210Â Requiring
credit card number as condition for accepting check or share draft prohibited;
exceptions
646A.212 “Credit
card” defined
646A.214Â Verification
of identity in credit or debit card transactions
(Credit and Charge Card Solicitation Disclosure
Requirements)
646A.220Â Credit
card solicitation; required disclosure; definitions
646A.222Â Charge
card solicitation; required disclosure; definitions
(Enforcement)
646A.230Â Action
by Attorney General or district attorney; civil penalties
646A.232Â Effect
of compliance with federal law
(Extension of Credit)
646A.240Â Treatment
of child support obligations by creditor in applications for extensions of
credit
646A.242 “Creditor”
defined
646A.244Â Cause
of action for violation of ORS 646A.240; injunction; attorney fees; defenses
(Credit Services Organizations)
646A.250Â Legislative
findings
646A.252Â Definitions
for ORS 646A.252 to 646A.270
646A.254Â Prohibited
conduct; cancellation of contract by consumer
646A.256Â Registration
of credit services organizations; rules; fees
646A.258Â Surety
bond or irrevocable letter of credit
646A.260Â Required
disclosures
646A.262Â Contents
of contract between consumer and credit services organization; rules
646A.264Â Unenforceable
contract provisions; burden of proof; injunctions
646A.266Â Audit
of credit services organization; grounds for registration denial, revocation,
suspension or refusal to renew; civil penalty; rules
646A.268Â Investigations;
cease and desist order
646A.270Â Cease
and desist orders; service; effective date; hearing; judicial review
(Gift Cards)
646A.274Â Definitions
for ORS 646A.276 and 646A.278
646A.276Â
646A.278Â Requirements
for sale of gift card that expires
(Simulated Invoices)
646A.280Â Definitions
for ORS 646A.280 to 646A.290
646A.282Â Simulated
invoices prohibited
646A.284Â Cause
of action by Attorney General; judgment; attorney fees
646A.286Â Cause
of action by private party; judgment; attorney fees
646A.288Â Presumptions
in cause of action brought under ORS 646A.284 or 646A.286
646A.290Â Construction;
other remedies
REPURCHASING
(Repurchase of Farm Implements by Supplier
From Retailer)
646A.300Â Definitions
for ORS 646A.300 to 646A.322
646A.302Â Application
of ORS 646A.300 to 646A.322 to successor in interest or assignee of supplier
646A.304Â Payment
for farm implements, parts, software, tools and signs upon termination of
retailer agreement
646A.306Â Repurchase
of inventory by supplier; effect of new retailer agreement
646A.308Â Civil
action for supplierÂ’s failure to pay; venue
646A.310Â Prohibited
conduct by supplier
646A.312Â Termination,
cancellation or failure to renew retailer agreement; notice; good cause
646A.314Â New
or relocated dealership; notice; area of responsibility
646A.316Â Warranty
claims; payment; time for completion
646A.318Â Warranty
claims; processing
646A.320Â RetailerÂ’s
improvements to products
646A.322Â Remedies;
arbitration; cause of action; attorney fees; injunctive relief
(Repurchase of Motor Vehicles)
646A.325Â Repurchase
of motor vehicle by manufacturer; notice to dealer; contents of notice; notice
to prospective buyer
646A.327Â Attorney
fees for action under ORS 646A.325
MAILINGS AND DELIVERIES
(Mail Agents)
646A.340Â Definitions
for ORS 646A.340 to 646A.348
646A.342Â Prohibited
conduct; required verifications and notice
646A.344Â Bond
or letter of credit; action; exceptions
646A.346Â Damages
646A.348Â Action
by Attorney General; civil penalty; injunction; damages; attorney fees and
costs
(Delivery of Hazardous Materials)
646A.350Â Delivery
of unrequested hazardous substances prohibited
646A.352Â Penalty
(Other Mailings or Deliveries)
646A.360Â Unsolicited
facsimile machine transmissions
646A.362Â Exclusion
of name from sweepstakes promotion mailing list; written request; rules
646A.365Â Check,
draft or payment instrument creating obligation for payment
AUTOMATIC DIALING AND ANNOUNCING DEVICES
646A.370Â Definitions
for ORS 646A.370 to 646A.374
646A.372Â Limits
on usage of automatic dialing and announcing device
646A.374Â Prohibited
actions
646A.376Â Enforcement;
civil penalty
WARRANTY REGULATION AND ENFORCEMENT
(Enforcement of Express Warranties on New
Motor Vehicles)
646A.400Â Definitions
for ORS 646A.400 to 646A.418
646A.402Â Availability
of remedy
646A.404Â ConsumerÂ’s
remedies; manufacturerÂ’s affirmative defenses
646A.406Â Presumption
of reasonable attempt to conform; extension of time for repairs; notice to
manufacturer
646A.408Â Use
of informal dispute settlement procedure as condition for remedy; binding
effect on manufacturer
646A.410Â Informal
dispute settlement procedure; recordkeeping; review by Department of Justice
646A.412Â Action
in court; damages if manufacturer does not act in good faith; attorney fees
646A.414Â Limitations
on actions against dealers
646A.416Â Limitation
on commencement of action
646A.418Â Remedies
supplementary to existing statutory or common law remedies; election of
remedies
(Vehicle Protection Product Warranties)
646A.430Â Definitions
for ORS 646A.430 to 646A.450
646A.432Â Applicability
of ORS 646A.430 to 646A.450; applicability of other law
646A.434Â
646A.436Â Warrantor
registration; requirements; expiration; fees; rules
646A.438Â Reimbursement
insurance; requirements; insurer qualifications
646A.440Â Required
provisions of reimbursement insurance policy; cancellation; notice
646A.442Â Vehicle
protection product warranty administrator
646A.444Â Recordkeeping
requirements for warrantor; record retention
646A.446Â Prohibited
conduct for warrantor
646A.448Â Prohibited
activities
646A.450Â Rules;
investigative powers of department
646A.452Â Enforcement
by Attorney General
(Warranties on Assistive Devices)
646A.460Â Definitions
for ORS 646A.460 to 646A.476
646A.462Â Express
warranty; duration
646A.464Â Repair
of assistive device
646A.466Â Replacement
or refund after attempt to repair
646A.468Â Procedures
for replacement or refund
646A.470Â
646A.472Â Dispute
resolution
646A.474Â Applicability
of other laws; waiver
646A.476Â Civil
action for damages; attorney fees; limitation on actions
INFANT CRIB SAFETY
646A.500Â Legislative
findings; declaration of purpose
646A.502Â Short
title
646A.504Â Definitions
for ORS 646A.500 to 646A.514
646A.506Â Prohibited
conduct
646A.508Â Penalties
646A.510Â Exemptions
646A.512Â Private
right of action; attorney fees
646A.514Â Scope
of remedies
IDENTITY THEFT PREVENTION
646A.600Â Short
title
646A.602Â Definitions
for ORS 646A.600 to 646A.628
646A.604Â Notice
of breach of security; delay; methods of notification; contents of notice;
application of notice requirement
646A.606Â Security
freeze; requirements; effect
646A.608Â Deadline
for placement of security freeze; confirmation; personal identification number;
lifting and removal; fees
646A.610Â Permissible
fees
646A.612Â Conditions
for lifting or removing security freeze
646A.614Â Effect
of security freeze on use of consumer reports
646A.616Â Effect
of request for consumer report subject to security freeze
646A.618Â Prohibition
on changes to consumer report subject to security freeze; entities subject to
requirement to place security freeze
646A.620Â Prohibition
on printing, displaying or posting Social Security numbers; exemptions
646A.622Â Requirement
to develop safeguards for personal information; conduct deemed to comply with
requirement
646A.624Â Powers
of director; penalties
646A.626Â Rules
646A.628Â Allocation
of moneys
SALES
(Sellers of Travel)
     646A.010
Definitions for ORS 646A.010 to 646A.020. As used in ORS 646A.010 to 646A.020:
     (1) “Accommodations” means the provision
of land, sea or air transportation or a combination of transportation and any
goods and services sold in conjunction with that transportation, including but
not limited to lodging, meals and entertainment.
     (2) “Adequate financial security” means a
bond executed by an authorized surety insurer or an irrevocable letter of
credit issued by an insured institution as defined in ORS 706.008 for the
benefit of every person for whom services have not been delivered by the
wrongful act of the seller of travel acting in the course and scope of the
sellerÂ’s occupation or business or by any official, agent or employee of the
seller acting in the course or scope of that personÂ’s employment or agency. The
financial security shall be in an amount not less than $10,000. The financial
security shall be continuous until canceled and shall remain in full force and
unimpaired at all times to comply with this subsection. If the financial
security is a bond, the surety insurer shall give the Director of the
Department of Consumer and Business Services at least 30 daysÂ’ written notice
before it cancels or terminates its liability under the bond.
     (3) “Consumer” means a person in
     (4) “Department” means the Department of
Consumer and Business Services.
     (5) “Director” means the Director of the
Department of Consumer and Business Services.
     (6) “Seller of travel” or “seller” means a
person that sells, provides, furnishes, contracts for, arranges or advertises
in this state that the person can or may arrange or has arranged accommodations
either separately or in conjunction with other services.
     (7) “State of
     646A.012
Certification of association of sellers of travel; application. An association of sellers of travel may
apply to the Director of the Department of Consumer and Business Services for
certification as a certified association by filing an application on a form
approved by the director. The application shall be accompanied by:
     (1) A business plan describing provisions
for enforcement of the requirements of ORS 646A.010 to 646A.020 by the
association;
     (2) A copy of the governing rules or
bylaws of the association;
     (3) A description of the source of revenue
for administration of the association; and
     (4) Any other information required by rule
or order of the director. [Formerly 646.187]
     646A.014
Requirements for certification; bylaws; code of ethics; disclosures; rules;
definitions. (1) An
association of sellers of travel shall be eligible for certification as a
certified association if the Director of the Department of Consumer and
Business Services determines that:
     (a) The rules or bylaws of the association
require members of the association to:
     (A) Maintain adequate financial security;
     (B) Maintain errors and omissions
insurance; or
     (C) Maintain accreditation by the Airlines
Reporting Corporation, its successor or a similar entity designated by the
association and approved by the director.
     (b) The rules or bylaws of the association
require members of the association to participate in a program of mediation of
disputes between members and consumers.
     (c) The rules or bylaws of the association
require members of the association to comply with a written code of ethics that
sets requirements for at least:
     (A) Advertising and promotion policies;
     (B) Disclosure of consumer rights;
     (C) Disclosure of policies and procedures
for refunds to consumers; and
     (D) Disclosure of the limits of liability
of the seller of travel in all transactions.
     (d) The rules, bylaws or code of ethics of
the association provides that a seller of travel may not be admitted to the
association or maintain membership in the association if, during the three
years prior to application for membership in the association or at any time
after admission to the association, the seller of travel, or the owner,
principal or any person having control over the seller of travel, has been:
     (A) Convicted of any offense involving
fraud, deception, misrepresentation, misappropriation of property or breach of
trust or other fiduciary obligation;
     (B) The subject of an order of any
federal, state or local court or administrative agency denying, suspending or
revoking any license or any other authority to engage in business as a seller
of travel; or
     (C) The subject of any civil judgment or
penalty imposed by any federal, state or local court or administrative agency.
     (e) The rules or bylaws of the association
provide for the suspension or revocation of membership in the association if a
member does not comply with the rules or bylaws of the association, ORS
646A.010 to 646A.020 or rules adopted by the director under ORS 646A.010 to
646A.020.
     (2) The director by rule may establish
additional requirements for certification.
     (3) As used in this section:
     (a) “Conviction” includes, but is not
limited to, a plea of nolo contendere, a consent judgment, a judgment, an
administrative order and an assurance of voluntary compliance.
     (b) “Owner” means a person who owns or
controls 10 percent or more of the equity of, or otherwise has claim to 10
percent or more of the net income of, the seller of travel.
     (c) “Principal” means an owner, an officer
of a corporation, a general partner of a partnership or a sole proprietor of a
sole proprietorship. [Formerly 646.189]
     646A.016
Issuance of certification; rules; duration; review. (1) If the Director of the Department of
Consumer and Business Services determines that an association of sellers of
travel that has applied for certification under ORS 646A.014 has satisfied the
requirements of ORS 646A.010 to 646A.020 and rules adopted by the director
under ORS 646A.010 to 646A.020, the director shall certify the association as a
State of Oregon certified association.
     (2)(a) Certification under this section
shall remain in effect until the certificate is surrendered by the association
or revoked or suspended by the director as provided in ORS 646A.018.
     (b) A certificate issued under subsection
(1) of this section need not be renewed.
     (3) The director by rule shall provide for
periodic review of the operation of each certified association. The review
shall be conducted at least once every 24 months and shall be designed to
determine whether the certified association is complying with the provisions of
ORS 646A.010 to 646A.020, with rules adopted by the director under ORS 646A.010
to 646A.020 and with the rules, bylaws and business plan of the certified
association. The director may assess the association for the actual and
reasonable costs of the review. [Formerly 646.191]
     646A.018
Denial, suspension or revocation of certification. (1) The Director of the Department of
Consumer and Business Services may deny certification or suspend or revoke any
certification issued pursuant to ORS 646A.016 if the director finds that:
     (a) The business plan of the association
does not satisfy the requirements of ORS 646A.012;
     (b) The association has violated any
provision of ORS 646A.010 to 646A.020, any rule adopted by the director under
ORS 646A.010 to 646A.020 or any order of the director; or
     (c) The association has violated or is not
complying with its rules, bylaws or business plan.
     (2) If the director proposes to deny,
suspend or revoke a certificate, an opportunity for a hearing shall be accorded
as provided in ORS chapter 183.
     (3) Judicial review of orders under
subsection (2) of this section shall be as provided in ORS chapter 183. [Formerly
646.193]
     646A.020
Prohibited conduct; referral of complaints for mediation. (1) A person shall not claim membership in a
certified association or utilize any logo or other indicia of membership in a
certified association unless the person is a member in good standing of the
certified association.
     (2) Prior to taking any enforcement action
under ORS 646.608, the Attorney General may refer any complaint alleging
violation of any provision of ORS 646A.010 to 646A.020 or any rule adopted by
the director under ORS 646A.010 to 646A.020 by a member of a certified
association to the member for resolution or mediation. [Formerly 646.195]
(Health Spas)
     646A.030
Definitions for ORS 646A.030 to 646A.042. As used in ORS 646A.030 to 646A.042, unless the context requires
otherwise:
     (1) “Business day” means any day except a
Sunday or a legal holiday.
     (2) “Buyer” means a person who purchases
health spa services.
     (3) “Conspicuous” has the meaning given
that term in ORS 71.2010 (10).
     (4) “Health spa” means any person engaged,
as a primary purpose, in the sale of instruction, training, assistance or use
of facilities that are purported to assist patrons in physical exercise, weight
control or figure development. The term also includes any person engaged
primarily in the sale of the right or privilege to use tanning booths, exercise
equipment or facilities, such as a sauna, whirlpool bath, weight-lifting room,
massage, steam room, or other exercising machine or device. “Health spa” does
not include any facility owned and operated by the State of
     (5) “Health spa services” means services,
privileges or rights offered for sale by a health spa.
     (6) “Person” has the meaning given that
term in ORS 646.605 (4). [Formerly 646.661]
     646A.032
Price list for health spa services. (1) Each health spa shall prepare and provide to each prospective
buyer a written list of prices of all forms or plans of health spa services
offered for sale by the health spa.
     (2) A health spa may not sell any form or
plan of health spa services not included in the list. [Formerly 646.666]
     646A.034
Contracts; contents. A
contract for the sale of health spa services must be in writing and a copy must
be given to the buyer at the time the buyer signs the contract. The contract
must contain all of the following:
     (1) Identification of the person providing
the health spa services.
     (2) A description of the health spa
services to be provided, or acknowledgment in a conspicuous form that the buyer
has received a written description of the health spa services to be provided.
If any of the health spa services are to be delivered at a planned facility, at
a facility under construction or through substantial improvement to an existing
facility, the description must include a date for the completion of the
facility, construction or improvement.
     (3) A complete statement of the rules of
the health spa or an acknowledgment in a conspicuous form that the buyer has received
a copy of the rules.
     (4) A statement of the duration of the
obligation of the health spa to provide health spa services to the buyer. The
duration shall not exceed three years from the date of the contract.
     (5) A provision for cancellation of the contract:
     (a) If the buyer dies or becomes
physically unable to use a substantial portion of those health spa services
used by the buyer from the date of the contract until the time of disability.
The contract may require that disability be confirmed by an examination of a
physician agreeable to the buyer and the health spa.
     (b) If the health spa goes out of
business.
     (c) If the health spa moves its facility
closest to the residence of the buyer on the date of the contract to a location
more than five additional miles from that residence.
     (d) If a facility, construction or
improvement is not completed by the date represented in the contract.
     (e) If the health spa materially changes
the health spa services promised as a part of the initial contract.
     (6) A provision for a refund upon
cancellation in an amount computed by dividing the contract price by the number
of weeks in the contract term and multiplying the result by the number of weeks
remaining in the contract term.
     (7) A provision under a conspicuous
caption in capital letters and boldfaced type stating:
______________________________________________________________________________
BUYERÂ’S RIGHT TO CANCEL
     If you wish to cancel this contract,
without penalty, you may cancel it by delivering or mailing a written notice to
the health spa. The notice must say that you do not wish to be bound by the
contract and must be delivered or mailed before midnight of the third business
day after you sign this contract. The notice must be mailed to: _________ (insert
name and mailing address of health spa). If you cancel within the three days,
the health spa will return to you within 15 days all amounts you have paid.
______________________________________________________________________________
[Formerly
646.671]
     646A.036
Contracts and rules; delivery to buyer. Upon request, a health spa must deliver to a prospective buyer copies
of the contract required by ORS 646A.034, and the rules of the health spa if
not stated in the contract, and must allow the prospective buyer to retain the
copies so provided. [Formerly 646.676]
     646A.038
Moneys paid prior to facility opening; disposition; priority of claim; refund. (1) All moneys paid to a health spa by a
buyer prior to the opening of the facility shall promptly be deposited by the
health spa in a trust account, maintained by the health spa for the purpose of
holding such moneys for the buyer, in a bank, savings and loan association,
mutual savings bank or licensed escrow agent located in Oregon.
     (2) The health spa shall within seven days
of the first deposit notify the office of the Attorney General, in writing, of
the name, address and location of the depository and any subsequent change
thereof.
     (3) The health spa shall provide the buyer
with a written receipt for the moneys and shall provide written notice of the
name, address and location of the depository and any subsequent change thereof.
     (4) If prior to the opening of the
facility the status of the health spa is transferred to another, any sums in
the trust account affected by such transfer shall simultaneously be transferred
to an equivalent trust account of the successor, and the successor shall
promptly notify the buyer and the office of the Attorney General of the
transfer and of the name, address and location of the new depository.
     (5) The buyer’s claim to any moneys under
this section is prior to that of any creditor of the health spa, including a
trustee in bankruptcy or receiver, even if such moneys are commingled.
     (6) After the health spa receives a notice
of cancellation of the agreement or if the health spa fails to open a facility
at the stated date of completion the health spa shall within 10 days give a
full refund to the buyer, including the buyerÂ’s pro rata share of any interest
earned thereon.
     (7) All sums received by a health spa in
excess of the health spaÂ’s normal monthly dues shall be placed in escrow
subject to the terms and provisions stated in this section in the event that
the health spa is not fully operational or in the event that the health spa is
promising future construction or improvements. [Formerly 646.681]
     646A.040
Waiver of provisions of ORS 646A.030 to 646A.042. A health spa shall not request a buyer to
waive any provision of ORS 646A.030 to 646A.042. Any waiver by a buyer of any
provision of ORS 646A.030 to 646A.042 is contrary to public policy and is void
and unenforceable. [Formerly 646.686]
     646A.042
Remedies and obligations supplementary to existing remedies. The remedies and obligations provided in ORS
646A.030 to 646A.042 are in addition to any other remedies and obligations,
civil or criminal, existing at common law or under the laws of this state. [Formerly
646.691]
(Manufactured
Dwellings)
     646A.050
Definitions. As used in this
section and ORS 646A.052:
     (1) “Base price” means the total retail
cost of the following unless separately disclosed as described in ORS 646A.052
(2):
     (a) The manufactured dwelling as provided
by the manufacturer;
     (b) Features added by the dealer, if any;
     (c) Freight; and
     (d) Delivery and installation as stated in
the purchase agreement.
     (2) “Buyer” means a person who buys or
agrees to buy a manufactured dwelling.
     (3) “Improvements” means goods and
services not included in the base price that are, in general, needed to prepare
a site and complete the setup of a manufactured dwelling. “Improvements”
includes, but is not limited to, permits, site preparation, sidewalks,
concrete, utility connections, skirting, steps, railings, decks, awnings,
carports, garages, sheds, gutters, downspouts, rain drains, heat pumps, air
conditioning, basements, plants and landscaping, installation fees and system
development charges.
     (4) “Manufactured dwelling” has the
meaning given that term in ORS 446.003.
     (5) “Manufactured dwelling dealer” or “dealer”
means a person who sells a manufactured dwelling in a manner that makes the
person subject to the license requirement of ORS 446.671.
     (6) “Purchase agreement” means the written
contract between the manufactured dwelling dealer and the buyer for the
purchase of a manufactured dwelling. “Purchase agreement” does not include
documents of a retail installment contract or loan agreement entered into as
part of the purchase transaction. [Formerly 646.400]
     646A.052
Form of purchase agreement.
(1) A manufactured dwelling dealer who sells a manufactured dwelling shall use
a purchase agreement form that complies with this section and rules adopted in
accordance with ORS 646A.054.
     (2) The purchase agreement shall include
the base price and a written itemization that clearly and conspicuously
discloses the retail prices of the following, if not included in the base
price:
     (a) Manufactured dwelling options that are
ordered by the buyer.
     (b) The amount of any refundable or
nonrefundable administrative or processing fees paid to or collected by the
dealer and the circumstances under which the fees may be returned to the buyer.
     (c) The amount of any earnest money paid
and the circumstances under which the earnest money may be returned to the
buyer.
     (d) Improvements provided by the dealer,
or by a third party at the request of the dealer, to the extent known to the
dealer at the time of sale. The written itemization of improvements under this
paragraph excuses the dealer from providing the buyer with a separate statement
of estimated costs under ORS 90.518 for those itemized improvements.
     (e) All loan fees and credit report fees
paid to or collected by the dealer to obtain financing for the buyerÂ’s purchase
of the manufactured dwelling and the circumstances under which the fees may be
returned to the buyer.
     (f) Alterations and upgrades to the
manufactured dwelling made by the dealer or by a third party at the request of
the dealer.
     (g) Goods and services provided by the
dealer, or by a third party at the request of the dealer, that are not
otherwise disclosed pursuant to this section.
     (h) Fees for the issuance or updating of
an ownership document.
     (i) The extended warranty contract, if
any.
     (j) Delivery, installation or site access
costs that are not otherwise disclosed pursuant to this section, if any.
     (3) The purchase agreement form must be
accompanied by a list, provided by the Department of Justice, of governmental
consumer protection agencies having jurisdiction over manufactured dwelling
issues.
     (4) Failure of a manufactured dwelling
dealer to use a purchase agreement form that complies with this section and
rules adopted in accordance with ORS 646A.054 is an unlawful practice under ORS
646.608.
     (5) Except as provided in ORS 41.740, a
purchase agreement is considered to contain all of the terms of the contract
between the buyer and the manufactured dwelling dealer. No evidence of the
terms of the contract may be presented other than the contents of the purchase
agreement. As used in this subsection, “contract” does not include a retail
installment contract or loan agreement entered into as part of a purchase
transaction. [Formerly 646.402]
     646A.054
Rules. The Department of
Justice may adopt rules necessary and proper for the administration and
enforcement of ORS 646A.052. [Formerly 646.404]
(Purchase of
Used Goods)
     646A.060
Purchase of used goods; records; application to pawnbrokers. (1) A person doing business as a consignment
store, a buy-sell store, a secondhand store or a similar store or enterprise
that in the regular course of business buys used goods from individuals for the
purpose of resale shall:
     (a) Require that the individual from whom
the person buys the used goods present proof of identification; and
     (b) Maintain a record of the name and
address of the individual, the type of identification provided by the
individual, the date and a description of the goods bought from the individual.
     (2) If the goods described in subsection
(1) of this section are constructed of nonferrous metal as that term is defined
in ORS 165.107, in addition to the requirements of subsection (1) of this
section, the records shall contain the following:
     (a) A photocopy of the identification
provided under subsection (1)(a) of this section;
     (b) The amount of consideration given for
the goods;
     (c) If the transaction is valued at more
than $100, a declaration, signed by the individual from whom the person buys
the used goods, in substantially the following form: “I, the undersigned,
hereby declare that the property that is subject to this transaction is not, to
the best of my knowledge, stolen property. I understand that this statement is
made under penalty of perjury and may be used as evidence in court.”;
     (d) Video surveillance or a photograph of
the individual; and
     (e) A description and the registration
plate number of any motor vehicle used in the delivery of the goods.
     (3)(a) The person shall make all records
required to be maintained by subsections (1) and (2) of this section available
to law enforcement personnel conducting an investigation.
     (b) The person shall retain the records
described in subsection (2) of this section for a period of not less than one
year, except that the video surveillance or photograph described in subsection
(2)(d) of this section must be retained for 30 days from the date of the
transaction.
     (4) This section does not apply to
pawnbrokers licensed under ORS 726.080.
     (5) This section does not preempt,
invalidate or in any way affect the operation of any provision of a county,
city or district ordinance regulating the activities of consignment stores,
buy-sell stores, secondhand stores or similar stores or enterprises that in the
regular course of business buy used goods from individuals for the purpose of
resale. [Formerly 646.848]
     646A.062
Penalty for violation of ORS 646A.060. (1) A person that violates ORS 646A.060 (1) commits a Class B
violation.
     (2)(a) A person that violates ORS 646A.060
(2) shall pay a fine of $1,000.
     (b) Notwithstanding paragraph (a) of this
subsection, a person that violates ORS 646A.060 (2) shall pay a fine of $5,000
if the person has at least three previous convictions for violations of ORS
646A.060 (2). [Formerly 646.849]
(Telephonic
Equipment)
     646A.070
     (a) Whether the equipment uses pulse,
tone, pulse-or-tone or other signaling methods.
     (b) Whether the equipment can access tone
generated services.
     (c) Whether the equipment is registered
with the Federal Communications Commission under applicable federal
regulations.
     (d) The person responsible for repair of
the equipment.
     (e) Minimum charges, if any, for repairs,
handling and shipping.
     (f) The terms of any written warranty
offered with the equipment.
     (2) A person who violates subsection (1)
of this section commits an unlawful practice under ORS 646.608. The requirement
under subsection (1) of this section is subject to enforcement and penalty as
provided under ORS 646.605 to 646.652. [Formerly 646.850]
     646A.072
Exceptions to disclosure requirements. (1) The requirement of disclosure under ORS 646A.070 does not apply:
     (a) To any medium of advertising that
accepts advertising in good faith without knowledge that the advertising
violates any requirement under ORS 646A.070.
     (b) To the sale or the offering for sale
of radio equipment used for land, marine or air mobile service or any like
service, regardless of whether such equipment is capable of interconnection by
manual or automatic means to a telephone line.
     (c) To equipment not intended for
connection to the telephone network or to used equipment located on the
customerÂ’s premises.
     (2) The requirement of disclosure under
ORS 646A.070 (1)(d), (e) and (f) does not apply if the seller satisfies
applicable requirements under the federal Magnuson-Moss Warranty Act (15 U.S.C.
2301 to 2312), except that the seller must provide the purchaser a copy of the
warranty at the time of sale. [Formerly 646.855]
(Miscellaneous
Transactions)
     646A.080
     (2) Upon notification to the Department of
Environmental Quality by any person that a novelty item for sale in the state
contains encapsulated liquid mercury, the department shall notify persons
identified as selling the novelty item of the prohibition on the sale of such
items.
     (3) The department may impose a penalty as
provided in ORS 459.995 if a person continues to sell a novelty item that
contains encapsulated liquid mercury after notification of the prohibition on
the sale of such items. [Formerly 646.845]
     646A.085
Sale of rights by distributor to exhibit motion picture without first giving
exhibitor opportunity to view motion picture prohibited; attorney fees. (1) As used in this section:
     (a) “Distributor” means any person engaged
in the business of distributing or supplying motion pictures to exhibitors by
rental, sales, license or any other agreement to sell rights to exhibit a
motion picture.
     (b) “Exhibitor” means any person engaged
in the business of operating one or more theaters in which motion pictures are
exhibited to the public for a charge.
     (c) “Market” means any geographical area
in this state for which a distributor solicits exhibitors to compete, by
bidding or other negotiations, for the rights to exhibit a motion picture.
     (2) No distributor shall sell rights to
exhibit a motion picture in this state unless each exhibitor solicited by the
distributor for an offer to exhibit the motion picture is first allowed a
reasonable opportunity to view the motion picture within the state. Any waiver
of this subsection is void and unenforceable.
     (3) Nothing in this section applies to any
form of solicitation of offers for, negotiation concerning or sale of rights to
exhibit a motion picture:
     (a) That has been exhibited in this state
before October 3, 1979.
     (b) In a market where the motion picture
has been exhibited for one week or more.
     (c) That is 60 minutes or less in length.
     (4) An exhibitor may enforce this section
by bringing an action in the appropriate court of this state. In enforcing this
section a court may:
     (a) Issue an injunction to prohibit
violation of this section; and
     (b) Award an exhibitor any actual damages
arising from violation of this section.
     (5) In any suit under subsection (4) of
this section, the court shall award reasonable attorney fees at trial and on
appeal to the prevailing party. [Formerly 646.868]
     646A.090
Offer to sell or lease motor vehicle subject to future acceptance by lender;
disposition of trade-in vehicle and items of value; liability. (1) As used in this section:
     (a) “Buyer” means the purchaser or lessee
of a motor vehicle.
     (b) “Final approval of funding” means a
lenderÂ’s irrevocable agreement to finance a sale or lease of a motor vehicle
according to the exact terms that the seller and buyer have negotiated.
     (c) “Lender” means any person that
finances a sale or lease of a motor vehicle.
     (d) “Motor vehicle” means a motor vehicle,
as defined in ORS 801.360, that is sold or leased in this state for personal,
family or household purposes.
     (e) “Seller” means a holder of a current,
valid vehicle dealer certificate issued under ORS 822.020 or renewed under ORS
822.040.
     (2) A seller may make an offer to sell or
lease a motor vehicle to a buyer or prospective buyer that is subject to future
acceptance by a lender that may finance the transaction at the request of the
seller.
     (3) In any transaction described in
subsection (2) of this section:
     (a) If a lender does not agree to finance
the transaction on the exact terms negotiated between the seller and the buyer
within 14 days after the date on which the buyer takes possession of the motor
vehicle and the seller has not received final approval of funding from the
lender, the seller shall return to the buyer all items of value received from
the buyer as part of the transaction; and
     (b) If the seller has accepted a trade-in
motor vehicle from the buyer or prospective buyer, the seller shall not sell or
lease the buyerÂ’s or prospective buyerÂ’s trade-in motor vehicle before the
seller has received final approval of funding from the lender.
     (4) In any transaction described in
subsection (2) of this section, if the buyer has accepted a motor vehicle from
the seller, and a lender does not agree to finance the transaction on the exact
terms negotiated between the seller and the buyer, the buyer shall return to
the seller all items of value received from the seller as part of the
transaction. The offer or contract to sell or lease the motor vehicle may
provide in writing that the buyer is liable to the seller for:
     (a) The fair market value of damage to,
excessive wear and tear on or loss of the motor vehicle occurring between the
date the buyer takes possession of the motor vehicle and the date the buyer
returns the motor vehicle to the sellerÂ’s custody; and
     (b) If, within 14 days of the date the
buyer takes possession of the motor vehicle, the seller sends notice to the
buyer by first class mail that financing is unavailable, a reasonable charge
per mile for the use of the motor vehicle. If the buyer returns the motor
vehicle within five days of the mailing of the notice, the seller may charge
the buyer for miles driven during the first 14 days that the buyer had
possession of the motor vehicle. If the buyer does not return the vehicle
within five days of the mailing of the notice, the seller may charge the buyer
for all miles driven while the buyer has possession of the motor vehicle. The
charge may not exceed the rate per mile allowed under federal law as a
deduction for federal income tax purposes for an ordinary and necessary
business expense.
     (5) It is an affirmative defense to a
claim or charge of violating subsection (3)(a) of this section that the buyer
failed to return the motor vehicle after the seller sent notice to the buyer by
first class mail that financing was unavailable. [Formerly 646.877]
     646A.095
Disclosure required when purchaser of product offered technical support through
information delivery system.
(1) Whenever the purchaser of a product sold at retail is offered ongoing
technical support or service relating to the operation or use of the product,
and the support or service is offered exclusively or in part through an
information delivery system, the product or package of the product shall
contain, in clear view to the purchaser before the product is opened, a
statement disclosing that the technical support or service is provided through
an information delivery system and listing the cost per minute of the support
or service. The manufacturer of the product is responsible for providing the
statement required under this subsection.
     (2) As used in this section:
     (a) “Information delivery system” means
any telephone-recorded messages, interactive program or other information
services that are provided on a pay-per-call basis through an exclusive
telephone number prefix or service access code; and
     (b) “Manufacturer” means a person who
manufactures a product described in subsection (1) of this section. When the
product is distributed or sold under a name other than that of the actual
manufacturer of the product, the term “manufacturer” includes any person under
whose name the product is distributed or sold. [Formerly 646.871]
     646A.097
Payment of sales commissions following termination of contract between sales
representative and principal; definitions; civil action. (1) As used in this section:
     (a) “Commission” means compensation
accruing to a sales representative for payment by a principal, the rate of
which is expressed as a percentage of the amount of orders or sales or as a
specified amount per order or per sale.
     (b) “Principal” means a person who does
not have a permanent or fixed place of business in this state and who:
     (A) Manufactures, produces, imports or
distributes a tangible product for wholesale;
     (B) Contracts with a sales representative
to solicit orders for the product; and
     (C) Compensates the sales representative,
in whole or in part, by commission.
     (c) “Sales representative” means a person
who:
     (A) Contracts with a principal to solicit
wholesale orders;
     (B) Is compensated, in whole or in part,
by commission;
     (C) Does not place orders or purchase for
the sales representativeÂ’s own account or for resale; and
     (D) Does not sell or take orders for the
sale of products to the ultimate consumer.
     (2) When a contract between a sales
representative and a principal is terminated for any reason, the principal
shall pay the sales representative all commissions accrued under the contract
to the sales representative within 14 days after the effective date of the
termination.
     (3) A principal who fails to comply with
the provisions of subsection (2) of this section is liable to the sales representative
in a civil action for:
     (a) All amounts due the sales
representative plus interest on the amount due at the rate of nine percent per
annum until paid; and
     (b) Treble damages, if the failure to
comply with the provisions of subsection (2) of this section is willful.
     (4) The court shall award court costs and
attorney fees actually and reasonably incurred by the prevailing party in an
action to recover amounts, interest or damages due under subsection (3) of this
section.
     (5) A nonresident principal who contracts
with a sales representative to solicit orders in this state is subject to the
jurisdiction of the courts of this state to the extent specified in ORS 14.030.
     (6) Any action commenced pursuant to this
section must be commenced in the county in which the plaintiff resides at the
time the action is commenced or in the county where the cause of action arose.
     (7) Nothing in this section shall
invalidate or restrict any other or any additional right or remedy available to
a sales representative, or preclude a sales representative from seeking to
recover in one action all claims against a principal.
     (8) A provision in any contract between a
sales representative and a principal purporting to waive any provision of this
section, whether by expressed waiver or by a contract subject to the laws of
another state, shall be void. [Formerly 646.878]
(Going Out of
Business Sales)
     646A.100
Definitions for ORS 646A.100 to 646A.110. As used in ORS 646A.100 to 646A.110:
     (1) “Affiliated business” means a business
or business location that is directly or indirectly controlled by, or under
common control with, the business location listed in the notice of a going out
of business sale or that has a common ownership interest in the merchandise to
be sold at the business location listed in the notice of the sale.
     (2)(a) “Going out of business sale” means
a sale or auction advertised or held out to the public as the disposal of
merchandise in anticipation of cessation of business, including but not limited
to a sale or auction advertised or held out to the public as a “going out of
business sale,” a “closing out sale,” a “quitting business sale,” a “loss of
lease sale,” a “must vacate sale,” a “liquidation sale,” a “bankruptcy sale,” a
“sale to prevent bankruptcy” or another description suggesting price reduction
due to the imminent closure of the business.
     (b) “Going out of business sale” does not
include a sale conducted by a bankruptcy trustee or a court-appointed receiver.
     (3) “Merchandise” means goods, wares or
other property or services capable of being the object of a sale regulated
under ORS 646A.100 to 646A.110.
     (4) “Notice of intent” means a notice
filed with the Secretary of State that a person intends to conduct a going out
of business sale.
     (5) “Person” has the meaning given that
term in ORS 646.605. [2007 c.820 §1]
     646A.102
Notice of intent to conduct going out of business sale; display and filing;
exceptions; prohibited activities. (1) Except as provided in subsection (3) of this section, a person may
not sell, offer for sale or advertise for sale merchandise at a going out of
business sale unless the person has filed a notice of intent with the Secretary
of State.
     (2) A person must display a copy of the
notice of intent filed with the Secretary of State in a prominent place on the
premises where the going out of business sale is being conducted.
     (3) If a going out of business sale is
conducted as part of a bankruptcy, receivership or other court-ordered action,
a person:
     (a) Need not file a notice of intent with
the Secretary of State.
     (b) Shall display the court order or
judgment ordering the sale in a prominent place on the premises where the going
out of business sale is being conducted.
     (4) A person may not:
     (a) Conduct a going out of business sale
for more than 90 days from the beginning date of the sale listed on the notice
of intent.
     (b) Continue to conduct a going out of
business sale beyond the ending date listed on the notice of intent.
     (5) A person who has conducted a going out
of business sale may not conduct another going out of business sale for a
period of one year after the ending date of the sale listed on the notice of
intent. [2007 c.820 §2]
     646A.104
Information required in notice of intent. A person filing a notice of intent with the Secretary of State shall
provide all of the following information in the notice of intent:
     (1) The name, address and telephone number
of the owner of the merchandise to be sold. If the owner is a corporation,
trust, unincorporated association, partnership or other legal entity, the
person signing the notice must be an officer of the entity and must identify
the personÂ’s title.
     (2) The name, address and telephone number
of the person who will be in charge of and responsible for the conduct of the
sale.
     (3) The descriptive name, location and
beginning and ending dates of the sale. [2007 c.820 §3]
     646A.106
Circumstances in which going out of business sale prohibited. A person may not conduct a going out of
business sale if a person who has an ownership interest in the business or in
the merchandise to be sold is subject to a court order resulting from a civil
enforcement action under ORS 646.608 or 646A.100 to 646A.110. [2007 c.820 §4]
     646A.108
Prohibited conduct. (1) A
person intending to conduct a going out of business sale may not transfer
merchandise from an affiliated business or business location to the location of
the sale.
     (2) A person, after filing a notice of
intent, may not buy or order merchandise, take merchandise on consignment or
receive a transfer of merchandise from an affiliated business or business
location for the purpose of selling the merchandise at the sale or sell such
merchandise in a going out of business sale. [2007 c.820 §5]
     646A.110
Applicability of ORS 646A.100 to 646A.110 and 646A.112. (1) ORS 646.608 (1)(fff), 646A.100 to
646A.110 and 646A.112 apply only to persons who engage in the retail sale of
merchandise in the regular course of their business.
     (2) ORS 646.608 (1)(fff), 646A.100 to
646A.110 and 646A.112 do not apply to public officials acting within the scope
of their duties as public officials. [2007 c.820 §6]
     646A.112
Injunction of sham sale; evidence; attorney fees; defense; definitions. (1) As used in this section:
     (a) “Appropriate court” has the meaning
given that term in ORS 646.605.
     (b) “Relevant market” means:
     (A) A product market that consists of
products or services that a consumer would regard as interchangeable or
substitutable by reason of the productsÂ’ or servicesÂ’ characteristics, prices and
intended use; or
     (B) A geographic market that consists of
the area in which the persons concerned are involved in the supply of a product
or service and in which the conditions of competition are sufficiently
homogenous.
     (c) “Sham sale” means a going out of
business sale, as defined in ORS 646A.100, conducted with the intent to
continue the same or a similar business in the same location or at a location
within the same relevant market but that is a sale that is represented as being
conducted due to a cessation of business.
     (2) A person may bring an action in an
appropriate court to enjoin another person in the same relevant market from
conducting a sham sale if the person reasonably believes the other person is
conducting a sham sale. The court may provide such equitable relief as it deems
necessary or proper.
     (3) In an action brought by a person under
this section, the court may award reasonable attorney fees to the person.
     (4) It is prima facie evidence that a
person alleged to be conducting a sham sale has the intent to continue the same
or a similar business if:
     (a) The person regularly receives
additional inventory during the sham sale or, immediately prior to the sham
sale, receives additional inventory that is not regularly delivered;
     (b) The sham sale exceeds 90 days; or
     (c) The same or a similar business that
consists of inventory remaining from the sham sale and that has the same
principal ownership resumes business in the same relevant market within 12
months from the cessation of the business.
     (5) It is an affirmative defense to an
action brought under this section that, during an alleged sham sale, the person
no longer needed to go out of business and immediately canceled the alleged
sham sale. [2007 c.820 §7]
RENTAL AND
LEASE AGREEMENTS
(Lease-Purchase
Agreements)
     646A.120
Definitions for ORS 646A.120 to 646A.134. As used in ORS 646A.120 to 646A.134:
     (1) “Advertisement” means a commercial
message in any medium that aids, promotes or assists, directly or indirectly, a
lease-purchase agreement.
     (2) “Cash price” means the price at which
the lessor would have sold the property to the consumer for cash on the date of
the lease-purchase agreement.
     (3) “Consumer” means an individual who
rents personal property under a lease-purchase agreement to be used primarily
for personal, family or household purposes.
     (4) “Consummation” means the time a
consumer becomes contractually obligated on a lease-purchase agreement.
     (5) “Lease-purchase agreement” means an
agreement for the use of personal property by an individual for personal,
family or household purposes, for an initial period of four months or less,
that is automatically renewable with each payment after the initial period, but
does not obligate or require the consumer to continue leasing or using the
property beyond the initial period, and that permits the consumer to become the
owner of the property.
     (6) “Lessor” means a person who regularly
provides the use of property through lease-purchase agreements and to whom
lease payments are initially payable on the face of the lease-purchase
agreement. [Formerly 646.245]
     646A.122
Applicability of ORS 646A.120 to 646A.134. (1) Lease-purchase agreements that comply with ORS 646A.120 to
646A.134 are not governed by laws relating to:
     (a) A security interest under ORS chapter
79.
     (b) A retail installment contract under
ORS 83.010 to 83.190.
     (2) ORS 646A.120 to 646A.134 do not apply
to the following:
     (a) Lease-purchase agreements primarily
for business, commercial or agricultural purposes, or those made with
governmental agencies or instrumentalities or with organizations;
     (b) A lease of a safe deposit box;
     (c) A lease or bailment of personal
property which is incidental to the lease of real property, and which provides
that the consumer has no option to purchase the leased property; or
     (d) A lease of a motor vehicle. [Formerly
646.247]
     646A.124
General disclosure requirements. (1) The lessor shall disclose to the consumer the information required
by ORS 646A.126. In a transaction involving more than one lessor, only one
lessor need make the disclosures, but all lessors shall be bound by the
disclosures.
     (2) The disclosures shall be made at or
before consummation of the lease-purchase agreement.
     (3) The disclosures shall be made clearly
and conspicuously in writing and a copy of the lease-purchase agreement shall
be provided to the consumer. The disclosures required under ORS 646A.126 shall
be made on the face of the contract above the line for the consumerÂ’s
signature.
     (4) If a disclosure becomes inaccurate as
the result of any act, occurrence or agreement by the consumer after delivery
of the required disclosures, the resulting inaccuracy is not a violation of ORS
646A.120 to 646A.134.
     (5) If any portion of the transaction is
conducted in any language other than English, the disclosures required under
ORS 646A.120 to 646A.134 shall be in the language other than English. This
subsection does not apply if any portion of the transaction is conducted
through an interpreter supplied by the lessee. [Formerly 646.249]
     646A.126
Specific disclosure requirements. For each lease-purchase agreement, the lessor shall disclose in the
agreement the following items, as applicable:
     (1) Whether the periodic payment is
weekly, monthly or otherwise, the dollar amount of each payment and the total
number and total dollar amount of all periodic payments necessary to acquire
ownership of the property;
     (2) A statement that the consumer will not
own the property until the consumer has made the total payment necessary to
acquire ownership;
     (3) A statement advising the consumer
whether the consumer is liable for loss or damage to the property, and, if so,
the maximum amount for which the consumer is liable;
     (4) A brief description of the leased
property, sufficient to identify the property to the consumer and the lessor,
including an identification number, if applicable, and a statement indicating
whether the property is new or used. A statement that indicates new property is
used is not a violation of ORS 646A.120 to 646A.134;
     (5) A statement of the cash price of the
property. Where one agreement involves a lease of two or more items as a set, a
statement of the aggregate cash price of all items shall satisfy this
requirement;
     (6) The total of initial payments paid or
required at or before consummation of the agreement or delivery of the
property, whichever is later;
     (7) A statement that the total amount of
payments does not include other charges, such as late payment, default, pickup
and reinstatement fees. Fees listed in this subsection shall be disclosed
separately in the agreement;
     (8) A statement clearly summarizing the
terms of the consumerÂ’s option to purchase, including a statement that the
consumer has the right to exercise an early purchase option, and the price,
formula or method for determining the price at which the property may be so
purchased;
     (9) A statement identifying the party
responsible for maintaining or servicing the property while it is being leased,
together with a description of that responsibility, and a statement that if any
part of a manufacturerÂ’s express warranty covers the lease property at the time
the consumer acquires ownership of the property, it shall be transferred to the
consumer, if allowed by the terms of the warranty;
     (10) The date of the transaction and the
identities of the lessor and consumer;
     (11) A statement that the consumer may
terminate the agreement without penalty by voluntarily surrendering or
returning the property in good repair, reasonable wear and tear excepted, upon
expiration of any lease term along with any past due rental payments; and
     (12) Notice of the right to reinstate an
agreement as provided in ORS 646A.120 to 646A.134. [Formerly 646.251]
     646A.128
Provisions prohibited in lease-purchase agreements. A lease-purchase agreement may not contain:
     (1) A confession of judgment;
     (2) A negotiable instrument;
     (3) A security interest or any other claim
of a property interest in any goods except those goods delivered by the lessor
pursuant to the lease-purchase agreement;
     (4) A wage assignment;
     (5) A waiver by the consumer of claims or
defenses;
     (6) A provision authorizing the lessor or
a person acting on the lessorÂ’s behalf to enter upon the consumerÂ’s premises
without the permission of the consumer or to commit any breach of the peace in
the repossession of goods;
     (7) A provision requiring the purchase of
insurance or liability damage waiver from the lessor for property that is the
subject of the lease-purchase agreement;
     (8) A provision that mere failure to
return property constitutes probable cause for a criminal action;
     (9) A provision requiring the lessee to
make a payment in addition to regular lease payments in order to acquire
ownership of the leased property, or a provision requiring the lessee to make
lease payments totaling more than the dollar amount necessary to acquire
ownership, as disclosed pursuant to ORS 646A.126;
     (10) A provision requiring a late charge
or reinstatement fee unless a periodic payment is late more than two days on a weekly
agreement, or five days on a monthly agreement;
     (11) A late charge or reinstatement fee in
excess of $5; or
     (12) More than one late charge or
reinstatement fee on any one periodic payment regardless of the period of time
during which it remains in default. [Formerly 646.253]
     646A.130
Reinstatement of lease-purchase agreement by consumer; receipt for each
payment. (1) A consumer who
fails to make a timely rental payment may reinstate the agreement, without
losing any rights or options which exist under the agreement, by the payment
of:
     (a) All past due rental charges;
     (b) If the property has been picked up,
the reasonable costs of pickup and redelivery; and
     (c) Any applicable late fee, within five
days of the renewal date if the consumer pays monthly, or within two days of
the renewal date if the consumer pays more frequently than monthly.
     (2) In the case of a consumer who has paid
less than two-thirds of the total of payments necessary to acquire ownership
and where the consumer has returned or voluntarily surrendered the property,
other than through judicial process, during the applicable reinstatement period
set forth in subsection (1) of this section, the consumer may reinstate the
agreement during a period of not less than 21 days after the date of the return
of the property.
     (3) In the case of a consumer who has paid
two-thirds or more of the total of payments necessary to acquire ownership, and
where the consumer has returned or voluntarily surrendered the property, other
than through judicial process, during the applicable period set forth in
subsection (1) of this section, the consumer may reinstate the agreement during
a period of not less than 30 days after the date of the return of the property.
     (4) Nothing in this section shall prevent
a lessor from attempting to repossess property during the reinstatement period,
but such a repossession shall not affect the consumerÂ’s right to reinstate.
Upon reinstatement, the lessor shall provide the consumer with the same
property or substitute property of comparable quality and condition.
     (5) A lessor shall provide the consumer
with a written receipt for each payment made by cash or money order. [Formerly
646.255]
     646A.132
Renegotiation or extension of lease-purchase agreement. (1) A renegotiation shall occur when an
existing lease-purchase agreement is satisfied and replaced by a new agreement
undertaken by the same lessor and consumer. A renegotiation shall be considered
a new agreement requiring new disclosures. A renegotiation shall not include:
     (a) The addition or return of property in
a multiple item agreement or the substitution of the lease property, if in
either case the average payment allocable to a payment period is not changed by
more than 10 percent;
     (b) A deferral or extension of one or more
periodic payments, or portions of a periodic payment;
     (c) A reduction in charges in the lease or
agreement; and
     (d) A lease or agreement involved in a
court proceeding.
     (2) No disclosures are required for any
extension of a lease-purchase agreement. [Formerly 646.257]
     646A.134
Disclosures required in advertisement for lease-purchase agreements. (1) If an advertisement for a lease-purchase
agreement refers to or states the dollar amount of any payment and the right to
acquire ownership for any one specific item, the advertisement shall also
clearly and conspicuously state the following items, as applicable:
     (a) That the transaction advertised is a
lease-purchase agreement;
     (b) The total of payments necessary to
acquire ownership; and
     (c) That the consumer acquires no
ownership rights if the total amount necessary to acquire ownership is not
paid.
     (2) Any owner or personnel of any medium
in which an advertisement appears or through which it is disseminated shall not
be liable under this section.
     (3) The provisions of subsection (1) of
this section shall not apply to an advertisement which does not refer to or
state the amount of any payment, or which is published in the yellow pages of a
telephone directory or in any similar directory of business.
     (4) Every item displayed or offered under
a lease-purchase agreement shall have clearly and conspicuously indicated in
Arabic numerals, so as to be readable and understandable by visual inspection,
each of the following stamped upon or affixed to the item:
     (a) The cash price of the item;
     (b) The amount of the periodic payment;
and
     (c) The total number of periodic payments
required for ownership. [Formerly 646.259]
(Collision
Damage Waivers
in Vehicle
Rentals)
     646A.140
Definitions for ORS 646A.140 and 646A.142. As used in this section and ORS 646A.142:
     (1) “Authorized driver” means:
     (a) The person renting the vehicle;
     (b) The spouse of the person renting the
vehicle, if the spouse is a licensed driver and meets any minimum age
requirements contained in the rental agreement;
     (c) The employer or coworker of the person
renting the vehicle if the employer or coworker is engaged in a business
activity with the person renting the vehicle and the employer or coworker meets
any minimum age requirements contained in the rental agreement;
     (d) Any person driving the vehicle during
an emergency; and
     (e) Any person expressly listed by the
rental company on the rental agreement as an authorized driver.
     (2) “Collision damage waiver” means an
agreement between the renter and the rental company in which the company waives
its right to impose a financial obligation on the renter or authorized driver
if the vehicle is returned with physical damage.
     (3) “Damage” means any damage or loss to
the rented vehicle, including loss of use and any costs and expenses incident
to the damage or loss.
     (4) “Private passenger automobile” or “vehicle”
means a motor vehicle designed primarily for transportation of persons.
     (5) “Rental agreement” means any written
agreement setting forth the terms and conditions governing the use of a private
passenger automobile provided by a rental company.
     (6) “Rental company” means any person
engaged in the business of renting private passenger automobiles to the public.
     (7) “Renter” means any person or
organization obtaining the use of a private passenger automobile from a rental
company under the terms of a rental agreement. [Formerly 646.857]
     646A.142
Rental vehicle collision damage waiver notice. (1) Every auto rental company doing business
in the State of Oregon that offers collision damage waivers shall post a sign
approved by the Department of Consumer and Business Services which states “OUR
CONTRACTS OFFER OPTIONAL COLLISION DAMAGE WAIVERS AT AN ADDITIONAL COST.”
     (2)(a) No rental company shall sell or
offer to sell to a renter a collision damage waiver as part of a rental
agreement unless the renter is provided the following written notice in at
least 10-point type:
______________________________________________________________________________
NOTICE: Our
contracts offer, for an additional charge, a collision damage waiver to cover
your responsibility for damage to the vehicle. Before deciding whether or not
to purchase the collision damage waiver, you may wish to determine whether your
own vehicle insurance affords you coverage for damage to the rental vehicle and
the amount of the deductible under your own insurance coverage. The purchase of
this collision damage waiver is not mandatory and may be waived.
______________________________________________________________________________
     (b) The notice required by this subsection
shall either appear at the top of the rental agreement or shall be on a
separate piece of paper attached to the top of the agreement. [Formerly
646.859]
SERVICE
CONTRACTS
     646A.150
Applicability of ORS 646A.150 to 646A.172. (1) ORS 646A.150 to 646A.172:
     (a) Create a legal framework within which
service contracts may be sold in this state;
     (b) Encourage innovation in the marketing
and development of more economical and effective means of providing services
under service contracts, while placing the risk of innovation on the obligors
rather than on consumers; and
     (c) Permit and encourage fair and
effective competition among different systems of providing and paying for
service contracts.
     (2) ORS 646A.150 to 646A.172 do not apply
to:
     (a) Warranties; or
     (b) Maintenance agreements. [Formerly
646.263]
     646A.152
Definitions for ORS 646A.150 to 646A.172. As used in ORS 646A.150 to 646A.172:
     (1) “Maintenance agreement” means a
contract of limited duration that provides for scheduled maintenance only.
     (2) “Obligor” means the person who is
contractually obligated to the service contract holder to provide service under
a service contract and who:
     (a) Sold the merchandise covered by the
service contract;
     (b) Sells merchandise similar to that
covered by the service contract; or
     (c) Is acting through or with the written
consent of the manufacturer, importer or seller of the merchandise covered by
the service contract.
     (3) “Person” means an individual,
partnership, corporation, incorporated or unincorporated association, joint
stock company, reciprocal, syndicate or any similar entity or combination of
entities acting in concert.
     (4) “Service contract” is a contract
described in ORS 646A.154.
     (5) “Service contract holder” or “contract
holder” means a person who is the purchaser or holder of a service contract.
     (6) “Service contract seller” means a
person who markets, sells or offers to sell a service contract.
     (7) “Warranty” means a warranty made
solely by the manufacturer, importer or seller of property or services, without
charge, that is not negotiated or separated from the sale of the product and is
incidental to the sale of the product, and that guarantees indemnity for
defective parts, mechanical or electrical breakdown, labor or other remedial
measures, such as repair or replacement of the property or repetition of
services. [Formerly 646.265]
     646A.154
Service contract defined; registration; proof of financial stability; bond;
action; rules; applicability of Insurance Code. (1) For the purposes of this section, a
service contract is a contract or agreement to perform or indemnify for a
specific duration the repair, replacement or maintenance of property for
operational or structural failure due to a defect in materials, workmanship or
normal wear and tear, with or without additional provision for incidental
payment of indemnity under limited circumstances, including but not limited to
rental and emergency road service. A service contract may also provide for the
repair, replacement or maintenance of property for damage resulting from
lightning, power surges or accidental damage from handling. Consideration for a
service contract must be stated separately from the price of the consumer
product. The term “service contract” does not include insurance policies issued
by insurers under the Insurance Code, or maintenance agreements.
     (2) An obligor may not issue, sell or
offer for sale a service contract in this state unless the obligor has complied
with the provisions of this section and ORS 646A.156 and 646A.158.
     (3) All obligors of service contracts
issued, sold or covering property located in this state shall file a
registration with the Director of the Department of Consumer and Business
Services on a form, at a fee and at a frequency prescribed by the director
pursuant to ORS 646A.168.
     (4) An obligor shall keep accurate
accounts, books and records concerning transactions involving service
contracts.
     (5) Except as provided in subsection (6)
of this section, to ensure the faithful performance of an obligorÂ’s obligations
to its contract holders, each obligor shall provide the director with one of
the following as proof of financial stability:
     (a) A copy of the obligor’s or, if the
obligorÂ’s financial statements are consolidated with those of its parent
company, the obligorÂ’s parent companyÂ’s most recent Form 10-K filed with the
Securities and Exchange Commission which shows a net worth of the obligor or
its parent company of at least $100 million provided the Form 10-K was filed
with the Securities and Exchange Commission within the last calendar year. If
the obligorÂ’s parent companyÂ’s Form 10-K is filed to meet the obligorÂ’s
financial stability requirement, then the parent company shall agree to
guarantee the obligations of the obligor relating to service contracts sold by
the obligor in this state.
     (b) Evidence of a reimbursement insurance
policy described in ORS 742.390 that is obtained by the obligor and issued by
an authorized insurer that insures all service contracts issued by the obligor.
     (6)(a) An obligor of a home service
agreement as defined in ORS 731.164 shall file with the director a surety bond
executed to the State of
     (b) The surety bond shall be issued on the
condition that the obligor comply with all provisions of ORS 646A.150 to
646A.172 and fully perform on all contracts or agreements entered into.
     (c) The surety bond shall be continuous
until canceled and shall remain in full force and unimpaired at all times to
comply with this section. The surety shall give the director at least 30 daysÂ’
written notice by registered or certified mail before the surety cancels or
terminates its liability under the bond.
     (d) Any person who suffers damage as a
result of a violation of any provision of ORS 646A.150 to 646A.172 or any rule
adopted by the director pursuant to ORS 646A.150 to 646A.172 shall have a right
of action under the bond. An action under the bond may be brought by the state
or by any person with a right of action by filing a complaint in a court of
competent jurisdiction not later than one year after the surety bond is
canceled or terminated. The court may award the prevailing plaintiff reasonable
attorney fees and costs in an action under the bond.
     (e) The aggregate liability of the surety
shall not exceed the principal sum of the bond.
     (7) Filing requirements are as follows:
     (a) The obligor shall file with the
director proof of financial stability or a surety bond as required by subsection
(5) or (6) of this section.
     (b) The director may adopt rules
concerning the procedure for filing the proof of financial stability or the
surety bond.
     (c) A person may not file or cause to be
filed with the director any article, certificate, report, statement,
application or any other information required or permitted to be filed under
this subsection that the person knows to be false or misleading in any material
respect.
     (8) Service contract sellers and their
employees marketing, selling or offering to sell service contracts for obligors
who comply with this section and ORS 646A.156 and 646A.158 are exempt from the
requirements of the Insurance Code including, but not limited to, the
requirement to belong to the Oregon Insurance Guaranty Association.
     (9) Obligors complying with ORS 646A.156
and 646A.158 are not required to comply with the Insurance Code including, but
not limited to, the requirement to belong to the Oregon Insurance Guaranty
Association.
     (10) If a service contract seller is not
the same person as the obligor under the service contract, the service contract
seller shall remit the agreed-upon consumer purchase price of the service
contract to the obligor within 30 days of the sale of such service contract or
upon such terms and conditions as may be agreed to in writing between the
service contract seller and obligor. [Formerly 646.267]
     646A.156
Required contents of service contracts. A service contract issued, sold or offered for sale in this state
shall meet the following requirements:
     (1) The service contract shall be written
in clear, understandable language.
     (2) The service contract shall identify
the obligor and the service contract seller.
     (3) If prior approval of repair work is
required, the service contract shall state the procedure for obtaining prior
approval and for making a claim, including a toll-free telephone number for
claim service and a procedure for obtaining reimbursement for emergency repairs
performed outside of normal business hours.
     (4) The service contract shall
conspicuously state the existence of any deductible amount.
     (5) The service contract shall specify the
merchandise covered, services to be provided and any limitations, exceptions or
exclusions.
     (6) The service contract shall state any
terms, restrictions or conditions governing the transferability of the service
contract by the service contract holder.
     (7) The service contract shall state the
terms, restrictions or conditions governing termination of the service contract
by the service contract holder. [Formerly 646.269]
     646A.158
Prohibited conduct. (1) A
service contract seller or obligor shall not in a misleading or deceptive
manner use in its name, contracts or literature, the words insurance, casualty,
guaranty, surety, mutual or any other words descriptive of the insurance,
casualty, guaranty, surety or mutual business.
     (2) In the offer or sale of any service
contract, a person may not:
     (a) Make, issue, circulate or cause to be
made, issued or circulated, any estimate, illustration, circular or statement
misrepresenting the terms of any service contract sold or to be sold or the
benefits or advantages therein.
     (b) Employ any device, scheme or artifice
to defraud.
     (c) Obtain money or property by means of
any untrue statement of a material fact or any omission to state a material
fact necessary in order to make the statement made, in light of the
circumstances under which it was made, not misleading.
     (d) Engage in any other transaction,
practice or course of business which operates as a fraud or deceit upon the
service contract holder.
     (3) In providing required services under a
service contract, a person may not:
     (a) Fail to acknowledge and act within a
reasonable time upon communications requesting services under a service
contract. Unless the service contract provides otherwise, a person shall be
deemed to have acted within a reasonable time if the person responds to a
communication received from a service contract holder within 30 days of receipt
of the communication.
     (b) Fail to act in good faith in reviewing
a request for services under a service contract and advising the service
contract holder whether the request is covered under the terms and conditions
of the service contract.
     (c) Fail to act in good faith in providing
covered services under a service contract. [Formerly 646.271]
     646A.160
Service contract obligor as agent of insurer; indemnification or subrogation
rights of insurer. (1) An
obligor is considered to be the agent of the insurer that issued the
reimbursement insurance policy. If a service contract seller acts as an obligor
and enlists other service contract sellers, the service contract seller acting
as the obligor shall notify the insurer of the existence and identities of the
other service contract sellers.
     (2) An insurer that issues a reimbursement
insurance policy may seek indemnification or subrogation against a service
contract seller if the issuer pays or is obligated to pay the service contract
holder sums that the service contract seller was obligated to pay pursuant to
the provisions of the service contract or under a contractual agreement. [Formerly
646.273]
     646A.162
Investigation of violations; inspection of records; subpoenas; discontinue or
desist order; civil penalties.
(1) The Director of the Department of Consumer and Business Services may, upon
a reasonable belief that a violation of ORS 646A.154, 646A.156 or 646A.158 has
occurred, make necessary public and private investigations within or without
this state to determine whether any person has violated those provisions.
     (2) In connection with any investigation
conducted pursuant to subsection (1) of this section, a service contract seller
or obligor, upon written request of the director, shall make available to the
director its service contract records for inspection and copying. The records
that must be made available in accordance with this section shall be only those
records necessary to enable the director to reasonably determine compliance
with ORS 646A.154, 646A.156 and 646A.158.
     (3) For the purpose of an investigation or
proceeding under subsection (1) of this section, the director may administer
oaths and affirmations, subpoena witnesses, compel their attendance, take
evidence and require the production of books, papers, correspondence, memoranda,
agreements or other documents or records that are relevant or material to the
inquiry. Each witness who appears before the director under a subpoena shall
receive the fees and mileage provided for witnesses in ORS 44.415 (2).
     (4) If a person fails to comply with a
subpoena issued under subsection (3) of this section, or a party or witness
refuses to testify on any matters, the judge of the circuit court for any
county, on the application of the director, shall compel obedience by
proceedings for contempt as in the case of disobedience of the requirements of
a subpoena issued from such court or a refusal to testify therein.
     (5) The director may, upon a reasonable
belief that a person is or is about to be in violation of ORS 646A.154,
646A.156 or 646A.158, issue an order, directed to the person, to discontinue or
desist from the violation or threatened violation. The copy of the order
forwarded to the person involved shall set forth a statement of the specific
charges and the fact that the person may request a hearing within 20 days of
the date of mailing. Where a hearing is requested, the director shall set a
date for the hearing to be held within 30 days after receipt of the request,
and shall give the person involved written notice of the hearing date at least
seven days prior thereto. The person requesting the hearing must establish to
the satisfaction of the director that the order should not be complied with.
The order shall become final 20 days after the date of mailing unless within
the 20-day period the person to whom it is directed files with the director a
written request for a hearing. To the extent applicable and not inconsistent
with the foregoing, the provisions of ORS chapter 183 shall govern the hearing
procedure and any judicial review thereof. Where the hearing has been
requested, the directorÂ’s order shall become final at such time as the right to
further hearing or review has expired or been exhausted.
     (6) A person who is found to have violated
ORS 646A.154, 646A.156 or 646A.158 may be ordered to pay to the General Fund a
civil penalty in an amount determined by the director of not more than:
     (a) $2,000 for the first violation.
     (b) $5,000 for the second violation.
     (c) $10,000 for any subsequent violation.
     (7) For purposes of this section, a
violation consists of a single course of conduct which is determined by the
director to be untrue or misleading. [Formerly 646.275]
     646A.164
Complaints and investigations confidential; exceptions. (1) Except as provided in subsection (3) of
this section, a complaint made to the director against any person regulated by
ORS 646A.150 to 646A.172, 742.390 and 742.392, and the record thereof, shall be
confidential, and shall not be disclosed or available for public inspection or
review. No such complaint, or the record thereof, shall be used in any action,
suit or proceeding except to the extent it is essential to the prosecution of
apparent violations of ORS 646A.150 to 646A.172, 742.390 and 742.392.
     (2) Except as provided in subsection (3)
of this section, data gathered pursuant to any investigation by the director
shall be confidential, and shall not be disclosed or available for public
inspection or review. The data shall not be used in any action, suit or
proceeding except to the extent it is essential in the investigation or
prosecution of apparent violations of ORS 646A.150 to 646A.172, 742.390 and
742.392.
     (3) Notwithstanding subsections (1) and
(2) of this section, the director may disclose any complaint and any data
gathered pursuant to ORS 646A.150 to 646A.172, 742.390 and 742.392 to any
state, federal or local enforcement agency. The recipient agency may use the
complaint and data for any official purpose, including the civil enforcement of
laws subject to the agency jurisdiction. [Formerly 646.277]
     646A.166
Refusal to continue or suspension or revocation of registration. The Director of the Department of Consumer
and Business Services may refuse to continue or may suspend or revoke an
obligorÂ’s registration if the director finds after a hearing that:
     (1) The obligor has intentionally engaged
in a pattern or practice of failing to comply with any lawful order of the
director relating to a prior violation of ORS 646A.158 (3)(c).
     (2) The obligor fails to meet or maintain
the financial stability requirements set forth in ORS 646A.154. [Formerly
646.279]
     646A.168
Assessment fee; rules; purpose; registration fee. (1) Each obligor that issues a service
contract to a resident of this state shall pay an assessment not to exceed
$1,000 to the Director of the Department of Consumer and Business Services for
the purpose of supporting the legislatively authorized budget of the department
for administering ORS 646A.150 to 646A.172, 742.390 and 742.392. The director
shall determine by rule the basis of assessment, the amount or rate of
assessment and when assessments shall be paid.
     (2) The fee prescribed by the director for
registration under ORS 646A.154 shall not exceed $200 per obligor per year. [Formerly
646.281]
     646A.170
Remedies not exclusive. The
application of any remedy under any provision of ORS 646A.150 to 646A.172,
742.390 and 742.392 shall not preclude the application of any other remedy
under ORS 646A.150 to 646A.172, 742.390 and 742.392 or any other provision of
law. The application of any remedy under any provision of law shall not
preclude the application of any remedy under ORS 646A.150 to 646A.172, 742.390
and 742.392. [Formerly 646.283]
     646A.172
Rules; exemption of certain obligors. (1) The Director of the Department of Consumer and Business Services
may adopt rules necessary to implement ORS 646A.150 to 646A.172.
     (2) The director may by rule exempt
certain obligors or service contract sellers or specific classes of service
contracts that are not otherwise exempt under ORS 646A.150 (2) from any
provision of ORS 646A.150 to 646A.172, 742.390 and 742.392. The director may
include in the rules substitute requirements on a finding that a particular
provision of ORS 646A.150 to 646A.172, 742.390 and 742.392 is not necessary for
the protection of the public or that the substitute requirement is reasonably
certain to provide equivalent protection to the public. [Formerly 646.285]
CREDIT AND
PURCHASING
(Credit and
Debit Card Receipts)
     646A.200
Definitions for ORS 646A.202 and 646A.204. As used in ORS 646A.202 and 646A.204:
     (1) “Credit card” has the meaning given
that term in ORS 646A.212.
     (2) “Debit card” has the meaning given “debit
instrument” in 15 U.S.C. 1693n. [Formerly 646.886]
     646A.202
Payment processing systems.
A person may not sell, lease or rent a payment processing system that provides
a customer receipt that shows more information about a customer than the
customerÂ’s name and five digits of the customerÂ’s credit or debit card number. [Formerly
646.887]
     646A.204
Customer information. (1) In
a credit or debit card transaction with a customer, a person may not create a
customer receipt that shows more information about a customer than the customerÂ’s
name and five digits of the customerÂ’s credit or debit card number.
     (2) A person that creates or retains a
copy of a receipt containing more information about a customer than the
customerÂ’s name and five digits of the customerÂ’s credit or debit card number
shall shred, incinerate or otherwise destroy the copy on or before the sooner of:
     (a) The date the image of the copy is
transferred onto microfilm or microfiche; or
     (b) Thirty-six months after the date of
the transaction that created the copy. [Formerly 646.888]
     646A.206
Rules. The Attorney General
may adopt rules under ORS chapter 183 to carry out the provisions of ORS
646A.200, 646A.202 and 646A.204. [Formerly 646.889]
(Numbers,
Expiration Dates or Personal Information in Credit or Debit Card Transactions)
     646A.210
Requiring credit card number as condition for accepting check or share draft
prohibited; exceptions. (1)
A person shall not require as a condition of acceptance of a check or share
draft, or as a means of identification, that the person presenting the check or
share draft provide a credit card number or expiration date, or both, unless
the credit is issued by the person requiring the information.
     (2) Subsection (1) of this section shall
not prohibit a person from:
     (a) Requesting a person presenting a check
or share draft to display a credit card as indicia of creditworthiness and
financial responsibility or as a source of additional identification;
     (b) Recording the type of credit card and
the issuer of the credit card displayed by the person under paragraph (a) of
this subsection;
     (c) Requesting or receiving a credit card
number or expiration date, or both, and recording the number or date, or both,
in lieu of a security deposit to assure payment in event of default, loss,
damage or other occurrence;
     (d) Recording a credit card number or
expiration date, or both, as a condition for acceptance of a check or share
draft where the card issuer guarantees checks or share drafts presented by the
cardholder upon the condition that the person to whom the check is presented
records the card number or expiration date, or both, on the check or share
draft;
     (e) Requesting and recording the name,
address, motor vehicle operator license number or state identification card
number and telephone number of a person offering payment by check; or
     (f) Verifying the signature, name and
expiration date on a credit card.
     (3) This section does not require
acceptance of a check or share draft whether or not a credit card is presented.
     (4) For purposes of this section, “person”
means any individual, corporation, partnership or association. [Formerly
646.892]
     646A.212
“Credit card” defined. As
used in ORS 646A.210 and 646A.214, “credit card” has the meaning given that
term under the federal Consumer Credit Protection Act (P.L. 90-321, 82 Stat.
146, 15 U.S.C. 1602). [Formerly 646.893]
     646A.214
Verification of identity in credit or debit card transactions. (1) A merchant that accepts a credit card or
debit card for a transaction may require that the credit card or debit card
holder provide personal information, other than the personal information that
appears on the face of the credit card or debit card, for the purposes of
verification of the card holderÂ’s identity. The merchant may not write the
information on the credit card or debit card transaction form.
     (2) This section may not be construed to
prevent a merchant from requesting and keeping in written form information
necessary for shipping, delivery or installation of purchased goods or
services, or for warranty when the information is provided voluntarily by a
credit card or debit card holder.
     (3) Any provision in a contract between a
merchant and a credit card or debit card issuer, financial institution or other
person that prohibits the merchant from verifying the identity of a person who
presents a credit card or debit card in payment for goods or services by
requiring or requesting identification is contrary to public policy and void.
     (4) Nothing in this section may be
construed to:
     (a) Compel a merchant to verify the
identity of a person who presents a credit card or debit card in payment for
goods or services; or
     (b) Interfere with the ability of a
merchant to make and enforce policies regarding verification of the identity of
a person who presents a credit card or debit card in payment for goods or
services.
     (5) As used in this section, “merchant”
means a person who, in the ordinary course of that personÂ’s business, permits
persons to present credit cards or debit cards in payment for goods or
services. [Formerly 646.894]
(Credit and
Charge Card Solicitation Disclosure Requirements)
     646A.220
Credit card solicitation; required disclosure; definitions. (1) Every solicitation for the issuance of a
credit card shall disclose the following information concerning the credit card
account:
     (a) The annual percentage rate or rates applicable
to the credit card account. If the rate or rates are variable, the solicitation
shall disclose that fact and shall further disclose either the rate or rates on
a specified date or the index from which the rate or rates are determined.
     (b) Any minimum, fixed, transaction,
activity or similar charge that could be imposed in connection with any use of
the credit card.
     (c) Any annual or periodic membership or
participation fee that may be imposed for the availability, issuance or renewal
of the credit card.
     (d) Whether or not any time period is
provided within which any credit extended through the use of the credit card
may be repaid without incurring a finance charge, and a description of any such
time period.
     (2) As used in this section:
     (a) “Card issuer,” “credit card,” “credit,”
“annual percentage rate” and “finance charge” have the meanings given those
terms under the federal Consumer Credit Protection Act (P.L. 90-321, 82 Stat.
146, 15 U.S.C. 1601).
     (b) “Reasonable time” means the period beginning
at the time of publication of a magazine, newspaper or other publication and
ending at the time of the next publication of the magazine, newspaper or other
publication, but in no case shall the period exceed 90 days following the date
of publication.
     (c) “Solicitation” means printed material
primarily offering to issue a credit card including printed material mailed
directly to a person by name that contains an application for or an offer to
issue a credit card in the personÂ’s name, application materials available at
the credit card issuerÂ’s place of business or other locations or application
materials, printed advertisements or other printed information or materials
contained in a magazine, newspaper or other publication which shall be
considered current at the time of publication and for a reasonable time
thereafter. “Solicitation” does not include material which only refers to
credit cards as one of the services provided by the issuer nor does it include
offers made by radio or television or through a catalog. “Solicitation” does
not include an incidental reference to a credit card in the printed material. [Formerly
646.895]
     646A.222
Charge card solicitation; required disclosure; definitions. (1) A charge card solicitation shall
disclose clearly and conspicuously the annual fees and other charges, if any,
applicable to the issuance or use of the charge card.
     (2) As used in this section:
     (a) “Charge card” means any card, plate or
other credit device under which the issuer of the charge card extends credit to
the card holder that is not subject to a finance charge and the card holder
does not have automatic access to credit repayable in installments.
     (b) “Reasonable time” means the period
beginning at the time of publication of a magazine, newspaper or other
publication and ending at the time of the next publication of the magazine,
newspaper or other publication, but in no case shall the period exceed 90 days
following the date of publication.
     (c) “Solicitation” means printed material
primarily offering to issue a charge card including printed material mailed
directly to a person by name that contains an application for or an offer to
issue a charge card in the personÂ’s name, application materials available at
the charge card issuerÂ’s place of business or other locations or application
materials, printed advertisements or other printed information or materials
contained in a magazine, newspaper or other publication which shall be
considered current at the time of publication and for a reasonable time
thereafter. “Solicitation” does not include material which only refers to
charge cards as one of the services provided by the issuer nor does it include
offers made by radio or television or through a catalog. “Solicitation” does
not include an incidental reference to a charge card in the printed material. [Formerly
646.897]
(Enforcement)
     646A.230
Action by Attorney General or district attorney; civil penalties. (1)(a) The Attorney General or a district
attorney may bring an action in the name of the state against a person to
restrain and prevent a violation of ORS 646A.202, 646A.204, 646A.220 or
646A.222.
     (b) The Attorney General or a district
attorney may in the name of the state seek and obtain a civil penalty from a
person who violates an order or injunction issued pursuant to this subsection.
     (2)(a) A person who violates an order or
injunction issued pursuant to subsection (1) of this section shall forfeit and
pay a civil penalty of not more than $1,000 per violation. The circuit court
issuing the order or injunction retains jurisdiction of the action to consider
a request for a civil penalty.
     (b) In an action brought by a prosecuting
attorney under this section, the court may award the prevailing party, in
addition to any other relief provided by law, reasonable attorney fees at trial
and on appeal. [Formerly 646.899]
     646A.232
Effect of compliance with federal law. A person who is in compliance with the requirements of the Fair Credit
and Charge Card Disclosure Act, (Public Law 100-583), shall also be considered
in compliance with the requirements of ORS 646A.220 and 646A.222. [Formerly
646.901]
(Extension of
Credit)
     646A.240
Treatment of child support obligations by creditor in applications for
extensions of credit. In
evaluating applications for extensions of credit, a creditor shall treat the
obligation of an applicant to pay child support no more adversely than the
creditor treats or would treat any other obligation for the same amount, terms
and duration as the child support obligation. [Formerly 646.861]
     646A.242
“Creditor” defined. As used
in ORS 646A.240 to 646A.244, “creditor” means a person who, in the ordinary
course of the personÂ’s business, regularly permits debtors to defer payment of
their debts, or to incur debt and defer the payment thereof, and in either
case, to pay the same with a finance charge or in more than four installments. [Formerly
646.863]
     646A.244
Cause of action for violation of ORS 646A.240; injunction; attorney fees;
defenses. (1) Except as
provided in subsection (2) of this section, a person who is adversely affected
by a creditorÂ’s violation of ORS 646A.240 shall have a cause of action to
recover compensatory damages against the creditor and may also apply to a court
for an injunction to prevent the creditorÂ’s further violation of ORS 646A.240.
If the damages are awarded, or an injunction granted, the person shall be
entitled to reasonable attorney fees at trial and on appeal, as determined by
the court in addition to costs and necessary disbursements.
     (2) A creditor shall have no liability for
compensatory damages, attorney fees or otherwise and no injunction shall issue:
     (a) Where the creditor shows by a
preponderance of evidence that the violation was not intentional and resulted
from a bona fide error notwithstanding the maintenance of procedures reasonably
adopted to avoid any such error; or
     (b) Where in violating ORS 646A.240, the
creditor shows by a preponderance of evidence that it acted in good faith, in
conformity with any statute, law, ordinance, rule, regulation, administrative
interpretation or judicial determination then applicable to the transaction in
question. [Formerly 646.865]
(Credit
Services Organizations)
     646A.250
Legislative findings. The
Legislative Assembly finds and declares that:
     (1) The ability to obtain and use credit
has become of great importance to consumers who have a vital interest in
establishing and maintaining their creditworthiness and credit standing. As a
result, consumers who have experienced credit problems may seek assistance from
credit services organizations which offer to obtain credit or improve the
credit standing of consumers.
     (2) Certain advertising and business
practices of some credit services organizations have worked a financial
hardship upon the people of this state, particularly on those who have limited
economic means and are inexperienced in credit matters. Credit services
organizations have significant impact upon the economy and well-being of this
state and its people.
     (3) The purposes of ORS 646A.252 to
646A.270 are to provide prospective customers of credit services organizations
with the information necessary to make intelligent decisions regarding the
purchase of those services and to protect the public from unfair or deceptive
advertising and business practices. ORS 646A.252 to 646A.270 shall be
interpreted liberally to achieve these purposes. [Formerly 646.380]
     646A.252
Definitions for ORS 646A.252 to 646A.270. As used in ORS 646A.252 to 646A.270:
     (1) “Consumer” means any individual who is
solicited to purchase or who purchases the services of a credit services
organization.
     (2)(a) “Credit services organization”
means any person who, with respect to the extension of credit by others, sells,
provides, performs, or represents that the organization can or will sell,
provide or perform, in return for the payment of money or other valuable
consideration, any of the following services:
     (A) Improving, saving or preserving a
consumerÂ’s credit record, history or rating.
     (B) Obtaining an extension of credit for a
consumer.
     (C) Providing advice, assistance,
instruction or instructional materials to a consumer with regard to either
subparagraph (A) or (B) of this paragraph.
     (b) “Credit services organization” does
not include:
     (A) Any person authorized to make loans or
extensions of credit under the laws of this state or the
     (B) Any financial institution, financial
holding company or bank holding company as those terms are defined in ORS
706.008 or any subsidiary or affiliate of a financial institution, financial
holding company or bank holding company.
     (C) A mortgage banker or mortgage broker
as defined in ORS 59.840.
     (D) Any nonprofit organization exempt from
taxation under section 501(c)(3) of the Internal Revenue Code, provided that
the organization does not require a fee for its services and does not receive
any money or other valuable consideration prior to the rendering of any
services by the organization for the consumer.
     (E) An individual licensed as a real
estate broker or principal real estate broker by this state if the individual
is acting within the course and scope of that license.
     (F) Any person licensed to practice law in
this state if the person renders services within the course and scope of
practice as an attorney.
     (G) Any broker-dealer registered with the
Securities and Exchange Commission or the Commodity Futures Trading Commission
if the broker-dealer is acting within the course and scope of that regulation.
     (H) Any consumer reporting agency as
defined in the Federal Fair Credit Reporting Act, 15 U.S.C. 1681 et seq.
     (I) Any licensee licensed under ORS
chapter 725.
     (3) “Department” means the Department of
Consumer and Business Services.
     (4) “Director” means the director of the
department or the directorÂ’s designees.
     (5) “Extension of credit” means the right
to defer payment of debt or to incur debt and defer its payment offered or
granted primarily for personal, family or household purposes. [Formerly
646.382]
     646A.254
Prohibited conduct; cancellation of contract by consumer. (1) A credit services organization, its
salespersons, agents, representatives and independent contractors who sell or
attempt to sell the services of a credit services organization shall not do any
of the following:
     (a) Misrepresent directly or indirectly in
any advertising, promotional materials, sales presentation or in any other
manner:
     (A) The nature of the services to be
performed.
     (B) The time within which the services
will be performed.
     (C) The ability to improve the consumer’s
credit report or credit rating.
     (D) The amount or the type of credit a
consumer can expect to receive as a result of the performance of the services
offered.
     (E) The qualifications, training or
experience of the organizationÂ’s personnel.
     (b) Make, counsel or advise any consumer
to make any statement that is untrue or misleading or that should be known by
the exercise of reasonable care to be untrue or misleading with respect to a
consumerÂ’s creditworthiness, credit standing or credit capacity to a credit
reporting agency or a person to whom a consumer is applying for an extension of
credit.
     (c) Charge or receive any money or other
valuable consideration prior to full and complete performance of the services
the credit services organization has agreed to perform for the consumer.
     (d) Charge or receive any money or other
valuable consideration solely for referral of the consumer to a credit provider
who will or may extend credit that is or will be extended to the consumer on
substantially the same terms as those available to customers of the credit
provider.
     (e) Transact any business as a credit
services organization without first having registered with the Department of
Consumer and Business Services as required by ORS 646A.256.
     (2) A consumer may cancel any contract
between the consumer and a credit services organization at any time prior to
midnight of the third business day after the date the contract is entered into.
The consumer shall be entitled to a full refund of any fees paid. [Formerly
646.384]
     646A.256
Registration of credit services organizations; rules; fees. (1) A credit services organization shall
file a registration statement with the Department of Consumer and Business
Services before conducting business in this state. The department by rule shall
establish a registration system for credit services organizations. The system
shall provide for annual renewals of registrations.
     (2) Applications for registration or
renewal shall be in writing on a form prescribed by the department and shall be
accompanied by a fee in an amount to be established by the director by rule.
     (3) The registration statement shall
contain information that the director requires and that is consistent with ORS
646A.252 to 646A.270, including, but not limited to:
     (a) The name and address of the credit
services organization.
     (b) The name and address of a registered
agent authorized to accept service on behalf of the credit services
organization.
     (c) The name and address of any person who
directly or indirectly owns or controls 10 percent or more of the outstanding
shares in the credit services organization.
     (d) The name and address of the surety
company or insured institution issuing a surety bond or irrevocable letter of
credit required by ORS 646A.258.
     (4) The registration statement shall also
contain either:
     (a) A full and complete disclosure of any
litigation or unresolved complaint filed with a governmental authority of this
state, any other state or the United States relating to the operation of the
credit services organization; or
     (b) A notarized affidavit stating that
there has been no litigation or unresolved complaint filed with a governmental
authority of this state, any other state or the United States relating to the
operation of the credit services organization.
     (5) Except as provided in this subsection,
the credit services organization shall update a registration statement not
later than the 90th day after the date on which a change in the information
required to be listed on the statement occurs. The credit services organization
shall update a registration statement not later than 10 days before there is a
change in any information required under subsection (3)(a) or (b) of this
section.
     (6) Each credit services organization
registering under this section shall maintain a copy of the registration
statement in the organizationÂ’s files. The credit services organization shall
allow a consumer to inspect the registration statement upon request.
     (7) If the director receives a
registration statement that complies with this section and any rules of the
director, the director shall register the credit services organization. [Formerly
646.386]
     646A.258
Surety bond or irrevocable letter of credit. (1) Every applicant for registration as a credit services organization
shall file with the director a corporate surety bond or irrevocable letter of
credit running to the State of
     (2) The surety bond or irrevocable letter
of credit shall be issued on the condition that the credit services
organization comply with all provisions of ORS 646A.252 to 646A.270 and fully
perform on all contracts entered into with consumers.
     (3) The surety bond or irrevocable letter
of credit shall be continuous until canceled and shall remain in full force and
unimpaired at all times to comply with this section. The surety or insured
institution shall give the director at least 30 daysÂ’ written notice before it
cancels or terminates its liability under the bond or irrevocable letter of
credit.
     (4) Any person who suffers damage as a
result of a violation of any provision of ORS 646.608 and 646A.250 to 646A.270 or
any rule adopted by the director pursuant to ORS 646A.252 to 646A.270 shall
have a right of action under the bond or against the irrevocable letter of
credit. An action on the bond or against the irrevocable letter of credit may
be brought by the state or by any consumer by filing a complaint in a court of
competent jurisdiction not later than one year after the surety bond or
irrevocable letter of credit is canceled or terminated.
     (5) The aggregate liability of the surety
or issuer of the irrevocable letter of credit shall not exceed the principal
sum of the bond or irrevocable letter of credit.
     (6) If a credit services organization is
in compliance with the surety bond or irrevocable letter of credit provisions
of this section, the individual salespersons or agents or subagents of the
credit services organization who sell the services of that organization shall
not be required to obtain a separate surety bond or irrevocable letter of
credit. [Formerly 646.388]
     646A.260
Required disclosures. (1)
Before any agreement is entered into, or before any money is paid by a
consumer, whichever occurs first, the credit services organization shall
provide the consumer with written disclosure of the information described in
subsection (2) of this section. The credit services organization shall maintain
on file for a period of two years an exact copy of the disclosure statement,
personally signed by the consumer, acknowledging receipt of a copy of the
disclosure statement.
     (2) The disclosure statement referred to in
subsection (1) of this section shall include:
     (a) A complete and accurate statement of
the consumerÂ’s rights to review any file on the consumer maintained by any
consumer reporting agency, as provided under the Federal Fair Credit Reporting
Act, 15 U.S.C. 1681 et seq.
     (b) A statement that the consumer may
review the consumerÂ’s file under paragraph (a) of this subsection at no charge
if the request is made to the credit reporting agency within 30 days after
receiving notice that credit has been denied.
     (c) The approximate price the consumer
will be charged by the credit reporting agency to review the consumerÂ’s file
maintained by the credit reporting agency.
     (d) A complete and detailed description of
the services to be performed by the credit services organization for the
consumer and the total amount the consumer will have to pay, or become
obligated to pay, for the services.
     (e) A statement detailing the existence
and purpose of the surety bond or irrevocable letter of credit as described in
ORS 646A.258, and describing the procedure for commencing an action on the bond
or irrevocable letter of credit.
     (f) The name and address of the surety
company or insured institution that issued the bond or irrevocable letter of
credit.
     (g) A statement that a written, signed
agreement is necessary between the parties. [Formerly 646.390]
     646A.262
Contents of contract between consumer and credit services organization; rules. (1) Each contract between a consumer and a
credit services organization for the purchase of the services of the credit
services organization shall be in writing, in at least 10-point type, signed
and dated by the parties, and shall include all of the following:
     (a) The terms and conditions of payment,
including the total of all payments to be made by the consumer, whether to the
credit services organization or to some other person;
     (b) A full and detailed description of the
services to be performed by the credit services organization for the consumer,
including all guarantees and promises of full or partial refunds, and the date
by which the services are to be completely performed or the estimated length of
time for performing the services;
     (c) The address of the principal place of
business of the credit services organization and of the organizationÂ’s
registered agent within the state authorized to accept service of process; and
     (d) A conspicuous statement in at least
10-point boldfaced type, in immediate proximity to the space reserved for the
signature of the consumer, as follows: “You, the consumer, may cancel this
contract at any time prior to midnight of the third business day after the date
of this transaction. See the attached notice of cancellation form for an
explanation of this right.”
     (2) The contract shall be accompanied by a
completed form in duplicate, captioned “Notice of Cancellation” and printed in
at least 10-point boldfaced type. The form shall be attached to the contract,
be easily detachable and provide a detailed and complete description of the
consumerÂ’s right to cancel the contract. The director, by rule, shall design
the form.
     (3) The credit services organization shall
provide the consumer with a copy of the completed contract with all attachments
the consumer is required to sign at the time the agreement is signed. [Formerly
646.392]
     646A.264
Unenforceable contract provisions; burden of proof; injunctions. (1) Any contract that violates any provision
of ORS 646A.252 to 646A.270 and any waiver of any provision of ORS 646A.252 to
646A.270 by a consumer shall be void and unenforceable as contrary to public
policy. A credit services organization shall not attempt to induce a consumer
to waive the application of any provision of ORS 646A.252 to 646A.270.
     (2) In any proceeding under ORS 646A.252
to 646A.270, the burden of proving an exemption from a definition is upon the
person claiming such an exemption.
     (3) Any circuit court of this state has
jurisdiction in equity to restrain and enjoin violations of ORS 646.608 and
646A.250 to 646A.270.
     (4) This section shall not prohibit the
enforcement by any person of any right provided by ORS 646.608 and 646A.250 to
646A.270 or any other applicable law. [Formerly 646.394]
     646A.266
Audit of credit services organization; grounds for registration denial,
revocation, suspension or refusal to renew; civil penalty; rules. In addition to the authority conferred by
ORS 646.608:
     (1) Upon the director’s own motion or upon
receipt of a complaint by a customer of a credit services organization or of a
person acting as a credit services organization without registration, the
director may audit the organizationÂ’s customer records. If the director finds
any discrepancies in the customer records, the director may audit any other
accounts or records kept by the organization for discrepancies. The credit
services organization or person acting as a credit services organization
without registration shall pay the reasonable cost of any audit under this
section, as determined by the director.
     (2) The director may refuse to issue or
renew or may revoke or suspend any registration under ORS 646A.256 if the
Department of Consumer and Business Services determines that:
     (a) Any information a credit services
organization files with the department is false or untruthful;
     (b) A credit services organization has
violated ORS 646A.252 to 646A.270;
     (c) A credit services organization has
violated any of the rules of the department adopted under this section and ORS
646.608; or
     (d) A credit services organization has
failed to maintain in effect the bond or an irrevocable letter of credit
required by ORS 646A.258.
     (3) If the director issued an initial
order of revocation of a registration before the expiration of the
registration, the director may enter a final order of revocation even though
the registration has expired.
     (4) The department may impose a civil
penalty in an amount not to exceed $1,000 per violation for each violation of
ORS 646A.252 to 646A.270. The civil penalties shall be imposed as provided in
ORS 183.745.
     (5) Actions of the director under subsections
(1) to (4) of this section are subject to the provisions of ORS chapter 183.
     (6) The director may adopt rules necessary
for the administration of ORS 646.608 and 646A.250 to 646A.270. [Formerly
646.396]
     646A.268
Investigations; cease and desist order. The Director of the Department of Consumer and Business Services may:
     (1) Undertake the investigations,
including investigations outside this state, that the director considers
necessary to determine whether a person has violated, is violating or is about
to violate ORS 646A.252 to 646A.270, a rule of the director adopted under ORS
646A.256 or 646A.266 or an order of the director issued to enforce ORS 646A.252
to 646A.270;
     (2) Require a person to file a statement
in writing, under oath or otherwise, concerning the matter being investigated;
     (3) Take evidence from witnesses and
compel the attendance of witnesses and the production of books, papers,
correspondence, memoranda, agreements or other documents or records that the
director considers relevant or material to an investigation or proceeding; and
     (4) If the director has reason to believe
that a person has violated, is violating or is about to violate ORS 646A.252 to
646A.270, a rule of the director adopted under ORS 646A.256 or 646A.266 or an
order of the director issued to enforce ORS 646A.252 to 646A.270, issue an
order to cease and desist from the violation. [Formerly 646.397]
     646A.270
Cease and desist orders; service; effective date; hearing; judicial review. (1) The Director of the Department of
Consumer and Business Services shall serve an order under ORS 646A.268 on the
person named in the order.
     (2) An order issued under ORS 646A.268
becomes effective upon service on the person named in the order.
     (3) ORS 183.413 to 183.470 apply to an
order issued under ORS 646A.268.
     (4) Notwithstanding subsection (3) of this
section, a person may not obtain a hearing on the order unless the person
requests the hearing in writing within 20 days after service of the order.
     (5) A person who does not request a
contested case hearing may not obtain judicial review of the order.
     (6) The director may vacate or modify an
order issued under ORS 646A.268. A modified order is effective upon service on
the person named in the order. [Formerly 646.398]
(Gift Cards)
     646A.274
Definitions for ORS 646A.276 and 646A.278. As used in ORS 646A.276 and 646A.278, “gift card” means a prefunded
record evidencing a promise that the issuer will provide goods or services to
the owner of the record in the amount shown in the record. “Gift card” does not
include prepaid telephone calling cards, prepaid commercial mobile radio
services as defined in 47 C.F.R. 20.3 or any gift card usable with more than
one seller of goods or services. [2007 c.772 §1]
     646A.276
     (1) That has an expiration date;
     (2) That has a face value that declines as
a result of the passage of time or the lack of use of the card; or
     (3) That has a fee related to the card,
including, but not limited to, an inactivity fee, a maintenance fee or a
service fee. [2007 c.772 §2]
     646A.278
Requirements for sale of gift card that expires. A person may sell a gift card that has an expiration
date if:
     (1) The gift card bears, in at least
10-point type, the words “EXPIRES ON” or “EXPIRATION DATE” followed by the date
on which the card expires;
     (2) The person sells the gift card at a
cost below the face value of the card; and
     (3) The gift card does not expire until at
least 30 days after the date of sale. [2007 c.772 §3]
(Simulated
Invoices)
     646A.280
Definitions for ORS 646A.280 to 646A.290. As used in ORS 646A.280 to 646A.290:
     (1) “Invoice” means a document containing
an itemized list of previously ordered goods or services and an amount or
amounts of money owed by the recipient of the document.
     (2) “Recipient” means the person to whom
an invoice or simulated invoice is uttered.
     (3) “Simulated invoice” means a document
containing an itemized list of unordered goods or services and an amount or
amounts of money to be paid by the recipient of the document.
     (4) “Utter” has the meaning given in ORS
165.002. [Formerly 646.291]
     646A.282
Simulated invoices prohibited.
It is unlawful for any person to utter a simulated invoice if:
     (1) A reasonable recipient could, under
all the circumstances of its receipt, mistake the simulated invoice for an
invoice; or
     (2) The person knows or reasonably should
know that a recipient could mistake the simulated invoice for an invoice. [Formerly
646.293]
     646A.284
Cause of action by Attorney General; judgment; attorney fees. (1) The Attorney General shall have a cause
of action against any person who violates ORS 646A.282.
     (2) If the Attorney General prevails, the
court shall enter judgment against the defendant for:
     (a) Each simulated invoice uttered in this
state, for the greater of:
     (A) Three times the amount stated in the
simulated invoice; or
     (B) $500;
     (b) Such orders or judgments as may be necessary
to restore to any person any moneys of which the person was deprived by any
conduct in violation of ORS 646A.282; and
     (c) Such orders or judgments as may be
necessary to ensure cessation of conduct in violation of ORS 646A.282.
     (3) The court may award reasonable
attorney fees to the prevailing party in an action under this section.
     (4) All sums of money received by the
Department of Justice under a judgment, settlement or compromise in an action
or potential action brought under this section, shall, upon receipt, be
deposited with the State Treasurer to the credit of the Consumer Protection and
Education Revolving Account established pursuant to ORS 180.095. [Formerly
646.296]
     646A.286
Cause of action by private party; judgment; attorney fees. (1) A recipient of a simulated invoice who
has suffered any ascertainable loss as a result shall have a cause of action
against any person who violates ORS 646A.282.
     (2) If the recipient prevails, the court
shall enter judgment against the defendant for:
     (a) The greater of:
     (A) Three times the amount stated in the
simulated invoice received; or
     (B) $500 for each simulated invoice
received;
     (b) Such orders or judgments as may be
necessary to restore to the recipient any moneys of which the recipient was
deprived by any conduct in violation of ORS 646A.282; and
     (c) Such orders or judgments as may be
necessary to ensure cessation of conduct in violation of ORS 646A.282.
     (3) The court may award reasonable
attorney fees to the prevailing party in an action under this section. [Formerly
646.298]
     646A.288
Presumptions in cause of action brought under ORS 646A.284 or 646A.286. In any action brought under ORS 646A.284 or
646A.286, the following presumptions apply:
     (1) A simulated invoice that has been paid
by five or more persons could be mistaken for an invoice by a reasonable
recipient.
     (2) A person knows that a simulated
invoice uttered simultaneously with a copy of a publication or portion of a
publication previously ordered by the recipient from a person other than the
person uttering the simulated invoice could be mistaken for an invoice by a
reasonable recipient. [Formerly 646.300]
     646A.290
Construction; other remedies.
(1) The provisions of ORS 646A.280 to 646A.290 shall be liberally construed to
effectuate its remedial purposes.
     (2) The remedy provided by ORS 646A.280 to
646A.290 is in addition to any other remedy, civil or criminal, that may be
available under any other provision of law. Claims based on remedies available
under other provisions of law may be joined in an action under ORS 646A.280 to
646A.290 or may be asserted in a separate action. [Formerly 646.302]
REPURCHASING
(Repurchase
of Farm Implements by Supplier From Retailer)
     646A.300
Definitions for ORS 646A.300 to 646A.322. As used in ORS 646A.300 to 646A.322:
     (1) “Catalog” includes catalogs published
in any medium, including electronic catalogs.
     (2) “Change in competitive circumstances”
means a material detrimental effect on a retailerÂ’s ability to compete with
another retailer who sells the same brand of farm implements.
     (3) “Current model” means a model listed
in the supplierÂ’s current sales manual or any supplements to the manual.
     (4) “Current net price” means:
     (a) The price of parts or farm implements
listed in the supplierÂ’s price list or catalog in effect at the time the
contract is canceled or discontinued, less any applicable trade, volume or cash
discounts, or when the retailer made a warranty claim.
     (b) For superseded parts, the price listed
in the supplierÂ’s price list or catalog when the retailer purchased the parts.
     (5) “Current signs” means the principal
outdoor signs that:
     (a) The supplier requires a retailer to
obtain;
     (b) Identify the supplier; and
     (c) Identify the retailer as representing
the supplier or the supplierÂ’s farm implements or machinery.
     (6) “Dealership” means the location from
which a retailer buys, sells, leases, trades, stores, takes on consignment or
in any other manner deals in farm implements.
     (7) “Distributor” means a person who sells
or distributes new farm implements to a retailer.
     (8) “Farm implements” means:
     (a) Any vehicle designed or adapted and
used exclusively for agricultural operations and only incidentally operated or
used upon the highways;
     (b) Auxiliary items, such as trailers,
used with vehicles designed or adapted for agricultural operations;
     (c) Other consumer products for
agricultural purposes, including lawn and garden equipment powered by an
engine, supplied by the supplier to the retailer pursuant to a retailer agreement;
     (d) Attachments and accessories used in
the planting, cultivating, irrigating, harvesting and marketing of
agricultural, horticultural or livestock products; and
     (e) Outdoor power equipment, including,
but not limited to, self-propelled equipment used to maintain lawns and gardens
or used in landscape, turf or golf course maintenance.
     (9) “F.O.B.” has the meaning given that
term in ORS 72.3190.
     (10) “Inventory” means farm implements,
machinery and repair parts.
     (11) “Manufacturer” means a person who
manufactures or assembles new or unused farm implements.
     (12) “Net cost” means the price the
retailer actually paid for the merchandise to the supplier.
     (13) “Retailer” means any person engaged
in the business of retailing farm implements, machinery or repair parts in this
state.
     (14) “Retailer agreement” means an
agreement between a supplier and a retailer that provides for the rights and
obligations of the parties with respect to purchase or sale of farm implements.
     (15) “Specialized tool” means a tool that:
     (a) The supplier requires a retailer to
obtain; and
     (b) Is unique to the diagnosis or repair
of the supplierÂ’s farm implements or machinery.
     (16) “Supplier” means:
     (a) A wholesaler, manufacturer,
manufacturerÂ’s representative or distributor.
     (b) A successor in interest of a
manufacturer, manufacturerÂ’s representative or distributor, including, but not
limited to:
     (A) A purchaser of assets or shares of
stock;
     (B) A corporation or entity resulting from
merger, liquidation or reorganization; or
     (C) A receiver or trustee.
     (c) The assignee of a supplier.
     (17) “Warranty claim” means a claim for
payment submitted by a retailer to a supplier for service or parts provided to
a customer under a warranty issued by the supplier. [Formerly 646.415]
     646A.302
Application of ORS 646A.300 to 646A.322 to successor in interest or assignee of
supplier. The obligations of
a supplier under ORS 646A.300 to 646A.322 apply to the supplierÂ’s successor in
interest or assignee. A successor in interest includes a purchaser of assets or
shares, a surviving corporation or other entity resulting from a merger or
liquidation, a receiver and a trustee of the original supplier. [Formerly
646.419]
     646A.304
Payment for farm implements, parts, software, tools and signs upon termination
of retailer agreement. (1)
If a retailer agreement is terminated, canceled or discontinued, unless the
retailer elects to keep the farm implements, machinery and repair parts under a
contractual right to do so, the supplier shall pay the retailer for the farm
implements, machinery and repair parts or, if the retailer owes any sums to the
supplier, credit the cost of the farm implements, machinery and repair parts to
the retailerÂ’s account. The payment or credit shall be as follows:
     (a) The payment or the credit for the
unused complete farm implements and machinery in new condition shall be in a
sum equal to 100 percent of the net cost of all complete farm implements and
machinery that are current models and that have been purchased by the retailer
from the supplier within the 24 months immediately preceding notice of intent
to cancel or discontinue the retailer agreement. The payment or credit shall
include the transportation charges to the retailer and from the retailer to the
supplier, if the charges have been paid by the retailer or invoiced to the
retailerÂ’s account by the supplier, and a reasonable reimbursement for services
performed in connection with assembly or predelivery inspection of the
implements or machinery. The supplier assumes ownership of the farm implements
and machinery F.O.B. the dealership.
     (b) The payment or credit for equipment
used for demonstration or rental and that is in new condition shall equal the
depreciated value of the equipment to which the supplier and retailer have
agreed.
     (c)(A) The payment or credit for repair
parts shall be a sum equal to 95 percent of the current net prices of the
repair parts, including superseded parts, plus the charges for transportation
from the retailer to the destination designated by the supplier that the
retailer paid or the supplier invoiced to the retailerÂ’s account. The supplier
assumes ownership of the repair parts F.O.B. the dealership.
     (B) This paragraph applies to parts
purchased by the retailer from the supplier and held by the retailer on or
after the date of the cancellation or discontinuance of the retailer agreement.
     (C) This paragraph does not apply to
repair parts that:
     (i) The supplier identified as not
returnable when the retailer ordered the parts.
     (ii) The retailer purchased in a set of
multiple parts, unless the set is complete and in resalable condition.
     (iii) The retailer failed to return after
being offered a reasonable opportunity to return the repair part at a price not
less than 100 percent of the net price of the repair part as listed in the then
current price list or catalog.
     (iv) Have a limited storage life or are
otherwise subject to deterioration, including but not limited to rubber items,
gaskets and batteries and repair parts in broken or damaged packages.
     (v) Are single repair parts priced as a
set of two or more items.
     (vi) Are not resalable as new parts
without new packaging or reconditioning because of their condition.
     (D) The supplier shall also pay the
retailer or credit to the retailerÂ’s account a sum equal to five percent of the
current net price of all parts returned for the handling, packing and loading
of the parts, unless the supplier elects to list the inventory and perform
packing and loading of the parts itself.
     (d) Upon the payment or allowance of
credit to the retailerÂ’s account of the sum under this subsection, the title to
the farm implements, farm machinery or repair parts shall pass to the supplier
making the payment or allowing the credit and the supplier shall be entitled to
the possession of the farm implements, machinery or repair parts.
     (2)(a) If a retailer agreement is
terminated, canceled or discontinued, the supplier shall, upon request of the
retailer, pay the retailer for:
     (A) Computer and communications hardware
that:
     (i) The supplier required the retailer to
purchase within the preceding five years; and
     (ii) The retailer possesses on the date of
the agreementÂ’s termination, cancellation or discontinuation.
     (B) Computer software that:
     (i) The supplier required the retailer to
purchase from the supplier; and
     (ii) The retailer used exclusively to
support the retailerÂ’s dealings with the supplier.
     (b) If the retailer owes any sums to the
supplier, the supplier may credit the cost of the hardware and software to the
retailerÂ’s account.
     (c) The payment or credit shall be the net
cost of the hardware and software, less 20 percent per year that the retailer
possessed the hardware and software.
     (d) This subsection does not apply if the
retailer exercises a contractual right to keep the hardware or software.
     (3)(a) If a retailer agreement is
terminated, canceled or discontinued, the supplier shall pay the retailer for
the retailerÂ’s specialized tools.
     (b) If the retailer owes any sums to the
supplier, the supplier may credit the cost of the specialized tools to the
retailerÂ’s account.
     (c)(A) If a tool is new and unused and
used for the supplierÂ’s current models, the payment or credit shall be the net
cost of the tool.
     (B) If a tool is not new and unused and
used for the supplierÂ’s current models, the payment or credit shall be the net
cost of the tool, less 20 percent per year that the retailer possessed the
tool.
     (4)(a) If a retailer agreement is
terminated, canceled or discontinued, the supplier shall pay the retailer for
the retailerÂ’s current signs.
     (b) If the retailer owes any sums to the
supplier, the supplier may credit the cost of the signs to the retailerÂ’s
account.
     (c) The payment or credit shall be the net
cost of the sign, less 20 percent per year that the retailer possessed the
sign.
     (5) A supplier shall provide all payments
or allowances due under this section within 90 calendar days of the retailerÂ’s
return of the farm implements, machinery, repair parts, computer and
communications hardware, computer software, specialized tools or current signs.
A supplier who does not provide a payment or allowance within 90 calendar days
of the retailerÂ’s return of the farm implements, machinery, repair parts,
computer and communications hardware, computer software, specialized tools or
current signs shall pay the retailer interest of 18 percent per annum on the
past due amount until paid.
     (6) This section supplements any retailer
agreement between the retailer and the supplier covering the return of farm
implements, machinery, repair parts, computer and communications hardware,
computer software, specialized tools or current signs. The retailer may elect
to pursue either the retailerÂ’s remedy under the retailer agreement or the
remedy provided under this section. An election by the retailer to pursue the
remedy under the retailer agreement does not bar the retailerÂ’s right to the
remedy provided under this section as to those farm implements, machinery,
repair parts, computer and communications hardware, computer software,
specialized tools or current signs not affected by the retailer agreement. This
section does not affect the right of a supplier to charge back to the retailerÂ’s
account amounts previously paid or credited as a discount incident to the
retailerÂ’s purchase of goods.
     (7) This section does not apply to farm
implements, machinery, repair parts, computer and communications hardware,
computer software, specialized tools or current signs that a retailer acquired
from a source other than the supplier. [Formerly 646.425]
     Note: Section 13 (1), chapter 466, Oregon Laws
2003, provides:
     Sec.
13. (1) The amendments to
ORS 646.425 [renumbered 646A.304 in 2007] by section 2 of this 2003 Act apply
to retail agreements that:
     (a) Are entered into on or after the
effective date of this 2003 Act [January 1, 2004].
     (b) Are entered into before the effective
date of this 2003 Act and:
     (A) Do not state a date for termination,
cancellation or discontinuation; and
     (B) Are terminated, canceled or
discontinued after the effective date of this 2003 Act. [2003 c.466 §13(1)]
     646A.306
Repurchase of inventory by supplier; effect of new retailer agreement. (1) A supplier shall repurchase the
inventory of a retailer, as if the supplier had terminated the retailer
agreement, as follows:
     (a) Upon the death of a retailer whose
business is owned as a tenancy by the entirety, at the option of the spouse or
the heir or heirs of the retailer.
     (b) Upon the death of a stockholder of a
corporation operating as a retailer, at the option of the heir or heirs of the
stockholder and upon the consent of the board of directors.
     (2) The surviving spouse or the heir or
heirs may exercise the option under this section not later than one year from
the date of the death of the retailer or the stockholder.
     (3) Nothing in ORS 646A.300 to 646A.322
requires the repurchase of inventory by the supplier:
     (a) If the supplier and the corporation
acting as a retailer enter into a new retailer agreement to operate the retail
dealership.
     (b) If the supplier and the surviving
spouse or the heir or heirs of the retailer enter into a new retailer agreement
to operate the retail dealership. [Formerly 646.435]
     646A.308
Civil action for supplierÂ’s failure to pay; venue. (1) If, upon the cancellation of a retailer
agreement by the retailer or the supplier, the supplier fails to make payment
as required by ORS 646A.304 or 646A.306, the supplier shall be liable in a
civil action to be brought by the retailer or by the retailerÂ’s spouse, heir or
heirs for the payments required under ORS 646A.304 or 646A.306.
     (2) A person who brings an action under
this section must commence the action in the county in which the principal
place of business of the retailer is located. [Formerly 646.445]
     646A.310
Prohibited conduct by supplier.
(1) A supplier may not:
     (a) Coerce or compel any retailer to:
     (A) Order any farm implements or parts.
     (B) Accept delivery of farm implements
with special features or accessories not included in the base list price of the
farm implements as publicly advertised by the supplier.
     (C) Enter into any agreement, whether
written or oral, supplementary to an existing retailer agreement with the
supplier, unless the supplementary agreement or amendment to the agreement is
applicable to all other similarly situated retailers in the state.
     (b) Refuse to deliver in reasonable
quantities and within a reasonable time after receipt of the retailerÂ’s order,
to any retailer having a retailer agreement for the retail sale of new
equipment sold or distributed by the supplier, equipment covered by the
retailer agreement represented by the supplier to be available for immediate
delivery.
     (c) Require:
     (A) As a condition of renewal or extension
of a retailer agreement that the retailer complete substantial renovation of
the retailerÂ’s place of business, or acquire new or additional space to serve
as the retailerÂ’s place of business, unless the supplier provides at least one
yearÂ’s written notice of the condition which states all grounds supporting the
condition.
     (B) A retailer to complete a renovation or
acquisition in less than a reasonable time.
     (C) A retailer to waive a right to bring
an action to enforce the provisions of ORS 646A.300 to 646A.322.
     (d) Discriminate among similarly situated
retailers in this state with respect to the prices charged for equipment of
like grade and quality sold to them by the supplier.
     (e) Unreasonably withhold consent for a
retailer to change the capital structure of the retailerÂ’s business or the
means by which the retailer finances the business.
     (f) Prevent or attempt to prevent any
retailer or any officer, member, partner or stockholder of any retailer from
selling or transferring any interest to any other party or parties.
     (g) Require a retailer to assent to a
release, assignment, novation, waiver or estoppel which would relieve any
person from liability imposed by ORS 646A.300 to 646A.322.
     (h) Withhold consent to a transfer of an
interest in a dealership unless the retailerÂ’s area of responsibility or trade
area does not afford sufficient sales potential to reasonably support a
retailer.
     (i) Unreasonably withhold consent to the
sale, transfer or assignment of the retailerÂ’s interest or power of management
or control in the retailerÂ’s business.
     (j) In the event of the death or
incapacity of the retailer or the principal owner of the retailerÂ’s business,
unreasonably withhold consent to the transfer of the retailerÂ’s interest in the
business to a person who meets the reasonable financial, business experience
and character standards of the supplier.
     (2)(a) Subsection (1)(a)(A) of this
section does not apply if a law requires a retailer to order farm implements or
parts.
     (b) Subsection (1)(a)(B) of this section
does not apply if:
     (A) A law requires a supplier to supply
farm implements with special features;
     (B) The special features or accessories
are safety features; or
     (C) The retailer ordered the farm
implements without coercion or compulsion.
     (c)(A) As used in this paragraph, “act of
nature” means an unanticipated grave natural disaster or other natural
phenomenon of an exceptional, inevitable and irresistible character, the
effects of which could not have been prevented or avoided by the exercise of
due care or foresight.
     (B) Notwithstanding subsection (1)(b) of
this section, a supplier may refuse to deliver equipment if the refusal is due
to:
     (i) Prudent and reasonable restrictions on
extension of credit by the supplier to the retailer;
     (ii) An act of nature;
     (iii) A work stoppage or delay due to a
strike or labor difficulty;
     (iv) A bona fide shortage of materials;
     (v) A freight embargo; or
     (vi) Any other cause over which the
supplier has no control.
     (C) Subparagraph (B) of this paragraph
applies only if the supplier bases delivery on ordering histories with priority
given to the sequence in which the orders are received.
     (d) Subsection (1)(d) of this section does
not prohibit:
     (A) A supplier from using differentials
resulting from the differing quantities in which equipment is sold or
delivered.
     (B) A retailer from offering a lower price
in order to meet an equally low price of a competitor or the services or
facilities furnished by a competitor.
     (e) Subsection (1)(e) of this section
applies only if:
     (A) The retailer meets the reasonable
capital requirements imposed by the supplier;
     (B) The retailer agreed to the capital
requirements; or
     (C) The change by the retailer does not
result in a change of the controlling interest in the executive management or
board of directors, or of any guarantors of the retailer.
     (f) If a supplier does not accept a sale,
transfer or assignment, the supplier shall provide written notice of the
supplierÂ’s objection and specific reasons for withholding consent.
     (g) Notwithstanding subsection (1)(f) of
this section, a retailer may not sell, transfer or assign the retailerÂ’s
interest or power of management or control without the written consent of the
supplier.
     (h) Subsection (1)(j) of this section does
not apply if the retailer and supplier agreed to rights of succession.
     (i) Notwithstanding subsection (1)(f),
(h), (i) and (j) of this section, a supplier may withhold consent to a transfer
of interest in a retailer if, with due regard to regional market conditions and
distribution economies, the retailerÂ’s area of responsibility or trade does not
afford sufficient sales potential to reasonably support a retailer. [Formerly
646.447]
     646A.312
Termination, cancellation or failure to renew retailer agreement; notice; good
cause. (1) As used in this
section:
     (a) “Good cause” means a retailer’s:
     (A) Failing to comply with a term of a
retail agreement that is the same as a term in the supplierÂ’s agreements with
similarly situated retailers, including failure to meet marketing criteria;
     (B) Transferring a controlling ownership
interest in the retailerÂ’s business without the supplierÂ’s consent;
     (C) Making a material misrepresentation or
falsification of a record, contract, report or other document that the retailer
has submitted to the supplier;
     (D) Filing a voluntary petition in bankruptcy;
     (E) Being placed involuntarily in
bankruptcy and not discharging the bankruptcy within 60 days after the filing;
     (F) Becoming insolvent;
     (G) Being placed in a receivership;
     (H) Pleading guilty to, being convicted of
or being imprisoned for a felony;
     (I) Failing to operate in the normal
course of business for seven consecutive business days or terminating business;
     (J) Relocating or establishing a new or
additional place or places of business without the supplierÂ’s consent;
     (K) Failing to satisfy a payment
obligation as it comes due and payable to the supplier;
     (L) Failing to promptly account to the
supplier for any proceeds of the sale of farm implements or otherwise failing
to hold the proceeds in trust for the benefit of the supplier;
     (M) Consistently engaging in business
practices that are detrimental to the consumer or supplier, including, but not
limited to, excessive pricing, misleading advertising or failure to provide
service and replacement parts or to perform warranty obligations;
     (N) Inadequately representing the
supplier, causing lack of performance in sales, service or warranty areas, and
failing to achieve satisfactory market penetration at levels consistent with
similarly situated retailers based on available documented information;
     (O) Consistently failing to meet building
and housekeeping requirements; or
     (P) Consistently failing to comply with
the licensing laws that apply to the supplierÂ’s products and services.
     (b) “Similarly situated retailer” means a
retailer:
     (A) In a similar geographic area;
     (B) With similar sales volumes; and
     (C) In a similar market for farm
implements, machinery and repair parts.
     (2) With good cause, a supplier, directly
or through an officer, agent or employee, may terminate, cancel, fail to renew
or substantially change the competitive circumstances of a retailer agreement.
The termination, cancellation, nonrenewal or change becomes effective upon
notice to the retailer. The notice shall state the reasons constituting good
cause for the termination, cancellation, nonrenewal or change.
     (3)(a) Except as provided in subsection
(2) of this section, a supplier shall give a retailer 90 calendar daysÂ’ written
notice of the supplierÂ’s intent to terminate, cancel or fail to renew a
retailer agreement or change the competitive circumstances of a retailer
agreement.
     (b) The notice shall:
     (A) State the reasons for termination,
cancellation, nonrenewal or change; and
     (B) Provide that the retailer has 60
calendar days in which to cure a claimed deficiency.
     (c) If the retailer cures the deficiency
within 60 calendar days, the notice is void.
     (d) If the retailer fails to cure the
deficiency within 60 calendar days, the termination, cancellation, failure to
renew or change in competitive circumstances becomes effective on the date
specified in the notice.
     (4)(a) Notwithstanding subsection (3) of
this section, a supplier shall give a retailer one yearÂ’s written notice of the
retailerÂ’s failure to meet reasonable marketing criteria.
     (b) The notice shall:
     (A) State the reasonable marketing
criteria that the retailer has failed to meet; and
     (B) Provide the retailer one year in which
to meet the criteria.
     (c)(A) If the retailer fails to meet the
criteria within the year, the supplier may give notice of the termination,
cancellation, failure to renew the retail agreement or change to the retail
agreement.
     (B) A termination, cancellation, failure
to renew or change under this paragraph is effective 180 calendar days after
the supplier gives notice. [Formerly 646.449]
     646A.314
New or relocated dealership; notice; area of responsibility. (1) If a supplier enters into an agreement
to establish a new retailer or dealership or to relocate a retailer or
dealership, and the agreement assigns an area of responsibility, the supplier
must give written notice of the agreement by certified mail to any retailer or
dealership within an assigned area of responsibility that is within or
contiguous to the area of the new or relocated retailer or dealership.
     (2) If a supplier enters into an agreement
to establish a new retailer or dealership or to relocate a retailer or
dealership, and the agreement does not assign an area of responsibility, the
supplier must give written notice of the agreement by certified mail to any
retailer or dealership within a 75-mile radius of the new or relocated retailer
or dealership.
     (3) A notice required by this section
shall contain:
     (a) The new location of the retailer or
dealership;
     (b) The date that the retailer or
dealership will commence business at the new location; and
     (c)(A) If the agreement assigns an area of
responsibility, the name and address of retailers and dealerships with assigned
areas of responsibility that are within or contiguous to the area of the new or
relocated retailer or dealership; or
     (B) If the agreement does not assign an
area of responsibility, the name and address of retailers and dealerships
within a 75-mile radius of the new or relocated retailer or dealership. [Formerly
646.452]
     646A.316
Warranty claims; payment; time for completion. Unless otherwise agreed:
     (1) On a warranty claim, a supplier shall
provide reasonable compensation for the retailerÂ’s costs, including but not
limited to:
     (a) Diagnostic services;
     (b) Repair services;
     (c) Repair parts; and
     (d) Labor.
     (2) For labor on warranty service, a
supplier may not pay a retailer an hourly rate that is less than rate that the
retailer charges for nonwarranty service.
     (3) For repair parts on warranty service,
a supplier may not pay a retailer less than the amount that the retailer paid
for the parts plus a reasonable allowance for the shipping and handling of the
parts.
     (4) A supplier must allow a reasonable
time for a retailer to complete warranty service. [Formerly 646.453]
     646A.318
Warranty claims; processing.
(1) A supplier shall approve or disapprove a warranty claim in writing within
30 calendar days of the supplierÂ’s receipt of the claim.
     (2) If a supplier does not approve or
disapprove a warranty claim in writing within 30 calendar days of the supplierÂ’s
receipt of the claim, the supplier shall pay the claim within 60 calendar days
of receipt of the claim.
     (3) A supplier that approves a warranty
claim shall pay the claim within 30 calendar days of the claimÂ’s approval.
     (4) A supplier that disapproves a warranty
claim shall, in the writing required by subsection (1) of this section, notify
the retailer of the reasons for the disapproval.
     (5) If a supplier disapproves a warranty
claim because the retailer failed to comply with procedures for submitting the
claim prescribed by the retailer agreement, the retailer may resubmit the claim
within 30 calendar days of the retailerÂ’s receipt of the supplierÂ’s
disapproval.
     (6) A supplier may not disapprove a
warranty claim as untimely if the claim covers service or parts provided while
a retailer agreement was in effect.
     (7)(a) For one year after payment of a
warranty claim, the supplier may audit records that support the claim.
     (b) A supplier may not audit a record that
supports a claim more than one year after paying the claim unless an audit has
disclosed that the retailer submitted a false claim.
     (c) A supplier may:
     (A) Adjust a claim paid in error;
     (B) Require a retailer to return payment
made on a false claim; and
     (C) If the retailer owes an amount to the
supplier, credit the amount of a claim to the retailerÂ’s account. [Formerly
646.454]
     646A.320
RetailerÂ’s improvements to products. Unless otherwise agreed:
     (1) If a supplier requires a retailer to
improve the safety of farm implements or machinery, the supplier shall
reimburse the retailer for the costs of parts, labor and transportation that
the retailer incurred to make the improvement.
     (2) If a supplier requires a retailer to
improve farm implements or machinery for reasons other than safety, the
supplier shall reimburse the retailer for the costs of parts and labor that the
retailer incurred to make the improvement.
     (3) For labor to improve farm implements
or machinery, a supplier may not pay a retailer an hourly rate that is less
than rate that the retailer charges for like services.
     (4) For parts to improve farm implements
or machinery, a supplier may not pay a retailer less than the amount that the
retailer paid for the parts plus a reasonable allowance for the shipping and
handling of the parts. [Formerly 646.456]
     646A.322
Remedies; arbitration; cause of action; attorney fees; injunctive relief. (1)(a) Any party to a retailer agreement
aggrieved by the conduct of the other party to the agreement under ORS
646A.310, 646A.312, 646A.314, 646A.316, 646A.318 or 646A.320 may seek
arbitration of the issues under ORS 36.600 to 36.740. Unless the parties agree
to different arbitration rules, the arbitration shall be conducted pursuant to
the commercial arbitration rules of the American Arbitration Association. If
the parties agree, the arbitration shall be the partiesÂ’ only remedy and the
findings and conclusions of the arbitrator or panel of arbitrators shall be
binding upon both parties.
     (b) The arbitrator or arbitrators may
award the prevailing party:
     (A) The costs of witness fees and other
fees in the case;
     (B) Reasonable attorney fees; and
     (C) Injunctive relief against unlawful
termination, cancellation, nonrenewal or change in competitive circumstances.
     (2) Notwithstanding subsection (1) of this
section, any retailer has a civil cause of action in circuit court against a
supplier for damages sustained by the retailer as a consequence of the supplierÂ’s
violation of ORS 646A.310, 646A.312, 646A.314, 646A.316, 646A.318 or 646A.320,
together with:
     (a) The actual costs of the action;
     (b) Reasonable attorney fees; and
     (c) Injunctive relief against unlawful
termination, cancellation, nonrenewal or change in competitive circumstances.
     (3) A supplier bears the burden of proving
that a retailerÂ’s area of responsibility or trade area does not afford
sufficient sales potential to reasonably support the retailer. The supplierÂ’s
proof must be in writing.
     (4) The remedies set forth in this section
are not exclusive and are in addition to any other remedies permitted by law,
unless the parties have chosen binding arbitration under subsection (1) of this
section. [Formerly 646.459]
(Repurchase
of Motor Vehicles)
     646A.325
Repurchase of motor vehicle by manufacturer; notice to dealer; contents of notice;
notice to prospective buyer.
(1) The manufacturer of a motor vehicle who repurchases the vehicle for any
reason shall inform any vehicle dealer to whom the manufacturer subsequently
delivers the vehicle for resale that the vehicle has been repurchased by the
manufacturer. If the reason for the repurchase was failure or inability to
conform the vehicle to express warranties under the provisions of ORS 646A.400
to 646A.418 or any similar law of another jurisdiction, the manufacturer shall
also inform the dealer of that fact.
     (2) A dealer who has been given
information required by subsection (1) of this section shall give the
information, in writing, to any prospective buyer of the vehicle.
     (3) An owner of a motor vehicle who has
been given information as required by subsection (1) or (2) of this section
shall give the information, in writing, to any prospective buyer of the
vehicle.
     (4) As used in this section and ORS
646A.327, “motor vehicle” has the meaning given in ORS 646A.400. [Formerly
646.874]
     646A.327
Attorney fees for action under ORS 646A.325. The court may award reasonable attorney fees to the prevailing party
in an action against a person who has a duty to disclose information under ORS
646A.325. [Formerly 646.876]
MAILINGS AND
DELIVERIES
(Mail Agents)
     646A.340
Definitions for ORS 646A.340 to 646A.348. As used in ORS 646A.340 to 646A.348:
     (1) “Mail agent” means any person, sole
proprietorship, partnership, corporation or other entity who owns, manages,
rents or operates one or more mailboxes, as defined in this section, for
receipt of United States mail or materials received from or delivered by a
private express carrier, for any person, sole proprietorship, partnership,
corporation or other entity not the mail agent.
     (2) “Mailbox” means any physical location
or receptacle where
     (3) “Tenant” means any person, sole
proprietorship, partnership, corporation or other entity who contracts with or
otherwise causes a mail agent to receive, store, sort, hold or forward any
United States mail or materials received from or delivered by any private
express carrier on the tenantÂ’s behalf. [Formerly 646.221]
     646A.342
Prohibited conduct; required verifications and notice. (1) A mail agent shall not contract with a
tenant to receive
     (2) Prior to contracting with a tenant to
receive
     (a) The identity of the tenant.
     (b) The residence address of the tenant if
the tenant is an individual or the business address of the tenant if the tenant
is a business entity.
     (c) In the case of a corporation, that the
corporation is authorized to do business in this state.
     (d) In the case of an entity using an
assumed business name, that the name has been registered for use in the State
of
     (3) The mail agent shall accept mail or
materials received from or delivered by a private express carrier on behalf of
the tenant only if the mail is, or the materials received from or delivered by
a private express carrier are addressed to the tenant. The mail agent shall not
deposit
     (4) Whenever a mail agent has reason to
believe that a tenant is using a mailbox to escape identification, the mail
agent shall immediately notify the Attorney General and the United States
Postal Inspector. [Formerly 646.225]
     646A.344
Bond or letter of credit; action; exceptions. (1) Except as provided in subsection (5) of this section, a mail agent
shall maintain:
     (a) A surety bond in the sum of $10,000
executed by the mail agent as obligor, together with a surety company
authorized to do business in this state as surety; or
     (b) An irrevocable letter of credit issued
by an insured institution as defined in ORS 706.008 in the amount of $10,000.
     (2) The bond or letter of credit must:
     (a) Be executed to the State of Oregon and
for the use of the state and of any person who may have a cause of action
against the obligor of the bond or the letter of credit for a violation of ORS
646A.342 or for damages under ORS 646A.346.
     (b) Provide that the obligor will comply
with ORS 646A.342 and will pay to the state and to any person the moneys that
may become due or owing to the state or to the person from the obligor for a violation
of ORS 646A.342.
     (3) The Attorney General shall approve the
form of the bond or letter of credit.
     (4) If a person recovers a judgment
against a mail agent for a violation of ORS 646A.342 and execution issued upon
the judgment is returned unsatisfied in whole or in part, the person may
maintain an action upon the bond or letter of credit.
     (5) Subsection (1) of this section does
not apply to a mail agent whose activity as a mail agent consists solely of
receiving, storing, sorting, holding or forwarding United States mail or
materials received from or delivered by a private express carrier for tenants
of the mail agent if:
     (a) The tenant is also renting or leasing
from the mail agent an office, store, residential unit or other space or unit
intended for human occupancy, and the space or unit is located on the same
premises as the mailbox; and
     (b) The mail agent services that the mail
agent is providing to the tenant are incidental to and a part of the
landlord-tenant relationship that exists between the mail agent and the tenant
with respect to the leased space or unit. [Formerly 646.229]
     646A.346
Damages. Upon proof by a
preponderance of evidence that a mail agent has failed to satisfy any of the
mail agentÂ’s duties set forth in ORS 646A.342, the mail agent shall be liable
for actual damages caused to any person who sent United States mail or
materials received from or delivered by a private express carrier addressed to
a fictitious person at any tenantÂ’s mailbox and who is damaged because the person
who sent the United States mail or materials received from or delivered by a
private express carrier is unable to identify the tenant. A mail agentÂ’s
liability under this section shall not exceed $1,000 per occurrence. [Formerly
646.235]
     646A.348
Action by Attorney General; civil penalty; injunction; damages; attorney fees
and costs. (1) The Attorney
General may bring an action in the name of the state against any mail agent for
violation of ORS 646A.342 or 646A.344. Upon proof by a preponderance of the
evidence of a violation of ORS 646A.342 or 646A.344, a mail agent shall forfeit
and pay a civil penalty of not more than $1,000 for an initial violation. For a
second or subsequent violation, the mail agent shall forfeit and pay a civil
penalty of not more than $5,000 for each violation.
     (2) The Attorney General may bring an
action in the name of the state against any mail agent or other person or
entity to restrain or prevent any violation of ORS 646A.342 or 646A.344.
     (3) The Attorney General may bring an
action on behalf of a person to obtain the damages caused to the person by a
mail agentÂ’s violation of ORS 646A.342 or 646A.344.
     (4) The court may award reasonable
attorney fees and costs of investigation, preparation and litigation to the
Attorney General if the Attorney General prevails in an action under this
section. The court may award reasonable attorney fees and costs of
investigation, preparation and litigation to a defendant who prevails in an
action under this section if the court determines that the Attorney General had
no objectively reasonable basis for asserting the claim or no reasonable basis
for appealing an adverse decision of the trial court. [Formerly 646.240]
(Delivery of
Hazardous Materials)
     646A.350
Delivery of unrequested hazardous substances prohibited. No person shall deliver, or cause to be
delivered, any hazardous substance, as defined in ORS 453.005 (7), to any
residential premises without the prior consent of any occupant of such
premises. [Formerly 646.870]
     646A.352
Penalty. Violation of ORS
646A.350 is a Class A misdemeanor. [Formerly 646.992]
(Other
Mailings or Deliveries)
     646A.360
Unsolicited facsimile machine transmissions. (1) If a person receives on a facsimile machine any unsolicited and
unwanted advertising material for the sale of any realty, goods or services,
the person may give the sender of such material written notice to discontinue
further such transmissions. No person who has received such a discontinuance
notice shall use a facsimile machine to transmit unsolicited advertising
material for the sale of realty, goods or services to the person who gave the
discontinuance notice for a period of one calendar year from the date the
notice was given.
     (2) As used in this section, “facsimile
machine” means a machine that electronically transmits or receives facsimiles
of documents through connection with a telephone network. [Formerly 646.872]
     646A.362
Exclusion of name from sweepstakes promotion mailing list; written request;
rules. (1) As used in this
section:
     (a) “Exclusion request” means a written
request to be excluded from a sweepstakes promotion mailing list or to be
placed on a list of persons to whom sweepstakes promotions may not be mailed.
     (b) “Sweepstakes promotion” has the
meaning given that term in ORS 124.005.
     (2) Any person who receives a sweepstakes
promotion, or a combination of sweepstakes promotions from the same service, in
the
     (3) The exclusion request shall be mailed
to the address to which the recipient would have sent a payment for any goods
or services promoted in the sweepstakes promotion had the recipient ordered the
goods or services instead of mailing an exclusion request.
     (4) An originator of a sweepstakes
promotion who receives an exclusion request shall exclude the requestorÂ’s name
from the originatorÂ’s sweepstakes promotion mailing list or shall place the
requestorÂ’s name on a list of persons to whom sweepstakes promotions may not be
mailed.
     (5) The Attorney General shall adopt rules
necessary to implement this section.
     (6) It is an affirmative defense to a
claim or charge of violating subsection (4) of this section that the originator
of the sweepstakes promotion had, at the time of the violation, implemented
reasonable practices or procedures for preventing a violation. [Formerly
646.879]
     646A.365
Check, draft or payment instrument creating obligation for payment. A person may not mail or cause to be sent a
check, draft or other payment instrument that, when deposited or cashed,
obligates the depositor or payee thereafter to make any payment. This section
does not apply to an extension of credit or an offer to lend money. [2007 c.304
§1]
AUTOMATIC
DIALING AND ANNOUNCING DEVICES
     646A.370
Definitions for ORS 646A.370 to 646A.374. As used in ORS 646A.370 to 646A.374:
     (1) “Automatic dialing and announcing
device” means an automated device that selects and dials telephone numbers and
that, working alone or in conjunction with another device, disseminates a
prerecorded or synthesized voice message to the telephone number called.
     (2) “Call” means an attempt made to
contact or a contact made with a subscriber by means of a telephone or
telephone line.
     (3) “Caller” means a person that attempts
to contact or that contacts a subscriber by using a telephone or telephone
line.
     (4) “Caller identification service” means
a telephone service that permits subscribers to see a callerÂ’s telephone number
before answering the telephone.
     (5) “Established business relationship”
means a previous transaction or series of transactions between a caller and a
subscriber that occurred within the 18 months preceding a call.
     (6) “Subscriber” means an individual who
has obtained residential or wireless telephone services from a
telecommunications provider, or a person who resides with the individual. [2007
c.823 §1]
     646A.372
Limits on usage of automatic dialing and announcing device. (1) A caller may not use an automatic
dialing and announcing device in order to call a subscriber unless the device
is designed and operated so as to disconnect within 10 seconds after the
subscriber terminates the call.
     (2) A caller may not use an automatic
dialing and announcing device that dials telephone numbers randomly or
sequentially unless the range of telephone numbers from which the device
chooses the number to dial does not include numbers for:
     (a) Fire protection, law enforcement or
other emergency agencies;
     (b) Hospital and health care facilities,
physicianÂ’s offices, poison control centers or suicide prevention or domestic
violence counseling services; and
     (c) Subscribers who appear on a list
compiled for the purpose of informing potential callers that the subscriber
does not want to receive telephone solicitations.
     (3) Subsection (2)(c) of this section does
not apply to a caller who:
     (a) Has an established business
relationship with the subscriber;
     (b) Is subject to regulation under the
Fair Debt Collection Practices Act, 15 U.S.C. 1692 et seq.;
     (c) Is a representative of a public safety
or law enforcement agency; or
     (d) Is a representative of a school
district or school if the subscriber is an employee of the school district, a
student or the studentÂ’s parent, guardian or other family member.
     (4) A caller who uses an automatic dialing
and announcing device may use the device to call a subscriber only between the
hours of 9 a.m. and 9 p.m. [2007 c.823 §2]
     646A.374
Prohibited actions. (1) A
caller who uses an automatic dialing and announcing device in order to call a
subscriber may not misrepresent or falsify, either in speaking with the
subscriber or in the prerecorded or synthesized voice message disseminated
during the call:
     (a) The caller’s identity and the identity
of any person on behalf of whom the caller is making the call;
     (b) The telephone number from which the
caller is making the call;
     (c) The location from which the caller is
making the call; or
     (d) The purpose for which the caller is
making the call.
     (2) A caller may not intentionally alter,
misrepresent or falsify the information that a caller identification service
would ordinarily provide to a subscriber who uses such a service.
     (3) A person who provides a caller
identification service is not subject to civil liability for a callerÂ’s
violation of this section. [2007 c.823 §3]
     646A.376
Enforcement; civil penalty.
Violation of ORS 646A.372 or 646A.374 is an unlawful trade practice subject to
enforcement under ORS 646.632. Notwithstanding the provisions of ORS 646.642, a
civil penalty imposed for a violation of ORS 646A.372 or 646A.374 may not
exceed $5,000. [2007 c.823 §4]
WARRANTY
REGULATION AND ENFORCEMENT
(Enforcement
of Express Warranties on New Motor Vehicles)
     646A.400
Definitions for ORS 646A.400 to 646A.418. As used in ORS 646A.400 to 646A.418:
     (1) “Consumer” means:
     (a) The purchaser or lessee, other than
for purposes of resale, of a new motor vehicle normally used for personal,
family or household purposes;
     (b) Any person to whom a new motor vehicle
used for personal, family or household purposes is transferred for the same
purposes during the duration of an express warranty applicable to such motor
vehicle; and
     (c) Any other person entitled by the terms
of such warranty to enforce the obligations of the warranty.
     (2) “Motor vehicle” means a passenger
motor vehicle as defined in ORS 801.360. [Formerly 646.315]
     646A.402
Availability of remedy. The
remedy under the provisions of ORS 646A.400 to 646A.418 is available to a
consumer if:
     (1) A new motor vehicle does not conform
to applicable manufacturerÂ’s express warranties;
     (2) The consumer reports each
nonconformity to the manufacturer, its agent or its authorized dealer, for the
purpose of repair or correction, during the period of one year following the
date of original delivery of the motor vehicle to the consumer or during the
period ending on the date on which the mileage on the motor vehicle reaches
12,000 miles, whichever period ends earlier; and
     (3) The manufacturer has received direct
written notification from or on behalf of the consumer and has had an
opportunity to correct the alleged defect. “Notification” under this subsection
includes, but is not limited to, a request by the consumer for an informal
dispute settlement procedure under ORS 646A.408. [Formerly 646.325]
     646A.404
ConsumerÂ’s remedies; manufacturerÂ’s affirmative defenses. (1) If the manufacturer or its agents or
authorized dealers are unable to conform the motor vehicle to any applicable
manufacturerÂ’s express warranty by repairing or correcting any defect or
condition that substantially impairs the use, market value or safety of the
motor vehicle to the consumer after a reasonable number of attempts, the
manufacturer shall:
     (a) Replace the motor vehicle with a new
motor vehicle; or
     (b) Accept return of the vehicle from the
consumer and refund to the consumer the full purchase or lease price paid,
including taxes, license and registration fees and any similar collateral
charges excluding interest, less a reasonable allowance for the consumerÂ’s use
of the vehicle.
     (2) Refunds shall be made to the consumer
and lienholder, if any, as their interests may appear. A reasonable allowance
for use is that amount directly attributable to use by the consumer prior to
the first report of the nonconformity to the manufacturer, agent or dealer and
during any subsequent period when the vehicle is not out of service by reason
of repair.
     (3) It shall be an affirmative defense to any
claim under ORS 646A.400 to 646A.418:
     (a) That an alleged nonconformity does not
substantially impair such use, market value or safety; or
     (b) That a nonconformity is the result of
abuse, neglect or unauthorized modifications or alterations of the motor
vehicle by the consumer. [Formerly 646.335]
     646A.406
Presumption of reasonable attempt to conform; extension of time for repairs;
notice to manufacturer. (1)
It shall be presumed that a reasonable number of attempts have been undertaken
to conform a motor vehicle to the applicable manufacturerÂ’s express warranties
if, during the period of one year following the date of original delivery of
the motor vehicle to a consumer or during the period ending on the date on
which the mileage on the motor vehicle reaches 12,000 miles, whichever period
ends earlier:
     (a) The same nonconformity has been
subject to repair or correction four or more times by the manufacturer or its
agent or authorized dealer, but such nonconformity continues to exist; or
     (b) The vehicle is out of service by
reason of repair or correction for a cumulative total of 30 or more business
days.
     (2) A repair or correction for purposes of
subsection (1) of this section includes a repair that must take place after the
expiration of the earlier of either period.
     (3) The period ending on the date on which
the mileage on the motor vehicle reaches 12,000 miles, the one-year period and
the 30-day period shall be extended by any period of time during which repair
services are not available to the consumer because of a war, invasion, strike,
fire, flood or other natural disaster.
     (4) In no event shall the presumption
described in subsection (1) of this section apply against a manufacturer unless
the manufacturer has received prior direct written notification from or on
behalf of the consumer and has had an opportunity to cure the defect alleged. [Formerly
646.345]
     646A.408
Use of informal dispute settlement procedure as condition for remedy; binding
effect on manufacturer. If
the manufacturer has established or participates in an informal dispute
settlement procedure that substantially complies with the provisions of 16
C.F.R. part 703, as from time to time amended, and causes the consumer to be
notified of the procedure, ORS 646A.404 concerning refunds or replacement shall
not apply to any consumer who has not first resorted to the procedure. A
decision resulting from arbitration pursuant to the informal dispute settlement
procedure shall be binding on the manufacturer. [Formerly 646.355]
     646A.410
Informal dispute settlement procedure; recordkeeping; review by Department of
Justice. A manufacturer
which has established or participates in an informal dispute settlement
procedure shall keep records of all cases submitted to the procedure under ORS
646A.408 and shall make the records available to the Department of Justice if
the department requests them. The department may review all case records kept
under this section to determine whether or not the arbitrators are complying
with the provisions of ORS 646A.400 to 646A.418 in reaching their decisions. [Formerly
646.357]
     646A.412
Action in court; damages if manufacturer does not act in good faith; attorney
fees. (1) If a consumer
brings an action in court under ORS 646A.400 to 646A.418 against a manufacturer
and the consumer is granted one of the remedies specified in ORS 646A.404 (1)
by the court, the consumer shall also be awarded up to three times the amount
of any damages, not to exceed $50,000 over and above the amount due the
consumer under ORS 646A.404 (1), if the court finds that the manufacturer did
not act in good faith.
     (2) The court may award reasonable
attorney fees to the prevailing party in an appeal or action under this
section. [Formerly 646.359]
     646A.414
Limitations on actions against dealers. (1) Nothing in ORS 646A.400 to 646A.418 creates a cause of action by a
consumer against a vehicle dealer.
     (2) A manufacturer may not join a dealer
as a party in any proceeding brought under ORS 646A.400 to 646A.418, nor may
the manufacturer try to collect from a dealer any damages assessed against the
manufacturer in a proceeding brought under ORS 646A.400 to 646A.418. [Formerly
646.361]
     646A.416
Limitation on commencement of action. Any action brought under ORS 646A.400 to 646A.418 shall be commenced
within one year following whichever period ends earlier:
     (1) The period ending on the date on which
the mileage on the motor vehicle reaches 12,000 miles; or
     (2) The period of one year following the
date of the original delivery of the motor vehicle to the consumer. [Formerly
646.365]
     646A.418
Remedies supplementary to existing statutory or common law remedies; election
of remedies. Nothing in ORS
646A.400 to 646A.418 is intended in any way to limit the rights or remedies
that are otherwise available to a consumer under any other law. However, if the
consumer elects to pursue any other remedy in state or federal court, the
remedy available under ORS 646A.400 to 646A.418 shall not be available insofar
as it would result in recovery in excess of the recovery authorized by ORS
646A.404 without proof of fault resulting in damages in excess of such
recovery. [Formerly 646.375]
(Vehicle
Protection Product Warranties)
     646A.430
Definitions for ORS 646A.430 to 646A.450. As used in ORS 646A.430 to 646A.450:
     (1) “Consumer” means a person in this
state who purchases a vehicle protection product or who possesses a vehicle
protection product and is entitled to enforce a warranty for the product by
reason of the personÂ’s possession.
     (2) “Reimbursement insurance policy” means
an insurance policy issued to a warrantor that:
     (a) Reimburses the warrantor for expenses
or other obligations the warrantor incurs in complying with the terms and
conditions in a vehicle protection product warranty; or
     (b) Pays on a warrantor’s behalf all
obligations due under the terms and conditions of the warrantorÂ’s vehicle
protection product warranty.
     (3) “Reimbursement insurer” means an
insurer that issues a reimbursement insurance policy.
     (4) “Seller” means a person engaged in the
business of offering a vehicle protection product for sale to a consumer.
     (5) “Vehicle protection product” means a
product, system or service that is designed to prevent a particular type of
loss or damage to a vehicle from theft, and that is:
     (a) Provided as a product or system that
is installed on or applied to a vehicle or provided as a service for a specific
vehicle; and
     (b) Accompanied by a written warranty.
     (6) “Warrantor” means a person named under
the terms of a vehicle protection product warranty as the contractual obligor
to the consumer. “Warrantor” does not include an authorized insurer that
provides a warranty reimbursement insurance policy. [2007 c.685 §1]
     Note: Sections 14 and 15, chapter 685, Oregon Laws
2007, provide:
     Sec.
14. (1) Sections 1 to 11 of
this 2007 Act [646A.430 to 646A.450] and the amendments to ORS 646.608 by
section 13 of this 2007 Act apply to persons conducting business in this state
as warrantors on or after the operative date specified in section 15 of this 2007
Act [July 1, 2008].
     (2) Sections 1 to 11 of this 2007 Act and
the amendments to ORS 646.608 by section 13 of this 2007 Act apply to insurers
that offer reimbursement insurance policies in this state on or after the
operative date specified in section 15 of this 2007 Act.
     (3) Sections 1 to 11 of this 2007 Act and
the amendments to ORS 646.608 by section 13 of this 2007 Act apply to
transactions for vehicle protection products conducted on or after the
operative date specified in section 15 of this 2007 Act. [2007 c.685 §14]
     Sec.
15. (1) Sections 1 to 12 of
this 2007 Act [646A.430 to 646A.452] and the amendments to ORS 646.608 by
section 13 of this 2007 Act become operative on July 1, 2008.
     (2) The Director of the Department of
Consumer and Business Services may take any action before the operative date
specified in this section that is necessary to enable the director to exercise,
on and after the operative date specified in this section, all the duties,
functions and powers conferred on the director by sections 1 to 11 of this 2007
Act [646A.430 to 646A.450] and the amendments to ORS 646.608 by section 13 of
this 2007 Act. [2007 c.685 §15]
     646A.432
Applicability of ORS 646A.430 to 646A.450; applicability of other law. (1) ORS 646A.430 to 646A.450 apply to
vehicle protection product warranties that:
     (a) Accompany vehicle protection products
delivered to consumers in this state; and
     (b) Require the warrantor, to the extent
set forth in the warranty, to pay to the consumer expenses related to the loss
of or damage to the vehicle.
     (2) A vehicle protection product warranty
subject to ORS 646A.430 to 646A.450 is not a service contract and is not
subject to the provisions of ORS 646A.150 to 646A.172. A sellerÂ’s or warrantorÂ’s
selling or providing a warranty for a vehicle protection product in compliance
with ORS 646A.430 to 646A.450 does not subject the seller or warrantor to ORS
646A.150 to 646A.172.
     (3) A vehicle protection product warranty
subject to ORS 646A.430 to 646A.450 is not insurance and is not subject to the
provisions of the Insurance Code. A sellerÂ’s or warrantorÂ’s selling or
providing a warranty for a vehicle protection product in compliance with ORS
646A.430 to 646A.450 does not subject the seller or warrantor to the Insurance
Code. [2007 c.685 §2]
     Note: See note under 646A.430.
     646A.434
     (a) A copy of the vehicle protection
product warranty for the vehicle protection product; or
     (b) A receipt for, or other written
evidence of, the consumerÂ’s purchase of the vehicle protection product.
     (2) A warrantor who complies with
subsection (1)(b) of this section shall provide to the consumer a copy of the
vehicle protection product warranty within 30 days after the date of purchase.
     (3) The vehicle protection product
warranty must:
     (a) Be written and printed or typed;
     (b) List, either preprinted on the
warranty document or, if negotiated at the time of sale, in an addition to the
warranty document, the purchase price and terms of sale for the vehicle
protection product;
     (c) List the name, address, phone number
and other available contact information for the warrantor;
     (d) List, either preprinted on the
warranty document or in an addition to the warranty document at the time of
sale, the name of and contact information for the administrator for the vehicle
protection product warranty, if any, the name of the seller and the name of the
consumer, if the consumer has provided the consumerÂ’s name to the warrantor;
     (e) Specify the nature or contents of the
vehicle protection product or the services included with the product and any
limitations, exceptions or exclusions;
     (f) Describe the procedure for making a
claim under the warranty and provide an address and telephone number for
submitting claims;
     (g) Specify any restrictions governing the
transferability or cancellation of the vehicle protection product warranty;
     (h) Disclose the items for which the
warrantor will pay incidental expenses, along with any formula the warrantor
uses to calculate the expenses, or provide for a fixed sum for payment of
incidental expenses;
     (i) State the consumer’s duties, including
any duty to protect against further damage to the vehicle and any requirement
to follow the warrantyÂ’s instructions;
     (j) State that a reimbursement insurance
policy guarantees the obligations to the consumer set forth in the warranty;
     (k) List the name and address and other
available contact information for the reimbursement insurer and state that if
the warrantor does not provide a covered service within 60 days after the date
the consumer provides proof of loss or damage, the consumer may apply directly
to the reimbursement insurer for reimbursement;
     (L) List the name, mailing address and
telephone number for the Department of Consumer and Business Services and state
that the consumer may address unresolved complaints concerning a warrantor or
questions concerning the regulation of a warrantor to the department; and
     (m) State that the vehicle protection
product warranty is a product warranty and not insurance. [2007 c.685 §3]
     Note: See note under 646A.430.
     646A.436
Warrantor registration; requirements; expiration; fees; rules. (1) A person may not conduct business as a
warrantor in this state or make a representation that the person is a warrantor
in this state unless the person registers in writing with the Director of the
Department of Consumer and Business Services in a form the director prescribes
by rule. For purposes of this section, a person who offers for sale or sells a
vehicle protection product but does not offer a warranty with the product or is
not contractually obligated to any performance under the terms and conditions
of a warranty that accompanies the product is not a warrantor subject to this
section.
     (2) A registration form submitted to the
director under this section shall contain the following information:
     (a) The warrantor’s name and telephone
number and the address of the warrantorÂ’s principal office;
     (b) The name, address and telephone number
of the warrantorÂ’s agent for the service of process in this state if the agent
is not the warrantor;
     (c) The identities of the warrantor’s
executive officer and officers directly responsible for the warrantorÂ’s
business operations related to vehicle protection product warranties;
     (d) The name, address and telephone number
of any person the warrantor designates to administer the warrantorÂ’s vehicle
protection product warranties in this state;
     (e) A copy of each warranty form the
warrantor proposes to use in this state; and
     (f) A copy of a warranty reimbursement
insurance policy the warrantor intends to use to demonstrate the warrantorÂ’s
financial responsibility in accordance with ORS 646A.438.
     (3) A warrantor shall report any changes
to the information provided in this section to the director not later than 30
days after the information has changed.
     (4) A registration under this section
expires on December 31 of each year. The director by rule shall prescribe a
procedure for renewing a registration under this section.
     (5) A warrantor shall pay a fee in an
amount the director sets by rule for each registration or renewal under this
section. The fee must be in an amount that, when aggregated with all other fees
collected under this section, is sufficient to pay the expenses of
administering and enforcing ORS 646A.430 to 646A.450. [2007 c.685 §4]
     Note: See note under 646A.430.
     646A.438
Reimbursement insurance; requirements; insurer qualifications. (1) A warrantor shall obtain a reimbursement
insurance policy from a qualified reimbursement insurer that covers all
liability to the consumer under all vehicle protection product warranties a
warrantor issues. A qualified reimbursement insurer is:
     (a) An insurer authorized to transact
insurance in this state under a certificate of authority issued in accordance
with the Insurance Code; or
     (b) A surplus lines insurer.
     (2) The Department of Consumer and
Business Services may not require any other financial security requirements or
financial standards for warrantors. [2007 c.685 §5]
     Note: See note under 646A.430.
     646A.440
Required provisions of reimbursement insurance policy; cancellation; notice. (1) A reimbursement insurance policy for a
warranty issued in accordance with ORS 646A.430 to 646A.450 shall have the
following provisions:
     (a) The reimbursement insurer that issues
the policy will reimburse or pay on behalf of the warrantor any amounts the
warrantor is legally obligated to pay or will provide any service that the
warrantor is legally obligated to perform under the vehicle protection product
warranty.
     (b) If the warrantor does not pay or
provide to the consumer the amounts or the service for which the warrantor is
legally obligated within 60 days after the date the consumer provides proof of
loss or damage, the reimbursement insurer will pay the amount or provide the
service directly to or on behalf of the consumer.
     (c) A reimbursement insurer may not defend
against a consumerÂ’s claim for payment of an amount or performance of a service
described in paragraph (a) of this subsection on the basis that the consumer
did not pay the premium for the reimbursement insurance policy. For the
purposes of any claim a consumer makes under the policy, the consumerÂ’s payment
for the vehicle protection product shall constitute payment of the premium for
the reimbursement insurance policy.
     (d) The warrantor to whom a reimbursement
insurer issued a reimbursement insurance policy is an agent or representative
of the reimbursement insurer for the purpose of obligating the reimbursement
insurer to the consumer under the terms and conditions of the reimbursement
insurance policy.
     (2) A reimbursement insurer may not cancel
a reimbursement insurance policy until the insurer delivers to the warrantor
and the Director of the Department of Consumer and Business Services a written
notice of cancellation.
     (3) A reimbursement insurer that cancels a
reimbursement insurance policy does not reduce the reimbursement insurerÂ’s
responsibility for vehicle protection products that the warrantor issued and
insured under the policy before the cancellation date.
     (4) A warrantor that receives a
cancellation notice for a reimbursement insurance policy shall:
     (a) Obtain new reimbursement insurance
from a reimbursement insurer qualified in accordance with ORS 646A.438 and file
proof with the Director of the Department of Consumer and Business Services
that the warrantor has obtained new insurance; or
     (b) Discontinue offering vehicle
protection product warranties as of the date of cancellation and until the
warrantor obtains new reimbursement insurance from a reimbursement insurer
qualified in accordance with ORS 646A.438. [2007 c.685 §6]
     Note: See note under 646A.430.
     646A.442
Vehicle protection product warranty administrator. A warrantor may designate a person as an
administrator for the warrantorÂ’s vehicle protection product warranties under
ORS 646A.430 to 646A.450. [2007 c.685 §7]
     Note: See note under 646A.430.
     646A.444
Recordkeeping requirements for warrantor; record retention. (1) A warrantor shall maintain accurate
accounts, books and other records for transactions regulated under ORS 646A.430
to 646A.450 and shall make the records available to the Director of the
Department of Consumer and Business Services for inspection during normal
business hours. The warrantorÂ’s records shall include:
     (a) A copy of the warranty for each unique
form of vehicle protection product sold;
     (b) The name and address of each consumer;
     (c) A list of the locations where the
warrantorÂ’s vehicle protection products are offered for sale or sold; and
     (d) Dates, descriptions, amounts and
receipts for payments to consumers for claims related to the vehicle protection
product warranty or any expenditures related to providing the vehicle
protection product warranty.
     (2) Except as provided in subsection (4) of
this section, a warrantor shall retain all records required under subsection
(1) of this section for at least two years after the period of coverage
specified in the vehicle protection product warranty has expired.
     (3) A warrantor may maintain records required
under this section in an electronic form. If the warrantor maintains a record
in a format other than paper, the warrantor shall reformat the record into a
legible paper copy at the directorÂ’s request.
     (4) A warrantor that no longer conducts
business in this state shall maintain the warrantorÂ’s records until 10 years
after the date of the last sale of a vehicle protection product that includes
the warrantor’s warranty. [2007 c.685 §8]
     Note: See note under 646A.430.
     646A.446
Prohibited conduct for warrantor. (1) A warrantor may not use in the warrantorÂ’s name:
     (a) “Casualty,” “surety,” “insurance,” “mutual”
or any other word descriptive of the casualty, insurance or surety business; or
     (b) A name deceptively similar to the name
or description of any insurance company, surety corporation or other warrantor.
     (2) A warrantor may use the word “guaranty”
or a similar word in the warrantor’s name. [2007 c.685 §9]
     Note: See note under 646A.430.
     646A.448
Prohibited activities. (1) A
warrantor or a warrantorÂ’s representative, in the warrantorÂ’s vehicle
protection product warranty or in an advertisement or literature for the
warranty, may not:
     (a) Make, permit or cause to be made any
false or misleading statement; or
     (b) Intentionally omit a material
statement that would be considered misleading if omitted.
     (2) A seller or warrantor may not require,
as a condition of financing, that a retail purchaser of a motor vehicle
purchase a vehicle protection product. [2007 c.685 §10]
     Note: See note under 646A.430.
     646A.450
Rules; investigative powers of department. (1) The Director of the Department of Consumer and Business Services
may adopt rules to implement and enforce ORS 646A.430 to 646A.450.
     (2) The director may investigate
warrantors or other persons as reasonably necessary to enforce ORS 646A.430 to
646A.450 and to protect consumers in this state. [2007 c.685 §11]
     Note: See note under 646A.430.
     646A.452
Enforcement by Attorney General. The Attorney General may enforce violations of ORS 646A.430 to
646A.450 under ORS 646.608. [2007 c.685 §12]
     Note: See note under 646A.430.
(Warranties
on Assistive Devices)
     646A.460
Definitions for ORS 646A.460 to 646A.476. As used in ORS 646A.460 to 646A.476:
     (1) “Assistive device” or “device” means:
     (a) Wheelchairs and scooters of any kind,
including other aids that enhance the mobility or positioning of an individual
using a wheelchair or scooter of any kind, such as motorization, motorized
positioning features and the switches and controls for any motorized features;
and
     (b) Hearing aids as defined in ORS
694.015.
     (2) “Assistive device system” means a
system of assistive devices. An “assistive device system” may be a single
assistive device, or each component part of the assistive device system may be considered
a separate assistive device.
     (3) “Authorized dealer” means a dealer
authorized by a manufacturer to sell or lease assistive devices manufactured or
assembled by the manufacturer.
     (4) “Collateral costs” means expenses
incurred by a consumer in connection with the repair of a nonconformity,
including the cost of delivering the assistive device to the manufacturer or
dealer for repair and obtaining an alternative device if no loaner was offered.
     (5) “Consumer” means any of the following:
     (a) The purchaser of an assistive device,
if the device was purchased from a dealer or manufacturer for purposes other
than resale;
     (b) A person to whom the assistive device
is transferred for purposes other than resale, if the transfer occurs before
the expiration of an express warranty applicable to the device;
     (c) A person who may enforce the warranty;
or
     (d) A person who leases an assistive
device from a dealer under a written lease.
     (6) “Current value of the written lease”
means the total amount for which the lease obligates the consumer during the
period of the lease remaining after its early termination, plus the dealerÂ’s
early termination costs and the market value of the assistive device at the
lease expiration date if the lease sets forth that market value, less the
dealerÂ’s early termination savings.
     (7) “Dealer” means a person who is in the
business of selling or leasing assistive devices.
     (8) “Demonstrator” means an assistive
device that would be new but for its use, since its manufacture, only for the
purpose of demonstrating the device to the public or prospective buyers or
lessees.
     (9) “Early termination cost” means any
expense or obligation that a dealer incurs as a result of both the termination
of a written lease before the termination date set forth in the lease and the
return of an assistive device to a manufacturer under ORS 646A.464 (4). “Early
termination cost” includes a penalty for prepayment under a finance
arrangement.
     (10) “Early termination savings” means any
expense or obligation that a dealer avoids as a result of both the termination
of a written lease before the termination date set forth in the lease and the
return of an assistive device to a manufacturer under ORS 646A.464 (4). “Early
termination savings” includes the interest charge that the dealer would have
paid to finance the device or, if the dealer does not finance the device, the
difference between the total amount for which a lease obligates the consumer
during the period of the lease term remaining after the early termination and
the present market value of that amount at the date of the early termination.
     (11) “Individual with a disability” means
any individual who is considered to have a mental or physical disability or
impairment for the purposes of any law of this state or of the
     (12) “Loaner” means an assistive device,
provided to the consumer for use by the user free of charge, that need not be
new or be identical to or have functional capabilities equal to or greater than
those of the original assistive device, but that meets the following
conditions:
     (a) It is in good working order;
     (b) It performs at a minimum the most
essential functions of the original assistive device, in light of the
disability of the user; and
     (c) Any differences between it and the
original assistive device do not create a threat to safety.
     (13) “Manufacturer” means a person who
manufactures or assembles assistive devices and agents of that person,
including an importer, a distributor, factory branch, distributor branch and
any warrantor of the manufacturerÂ’s device, but does not include a dealer.
     (14)(a) “Nonconformity” means a condition
or defect that substantially impairs the use, market value or safety of an
assistive device and that is covered by an express warranty applicable to the
device or to a component of the device.
     (b) “Nonconformity” does not include a
condition or defect that:
     (A) Is the result of abuse or neglect of
the device by a consumer;
     (B) Is the result of an unauthorized
modification or alteration of the device by a consumer if the modification or
alteration substantially affects the performance of the device; or
     (C) For hearing aids, is the result of
normal use of the hearing aid and when the condition or defect could be
resolved through fitting adjustments, cleaning or proper care.
     (15)(a) “Reasonable allowance for use”
means:
     (A) When an assistive device has been sold
to a consumer, no more than the amount obtained by multiplying the full
purchase price of the device by a fraction, the denominator of which is the
number of days in the useful life of the device and the numerator of which is
the number of days that the device was used before the consumer first reported
the nonconformity to the manufacturer or any authorized dealer.
     (B) When an assistive device has been
leased to a consumer, no more than the amount obtained by multiplying the total
amount for which the written lease obligates the consumer by a fraction, the
denominator of which is the useful life of the device and the numerator of
which is the number of days that the device was used before the consumer first
reported the nonconformity to the manufacturer or any authorized dealer.
     (b) As used in this subsection, the useful
life of the assistive device is the greater of:
     (A) Five years; or
     (B) Such other time that the consumer may
prove to be the expected useful life of assistive devices of the same kind.
     (16) “Reasonable attempt to repair” means,
within the terms of an express warranty applicable to an assistive device:
     (a) The same nonconformity is subject to
repair at least two times by the manufacturer or any authorized dealer and the
nonconformity continues; or
     (b) The assistive device is out of
service, by reason of repair or correction, for an aggregate of at least 30
days after notification to the manufacturer or any authorized dealer because of
the nonconformity.
     (17) “User” means an individual with a
disability who, by reason thereof, needs and actually uses the assistive
device. [Formerly 646.482]
     646A.462
Express warranty; duration.
(1) A manufacturer who sells or leases an assistive device, including a
demonstrator, to a consumer, either directly or through a dealer, shall
furnish, at a minimum, an express warranty that the device shall be free from
any nonconformity. The manufacturer shall set forth the warranty fully in
readily understood language and shall clearly identify the party making the
warranty, the rights that the warranty gives the consumer and how the consumer
can exercise the rights.
     (2) If the manufacturer does not furnish
the express warranty described in subsection (1) of this section, the
manufacturer shall be considered to have provided an express warranty that the
device shall be free from any nonconformity.
     (3) The duration of the warranty shall be
not less than one year from the date of first delivery of the assistive device
to the consumer. [Formerly 646.484]
     646A.464
Repair of assistive device.
(1)(a) If a new assistive device or demonstrator does not conform to an
applicable express warranty and the consumer reports the nonconformity to the
manufacturer, the dealer who sold or leased the device or any authorized dealer
and makes the assistive device available for repair before one year after first
delivery of the device to the consumer, the nonconformity shall be repaired at
no charge to the consumer. If the consumer notifies the manufacturer, the
manufacturer is jointly obligated together with any of its authorized dealers.
     (b) A repair for purposes of this
subsection includes a repair that must take place after the expiration of one
year after first delivery of the assistive device to the consumer, provided
that the defect occurred prior to the expiration of the warranty period and the
consumer notified the manufacturer within 30 days after expiration of the
period.
     (2)(a) Except as provided in paragraphs
(b) and (c) of this subsection, each manufacturer of an assistive device sold
or leased in this state shall:
     (A) Maintain or cause to be maintained in
this state sufficient service and repair facilities to carry out the terms of
the warranty described in ORS 646A.462; and
     (B) At the time of the sale or lease,
provide the consumer with the names, addresses and telephone numbers of all
such service and repair facilities and of all authorized dealers.
     (b) If the manufacturer does not provide
service and repair facilities in this state, the consumer may return the
nonconforming assistive device to the dealer who sold or leased the device or
to any authorized dealer for replacement, service or repair in accordance with
the terms and conditions of the express warranty. The replacement, service or
repair shall be at the option of the dealer to whom the device is returned. If
that dealer does not replace the nonconforming device or does not effect the
service or repair of the device in accordance with the warranty, the dealer
shall reimburse the consumer in an amount equal to the purchase or lease price
paid, less a reasonable allowance for use by the consumer.
     (c) Each manufacturer who, with respect to
a new assistive device sold within this state, does not provide a service or
repair facility within this state is liable for the following amounts to any
dealer who incurs obligations in giving effect to the express warranty
described in ORS 646A.462:
     (A) In the event of replacement, in an
amount equal to the cost to the dealer of the replaced assistive device and any
cost of transporting the device, plus a reasonable handling charge;
     (B) In the event of service or repair, in
an amount equal to that which would ordinarily be received by the dealer for
rendering such service or repair, including actual and reasonable costs of the
service or repair and the costs of transporting the assistive device, if such
costs are incurred, plus a reasonable profit; or
     (C) In the event of reimbursement under
paragraph (b) of this subsection, in an amount equal to that reimbursed to the
consumer plus a reasonable handling or service charge.
     (3) For purposes of this section, a
consumer reports a nonconformity when the consumer:
     (a) Makes any communication, written or
oral, that describes the problem with the assistive device, or that may be
reasonably understood as an expression of dissatisfaction with any aspect of
the operation of the device. The communication need only indicate in some way
the nature of the problem, such as an indication of the functions that the
device is not performing or performing unsatisfactorily for the consumer, and
need not be in technical language nor attempt to state the cause of the
problem; and
     (b) Does not refuse to make the assistive
device available to the manufacturer, the dealer who sold or leased the device
or any authorized dealer for repair.
     (4)(a) It shall be presumed that the
consumer has made the assistive device available to the manufacturer, the
dealer who sold or leased the device or an authorized dealer for repair if the
consumer allows the manufacturer or dealer to take the device from the consumerÂ’s
residence or other location where the user customarily uses the device.
     (b) The consumer shall be required to
deliver the device to another location only upon a showing that it would be a
substantially greater hardship for the manufacturer, the dealer who sold or
leased the device or any authorized dealer to take the device from the consumerÂ’s
residence or other location where the user customarily uses the device than for
the consumer to deliver the device.
     (c) If the consumer must deliver the
device to another location in order to enable the manufacturer to repair the
device, the manufacturer shall reimburse the consumer for the costs of the
delivery.
     (5)(a) A person required to repair an
assistive device under this section shall provide the consumer a loaner if the
absence of a loaner would be a threat to the safety of the user or if the
assistive device is out of service for more than seven calendar days.
     (b) Paragraph (a) of this subsection
applies whether or not the rights of the consumer provided by ORS 646A.466 (1)
or (2) have arisen and in addition to the remedies relating to collateral costs
provided by ORS 646A.460 to 646A.476. [Formerly 646.486]
     646A.466
Replacement or refund after attempt to repair. If a nonconformity develops in a new
assistive device or demonstrator, the manufacturer shall, after a reasonable
attempt to repair the device or demonstrator, at the option of the consumer:
     (1) In the case of a sale, refund to the
consumer and to any holder of a perfected security interest as their interest
may appear, the full purchase price plus any finance charge or sales tax paid
by the consumer at the point of sale and collateral costs, less a reasonable
allowance for use;
     (2) In the case of a lease, refund to the
dealer and to any other holder of a perfected security interest, as their
interest may appear, the current value of the lease and refund to the consumer
the amount that the consumer paid under the lease plus any collateral costs,
less a reasonable allowance for use; or
     (3) Provide a conforming replacement. [Formerly
646.488]
     646A.468
Procedures for replacement or refund. (1) To receive the refund or replacement described in ORS 646A.466,
the consumer shall offer to the manufacturer of the assistive device, the
dealer who sold or leased the device or any authorized dealer to transfer
possession of the device having the nonconformity. The manufacturer shall:
     (a) Make the refund within 14 calendar
days after the consumer offers to transfer possession;
     (b) Make the replacement within 30 calendar
days after the consumer offers to transfer possession; or
     (c) Provide the consumer a loaner for use
if the replacement is not made within 14 calendar days after the consumer
offers to transfer possession. The loaner may be used until replacement is made.
     (2) The manufacturer may require as a
condition of making a timely refund or replacement described in ORS 646A.466
that the consumer deliver possession of the original assistive device to the
manufacturer, the dealer who sold or leased the device or any authorized dealer
and sign any documents necessary to transfer title and possession of the
device, or necessary to provide evidence of the transfer, to any person
designated by the manufacturer.
     (3) Subsection (2) of this section applies
only if:
     (a) The time and place of the mutual
activities described in subsection (2) of this section are readily accessible
to the consumer; and
     (b) The manufacturer provides the consumer
written notice in 12-point bold type stating in clear and understandable language
the time and place of the mutual activities and directing the consumer to meet
at that time and place. The notice must be received by the consumer no later
than four business days before the time of the mutual activities.
     (4) A person shall not enforce a lease
against the consumer for use of an assistive device during any period of
nonconformity or after the consumer returns the device to the manufacturer as
described by this section. [Formerly 646.490]
     646A.470
     (2) If a sale or lease is made in
violation of subsection (1) of this section, a consumer who bought or took the
lease of the assistive device shall have the rights of a consumer of a new
device provided by ORS 646A.466, without regard to whether there is a
nonconformity or to whether there has been a reasonable attempt to repair the
device. The following paragraphs apply to a sale or lease under this section:
     (a) If the consumer chooses the refund
option described in ORS 646A.466, there shall be no deduction from the full
purchase price in calculating the refund under ORS 646A.466;
     (b) The rights described in this
subsection run against the person who last sold or transferred the assistive
device to any other person, whether or not the other person is a consumer, so
long as the last person to sell or transfer the device had knowledge of the
previous return of the device and did not provide the disclosure required by
subsection (1) of this section; and
     (c) The rights described under this
subsection must be declared and exercised by a consumer within two years after
the consumer knows of the previous return and can identify the person against
whom the rights run. [Formerly 646.492]
     646A.472
Dispute resolution. (1) A
consumer shall have the option of submitting any dispute arising under ORS
646A.460 to 646A.476 to a dispute resolution procedure. A manufacturer shall
submit to the dispute resolution procedure.
     (2) The procedure shall provide at a
minimum the right of each party to present its case, to be in attendance during
any presentation made by the other party and to rebut or refute such
presentation. The individuals conducting the dispute resolution procedure must
be objective.
     (3) A decision resulting from the dispute
resolution procedure shall be binding on the manufacturer.
     (4) The records of the results of disputes
settled under this section shall be submitted to the Department of Justice if
the department requests them and shall be available to any person who makes a
request for the records free of cost within 10 business days of the personÂ’s
request. The department may review all records created under this section to
determine whether or not the procedure and decisions comply with the provisions
of ORS 646A.460 to 646A.476.
     (5) The Department of Justice shall
establish a roster of dispute resolution providers for consumers seeking to
resolve disputes with manufacturers or to assert their rights under this
section. [Formerly 646.494]
     646A.474
Applicability of other laws; waiver. ORS 646A.460 to 646A.476 shall not be construed as limiting rights or
remedies available to a consumer under any other law. Any waiver by a consumer
of rights provided by ORS 646A.460 to 646A.476 is void. [Formerly 646.496]
     646A.476
Civil action for damages; attorney fees; limitation on actions. (1) In addition to pursuing any other
remedy, a consumer may bring a private cause of action to recover damages
caused by a violation of any provision of ORS 646A.460 to 646A.476. The court
shall award a consumer who prevails in such an action pecuniary loss and
noneconomic damages, together with costs, disbursements, reasonable attorney
fees and any equitable relief that the court determines is appropriate.
Pecuniary loss caused by a violation of ORS 646A.460 to 646A.476 shall include
collateral costs, beginning at the time of the violation, whether or not the
consumer acquired the rights provided by ORS 646A.466. If a consumer has
submitted a dispute arising under ORS 646A.460 to 646A.476 to a dispute
resolution procedure as described in ORS 646A.472, the consumer may not bring a
private cause of action under this section relating to that dispute until a
decision resulting from the dispute resolution procedure has been issued or
until the consumer has withdrawn the dispute from the dispute resolution
procedure.
     (2) If a consumer appeals to a court from
a decision resulting from the dispute resolution procedure described in ORS
646A.472 because the consumer was not granted one of the remedies by ORS
646A.460 to 646A.476, and the consumer is granted one of the remedies by the
court, the consumer shall be awarded:
     (a) Up to three times the amount of any
damages awarded if the court finds that the party opposing the consumer did not
act in good faith in the dispute resolution procedure;
     (b) Reasonable attorney fees; and
     (c) Any fees incurred in the dispute
resolution procedure and any judicial action.
     (3) If the party opposing the consumer is
the prevailing party in an action brought under subsection (1) or (2) of this
section, the party opposing the consumer shall be entitled to reasonable
attorney fees if the court finds the action to have been frivolous.
     (4) Any action brought under this section
shall be commenced during the period beginning one year after the date the
assistive device was originally delivered to the consumer and ending two years
later. [Formerly 646.498]
INFANT CRIB
SAFETY
     646A.500
Legislative findings; declaration of purpose. (1) The Legislative Assembly finds that:
     (a) The disability and death of infants
resulting from injuries sustained in crib accidents are a serious threat to the
public health, welfare and safety of the people of this state;
     (b) Infants are an especially vulnerable
class of people;
     (c) The design and construction of a crib
must ensure that the crib is a safe place to leave an infant unattended for an
extended period of time;
     (d) A parent or caregiver has a right to
believe that a crib is a safe place to leave an infant;
     (e) The United States Consumer Product
Safety Commission estimates that 40 children suffocate or strangle in their
cribs every year;
     (f) Existing state and federal legislation
is inadequate to deal with the hazard of injuries and death to infants from
unsafe cribs; and
     (g) Prohibiting the remanufacture,
retrofitting, sale, contracting to sell or resell, leasing or subletting of
unsafe cribs, particularly unsafe secondhand, hand-me-down or heirloom cribs,
will prevent injuries and deaths caused by unsafe cribs.
     (2) The purpose of ORS 646A.500 to
646A.514 is to prevent the occurrence of injuries to and deaths of infants
resulting from unsafe cribs by making it illegal to remanufacture, retrofit,
sell, contract to sell or resell, lease, sublet or otherwise place in the
stream of commerce any crib that is unsafe for an infant using the crib. [Formerly
646.500]
     646A.502
Short title. ORS 646A.500 to
646A.514 may be referred to as the Infant Crib Safety Act. [Formerly 646.501]
     646A.504
Definitions for ORS 646A.500 to 646A.514. As used in ORS 646A.500 to 646A.514:
     (1) “Commercial user” means any person,
firm, corporation, association or nonprofit corporation, or any agent or
employee thereof, including child care facilities or family child care homes
certified or registered by the Child Care Division under ORS 657A.250 to
657A.450, who:
     (a) Deals in cribs of the kind governed by
ORS 646A.500 to 646A.514;
     (b) By virtue of the person’s occupation,
purports to have knowledge or skill peculiar to the cribs governed by ORS
646A.500 to 646A.514; or
     (c) Is in the business of remanufacturing,
retrofitting, selling, leasing, subletting or otherwise placing cribs in the
stream of commerce.
     (2) “Crib” means:
     (a) Any full-size crib as that term is
defined in 16 C.F.R. 1508.3; or
     (b) Any nonfull-size crib as that term is
defined in 16 C.F.R. 1509.2(b).
     (3) “Individual” means a natural person
who is not a commercial user of cribs.
     (4) “Infant” means an individual who is
less than three years of age. [Formerly 646.502]
     646A.506
Prohibited conduct. (1) A
commercial user may not remanufacture, retrofit, sell, contract to sell or
resell, lease, sublet or otherwise place in the stream of commerce a crib that
is unsafe for an infant using the crib.
     (2) A crib is presumed to be unsafe
pursuant to ORS 646A.500 to 646A.514 if it does not conform to the following
standards:
     (a) 16 C.F.R. part 1508;
     (b) 16 C.F.R. part 1509;
     (c) 16 C.F.R. part 1303; and
     (d) American Society for Testing Materials
Voluntary Standards F966-90, F1169.88, F1822 and F406.
     (3) Cribs that are presumed to be unsafe
under subsection (2) of this section include but are not limited to cribs with
any of the following features or characteristics:
     (a) Corner posts that extend more than
one-sixteenth of an inch;
     (b) Spaces between side slats more than
two and three-eighths inches;
     (c) Mattress supports that can be easily
dislodged from any point of the crib. A mattress support can be easily
dislodged if it cannot withstand a 25-pound upward force from underneath the
crib;
     (d) Cutout designs on the end panels;
     (e) Rail height dimensions that do not
conform to the following:
     (A) The height of the rail and end panel
as measured from the top of the rail or panel in its lowest position to the top
of the mattress support in its highest position is at least nine inches; or
     (B) The height of the rail and end panel
as measured from the top of the rail or panel in its highest position to the
top of the mattress support in its lowest position is at least 26 inches;
     (f) Any screws, bolts or hardware that is
loose or not secured;
     (g) Sharp edges, points, rough surfaces or
any wood surfaces that are not smooth and free from splinters, splits or
cracks; or
     (h) Cribs with tears in mesh or fabric
sides.
     (4) An individual may not remanufacture,
retrofit, sell, contract to sell or resell, lease, sublet or otherwise place in
the stream of commerce a crib that is unsafe for an infant using the crib. [Formerly
646.503]
     646A.508
Penalties. (1) A commercial
user who willfully and knowingly sells, leases or otherwise places in the
stream of commerce an unsafe baby crib as described in ORS 646A.506 (1) to (3)
commits a violation punishable by a fine not exceeding $1,000.
     (2) An individual who willfully and
knowingly sells, leases or otherwise places in the stream of commerce an unsafe
baby crib as described in ORS 646A.506 (1) to (3) commits a violation
punishable by a fine not exceeding $200. [Formerly 646.504]
     646A.510
Exemptions. (1) An antique
or vintage crib that is clearly not intended for use by an infant is exempt
from the provisions of ORS 646A.500 to 646A.514 if the antique or vintage crib
is accompanied at the time of remanufacturing, retrofitting, selling, leasing,
subletting or otherwise placing in the stream of commerce by a notice furnished
by the commercial user that states that the antique or vintage crib is not
intended for use by an infant and that the antique or vintage crib is dangerous
for use by an infant.
     (2) A commercial user is exempt from
liability resulting from use of an antique or vintage crib in a manner that is
contrary to the notice required by this section.
     (3) As used in this section, “antique or
vintage crib” means a crib that is:
     (a) 50 years or older measured from the
current year;
     (b) Maintained as a collector’s item; and
     (c) Not intended for use by an infant. [Formerly
646.505]
     646A.512
Private right of action; attorney fees. Any person may maintain an action against a commercial user who
violates ORS 646A.506 (1) to (3), to enjoin the remanufacture, retrofitting,
sale, contract to sell or resell, lease or subletting of a crib that is unsafe
for an infant, and for reasonable attorney fees and costs. [Formerly 646.506]
     646A.514
Scope of remedies. Remedies
available under ORS 646A.508 and 646A.512 are in addition to any other remedies
available under law to an aggrieved party. [Formerly 646.507]
IDENTITY
THEFT PREVENTION
     646A.600
Short title. ORS 646A.600 to
646A.628 shall be known as the Oregon Consumer Identity Theft Protection Act. [2007
c.759 §1]
     646A.602
Definitions for ORS 646A.600 to 646A.628. As used in ORS 646A.600 to 646A.628:
     (1)(a) “Breach of security” means
unauthorized acquisition of computerized data that materially compromises the
security, confidentiality or integrity of personal information maintained by
the person.
     (b) “Breach of security” does not include
good-faith acquisition of personal information by a person or that personÂ’s
employee or agent for a legitimate purpose of that person if the personal
information is not used in violation of applicable law or in a manner that
harms or poses an actual threat to the security, confidentiality or integrity
of the personal information.
     (2) “Consumer” means an individual who is
also a resident of this state.
     (3) “Consumer report” means a consumer
report as described in section 603(d) of the federal Fair Credit Reporting Act
(15 U.S.C. 1681a(d)), as that Act existed on October 1, 2007, that is compiled
and maintained by a consumer reporting agency.
     (4) “Consumer reporting agency” means a
consumer reporting agency as described in section 603(p) of the federal Fair
Credit Reporting Act (15 U.S.C. 1681a(p)) as that Act existed on October 1,
2007.
     (5) “Debt” means any obligation or alleged
obligation arising out of a consumer transaction, as defined in ORS 646.639.
     (6) “Encryption” means the use of an
algorithmic process to transform data into a form in which the data is rendered
unreadable or unusable without the use of a confidential process or key.
     (7) “Extension of credit” means the right
to defer payment of debt or to incur debt and defer its payment offered or
granted primarily for personal, family or household purposes.
     (8) “Identity theft” has the meaning set
forth in ORS 165.800.
     (9) “Identity theft declaration” means a
completed and signed statement documenting alleged identity theft, using the
form available from the Federal Trade Commission, or another substantially
similar form.
     (10) “Person” means any individual,
private or public corporation, partnership, cooperative, association, estate,
limited liability company, organization or other entity, whether or not
organized to operate at a profit, or a public body as defined in ORS 174.109.
     (11) “Personal information”:
     (a) Means a consumer’s first name or first
initial and last name in combination with any one or more of the following data
elements, when the data elements are not rendered unusable through encryption,
redaction or other methods, or when the data elements are encrypted and the
encryption key has also been acquired:
     (A) Social Security number;
     (B) Driver license number or state
identification card number issued by the Department of Transportation;
     (C) Passport number or other United States
issued identification number; or
     (D) Financial account number, credit or
debit card number, in combination with any required security code, access code
or password that would permit access to a consumerÂ’s financial account.
     (b) Means any of the data elements or any
combination of the data elements described in paragraph (a) of this subsection
when not combined with the consumerÂ’s first name or first initial and last name
and when the data elements are not rendered unusable through encryption,
redaction or other methods, if the information obtained would be sufficient to
permit a person to commit identity theft against the consumer whose information
was compromised.
     (c) Does not include information, other
than a Social Security number, in a federal, state or local government record
that is lawfully made available to the public.
     (12) “Redacted” means altered or truncated
so that no more than the last four digits of a Social Security number, driver
license number, state identification card number, account number or credit or
debit card number is accessible as part of the data.
     (13) “Security freeze” means a notice
placed in a consumer report, at the request of a consumer and subject to
certain exemptions, that prohibits the consumer reporting agency from releasing
the consumer report for the extension of credit unless the consumer has temporarily
lifted or removed the freeze. [2007 c.759 §2]
     646A.604
Notice of breach of security; delay; methods of notification; contents of
notice; application of notice requirement. (1) Any person that owns, maintains or otherwise possesses data that includes
a consumerÂ’s personal information that is used in the course of the personÂ’s
business, vocation, occupation or volunteer activities and was subject to a
breach of security shall give notice of the breach of security following
discovery of such breach of security, or receipt of notification under
subsection (2) of this section, to any consumer whose personal information was
included in the information that was breached. The disclosure notification
shall be made in the most expeditious time possible and without unreasonable
delay, consistent with the legitimate needs of law enforcement as provided in
subsection (3) of this section, and consistent with any measures necessary to
determine sufficient contact information for the consumers, determine the scope
of the breach and restore the reasonable integrity, security and
confidentiality of the data.
     (2) Any person that maintains or otherwise
possesses personal information on behalf of another person shall notify the
owner or licensor of the information of any breach of security immediately
following discovery of such breach of security if a consumerÂ’s personal
information was included in the information that was breached.
     (3) The notification to the consumer
required by this section may be delayed if a law enforcement agency determines
that the notification will impede a criminal investigation and that agency has
made a written request that the notification be delayed. The notification
required by this section shall be made after that law enforcement agency
determines that its disclosure will not compromise the investigation and
notifies the person in writing.
     (4) For purposes of this section,
notification to the consumer may be provided by one of the following methods:
     (a) Written notice.
     (b) Electronic notice if the person’s
customary method of communication with the consumer is by electronic means or
is consistent with the provisions regarding electronic records and signatures
set forth in the Electronic Signatures in Global and National Commerce Act (15
U.S.C. 7001) as that Act existed on October 1, 2007.
     (c) Telephone notice, provided that
contact is made directly with the affected consumer.
     (d) Substitute notice, if the person
demonstrates that the cost of providing notice would exceed $250,000, that the
affected class of consumers to be notified exceeds 350,000, or if the person
does not have sufficient contact information to provide notice. Substitute
notice consists of the following:
     (A) Conspicuous posting of the notice or a
link to the notice on the Internet home page of the person if the person
maintains one; and
     (B) Notification to major statewide
television and newspaper media.
     (5) Notice under this section shall
include at a minimum:
     (a) A description of the incident in
general terms;
     (b) The approximate date of the breach of
security;
     (c) The type of personal information
obtained as a result of the breach of security;
     (d) Contact information of the person
subject to this section;
     (e) Contact information for national
consumer reporting agencies; and
     (f) Advice to the consumer to report
suspected identity theft to law enforcement, including the Federal Trade
Commission.
     (6) If a person discovers a breach of
security affecting more than 1,000 consumers that requires disclosure under this
section, the person shall notify, without unreasonable delay, all consumer
reporting agencies that compile and maintain reports on consumers on a
nationwide basis of the timing, distribution and content of the notification
given by the person to the consumers. In no case shall a person that is
required to make a notification required by this section delay any notification
in order to make the notification to the consumer reporting agencies. The
person shall include the police report number, if available, in its
notification to the consumer reporting agencies.
     (7) Notwithstanding subsection (1) of this
section, notification is not required if, after an appropriate investigation or
after consultation with relevant federal, state or local agencies responsible
for law enforcement, the person determines that no reasonable likelihood of
harm to the consumers whose personal information has been acquired has resulted
or will result from the breach. Such a determination must be documented in
writing and the documentation must be maintained for five years.
     (8) This section does not apply to:
     (a) A person that complies with the
notification requirements or breach of security procedures that provide greater
protection to personal information and at least as thorough disclosure
requirements pursuant to the rules, regulations, procedures, guidance or
guidelines established by the personÂ’s primary or functional federal regulator.
     (b) A person that complies with a state or
federal law that provides greater protection to personal information and at
least as thorough disclosure requirements for breach of security of personal
information than that provided by this section.
     (c) A person that is subject to and
complies with regulations promulgated pursuant to Title V of the
Gramm-Leach-Bliley Act of 1999 (15 U.S.C. 6801 to 6809) as that Act existed on
October 1, 2007. [2007 c.759 §3]
     646A.606
Security freeze; requirements; effect. (1) A consumer may elect to place a security freeze on the consumerÂ’s
consumer report by sending a written request to a consumer reporting agency at
an address designated by the agency to receive such requests, or a secure
electronic request at a website designated by the agency to receive such
requests if such method is made available by the consumer reporting agency at
the agencyÂ’s discretion.
     (2) If the consumer is the victim of
identity theft or has reported to a law enforcement agency the theft of
personal information, the consumer may include a copy of the police report,
incident report or identity theft declaration.
     (3) The consumer must provide proper
identification and any fee authorized by ORS 646A.610.
     (4) Except as provided in ORS 646A.614, if
a security freeze is in place, information from a consumer report may not be
released without prior express authorization from the consumer.
     (5) This section does not prevent a
consumer reporting agency from advising a third party that a security freeze is
in effect with respect to the consumer report. [2007 c.759 §4]
     646A.608
Deadline for placement of security freeze; confirmation; personal
identification number; lifting and removal; fees. (1) A consumer reporting agency shall place
a security freeze on a consumer report no later than five business days after
receiving from the consumer:
     (a) The request described in ORS 646A.606
(1);
     (b) Proper identification; and
     (c) A fee, if applicable.
     (2) The consumer reporting agency shall
send a written confirmation of the security freeze to the consumer, to the last
known address for the consumer as contained in the consumer report maintained
by the consumer reporting agency, within 10 business days after placing the
freeze and, with the confirmation, shall provide the consumer with a unique
personal identification number or password or similar device to be used by the
consumer when providing authorization for release of the consumerÂ’s consumer
report for a specific period of time or for permanently removing the security
freeze. The consumer reporting agency shall also include with such written
confirmation information regarding the process of lifting a freeze, and the
process of temporarily lifting a freeze for allowing access to information from
the consumerÂ’s credit report for a period of time while the freeze is in place.
     (3) If a consumer wishes to allow the
consumerÂ’s consumer report to be accessed for a specific period of time while a
freeze is in effect, the consumer shall contact the consumer reporting agency
using a point of contact designated by the consumer reporting agency, request
that the freeze be temporarily lifted and provide the following:
     (a) Proper identification;
     (b) The unique personal identification
number or password or similar device provided by the consumer reporting agency
pursuant to subsection (2) of this section;
     (c) The information regarding the time
period for which the consumer report shall be available to users of the credit
report; and
     (d) A fee, if applicable.
     (4) A consumer reporting agency that
receives a request from the consumer to temporarily lift a freeze on a credit
report pursuant to subsection (3) of this section shall comply with the request
no later than three business days after receiving from the consumer:
     (a) Proper identification;
     (b) The unique personal identification
number or password or similar device provided by the consumer reporting agency
pursuant to subsection (2) of this section;
     (c) The information regarding the time
period for which the consumer report shall be available; and
     (d) A fee, if applicable.
     (5) A security freeze shall remain in
place until the consumer requests, using a point of contact designated by the
consumer reporting agency, that the security freeze be removed. A consumer
reporting agency shall remove a security freeze within three business days of
receiving a request for removal from the consumer, who provides:
     (a) Proper identification;
     (b) The unique personal identification
number or password or similar device provided by the consumer reporting agency
pursuant to subsection (2) of this section; and
     (c) A fee, if applicable.
     (6) No later than December 31, 2008, the
Director of the Department of Consumer and Business Services shall report to
the chairs of the legislative committees that considered ORS 646A.600 to
646A.628 concerning the minimum amount of time necessary, using current
technology, to place, temporarily lift or remove a freeze on a consumer report,
and to verify a consumerÂ’s identity. If the chair of any legislative committee
is vacant at the time of making the report, the report shall also be made to the
President of the Senate and the Speaker of the House of Representatives. [2007
c.759 §5]
     646A.610
Permissible fees. (1) A
consumer reporting agency may not charge a fee to a consumer who is the victim
of identity theft or who has reported to a law enforcement agency the theft of
personal information, provided the consumer has submitted to the consumer
reporting agency a copy of a valid police report, incident report or identity
theft declaration.
     (2) A consumer reporting agency may charge
a reasonable fee of no more than $10 to a consumer, other than a consumer
described in subsection (1) of this section, for each freeze, temporary lift of
the freeze, removal of the freeze or replacing a lost personal identification
number or password previously provided to the consumer, regarding access to a
consumer credit report. [2007 c.759 §6]
     646A.612
Conditions for lifting or removing security freeze. A consumer reporting agency shall
temporarily lift or remove a freeze placed on a consumerÂ’s credit report only
in the following cases:
     (1) Upon the consumer’s request, pursuant
to ORS 646A.608 (3) or (5).
     (2) If the consumer’s credit report was
frozen due to a material misrepresentation of fact by the consumer, the
consumer reporting agency may remove the security freeze. If a consumer
reporting agency intends to remove a freeze upon a consumerÂ’s credit report
pursuant to this subsection, the consumer reporting agency shall notify the
consumer in writing at least five business days prior to removing the freeze placed
on the consumer report. [2007 c.759 §7]
     646A.614
Effect of security freeze on use of consumer reports. The provisions of ORS 646A.606 to 646A.610
do not apply to the use of a consumer report by or for any of the following:
     (1) A person, or the person’s subsidiary,
affiliate, agent or assignee with which the consumer has or, prior to
assignment, had an account, contract or debtor-creditor relationship for the
purposes of reviewing the account or collecting the financial obligation owing
for the account, contract or debtor-creditor relationship. For purposes of this
subsection, “reviewing the account” includes activities related to account
maintenance, monitoring, credit line increases and account upgrades and
enhancements;
     (2) Any person acting pursuant to a
judgment, court order, warrant or subpoena;
     (3) A federal, state or local governmental
entity, including a law enforcement agency or court, or their agents or
assignees, acting to investigate fraud or acting to investigate or collect
delinquent taxes or unpaid judgments or court orders or to fulfill their
statutory or regulatory duties provided such responsibilities are consistent
with a permissible purpose under section 604 of the federal Fair Credit
Reporting Act (15 U.S.C. 1681b) as that Act existed on October 1, 2007;
     (4) The use of credit information for the
purposes of prescreening as provided by the federal Fair Credit Reporting Act
(15 U.S.C. 1681 et seq.) as that Act existed on October 1, 2007;
     (5) Any person for the sole purpose of providing
a credit file monitoring subscription service, or similar service to which the
consumer has subscribed;
     (6) A consumer reporting agency for the
sole purpose of providing a consumer with a copy of the consumerÂ’s consumer
report upon the consumerÂ’s request;
     (7) Any person or entity for the use of
setting or adjusting rates, for claims handling or underwriting for insurance
purposes, to the extent permitted by law;
     (8) A subsidiary, affiliate, agent,
assignee or prospective assignee of a person to whom access has been granted
under ORS 646A.608 (3) for purposes of facilitating the extension of credit or
other permissible use;
     (9) A child support agency acting pursuant
to Title IV-D of the Social Security Act (42 U.S.C. 651 et seq.) as that Act
existed on October 1, 2007; and
     (10) A person for the sole purpose of
screening an applicant for a residential dwelling unit as described in ORS
90.295 (1). [2007 c.759 §8]
     646A.616
Effect of request for consumer report subject to security freeze. If a third party requests access to a
consumer report on which a security freeze is in effect, the request is in
connection with an application for credit or any other use, the consumer does
not allow the consumerÂ’s consumer report to be accessed for that period of time,
and the third party cannot obtain the consumer report through ORS 646A.614, the
third party may treat the application as incomplete. [2007 c.759 §9]
     646A.618
Prohibition on changes to consumer report subject to security freeze; entities
subject to requirement to place security freeze. (1) If a security freeze is in place, a
consumer reporting agency shall not change any of the following official
information in a consumer credit report without sending a written confirmation
of the change to the consumer within 30 days of the change being posted to the
consumerÂ’s report: name, date of birth, Social Security number and address.
Written confirmation is not required for technical modifications of a consumerÂ’s
official information, including name and street abbreviations, complete
spellings or transposition of numbers or letters. In the case of an address
change, the written confirmation shall be sent to both the new address and to
the former address.
     (2) The following entities are not
required to place a security freeze on a credit report:
     (a) A consumer reporting agency that acts
only as a reseller of credit information by assembling and merging information
contained in the database of another consumer reporting agency or multiple
consumer reporting agencies, and does not maintain a database of credit
information from which new consumer credit reports are produced. However, a
consumer reporting agency acting as a reseller shall honor any security freeze
placed on a consumer report by another consumer reporting agency.
     (b) A check services or fraud prevention
services company that issues reports on incidents of fraud or authorizations
for the purpose of approving or processing negotiable instruments, electronic
funds transfers or similar methods of payments.
     (c) A deposit account information service
company that issues reports regarding account closures due to fraud,
substantial overdrafts, ATM abuse or similar negative information regarding a
consumer, to inquiring banks or other financial institutions for use only in
reviewing a consumer request for a deposit account at the inquiring bank or
financial institution. [2007 c.759 §10]
     646A.620
Prohibition on printing, displaying or posting Social Security numbers;
exemptions. (1) Except as
otherwise specifically provided by law a person shall not:
     (a) Print a consumer’s Social Security
number on any materials not requested by the consumer or part of the
documentation of a transaction or service requested by the consumer that are
mailed to the consumer unless redacted;
     (b) Print a consumer’s Social Security
number on any card required for the consumer to access products or services
provided by the person; or
     (c) Publicly post or publicly display a
consumer’s Social Security number unless redacted. As used in this paragraph, “publicly
post or publicly display” means to communicate or otherwise make available to
the public.
     (2) This section does not prevent the
collection, use, or release of a Social Security number as required by state or
federal law, including statute, Oregon Rules of Civil Procedure or rule adopted
by the Chief Justice of the Supreme Court, the Chief Judge of the Court of
Appeals or the judge of the Oregon Tax Court, or the use or printing of a
Social Security number for internal verification or administrative purposes or
for enforcement of a judgment or court order.
     (3) This section does not apply to records
that are required by state or federal law, including statute, Oregon Rules of
Civil Procedure or rule adopted by the Chief Justice of the Supreme Court, the
Chief Judge of the Court of Appeals or the judge of the Oregon Tax Court, to be
made available to the public.
     (4) This section does not apply to a
Social Security number in any of the following records or copies of records in
any form or storage medium maintained or otherwise possessed by a court, the
State Court Administrator or the Secretary of State:
     (a) A record received on or before October
1, 2007;
     (b) A record received after October 1,
2007, if, by state or federal statute or rule, the person that submitted the
record could have caused the record to be filed or maintained in a manner that
protected the Social Security number from public disclosure; or
     (c) A record, regardless of the date
created or received, that is:
     (A) An accusatory instrument charging a
violation or crime;
     (B) A record of oral proceedings in a
court;
     (C) An exhibit offered as evidence in a
proceeding; or
     (D) A judgment or court order. [2007 c.759
§11]
     646A.622
Requirement to develop safeguards for personal information; conduct deemed to
comply with requirement. (1)
Any person that owns, maintains or otherwise possesses data that includes a
consumerÂ’s personal information that is used in the course of the personÂ’s
business, vocation, occupation or volunteer activities must develop, implement
and maintain reasonable safeguards to protect the security, confidentiality and
integrity of the personal information, including disposal of the data.
     (2) The following shall be deemed in
compliance with subsection (1) of this section:
     (a) A person that complies with a state or
federal law providing greater protection to personal information than that
provided by this section.
     (b) A person that is subject to and
complies with regulations promulgated pursuant to Title V of the
Gramm-Leach-Bliley Act of 1999 (15 U.S.C. 6801 to 6809) as that Act existed on
October 1, 2007.
     (c) A person that is subject to and
complies with regulations implementing the Health Insurance Portability and
Accountability Act of 1996 (45 C.F.R. parts 160 and 164) as that Act existed on
October 1, 2007.
     (d) A person that implements an
information security program that includes the following:
     (A) Administrative safeguards such as the
following, in which the person:
     (i) Designates one or more employees to
coordinate the security program;
     (ii) Identifies reasonably foreseeable
internal and external risks;
     (iii) Assesses the sufficiency of
safeguards in place to control the identified risks;
     (iv) Trains and manages employees in the
security program practices and procedures;
     (v) Selects service providers capable of
maintaining appropriate safeguards, and requires those safeguards by contract;
and
     (vi) Adjusts the security program in light
of business changes or new circumstances;
     (B) Technical safeguards such as the
following, in which the person:
     (i) Assesses risks in network and software
design;
     (ii) Assesses risks in information
processing, transmission and storage;
     (iii) Detects, prevents and responds to
attacks or system failures; and
     (iv) Regularly tests and monitors the
effectiveness of key controls, systems and procedures; and
     (C) Physical safeguards such as the
following, in which the person:
     (i) Assesses risks of information storage
and disposal;
     (ii) Detects, prevents and responds to
intrusions;
     (iii) Protects against unauthorized access
to or use of personal information during or after the collection,
transportation and destruction or disposal of the information; and
     (iv) Disposes of personal information
after it is no longer needed for business purposes or as required by local,
state or federal law by burning, pulverizing, shredding or modifying a physical
record and by destroying or erasing electronic media so that the information
cannot be read or reconstructed.
     (3) A person complies with subsection
(2)(d)(C)(iv) of this section if the person contracts with another person
engaged in the business of record destruction to dispose of personal
information in a manner consistent with subsection (2)(d)(C)(iv) of this
section.
     (4) Notwithstanding subsection (2) of this
section, a person that is an owner of a small business as defined in ORS
285B.123 (2) complies with subsection (1) of this section if the personÂ’s
information security and disposal program contains administrative, technical
and physical safeguards and disposal measures appropriate to the size and
complexity of the small business, the nature and scope of its activities, and
the sensitivity of the personal information collected from or about consumers. [2007
c.759 §12]
     646A.624
Powers of director; penalties.
(1) The Director of the Department of Consumer and Business Services may:
     (a) Make such public or private
investigations within or outside this state as the director deems necessary to
determine whether a person has violated any provision of ORS 646A.600 to
646A.628, or to aid in the enforcement of ORS 646A.600 to 646A.628.
     (b) Require or permit a person to file a
statement in writing, under oath or otherwise as the director determines, as to
all the facts and circumstances concerning the matter to be investigated.
     (c) Administer oaths and affirmations,
subpoena witnesses, compel attendance, take evidence and require the production
of books, papers, correspondence, memoranda, agreements or other documents or
records that the director deems relevant or material to the inquiry. Each
witness who appears before the director under a subpoena shall receive the fees
and mileage provided for witnesses in ORS 44.415 (2).
     (2) If a person fails to comply with a
subpoena so issued or a party or witness refuses to testify on any matters, the
judge of the circuit court or of any county, on the application of the
director, shall compel obedience by proceedings for contempt as in the case of
disobedience of the requirements of a subpoena issued from such court or a
refusal to testify therein.
     (3) If the director has reason to believe
that any person has engaged or is engaging in any violation of ORS 646A.600 to
646A.628, the director may issue an order, subject to ORS chapter 183, directed
to the person to cease and desist from the violation, or require the person to
pay compensation to consumers injured by the violation. The director may order
compensation to consumers only upon a finding that enforcement of the rights of
the consumers by private civil action would be so burdensome or expensive as to
be impractical.
     (4)(a) In addition to all other penalties
and enforcement provisions provided by law, any person who violates or who
procures, aids or abets in the violation of ORS 646A.600 to 646A.628 shall be
subject to a penalty of not more than $1,000 for every violation, which shall
be paid to the General Fund of the State Treasury.
     (b) Every violation is a separate offense
and, in the case of a continuing violation, each dayÂ’s continuance is a
separate violation, but the maximum penalty for any occurrence shall not exceed
$500,000.
     (c) Civil penalties under this section
shall be imposed as provided in ORS 183.745. [2007 c.759 §13]
     646A.626
Rules. In accordance with
ORS chapter 183, the Director of the Department of Consumer and Business
Services may adopt rules for the purpose of carrying out the provisions of ORS
646A.600 to 646A.628. [2007 c.759 §14]
     646A.628
Allocation of moneys.
Notwithstanding ORS 705.145 (2), (3) and (5), the Director of the Department of
Consumer and Business Services can allocate as deemed appropriate the moneys
derived pursuant to ORS 646A.252 to 646A.270, 650.005 to 650.100, 697.005 to
697.095, 697.602 to 697.842, 705.350 and 717.200 to 717.320 and 731.804 and ORS
chapters 59, 645, 706 to 716, 722, 723, 725 and 726 to implement ORS 646A.600
to 646A.628. [2007 c.759 §15]
_______________
Disclaimer: These codes may not be the most recent version. Oregon may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.