2007 Oregon Code - Chapter 97 :: Chapter 97 - Rights and Duties Relating to Cemeteries - Human Bodies and Anatomical Gifts
Chapter 97 — Rights
and Duties Relating to Cemeteries,
Human Bodies
and Anatomical Gifts
2007 EDITION
CEMETERIES, HUMAN BODIES AND ANATOMICAL GIFTS
PROPERTY RIGHTS AND TRANSACTIONS
GENERAL PROVISIONS
97.010Â Â Â Â Â Â Definitions
97.020Â Â Â Â Â Â Exemption
of certain organizations and cemeteries from certain sections of chapter
97.030Â Â Â Â Â Â Vested
rights not acquired
97.040Â Â Â Â Â Â Private
family burial grounds
AUTOPSIES
97.082Â Â Â Â Â Â Consent
for certain autopsies; form
DISPOSITION OF HUMAN BODIES
97.110Â Â Â Â Â Â Human
remains not to be attached
97.120Â Â Â Â Â Â Human
remains to be deposited in accordance with ORS 97.010 to 97.040, 97.110 to
97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990
97.130Â Â Â Â Â Â Right
to control disposition of remains; delegation
97.145Â Â Â Â Â Â Liability
for failure to conform to written instrument directing control of remains
97.150Â Â Â Â Â Â Disposition
of cremated remains; procedures; notice; actions against cemetery or funeral
service providers
97.153Â Â Â Â Â Â Diagnostic
or therapeutic radioisotopes in body
97.160Â Â Â Â Â Â Duty
of hospital or sanitarium to notify before sending remains to undertaker;
procedures
97.170Â Â Â Â Â Â Disposition
of body of indigent or child in custody of Department of Human Services
97.180Â Â Â Â Â Â Period
within which body may not be used
97.190Â Â Â Â Â Â Post-mortem
examination of body
97.200Â Â Â Â Â Â Disposition
of remains after educational use thereof
97.210Â Â Â Â Â Â Exceptions
to application of ORS 97.170 to 97.200; rules
97.220Â Â Â Â Â Â Disinterment
DEDICATION TO CEMETERY PURPOSES; PLATTINGS
97.310Â Â Â Â Â Â Survey
and subdivision of land; map or plat of mausoleum or columbarium; access
easement
97.320Â Â Â Â Â Â Filing
map or plat and declaration of dedication of land to cemetery purposes
97.330Â Â Â Â Â Â When
dedication is complete
97.340Â Â Â Â Â Â Effect
of dedication
97.350Â Â Â Â Â Â Dedication
to cemetery purposes not invalid
97.360Â Â Â Â Â Â Resurvey
and alteration in shape or size; vacation of streets, walks, driveways and
parks and replatting into lots
97.370Â Â Â Â Â Â Fixing
date of hearing; notice
97.380Â Â Â Â Â Â Hearing;
order allowing replatting
97.390Â Â Â Â Â Â Assessment
of benefits and damages
97.400Â Â Â Â Â Â Disposal
of newly created lots; disposition and use of proceeds from sale; failure of
owner to perform duties
97.410Â Â Â Â Â Â Right
of adjacent lot owner upon vacation of way
97.420Â Â Â Â Â Â Effect
of failure to object
97.430Â Â Â Â Â Â Declaration
of exercise of police power and right of eminent domain
97.440Â Â Â Â Â Â Removal
of dedication
97.445Â Â Â Â Â Â Vacating
county interest in cemetery real property
97.450Â Â Â Â Â Â Discontinuance
of cemetery and removal of remains and markers
97.460Â Â Â Â Â Â Approval
required prior to establishment of cemetery or burial park
SALES AND RIGHTS IN RESPECT OF CEMETERY PLOTS
97.510Â Â Â Â Â Â
97.520Â Â Â Â Â Â
97.530Â Â Â Â Â Â Commission,
bonus or rebate for sale of plot or services
97.540Â Â Â Â Â Â Commission,
bonus or rebate for recommendation of cemetery
97.550Â Â Â Â Â Â Plots
are indivisible
97.560Â Â Â Â Â Â Presumption
of sole ownership in grantee of plot
97.570Â Â Â Â Â Â Spouse
has vested right of interment
97.580Â Â Â Â Â Â Divestiture
of spouseÂ’s right of interment
97.590Â Â Â Â Â Â Transfer
of plot or right of interment
97.600Â Â Â Â Â Â Descent
of plot
97.610Â Â Â Â Â Â Determining
occupant of burial plot having coowners
97.620Â Â Â Â Â Â Death
of coowner; authorization to use plot under directions of surviving owners
97.630Â Â Â Â Â Â Family
plots; order of occupation
97.640Â Â Â Â Â Â Waiver
or termination of vested right of interment
97.650Â Â Â Â Â Â Limitations
upon vested right of interment
CEMETERY MANAGEMENT
97.710Â Â Â Â Â Â Power
of cemetery to make rules and regulations
97.720Â Â Â Â Â Â Record
of interments and cremations; inspection
97.730Â Â Â Â Â Â Gifts
and bequests in trust for cemeteries
INDIAN
97.740Â Â Â Â Â Â Definitions
for ORS 97.740 to 97.760
97.745Â Â Â Â Â Â Prohibited
acts; application; notice
97.750Â Â Â Â Â Â Permitted
acts; notice
97.760Â Â Â Â Â Â Civil
action by Indian tribe or member; time for commencing action; venue; damages;
attorney fees
97.772Â Â Â Â Â Â Definition
of “historic cemetery”
97.774Â Â Â Â Â Â Oregon
Commission on Historic Cemeteries; terms
97.776Â Â Â Â Â Â Commission
members; nominations
97.778Â Â Â Â Â Â Chairperson;
quorum; meetings
97.780Â Â Â Â Â Â Duties
97.782Â Â Â Â Â Â Listing
of historic cemeteries; form
97.784Â Â Â Â Â Â Executive
secretary; support services
CEMETERY CARE
97.810Â Â Â Â Â Â Endowment
care and nonendowed care cemeteries
97.820Â Â Â Â Â Â Placing
cemetery under endowed care; deposit; commingling endowment and special care
funds; trustee or custodian of fund
97.825Â Â Â Â Â Â Suits
to enforce endowed care statutes; attorney fees
97.830Â Â Â Â Â Â Investment
and reinvestment of principal of endowed care funds; use and application of
income
97.835Â Â Â Â Â Â Limitation
of duties and liability of trustee
97.840Â Â Â Â Â Â Cemetery
authority authorized to receive and hold gifts of property; disposition of
gifts
97.850Â Â Â Â Â Â Endowment
and special care funds are charitable
97.860Â Â Â Â Â Â Agreements
for care
97.865Â Â Â Â Â Â Application
of ORS 97.810 to 97.865 to religious, county and city cemeteries
97.870Â Â Â Â Â Â Unused
and uncared for portions of cemetery declared common nuisances
97.880Â Â Â Â Â Â Resolution
declaring a nuisance
97.890Â Â Â Â Â Â Complaint
97.900Â Â Â Â Â Â Summons
97.910Â Â Â Â Â Â Disuse
as prima facie evidence of abandonment
97.920Â Â Â Â Â Â Judgment
declaring nuisance, authorizing abatement and creating and foreclosing lien
PREARRANGEMENT SALES AND PRECONSTRUCTION
SALES
97.923Â Â Â Â Â Â Definitions
for ORS 97.923 to 97.949
97.925Â Â Â Â Â Â Purpose
97.926Â Â Â Â Â Â Rulemaking
authority
97.927Â Â Â Â Â Â Applicability
of ORS 97.923 to 97.949
97.929Â Â Â Â Â Â Exceptions
to ORS 97.923 to 97.949
97.931Â Â Â Â Â Â Registration
of salesperson for endowment care cemeteries, preconstruction sales and
prearrangement sales; rules; background check; civil penalties
97.933Â Â Â Â Â Â Certification
of provider of prearrangement or preconstruction sales; annual reports; audits;
fees
97.935Â Â Â Â Â Â Registration
of master trustees; annual reports; annual audits; fees
97.936Â Â Â Â Â Â Emergency
orders of suspension or restriction
97.937Â Â Â Â Â Â Deposit
of trust funds made by endowment care cemeteries
97.939Â Â Â Â Â Â Prearrangement
or preconstruction sales contracts; contents; delivery
97.941Â Â Â Â Â Â Prearrangement
or preconstruction trust fund deposits
97.942Â Â Â Â Â Â Appointment
of receiver; criteria
97.943Â Â Â Â Â Â Distributions
from prearrangement trust fund deposits
97.944Â Â Â Â Â Â Distributions
from preconstruction trust fund deposits
97.945Â Â Â Â Â Â Funeral
and Cemetery Consumer Protection Trust Fund; fee; rules
97.946Â Â Â Â Â Â Advertising
and marketing prohibitions
97.947Â Â Â Â Â Â Examination
of providers and master trustees by director; subpoena power; depositions
97.948Â Â Â Â Â Â Grounds
for discipline by director for violation of ORS 97.923 to 97.949; suspension
and revocation of certificate or registration; civil penalties; notification of
board
97.949Â Â Â Â Â Â Notification
by director to appropriate federal, state or local law enforcement officer of
violation of ORS 97.923 to 97.949
REVISED UNIFORM ANATOMICAL GIFT ACT
97.951Â Â Â Â Â Â Short
title
97.953Â Â Â Â Â Â Definitions
97.955Â Â Â Â Â Â Purpose
of anatomical gift; persons authorized to make gift
97.957Â Â Â Â Â Â Methods
of making anatomical gift before death of donor
97.959Â Â Â Â Â Â Revocation
or amendment of anatomical gift before death of donor
97.961Â Â Â Â Â Â Refusal
to make anatomical gift; effect of refusal
97.963Â Â Â Â Â Â Effect
of making, amending or revoking anatomical gift
97.965Â Â Â Â Â Â Persons
authorized to make anatomical gift of body or body part of decedent
97.967Â Â Â Â Â Â Methods
for making, amending or revoking anatomical gift of body or body part of
decedent by authorized person
97.969Â Â Â Â Â Â Authorized
recipients of anatomical gifts; purposes for which gift may be used
97.970Â Â Â Â Â Â Search
for document of anatomical gift or refusal; duty to send document or refusal to
hospital
97.971Â Â Â Â Â Â Delivery
of document of gift or refusal not required; right to examine
97.972Â Â Â Â Â Â Rights
and duties of procurement organizations and others; authorized examinations
97.973Â Â Â Â Â Â Coordination
of procurement and use of anatomical gifts
97.974Â Â Â Â Â Â Immunity
of persons acting in accordance with ORS 97.951 to 97.982
97.976Â Â Â Â Â Â Law
governing validity of document of gift; presumption of validity
97.977Â Â Â Â Â Â Donor
registry; duty of Department of Transportation to cooperate with donor registry
97.978Â Â Â Â Â Â Resolution
of conflict between potential anatomical gift and advance directive
97.979Â Â Â Â Â Â Cooperation
between medical examiner and procurement organization
97.980Â Â Â Â Â Â Facilitation
of anatomical gift from decedent whose body is under jurisdiction of medical
examiner
97.981Â Â Â Â Â Â Purchase
or sale of body parts prohibited
97.982Â Â Â Â Â Â Alteration
of document of anatomical gift prohibited
97.983Â Â Â Â Â Â Relation
to Electronic Signatures in Global and National Commerce Act
ANATOMICAL GIFTS
97.984Â Â Â Â Â Â Liability
of executor who carries out anatomical gift
97.985Â Â Â Â Â Â Transplants
not covered by implied warranty
FEDERAL AID FOR CEMETERIES
97.987Â Â Â Â Â Â Department
of Transportation use of federal moneys for cemetery care
PENALTIES
97.990Â Â Â Â Â Â Penalties
97.992Â Â Â Â Â Â Penalties
for ORS 97.937
97.994Â Â Â Â Â Â Penalties
for ORS 97.931, 97.933 and 97.941
GENERAL PROVISIONS
     97.010
Definitions. As used in ORS
97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920, 97.923
to 97.949, 97.990 and 97.994:
     (1) “Burial” means the placement of human
remains in a grave or lawn crypt.
     (2) “Burial park” means a tract of land
for the burial of human remains, used, or intended to be used, and dedicated
for cemetery purposes.
     (3) “Burial right” means the right to use
a grave, mausoleum, columbarium, ossuary or scattering garden for the interment
or other disposition of human remains.
     (4) “Cemetery” means a place:
     (a) Dedicated to and used, or intended to
be used, for the permanent interment of human remains; and
     (b) That may contain a mausoleum, crypt or
vault interment, a columbarium, ossuary, scattering garden or other structure
or place used or intended to be used for the interment or disposition of
cremated remains or any combination of these structures or places.
     (5) “Cemetery association” means a
corporation or association authorized by its articles of incorporation to
conduct the business of a cemetery, but does not include a corporation sole or
a charitable, eleemosynary association or corporation.
     (6) “Cemetery authority” means a person who
owns or controls cemetery lands or property, including but not limited to a
cemetery corporation, association or corporation sole.
     (7) “Cemetery business” and “cemetery
purpose” are used interchangeably and mean any business or purpose requisite or
incident to, or necessary for establishing, maintaining, operating, improving
or conducting a cemetery, interring human remains, and the care, preservation
and embellishment of cemetery property.
     (8) “Cemetery merchandise” means personal
property offered for sale or sold for use in connection with the final
disposition, memorialization or interment of human remains. “Cemetery
merchandise” includes, but is not limited to, an outer burial container and a
memorial.
     (9) “Cemetery services” means services
provided by a cemetery authority for interment or scattering, and installation
of cemetery merchandise.
     (10) “Columbarium” means a structure or
room containing receptacles for permanent inurnment of cremated remains in a
place used, or intended to be used, and dedicated for cemetery purposes.
     (11) “Cremated remains” means the remains
of a cremated human body after completion of the cremation process.
     (12) “Cremation” means the technical
process, using direct flame and heat, that reduces human remains to bone fragments.
     (13) “Crematory” means a structure
containing a retort for the reduction of bodies of deceased persons to cremated
remains.
     (14) “Crypt” or “vault” means a space in a
mausoleum of sufficient size used, or intended to be used, to entomb uncremated
human remains.
     (15) “Directors” or “governing body” means
the board of directors, board of trustees or other governing body of a cemetery
association.
     (16) “Endowment care” means the general
care and maintenance of developed portions of a cemetery and memorials erected
thereon financed from the income of a trust fund.
     (17) “Entombment” means the placement of
human remains in a crypt or vault.
     (18) “Funeral merchandise” means personal
property offered for sale or sold for use in connection with funeral services. “Funeral
merchandise” includes, but is not limited to, acknowledgment cards, alternative
containers, caskets, clothing, cremation containers, cremation interment
containers, flowers, memory folders, monuments, outer burial containers, prayer
cards, register books and urns.
     (19) “Funeral services” means services
customarily provided by a funeral service practitioner including, but not
limited to, care and preparation of human remains for final disposition,
professional services relating to a funeral or an alternative to a funeral,
transportation of human remains, limousine services, use of facilities or
equipment for viewing human remains, visitation, memorial services or services
that are used in connection with a funeral or alternative to a funeral,
coordinating or conducting funeral rites or ceremonies, and other services
provided in connection with a funeral, alternative to a funeral or final
disposition of human remains.
     (20) “Grave” means a space of ground in a
burial park used, or intended to be used, for burial of the remains of one
person.
     (21) “Human remains” or “remains” means
the body of a deceased person in any stage of decomposition or after cremation.
     (22) “Interment” means the disposition of
human remains by inurnment, entombment or burial.
     (23) “Inurnment” means the placement of
cremated remains in a receptacle and the deposit of the receptacle in a niche.
     (24) “
     (25) “Mausoleum” means a structure
substantially exposed above ground for the entombment of human remains in
crypts or vaults in a place used, or intended to be used, and dedicated for
cemetery purposes.
     (26) “Memorial” means a product, other
than a mausoleum or columbarium, used for identifying an interment space or for
commemoration of the life, deeds or career of a decedent including, but not
limited to, an ossuary, monument, marker, niche plate, urn garden plaque, crypt
plate, cenotaph, marker bench or vase.
     (27) “Niche” means a recess usually in a
columbarium used, or intended to be used, for the inurnment of the cremated
remains of one or more persons.
     (28) “Ossuary” means a receptacle used for
the communal placement of cremated remains without benefit of an urn or any
other container in which cremated remains may be commingled with other cremated
remains and are nonrecoverable.
     (29) “Plot owner” or “owner” means any
person identified in the records of the cemetery authority as owner of the
burial rights to a burial plot, or who holds a certificate of ownership
conveyed from the cemetery authority of the burial rights in a particular lot,
plot or space.
     (30) “Scattering” means the lawful
dispersion of cremated remains that need not be associated with an interment
right or issuance of a deed, that may be recorded only as a service that has
taken place and may not be recorded on the permanent records of the cemetery
authority.
     (31) “Scattering garden” means a location
set aside within a cemetery that is used for the spreading or broadcasting of
cremated remains that have been removed from their container and can be mixed
with or placed on top of the soil or ground cover or buried in an underground
receptacle on a commingled basis and that are nonrecoverable.
     (32) “Special care” means any care in
excess of endowed care in accordance with the specific directions of a donor of
funds. [Amended by 1955 c.545 §1; 1965 c.396 §1; 2007 c.661 §1]
     97.020
Exemption of certain organizations and cemeteries from certain sections of
chapter. (1) The provisions
of ORS 97.030, 97.120, 97.310 to 97.350, 97.360 (1), 97.510 and 97.550 relating
to private cemeteries do not apply to:
     (a) Any religious or eleemosynary
corporation, church, religious society or denomination, corporation sole
administering temporalities of any church or religious society or denomination
or any cemetery that such entity organizes, controls or operates.
     (b) Any county or city cemetery.
     (2) The provisions of ORS 97.810 to 97.865
relating to private cemeteries do not apply to:
     (a) Any religious or eleemosynary
corporation, church, religious society or denomination, corporation sole
administering temporalities of any church or religious society or denomination
or any cemetery that such entity organizes, controls or operates, unless the
cemetery authority for an entity described in this paragraph elects to subject
itself to ORS 97.810 to 97.865.
     (b) Any county or city cemetery, unless
the county or city elects to subject itself to ORS 97.810 to 97.865. [Amended
by 1955 c.473 §1; 1997 c.167 §1]
     97.030
Vested rights not acquired.
No cemetery authority or person having a right of sepulture or any other right
under ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to
97.920 and 97.990 acquires any vested right by virtue thereof which the
Legislative Assembly may not subsequently amend, alter or repeal.
     97.040
Private family burial grounds.
Except for ORS 97.730, 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730,
97.810 to 97.920 and 97.990 do not apply to private family burial grounds where
lots are not offered for sale.
     97.050 [1977 c.183 §1; 1983 c.526 §4; 1985 c.747 §49;
1987 c.660 §16; 1989 c.1034 §8; renumbered 127.605 in 1989]
     97.055 [1977 c.183 §2; 1979 c.211 §1; 1983 c.526 §5;
renumbered 127.610 in 1989]
     97.060 [1977 c.183 §3; renumbered 127.615 in 1989]
     97.065 [1977 c.183 §4; renumbered 127.620 in 1989]
     97.070 [1977 c.183 §5; renumbered 127.625 in 1989]
     97.075 [1977 c.183 §6; repealed by 1983 c.526 §7]
     97.080 [1977 c.183 §7; renumbered 127.630 in 1989]
AUTOPSIES
     97.082
Consent for certain autopsies; form. (1) Except as provided in subsection (2) of this section, whenever a
person dies and no autopsy is ordered by a medical examiner or district
attorney pursuant to ORS 146.117, an autopsy may not be conducted without the
prior written consent of a person within the first applicable class of the
following listed classes:
     (a) The spouse of the decedent;
     (b) A son or daughter of the decedent 18
years of age or older;
     (c) Either parent of the decedent;
     (d) A brother or sister of the decedent 18
years of age or older;
     (e) A guardian of the decedent at the time
of death;
     (f) A person in the next degree of kindred
to the decedent;
     (g) The personal representative of the
estate of the decedent; or
     (h) The person nominated as the personal
representative of the decedent in the decedentÂ’s last will.
     (2)(a) Consent required under subsection
(1) of this section must be granted on a written autopsy consent form developed
pursuant to subsection (3) of this section.
     (b) If the person authorized by subsection
(1) of this section to grant written consent to conduct an autopsy is not
available to grant written consent in person, the authorized person may grant
consent by completing the required consent form and returning the signed form,
by facsimile or other electronic transmission, to the party requesting
permission.
     (3) The Public Health Officer, in
consultation with the State Medical Examiner, shall develop and make available
a standardized written autopsy consent form that:
     (a) Grants the person specified in
subsection (1) of this section the authority to:
     (A) Grant permission to conduct an
unlimited autopsy;
     (B) Grant permission to conduct a limited
autopsy and to specify what limitations are imposed upon the autopsy; or
     (C) Refuse permission to conduct an
autopsy.
     (b) Provides a section for the person
specified in subsection (1) of this section to submit specific instructions
with respect to tests to be performed during the autopsy and to the disposition
of organs and tissue removed for purposes of a limited autopsy.
     (c) Provides that the consent signature be
accompanied by the signature of a witness. [2003 c.416 §1]
     Note: 97.082 was enacted into law by the Legislative
Assembly but was not added to or made a part of ORS chapter 97 or any series
therein by legislative action. See Preface to Oregon Revised Statutes for
further explanation.
     97.083 [1983 c.526 §1; renumbered 127.635 in 1989]
     97.084 [1983 c.526 §2; renumbered 127.640 in 1989]
     97.085 [1977 c.183 §§8,9,10; renumbered 127.645 in
1989]
     97.090 [1977 c.183 §11; renumbered 127.650 in 1989]
DISPOSITION
OF HUMAN BODIES
     97.110
Human remains not to be attached. No person shall attach, detain or claim to detain any human remains
for any debt or demand or upon any pretended lien or charge.
     97.120
Human remains to be deposited in accordance with ORS 97.010 to 97.040, 97.110
to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990. A cemetery authority shall deposit or
dispose of human remains as provided by ORS 97.010 to 97.040, 97.110 to 97.450,
97.510 to 97.730, 97.810 to 97.920 and 97.990.
     97.130
Right to control disposition of remains; delegation. (1) Any individual of sound mind who is 18
years of age or older, by completion of a written signed instrument or by
preparing or prearranging with any funeral service practitioner licensed under
ORS chapter 692, may direct any lawful manner of disposition of the individualÂ’s
remains. Except as provided under subsection (6) of this section, disposition
directions or disposition prearrangements that are prepaid or that are filed
with a funeral service practitioner licensed under ORS chapter 692 shall not be
subject to cancellation or substantial revision.
     (2) A person within the first applicable
listed class among the following listed classes that is available at the time
of death or, in the absence of actual notice of a contrary direction by the
decedent as described under subsection (1) of this section or actual notice of
opposition by completion of a written instrument by a member of the same class
or a member of a prior class, may direct any lawful manner of disposition of a
decedentÂ’s remains by completion of a written instrument:
     (a) The spouse of the decedent.
     (b) A son or daughter of the decedent 18
years of age or older.
     (c) Either parent of the decedent.
     (d) A brother or sister of the decedent 18
years of age or older.
     (e) A guardian of the decedent at the time
of death.
     (f) A person in the next degree of kindred
to the decedent.
     (g) The personal representative of the
estate of the decedent.
     (h) The person nominated as the personal
representative of the decedent in the decedentÂ’s last will.
     (i) A public health officer.
     (3) The decedent or any person authorized
in subsection (2) of this section to direct the manner of disposition of the
decedentÂ’s remains may delegate such authority to any person 18 years of age or
older. Such delegation shall be made by completion of the written instrument
described in subsection (7) of this section. The person to whom the authority
is delegated shall have the same authority under subsection (2) of this section
as the person delegating the authority.
     (4) If a decedent or the decedent’s
designee issues more than one authorization or direction for the disposal of
the decedentÂ’s remains, only the most recent authorization or direction shall
be binding.
     (5) A donation of anatomical gifts under
ORS 97.951 to 97.982 shall take priority over directions for the disposition of
a decedentÂ’s remains under this section only if the person making the donation
is of a priority under subsection (1) or (2) of this section the same as or
higher than the priority of the person directing the disposition of the
remains.
     (6) If the decedent directs a disposition
under subsection (1) of this section and those financially responsible for the
disposition are without sufficient funds to pay for such disposition or the
estate of the decedent has insufficient funds to pay for the disposition, or if
the direction is unlawful, the direction shall be void and disposition shall be
in accordance with the direction provided by those persons given priority in
subsection (2) of this section and who agree to be financially responsible.
     (7) The signature of the individual shall
be required for the completion of the written instrument required in subsection
(3) of this section. The following form or a form substantially similar shall
be used by all individuals:
______________________________________________________________________________
APPOINTMENT OF PERSON
TO MAKE DECISIONS
CONCERNING DISPOSITION
OF REMAINS
     I, __________________, appoint __________________,
whose address is _______________ and whose telephone number is (___)_________,
as the person to make all decisions regarding the disposition of my remains
upon my death for my burial or cremation. In the event ____________ is unable
to act, I appoint ____________, whose address is __________________ and whose
telephone number is (___)_________, as my alternate person to make all
decisions regarding the disposition of my remains upon my death for my burial
or cremation.
     It is my intent that this Appointment of
Person to Make Decisions Concerning Disposition of Remains act as and be
accepted as the written authorization presently required by ORS 97.130 (or its
corresponding future provisions) or any other provision of Oregon Law,
authorizing me to name a person to have authority to dispose of my remains.
     DATED this ___ day of ______, _____.
__________________
(Signature)
DECLARATION OF WITNESSES
     We declare that ____________ is personally
known to us, that he/she signed this Appointment of Person to Make Decisions
Concerning Disposition of Remains in our presence, that he/she appeared to be
of sound mind and not acting under duress, fraud or undue influence, and that
neither of us is the person so appointed by this document.
Witnessed By:
_______________Â Â Â Â Â Date: _____
Witnessed By:
_______________Â Â Â Â Â Date: _____
______________________________________________________________________________
     (8) Subject to the provisions of ORS
97.951 to 97.982, if disposition of the remains of a decedent has not been
directed and authorized under this section within 10 days after the date of the
death of the decedent, a public health officer may direct and authorize
disposition of the remains.
     (9) Notwithstanding subsection (2) of this
section, a person arrested for or charged with criminal homicide by reason of
the death of the decedent may not direct the disposition of the decedentÂ’s
remains. The disposition of the decedentÂ’s remains shall be made in accordance
with the directions of an eligible person within the first applicable class
established under subsection (2) of this section. [Amended by 1969 c.175 §10;
1969 c.591 §279; 1973 c.823 §97; 1995 c.717 §10; 1997 c.472 §1; 1999 c.201 §5;
2007 c.373 §1; 2007 c.681 §24]
     97.132 [1961 c.674 §1; repealed by 1969 c.175 §12]
     97.134 [1961 c.674 §§2,3; repealed by 1969 c.175 §12]
     97.140 [Repealed by 1957 c.423 §1 (97.141 and
97.145 enacted in lieu of 97.140)]
     97.141 [1957 c.423 §2 (97.141 and 97.145 enacted in
lieu of 97.140); repealed by 1997 c.472 §13]
     97.145
Liability for failure to conform to written instrument directing control of
remains. No cemetery
authority, crematory operator or licensed funeral service practitioner
interring or cremating remains pursuant to a written instrument signed by the
decedent or a person described in ORS 97.130 (2) shall be liable for any
failure to conform to the priority of control of remains provided in ORS
97.130, except when it shall have received two or more conflicting written
instruments prior to interment or cremation of said remains. [1957 c.423 §3
(97.141 and 97.145 enacted in lieu of 97.140); 1997 c.472 §2]
     97.150
Disposition of cremated remains; procedures; notice; actions against cemetery
or funeral service providers.
(1) If the cemetery authority, crematory operator or licensed funeral service
practitioner has been authorized to cremate remains of a decedent pursuant to
ORS 97.130, the authorization shall also contain further instructions to the
cemetery authority, crematory operator or licensed funeral service practitioner
as to the final disposition of the cremated remains. If the cremated remains
are left in the possession of the cemetery authority, crematory operator or
licensed funeral service practitioner and no such instructions are given to the
cemetery authority, crematory operator or licensed funeral service practitioner
within 180 days after the date of cremation, the cemetery authority, crematory
operator or licensed funeral service practitioner shall make a reasonable
effort to notify the person, pursuant to ORS 97.130, who has the right to
control the disposition of the cremated remains. The notice shall state that
the cemetery authority, crematory operator or licensed funeral service
practitioner intends to dispose of the cremated remains unless such person
gives instructions to the contrary to the cemetery authority, crematory
operator or licensed funeral service practitioner within 30 days of the date of
such notice from the cemetery authority, crematory operator or licensed funeral
service practitioner. Reasonable effort to notify shall include, but not be
limited to, notice, personally or by certified mail, return receipt requested,
to the person who has the right to control the disposition of the cremated
remains at the address of such person in the records of the cemetery authority,
crematory operator or licensed funeral service practitioner. If disposition of
the cremated remains has not been directed and authorized by such person within
said 30-day period, the cemetery authority, crematory operator or licensed
funeral service practitioner may dispose of the cremated remains as is legally
practicable.
     (2) No cemetery authority, crematory
operator or licensed funeral service practitioner shall be liable, and no
action shall lie against any cemetery authority, crematory operator or licensed
funeral service practitioner relating to any cremated remains that have been
left in its possession for a period of 180 days unless the cemetery authority,
crematory operator or licensed funeral service practitioner has failed to make
such reasonable effort to notify the person described in subsection (1) of this
section or unless a written contract has been entered into with the cemetery
authority, crematory operator or licensed funeral service practitioner for
their care or unless permanent interment has been made. If the cemetery
authority, crematory operator or licensed funeral service practitioner has
complied with this section, then the cemetery authority, crematory operator or
licensed funeral service practitioner may dispose of the remains as is legally
practicable. [Amended by 1989 c.669 §1; 1997 c.472 §3]
     97.153
Diagnostic or therapeutic radioisotopes in body. Notwithstanding section 14, chapter 653,
Oregon Laws 1991, or ORS 469.525, diagnostic or therapeutic radioisotopes
remaining inside the uncremated body of a deceased person may be buried,
entombed or otherwise disposed of in a cemetery or other lawful place for the
burial, entombment or other disposal of the uncremated body of the deceased
person even though the body contains low-level radioactive waste as defined
under 42 U.S.C. 2021(b) as of January 1, 1995, by-product material as defined
under 42 U.S.C. 2014 as of January 1, 1995, or special nuclear material
exempted by the United States Nuclear Regulatory Commission as of January 1,
1995, under authority of 42 U.S.C. 2077(d). [1995 c.252 §1]
     Note: 97.153 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 97 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     97.160
Duty of hospital or sanitarium to notify before sending remains to undertaker;
procedures. (1) No hospital
or sanitarium, or the employees, agents or representatives thereof, shall send
or cause to be sent to any funeral service practitioner, undertaker, mortician
or embalmer the remains of any decedent without having complied with this
section before final disposition of the remains.
     (2) If the admitting record contains the
name of a relative, friend or other person identified by the decedent in the
admitting record, or if the hospital or sanitarium is aware of the name of any
other person chargeable with the funeral expenses of the decedent, the hospital
or the sanitarium must notify the relative, friend or other person personally
or by certified mail, return receipt requested.
     (3) If a hospital or sanitarium is unable
to give actual notice to a relative, friend or other person under the
provisions of subsection (2) of this section, the hospital or sanitarium must
publish a notice of death at least one time in a newspaper of general circulation
in the county where the death occurred, or, if there is no such newspaper, in a
newspaper most likely to give notice of the death to relatives and friends of
the decedent. The notice must contain the name of the decedent and the address
and phone number for the hospital or sanitarium.
     (4) If the remains of the decedent are not
claimed within 10 days after the giving of notice under subsection (2) of this
section, or within 10 days after publication under subsection (3) of this
section if publication is made under subsection (3) of this section, the
hospital or sanitarium may arrange for the disposal of the remains of the
decedent without further notice in the manner specified by ORS 97.170 to
97.200.
     (5) Nothing in this section limits or
governs the authority of any administrator or executor, trustee or other person
having a fiduciary relationship with the deceased or to the state, counties,
cities or towns in the disposition of the remains of a deceased person. [Amended
by 1993 c.92 §1]
     97.170
Disposition of body of indigent or child in custody of Department of Human
Services. (1) Except as set
forth in subsection (4) of this section, any licensed funeral service
practitioner having charge of the body of a deceased person thought to be an
unclaimed indigent shall use all reasonable diligence promptly to notify the
relatives of the deceased person or any other person having an interest in the
deceased person and shall arrange with any relative who claims the body or with
any friend of the deceased person who will pay the expenses to make disposition
of the body. If no one claims the body within five days after death, or if
those notified acquiesce, the funeral service practitioner shall notify, by
telephone, the Demonstrator of Anatomy of the Oregon Health and
     (2) If the Demonstrator of Anatomy does
not require any such body for instruction or research, it may be assigned, on
request, to any other properly authorized institution within this state or to
any qualified physician for instruction or research.
     (3) When the body of a deceased person is
deemed in unfit condition by the Demonstrator of Anatomy and disposition does
not take place as set forth in subsections (1) and (2) of this section, and no
relatives, friends or interested persons claim the body after notification is
attempted, then the funeral service practitioner may commence to cremate or
bury the body without the consent of persons listed in ORS 97.130 and is
furthermore indemnified from any liability arising from having made such
disposition. The method of disposition must be in the least costly manner that
complies with law, and that does not conflict with known wishes of the
deceased. Reimbursement for costs of disposition shall be made as set forth in
subsection (5) of this section.
     (4) When the deceased person is a child
over whom the Department of Human Services held guardianship at the time of
death, and no relatives, friends or interested persons claim the body after
notification is attempted as set forth in subsection (1) of this section, the
department may at its discretion notify the Demonstrator of Anatomy and proceed
as set forth in subsection (1) of this section, or may authorize burial or
cremation of the body. Expenses related to burial or cremation authorized by
the department under this subsection shall be borne by the department.
     (5) Upon receipt of an itemized statement
of expenses, the department shall reimburse the funeral service practitioner
within 30 days the reasonable costs for disposition of any unclaimed deceased
person who has insufficient assets and for whom no one takes responsibility.
The method of disposition must be in the least costly manner and shall not
exceed $450 per disposition. [Amended by 1973 c.842 §1; 1985 c.704 §1; 1993
c.345 §4; 1995 c.162 §62]
     97.180
Period within which body may not be used. Upon receipt of any body by a school or college pursuant to ORS
97.170, it shall be properly embalmed for anatomical purposes, but shall be
retained 30 days before being used or dismembered. If it is claimed by any
relative or friend within that period, it shall be delivered to the claimant.
     97.190
Post-mortem examination of body. Unless required by a medical examiner to determine the cause of death
or specifically authorized and ordered by the superintendent of the hospital or
institution in which any person coming under the provisions of ORS 97.170 may
die, no such body as is mentioned in ORS 97.170 is subject to post-mortem
examination, except by consent of the Demonstrator of Anatomy. [Amended by 1959
c.629 §43; 1965 c.221 §13; 1977 c.582 §1]
     97.200
Disposition of remains after educational use thereof. The remains of any corpse used for the
purposes authorized by ORS 97.170 shall, upon completion of such use, be
decently buried or cremated and the ashes, in case of cremation, shall be
delivered to any relative who claims them, after establishing relationship. All
expenses incident to burial and cremation and the delivery of ashes to any
relative shall be borne by the educational institution which used the body for
educational purposes.
     97.210
Exceptions to application of ORS 97.170 to 97.200; rules. The body of any person who died of smallpox,
diphtheria, scarlet fever or other disease that the Department of Human
Services, by rule, may prescribe, shall not be subject to the provisions of ORS
97.170 to 97.200. [Amended by 1977 c.582 §2]
     97.220
Disinterment. (1) The
remains of a deceased person interred in a plot in a cemetery may be removed
from the plot with the consent of the cemetery authority and written consent of
the person under ORS 97.130 (2)(a), (b) or (c) who has the right to control the
disposition of the remains of the deceased person. If the consent of any such
person or of the cemetery authority cannot be obtained, permission by the
county court where the cemetery is situated is sufficient. Notice of
application to the court for such permission must be given at least 60 days
prior thereto, personally or by mail, to the cemetery authority, to the person
not consenting and to every other person or authority on whom service of notice
is required by the county court.
     (2) If the payment for the purchase of an
interment space becomes past due and so remains for a period of 90 days, this
section does not apply to or prohibit the removal of any remains from one plot
to another in the same cemetery or the removal of remains by the cemetery
authority from a plot to some other suitable place.
     (3) This section does not apply to the
disinterment of remains upon order of court or if ordered under the provisions
of ORS 146.045 (3)(e). [Amended by 1977 c.582 §3; 2007 c.661 §2]
     97.230 [Repealed by 1973 c.286 §1]
     97.250 [1969 c.175 §1; repealed by 1995 c.717 §9]
     97.255 [1969 c.175 §3; repealed by 1995 c.717 §9]
     97.260 [1969 c.175 §2; repealed by 1995 c.717 §9]
     97.265 [1969 c.175 §4; 1973 c.823 §§98,157; 1993
c.218 §1; repealed by 1995 c.717 §9]
     97.268 [1985 c.379 §1; repealed by 1995 c.717 §9]
     97.270 [1969 c.175 §5; repealed by 1995 c.717 §9]
     97.275 [1969 c.175 §6; 1969 c.591 §278a; 1975 c.215
§1; repealed by 1995 c.717 §9]
     97.280 [1969 c.175 §7; repealed by 1995 c.717 §9]
     97.285 [1969 c.175 §8; repealed by 1995 c.717 §9]
     97.290 [1969 c.175 §9; repealed by 1995 c.717 §9]
     97.295 [Formerly 116.115; 1995 c.717 §11;
renumbered 97.966 in 1995]
     97.300 [1969 c.271 §1; 1995 c.717 §12; renumbered
97.968 in 1995]
DEDICATION TO
CEMETERY PURPOSES; PLATTINGS
     97.310
Survey and subdivision of land; map or plat of mausoleum or columbarium; access
easement. (1) Every cemetery
authority, from time to time as its property may require for cemetery purposes,
shall:
     (a) In case of land, survey and subdivide
it into sections, blocks, plots, avenues, walks or other subdivisions and make
a good and substantial map or plat showing them, with descriptive names or
numbers. In all instances this shall be done in compliance with ORS 92.010 to
92.190 except that ORS 92.090 (2)(a) and (b) shall not be applicable to
streets, alleys, ways and footpaths located wholly within a cemetery.
     (b) In case of a mausoleum or columbarium,
make a good substantial map or plat on which are delineated the sections,
halls, rooms, corridors, elevation and other divisions, with descriptive names
or numbers. In all instances this shall be done in compliance with the state
building code.
     (2) Every lot in a cemetery subdivision
shall include an access easement across the lot for the benefit of adjacent
lots. Designated areas between lots for the purpose of providing access to
separate lots are not required to approve a subdivision under this section. A
cemetery authority must disclose to a potential purchaser of a lot in the cemetery
the existence of the access easement across the lot. [Amended by 1965 c.396 §2;
1979 c.57 §1; 1985 c.582 §3; 1999 c.381 §1]
     97.320
Filing map or plat and declaration of dedication of land to cemetery purposes. In case of a cemetery lot, the cemetery
authority shall file the map or plat in the office of the recording officer of
the county in which all or a portion of the property is situated, and it
forthwith shall file for record in that officerÂ’s office a written declaration
dedicating the property delineated on the plat or map exclusively to cemetery
purposes.
     97.330
When dedication is complete.
Upon the filing of the map or plat and of the declaration for record, the
dedication is complete for all purposes, and thereafter the property shall be held,
occupied and used exclusively for cemetery purposes.
     97.340
Effect of dedication. After
property is dedicated to cemetery purposes pursuant to ORS 97.310 to 97.330 and
97.360 (1), neither the dedication nor the title of a plot owner shall be
affected by the dissolution of the cemetery authority by nonuser on its part,
by alienation of the property, by any encumbrances, by sale under execution or
otherwise, except as provided in ORS 97.310 to 97.350, 97.360 (2), 97.440,
97.510 to 97.650, 97.710, 97.720 and 97.810 to 97.865.
     97.350
Dedication to cemetery purposes not invalid. Dedication to cemetery purposes pursuant to ORS 97.010 to 97.040,
97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990 is not invalid
as violating any laws against perpetuities or the suspension of the power of
alienation of title to or use of property, and is deemed to be in respect for
the dead, and is a provision for the interment of human remains and is a duty
to, and for the benefit of, the general public.
     97.360
Resurvey and alteration in shape or size; vacation of streets, walks, driveways
and parks and replatting into lots. (1) Any part or subdivision of the property so mapped and platted may,
by order of the directors and consent of the lot owners, be resurveyed and
altered in shape and size and an amended map or plat filed, so long as such
change does not disturb any interred remains.
     (2) Whenever a majority of the lots as
platted or laid out in any cemetery established before March 3, 1927, or any
part thereof, has been sold without the owners or persons in control of the
cemetery having made provision for the establishment of an adequate endowment
fund for the perpetual maintenance, upkeep and beautification of the cemetery
and of the lots therein, the avenues, streets, alleys, walks, driveways and
parks therein may be vacated or altered and replatted into lots which may be
sold for burial purposes in the manner provided in this subsection and in ORS
97.370 to 97.430. Application for the vacation or alteration of any avenues,
streets, alleys, walks, driveways or parks, and for the replatting of the same,
or any portion thereof, for cemetery lots in any such cemetery shall be made to
the county court or board of county commissioners in the county where the cemetery
is situated. The application may be by the owners or persons in control of the
cemetery or by a group of 20 or more persons owning lots or having relatives
buried therein. The application shall be verified and shall specify the lots
owned by each petitioner in which are buried bodies of relatives in which the
petitioner is interested and shall state the reason for the proposed change and
what provisions have theretofore been made for the perpetual upkeep,
maintenance and beautification of the cemetery, and there shall be presented
therewith a plat of the cemetery, together with the proposed replat, which
shall have clearly indicated thereon the proposed changes.
     97.370
Fixing date of hearing; notice.
When any application mentioned in ORS 97.360 (2) is filed, the court or board
shall fix the time for the hearing of it and notice of the time thereof shall
be given by publication in a paper of general circulation published in the town
in which the cemetery is situated or in the town to which it is nearest once a
week for a period of six successive weeks prior to the date of the hearing and
a copy of such notice shall be posted for a like period at three public and
conspicuous places in the cemetery. Such notice shall be addressed to all
persons owning lots or having an interest in the cemetery, but need not name
them, and shall set forth in a general way the proposed changes, the reason
stated in the application for making it, the time when the hearing of the
application will be had, and shall state that a plat showing the proposed
changes is on file with the county clerk of the county in which the cemetery is
situated.
     97.380
Hearing; order allowing replatting. At the hearing mentioned in ORS 97.370 the court or board shall
consider and hear any evidence introduced in favor of the proposed change and
all objections thereto and, after a full hearing thereon, may allow the
proposed change and replat in whole or in part. If the proposed change is
allowed, either in whole or in part, an order allowing it shall be made
providing that title to any new lot created by the alteration or vacation of
any avenues, streets, alleys, driveways, walks or parks, or any part thereof,
shall be vested in the owner of the fee of the part of the cemetery sought to
be vacated in trust for burial purposes, or vested in any association which may
be formed for the purpose of taking over the cemetery and operating and
maintaining it in accordance with the provisions of ORS 97.400. [Amended by
1985 c.582 §4; 1999 c.381 §2]
     97.390
Assessment of benefits and damages. If any damages are claimed by the owner of any lot in any such
cemetery as is mentioned in ORS 97.360 (2), which lot is adjacent to the
avenues, streets, alleys, driveways or parks vacated as provided in ORS 97.380,
they shall be ascertained by the county court or board of county commissioners
and offset against the benefits accruing to the lot owner on account of the
upkeep and beautification of the cemetery in the manner provided in ORS 97.400.
Any person feeling aggrieved at the amount of damages so assessed by the board
may appeal from such order of allowance to the circuit court of the county in
which the cemetery is situated in the same manner as is provided by statute for
appeal from the assessment of damages by the exercise of eminent domain in
locating a county road and on such appeal the jury, in assessing the amount of
damages to be allowed to the appellant, shall offset against such damages the
benefits accruing to the appellant as in this section above provided.
     97.400
Disposal of newly created lots; disposition and use of proceeds from sale;
failure of owner to perform duties. Any owner or association accepting the trust of handling and disposing
of lots newly created pursuant to ORS 97.380 shall by the acceptance thereof
agree to dispose of the lots only for burial purposes and at a price not less
than that fixed by the county court or board of county commissioners. The net
funds derived from the sale of the lots remaining after the payment of the
reasonable expenses incident to the vacation and of the sale shall be placed in
an irreducible and perpetual fund and the interest therefrom shall be used for
the perpetual upkeep and beautification of the cemetery and the lots therein
situated. The fund shall be placed in some reliable trust company specified by
the court or board, which trust company shall invest the same and pay the
income therefrom to the owner or association charged with the disposal of such
lots. Any owner or association taking over the sale of the lots shall comply
with such provisions as the court or board may require of it in the upkeep,
beautification and care of the cemetery with the income thereof, and if such
owner or association for any reason fails to perform such duties, the court or
board may, on its own motion, from time to time, appoint some other association
or individual to perform them. The restrictions of this section shall not apply
to the sale of lots obtained by replatting cemeteries owned and maintained by
any county.
     97.410
Right of adjacent lot owner upon vacation of way. The vacation of an avenue, street, alley,
driveway, walk or park adjacent to a cemetery lot shall vest in the owner of
such lot no interest in the vacated portion thereof; but the adjacent owner
shall, for 30 days after the date of such an order of vacation, have the right
to purchase any new lot adjacent to the lot of the owner at the price fixed by
the court or board at which the lots are to be sold, and if there is more than
one adjacent lot owner, the new lot shall be sold to the one offering the
highest price therefor.
     97.420
Effect of failure to object.
Any owner of such cemetery as is mentioned in ORS 97.360 (2), or of any lot
therein, or any relative or heir of any deceased person buried in such cemetery
who fails to appear and file written objection to any proposed replat,
alteration or vacation, authorized by ORS 97.360 (2), shall be deemed to have
consented to the proposed change and shall be forever barred from claiming any
right to use and have open for traffic or passageway any streets, alleys,
driveways or parks vacated, or any right, title or interest therein, except as
provided in ORS 97.360 (2) and 97.370 to 97.410.
     97.430
Declaration of exercise of police power and right of eminent domain. The enactment of ORS 97.360 (2) and 97.370
to 97.430 is hereby declared to be a necessary exercise of the police powers of
the state in order to preserve and keep existing cemeteries as resting places
for the dead and to preserve old and historic cemeteries from becoming unkempt
and places of reproach and desolation in the communities in which they are
located. The taking of avenues, streets, alleys, walks, driveways and parks for
the purpose and by the method specified in ORS 97.360 (2) and 97.370 to 97.420
is hereby declared an exercise of the right of eminent domain in behalf of the
public health, safety, comfort, pleasure and historic instruction.
     97.440
Removal of dedication. (1)
Property dedicated to cemetery purposes shall be held and used exclusively for
cemetery purposes until the dedication is removed from all or any part of it by
an order and decree of the county court or board of county commissioners of the
county in which the property is situated in a proceeding brought by the
cemetery authority for that purpose and upon notice of hearing and proof
satisfactory to the court that:
     (a) The portion of the property from which
dedication is sought to be removed is not being used for interment of human
remains; or
     (b) The Oregon Commission on Historic
Cemeteries has received notice of and had the opportunity to comment on the
removal from the dedicated property of all human remains and markers dated
prior to February 14, 1909.
     (2) The notice of hearing required by this
section must:
     (a) Be given by publication once a week
for at least four consecutive weeks in a newspaper of general circulation in
the county where the cemetery is located and by publication twice in a
newspaper with statewide circulation;
     (b) Be posted in three conspicuous places
on that portion of the property from which the dedication is to be removed;
     (c) Describe the portion of the cemetery
property sought to be removed from dedication;
     (d) State that all remains and markers
have been removed or that no interments have been made in the portion of the
cemetery property sought to be removed from dedication; and
     (e) Specify the time and place of the
hearing. [Amended by 2003 c.237 §1]
     97.445
Vacating county interest in cemetery real property. Consistent with the provisions of ORS
368.326 to 368.366, a county may vacate any real property interests the county
may own in a cemetery. Consistent with ORS 368.366 (2), the county may vacate
its real property interests in favor of a private nonprofit organization
provided the organization states its intent to provide for the continuing
maintenance and care of the cemetery and associated facilities. [1997 c.747 §2]
     97.450
Discontinuance of cemetery and removal of remains and markers. (1)(a) Whenever any cemetery that is within
the limits of any county, city or town has been abandoned, or it is desirable
to abandon such cemetery, the governing body of any county, if the cemetery is
owned by the county, or the corporate authorities of the city or town, if the
cemetery is owned by the city or town, or the trustees or directors, if the
cemetery is owned by an association or corporation, may order that such burial
ground be discontinued, have the remains of all persons interred in the
cemetery moved to some other suitable place and provide for the removal and
reerection of all stones and monuments marking said graves. Each removal must
be made in an appropriate manner and in accordance with the directions of the
Director of Human Services. Prior to any removal authorized under this section,
written notice must be given to the family, or next of kin of the deceased, if
known, and if unknown, notice of the removal shall be published for at least
four successive weeks in a newspaper of general circulation in the county in
which the cemetery is located and twice in a newspaper with statewide
circulation.
     (b) Any removal and the costs of the
proceedings under this section shall be at the expense of the county, city or
town, individual, corporation or association owning the cemetery to be moved.
     (2) Notwithstanding subsection (1)(a) of
this section, a cemetery or burial ground containing human remains that were
interred before February 14, 1909, may not be discontinued or declared
abandoned or have remains removed from the burial ground or cemetery without
prior notice to and comment by the Oregon Commission on Historic Cemeteries.
When commenting on a request to discontinue or declare abandoned a cemetery or
burial ground, the commission shall consider:
     (a) The listing of the cemetery or burial
ground under ORS 97.782;
     (b) The historic significance of the
cemetery or graves included in the request; and
     (c) The findings of any archaeological
survey of the cemetery or burial ground. [Amended by 1955 c.472 §1; 2003 c.237 §2]
     97.460
Approval required prior to establishment of cemetery or burial park. No association, corporation, cemetery
authority, or person shall after February 24, 1903, lay out, open up or use any
property for cemetery or burial park purposes, without the approval of the
planning commission of the county or city having jurisdiction under ORS 92.042
or, if there is no such commission in such county or city, the governing body
of such county or city. [Formerly 64.060; 1965 c.396 §3]
SALES AND RIGHTS
IN RESPECT OF CEMETERY PLOTS
     97.510
     (2) Scattering of cremated remains in a
scattering garden is not a sale or conveyance. [Amended by 2007 c.661 §3]
     97.520
     97.530
Commission, bonus or rebate for sale of plot or services. No cemetery authority shall pay or offer to
pay, and no person, firm or corporation shall receive, directly or indirectly,
a commission, bonus, rebate or other thing of value for the sale of a plot or
services. This does not apply to a person regularly employed by the cemetery
authority for such purpose. Each violation of this section constitutes a
separate offense.
     97.540
Commission, bonus or rebate for recommendation of cemetery. No person shall pay, cause to be paid or
offer to pay, and no person, firm or corporation shall receive, directly or
indirectly, except as provided in ORS 97.530, any commission, bonus, rebate or
other thing of value in consideration of recommending or causing a dead human
body to be disposed of in any cemetery. Each violation of this section
constitutes a separate offense.
     97.550
Plots are indivisible. All
plots, the use of which has been conveyed by deed or certificate of ownership
as a separate plot, are indivisible except with the consent of the cemetery
authority, or as provided by law.
     97.560
Presumption of sole ownership in grantee of plot. All plots conveyed to individuals are
presumed to be solely and separately owned by the person named in the
instrument of conveyance.
     97.570
Spouse has vested right of interment. (1) The spouse of an owner of any plot containing more than one
interment space has a vested right of interment of the remains of the spouse in
the plot, and any person thereafter becoming the spouse of the owner has a
vested right of interment of the remains of the person in the plot if more than
one interment space is unoccupied at the time the person becomes the spouse of
the owner.
     (2) The purchase by a married person of
more than one interment space shall create in the spouse a right of interment
therein.
     97.580
Divestiture of spouseÂ’s right of interment. No conveyance or other action of the owner without the written consent
or joinder of the spouse of the owner divests the spouse of the vested right of
interment, except that a judgment of divorce between them terminates the right
unless otherwise provided in the judgment. [Amended by 2003 c.576 §357]
     97.590
Transfer of plot or right of interment. No transfer of any plot, heretofore or hereafter made, or any right of
interment is complete or effective until recorded on the books of the cemetery
authority.
     97.600
Descent of plot. Upon the
death of the owner, unless the owner has disposed of the plot either by
specific direction in the will of the owner or by a written declaration filed
and recorded in the office of the cemetery authority, if no interment has been
made in an interment plot which has been transferred by deed or certificate of
ownership to an individual owner or if all remains previously interred are
lawfully removed, the plot descends to the heirs at law of the owner, subject
to the rights of interment of the decedent and the surviving spouse of the
decedent.
     97.610
Determining occupant of burial plot having coowners. When there are two or more owners of a
burial plot or of rights of interment therein, such owners may designate one or
more persons to designate the burials to be made in the plot and file written
notice of such designation with the cemetery association. In the absence of such
notice or of written objection to its so doing, the cemetery association is not
liable to any owner for interring or permitting an interment therein upon the
request or direction of any registered coowner of the plot.
     97.620
Death of coowner; authorization to use plot under directions of surviving
owners. An affidavit by any
person having knowledge of the fact, setting forth the fact of the death of one
owner and establishing the identity of the surviving owners named in the deed
to any plot, when filed with the cemetery authority operating the cemetery in
which the plot is located, is authorization to the cemetery authority to permit
the use of the unoccupied portion of the plot in accordance with the directions
of the surviving owners or their successors in interest.
     97.630
Family plots; order of occupation. (1) Whenever an interment of the remains of a member or of a relative
of a member of the family of the record owner, or of the remains of the record
owner, is made in a plot transferred by deed or certificate of ownership to an
individual owner, and the owner dies without making disposition of the plot,
either by direction in the ownerÂ’s will, or by a written declaration filed and
recorded in the office of the cemetery authority, the plot thereby becomes
inalienable and shall be held as the family plot of the owner, and occupied in
the following order:
     (a) One grave, niche or crypt may be used
for the ownerÂ’s interment; one for the ownerÂ’s surviving spouse, if there is
one, who by ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to
97.920 and 97.990 has a vested right of interment in it; and in those
remaining, if any, the children of the deceased owner in order of death may be
interred without the consent of any person claiming any interest in the plot.
     (b) If no child survives, the right of
interment goes in order of death to the spouse of any child of the record
owner.
     (2) Any surviving spouse, child or child’s
spouse who has a right of interment in a family plot may waive such right in
favor of any other relative or spouse of a relative of either the deceased
owner or of the deceased ownerÂ’s spouse, and upon such waiver the remains of
the person in whose favor the waiver is made may be interred in the plot.
     (3) Notwithstanding subsection (1) of this
section, the personal representative of the deceased owner of a family plot may
sell unoccupied interment spaces in the plot as property of the estate of the
deceased owner when there are no existing rights of interment in those spaces
or all existing rights of interment in those spaces have been waived and
thereby terminated.
     (4) Whenever a plot is transferred by deed
or certificate of ownership to an individual owner and the transfer is recorded
on the books of the cemetery authority, the cemetery authority shall provide to
the individual owner a written statement, in a form approved by the State
Mortuary and Cemetery Board, containing a clear explanation of the provisions
of subsections (1) and (2) of this section and of the rights of interment
established thereby. [Amended by 1985 c.652 §1]
     97.640
Waiver or termination of vested right of interment. A vested right of interment may be waived
and is terminated upon the interment elsewhere of the remains of the person in
whom it is vested.
     97.650
Limitations upon vested right of interment. No vested right of interment gives to any person the right to have the
remains of the person interred in any interment space in which the remains of
any deceased person having equal or prior vested right of interment have been
interred; nor does it give any person the right to have the remains of more
than one deceased person interred in a single interment space in violation of
the rules and regulations of the cemetery in which the interment space is
located.
CEMETERY
MANAGEMENT
     97.710
Power of cemetery to make rules and regulations. (1) The cemetery authority may make and
enforce rules and regulations for:
     (a) The use, care, control, management,
restriction and protection of its cemetery;
     (b) Restricting and limiting the use of
all property within its cemetery;
     (c) Regulating the uniformity, class and
kind of all markers, monuments and other structures within its cemetery;
     (d) Prohibiting the erection of monuments,
markers or other structures in or upon any portion of its property;
     (e) Regulating or preventing the erection
of monuments, effigies and structures within any portion of the cemetery
grounds and for the removal thereof;
     (f) Regulating the care or preventing the
introduction of plants or shrubs within such grounds;
     (g) Preventing the interment in any part
thereof of a body not entitled to interment therein;
     (h) Preventing the use of burial plots for
purposes violative of its restrictions;
     (i) Regulating the conduct of persons and
preventing improper assemblages therein; and
     (j) All other purposes deemed necessary by
the cemetery authority for the proper conduct of its business and the
protection and safeguarding of the premises and the principles, plans and
ideals on which the cemetery was organized.
     (2) The cemetery authority from time to
time may amend, add to, revise, change or modify such rules and regulations.
     (3) Such rules and regulations shall be
plainly printed or typewritten and maintained, subject to inspection, in the
office of the cemetery authority.
     97.720
Record of interments and cremations; inspection. (1) The person in charge of any premises on
which interments or cremations are made shall keep a record of all remains
interred or cremated on the premises under the personÂ’s charge, in each case
stating the name of each deceased person, the date of interment or cremation,
and the name and address of the funeral service practitioner. The interment
records shall be open to inspection by survivors of the decedent during the
customary office hours of the cemetery authority.
     (2) A record shall be kept of the
ownership of all plots in the cemetery which have been conveyed by the cemetery
authority and of all transfers of plots in the cemetery.
     97.730
Gifts and bequests in trust for cemeteries. Gifts, grants and bequests of personal property in trust for the
purpose of providing perpetual care and maintenance, improvement or
embellishment of private burial lots in or outside of cemeteries and of the
walks, fences, monuments, structures or tombs thereon, are permitted and shall
be deemed to be for perpetual and benevolent uses. They are not invalid by
reason of any indefiniteness or uncertainty of the persons designated as
beneficiaries in the instrument creating the trust; nor are they invalid as
violating any existing laws against perpetuities or suspension of the power of
alienation of title to property. But nothing in this section affects any
existing authority or cause to pass upon the reasonableness of the amount of
such gift, grant or bequest. Any cemetery association may act as trustee of and
execute any such trust with respect to lots, walks, fences, monuments,
structures or tombs, both within or outside its own cemetery limits, but within
the county where such cemetery association has its principal office and place
of business, whether such power is otherwise included in its corporate powers
or not.
INDIAN
     97.740
Definitions for ORS 97.740 to 97.760. For the purposes of ORS 97.740 to 97.760:
     (1) “Burial” has the meaning given that
term in ORS 358.905.
     (2) “Funerary object” has the meaning
given that term in ORS 358.905.
     (3) “Human remains” has the meaning given
that term in ORS 358.905.
     (4) “Indian tribe” means any tribe of
Indians recognized by the Secretary of the Interior or listed in the Klamath
Termination Act, 25 U.S.C. 3564 et seq., or listed in the Western Oregon Indian
Termination Act, 25 U.S.C. 3691 et seq., if the traditional cultural area of
the tribe includes Oregon lands.
     (5) “Object of cultural patrimony” has the
meaning given that term in ORS 358.905.
     (6) “Professional archaeologist” means a
person who has extensive formal training and experience in systematic,
scientific archaeology.
     (7) “Sacred object” has the meaning given
that term in ORS 358.905. [1977 c.647 §1; 1981 c.442 §3; 1985 c.198 §2; 1993
c.459 §9; 1997 c.249 §34]
     97.745
Prohibited acts; application; notice. (1) Except as provided in ORS 97.750, no person shall willfully
remove, mutilate, deface, injure or destroy any cairn, burial, human remains,
funerary object, sacred object or object of cultural patrimony of any native
Indian. Persons disturbing native Indian
     (2) Except as authorized by the
appropriate Indian tribe, no person shall:
     (a) Possess any native Indian artifacts,
human remains or funerary object having been taken from a native Indian cairn
or burial in a manner other than that authorized under ORS 97.750.
     (b) Publicly display or exhibit any native
Indian human remains, funerary object, sacred object or object of cultural
patrimony.
     (c) Sell any native Indian artifacts,
human remains or funerary object having been taken from a native Indian cairn
or burial or sell any sacred object or object of cultural patrimony.
     (3) This section does not apply to:
     (a) The possession or sale of native
Indian artifacts discovered in or taken from locations other than native Indian
     (b) Actions taken in the performance of
official law enforcement duties.
     (4) Any discovered human remains suspected
to be native Indian shall be reported to the state police, the State Historic
Preservation Officer, the appropriate Indian tribe and the Commission on Indian
Services. [1977 c.647 §2; 1979 c.420 §1; 1981 c.442 §4; 1985 c.198 §1; 1993
c.459 §10]
     97.750
Permitted acts; notice. (1)
Any proposed excavation by a professional archaeologist of a native Indian
cairn or burial shall be initiated only after prior written notification to the
State Historic Preservation Officer and the state police, as defined in ORS 358.905,
and with the prior written consent of the appropriate Indian tribe in the
vicinity of the intended action. Failure of a tribe to respond to a request for
permission within 30 days of its mailing shall be deemed consent. All
associated material objects, funerary objects and human remains removed during
such an excavation shall be reinterred at the archaeologistÂ’s expense under the
supervision of the Indian tribe.
     (2) In order to determine the appropriate
Indian tribe under this section and ORS 97.745, a professional archaeologist or
other person shall consult with the Commission on Indian Services which shall
designate the appropriate tribe. [1977 c.647 §3; 1979 c.420 §2; 1981 c.442 §5;
1993 c.459 §11]
     97.760
Civil action by Indian tribe or member; time for commencing action; venue;
damages; attorney fees. (1)
Apart from any criminal prosecution, an Indian tribe or enrolled member thereof
shall have a civil action to secure an injunction, damages or other appropriate
relief against any person who is alleged to have violated ORS 97.745. The
action must be brought within two years of the discovery of the violation by
the plaintiff. The action may be filed in the circuit court of the county in
which the subject grave, cairn, remains or artifacts are located, or within
which the defendant resides.
     (2) Any conviction pursuant to ORS 97.990
(5) shall be prima facie evidence of a violation of ORS 97.745 in an action
brought under this section.
     (3) If the plaintiff prevails:
     (a) The court may grant injunctive or such
other equitable relief as is appropriate, including forfeiture of any artifacts
or remains acquired or equipment used in the violation. The court shall order
the disposition of any items forfeited as it sees fit, including the
reinterment of any human remains in accordance with ORS 97.745 (1);
     (b) The plaintiff shall recover imputed
damages in an amount not to exceed $10,000 or actual damages, whichever is
greater. Actual damages include special and general damages, which include
damages for emotional distress;
     (c) The plaintiff may recover punitive
damages upon proof that the violation was willful. Punitive damages may be
recovered without proof of actual damages. All punitive damages shall be paid
by the defendant to the Commission on Indian Services for the purposes of
Indian historic preservation; and
     (d) An award of imputed or punitive
damages may be made only once for a particular violation by a particular
person, but shall not preclude the award of such damages based on violations by
other persons or on other violations.
     (4) The court may award reasonable
attorney fees to the prevailing party in an action under this section. [1981
c.442 §2; 1995 c.543 §1; 1995 c.618 §55]
     97.770 [1995 c.457 §7; repealed by 1999 c.731 §14]
     97.771 [1995 c.457 §1; 1997 c.632 §1; repealed by
1999 c.731 §14]
     97.772
Definition of “historic cemetery.” For purposes of ORS 97.772 to 97.784, “historic cemetery” means any
burial place that contains the remains of one or more persons who died before
February 14, 1909. [1999 c.731 §1; 2003 c.173 §1]
     Note: 97.772 to 97.784 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter 97
or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     97.773 [1995 c.457 §3; repealed by 1999 c.731 §14]
     97.774
     (2) The term of office of each member is
four years, but a member serves at the pleasure of the director. Before the
expiration of the term of a member, the director shall appoint a successor
whose term begins on July 1 next following. A member is eligible for
reappointment. If there is a vacancy for any cause, the director shall make an
appointment to become immediately effective for the unexpired term.
     (3) A member of the commission is entitled
to compensation and expenses as provided in ORS 292.495. [1999 c.731 §2; 2003
c.173 §2]
     Note: See note under 97.772.
     97.775 [1995 c.457 §4; repealed by 1999 c.731 §14]
     97.776
Commission members; nominations. The members of the Oregon Commission on Historic Cemeteries must be
citizens of this state who are well informed on the restoration and maintenance
of historic cemeteries. The State Parks and Recreation Director shall select
members from nominations made by organizations of local historic cemeteries,
organizations of nonprofit cemeteries, the State Mortuary and Cemetery Board
and statewide cemetery associations. The director shall try to appoint
individuals to the commission who represent or are knowledgeable concerning
Native American burial places, rural cemeteries, family burial places and
metropolitan cemeteries. [1999 c.731 §4; 2003 c.173 §3]
     Note: See note under 97.772.
     97.777 [1995 c.457 §5; repealed by 1999 c.731 §14]
     97.778
Chairperson; quorum; meetings.
(1) The Oregon Commission on Historic Cemeteries shall select one of its
members as chairperson and another as vice chairperson for such terms and with
duties and powers necessary for the performance of the functions of such offices
as the commission determines.
     (2) A majority of the members of the
commission constitutes a quorum for the transaction of business.
     (3) The commission shall meet at least
once every three months at a place, day and hour determined by the commission.
The commission also shall meet at other times and places specified by the call
of the chairperson or of a majority of the members of the commission. [1999
c.731 §5; 2003 c.173 §4]
     Note: See note under 97.772.
     97.779 [1995 c.457 §6; repealed by 1999 c.731 §14]
     97.780
Duties. The Oregon
Commission on Historic Cemeteries shall:
     (1) Maintain a listing of all historic
cemeteries in this state.
     (2) Assist in coordination of restoration,
renovation and maintenance of
     (3) Make recommendations to the State
Parks and Recreation Director for projects and funding to help maintain and
improve
     (4) Obtain grant funding and seek
legislative appropriations for individual historic cemeteries and groups of
historic cemeteries.
     (5) Make recommendations to the
Legislative Assembly for changes in law that will help protect historic
cemeteries as part of
     (6) Assist the director in locating and
listing historic cemeteries.
     (7) Assist cemeteries listed as historic
cemeteries with the commission to rehabilitate and maintain those cemeteries
and to promote public education relating to historic cemeteries.
     (8) Establish a process to obtain advice
from authorities on the subject of the care of old grave markers and graveyards
as part of any restoration process. [1999 c.731 §6; 2003 c.173 §5]
     Note: See note under 97.772.
     97.782
Listing of historic cemeteries; form. A historic cemetery that is not an operating cemetery, as defined in
ORS 692.010, shall be listed with the Oregon Commission on Historic Cemeteries.
An owner or any other person or association of individuals that maintains such
a historic cemetery shall list the historic cemetery with the Oregon Commission
on Historic Cemeteries on a form provided by the commission. No fee shall be
required from a historic cemetery for listing. [1999 c.731 §7; 2003 c.173 §6]
     Note: See note under 97.772.
     97.784
Executive secretary; support services. The State Parks and Recreation Department shall provide support
services to the Oregon Commission on Historic Cemeteries. One staff person of
the department shall be the executive secretary of the commission. [1999 c.731 §8;
2003 c.173 §7]
     Note: See note under 97.772.
CEMETERY CARE
     97.810
Endowment care and nonendowed care cemeteries. (1) As used in this section, “endowment care
cemetery” means a cemetery that maintains an endowment care fund placed in an
irrevocable trust fund.
     (2) An endowment care cemetery shall
deposit with the trustee or custodian of its endowment care fund not less than
the following amounts received from the sale of plots, niches, crypts or
private mausoleums:
     (a) Fifteen percent of the gross sales
price with a minimum of $5 for each grave or, when the gross sales price is paid
in installments, 15 percent of each installment until at least 15 percent of
the gross sales price has been deposited, with a minimum of $5 for each grave.
     (b) Five percent of the gross sales price
for each niche or, when the gross sales price is paid in installments, five
percent of each installment until at least five percent of the gross sales
price has been deposited.
     (c) Five percent of the gross sales price
for each crypt or, when the gross sales price is paid in installments, five
percent of each installment until at least five percent of the gross sales
price has been deposited.
     (d) Five percent of the gross sales price
for each private mausoleum or, when the gross sales price is paid in
installments, five percent of each installment until at least five percent of
the gross sales price has been deposited.
     (3) The cemetery authority shall, within
30 days from the receipt of a payment, deposit with the trustee or custodian of
its endowment care fund any payment received by the cemetery authority that is:
     (a) Required by subsection (2) of this
section to be paid into the fund; or
     (b) A payment for special care, gifts,
grants, contributions, devises or bequests made with respect to the separate or
special care of a particular plot, grave, niche, crypt, mausoleum, monument or
marker or that of a particular family.
     (4) Within 75 days of the end of its
fiscal year, each endowment care cemetery, except one owned by a city or a
county, shall file with the Director of the Department of Consumer and Business
Services a statement containing the following information pertaining to the
endowment care fund:
     (a) The total amount invested in bonds,
securities, mortgages and other investments;
     (b) The total amount of cash on hand not
invested at the close of the previous calendar or fiscal year;
     (c) The income earned by investments in
the preceding calendar or fiscal year;
     (d) The amounts of such income expended
for maintenance in the preceding calendar or fiscal year;
     (e) The amount paid into the fund in the
preceding calendar or fiscal year; and
     (f) Such other items as the director may
from time to time require to show accurately the complete financial condition
of the trust on the date of the statement.
     (5) All of the information appearing on
the statement shall be verified by an owner or officer of the cemetery
authority, and a copy of the statement shall be maintained in the business
office of the cemetery authority.
     (6) The director shall have authority to
require, as often as the director deems necessary, the cemetery authority to
make under oath a detailed report of the condition and assets of any cemetery
endowment care fund.
     (7) At the time of the filing of the
statements of its endowment care fund each cemetery authority shall pay to the
director an annual fee as follows:
     (a) Up to 100 interments per year, $40.
     (b) Over 100 interments per year, $100.
     (8) All fees received by the director
under this section shall be immediately turned over to the State Treasurer who
shall deposit the moneys in the Consumer and Business Services Fund created
under ORS 705.145.
     (9) A cemetery may not operate as an
endowment care, permanent maintenance or free care cemetery until the
provisions of this section are complied with. There shall be printed or stamped
at the head of all contracts and certificates of ownership or deeds referring
to plots in an endowment care cemetery, the following statement: “This cemetery
is an endowment care cemetery,” in lettering equivalent to at least 10-point
No. 2 black type, and there shall be printed in the body of or stamped upon the
above-described instruments the following statement: “Endowment care means the
general care and maintenance of all developed portions of the cemetery and
memorials erected thereon.”
     (10) A cemetery that otherwise complies
with this section may be designated an endowment care cemetery even though it
contains a small area that may be sold without endowed care, if it is
separately set off from the remainder of the cemetery. There shall be printed
or stamped at the head of all contracts and certificates of ownership or deeds
referring to plots in this area the phrase “nonendowed care” in lettering
equivalent to at least 10-point No. 2 black type.
     (11) A nonendowed care cemetery is a
cemetery that does not deposit in an endowment care fund the minimum specified
in subsection (1) of this section.
     (12) A cemetery authority may not in any
way advertise or represent that it operates wholly or partially as an endowment
care cemetery, or otherwise advertise or represent that it provides general
care or maintenance of all or portions of the cemetery or memorials erected
thereon, unless the provisions of this section are complied with. [Amended by
1955 c.545 §2; 1965 c.396 §4; 1967 c.213 §1; 1987 c.295 §1; 1995 c.144 §4; 1999
c.66 §1; 2001 c.796 §23; 2007 c.661 §5]
     97.820
Placing cemetery under endowed care; deposit; commingling endowment and special
care funds; trustee or custodian of fund. (1) Every cemetery authority that operates a cemetery may place its
cemetery under endowed care and establish, maintain and operate an endowment
care fund. All endowed care funds shall be deposited with and held solely by
the trustee or custodian appointed by the cemetery authority.
     (2) Endowment care and special care funds may
be commingled for investment and the income therefrom shall be divided between
the endowment care and special care funds in the proportion that each fund
contributed to the principal sum invested. The income of the endowment care
fund may be used only to finance the care of the cemetery.
     (3) The cemetery authority shall appoint
as sole trustee of the endowment care fund a trust company as defined in ORS
706.008 that is authorized to transact trust business in this state, or an
insured institution as defined in ORS 706.008 that is authorized to accept
deposits in this state. Such trust company or insured institution shall receive
and accept the fund, including any accumulated endowment care fund in existence
at the time of its appointment and perform such duties as are agreed upon in
the agreement between it and the cemetery authority. An insured institution not
qualified to transact trust business in this state may act as custodian of such
endowment care fund provided:
     (a) The duties of the insured institution
are essentially custodial or ministerial in nature; and
     (b) The insured institution invests the
funds from such plan only in its own time or savings deposits.
     (4) The trustee or custodian may resign
upon written notice to the cemetery authority or the cemetery authority may
remove the trustee or custodian by written notice to it. In case of the
resignation or removal of the trustee or custodian, the cemetery authority
forthwith shall appoint a successor trustee or custodian and provide for the direct
transfer of all endowed care funds and earnings thereon from the former trustee
or custodian to the successor trustee or custodian. [Amended by 1955 c.545 §3;
1965 c.396 §5; 1985 c.450 §1; 1987 c.295 §2; 1993 c.18 §19; 1993 c.229 §22;
1993 c.318 §11; 1997 c.167 §2; 1997 c.631 §395; 2007 c.661 §6]
     97.825
Suits to enforce endowed care statutes; attorney fees. (1) If the cemetery authority fails to remit
to the trustee or trustees, in accordance with the law, the funds herein
provided for endowment and special care, or fails to expend the net income from
the funds and generally care for and maintain any portion of a cemetery
entitled to endowment care, any three lot owners whose lots are entitled to
endowment care, or any one lot owner whose lot is entitled to special care, or
the next of kin, heirs at law or personal representatives of such lot owners,
shall have the right, or the district attorney of any county wherein is
situated such lots, shall have the power, by suit for mandatory injunction or
for appointment of a receiver, to sue for, to take charge of, and to expend
such net income. The suit may be filed in the circuit court of the county in
which said cemetery is located, to compel the expenditure either by the
cemetery authority or by any receiver so appointed by the court, of the net
income from such endowment care fund for the purposes set out in ORS 97.010 to
97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990.
     (2) When the Director of the Department of
Consumer and Business Services has reason to believe that a cemetery endowment
care fund does not conform to the requirement of law, or when the director has
reason to believe that any cemetery is operating in violation of ORS 97.810 or
97.820, or when the director has sent an endowment care cemetery a notice of
delinquency to make any report to the director required by ORS 97.810, the
director shall, as soon thereafter as reasonable, give notice of the foregoing
to the trustee or trustees of the cemetery endowment care fund, the cemetery
authority, the Attorney General of Oregon and the State Mortuary and Cemetery
Board.
     (3) Within 120 days after the receipt of
such notice, the Attorney General shall institute suit in the circuit court of
any county of this state in which such cemetery is located, for a mandatory
injunction against further sales of graves, plots, crypts, niches, burial
vaults, markers or other cemetery merchandise by such cemetery or for the
appointment of a receiver to take charge of the cemetery, unless the Attorney
General shall prior to that time be notified by the director that such failure
to conform to the requirements of the law or to report has been corrected.
     (4) The Attorney General may delay
instituting any suit brought under subsection (3) of this section for no more
than an additional 30 days if, in the discretion of the Attorney General after
consulting with the director, it appears to the Attorney General:
     (a) That the failure to conform to the
requirements of the law or to report will be corrected; and
     (b) That no harm to the public will occur
during the additional 30 days.
     (5) If a trustee fails to perform the
duties of the trustee under ORS 97.810 to 97.920, the trustee shall be liable
for any damage resulting from that failure to any lot owners or the next of
kin, heirs at law or personal representatives of such lot owners.
     (6) The court may award reasonable
attorney fees, costs and disbursements to the prevailing party in an action
under this section. [1955 c.545 §5; 1965 c.396 §6; 1985 c.450 §2; 1999 c.67 §1;
2001 c.796 §24; 2007 c.661 §7]
     97.830
Investment and reinvestment of principal of endowed care funds; use and
application of income. (1)
The principal of all funds for endowed care shall be invested, from time to
time reinvested and kept invested. If a trust agreement imposes upon the
trustee or custodian the duty to direct the investment or reinvestment of
endowed care funds, the trustee or custodian shall perform this duty governed
by ORS 130.750 to 130.775. Otherwise, the cemetery authority, governed by ORS
130.750 to 130.775, shall direct the investment and reinvestment of endowed
care funds in the time or savings deposits of the custodian bank or savings
association.
     (2) The principal of invested endowed care
funds shall never be voluntarily reduced, but shall be maintained separate and
distinct by the trustee or custodian from all other funds except that it shall
be proper to commingle endowment care funds with special care funds. The
payment of charges chargeable against principal under ORS chapter 129 or of
other expenses necessarily incurred in the administration of the trust in
accordance with subsection (1) of this section shall not constitute a voluntary
reduction of principal. The net income earned shall be used solely for the
general care and maintenance of the cemetery property entitled to endowment
care, as stipulated in the resolution, bylaw and other action or instrument by
which the fund was established, and in such manner as the cemetery authority
may from time to time determine to be in the best interests of such endowed
property. Such net income shall never be used for the improvement or
embellishment of undeveloped property offered for sale. [Amended by 1955 c.545 §4;
1985 c.450 §3; 1987 c.295 §3; 1995 c.157 §24; 1995 c.297 §1; 2003 c.279 §32;
2005 c.348 §125]
     97.835
Limitation of duties and liability of trustee. The trustee shall have no duty whatsoever to
operate, maintain or to supervise the general maintenance of any endowment fund
cemetery, and the trustee shall have no duty whatsoever to enforce collection
of any of the trust funds either from the purchasers of lots, or from the
cemetery authority, and the trustee shall have no duty whatsoever to see to the
application of the net income after payment of the net income to the cemetery
authority. The trustee shall be entitled to rely without liability upon the
affidavit of the cemetery authority showing the amount payable to the trustee
as endowment care funds. [1955 c.545 §6]
     97.840
Cemetery authority authorized to receive and hold gifts of property;
disposition of gifts. A
cemetery authority which has established an endowment care fund may take,
receive and hold any property, real, personal or mixed, bequeathed, devised,
granted, given or otherwise contributed to it for its endowment care fund.
Within 30 days of the receipt of such contributions, the cemetery authority
shall deposit, with the trustee or custodian of the fund to which the property
was contributed, all moneys and all documents or instruments of title or
conveyance evidencing the contribution. As soon as practicable, the cemetery
authority shall provide for the sale of all property for fair market value and,
within 30 days of the receipt of the proceeds thereof, shall deposit the
proceeds with the trustee or custodian. The trustee or custodian shall execute
all documents necessary to effect the sale, consistent with the purposes of
this section. [Amended by 1987 c.295 §4]
     97.850
Endowment and special care funds are charitable. The endowment and special care funds and all
payments or contributions to them are expressly permitted as and for charitable
and eleemosynary purposes. Endowment care is a provision for the discharge of a
duty from the persons contributing to the persons interred and to be interred
in the cemetery and a provision for the benefit and protection of the public by
preserving and keeping cemeteries from becoming unkempt and places of reproach
and desolation in the communities in which they are situated.
     97.860
Agreements for care. (1)
Upon payment of the purchase price, including the amount fixed as a
proportionate contribution for endowed care, there may be included in the deed
of conveyance, or by separate instrument, an agreement to care, in accordance
with the plan adopted, for the cemetery and its appurtenances to the
proportionate extent the income received by the cemetery authority from the
contribution permits.
     (2) Upon the application of an owner of
any plot, and upon the payment by the owner of the amount fixed as a reasonable
and proportionate contribution for endowed care, a cemetery authority may enter
into an agreement with the owner for the care of the plot of the owner and its
appurtenances.
     97.865
Application of ORS 97.810 to 97.865 to religious, county and city cemeteries. (1) A cemetery authority that operates a
cemetery for any religious or eleemosynary corporation, church, religious
society or denomination, corporation sole administering temporalities of any
church or religious society or denomination and any county or city may make an
irrevocable election to have ORS 97.810 to 97.865 apply to any cemetery
controlled or operated by the cemetery authority, county or city by filing a
written statement indicating such action with the Director of the Department of
Consumer and Business Services. The statement shall be in the form prescribed
by the director and shall contain the information specified by the director.
     (2)(a) When a cemetery authority, county
or city files a statement described in this section with the director, ORS
97.810 to 97.865 applies to a cemetery controlled or operated by the cemetery
authority, county or city beginning on the first day of the fiscal year next
following the filing of the statement.
     (b) ORS 294.035 does not apply to funds
held by a county or city under ORS 97.810 to 97.865. [1997 c.167 §4; 2001 c.796
§25; 2007 c.661 §8]
     97.870
Unused and uncared for portions of cemetery declared common nuisances. (1) In all cases where a cemetery authority
has owned a site for a cemetery for more than 40 years and has during that
period sold lots, subdivisions of lots, pieces or parcels of the cemetery for
burial purposes and the grantee or party claiming through the grantee has not
used portions of such lots, subdivisions of lots, pieces or parcels of the
cemetery for purposes of burial and has not kept them free of weeds or brush,
but has allowed them to remain entirely unused for more than 40 years or
uncared for and unused for more than 20 years prior to the adoption of the
resolution provided for in ORS 97.880, and such lots, subdivisions of lots,
pieces and parcels of the cemetery are adjacent to improved parts thereof, and
by reason of their uncared-for condition detract from the appearance of the
cemetery and interfere with the harmonious improvement thereof, and furnish a
place for the propagation of weeds and brush, thereby becoming a menace to
adjacent property, such lots, subdivisions of lots, pieces and parcels of such
cemetery, which are unused and uncared for as aforesaid, hereby are declared to
be a common nuisance and contrary to public policy.
     (2) The provisions of this section are not
applicable to portions of cemeteries which have been or are sold with
agreements between the cemetery authority or its successor in interest, or
both, and the grantee providing for endowment care, permanent maintenance or
free care. [Amended by 1965 c.396 §7; 2007 c.661 §9]
     97.880
Resolution declaring a nuisance. The governing board of a cemetery authority described in ORS 97.870
may adopt a resolution declaring such unused and unimproved portion of its
cemetery as is described in ORS 97.870 a common nuisance and an abandoned and
unused portion of such cemetery, and may direct its officers to file the
complaint described in ORS 97.890. [Amended by 1983 c.740 §9]
     97.890
Complaint. (1) Upon the
adoption of the resolution described in ORS 97.880 the officers of the cemetery
authority may file a complaint in the circuit court for the county in which the
cemetery is located against the owners, holders or parties interested in such
abandoned portion of its cemetery demanding that the court require such owners,
holders or interested parties to keep the premises clear of weeds and brush and
in condition in harmony with other lots and, if the owners, holders, or
interested parties fail to appear in court and comply with the order of the
court, demanding that the court make a judgment declaring such portions of the
cemetery a common nuisance, directing the governing board to abate the nuisance
by clearing the premises and keeping them clear of weeds and brush, creating a
lien upon such lots and parcels in favor of the cemetery authority, providing
that the lien be foreclosed and the lots and parcels be sold in the same manner
as other sales upon execution are made and authorizing the governing board to
become a purchaser thereof on behalf of the cemetery authority.
     (2) In such suit any number of owners of
different lots, subdivisions of lots, pieces or parcels of the cemetery may be
included in the one suit.
     (3) It is a sufficient designation of the
property so abandoned and unimproved to give the lot number or portion thereof,
or a description of the piece or parcel having no lot number, together with the
name of the owner thereof, as appears on the record of the cemetery authority.
     (4) In addition to the names of the
persons that appear on the records of the cemetery authority as the record
owners of such unused and unimproved portions of the cemetery, the plaintiff
shall include as a defendant in a complaint the following: “Also all other
persons unknown claiming any right, title, estate, lien or interest in the
unused and unimproved portions of the cemetery described in the complaint.” [Amended
by 2003 c.576 §358; 2007 c.661 §10]
     97.900
Summons. (1) Summons shall
be served upon all owners or holders who are residents of this state in like
manner as in service of summons in a civil action if such owners and holders
are known to the sheriff in the county in which the cemetery is located. If the
defendants are not known to the sheriff, it is sufficient to serve the owners
and holders whose names appear on the tax rolls of the county for the year
previous to that in which the suit is started. The plaintiff is not required to
mail a copy of the summons or complaint to nonresident defendants.
     (2) All owners and holders of such
unimproved lots whose names do not appear on the tax rolls as aforesaid as
shown by the return of the sheriff may be served by publication in any legal
newspaper published in the county in which the cemetery is located for four
consecutive weeks upon return of the sheriff that such owners and holders are
not known and cannot be served in the jurisdiction of the sheriff.
     (3) The published summons shall contain
the names of the record owners, as shown by the records of the cemetery
authority, and “also all other persons unknown claiming any right, title,
estate, lien or interest in the unused and unimproved portions of the cemetery
described in the complaint,” together with a brief description of the lot, or
subdivisions of lots, pieces or parcels of the cemetery and a statement setting
forth the order and judgment described in ORS 97.890 (1) for which the
plaintiff has applied to the court in the complaint. Such summons shall require
all parties defendant to appear and show cause why an order should not be made
declaring the unused and unimproved portions of the cemeteries to be a common
nuisance, directing the cemetery authority to abate the nuisance, creating a
lien thereon, providing that it be foreclosed and directing that the unused and
unimproved portion of the cemetery be sold within four weeks from and after the
date of the first publication thereof. [Amended by 2003 c.576 §359; 2007 c.661 §11]
     97.910
Disuse as prima facie evidence of abandonment. In all cases arising under ORS 97.870 to
97.900, the fact that the owner, holder or interested party, of the unused and
unimproved portion of the cemetery has not, for a term of 20 years or more,
used the plot and has failed to keep it clear of weeds or brush is prima facie
evidence that the owner, holder or interested party has abandoned it.
     97.920
Judgment declaring nuisance, authorizing abatement and creating and foreclosing
lien. Upon the failure of
the owner of the premises to comply with the order of the court requiring
proper care of the premises or upon the failure of any of the defendants to
appear and answer the complaint or upon the trial of the cause, if the court
finds that the allegations of the complaint are supported by the evidence and
that the summons has been served as provided in ORS 97.900, the court may enter
a judgment in accordance with the allegations of the complaint and the
provisions of ORS 97.890 (1). [Amended by 2003 c.576 §360]
PREARRANGEMENT
SALES AND PRECONSTRUCTION SALES
     97.923
Definitions for ORS 97.923 to 97.949. As used in ORS 97.923 to 97.949 and 97.994 unless the context requires
otherwise:
     (1) “Beneficiary” means the person, if
known, who is to receive the funeral and cemetery merchandise, funeral and
cemetery services or completed interment spaces.
     (2) “Certified provider” means any person
certified under ORS 97.933 to sell or offer for sale prearrangement sales
contracts or preconstruction sales contracts.
     (3) “Delivery” occurs when:
     (a) Physical possession of the funeral or
cemetery merchandise is transferred to the purchaser; or
     (b) If authorized by a purchaser under a
purchase agreement:
     (A) The title to the funeral or cemetery
merchandise has been transferred to the purchaser, has been paid for, and is in
the possession of the seller, who has documented the sale in the purchaserÂ’s
records through use of a serial or other identifying number and placed the
merchandise, until needed, for storage on the sellerÂ’s premises; or
     (B) The merchandise has been identified
for the purchaser or the beneficiary as documented by the manufacturerÂ’s
receipt placed by the seller in the purchaserÂ’s records and held by the
manufacturer for future delivery.
     (4) “Depository” means a financial
institution or trust company, as those terms are defined ORS 706.008, that is
authorized to accept deposits in this state or to transact trust business in
this state.
     (5) “Director” means the Director of the
Department of Consumer and Business Services.
     (6) “Guaranteed contract” means a written
preconstruction sales contract or prearrangement sales contract that guarantees
the beneficiary the specific undeveloped space or spaces or funeral and
cemetery merchandise or funeral and cemetery services contained in the contract
and under which no charges other than the sales price contained in the contract
shall be required upon delivery or performance of the funeral or cemetery
merchandise or services.
     (7) “Master trustee” means an entity that
is not a certified provider under ORS 97.923 to 97.949 and that has fiduciary
responsibility for the uniform administration of funds including, but not
limited to, acceptance, custodianship, investment and accounting, delivered to
it by a certified provider for the benefit of purchasers of preconstruction
sales contracts or prearrangement sales contracts. “Master trustee” does not
include a financial institution, as defined in ORS 706.008, that acts solely as
a depository under ORS 97.923 to 97.949.
     (8) “Nonguaranteed contract” means a
written preconstruction sales contract or prearrangement sales contract that
guarantees the beneficiary the specific undeveloped space or spaces or funeral
or cemetery merchandise or services contained in the contract, when the price
of the merchandise and services selected has not been fixed and will be
determined by existing prices at the time the merchandise and services are
delivered or provided.
     (9) “Prearrangement sales” or “prearrangement
sales contract” means any sale, excluding the sale and contemporaneous or
subsequent assignment of a life insurance policy or an annuity contract, made
to a purchaser, that has as its purpose the furnishing of funeral or cemetery
merchandise or services in connection with the final disposition or
commemoration of the memory of a dead human body, for use at a time
determinable by the death of the person or persons whose body or bodies are to
be disposed and where the sale terms require payment or payments to be made at
a currently determinable time.
     (10) “Preconstruction sale” or “preconstruction
sales contract” means a sale made to a purchaser, for the purpose of furnishing
undeveloped interment spaces and when the sale terms require payment or
payments to be made at a currently determinable time.
     (11) “Provider” means any entity that
sells and offers for sale funeral or cemetery merchandise or services.
     (12) “Purchaser” means a beneficiary or a
person acting on behalf of a beneficiary who enters into a prearrangement sales
contract or a preconstruction sales contract with a certified provider under
which any payment or payments made under the contract are required to be
deposited in trust under ORS 97.941.
     (13) “Salesperson” means an individual
registered under ORS 97.931 and employed by a certified provider to engage in
the sale of prearrangement or preconstruction sales contracts on behalf of the
certified provider.
     (14) “Sales price” means the gross amount
paid by a purchaser for a prearrangement sales contract or preconstruction
sales contract, excluding sales taxes, credit life insurance premiums and
finance charges.
     (15) “Trust” means an express trust
created under ORS 97.941 whereby a trustee has the duty to administer the
amounts specified under ORS 97.941 received under a prearrangement sales
contract or a preconstruction sales contract for the benefit of the purchaser
of a prearrangement sales contract or preconstruction sales contract.
     (16) “Undeveloped interment spaces” or “undeveloped
spaces” means any space to be used for the reception of human remains that is
not completely constructed or developed at the time of initial payment. [Formerly
128.400; 2003 c.362 §1; 2007 c.661 §12]
     Note: 97.923 to 97.949 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter 97
or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     97.925
Purpose. It is the purpose
of ORS 97.923 to 97.949, 97.992, 97.994 and 692.180 to assure funds for
performance to those purchasers who contract through prearrangement sales
contracts for the purchase of funeral or cemetery merchandise or services, and
through preconstruction sales contracts for undeveloped interment spaces. It is
also the purpose of ORS 97.923 to 97.949, 97.992, 97.994 and 692.180 to provide
for the certification or registration of persons selling or offering for sale
prearrangement sales contracts and preconstruction sales contracts, the
creation and administration of prearrangement sales contract and
preconstruction sales contract trust funds, the disbursement and allocation of
trust funds upon the certified providerÂ’s performance of its contractual
obligations and to provide protection for the purchaser upon the certified
provider’s default. [Formerly 128.405; 2007 c.661 §13]
     Note: See note under 97.923.
     97.926
Rulemaking authority. The
Director of the Department of Consumer and Business Services may adopt rules
that are necessary or appropriate to:
     (1) Protect purchasers of prearrangement
sales contracts and preconstruction sales contracts and the public; and
     (2) Administer ORS 97.923 to 97.949. [2007
c.661 §25]
     Note: See note under 97.923.
     97.927
Applicability of ORS 97.923 to 97.949. (1) Except as provided in this section, ORS 97.923 to 97.949, 97.992,
97.994 and 692.180 apply to all certified providers, master trustees and
salespersons who sell or offer for sale prearrangement sales contracts or
preconstruction sales contracts.
     (2) ORS 97.923 to 97.949, 97.992, 97.994
and 692.180 do not apply to:
     (a) Agreements to sell or sales made by
endowment care cemeteries under ORS 97.929; or
     (b) Any nonprofit memorial society
charging less than a $100 membership fee.
     (3) Notwithstanding subsection (2) of this
section, ORS 97.937 applies to:
     (a) Agreements to sell or sales made by
endowment care cemeteries under ORS 97.929; or
     (b) Any nonprofit memorial society
charging less than a $100 membership fee. [Formerly 128.407; 2003 c.362 §2;
2007 c.661 §14]
     Note: See note under 97.923.
     97.929
Exceptions to ORS 97.923 to 97.949. (1) The provisions of ORS 97.923 to 97.949, 97.992, 97.994 and 692.180
do not apply to:
     (a) Agreements to sell or sales of graves,
crypts or niches where such graves, crypts or niches are in existence at the
time of the sale or agreement to sell and are located in an endowment care
cemetery as defined in ORS 97.810.
     (b) Agreements to sell or sales of crypts
or niches where such crypts or niches are not in existence at the time of the
sale or agreement to sell and are to be located in an endowment care cemetery,
provided that:
     (A) Thirty-five percent of the sales price
of each crypt or niche described in this paragraph is deposited in accordance
with the provisions of ORS 97.937; or
     (B) Such endowment care cemetery deposits
a bond with a corporate surety authorized to do business in this state, or an
irrevocable letter of credit issued by an insured institution, as defined in
ORS 706.008. The bond or letter of credit shall be in an amount equal to 35
percent of the total sales price of all crypts or niches described in this
paragraph that have been sold by the endowment care cemetery and that have not
yet been completed.
     (c) Agreements to sell or sales of burial
vaults or markers for installation in an endowment care cemetery, provided
that:
     (A) Sixty-six and two-thirds percent of
the sale price of such vaults or markers is deposited in accordance with the
provisions of ORS 97.937;
     (B) Such endowment care cemetery is at the
time of the sale or agreement to sell and for not less than 24 months before
such sale or agreement has been in continuous operation as an endowment care
cemetery and has assumed the obligation to supply and install the vault or
marker and maintain it as part of its endowment care program; and
     (C) Such endowment care cemetery deposits
with the Director of the Department of Consumer and Business Services:
     (i) A bond in a form approved by the
director in the amount of $10,000 issued by a corporate surety authorized to do
business in this state; or
     (ii) An irrevocable letter of credit in a
form approved by the director in the amount of $10,000 issued by an insured
institution, as defined in ORS 706.008.
     (2) Notwithstanding the exception provided
in subsection (1) of this section, a person who would otherwise have a claim
against a certified provider, a master trustee or a salesperson under the
provisions of ORS 97.923 to 97.949 or ORS chapter 692 shall have a right
against the bond or letter of credit described in subsection (1)(b) and (c) of
this section. [Formerly 128.412; 2003 c.271 §1]
     Note: Section 2, chapter 68, Oregon Laws 1999,
provides:
     Sec.
2. (1) The amendments to ORS
128.412 [renumbered 97.929] by section 1 of this 1999 Act apply only to
agreements to sell crypts or niches entered into on or after the effective date
of this 1999 Act [October 23, 1999], and sales of crypts and niches made on or
after the effective date of this 1999 Act.
     (2) An endowment care cemetery that
deposited a bond or an irrevocable letter of credit under the provisions of ORS
128.412 (2)(b) (1997 Edition) before the effective date of this 1999 Act must
continue to maintain the bond or irrevocable letter of credit in the amount
provided by ORS 128.412 (2)(b) (1997 Edition) until such time as all the crypts
and niches that were part of the development covered by the bond or letter of
credit are completed. Any endowment care cemetery that maintains a bond or
letter of credit pursuant to this subsection is not required to maintain a bond
or letter of credit in the amount required by ORS 128.412 (2)(b) [renumbered
97.929 (2)(b)], as amended by section 1 of this 1999 Act, for the purpose of
crypts and niches located in the development covered by the bond or letter of
credit maintained under the provisions of this subsection, but the endowment
care cemetery must maintain a bond or letter of credit in the amount required
by ORS 128.412 (2)(b) [renumbered 97.929 (2)(b)], as amended by section 1 of
this 1999 Act, for sales of, and agreements to sell, crypts or niches located
in any development commenced on or after the effective date of this 1999 Act.
[1999 c.68 §2]
     Note: 97.929 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 97 or
any series therein by legislative action. See Preface to Oregon Revised Statutes
for further explanation.
     97.930 [1977 c.715 §§2,3; renumbered 97.975 in
2001]
     97.931
Registration of salesperson for endowment care cemeteries, preconstruction
sales and prearrangement sales; rules; background check; civil penalties. (1) A salesperson may not engage in
prearrangement sales made by endowment care cemeteries under ORS 97.929 or in
preconstruction sales or prearrangement sales unless the salesperson is
registered with the State Mortuary and Cemetery Board or holds a current
funeral service practitioner license, embalmer license, funeral service
practitioner apprentice registration or embalmer apprentice registration. The
board by rule shall:
     (a) Establish procedures for issuing
salesperson registrations under this subsection;
     (b) Establish standards for determining
whether a salesperson registration should be issued;
     (c) Set renewal and salesperson
registration fees; and
     (d) Require biennial renewal of
salesperson registrations.
     (2) The board may conduct a background
check of any salesperson applying for registration under subsection (1) of this
section. The background check may include information solicited from the
Department of State Police. After consideration of information obtained from
any background check and any other information in its possession, the board
shall determine whether to register the salesperson.
     (3)(a) The board may impose a civil
penalty of up to $1,000 per violation or suspend, revoke or refuse to issue or
renew the registration of a salesperson described in subsection (1) of this
section upon a determination that the applicant or holder has not complied with
the provisions of ORS 97.923 to 97.949 or ORS chapter 692, or any rules adopted
thereunder. When the board proposes to take such action, the person affected by
the action shall be accorded notice and an opportunity for hearing as provided
by ORS chapter 183. The board shall notify the Director of the Department of
Consumer and Business Services of its intent to take action against a
salesperson or person acting as a salesperson.
     (b) The board shall suspend, revoke or
refuse to issue or renew the registration of a salesperson if the director
requests the board to take such action.
     (4) Fees and other moneys received by the
board under this section shall be deposited into the State Mortuary and
Cemetery Board Account established in ORS 692.375. [Formerly 128.414; 2005
c.726 §2]
     Note: See note under 97.923.
     97.933
Certification of provider of prearrangement or preconstruction sales; annual
reports; audits; fees. (1) A
provider may not engage in prearrangement sales or preconstruction sales unless
the provider is certified by the Director of the Department of Consumer and
Business Services. The director shall:
     (a) Establish procedures for issuing
certificates required by this section.
     (b) Establish standards for determining
whether a certificate should be issued.
     (c) Set certification and renewal fees.
     (d) Require annual renewal of
certification.
     (e) Establish standards for rules of
conduct of certified providers.
     (2) The fees described in this section
shall be reasonable and shall defray the costs associated with the
administration of ORS 97.923 to 97.949.
     (3)(a) Every certified provider shall file
an annual report with the director on forms provided by the director. The
annual report shall contain any information reasonably considered necessary by
the director, including but not limited to:
     (A) A disclosure of changes in trust
deposits;
     (B) The number of consecutively numbered
prearrangement or preconstruction sales contracts sold during the reporting
period;
     (C) A complete inventory of the funeral
merchandise, cemetery merchandise or a combination thereof delivered in lieu of
trust fund requirements under ORS 97.941, including:
     (i) The location of the merchandise;
     (ii) Merchandise serial numbers or
warehouse receipt numbers identified by the name of the purchaser or the
beneficiary; and
     (iii) The statement of the certified
provider that each item of merchandise is in the sellerÂ’s possession at the
specified location; and
     (D) The number of withdrawals from or
terminations of any trusts.
     (b) If the annual report is not filed or
is filed and shows any material discrepancy, the director may take appropriate
action and send notification of the matter to the State Mortuary and Cemetery
Board.
     (c) The director may relieve a certified
provider of the duty to file the annual report upon a determination that the
certified provider has performed all obligations under the prearrangement sales
contract or preconstruction sales contract, or that such obligations lawfully
have been assumed by another or have been discharged or canceled.
     (4) The director may audit the records of
a certified provider that relate to prearrangement sales or preconstruction
sales, as the director may consider appropriate. The director may refer any
matter outside of normal auditing procedures to the office of the Attorney
General for investigation and send notification of the referral to the State
Mortuary and Cemetery Board.
     (5) The conduct of individuals, including
salespersons as defined in ORS 97.923, employed by a certified provider is the
direct responsibility of the certified provider.
     (6) A certificate issued to a provider is
not transferable. A person that seeks to purchase or otherwise acquire control
of a cemetery or funeral establishment that is a certified provider shall first
apply to the director and obtain approval of the purchase or change in control.
     (7) A certificate issued to a provider
becomes inactive when the certificate is surrendered to the director. The
director retains jurisdiction over the provider as long as trust funds remain
on deposit for prearrangement sales contracts or preconstruction sales
contracts. While the certificate is inactive, the provider shall:
     (a) Cease all prearrangement sales to the
public;
     (b) Collect and deposit into trust all
installment funds paid toward contracts sold prior to becoming inactive;
     (c) Seek disbursal of trust funds only in
accordance with the requirements of the written contracts and ORS 97.923 to
97.949 until the funds have been exhausted; and
     (d) Continue to submit required annual
reports and renewal fees until no trust funds remain on deposit. [2001 c.796 §1;
2003 c.362 §3; 2007 c.661 §15]
     Note: See note under 97.923.
     97.935
Registration of master trustees; annual reports; annual audits; fees. (1) A person may not operate as a master
trustee unless the person is registered with the Director of the Department of
Consumer and Business Services. The director shall:
     (a) Establish procedures for registering
persons under this section.
     (b) Establish standards for master
trustees.
     (c) Set registration and renewal fees.
     (d) Establish standards for rules of
conduct of master trustees.
     (2)(a) Every master trustee shall file an
annual report with the director on forms provided by the director. The annual
report shall contain any information reasonably considered necessary by the
director, including but not limited to:
     (A) A disclosure of changes in trust
deposits; and
     (B) A list of all certified providers for
which the master trustee holds funds and the total amount of funds held for
each certified provider.
     (b) The director may take appropriate
action under ORS 97.948 and 97.949 if a master trustee fails to file the annual
report or the report contains any material discrepancy.
     (c) The director may relieve a master
trustee of the duty to file the annual report upon a determination that the
master trustee has performed all obligations under the trust agreement with
each certified provider, or that the master trusteeÂ’s obligations have been
lawfully assumed by another person or have been discharged or canceled.
     (3) The director may conduct an annual
audit of a master trustee. The director shall prescribe the form of audits
under this section.
     (4) A master trustee who is audited under
this section shall pay all expenses and costs incurred by the director in
conducting the audit. [2001 c.796 §2; 2003 c.362 §4; 2007 c.661 §16]
     Note: See note under 97.923.
     97.936
Emergency orders of suspension or restriction. (1) In addition to other actions authorized
under ORS 97.948 (2), the Director of the Department of Consumer and Business
Services may:
     (a) Issue an emergency order suspending or
restricting a certificate or registration or ordering a certified provider or
master trustee or a person acting as a certified provider or master trustee to
cease and desist from specified conduct; or
     (b) Take other action deemed necessary by
the director in the circumstances.
     (2) The director shall promptly provide
opportunity for hearing pursuant to ORS chapter 183.
     (3) Emergency orders are:
     (a) Effective when issued;
     (b) Reviewable as provided in ORS 183.480;
and
     (c) Enforceable in the courts of this
state. [2007 c.661 §23]
     Note: See note under 97.923.
     97.937
Deposit of trust funds made by endowment care cemeteries. (1) This section applies to trust deposits
required to be made by endowment care cemeteries under ORS 97.929.
     (2) As used in this section, “common trust
account” means trust funds received by a provider from two or more purchasers.
     (3) All such trust funds shall be
deposited by the provider with a financial institution in the State of
     (a) Upon presentation of proof of the
death of the person for whom a prearranged funeral plan is made, the financial
institution shall release the principal and accrued income allocable to that
personÂ’s account to the provider.
     (b) Upon presentation of the written
request of the purchaser of a revocable trust, the financial institution shall
release the principal and accrued income allocable to the purchaserÂ’s account
as directed in such request.
     (c) Upon presentation of proof of the
death, dissolution, insolvency or merger with another of the provider of a
revocable trust, the financial institution shall release the principal and
accrued income allocable to each purchaserÂ’s account to that purchaser.
     (d) Upon presentation of proof of the
death, dissolution, insolvency or merger with another of the provider of an
irrevocable trust, the financial institution shall continue to hold such trust
fund subject to the funeral plan trust, and upon appointment of a successor
provider by the purchaser, the purchaserÂ’s legal representative, the Director
of the Department of Consumer and Business Services or a court of competent jurisdiction,
the financial institution shall release such trust fund to the successor
provider only as provided in paragraph (a) of this subsection.
     (4) If trust funds are held in a common
trust account under subsection (3) of this section, the provider shall maintain
records showing the purchaser and beneficiary of each individual trust fund in
the account and the allocation to each individual trust fund of interest earned
by the account. The records concerning allocation of interest must be updated
at least annually.
     (5) The provider may appoint a successor
depository. The original depository shall only release the trust funds to the
successor depository as described in subsections (1) to (4) of this section.
     (6) The financial institution is not
responsible for the fulfillment of any prearranged funeral plan, excepting only
such financial institution shall release a trust fund as provided in this
section.
     (7) The director may appoint a successor
provider upon a determination that the original provider has ceased to provide
the kinds of services and things which the original provider agreed to provide,
that the purchaser or the purchaserÂ’s legal representative cannot be readily
identified or contacted and that the appointment of a successor provider is appropriate
in order to protect the interests of the trust beneficiaries. Financial
institutions holding deposits of such trust funds shall change their records to
reflect such appointment of a successor provider upon receipt of written notice
of the appointment from the director. Where the director proposes to take such
action under this subsection, the provider being replaced shall be accorded
notice and an opportunity for hearing as provided in ORS chapter 183. [Formerly
128.415; 2007 c.661 §17]
     Note: Section 16, chapter 813, Oregon Laws 1987,
provides:
     Sec.
16. Notwithstanding the
repeal of ORS 128.410 by section 17 of this Act and the amendments to ORS
128.415 [renumbered 97.937] by section 12 of this Act, ORS 128.410 and ORS
128.415 (1985 Replacement Part) shall continue to apply to any prearranged
funeral plan entered into prior to the effective date of this Act [September
27, 1987]. [1987 c.813 §16]
     Note: 97.937 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 97 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     97.939
Prearrangement or preconstruction sales contracts; contents; delivery. (1) Three copies of a written sales contract
shall be executed for each prearrangement sales contract or preconstruction
sales contract sold by a certified provider. The certified provider shall
retain one copy of the contract and a copy of the completed contract shall be
given to:
     (a) The purchaser; and
     (b) The depository or the master trustee,
if applicable.
     (2) Upon receiving a trust deposit under
ORS 97.941, the master trustee shall sign a copy of the contract received under
subsection (1) of this section, retain a copy for its files and return the contract
to the purchaser.
     (3) Each completed contract shall:
     (a) Comply with the plain language
standards described in ORS 180.545 (1);
     (b) Be consecutively numbered;
     (c) Have a corresponding consecutively
numbered receipt;
     (d) Be preprinted or, if the certified
provider uses a master trustee, be obtained from the master trustee;
     (e) Identify the purchaser and certified
provider who sold the contract;
     (f) Specify whether the contract is a
guaranteed contract or a nonguaranteed contract;
     (g) Specify the specific funeral or
cemetery merchandise or services or undeveloped interment spaces included and
not included in the contract; and
     (h) If a guaranteed contract, disclose
that the certified provider may retain 10 percent of the sales price.
     (4)(a) Notwithstanding ORS 97.943 (8), in
the case of a prearrangement sales contract, if at the time of entering into
the contract, the beneficiary of the contract is a recipient of public
assistance or reasonably anticipates becoming a recipient of public assistance,
the contract may provide that the contract is irrevocable.
     (b) The contract may provide for an
election by the beneficiary, or by the purchaser on behalf of the beneficiary,
to make the contract thereafter irrevocable if after the contract is entered
into, the beneficiary becomes eligible or seeks to become eligible for public
assistance. [Formerly 128.421; 2007 c.661 §18]
     Note: See note under 97.923.
     97.941
Prearrangement or preconstruction trust fund deposits. (1) Upon receiving anything of value under a
prearrangement sales contract or preconstruction sales contract, the certified
provider who sold the contract shall deposit the following amounts into one or
more trust funds maintained pursuant to ORS 97.923 to 97.949, 97.992, 97.994
and 692.180:
     (a) Ninety percent of the amount received
in payment of a guaranteed prearrangement sales contract or guaranteed
preconstruction sales contract. The remaining 10 percent shall be paid to the
provider who sold the contract; or
     (b) One hundred percent of the amount
received in payment of a nonguaranteed prearrangement sales contract or
nonguaranteed preconstruction sales contract.
     (2) All trust deposits required by ORS
97.923 to 97.949, 97.992, 97.994 and 692.180 shall be placed in a depository or
delivered to a master trustee within five business days of their receipt.
     (3)(a) The trust deposits of a provider
that does not use the services of a master trustee shall be maintained in a
depository, except that the provider may invest the trust funds in a manner
that is, in the opinion of the provider, reasonable and prudent under the
circumstances.
     (b) A provider that invests trust funds
may invest the funds only in:
     (A) Certificates of deposit;
     (B)
     (C) Issues of
     (D) Guaranteed investment contracts; or
     (E) Banker’s acceptances or corporate
bonds rated A or better by Standard & PoorÂ’s Corporation or MoodyÂ’s
Investors Service.
     (c) All investments made under paragraph
(b) of this subsection shall be placed in the custody of the depository in
which the trust funds were originally deposited or any other depository that
may qualify under ORS 97.923 to 97.949.
     (d) Prearrangement sales contract trust
fund and preconstruction sales contract trust fund accounts shall be in the
name of the provider who sold the contract under ORS 97.923 to 97.949, 97.992,
97.994 and 692.180.
     (4) Funds deposited in the trust fund
account shall be identified in the records of the provider by the name of the
purchaser and beneficiary and adequate records shall be maintained to allocate
all earnings to each prearrangement sales contract or preconstruction sales
contract. Nothing shall prevent the provider from commingling the deposits in
any such trust fund account for purposes of managing and investing the funds. A
common trust fund account shall be identified by the name of the provider.
     (5) When a prearrangement sales contract
or preconstruction sales contract includes rights of interment and funeral or
cemetery merchandise or services, the application of payments received under
the contract shall be clearly provided in the contract.
     (6) Any person engaging in prearrangement
sales or preconstruction sales who enters into a combination sale which
involves the sale of items subject to trust and any item not subject to trust
shall be prohibited from increasing the sales price of those items not subject
to trust with the purpose of allocating a lesser sales price to items which
require a trust deposit.
     (7)(a) A provider may appoint a successor
provider. The depository shall release the trust funds deposited under ORS
97.923 to 97.949, 97.992, 97.994 and 692.180 and accrued income only to the
successor provider as described in ORS 97.943 and 97.944 or upon presentation
of the written request of the purchaser.
     (b) If appointing a successor provider
under this subsection, the original provider shall notify the Director of the
Department of Consumer and Business Services of the proposed change at least 30
days prior to the appointment.
     (8)(a) A provider may appoint a successor
depository or a master trustee as defined in ORS 97.923.
     (b) If appointing a successor depository
or master trustee under this subsection, the provider, the successor depository
and the master trustee must notify the director of the proposed change at least
30 days prior to the appointment.
     (9)(a) The director may appoint a
successor certified provider upon a determination that:
     (A) The original certified provider has
ceased to provide the services and merchandise that the original certified
provider agreed to provide;
     (B) The certificate issued to the original
certified provider has been revoked or surrendered; and
     (C) The appointment of a successor
certified provider is appropriate in order to protect the interests of the
purchasers and beneficiaries of prearrangement sales contracts or
preconstruction sales contracts.
     (b) Depositories or master trustees
holding deposits of trust funds by the original certified provider shall change
their records to reflect the appointment of a successor certified provider upon
receipt of written notice of the appointment from the director.
     (10) The trust fund accounts shall be a
single purpose fund. In the event of the providerÂ’s bankruptcy, the funds and
accrued income shall not be available to any creditor as assets of the
provider, but shall be distributed to the purchasers or managed for their
benefit by the trustee in bankruptcy, receiver or assignee.
     (11)(a) If the original provider is
licensed under ORS chapter 692 and voluntarily surrenders the license to the
State Mortuary and Cemetery Board, the original provider shall transfer
responsibility as provider under this section to a successor provider who holds
a certificate issued by the director under ORS 97.933.
     (b) If the original provider is not
licensed under ORS chapter 692, upon presentation of proof of the death,
dissolution, insolvency or merger with another provider of the original
provider, the depository shall release the prearrangement trust fund deposits
or preconstruction trust fund deposits to the purchaser.
     (c) If the original provider is licensed
under ORS chapter 692, upon proof of the death, insolvency or involuntary
surrender of the license of the original provider, the depository shall release
the prearrangement trust fund deposits or preconstruction trust fund deposits
to the purchaser.
     (12) The purchaser or beneficiary of a
prearrangement sales contract or preconstruction sales contract may be named
cotrustee with the provider with the written consent of the purchaser or
beneficiary.
     (13) A provider who has not appointed a
master trustee shall have an annual audit of all trust account funds performed
by an independent certified public accountant in accordance with generally
accepted accounting procedures. The provider shall make the audit results
available to the director if requested.
     (14) As used in this section, “common
trust fund account” means trust funds received by a provider from two or more
purchasers. [Formerly 128.423; 2007 c.661 §19]
     Note: See note under 97.923.
     97.942
Appointment of receiver; criteria. (1) The Attorney General, on behalf of the Director of the Department
of Consumer and Business Services, may petition the circuit courts of this
state for appointment of a receiver for a certified provider or person acting
as a certified provider without certification.
     (2) If the court determines that a
receivership is necessary or advisable, the court shall appoint a receiver:
     (a) When a receiver would ensure the
orderly and proper conduct of a providerÂ’s professional business and affairs
during or in the aftermath of an administrative proceeding to revoke or suspend
the provider;
     (b) When a receiver would protect the
publicÂ’s interest and rights in the business, premises or activities of the
provider sought to be placed in receivership;
     (c) Upon a showing of serious and repeated
violations of ORS 97.923 to 97.949 demonstrating an inability or unwillingness
to comply with the provisions of ORS 97.923 to 97.949;
     (d) When a receiver would prevent loss,
wasting, dissipation, theft or conversion of assets that should be marshaled
and held available for the honoring of obligations under ORS 97.923 to 97.949;
or
     (e) When the court receives proof of other
grounds that the court deems good and sufficient for instituting receivership
action concerning the receiver sought to be placed in receivership.
     (3)(a) A receivership under this section
may be temporary or for the winding up and dissolution of a business, as the
director may request and the court determines to be necessary or advisable in
the circumstances.
     (b) Venue of receivership proceedings may
be, at the directorÂ’s request, in
     (c) The director may expend money from
budgeted funds or the Funeral and Cemetery Consumer Protection Trust Fund to
implement a receivership. Any expenditures are a claim against the estate in
the receivership proceedings. [2007 c.661 §24]
     Note: See note under 97.923.
     97.943
Distributions from prearrangement trust fund deposits. (1) A depository may not make any
distributions from prearrangement sales contract trust deposits except as
provided in this section.
     (2) The principal of a trust created
pursuant to a prearrangement sales contract shall be paid to the certified
provider who sold the contract if the certified provider who sold the contract
swears, by affidavit, that the certified provider has delivered all merchandise
and performed all services required under the prearrangement sales contract and
delivers to the depository one of the following:
     (a) A certified death certificate of the
beneficiary; or
     (b) A sworn affidavit signed by the
certified provider and by:
     (A) One member of the beneficiary’s
family; or
     (B) The executor of the beneficiary’s
estate.
     (3) The principal of a trust created
pursuant to a prearrangement sales contract shall be paid to the purchaser if
the original provider is no longer qualified to serve as provider under ORS
97.941 (10).
     (4) Upon completion by the certified
provider of the actions described in subsection (2) of this section, the
depository shall pay to the certified provider from the prearrangement sales
contract trust fund an amount equal to the sales price of the merchandise
delivered.
     (5) Upon the final payment to the
certified provider of the principal in trust under subsection (2) of this
section, the undistributed earnings of the trust shall be paid to:
     (a) The certified provider who sold the
contract if the contract is a guaranteed contract; or
     (b) The contract purchaser, or the
purchaserÂ’s estate, if the contract is a nonguaranteed contract.
     (6) The depository may rely upon the
certifications and affidavits made to it under the provisions of ORS 97.923 to
97.949, 97.992, 97.994 and 692.180, and shall not be liable to any person for
such reliance.
     (7) If for any reason a certified provider
who sold the prearrangement sales contract has refused to comply, or cannot or
does not comply with the terms of the prearrangement sales contract within a
reasonable time after the certified provider is required to do so, the
purchaser or heirs or assigns or duly authorized representative of the
purchaser or the beneficiary shall have the right to a refund in the amount
equal to the sales price paid for undelivered merchandise and unperformed
services plus undistributed earnings amounts held in trust attributable to such
contract, within 30 days of the filing of a sworn affidavit with the certified
provider who sold the contract and the depository setting forth the existence
of the contract and the fact of breach. A copy of this affidavit shall be filed
with the Director of the Department of Consumer and Business Services. In the
event a certified provider who has sold a prearrangement sales contract is
prevented from performing by strike, shortage of materials, civil disorder,
natural disaster or any like occurrence beyond the control of the certified
provider, the certified providerÂ’s time for performance shall be extended by
the length of such delay.
     (8) Except for an irrevocable contract
described in ORS 97.939 (4), at any time prior to the death of the beneficiary
of a prearrangement sales contract, the purchaser of the prearrangement sales
contract may cancel the contract and shall be entitled to a refund of all
amounts paid on the contract, all amounts in trust including earnings allocated
to the contract that are in excess of all amounts paid on the contract and
unallocated earnings on trust contract amounts from the date of the last
allocation to the date of the refund request, less any amounts paid for
merchandise already delivered or services already performed, which amounts may
be retained by the certified provider as compensation.
     (9) Notwithstanding ORS 97.941 (4) and
subsection (5) of this section, upon receiving a sworn affidavit from the
master trustee or provider stating that qualifying expenses, taxes or fees have
been incurred, a depository shall allow a master trustee or provider to pay
from earnings of trust fund deposits any expenses, accounting fees, taxes,
depository fees, investment manager fees and other fees as may be necessary to
enable the provider to comply with the reporting required by ORS 97.923 to
97.949, and to perform other services for the trust as may be authorized by ORS
97.923 to 97.949. Any payment of expenses or fees from earnings of a trust fund
deposit under this subsection shall not:
     (a) Exceed an amount equal to two percent
per calendar year of the value of the trust as determined on the first day of
January of each calendar year;
     (b) Include the payment of any fee to the
provider in consideration for services rendered as provider; or
     (c) Reduce, diminish or in any other way
lessen the value of the trust fund deposit so that the services or merchandise
provided for under the contract are reduced, diminished or in any other way
lessened. [Formerly 128.425; 2005 c.66 §1; 2007 c.661 §20]
     Note: See note under 97.923.
     97.944
Distributions from preconstruction trust fund deposits. (1) A depository may not make any
distributions from preconstruction sales contract trust deposits except as
provided in this section.
     (2)(a) The construction or development of
undeveloped interment spaces shall be commenced on the phase of construction or
development, or the section or sections of spaces in which sales are made
within five years of the date of the first sale. The certified provider who
sold the preconstruction sales contract shall give written notice including a
description of the project to the Director of the Department of Consumer and
Business Services no later than 30 days after the first sale.
     (b) Once commenced, construction or
development shall be pursued diligently to completion. The first phase of
construction must be completed within seven years of the first sale. However,
any delay caused by strike, shortage of materials, civil disorder, natural
disaster or any similar occurrence beyond the control of the certified provider
extends the time of completion by the length of a delay.
     (c) If construction or development is not
commenced or completed within the times specified, any contract purchaser may
surrender and cancel the contract and upon cancellation shall be entitled to a
refund of the actual amounts paid toward the purchase price, together with
interest accrued on the amount deposited to the trust.
     (3) Except as otherwise authorized by this
section, every certified provider selling undeveloped spaces shall provide
facilities for temporary interment for purchasers or beneficiaries of contracts
who die prior to completion of the space. Such temporary facilities shall be
constructed of permanent materials, and, insofar as practical, be landscaped and
groomed to the extent customary in that community. The heirs, assigns or
personal representative of a purchaser or beneficiary shall not be required to
accept temporary underground interment space where undeveloped space contracted
for was an aboveground entombment or inurnment space. In the event that
temporary facilities as described in this subsection are not made available
upon the death of a purchaser or beneficiary, the heirs, assigns or personal
representative is entitled to a refund of the entire sales price paid plus
undistributed interest attributable to such amount while in trust.
     (4) If the certified provider who sold the
preconstruction sales contract delivers a completed space acceptable to the
heirs, assigns or personal representative of a purchaser or beneficiary, other
than a temporary facility, in lieu of the undeveloped space purchased, the
certified provider shall provide the depository with a delivery certificate and
all sums deposited under the preconstruction sales contract and income
allocable to that contract shall be paid to the certified provider.
     (5) During the construction or development
of interment spaces, upon receiving the sworn certification of the certified
provider who sold the preconstruction sales contract and the contractor, the
depository shall disburse from the trust fund the amount equivalent to the cost
of performed labor or delivered materials as certified, not to exceed the
amounts deposited and income allocable to those contracts. A person who
executes and delivers a completion certificate with actual knowledge of a
falsity contained therein shall be considered in violation of ORS 97.923 to
97.949 and 692.180.
     (6) Upon completion of the phase of
construction or development, section or sections of the project as certified to
the depository by the certified provider and the contractor, the trust
requirements shall terminate and all funds held in the preconstruction sales
contract trust fund attributable to the completed phase, section or sections
shall be paid to the certified provider who sold the preconstruction sales
contract.
     (7) Upon the payment to a certified
provider of preconstruction sales contract trust funds under subsection (4) or
(6) of this section, the undistributed income of the trust shall be paid to:
     (a) The certified provider who sold the
contract if the contract is a guaranteed contract; or
     (b) The contract purchaser, or the
purchaserÂ’s estate, if the contract is a nonguaranteed contract.
     (8) If the preconstruction sales contract
purchaser defaults in making payments under an installment preconstruction
sales contract, and default continues for at least 30 days after the purchaser
has received written notice of default, the certified provider who sold the
contract may cancel the contract and withdraw from the trust fund the entire
balance of the defaulting purchaserÂ’s account as liquidated damages. Upon
certification of the default, the depository shall deliver the balance to the
certified provider. The depository may rely on the certification and affidavits
made to it under the provisions of ORS 97.923 to 979.949, 97.992, 97.994 and
692.180 and shall not be liable to any person for such reliance. [Formerly
128.430; 2007 c.661 §21]
     Note: See note under 97.923.
     97.945
Funeral and Cemetery Consumer Protection Trust Fund; fee; rules. (1) Every prearrangement sales contract or
preconstruction sales contract seller shall pay to the Director of the
Department of Consumer and Business Services a $5 fee for each prearrangement
sales contract or preconstruction sales contract entered into, to be paid into
a special income earning fund in the State Treasury, separate from the General
Fund, known as the Funeral and Cemetery Consumer Protection Trust Fund. The
fees shall be remitted to the director annually within 30 days after the end of
December for all contracts that have been entered into during the 12-month
period.
     (2) Except as provided in this section,
the fund shall be used solely for the purpose of providing restitution to
purchasers who have suffered pecuniary loss arising out of prearrangement sales
contracts or preconstruction sales contracts. The fund may be used for payment
of actual administrative expenses incurred in administering the fund. All
moneys in the Funeral and Cemetery Consumer Protection Trust Fund are
appropriated continuously to the director for the payment of restitution under
this section and the payment of expenses incurred in performing the duties and
functions of the director required under ORS 97.923 to 97.949, 97.992, 97.994
and 692.180.
     (3) The director shall administer the fund
and shall adopt rules governing the payment of restitution from the fund.
     (4) Payments for restitution shall be made
only upon order of the director where the director determines that the obligation
is noncollectible from the certified provider. Restitution shall not exceed the
amount of the sales price paid plus interest at the statutory rate.
     (5) The fund shall not be applied toward
any restitution for losses on a prearrangement sales contract or
preconstruction sales contract entered into prior to September 27, 1987.
     (6) The fund shall not be allocated for
any purpose other than that specified in ORS 97.923 to 97.949, 97.992, 97.994
and 692.180.
     (7) If the director proposes to deny an
application for restitution from the fund, the director shall accord an
opportunity for a hearing as provided in ORS chapter 183.
     (8) Notwithstanding any other provision of
this section, the payment of restitution from the fund shall be a matter of
grace and not of right and no purchaser shall have vested rights in the fund as
a beneficiary or otherwise.
     (9) The status of the fund shall be
reviewed annually by the director. If the review determines that the fund
together with all accumulated income earned on the fund is sufficient to cover
costs of potential claims against the fund and that the total number of
outstanding claims filed against the fund is less than 10 percent of the fundÂ’s
current balance, then payments to the fund shall be adjusted accordingly at the
discretion of the director. [Formerly 128.435; 2003 c.362 §5]
     Note: See note under 97.923.
     97.946
Advertising and marketing prohibitions. (1) A person may not engage in unsolicited door to door or telephone
advertising and marketing of prearrangement sales contracts or preconstruction
sales contracts. The costs of advertising and marketing may not be paid from
trust funds.
     (2) Advertising and marketing a
prearrangement sales contract or a preconstruction sales contract by a funeral
service practitioner, embalmer or funeral service establishment licensed under
ORS chapter 692 does not constitute a violation of ORS 692.180 (1)(c). [Formerly
128.440]
     Note: See note under 97.923.
     97.947
Examination of providers and master trustees by director; subpoena power;
depositions. (1)(a) The
Director of the Department of Consumer and Business Services may examine the
conditions and resources, including sales contracts, of a certified provider,
master trustee or person acting as a certified provider or master trustee
without certification or registration to determine whether the certified
provider, master trustee or person acting as a certified provider or master
trustee without certification or registration is complying with ORS 97.923 to
97.949, the rules of the director and any other laws of this state applicable
to a certified provider or master trustee.
     (b) In addition to the authority conferred
by ORS 97.948, the director may require a certified provider, master trustee or
person acting as a certified provider or master trustee without certification
or registration to pay the actual and reasonable costs of the examination.
     (2) For the purpose of an examination
under this section, the director may administer oaths and affirmations, compel
the attendance of witnesses, take evidence and require the production of books,
papers, correspondence, memoranda, agreements or other documents or records
that the director considers relevant or material to the examination.
     (3) If a certified provider, master
trustee or person acting as a certified provider or master trustee without
certification or registration fails to comply with a subpoena issued under this
section or a party or witness refuses to testify on any matter, the judge of
the circuit court for any county, on the application of the director, shall
compel obedience by proceedings for contempt as in the case of disobedience of
the requirements of a subpoena issued from the court or a refusal to testify on
a matter before the court.
     (4) Each witness who appears before the
director under a subpoena issued under this section shall receive the fees and
mileage provided for witnesses in ORS 44.415 (2), except that a witness
subpoenaed at the instance of parties other than the director or an examiner
may not be compensated for attendance or travel unless the director certifies
that the testimony of the witness was material to the matter investigated.
     (5) During the course of any examination,
the director may cause the depositions of witnesses to be taken in the manner
prescribed by law for like depositions in civil suits in the circuit court. [2001
c.796 §3; 2003 c.362 §6; 2005 c.338 §1]
     Note: Section 30, chapter 338, Oregon Laws 2005,
provides:
     Sec.
30. The amendments to ORS
97.947 by section 1 of this 2005 Act apply to:
     (1) Conditions and resources, including
sales contracts, in existence before, on or after the effective date of this
2005 Act [January 1, 2006].
     (2) Conduct occurring before, on or after
the effective date of this 2005 Act. [2005 c.338 §30]
     Note: See note under 97.923.
     97.948
Grounds for discipline by director for violation of ORS 97.923 to 97.949;
suspension and revocation of certificate or registration; civil penalties;
notification of board. (1)
The Director of the Department of Consumer and Business Services may discipline
a certified provider, master trustee or person acting as a certified provider
or master trustee without certification or registration who has been found by
an audit or examination conducted by the director:
     (a) To be in violation of ORS 97.923 to
97.949;
     (b) To have liabilities that exceed
assets;
     (c) To be unable to meet obligations as
they come due; or
     (d) To be in a financial condition that
fails to adequately protect the interests of customers.
     (2) In disciplining a certified provider,
master trustee or person acting as a certified provider or master trustee
without certification or registration under subsection (1) of this section, the
director may take the following actions:
     (a) Impose probation.
     (b) Suspend the certificate or
registration.
     (c) Revoke the certificate or
registration.
     (d) Place limitations on the certificate
or registration.
     (e) Refuse to issue or renew a certificate
or registration.
     (f) Issue an order to cease and desist
from the activities that support the discipline.
     (g) Take any other disciplinary action
that the director finds proper, including assessment of the costs of the
investigation and disciplinary proceedings and assessment of a civil penalty
not to exceed $10,000 per violation.
     (3) If the certificate or registration of
a certified provider or master trustee is suspended under this section, the
holder of the certificate or registration may not engage in the activities
allowed by the certificate or registration during the term of suspension. Upon
the expiration of the term of suspension, the director shall reinstate the
certificate or registration if the conditions for which the certificate or
registration was suspended no longer exist.
     (4) The director shall enter each case of disciplinary
action on the records of the Department of Consumer and Business Services.
     (5) Civil penalties under this section may
be imposed as provided in ORS 183.745.
     (6) If the director takes disciplinary
action under this section, the director may send a notice of the action to the
State Mortuary and Cemetery Board and to the Attorney General. [2001 c.796 §4;
2003 c.362 §7; 2005 c.338 §2]
     Note: Section 31, chapter 338, Oregon Laws 2005,
provides:
     Sec.
31. The order authorized by
the amendments to ORS 97.948 by section 2 of this 2005 Act applies to actions
occurring before, on or after the effective date of this 2005 Act [January 1,
2006]. [2005 c.338 §31]
     Note: See note under 97.923.
     97.949
Notification by director to appropriate federal, state or local law enforcement
officer of violation of ORS 97.923 to 97.949. (1) If the Director of the Department of Consumer and Business
Services has reason to believe that a person has violated any provision of ORS
97.923 to 97.949, the director may give the information relative to the
violation to the appropriate federal, state or local law enforcement officer
having jurisdiction over the violation.
     (2) If the director, in the course of
taking an action against a certified provider, master trustee or person acting
as a certified provider or master trustee without certification or
registration, finds that a salesperson or person acting as a salesperson has
violated any provision of ORS 97.923 to 97.949, the director shall provide the
State Mortuary and Cemetery Board with a copy of the findings and the order of
the director. The board shall, upon receipt of such information, discipline the
salesperson or person acting as a salesperson as required by law. [2001 c.796 §5;
2003 c.362 §8; 2005 c.338 §3]
     Note: See note under 97.923.
     97.950 [1995 c.717 §1; 1997 c.472 §4; 1999 c.201 §1;
2005 c.505 §1; repealed by 2007 c.681 §31]
REVISED UNIFORM
ANATOMICAL GIFT ACT
     97.951
Short title. ORS 97.951 to
97.982 may be cited as the Revised Uniform Anatomical Gift Act. [2007 c.681 §1]
     Note: 97.951 to 97.982 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter 97
or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     97.952 [1995 c.717 §2; 1997 c.472 §5; 2005 c.505 §2;
repealed by 2007 c.681 §31]
     97.953
Definitions. As used in ORS
97.951 to 97.982:
     (1) “Adult” means an individual who is 18
years of age or older.
     (2) “Agent” means an:
     (a) Attorney-in-fact as that term is
defined in ORS 127.505; or
     (b) Individual expressly authorized to
make an anatomical gift on the principalÂ’s behalf by any record signed by the
principal.
     (3) “Anatomical gift” means a donation of
all or part of a human body to take effect after the donorÂ’s death for the
purpose of transplantation, therapy, research or education.
     (4) “Body part” means an organ, an eye or
tissue of a human being. The term does not include the whole body.
     (5) “Decedent” means a deceased individual
whose body or body part is or may be the source of an anatomical gift, and
includes a stillborn infant or a fetus.
     (6)(a) “Disinterested witness” means a
witness other than:
     (A) A spouse, child, parent, sibling,
grandchild, grandparent or guardian of the individual who makes, amends,
revokes or refuses to make an anatomical gift; or
     (B) An adult who exhibited special care
and concern for the individual.
     (b) “Disinterested witness” does not
include a person to whom an anatomical gift could pass under ORS 97.969.
     (7) “Document of gift” means a donor card
or other record used to make an anatomical gift. The term includes a statement,
symbol or designation on a driver license, identification card or donor
registry.
     (8) “Donor” means an individual whose body
or body part is the subject of an anatomical gift.
     (9) “Donor registry” means a centralized
database that contains records of anatomical gifts and amendments to or
revocations of anatomical gifts.
     (10) “Driver license” means a license or
permit issued under ORS 807.040, 807.200 or 807.280, regardless of whether
conditions are attached to the license or permit.
     (11) “Eye bank” means an organization
licensed, accredited or regulated under federal or state law to engage in the
recovery, screening, testing, processing, storage or distribution of human eyes
or portions of human eyes.
     (12) “Guardian” means a person appointed
by a court to make decisions regarding the support, care, education, health or
welfare of an individual. “Guardian” does not include a guardian ad litem.
     (13) “Hospital” means a facility licensed
as a hospital under the law of any state or a facility operated as a hospital
by the
     (14) “Identification card” means the card
issued under ORS 807.400 or a comparable provision of the motor vehicle laws of
another state.
     (15) “Know” means to have actual
knowledge.
     (16) “Minor” means an individual who is
under 18 years of age.
     (17) “Organ procurement organization”
means an organization designated by the Secretary of the United States
Department of Health and Human Services as an organ procurement organization.
     (18) “Parent” means a parent whose
parental rights have not been terminated.
     (19) “Physician” means an individual
authorized to practice medicine or osteopathy under the law of any state.
     (20) “Procurement organization” means an
eye bank, organ procurement organization or tissue bank.
     (21) “Prospective donor” means an
individual who is dead or near death and has been determined by a procurement
organization to have a body part that could be medically suitable for
transplantation, therapy, research or education. The term does not include an
individual who has made a refusal.
     (22) “Reasonably available” means able to
be contacted by a procurement organization without undue effort and willing and
able to act in a timely manner consistent with existing medical criteria
necessary for the making of an anatomical gift.
     (23) “Recipient” means an individual into
whose body a decedentÂ’s body part has been or is intended to be transplanted.
     (24) “Record” means information that is
inscribed on a tangible medium or that is stored in an electronic or other
medium and is retrievable in perceivable form.
     (25) “Refusal” means a record that
expressly states an intent to prohibit other persons from making an anatomical
gift of an individualÂ’s body or body part.
     (26) “Sign” means, with the present intent
to authenticate or adopt a record:
     (a) To execute or adopt a tangible symbol;
or
     (b) To attach to or logically associate
with the record an electronic symbol, sound or process.
     (27) “State” means a state of the
     (28) “Technician” means an individual
determined to be qualified to remove or process body parts by an appropriate
organization that is licensed, accredited or regulated under federal or state
law. The term includes an enucleator.
     (29) “Tissue” means a portion of the human
body other than an organ or an eye. The term does not include blood unless the
blood is donated for the purpose of research or education.
     (30) “Tissue bank” means a person that is
licensed, accredited or regulated under federal or state law to engage in the
recovery, screening, testing, processing, storage or distribution of tissue.
     (31) “Transplant hospital” means a
hospital that furnishes organ transplants and other medical and surgical
specialty services required for the care of transplant patients. [2007 c.681 §2]
     Note: See note under 97.951.
     97.954 [1995 c.717 §3; 1997 c.472 §6; 1999 c.201 §2;
2005 c.505 §3; repealed by 2007 c.681 §31]
     97.955
Purpose of anatomical gift; persons authorized to make gift. (1) Subject to ORS 97.963, a donor may make
an anatomical gift of a donorÂ’s body or body part during the life of the donor
for the purpose of transplantation, therapy, research or education.
     (2) An anatomical gift may be made in the
manner provided in ORS 97.957 by:
     (a) The donor, if the donor is an adult or
if the donor is a minor and is:
     (A) Emancipated; or
     (B) Authorized under ORS 807.280 to apply
for an instruction driver permit because the donor is at least 15 years of age;
     (b) An agent of the donor, unless the
power of attorney for health care or other record prohibits the agent from
making an anatomical gift;
     (c) A parent of the donor, if the donor is
an unemancipated minor; or
     (d) The donor’s guardian. [2007 c.681 §3]
     Note: See note under 97.951.
     97.956 [1995 c.717 §4; 1997 c.472 §7; 1999 c.201 §3;
repealed by 2007 c.681 §31]
     97.957
Methods of making anatomical gift before death of donor. (1) A donor may make an anatomical gift:
     (a) By a designation on the donor’s driver
license or identification card;
     (b) In a will;
     (c) During a terminal illness or injury of
the donor, by any form of communication addressed to at least two adults, at
least one of whom is a disinterested witness;
     (d) By a donor card or other record signed
by the donor or other person making the gift; or
     (e) By authorizing that a statement,
symbol or designation indicating that the donor has made an anatomical gift is
to be included on a donor registry.
     (2) If the donor or other person
authorized to make an anatomical gift under ORS 97.955 is physically unable to
sign a record, the record may be signed by another individual at the direction
of the donor or other person and must:
     (a) Be witnessed by at least two adults,
at least one of whom is a disinterested witness, who have signed at the request
of the donor or the other person; and
     (b) State that it has been signed and
witnessed as provided in paragraph (a) of this subsection.
     (3) Revocation, suspension, expiration or
cancellation of a driver license or identification card upon which an
anatomical gift is indicated does not invalidate the gift.
     (4) An anatomical gift made by will takes
effect upon the donorÂ’s death whether or not the will is probated. Invalidation
of the will after the donor’s death does not invalidate the gift. [2007 c.681 §4]
     Note: See note under 97.951.
     97.958 [1995 c.717 §5; 1997 c.472 §8; 1999 c.201 §4;
2005 c.505 §4; repealed by 2007 c.681 §31]
     97.959
Revocation or amendment of anatomical gift before death of donor. (1) Except as provided in ORS 97.963, a
donor or other person authorized to make an anatomical gift under ORS 97.955
may amend or revoke an anatomical gift by:
     (a) A record signed by:
     (A) The donor;
     (B) The other person; or
     (C) Subject to subsection (2) of this
section, another individual acting at the direction of the donor or the other
person if the donor or other person is physically unable to sign; or
     (b) A later-executed document of gift that
amends or revokes a previous anatomical gift or portion of an anatomical gift, either
expressly or by inconsistency.
     (2) A record signed pursuant to subsection
(1)(a)(C) of this section must:
     (a) Be witnessed by at least two adults,
at least one of whom is a disinterested witness, who have signed at the request
of the donor or the other person; and
     (b) State that it has been signed and
witnessed as required in this subsection.
     (3) Except as provided in ORS 97.963, a
donor or other person authorized to make an anatomical gift under ORS 97.955
may revoke an anatomical gift by the destruction or cancellation of the
document of gift, or the portion of the document of gift used to make the gift,
with the intent to revoke the gift.
     (4) A donor may amend or revoke an
anatomical gift that was not made in a will by any form of communication during
a terminal illness or injury addressed to at least two adults, at least one of
whom is a disinterested witness.
     (5) A donor who makes an anatomical gift
in a will may amend or revoke the gift in the manner provided for amendment or
revocation of wills or as provided in subsection (3) of this section. [2007
c.681 §5]
     Note: See note under 97.951.
     97.960 [1995 c.717 §6; 1997 c.472 §9; repealed by
2007 c.681 §31]
     97.961
Refusal to make anatomical gift; effect of refusal. (1) An individual may refuse to make an
anatomical gift of the individualÂ’s body or body part by:
     (a) A record signed by:
     (A) The individual; or
     (B) Subject to subsection (2) of this
section, another individual acting at the direction of the individual if the
individual is physically unable to sign;
     (b) The individual’s will, whether or not
the will is admitted to probate or invalidated after the individualÂ’s death; or
     (c) Any form of communication made by the
individual during the individualÂ’s terminal illness or injury addressed to at
least two adults, at least one of whom is a disinterested witness.
     (2) A record signed under subsection
(1)(a)(B) of this section must:
     (a) Be witnessed by at least two adults,
at least one of whom is a disinterested witness, who have signed at the request
of the individual; and
     (b) State that it has been signed and
witnessed as provided in this subsection.
     (3) An individual who has made a refusal
may amend or revoke the refusal:
     (a) In the manner provided in subsection
(1) of this section for making a refusal;
     (b) By subsequently making an anatomical
gift pursuant to ORS 97.957 that is inconsistent with the refusal; or
     (c) By destroying or canceling the record
evidencing the refusal, or the portion of the record used to make the refusal, provided
that the destruction or cancellation is done with the intent to revoke the
refusal.
     (4) Except as otherwise provided in ORS
97.963 (8), in the absence of an express, contrary indication by the individual
set forth in the refusal, an individualÂ’s unrevoked refusal to make an
anatomical gift of the individualÂ’s body or body part prohibits all other
persons from making an anatomical gift of the individualÂ’s body or body part. [2007
c.681 §6]
     Note: See note under 97.951.
     97.962 [1995 c.717 §7; repealed by 2007 c.681 §31]
     97.963
Effect of making, amending or revoking anatomical gift. (1) Except as otherwise provided in
subsection (7) of this section and subject to subsection (6) of this section,
in the absence of an express, contrary indication by the donor, a person other
than the donor is prohibited from making, amending or revoking an anatomical
gift of a donorÂ’s body or body part if the donor made an anatomical gift of the
donorÂ’s body or body part under ORS 97.957 or an amendment to an anatomical
gift of the donorÂ’s body or body part under ORS 97.959.
     (2) A donor’s revocation of an anatomical
gift of the donorÂ’s body or body part under ORS 97.959 is not a refusal and
does not prohibit another person specified in ORS 97.955 or 97.965 from making
an anatomical gift of the donorÂ’s body or body part under ORS 97.957 or 97.967.
     (3) If a person other than the donor makes
an unrevoked anatomical gift of the donorÂ’s body or body part under ORS 97.957
or an amendment to an anatomical gift of the donorÂ’s body or body part under
ORS 97.959, another person may not make, amend or revoke the gift of the donorÂ’s
body or body part under ORS 97.967.
     (4) A revocation of an anatomical gift of
a donorÂ’s body or body part under ORS 97.959 by a person other than the donor
does not prohibit another person from making an anatomical gift of the body or
body part under ORS 97.957 or 97.967.
     (5) In the absence of an express, contrary
indication by the donor or other person authorized to make an anatomical gift
under ORS 97.955, an anatomical gift of a body part is neither a refusal to
give another body part nor a limitation on the making of an anatomical gift of
another body part at a later time by the donor or other person.
     (6) In the absence of an express, contrary
indication by the donor or other person authorized to make an anatomical gift
under ORS 97.955, an anatomical gift of a body part for one or more of the
purposes set forth in ORS 97.955 is not a limitation on the making of an
anatomical gift of the body part for any of the other purposes by the donor or
other person under ORS 97.957 or 97.967.
     (7) If a donor who is an unemancipated
minor dies, a parent of the donor who is reasonably available may revoke or
amend an anatomical gift of the donorÂ’s body or body part.
     (8) If an unemancipated minor who signed a
refusal dies, a parent of the minor who is reasonably available may revoke the
minor’s refusal. [2007 c.681 §7]
     Note: See note under 97.951.
     97.964 [1995 c.717 §8; 2005 c.505 §5; repealed by
2007 c.681 §31]
     97.965
Persons authorized to make anatomical gift of body or body part of decedent. (1) Subject to subsections (2) and (3) of
this section and unless prohibited by ORS 97.961 or 97.963, an anatomical gift
of a decedentÂ’s body or body part for purpose of transplantation, therapy,
research or education may be made by any member of the following classes of
persons who is reasonably available, in the following order:
     (a) An agent of the decedent at the time
of death who could have made an anatomical gift under ORS 97.955 (2)(b)
immediately before the decedentÂ’s death;
     (b) The spouse of the decedent;
     (c) An adult child of the decedent;
     (d) A parent of the decedent;
     (e) An adult sibling of the decedent;
     (f) An adult grandchild of the decedent;
     (g) A grandparent of the decedent;
     (h) An adult who exhibited special care
and concern for the decedent;
     (i) A guardian of the decedent at the time
of death; or
     (j) Any other person having the authority
to dispose of the decedentÂ’s body.
     (2) If there is more than one member of a
class listed in subsection (1) of this section entitled to make an anatomical
gift, an anatomical gift may be made by a member of the class unless that
member or a person to which the gift may pass under ORS 97.969 knows of an objection
by another member of the class. If an objection is known, the gift may be made
only by a majority of the members of the class who are reasonably available.
     (3) A person may not make an anatomical
gift if, at the time of the decedentÂ’s death, a person in a prior class under
subsection (1) of this section is reasonably available to make or to object to
the making of an anatomical gift. [2007 c.681 §8]
     Note: See note under 97.951.
     97.966 [Formerly 97.295; 2007 c.681 §30; renumbered
97.984 in 2007]
     97.967
Methods for making, amending or revoking anatomical gift of body or body part
of decedent by authorized person. (1) A person authorized to make an anatomical gift under ORS 97.965
may make an anatomical gift by a document of gift signed by the person making
the gift or by that personÂ’s oral communication that is electronically recorded
or is contemporaneously reduced to a record and signed by the individual
receiving the oral communication.
     (2) Subject to subsection (3) of this
section, an anatomical gift by a person authorized under ORS 97.965 may be
amended or revoked orally or in a record by any member of a prior class who is
reasonably available. If more than one member of the prior class is reasonably
available, the gift made by a person authorized under ORS 97.965 may be:
     (a) Amended only if a majority of the
reasonably available members agree to amendment of the gift; or
     (b) Revoked only if a majority of the
reasonably available members agree to the revocation of the gift or if they are
equally divided as to whether to revoke the gift.
     (3) A revocation under subsection (2) of
this section is effective only if, before an incision has been made to remove a
body part from the donorÂ’s body or before invasive procedures have begun to
prepare the recipient, the procurement organization, transplant hospital,
physician or technician knows of the revocation. [2007 c.681 §9]
     Note: See note under 97.951.
     97.968 [Formerly 97.300; renumbered 97.985 in 2007]
     97.969
Authorized recipients of anatomical gifts; purposes for which gift may be used. (1) An anatomical gift may be made to the
following persons named in the document of gift:
     (a) A hospital, accredited medical school,
dental school, college, university, organ procurement organization or other appropriate
person, for research or education;
     (b) Subject to subsection (2) of this
section, an individual designated by the person making the anatomical gift if
the individual is the recipient of the body part; or
     (c) An eye bank or tissue bank.
     (2) If an anatomical gift to an individual
under subsection (1)(b) of this section cannot be transplanted into the
individual, the body part passes in accordance with subsection (7) of this
section in the absence of an express, contrary indication by the person making
the anatomical gift.
     (3) If an anatomical gift of one or more
specific body parts or of all body parts is made in a document of gift that
does not name a person described in subsection (1) of this section but
identifies the purpose for which an anatomical gift may be used, the following
rules apply:
     (a) If the body part is an eye and the
gift is for the purpose of transplantation or therapy, the gift passes to the
appropriate eye bank.
     (b) If the body part is tissue and the
gift is for the purpose of transplantation or therapy, the gift passes to the
appropriate tissue bank.
     (c) If the body part is an organ and the
gift is for the purpose of transplantation or therapy, the gift passes to the
appropriate organ procurement organization as custodian of the organ.
     (d) If the body part is an organ, an eye
or tissue and the gift is for the purpose of research or education, the gift
passes to the appropriate procurement organization.
     (4) For the purposes of subsection (3) of
this section, if there is more than one purpose of an anatomical gift set forth
in the document of gift but the purposes are not set forth in any priority, the
gift must be used for transplantation or therapy, if suitable. If the gift
cannot be used for transplantation or therapy, the gift may be used for
research or education.
     (5) If an anatomical gift of one or more
specific body parts is made in a document of gift that does not name a person
described in subsection (1) of this section and does not identify the purpose
of the gift, the gift may be used only for transplantation or therapy, and the
gift passes in accordance with subsection (7) of this section.
     (6) If a document of gift specifies only a
general intent to make an anatomical gift by words such as “donor,” “organ
donor” or “body donor” or by a symbol or statement of similar import, the gift
may be used only for transplantation or therapy, and the gift passes in
accordance with subsection (7) of this section.
     (7) For purposes of subsections (2), (5)
and (6) of this section, the following rules apply:
     (a) If the body part is an eye, the gift
passes to the appropriate eye bank.
     (b) If the body part is tissue, the gift
passes to the appropriate tissue bank.
     (c) If the body part is an organ, the gift
passes to the appropriate organ procurement organization as custodian of the
organ.
     (8) An anatomical gift of an organ for
transplantation or therapy, other than an anatomical gift under subsection
(1)(b) of this section, passes to the organ procurement organization as
custodian of the organ.
     (9) If an anatomical gift does not pass
pursuant to subsections (1) to (8) of this section or the decedentÂ’s body or
body part is not used for transplantation, therapy, research or education,
custody of the body or body part passes to the person under obligation to
dispose of the body or body part.
     (10) A person may not accept an anatomical
gift if the person knows that the gift was not effectively made under ORS
97.957 or 97.967 or if the person knows that the decedent made a refusal under
ORS 97.961 that was not revoked. For purposes of this subsection, if a person
knows that an anatomical gift was made on a document of gift, the person is
deemed to know of any amendment or revocation of the gift or any refusal to
make an anatomical gift on the same document of gift.
     (11) Except as otherwise provided in
subsection (1)(b) of this section, ORS 97.951 to 97.982 do not affect the
allocation of organs for transplantation or therapy. [2007 c.681 §10]
     Note: See note under 97.951.
     97.970
Search for document of anatomical gift or refusal; duty to send document or
refusal to hospital. (1) The
following persons shall make a reasonable search of an individual who the
persons reasonably believe is dead or near death for a document of gift or
other information identifying the individual as a donor or as an individual who
made a refusal:
     (a) A law enforcement officer,
firefighter, paramedic or other emergency rescuer finding the individual; and
     (b) If no other source of the information
is immediately available, a hospital, as soon as practicable after the
individualÂ’s arrival at the hospital.
     (2) If a document of gift or a refusal to
make an anatomical gift is located by the search required by subsection (1)(a)
of this section and the individual or deceased individual to whom it relates is
taken to a hospital, the person responsible for conducting the search shall
send the document of gift or the refusal to the hospital.
     (3) A person is not subject to criminal or
civil liability for failing to discharge the duties imposed by this section but
may be subject to administrative sanctions. [2007 c.681 §11]
     Note: See note under 97.951.
     97.971
Delivery of document of gift or refusal not required; right to examine. (1) A document of gift need not be delivered
during the donorÂ’s lifetime to be effective.
     (2) Upon or after an individual’s death, a
person in possession of a document of gift or a refusal to make an anatomical
gift with respect to the individual shall allow examination and copying of the
document of gift or the refusal by a person authorized to make or object to the
making of an anatomical gift with respect to the individual or by a person to
whom the gift could pass under ORS 97.969. [2007 c.681 §12]
     Note: See note under 97.951.
     97.972
Rights and duties of procurement organizations and others; authorized
examinations. (1) When a
hospital refers an individual at or near death to a procurement organization,
the organization shall make a reasonable search of the records of the
Department of Transportation and any donor registry that it knows exists for
the geographical area in which the individual resides to ascertain whether the
individual has made an anatomical gift.
     (2) A procurement organization must be
allowed reasonable access to information in the records of the Department of
Transportation to ascertain whether an individual at or near death is a donor.
     (3) When a hospital refers an individual
at or near death to a procurement organization, the organization may conduct
any reasonable examination necessary to ensure the medical suitability of a
body part that is or could be the subject of an anatomical gift for
transplantation, therapy, research or education from a donor or a prospective
donor. During the examination period, measures necessary to ensure the medical
suitability of the body part may not be withdrawn unless the hospital or
procurement organization knows that the individual expressed a contrary intent.
     (4) Unless otherwise prohibited by law, at
any time after a donorÂ’s death, the person to whom a body part passes under ORS
97.969 may conduct any reasonable examination necessary to ensure the medical
suitability of the body or body part for its intended purpose.
     (5) Unless otherwise prohibited by law, an
examination under subsection (3) or (4) of this section may include an
examination of all medical and dental records of the donor or prospective
donor.
     (6) Upon the death of a minor who was a
donor or had signed a refusal, unless a procurement organization knows the
minor is emancipated, the procurement organization shall conduct a reasonable
search for the parents of the minor and provide the parents with an opportunity
to revoke or amend the anatomical gift or revoke the refusal.
     (7) Upon referral by a hospital under
subsection (1) of this section, a procurement organization shall make a
reasonable search for any person listed in ORS 97.965 having priority to make
an anatomical gift on behalf of a prospective donor. If a procurement
organization receives information that an anatomical gift to any other person
was made, amended or revoked, it shall promptly advise the other person of all
relevant information.
     (8) Subject to ORS 97.969 (9) and 97.980,
the rights of the person to whom a body part passes under ORS 97.969 are superior
to the rights of all others with respect to the body part. The person may
accept or reject an anatomical gift in whole or in part. Subject to the terms
of the document of gift and ORS 97.951 to 97.982, a person who accepts an
anatomical gift of an entire body may allow embalming, burial or cremation and
use of remains in a funeral service. If the gift is of a body part, the person
to whom the body part passes under ORS 97.969, upon the death of the donor and
before embalming, burial or cremation, shall cause the body part to be removed
without unnecessary mutilation.
     (9) Neither the physician who attends the
decedent at death nor the physician who determines the time of the decedentÂ’s
death may participate in the procedures for removing or transplanting a body
part from the decedent.
     (10) A physician or technician may remove
from the body of a donor a donated body part that the physician or technician
is qualified to remove. [2007 c.681 §13]
     Note: See note under 97.951.
     97.973
Coordination of procurement and use of anatomical gifts. Each hospital in this state shall enter into
agreements or affiliations with procurement organizations for coordination of
procurement and use of anatomical gifts. [2007 c.681 §14]
     Note: See note under 97.951.
     97.974
Immunity of persons acting in accordance with ORS 97.951 to 97.982. (1) A person who acts in accordance with ORS
97.951 to 97.982 or with the applicable anatomical gift law of another state,
or attempts in good faith to do so, is not liable for the act in a civil
action, criminal prosecution or administrative proceeding.
     (2) Neither the person making an
anatomical gift nor the donorÂ’s estate is liable for any injury or damage that
results from the making or use of the gift.
     (3) In determining whether an anatomical
gift has been made, amended or revoked under ORS 97.951 to 97.982, a person may
rely upon representations of an individual listed in ORS 97.965 (1)(b), (c),
(d), (e), (f), (g) or (h) relating to the individualÂ’s relationship to the
donor or prospective donor unless the person knows that the representation is
untrue. [2007 c.681 §15]
     Note: See note under 97.951.
     97.975 [Formerly 97.930; renumbered 97.987 in 2007]
     97.976
Law governing validity of document of gift; presumption of validity. (1) A document of gift is valid if executed
in accordance with:
     (a) ORS 97.951 to 97.982;
     (b) The laws of the state or country where
it was executed; or
     (c) The laws of the state or country where
the person making the anatomical gift was domiciled, had a place of residence
or was a national at the time the document of gift was executed.
     (2) If a document of gift is valid under
this section, the law of this state governs the interpretation of the document
of gift.
     (3) A person may presume that a document of
gift or amendment of an anatomical gift is valid unless that person knows that
it was not validly executed or was revoked. [2007 c.681 §16]
     Note: See note under 97.951.
     97.977
Donor registry; duty of Department of Transportation to cooperate with donor
registry. (1)(a) The
Department of Human Services may allow an organ procurement organization to
establish a donor registry.
     (b) Only one donor registry may be
established within this state.
     (c) The donor registry shall comply with
subsections (3) and (4) of this section.
     (2) The Department of Transportation
shall:
     (a) Cooperate with a person who
administers the donor registry established under subsection (1) of this section
for the purpose of transferring to the donor registry all relevant information
regarding a donorÂ’s making, amending or revoking an anatomical gift.
     (b) When requested by the organ
procurement organization that has established the donor registry in this state,
the department shall electronically transfer to the organ procurement organization
the name, address, birthdate and donor designation listed on the driver license
or identification card of a person designated as a donor. The organ procurement
organization shall treat the information transferred from the department as
confidential and may use the information only to expedite the making of
anatomical gifts authorized by the donor.
     (3) The donor registry must:
     (a) Allow a donor or other person
authorized under ORS 97.955 to include on the donor registry a statement or
symbol that the donor has made, amended or revoked an anatomical gift;
     (b) Be accessible to a procurement
organization to allow the procurement organization to obtain relevant
information on the donor registry to determine, at or near death of the donor
or a prospective donor, whether the donor or prospective donor has made,
amended or revoked an anatomical gift; and
     (c) Be accessible for purposes of this
subsection seven days a week on a 24-hour basis.
     (4) Personally identifiable information on
the donor registry about a donor or prospective donor may not be used or
disclosed without the express consent of the donor, prospective donor or person
who made the anatomical gift for any purpose other than to determine, at or
near death of the donor or prospective donor, whether the donor or prospective
donor has made, amended or revoked an anatomical gift. [2007 c.681 §17]
     Note: See note under 97.951.
     97.978
Resolution of conflict between potential anatomical gift and advance directive. (1) As used in this section:
     (a) “Advance directive” has the meaning
given that term in ORS 127.505.
     (b) “Declaration” means a record signed by
a prospective donor specifying the circumstances under which a life support
system may be withheld or withdrawn from the prospective donor.
     (c) “Health care decision” means any
decision regarding the health care of a prospective donor.
     (2) If a prospective donor has a
declaration or advance directive and the terms of the declaration or advance
directive and the express or implied terms of a potential anatomical gift are
in conflict regarding administration of measures necessary to ensure the
medical suitability of a body part for transplantation, therapy, research or
education, the prospective donor and the prospective donorÂ’s attending physician
shall confer to resolve the conflict.
     (3) If the prospective donor is incapable
of resolving the conflict, one of the following persons shall act for the
prospective donor to resolve the conflict:
     (a) An agent acting under the prospective
donorÂ’s declaration or advance directive; or
     (b) If an agent is not named in the
declaration or advance directive or the agent is not reasonably available,
another person authorized by law, other than in ORS 97.951 to 97.982, to make
health care decisions for the prospective donor.
     (4) The conflict must be resolved as
expeditiously as possible.
     (5) Information relevant to the resolution
of the conflict may be obtained from the appropriate procurement organization
and any person authorized under ORS 97.965 to make an anatomical gift for the
prospective donor.
     (6) During the resolution of the conflict,
measures necessary to ensure the medical suitability of the body part may not
be withheld or withdrawn from the prospective donor unless withholding or
withdrawing the measures is medically indicated by appropriate end of life
care. [2007 c.681 §18]
     Note: See note under 97.951.
     97.979
Cooperation between medical examiner and procurement organization. (1) A medical examiner shall cooperate with
procurement organizations to maximize the opportunity to recover anatomical
gifts for the purpose of transplantation, therapy, research or education.
     (2) Subject to ORS 97.980, if a medical
examiner receives notice from a procurement organization that an anatomical
gift might be available or was made with respect to a decedent whose body is
under the jurisdiction of the medical examiner and a post-mortem examination is
going to be performed, the medical examiner or designee shall conduct a
post-mortem examination of the body or the body part in a manner and within a
period compatible with its preservation for the purposes of the gift.
     (3) A body part may not be removed from
the body of a decedent under the jurisdiction of a medical examiner for
transplantation, therapy, research or education unless the body part is the
subject of an anatomical gift. The body of a decedent under the jurisdiction of
the medical examiner may not be delivered to a person for research or education
unless the body is the subject of an anatomical gift. This subsection does not
preclude a medical examiner from performing the medicolegal investigation upon
the body or body parts of a decedent under the jurisdiction of the medical
examiner. [2007 c.681 §19]
     Note: See note under 97.951.
     97.980
Facilitation of anatomical gift from decedent whose body is under jurisdiction
of medical examiner. (1)
Upon request of a procurement organization, a medical examiner shall release to
the procurement organization the name, contact information and available medical
and social history of a decedent whose body is under the jurisdiction of the
medical examiner. If the decedentÂ’s body or body part is medically suitable for
transplantation, therapy, research or education, the medical examiner shall
release post-mortem examination results to the procurement organization. The
procurement organization may make a subsequent disclosure of the post-mortem
examination results or other information received from the medical examiner
only if relevant to transplantation, therapy, research or education.
     (2) The medical examiner may conduct a
medicolegal examination by reviewing all medical records, laboratory test
results, X-rays, other diagnostic results and other information that any person
possesses about a donor or prospective donor whose body is under the
jurisdiction of the medical examiner that the medical examiner determines may
be relevant to the investigation.
     (3) A person who has any information
requested by a medical examiner pursuant to subsection (2) of this section shall
provide that information as expeditiously as possible to allow the medical
examiner to conduct the medicolegal investigation within a period compatible
with the preservation of body parts for the purpose of transplantation,
therapy, research or education.
     (4) If an anatomical gift has been or
might be made of a body part of a decedent whose body is under the jurisdiction
of the medical examiner and a post-mortem examination is not required, or the
medical examiner determines that a post-mortem examination is required but that
the recovery of the body part that is the subject of an anatomical gift will
not interfere with the examination, the medical examiner and procurement
organization shall cooperate in the timely removal of the body part from the decedent
for the purpose of transplantation, therapy, research or education.
     (5) If an anatomical gift of a body part
from the decedent under the jurisdiction of the medical examiner has been or
might be made, but the medical examiner initially believes that the recovery of
the body part could interfere with the post-mortem investigation into the
decedentÂ’s cause or manner of death, the medical examiner shall consult with
the procurement organization, or physician or technician designated by the
procurement organization, about the proposed recovery. The procurement
organization shall provide the medical examiner with all of the information
that the procurement organization possesses that could relate to the decedentÂ’s
cause or manner of death.
     (6)(a) The medical examiner and the
procurement organization may enter into an agreement establishing protocols and
procedures governing their relationship when:
     (A) An anatomical gift of a body part from
a decedent whose body is under the jurisdiction of the medical examiner has
been or might be made; and
     (B) The medical examiner believes that the
recovery of the body part could interfere with the post-mortem investigation
into the decedentÂ’s cause or manner of death or the documentation or
preservation of evidence.
     (b) A decision regarding the recovery of
the body part from the decedent shall be made in accordance with the agreement.
     (c) The medical examiner and the
procurement organization shall evaluate the effectiveness of the agreement at
regular intervals but not less frequently than every two years.
     (7)(a) In the absence of an agreement
establishing protocols and procedures governing the relationship between the
medical examiner and the procurement organization when an anatomical gift of an
eye or tissue from a decedent whose body is under the jurisdiction of the
medical examiner has been or might be made, and following the consultation
under subsection (5) of this section, the medical examiner may delay the
recovery of the eye or tissue until after the collection of evidence or the
post-mortem examination, in order to preserve and collect evidence, to maintain
a proper chain of custody and to allow an accurate determination of the
decedentÂ’s cause or manner of death.
     (b) When a determination to delay the
recovery of an eye or tissue is made, every effort possible shall be made by
the medical examiner to complete the collection of evidence or the post-mortem
examination in a timely manner compatible with the preservation of the eye or
tissue for the purpose of transplantation, therapy, research or education.
     (c) The collection of evidence or the
post-mortem examination shall occur during the normal business hours of the
medical examiner and, when possible and practicable, at times other than the
normal business hours of the medical examiner.
     (d) If the collection of evidence or the
post-mortem examination occurs at times other than the normal business hours of
the medical examiner, the procurement organization shall reimburse the medical
examiner a mutually agreed-upon reasonable fee.
     (8) If the medical examiner denies or
delays recovery under subsection (6) or (7) of this section, the medical
examiner shall:
     (a) Explain in a record the specific
reasons for not allowing or for delaying recovery of the body part;
     (b) Include the specific reasons in the
records of the medical examiner; and
     (c) Provide a record with the specific
reasons to the procurement organization.
     (9) If the medical examiner allows
recovery of a body part, the procurement organization shall cooperate with the
medical examiner in any documentation of injuries and the preservation and
collection of evidence prior to and during the recovery of the body part and,
upon request of the medical examiner, shall cause the physician or technician
who removes the body part to provide the medical examiner with a record
describing the condition of the body part, a photograph and any other
information and observations that would assist in the post-mortem examination. [2007
c.681 §20]
     Note: See note under 97.951.
     97.981
Purchase or sale of body parts prohibited. (1) Except as otherwise provided in subsection (3) of this section, a
person commits the crime of purchase or sale of a body part for transplantation
or therapy if the person, for valuable consideration, knowingly purchases or
sells a body part for transplantation or therapy if removal of the body part
from an individual is intended to occur after the individualÂ’s death.
     (2) Purchase or sale of a body part for
transplantation or therapy is a Class C felony.
     (3) A person may charge a reasonable
amount for the removal, processing, preservation, quality control, storage,
transportation, implantation or disposal of a body part. [2007 c.681 §21]
     Note: See note under 97.951.
     97.982
Alteration of document of anatomical gift prohibited. (1) A person commits the crime of alteration
of a document of gift if the person, in order to obtain a financial gain,
intentionally falsifies, forges, conceals, defaces or obliterates a document of
gift, an amendment or revocation of a document of gift or a refusal.
     (2) Alteration of a document of gift is a
Class C felony. [2007 c.681 §22]
     Note: See note under 97.951.
     97.983
Relation to Electronic Signatures in Global and National Commerce Act. The provisions of ORS 97.951 to 97.982
modify, limit and supersede the Electronic Signatures in Global and National
Commerce Act, 15 U.S.C. 7001 et seq., but do not modify, limit or supersede
section 101(a) of the Electronic Signatures in Global and National Commerce
Act, 15 U.S.C. 7001, or authorize electronic delivery of any of the notices
described in section 103(b) of the Electronic Signatures in Global and National
Commerce Act, 15 U.S.C. 7003(b) as in effect January 1, 2008. [2007 c.681 §23]
     Note: 97.983 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 97 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
ANATOMICAL GIFTS
     97.984
Liability of executor who carries out anatomical gift. A person named executor who carries out an
anatomical gift of the testator made under the provisions of ORS 97.957 before
issuance of letters testamentary or under a will which is not admitted to
probate shall not be liable to the surviving spouse or next of kin for
performing acts necessary to carry out the gift of the testator. [Formerly
97.966]
     97.985
Transplants not covered by implied warranty. (1) The procuring, processing, furnishing, distributing, administering
or using of any part of a human body for the purpose of injecting, transfusing
or transplanting that part into a human body is not a sales transaction covered
by an implied warranty under the Uniform Commercial Code or otherwise.
     (2) As used in this section, “part” means
organs or parts of organs, tissues, eyes or parts of eyes, bones, arteries,
blood, other fluids and any other portions of a human body. [Formerly 97.968]
FEDERAL AID FOR
CEMETERIES
     97.987
Department of Transportation use of federal moneys for cemetery care. (1) In addition to any other duties of the
Department of Transportation, the department may apply for, accept and expend,
use or dispose of moneys and property received from the federal government for
the purpose of establishing any program of restoration, care, maintenance and
preservation of cemeteries. The department shall administer any funds received
pursuant to this section in accordance with the conditions established by the
federal government.
     (2) In carrying out the provisions of
subsection (1) of this section the Department of Transportation may contract or
consult with any nonprofit corporation established for the purpose of promoting
cemetery care and maintenance. [Formerly 97.975]
PENALTIES
     97.990
Penalties. (1) Violation of
ORS 97.160 is a misdemeanor and upon conviction is punishable by a fine not
exceeding $100.
     (2) Every officer, agent or employee of
this state or of any county, city or any other municipal subdivision thereof
who willfully neglects to notify the Demonstrator of Anatomy of the existence
of a body as required by ORS 97.170 to 97.210 or who refuses to deliver
possession of such body according to the provisions of ORS 97.170 to 97.210 or
who mutilates or permits any such body to be mutilated so that it is not
valuable for anatomical purposes or who refuses or neglects to perform any of
the duties enjoined upon the officer, agent or employee by ORS 97.170 to
97.210, is guilty of a misdemeanor and upon conviction is punishable by a fine
of not more than $50 for each offense.
     (3) Violation of ORS 97.520, 97.530 or
97.540 is a misdemeanor.
     (4) Any person, association or corporation
who operates a cemetery, mausoleum or columbarium contrary to the provisions of
ORS 97.020 to 97.040, 97.110 to 97.130, 97.145, 97.150, 97.220, 97.310 to
97.360 (1), 97.440, 97.510 to 97.560, 97.710, 97.720, 97.810, 97.820, 97.830
and 97.840 to 97.860 is guilty of maintaining a nuisance and, upon conviction,
is punishable by a fine not exceeding $500 or by imprisonment in the county
jail for not more than six months, or both.
     (5)(a) Violation of ORS 97.745 is a Class
C felony.
     (b) In addition to any other sentence
provided by law for criminal violations of ORS 97.745, the judge shall impose a
penalty not to exceed $10,000 on any person convicted of a criminal violation
of ORS 97.745.
     (6) In addition to the penalty of
subsection (5) of this section, any native Indian artifacts or human remains
taken by, or in possession of, any person sentenced under subsection (5) of
this section and all equipment used in the violation may be ordered forfeited
by the court in which conviction occurs, and may be disposed of as the court
directs. [Subsections (5) to (7) enacted as 1977 c.183 §12; subsection (8)
enacted as 1977 c.647 §4; 1979 c.420 §3; 1983 c.526 §6; 1985 c.198 §5;
subsections (5) to (7) renumbered 127.990 in 1991; subsection (5)(b) of 1995
Edition enacted as 1995 c.543 §3]
     97.992
Penalties for ORS 97.937.
Violation of any of the provisions of ORS 97.937 is punishable, upon
conviction, by a fine not exceeding $1,000, or imprisonment in the county jail
not exceeding one year, or both. [Formerly 128.990]
     Note: 97.992 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 97 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     97.994
Penalties for ORS 97.931, 97.933 and 97.941. Violation of any of the provisions of ORS 97.931, 97.933, 97.941 or
97.943 is punishable as a Class A misdemeanor. [Formerly 128.991; 2003 c.362 §9]
     Note: 97.994 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 97 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
_______________
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