As used in the Oregon Securities Law, unless the context otherwise requires:
(1) “Broker-dealer” means a person who engages, all or part of the
time, in effecting transactions in securities for the account of others
or for the person’s own account. “Broker-dealer” does not include:
(a) An issuer effecting sales in its own securities;
(b) The following institutions:
(A) A financial institution or trust company, as defined in ORS
706.008; or
(B) A financial holding company or a bank holding company, as
defined in ORS 706.008, holding an institution described in subparagraph
(A) of this paragraph; a savings and loan holding company as defined in
section 408 of the National Housing Act, 12 U.S.C. section 1730a, holding
an association described in subparagraph (A) of this paragraph; the
subsidiaries and affiliates of the financial holding company, bank
holding company or savings and loan holding company; or subsidiaries and
affiliates of institutions described in subparagraph (A) of this
paragraph, if the appropriate statutory regulatory authority is
exercising control over, or is regulating or supervising the person in
the sale of securities in accord with the purposes of the Oregon
Securities Law;
(c) A person who has no place of business in this state effecting
transactions in this state exclusively with broker-dealers;
(d) A person effecting sales exempted by ORS 59.035;
(e) A salesperson;
(f) A person effecting sales of securities owned by the person
registered for sale pursuant to ORS 59.065;
(g) A person effecting sales of securities exempted by ORS 59.025
(7);
(h) A person licensed as a mortgage banker or a mortgage broker
under ORS 59.840 to 59.980 when effecting sales of securities involving
real estate paper registered for sale pursuant to ORS 59.065; or
(i) A person designated by rule or order by the director.
(2) “Control” means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of
a person, whether through the ownership of voting securities, by
contract, or otherwise.
(3) “Director” means the Director of the Department of Consumer and
Business Services.
(4) “Federal covered investment adviser” means a person who is
registered as an investment adviser pursuant to section 203 of the
Investment Advisers Act of 1940, as amended.
(5) “Federal covered security” means any security that is a covered
security under section 18 of the Securities Act of 1933, as amended, and
for which such Act provides that the director may require filing of a
notice and payment of a fee.
(6) “Fraud,” “deceit” and “defraud” are not limited to common-law
deceit.
(7) “Guaranteed” means guaranteed as to payment of principal,
interest or dividends.
(8)(a) “Investment adviser representative” means any partner,
officer, director or person occupying a similar status or performing a
similar function, or other individual, except clerical or ministerial
personnel, who is employed by or associated with:
(A) A state investment adviser that is licensed or required to be
licensed in this state and who does any of the following:
(i) Makes any recommendations or otherwise renders advice regarding
securities;
(ii) Manages accounts or portfolios of clients;
(iii) Determines which recommendation or advice regarding
securities should be given;
(iv) Solicits, offers or negotiates for the sale of or sells
investment advisory services; or
(v) Supervises employees acting under this subparagraph; or
(B) A federal covered investment adviser, subject to the
limitations of section 203A of the Investment Advisers Act of 1940, as
amended, as the director may designate by rule or order.
(b) “Investment adviser representative” does not include a person
designated by rule or order of the director.
(9) “Issuer” means a person who issues, proposes to issue or has
issued a security and includes an issuer to be formed. With respect to
certificates of deposit, voting-trust certificates or collateral-trust
certificates, or with respect to certificates of interest or shares in an
unincorporated investment trust not having a board of directors or
persons performing similar functions or of the fixed, restricted
management or unit type, the “issuer” is the person or persons performing
the acts and assuming the duties of depositor or manager pursuant to the
provisions of the trust or other instrument or agreement under which the
security is issued.
(10) “License” means a license as provided under the Oregon
Securities Law.
(11) “Mortgage banker” means a mortgage banker as defined in ORS
59.840.
(12) “Mortgage broker” means a mortgage broker as defined in ORS
59.840.
(13) “Offer” or “offer to sell” includes every attempt or offer to
dispose of, or solicitation of an offer to buy, a security or interest in
a security for value. Every sale or offer of a warrant or right to
purchase or subscribe to another security of the same or another issuer,
as well as every sale or offer of a security which gives the holder a
present or future right or privilege to convert into another security of
the same or another issuer, is considered to include an offer of the
other security.
(14) “Person” includes an individual, a joint venture, a
partnership, a cooperative, a limited liability company, an association,
a joint stock company, a corporation, a trust, an unincorporated
organization or a government or political subdivision of a government.
(15) “Real estate paper” means any obligation secured or
purportedly secured by an interest in real property. Real estate paper
includes, but is not limited to, mortgage-backed securities,
collateralized mortgage obligations, and real estate mortgage investment
conduits.
(16) “Registered” means registered as provided in the Oregon
Securities Law.
(17)(a) “Sale” or “sell” includes every contract of sale of,
contract to sell, or disposition of, a security or interest in a security
for value. Any security given or delivered with, or as a bonus on account
of, a purchase of securities or any other thing shall constitute a part
of the subject of the purchase and shall have been offered and sold for
value. A gift of assessable stock by or for any issuer or promoter shall
constitute a sale.
(b) For purposes of the authority of the director under ORS 59.245
and 59.255, the terms “sale” and “sell” include the terms “offer” and
“offer to sell.”
(c) “Sale” and “sell” do not include:
(A) A bona fide pledge or loan of securities;
(B) A bona fide security dividend, whether the corporation
distributing the dividend is the issuer of the security or not, if
nothing of value is given by the recipients for the dividend other than
payments in connection with the elimination of fractional shares; or
(C) An act incident to a judicially approved reorganization in
which a security is issued in exchange for one or more outstanding
securities, claims or property interests, or partly in such exchange and
partly for cash.
(18)(a) “Salesperson” means a person, other than a broker-dealer,
who represents or purports to represent a broker-dealer, issuer or owner
of securities in effecting or attempting to effect in any manner
transactions in securities.
(b) “Salesperson” does not include:
(A) A person who represents an issuer in effecting sales in a
security exempted by ORS 59.025;
(B) A person who represents an issuer in effecting sales exempted
by ORS 59.035;
(C) A person who represents an issuer in effecting sales with
existing partners or directors of the issuer, if no commission or other
remuneration is paid or given directly or indirectly for soliciting any
person in this state;
(D) An employee of an institution or organization described in
subsection (1)(b) of this section to the extent the employee is not a
dual employee of the institution and a broker-dealer;
(E) A person effecting transactions in this state limited to those
transactions described in section 15(h)(2) and (3) of the Securities
Exchange Act of 1934, as amended; or
(F) A person designated by rule or order by the director.
(c) A person who is a partner, director or officer of a
broker-dealer, issuer or owner of securities, or a person who occupies a
similar status or performing similar functions, is a “salesperson” only
if the person otherwise comes within this definition.
(19)(a) “Security” means a note, stock, treasury stock, bond,
debenture, evidence of indebtedness, certificate of interest or
participation in a pension plan or profit-sharing agreement,
collateral-trust certificate, preorganization certificate or
subscription, transferable share, investment contract, voting-trust
certificate, certificate of deposit for a security, certificate of
interest or participation in an oil, gas, or mining title or lease or in
payments out of production under such title or lease, real estate paper
sold by a broker-dealer, mortgage banker, mortgage broker or a person
described in subsection (1)(b) of this section to persons other than
persons enumerated in ORS 59.035 (4), or, in general, any interest or
instrument commonly known as a “security,” or any certificate of interest
or participation in, temporary or interim certificates for, receipt for,
guarantee of, or warrant or right to subscribe to or purchase any of the
foregoing.
(b) “Security” does not include:
(A) An insurance or endowment policy or annuity contract under
which an insurance company promises to pay a fixed or variable sum of
money either in a lump sum or periodically for life or some other
specified period;
(B) A beneficial interest in a voluntary inter vivos trust unless
the trust is created solely for the purpose of voting or is part of an
attempt to evade the provisions of ORS 59.005 to 59.451; or
(C) A beneficial interest in a testamentary trust.
(20)(a) “State investment adviser” means a person who, for
compensation:
(A) Engages all or part of the time of the person, in this state,
in the business of advising others, either directly or by mail or through
publication or writing, as to the value of securities or as to the
advisability of investing in, purchasing or selling securities;
(B) Engages all or part of the time of the person, in this state,
in the business of managing an investment or trading account in
securities for other persons; or
(C) Issues or promulgates, as part of a regular business in this
state, analyses or reports concerning securities.
(b) “State investment adviser” does not include:
(A) An investment adviser representative;
(B) An institution or organization described in subsection (1)(b)
of this section;
(C) A licensed broker-dealer whose performance of investment
advisory services is solely incidental to the conduct of business as a
broker-dealer and who receives no special compensation for such services;
(D) A salesperson licensed to a broker-dealer whose performance of
investment advisory services is solely incidental to that person’s
activities as a salesperson and who receives no special compensation for
such services;
(E) A publisher of or contributor to a bona fide newspaper,
newsmagazine, investment manual or service, or business or financial
publication of general, regular and paid circulation;
(F) A person whose only clients are federal covered investment
advisers, state investment advisers, broker-dealers, mortgage bankers,
mortgage brokers, banks, savings institutions or trust companies,
insurance companies, investment companies as defined in the Investment
Company Act of 1940, as amended, pension or profit-sharing trusts, or
other financial institutions or institutional buyers, whether acting for
themselves or as trustees;
(G) A duly licensed lawyer, engineer or accountant whose
performance of investment advisory services is solely incidental to the
practice of the profession;
(H) A person whose advice, analyses or reports relate only to
securities exempted by ORS 59.025 (1);
(I) A federal covered investment adviser in compliance with ORS
59.165 (7);
(J) A person, advising others, that has no place of business in
this state and during the preceding 12-month period has had fewer than
six clients, other than those persons included in subparagraph (F) of
this paragraph, who are residents of this state; or
(K) Such other persons as the director may by rule or order
designate. [1967 c.537 §3; 1971 c.624 §1; 1971 c.641 §1; 1973 c.366 §1;
1975 c.491 §1; 1985 c.349 §1; 1987 c.414 §§69, 69a; 1987 c.603 §1; 1989
c.197 §1; 1991 c.5 §18; 1993 c.158 §1; 1993 c.508 §27; 1993 c.744 §13;
1995 c.93 §26; 1995 c.622 §11; 1997 c.631 §375; 1997 c.772 §1; 1999 c.53
§1; 1999 c.315 §1; 2001 c.104 §14; 2001 c.377 §39a; 2003 c.270 §1](1) The Director of the Department of
Consumer and Business Services by rule shall establish procedures for
notice filings required of federal covered investment advisers as well as
procedures for licensing broker-dealers, state investment advisers,
investment adviser representatives and salespersons. The director may
coordinate notice filings or licensing with any national registration,
licensing or notice filing system.
(2) The director may require an applicant for a license as a
broker-dealer or state investment adviser, including the applicant’s
partners, directors, officers or any person occupying a similar status or
performing similar functions, and any person directly or indirectly
controlling such applicant and a person for whom application for a
license as a salesperson or investment adviser representative is made, to
pass an examination on such person’s knowledge and understanding of the
Oregon Securities Law and the securities business. The director may
establish by rule a fee for the examination.
(3) The director may make such further examination of the applicant
and the applicant’s affairs as the director deems advisable and may
require by rule or order that the applicant publish an announcement of
the application in such manner as the director may specify.
(4)(a) Except as otherwise provided in paragraph (b) or (c) of this
subsection, every applicant for a license as a broker-dealer or state
investment adviser shall file with the director a corporate surety bond
or irrevocable letter of credit issued by an insured institution as
defined in ORS 706.008 or such other security as the director may approve
by rule running to the State of Oregon in a sum to be established by rule
of the director, but in no event more than $100,000.
(b) Licensed broker-dealers subject to section 15 of the Securities
Exchange Act of 1934, as amended, are not required to comply with
paragraph (a) of this subsection, nor are such licensed broker-dealers
required to comply with any net capital requirements imposed by the
director by rule or otherwise.
(c) A licensed state investment adviser who has its principal place
of business in a state other than this state shall be exempt from the
requirements of paragraph (a) of this subsection and shall be further
exempt from any net capital requirements imposed by the director by rule
or otherwise, provided that any such licensed state investment adviser is
registered or licensed as a state investment adviser in the state where
it maintains its principal place of business and is in compliance with
such state’s bonding or net capital requirements.
(5)(a) Subject to paragraph (b) of this subsection, if the
application, surety bond, irrevocable letter of credit or other security
and fees are in order and the director is satisfied that the application
should not be denied upon one or more of the grounds specified in ORS
59.205 to 59.225, the director shall license the broker-dealer, state
investment adviser, salesperson or investment adviser representative.
(b) If the director determines under ORS 59.205 or 59.215 that a
condition or restriction should apply to the license, the director, at
the time the license is issued, shall specify in writing to the licensee
the condition or restriction applicable to the license.
(6) A licensee under ORS 59.165 shall amend the license application
when there are material changes in the information contained in the
original application.
(7) An applicant for or a person holding a license issued under ORS
59.005 to 59.451 may file with the director a trade name, as defined in
ORS 647.005, or an assumed business name, as defined in ORS 648.005. The
trade name or assumed business name shall be filed in a form and manner
established by rule by the director. If the application is complete and
the fee described in subsection (8) of this section is paid, the director
shall issue an order authorizing the licensee to operate under the trade
name or assumed business name. The order shall remain in effect until
canceled, suspended or revoked.
(8) The director shall charge and collect fees for:
(a) An application for a license as a broker-dealer or state
investment adviser;
(b) An application to renew a license as a broker-dealer or state
investment adviser;
(c) An application for a license as a salesperson;
(d) An application to renew a license as a salesperson;
(e) An application for a license as an investment adviser
representative;
(f) An application to renew a license as an investment adviser
representative;
(g) A notice filing for a federal covered investment adviser;
(h) A notice filing renewal for a federal covered investment
adviser; and
(i) A filing for use of a trade name or an assumed business name.
(9)(a) The director shall set the fees described in subsection (8)
of this section in an amount that the director determines is equal as
nearly as possible to the national midpoint for similar fees charged by
all other state regulatory agencies within the United States responsible
for regulating securities.
(b) The director may adjust the amount of a fee described in
subsection (8) of this section every two years to reflect changes in the
national midpoint for a similar fee.
(c) In determining the national midpoint for similar fees under
this section, the director may consider national midpoints determined by
the North American Securities Administrators Association, the National
Association of Securities Dealers or the United States Securities and
Exchange Commission.
(10) Except as provided in this subsection, the fees under this
section are not refundable. The director may provide for a method of
equitably adjusting the payment of fees for broker-dealers, federal
covered investment advisers, state investment advisers, salespersons and
investment adviser representatives when the director determines that the
changes in filing periods and expiration dates under ORS 59.185 are not
equitable for the person making the payment. [1967 c.537 §18; 1969 c.137
§4; 1971 c.624 §3; 1985 c.349 §17; 1987 c.603 §11; 1989 c.197 §9; 1991
c.331 §16; 1993 c.508 §31; 1997 c.631 §376; 1997 c.772 §16; 1999 c.53 §3;
2001 c.32 §2; 2003 c.270 §5; 2003 c.785 §4](1) Every license of a broker-dealer or state investment
adviser expires one year after the date of issuance unless the Director
of the Department of Consumer and Business Services establishes a
different expiration date for purposes of coordination with any national
registration or licensing system.
(2)(a) Every license of an issuer’s or owner’s salesperson expires
when the securities are no longer authorized for sale or one year after
the date of issuance, whichever is sooner.
(b) Unless the director establishes a different expiration date for
the purposes of coordination with any national registration or licensing
system, every license of a salesperson licensed to a broker-dealer and
every license of an investment adviser representative licensed to a state
investment adviser expires on the same date that the license of the
broker-dealer or state investment adviser expires.
(c) Unless the director establishes a different expiration date for
the purposes of coordination with any national registration or licensing
system, every license of an investment adviser representative licensed on
behalf of a federal covered investment adviser expires the earlier of one
year after the date of issuance or the date the notice of the federal
covered investment adviser expires.
(3) The director by rule shall establish procedures for renewing
licenses of broker-dealers, state investment advisers, investment adviser
representatives and salespersons, and for the annual renewal of notice
filings made on behalf of federal covered investment advisers.
(4) If there is a change in the partners, directors, officers,
persons occupying similar positions or performing similar functions, or
persons directly or indirectly controlling a broker-dealer or state
investment adviser, written notification of such change shall promptly be
filed with the director. No fee shall be required for such notification.
An examination may be required of any such individual who is newly
connected with or interested in the licensee. [1967 c.537 §19 (1), (2),
(3); 1969 c.137 §5; 1985 c.349 §18; 1987 c.603 §12; 1989 c.197 §10; 1993
c.508 §32; 1997 c.772 §17; 1999 c.59 §14; 2003 c.270 §6](1) Subject to the provisions of section 15 of the Securities
Exchange Act of 1934, as amended, and section 222 of the Investment
Advisers Act of 1940, as amended, every broker-dealer, state investment
adviser, investment adviser representative and salesperson shall make and
keep such accounts, correspondence, memoranda, papers, books and other
records as the Director of the Department of Consumer and Business
Services by rule or order prescribes. All such records of state
investment advisers or investment adviser representatives maintained in
this state shall be preserved for three years unless the director by rule
prescribes otherwise. The director may examine all such records within or
without this state at any reasonable time or times and may, without
subpoena require the production of such records at the office of the
director as often as is reasonably necessary and, in any event, during
consideration of any application for licensing or during any proceeding
under ORS 59.205 to 59.225.
(2) Subject to the provisions of section 15 of the Securities
Exchange Act of 1934, as amended, and section 222 of the Investment
Advisers Act of 1940, as amended, every broker-dealer, state investment
adviser, investment adviser representative and salesperson shall file
with the director such financial reports or other information as the
director by rule or order may require. Licensed broker-dealers, state
investment advisers, investment adviser representatives and salespersons
shall promptly amend any document filed with the director which is or
becomes incomplete or inaccurate in any material respect. Federal covered
investment advisers shall promptly amend any document otherwise required
to be filed with the director when the federal covered investment adviser
is required to file an amendment with the United States Securities and
Exchange Commission.
(3) A state investment adviser that has its principal place of
business in a state other than this state, and the investment adviser
representatives of such a state investment adviser, shall be exempt from
the requirements of subsection (1) of this section provided that the
state investment adviser is registered as a state investment adviser in
the state where it has its principal place of business and is in
compliance with all such state’s requirements relating to accounts and
records.
(4)(a) Every broker-dealer and salesperson of such broker-dealer
shall file with the director only such financial reports or other
information as is otherwise required to be filed with the United States
Securities and Exchange Commission pursuant to the Securities Exchange
Act of 1934, as amended.
(b) Every state investment adviser that has its principal place of
business in a state other than this state, and the investment adviser
representatives of the state investment adviser, shall file with the
director only the financial reports or other information that is required
by the state in which the state investment adviser maintains its
principal place of business, provided the state investment adviser is
licensed in such state and is in compliance with all of such state’s
reporting requirements. [1967 c.537 §19(4), (5); 1985 c.349 §20; 1987
c.603 §13; 1989 c.197 §11; 1993 c.508 §33; 1997 c.772 §18]Except as provided in ORS 59.215,
the Director of the Department of Consumer and Business Services may by
order deny, suspend or revoke, or impose conditions or restrictions on, a
license of a person as a broker-dealer, state investment adviser,
investment adviser representative or salesperson if the director finds
that the applicant or licensee:
(1) Is insolvent, either in the sense that the liabilities of the
applicant or licensee exceed the assets of the applicant or licensee or
that the applicant or licensee cannot meet the obligations of the
applicant or licensee as they mature, or is in such financial condition
that the applicant or licensee cannot continue in business with safety to
the customers of the applicant or licensee.
(2) Has engaged in dishonest, fraudulent or illegal practices or
conduct in any business or profession or unfair or unethical practices or
conduct in connection with the purchase or sale of any security.
(3) Has willfully or repeatedly violated or failed to comply with
any provision of the Oregon Securities Law, any condition or restriction
imposed on a license or any rule or order of the director.
(4) Has been convicted of a misdemeanor an essential element of
which is fraud or of a felony.
(5) Is not qualified to conduct a securities business on the basis
of such factors as training, experience and knowledge of the securities
business.
(6) Has filed an application for a license which as of the date the
license was issued, or as of the date of an order conditioning,
restricting, denying, suspending or revoking a license, was incomplete in
any material respect or contained any statement which was, in light of
the circumstances under which it was made, false or misleading with
respect to any material fact.
(7) Has failed to account to persons interested for all money or
property received.
(8) Has not delivered after a reasonable time, to persons entitled
thereto, securities held or to be delivered.
(9) Is permanently or temporarily enjoined by a court of competent
jurisdiction from engaging in or continuing any conduct or practice
involving any aspect of the securities business.
(10) Is the subject of an order of the director conditioning,
restricting, denying, suspending or revoking a license as a
broker-dealer, state investment adviser, investment adviser
representative or salesperson.
(11) Is the subject of an order of the director under:
(a) ORS chapter 645 involving a violation of any provision of the
Oregon Commodity Code or any rule or order of the director adopted or
entered under ORS chapter 645; or
(b) ORS 59.840 to 59.980 involving a violation of any provision of
ORS 59.840 to 59.980 or any rule or order of the director adopted or
entered under ORS 59.840 to 59.980.
(12) Is the subject of any of the following orders that are
currently effective and were issued within the last five years:
(a) An order by the securities agency or administrator of another
state or Canadian province or territory, or by the Securities and
Exchange Commission, entered after notice and opportunity for hearing,
denying, suspending or revoking the person’s registration or license as a
broker-dealer, federal covered investment adviser, state investment
adviser, investment adviser representative or salesperson, or the
substantial equivalent of those terms as defined in the Oregon Securities
Law;
(b) A suspension or expulsion from membership in or association
with a member of a self-regulatory organization registered under the
Securities Exchange Act of 1934, as amended, the Commodity Exchange Act
or the Investment Advisers Act of 1940, as amended;
(c) A United States Postal Service fraud order;
(d) A cease and desist order entered after notice and opportunity
for hearing by the director, the securities agency or administrator of
another state or a Canadian province or territory, the Securities and
Exchange Commission or the Commodity Futures Trading Commission; or
(e) An order by the Commodity Futures Trading Commission denying,
suspending or revoking registration under the Commodity Exchange Act.
(13) Has failed, reasonably to supervise the salespersons or
investment adviser representatives of the applicant or licensee.
(14) Has failed to comply with the requirements of ORS 59.195 to
make and keep records prescribed by rule or order of the director, to
produce such records required by the director or to file any financial
reports or other information the director by rule or order may require.
[1967 c.537 §20(1); 1969 c.137 §6; 1985 c.349 §21; 1987 c.603 §14; 1989
c.197 §12; 1993 c.508 §34; 1997 c.772 §19; 2001 c.32 §3; 2003 c.270 §7]The Director of the Department of Consumer and
Business Services may enter an order against the applicant or licensee
under ORS 59.205 if any partner, officer or director of a broker-dealer
or state investment adviser, any person occupying a similar status or
performing similar functions, or any person directly or indirectly
controlling the broker-dealer or state investment adviser has been guilty
of any act or omission which would be cause for conditioning,
restricting, denying, suspending or revoking the license of an individual
broker-dealer, state investment adviser or salesperson, except as follows:
(1) This section shall not apply to any issuer of a federal covered
security, a federal covered investment adviser or to ORS 59.205 (1).
(2) The director may not enter an order against a broker-dealer or
state investment adviser on the basis of the lack of qualification under
ORS 59.205 (5) of any person other than:
(a) The broker-dealer or state investment adviser if the
broker-dealer or state investment adviser is an individual; or
(b) A salesperson of the broker-dealer or investment adviser
representative of the state investment adviser.
(3) The director may not enter an order solely on the basis of lack
of experience if the applicant or licensee is qualified by training or
knowledge or both.
(4) If the director finds that an applicant for an initial license
or a license renewal as a broker-dealer is not qualified as a state
investment adviser, the director may condition the applicant’s license as
a broker-dealer upon its not transacting business in this state as a
state investment adviser. [1967 c.537 §20(2); 1985 c.349 §22; 1987 c.603
§15; 1989 c.197 §13; 1993 c.508 §35; 1997 c.772 §20; 2001 c.32 §4](1) If the Director of
the Department of Consumer and Business Services finds that an applicant
or licensee has ceased to do business as a broker-dealer, state
investment adviser, investment adviser representative or salesperson, or
has failed to maintain a bond or other security required by ORS 59.175
(4) or is subject to an adjudication of mental incompetence or to the
control of a committee, conservator or guardian, or cannot be located
after reasonable search, the director may cancel the license or
application.
(2)(a) A broker-dealer, state investment adviser, investment
adviser representative or salesperson may withdraw a license by filing an
application to withdraw. Unless the director determines that the license
should be suspended or revoked, the director shall allow the withdrawal
subject to any conditions, limitations and restrictions the director may
impose.
(b) A federal covered investment adviser may terminate a notice
filing pursuant to ORS 59.165 (7) by providing the director with written
notice of such termination in accordance with the procedures established
by the director.
(3) When an investment adviser representative of a federal covered
investment adviser begins or terminates an association with such federal
covered investment adviser, the federal covered investment adviser or
investment adviser representative shall promptly notify the director in
writing in accordance with the procedures established by the director.
(4) The suspension of a license of a broker-dealer or state
investment adviser shall suspend the license of any salesperson of the
broker-dealer or the license of any investment adviser representative of
the state investment adviser. The revocation, cancellation, withdrawal or
expiration of a license of a broker-dealer or state investment adviser
shall cancel the license of any salesperson of the broker-dealer or the
license of any investment adviser representative of the state investment
adviser.
(5) The suspension of a registration of securities suspends the
license of any salesperson licensed to the issuer or owner of the
securities. The revocation, cancellation, withdrawal or expiration of the
registration of securities cancels the license of any salesperson
licensed to the issuer or owner of the securities. [1967 c.537 §20(3),
(4), (5); 1985 c.349 §23; 1987 c.603 §16; 1989 c.197 §14; 1993 c.508 §36;
1997 c.772 §21](Powers of Director)
Subject to section 18 of the Securities Act of 1933, as amended, section
15 of the Securities Exchange Act of 1934, as amended, and sections 203A
and 222 of the Investment Advisers Act of 1940, as amended, the Director
of the Department of Consumer and Business Services shall have general
supervision and control over all issuers, registrants of securities,
broker-dealers, federal covered investment advisers, state investment
advisers, investment adviser representatives and salespersons residing or
doing business in this state and engaged in any activity with respect to
securities or any aspect of the securities business. All such persons and
their records and everything connected with their activities shall be
subject to examination by the director at any time. The provisions of
this section and of any section of the Oregon Securities Law relating to
examinations shall extend to any person who should have been licensed as
a broker-dealer, state investment adviser, investment adviser
representative or salesperson, any person exempted by rule from those
definitions or any person whose license has expired or has been
withdrawn, canceled, suspended or revoked. The director may collect from
each such person the actual expenses incurred in that examination. [1967
c.537 §21; 1985 c.349 §24; 1987 c.603 §17; 1989 c.197 §15; 1993 c.508
§37; 1997 c.772 §22]The Director of the Department of Consumer and Business
Services:
(1) May make such public or private investigations within or
outside this state as the director deems necessary to determine whether a
person has violated or is about to violate any provision of the Oregon
Securities Law or any rule or order of the director, or to aid in the
enforcement of the Oregon Securities Law or in the formulation of rules
and forms thereunder;
(2) May require or permit a person to file a statement in writing,
under oath or otherwise as the director determines, as to all the facts
and circumstances concerning the matter to be investigated;
(3) May publish information concerning any violation of the Oregon
Securities Law or any rule or order of the director; and
(4) If the director has reason to believe that any person has
engaged, is engaging or is about to engage in any violation of the Oregon
Securities Law, the director may issue an order, subject to ORS 59.295,
directed to the person to cease and desist from the violation or
threatened violation. [1967 c.537 §22; 1973 c.366 §6; 1999 c.315 §2](1) Whenever it appears to the
Director of the Department of Consumer and Business Services that a
person has engaged, is engaging or is about to engage in an act or
practice constituting a violation of any provision of the Oregon
Securities Law or any rule or order of the director, the director may
bring suit in the name and on behalf of the State of Oregon in the
circuit court of any county of this state to enjoin the acts or practices
and to enforce compliance with the Oregon Securities Law or such rule or
order. Upon a proper showing, a permanent or temporary injunction,
restraining order or writ of mandamus shall be granted.
(2) The court may fine the person against whom the order is entered
not more than $20,000 for each violation, which shall be entered as a
judgment and paid to the General Fund of the State Treasury. Each
violation is a separate offense. In the case of a continuing violation,
each day’s continuance is a separate violation, but the maximum penalty
for any continuing violation shall not exceed $100,000. If the court
finds that the defendant has violated any provision of the Oregon
Securities Law or any such rule or order, the court may appoint a
receiver, who may be the director, for the defendant or the defendant’s
assets. The court may not require the director to post a bond.
(3) The court may award reasonable attorney fees to the director if
the director prevails in an action under this section. The court may
award reasonable attorney fees to a defendant who prevails in an action
under this section if the court determines that the director had no
objectively reasonable basis for asserting the claim or no reasonable
basis for appealing an adverse decision of the trial court.
(4) The director may include in any action authorized by this
section:
(a) A claim for restitution or damages under ORS 59.115, 59.127 or
59.137, on behalf of the persons injured by the act or practice
constituting the subject matter of the action. The court shall have
jurisdiction to award appropriate relief to such persons, if the court
finds that enforcement of the rights of such persons by private civil
action, whether by class action or otherwise, would be so burdensome or
expensive as to be impractical; or
(b) A claim for disgorgement of illegal gains or profits derived.
Any recovery under this paragraph shall be turned over to the General
Fund of the State Treasury unless the court requires other disposition.
(5) The provisions of this section do not apply to:
(a) A failure to file a notice and pay a fee pursuant to ORS 59.049
(1), (2) or (3);
(b) A failure to file a notice and pay a fee pursuant to ORS 59.165
(7);
(c) A failure to pay a fee pursuant to ORS 59.175 (8); or
(d) A violation of any rule adopted by the director pursuant to ORS
59.049 (1), (2) or (3), 59.165 (7) or 59.175 (8). [1967 c.537 §23; 1971
c.394 §1; 1975 c.300 §4; 1981 c.897 §10; 1985 c.349 §26; 1995 c.696 §11;
1997 c.772 §23; 1999 c.53 §4; 1999 c.315 §3; 2003 c.631 §5](1) When the
Director of the Department of Consumer and Business Services ascertains
that the assets or capital of any broker-dealer not otherwise registered
under section 15 of the Securities Exchange Act of 1934, as amended, or
state investment adviser that has its principal place of business in this
state are impaired, or that such person’s affairs are in an unsound
condition, the director may take possession of all the property, business
and assets of such person located in this state and retain possession of
them pending the further proceedings specified in this section. The
director shall inventory the assets and liabilities of such person. The
director shall file one copy of the inventory in the office of the
director and one copy in the office of the clerk of the circuit court of
the county in which the principal place of business of such person is
located, and shall mail one copy to each shareholder or partner of such
person at the last-known address of the shareholder or partner. The clerk
of the court shall file the inventory as a pending proceeding and give it
a case number.
(2) If any person refuses to permit the director to take such
possession, the director may apply to the circuit court of the county in
which the principal place of business of such person is located for an
order appointing a receiver, who may be the director, to take such
possession.
(3) If the deficiency in assets or capital has not been made good
or the unsound condition remedied within 60 days from the date when the
director or receiver took possession, the property, business and assets
of such person located in this state shall be liquidated. If a receiver
has not been appointed, the director shall apply for such appointment by
the court in which the inventory was filed. The liquidation shall proceed
as provided by law for liquidation of a private corporation in
receivership.
(4) The expenses of the receiver and compensation of counsel, as
well as all expenditures required in the liquidation proceedings, shall
be fixed by the director, subject to the approval of the court, and, upon
certification by the director, shall be paid out of the funds in the
hands of the director as such receiver. [1967 c.537 §24; 1987 c.603 §18;
1993 c.508 §38; 1997 c.772 §24; 2003 c.576 §186] It is not necessary to negative any of the
exemptions or classifications provided in the Oregon Securities Law in a
complaint, action, information, indictment or other writ or proceeding
laid or brought under the Oregon Securities Law; and the burden of proof
of an exemption or classification shall be upon the party claiming the
benefit of such exemption or classification. [1967 c.537 §25] (1) In accordance with this
section and ORS chapter 183 the Director of the Department of Consumer
and Business Services may from time to time make, amend and rescind such
rules as are necessary to carry out the provisions of the Oregon
Securities Law. The director may classify securities, persons and matters
within the jurisdiction of the director, and prescribe different
requirements for different classes.
(2) No rule may be made, amended or rescinded unless the director
finds that the action is necessary or appropriate in the public interest
or for the protection of investors and consistent with the purposes
fairly intended by the provisions of the Oregon Securities Law.
(3) Except as provided in subsection (4) of this section, all
financial statements required by the Oregon Securities Law shall be
prepared in accordance with generally accepted accounting principles. The
director may by rule prescribe:
(a) The form and content of financial statements required under the
Oregon Securities Law;
(b) The circumstances under which consolidated financial statements
shall be filed; and
(c) Whether any required financial statements shall be certified by
independent or certified public accountants.
(4) Subsection (3) of this section does not apply to any
broker-dealer that is subject to the financial reporting requirements of
the Securities Exchange Act of 1934, as amended, to any federal covered
investment adviser or to any state investment adviser that has its
principal place of business outside this state and is registered with the
state in which the state investment adviser’s principal place of business
is located. [1967 c.537 §28; 1987 c.603 §19; 1997 c.772 §25] (1) Except as provided
in ORS 183.745, upon the entry of an order under the Oregon Securities
Law, the Director of the Department of Consumer and Business Services
shall promptly give appropriate notice of the order as provided in this
subsection. The notice shall state that a hearing will be held on the
order if a written demand for hearing is filed with the director within
20 days after the date of service of the order. The notice shall be given
to:
(a) The issuer and applicant or registrant affected thereby with
respect to orders entered pursuant to ORS 59.085 and 59.105;
(b) The applicant or licensee and any investment adviser
representative or salesperson affected thereby with respect to orders
entered pursuant to ORS 59.205; or
(c) All interested persons with respect to orders entered pursuant
to any other provision of the Oregon Securities Law, except ORS 59.095.
(2) If timely demand for a hearing is filed by a person entitled to
notice of the order, the director shall hold a hearing on the order as
provided by ORS chapter 183. In the absence of a timely demand for a
hearing, no person shall be entitled to judicial review of the order.
(3) After the hearing, the director shall enter a final order
vacating, modifying or affirming the order.
(4) The director may enter a final order revoking a license or
registration notwithstanding the fact that the license or registration
has expired, if the initial order of revocation was issued prior to
expiration of the license or registration. [1967 c.537 §26; 1985 c.349
§27; 1987 c.603 §22; 1989 c.197 §16; 1991 c.734 §2d; 1997 c.772 §26] (1) A person aggrieved by an
order of the Director of the Department of Consumer and Business Services
which has been the subject of a timely application for hearing before the
director shall be entitled to judicial review of the order under ORS
chapter 183.
(2) A judgment of a reviewing court under ORS chapter 183 may not
bar the director from thereafter vacating or modifying an order involved
in the proceeding for review, or entering any new order, for a proper
cause which was not decided by the reviewing court. [1967 c.537 §27; 2003
c.576 §321] (1) For
the purpose of an investigation or proceeding under the Oregon Securities
Law, the Director of the Department of Consumer and Business Services may
administer oaths and affirmations, subpoena witnesses, compel their
attendance, take evidence and require the production of books, papers,
correspondence, memoranda, agreements or other documents or records which
the director deems relevant or material to the inquiry. Each witness who
appears before the director under a subpoena shall receive the fees and
mileage provided for witnesses in ORS 44.415 (2).
(2) If a person fails to comply with a subpoena so issued or a
party or witness refuses to testify on any matters, the judge of the
circuit court or of any county, on the application of the director, shall
compel obedience by proceedings for contempt as in the case of
disobedience of the requirements of a subpoena issued from such court or
a refusal to testify therein. [1967 c.537 §29; 1989 c.980 §5a]
(1) The Director of the Department of Consumer and Business Services
shall furnish to any person, upon payment of a fee established by rule,
copies (certified if requested) of any document which is a matter of
public record. In a proceeding or prosecution under the Oregon Securities
Law, a copy so certified shall be prima facie evidence of the contents of
the entry or document certified.
(2) A certificate of the director as to compliance or noncompliance
with licensing or registration provisions of the Oregon Securities Law
shall be taken and received in a civil or criminal proceeding in this
state as prima facie evidence of the facts stated in the certificate.
[1967 c.537 §30; 1987 c.603 §23; 1989 c.197 §17](Miscellaneous Provisions)(1) ORS 59.055, 59.115,
59.125, 59.145 and 59.165 (1) apply to persons who sell or offer to sell
when:
(a) An offer to sell is made in this state; or
(b) An offer to buy is made and accepted in this state.
(2) ORS 59.145 and 59.165 (1) apply to persons who buy or offer to
buy when:
(a) An offer to buy is made in this state; or
(b) An offer to sell is made and accepted in this state.
(3) ORS 59.135, 59.145 and 59.165, insofar as federal covered
investment advisers or state investment advisers are concerned, apply
when an act instrumental in effecting prohibited conduct is done in this
state, whether or not either party is then present in this state. [1967
c.537 §31(1), (2), (6); 1987 c.603 §29; 1997 c.772 §27; 2003 c.631 §6;
2005 c.22 §39] (1) For the
purpose of ORS 59.335, an offer to sell or to buy is made in this state,
whether or not either party is then present in this state, when the offer:
(a) Originates from this state; or
(b) Is directed by the offeror to this state and received at the
place to which it is directed (or at any post office in this state in the
case of a mailed offer).
(2)(a) For the purpose of ORS 59.335, an offer to buy or to sell is
accepted in this state when acceptance:
(A) Is communicated to the offeror in this state; and
(B) Has not previously been communicated to the offeror, orally or
in writing, outside this state.
(b) Acceptance is communicated to the offeror in this state,
whether or not either party is then present in this state, when the
offeree directs it to the offeror in this state reasonably believing the
offeror to be in this state and it is received at the place to which it
is directed (or at any post office in this state in the case of a mailed
acceptance).
(3) An offer to sell or to buy is not made in this state solely
because:
(a) A publisher circulates or there is circulated on behalf of the
publisher in this state any bona fide newspaper or other publication of
general, regular, and paid circulation that is not published in this
state, or that is published in this state but has had more than
two-thirds of its circulation outside this state during the past 12
months; or
(b) A radio or television program originating outside this state is
received in this state. [1967 c.537 §31(3), (4), (5)] For purposes of ORS
59.005 to 59.451, 59.660 to 59.830, 59.991 and 59.995:
(1) A transaction with a husband and wife is treated as a
transaction with one person. The securities may be held jointly or
individually.
(2) A transaction with an entity is treated as a transaction with
one person. However, if an entity is formed substantially for the purpose
of acquiring the securities that are offered, each security holder shall
be counted as a separate person. [1985 c.349 §11] Nothing in the Oregon
Securities Law relieves a corporation from making reports required by law
to be made to the Director of the Department of Consumer and Business
Services or to any other state officer, or from paying the fees to be
paid by corporations. The Oregon Securities Law:
(1) Does not repeal any law regulating the organization of
corporations in this state or the admission of any foreign corporation.
(2) Is additional to any provisions regulating the organization of
a corporation under the laws of this state or the admission of a foreign
corporation to do business in this state. [1967 c.537 §32] Nothing in the
Oregon Securities Law limits any statutory or common-law right of a
person to bring an action in any court for an act involved in the sale of
securities, or the right of the state to punish a person for a violation
of any law. [1967 c.537 §33](1) Provisions of the
Oregon Securities Law imposing civil or criminal liability do not apply
to an act done or omitted in good faith in conformity with a rule or
order of the Director of the Department of Consumer and Business
Services, notwithstanding that the rule or order may later be amended or
rescinded or be determined by judicial or other authority to be invalid
for any reason.
(2) A broker-dealer, federal covered investment adviser or state
investment adviser shall report information to the director regarding
salespersons or investment adviser representatives licensed to the
broker-dealer, federal covered investment adviser or state investment
adviser. The director, by rule, shall establish the reporting
requirements under this subsection. In adopting rules under this
subsection, the director shall consider and to the greatest extent
practicable adopt the applicable public reporting requirements of the
National Association of Securities Dealers, Inc., and the federal
Securities and Exchange Commission.
(3) A broker-dealer, federal covered investment adviser or state
investment adviser is not liable in any civil action by or on behalf of a
salesperson or an investment adviser representative, including
counterclaims, third-party claims or cross-claims, that is related to an
alleged untrue statement made in connection with a report made under
subsection (2) of this section, unless the salesperson or investment
adviser representative shows by clear and convincing evidence that:
(a) The broker-dealer, federal covered investment adviser or state
investment adviser knew at the time the report was made that the report
contained a statement regarding the salesperson or investment adviser
representative that was false in any material respect; or
(b) The broker-dealer, federal covered investment adviser or state
investment adviser acted in reckless disregard as to the statement’s
truth or falsity. [1987 c.603 §21; 2001 c.434 §1](Required Reports and Statements)It is unlawful for any person who is the
subject of an investigation under ORS 59.245 or examination under ORS
59.235, directly or indirectly, to make or file or cause to be made or
filed with the Director of the Department of Consumer and Business
Services any statement, report or document which is false in any material
respect or manner. [1985 c.349 §25]UNIFORM TOD SECURITY REGISTRATION ACT For the purposes of
ORS 59.535 to 59.585, unless the context otherwise requires:
(1) “Beneficiary form” means a registration of a security which
indicates the present owner of the security and the intention of the
owner regarding the person who will become the owner of the security upon
the death of the owner.
(2) “Devisee” means any person designated in a will to receive a
disposition of real or personal property.
(3) “Heirs” means those persons, including the surviving spouse,
who are entitled under the statutes of intestate succession to the
property of a decedent.
(4) “Person” means an individual, a corporation, an organization or
other legal entity.
(5) “Personal representative” includes executor, administrator,
successor personal representative, special administrator and persons who
perform substantially the same function under the law governing their
status.
(6) “Property” includes both real and personal property or any
interest therein and means anything that may be the subject of ownership.
(7) “Register,” including its derivatives, means to issue a
certificate showing the ownership of a certificated security or, in the
case of an uncertificated security, to initiate or transfer an account
showing ownership of securities.
(8) “Registering entity” means a person who originates or transfers
a security title by registration, and includes a broker maintaining
security accounts for customers and a transfer agent or other person
acting for or as an issuer of securities.
(9) “Security” means a share, participation or other interest in
property, in a business, or in an obligation of an enterprise or other
issuer, and includes a certificated security, an uncertificated security
and a security account.
(10) “Security account” means:
(a) A reinvestment account associated with a security, a securities
account with a broker, a cash balance in a brokerage account, cash,
interest, earnings or dividends earned or declared on a security in an
account, a reinvestment account or a brokerage account, whether or not
credited to the account before the owner’s death; or
(b) A cash balance or other property held for or due to the owner
of a security as a replacement for or product of an account security,
whether or not credited to the account before the owner’s death.
(11) “State” includes any state of the United States, the District
of Columbia, the Commonwealth of Puerto Rico and any territory or
possession subject to the legislative authority of the United States.
[1991 c.306 §1]Only individuals whose registration of a security shows sole
ownership by one individual or multiple ownership by two or more with
right of survivorship, rather than as tenants in common, may obtain
registration in beneficiary form. Multiple owners of a security
registered in beneficiary form hold as joint tenants with right of
survivorship, as tenants by the entireties, or as owners of community
property held in survivorship form, and not as tenants in common. [1991
c.306 §2] A security
may be registered in beneficiary form if the form is authorized by this
or a similar statute of the state of organization of the issuer or
registering entity, the location of the registering entity’s principal
office, the office of its transfer agent or its office making the
registration, or by this or a similar statute of the law of the state
listed as the owner’s address at the time of registration. A registration
governed by the law of a jurisdiction in which this or similar
legislation is not in force or was not in force when a registration in
beneficiary form was made is nevertheless presumed to be valid and
authorized as a matter of contract law. [1991 c.306 §3] A security,
whether evidenced by certificate or account, is registered in beneficiary
form when the registration includes a designation of a beneficiary to
take the ownership at the death of the owner or the deaths of all
multiple owners. [1991 c.306 §4] Registration in
beneficiary form may be shown by the words “transfer on death” or the
abbreviation “TOD,” or by the words “pay on death” or the abbreviation
“POD,” after the name of the registered owner and before the name of a
beneficiary. [1991 c.306 §5] The designation
of a TOD beneficiary on a registration in beneficiary form has no effect
on ownership until the owner’s death. A registration of a security in
beneficiary form may be canceled or changed at any time by the sole owner
or all then surviving owners without the consent of the beneficiary.
[1991 c.306 §6] On death of a sole owner or the
last to die of all multiple owners, ownership of securities registered in
beneficiary form passes to the beneficiary or beneficiaries who survive
all owners. On proof of death of all owners and compliance with any
applicable requirements of the registering entity, a security registered
in beneficiary form may be reregistered in the name of the beneficiary or
beneficiaries who survived the death of all owners. Until division of the
security after the death of all owners, multiple beneficiaries surviving
the death of all owners hold their interests as tenants in common. If no
beneficiary survives the death of all owners, the security belongs to the
estate of the deceased sole owner or the estate of the last to die of all
multiple owners. [1991 c.306 §7] (1) A registering entity
is not required to offer or to accept a request for security registration
in beneficiary form. If a registration in beneficiary form is offered by
a registering entity, the owner requesting registration in beneficiary
form assents to the protections given to the registering entity by ORS
59.535 to 59.585.
(2) By accepting a request for registration of a security in
beneficiary form, the registering entity agrees that the registration
will be implemented on death of the deceased owner as provided in ORS
59.535 to 59.585.
(3) A registering entity is discharged from all claims to a
security by the estate, creditors, heirs or devisees of a deceased owner
if it registers a transfer of the security in accordance with ORS 59.565
and does so in good faith reliance on the registration, on ORS 59.535 to
59.585 and on information provided to it by affidavit of the personal
representative of the deceased owner, or by the surviving beneficiary or
by the surviving beneficiary’s representatives, or other information
available to the registering entity. The protections of ORS 59.535 to
59.585 do not extend to a reregistration or payment made after a
registering entity has received written notice from any claimant to any
interest in the security objecting to implementation of a registration in
beneficiary form. No other notice or other information available to the
registering entity affects its right to protection under ORS 59.535 to
59.585.
(4) The protection provided by ORS 59.535 to 59.585 to the
registering entity of a security does not affect the rights of
beneficiaries in disputes between themselves and other claimants to
ownership of the security transferred or its value or proceeds. [1991
c.306 §8] (1) A transfer on death
resulting from a registration in beneficiary form is effective by reason
of the contract regarding the registration between the owner and the
registering entity and ORS 59.535 to 59.585, and is not testamentary.
(2) ORS 59.535 to 59.585 do not limit the rights of creditors of
security owners against beneficiaries and other transferees under other
laws of this state. [1991 c.306 §9] (1) A
registering entity offering to accept registrations in beneficiary form
may establish the terms and conditions under which it will receive
requests for registrations in beneficiary form and for implementation of
registrations in beneficiary form, including requests for cancellation of
previously registered TOD beneficiary designations and requests for
reregistration to effect a change of beneficiary. The terms and
conditions so established may provide for proving death, avoiding or
resolving any problems concerning fractional shares, designating primary
and contingent beneficiaries and substituting a named beneficiary’s
descendants to take in the place of the named beneficiary in the event of
the beneficiary’s death. Substitution may be indicated by appending to
the name of the primary beneficiary the letters LDPS, standing for
“lineal descendants per stirpes.” This designation substitutes a deceased
beneficiary’s descendants who survive the owner for a beneficiary who
fails to so survive, the descendants to be identified and to share in
accordance with the law of the beneficiary’s domicile at the owner’s
death governing inheritance by descendants of an intestate. Other forms
of identifying beneficiaries who are to take on one or more
contingencies, and rules for providing proofs and assurances needed to
satisfy reasonable concerns by registering entities regarding conditions
and identities relevant to accurate implementation of registrations in
beneficiary form, may be contained in a registering entity’s terms and
conditions.
(2) The following are illustrations of registrations in beneficiary
form which a registering entity may authorize:
(a) Sole owner-sole beneficiary: John S. Brown TOD (or POD) John S.
Brown Jr.
(b) Multiple owners-sole beneficiary: John S. Brown Mary B. Brown
JT TEN TOD John S. Brown Jr.
(c) Multiple owners-primary and secondary (substituted)
beneficiaries: John S. Brown Mary B. Brown JT TEN TOD John S. Brown Jr.
SUB BENE Peter Q. Brown or John S. Brown Mary B. Brown JT TEN TOD John S.
Brown Jr. LDPS. [1991 c.306 §10](1) ORS 59.535 to 59.585
shall be known as and may be cited as the Uniform TOD Security
Registration Act.
(2) ORS 59.535 to 59.585 shall be liberally construed and applied
to promote its underlying purposes and policy and to make uniform the
laws with respect to the subject of ORS 59.535 to 59.585 among states
enacting it.
(3) Unless displaced by the particular provisions of ORS 59.535 to
59.585, the principles of law and equity supplement its provisions. [1991
c.306 §11]REGULATION OF SALE OF BURIAL SHARES As used in ORS 59.670 and 59.680,
“share” includes certificate, right or interest. No
person shall sell or offer for sale, or otherwise dispose of for value,
any share granting or purporting to grant to the purchaser or holder, or
to the heirs, children, dependents, members of family, administrators,
survivors, executors or assigns of the purchaser or holder, any right to
funeral or burial services contingent upon the death of the purchaser,
holder, children, dependents, or members of family, at a price or cost
less than the price or cost open to any person not having such share
unless the person selling, offering for sale, or otherwise disposing of
any such share shall first file, and keep in force, a bond running to the
State of Oregon. This bond shall be in the penal sum of $50,000, with a
surety company licensed to do business in this state as surety. The bond
shall be approved by and filed with the Director of the Department of
Consumer and Business Services and conditioned to indemnify the purchaser
or holder of the share from any loss sustained or occasioned by any
misrepresentation or fraud on the part of the person selling or offering
it for sale, or by the failure of any such person to comply with the
terms and conditions of the share or any representation made at the time
of, or as an inducement for, its purchase or acquisition. In case the
purchaser or holder of the share sustains damage or loss from any cause
specified in this section, such purchaser or holder or the executors or
administrators of such purchaser or holder shall have a cause of action
against the principal and surety upon the bond for all damages or loss
sustained, together with the costs provided by law. However, the recovery
against the surety shall not exceed the amount of the bond. The court may
award reasonable attorney fees to the prevailing party in an action under
this section. [Amended by 1981 c.897 §13; 1995 c.618 §35]In addition to the filing of the bond required
under ORS 59.670, every such person shall file with the Director of the
Department of Consumer and Business Services, on or before the 10th day
of each month, a verified statement showing the total amount of money
received by the person on account of the sale of outstanding and
unredeemed shares theretofore issued by the person and which were in
force on the last day of the preceding month. This statement shall also
set forth the name and address of every person who during the preceding
month became a purchaser of any such share, together with the amount of
money collected thereon and paid or to be paid therefor. At the time of
filing this sworn statement, such person shall also deposit with the
State Treasurer cash or securities specified as authorized investments
for domestic insurance companies under the insurance laws of this state,
in a sum at least equal in value, when added to the securities previously
deposited by any such person with the State Treasurer, to 50 percent of
the total amount theretofore received by such person on account of such
shares. If at any time the securities so deposited are in excess of 50
percent of the amount received on account of the then outstanding and
unredeemed shares such person may withdraw the excess, and the State
Treasurer is directed to return the excess to the person depositing it.
The securities so deposited shall be for the protection of all
purchasers, or holders, of any such shares from the respective persons
making the deposit, but a deposit by any such person hereunder shall be
security only for the performance of the person’s own contract as
evidenced by the share sold and disposed of by the person. The cash or
securities, together with all accrued interest or dividends, shall be
held and disposed of in the manner provided by law in respect to cash or
securities deposited with the State Treasurer, and the State Treasurer
shall be entitled to collect the fees authorized pursuant to state law
pertaining to and regulating title insurance. [Amended by 1971 c.200 §5;
1973 c.794 §14] The Director of the
Department of Consumer and Business Services is authorized to examine the
books and accounts of any person doing business within the purview of ORS
59.670 whenever in the judgment of the director it is necessary to insure
a proper enforcement of ORS 59.670 or 59.680, but not more often than
once in any six-month period. The reasonable and necessary cost of making
the examination shall be borne and paid to the State Treasurer on demand
by the persons whose books and accounts are to be examined, to be
disposed of as provided by law in similar cases.The provisions of ORS 59.710 to 59.830 shall not apply to
any contract, agreement, sale, purchase, lease, conveyance or mortgage
pertaining to real estate situated in this state, nor to the business of
real estate brokers or principal real estate brokers, as defined in ORS
696.010, in so far as such business pertains to real estate located in
this state. [Amended by 2001 c.300 §53]No person, whether acting in the person’s own
right, or as the officer, agent, servant, correspondent or representative
of another, shall, as broker make or offer to make, assist in making or
offering to make, perform or take part in any contract respecting the
purchase or sale, either upon credit or margin, of any securities or
commodities more than once, and in course of continuing or repeated
transactions:
(1) Intending that the contract shall be terminated, closed or
settled according to, or upon the basis of the public market quotations
of or prices made on any board of trade or exchange or market which deals
in such commodities or securities, and without intending a bona fide
purchase or sale of the same; or
(2) Intending that the contract shall be deemed terminated, closed
and settled when the market quotations or prices mentioned in subsection
(1) of this section for the securities or commodities named in the
contract reach a certain figure, without intending a bona fide purchase
or sale of the same; or
(3) Not intending the actual bona fide receipt or delivery of such
securities or commodities, but intending a settlement of the contract
based upon the difference in the public market quotations or prices,
mentioned in subsection (1) of this section, at which the securities or
commodities are, or are asserted to be, bought or sold. The prosecution,
conviction and punishment of a corporation for violation of this section
shall not be deemed to be a prosecution, conviction or punishment of any
of its officers, directors or stockholders.No person shall as owner, keeper, proprietor or person in
charge of, or as officer, director, stockholder, agent, servant,
correspondent or representative of any person, keep, conduct or operate
any bucket shop, or knowingly permit or induce any person, whether acting
in the person’s own right or as officer, agent, servant, correspondent or
representative of another, to make, offer to make therein, or assist in
making or in offering to make therein, any of the contract specified in
ORS 59.730, more than once and in the course of continuing or repeated
transactions.No person shall receive, communicate, exhibit or display in any
manner any statement of quotations or prices of securities or commodities
with an intent to make or offer to make, or to assist in making, or
offering to make any contract prohibited by ORS 59.720 to 59.810.
No person shall, with intent to deceive, report or publish, or cause to
be reported or published as a purchase or sale of stocks or bonds, any
transaction whereby no actual change of ownership or interest is effected. No person shall
inflate, depress or cause fluctuations in, or attempt to inflate, depress
or cause fluctuations in, or combine or conspire with any other person to
inflate, depress or cause fluctuations in, the market prices of stocks or
bonds, or of an issue or any part of an issue of such stocks or bonds, by
means of pretended purchases and sales, or by any other fictitious
transactions or devices, for or on account of any person, whereby either
in whole or in part a simultaneous change of ownership of or interest in
such stocks or bonds or of such issue or part of an issue thereof, is not
effected. A pretended purchase or sale of any stocks or bonds whereby, in
whole or in part, no simultaneous change of ownership or interest therein
is effected, is prima facie evidence of the violation of this section by
the person taking part in the pretended purchase or sale.(1) No broker, employed by a
customer to buy and carry upon margin stocks or bonds, while acting as
broker for the customer in respect to such stocks or bonds, shall sell
for the broker’s own account the same kind or issue of stocks or bonds,
with intent to trade against the customer’s order.
(2) No broker, employed by a customer to sell stocks or bonds,
while acting as broker for the customer in respect to the sale of such
stocks or bonds, shall purchase for the broker’s own account the same
kind or issue of stocks or bonds, with intent to trade against the
customer’s order.
(3) Every member of a firm of brokers who either does, or consents
or assents to the doing of, any act prohibited by this section, ORS
59.790 or 59.800 is guilty of violating the section prohibiting the act.
No broker-dealer engaged in the business of purchasing and selling stocks
or bonds as a broker-dealer, knowing that the broker-dealer is insolvent,
shall accept or receive from a customer ignorant of the insolvency,
money, stocks or bonds belonging to the customer, except in liquidation
or as security for an existing indebtedness, and thereby cause the
customer to lose in whole or in part such money, stocks or bonds. A
broker-dealer shall be deemed insolvent within the meaning of this
section whenever the aggregate of the property of the broker-dealer is
not, at a fair valuation, sufficient in amount to pay the debts of the
broker-dealer. [Amended by 1987 c.158 §12] No
broker-dealer engaged in the business of purchasing and selling stocks or
bonds as a broker-dealer shall:
(1) While having in the possession of the broker-dealer, for
safekeeping or otherwise, stocks or bonds belonging to a customer,
without having any lien thereon or any special property therein, pledge
or dispose thereof without the customer’s consent; or
(2) While having in the possession of the broker-dealer stocks or
bonds belonging to a customer on which the broker-dealer has a lien for
indebtedness due to the broker-dealer by the customer, pledge the same
for more than the amount due to the broker-dealer thereon, or otherwise
dispose thereof for the broker-dealer’s own benefit, with or without the
customer’s consent, and without having in possession of the broker-dealer
or subject to control of the broker-dealer, stocks or bonds of the kind
and amount to which the customer is then entitled, for delivery to the
customer upon demand of the customer therefor and tender of the amount
due thereon, and thereby cause the customer to lose, in whole or in part,
such stocks or bonds, or the value thereof; or
(3) Fail, on demand, to deliver to any customer, stocks or bonds
owned by the customer, and in the possession of such broker-dealer, upon
payment or tender of the amount the same was pledged to secure. [Amended
by 1987 c.158 §13]No person engaged in the business of purchasing or
selling stocks or bonds as a broker shall refuse to deliver to each
customer on whose behalf a purchase or sale of such securities is made by
the person, within five days after written demand therefor made within
six months following the purchase or sale, a statement or memorandum of
the purchase or sale which is true in all material respects and which
contains a description of the securities purchased or sold, the name of
the person from whom the securities were purchased or to whom they were
sold, and the day and hours between which the transaction took place. (1) If a
domestic corporation is convicted of a second offense under ORS 59.730 to
59.810, the circuit court has jurisdiction over an action by the Attorney
General, in the name of the people, to dissolve the corporation.
(2) If a foreign corporation is convicted of a second offense under
ORS 59.730 to 59.810, the circuit court has jurisdiction in an action
brought as provided in subsection (1) of this section to restrain the
corporation from doing business in this state. No
person shall be excused from attending and testifying, or producing any
book, paper or other document before any court or magistrate, upon any
trial, investigation or proceeding initiated by the district attorney,
grand jury or court for a violation of any of the provisions of ORS
59.730 to 59.810, upon the ground that the testimony or evidence,
documentary or otherwise, required of the person may tend to convict the
person of a crime or subject the person to a penalty or forfeiture.
However, no person shall be prosecuted or subjected to any penalty or
forfeiture for or on account of any transaction, matter or thing
concerning which the person may so testify or produce evidence,
documentary or otherwise, and no testimony so given or produced shall be
received against the person in any criminal action, suit or proceeding,
investigation, inquisition or inquiry.MORTGAGE BANKERS; MORTGAGE BROKERS; LOAN ORIGINATORS(1) Violation
of any provision of ORS 59.840 to 59.980 or any rule adopted by the
Director of the Department of Consumer and Business Services under ORS
59.840 to 59.980, except ORS 59.915 (2) and 59.975, is a Class C felony.
(2) Violation of ORS 59.915 (2) is a Class A misdemeanor. [1993
c.508 §25; 1995 c.622 §14; 2005 c.97 §2] (1) In addition to
all other penalties and enforcement provisions provided by law, any
person who violates or who procures, aids or abets in the violation of
any provision of ORS 59.840 to 59.980 or any rule or order of the
Director of the Department of Consumer and Business Services shall be
subject to a penalty of not more than $5,000 for every violation, which
shall be paid to the General Fund of the State Treasury.
(2) Every violation is a separate offense and, in the case of a
continuing violation, each day’s continuance is a separate violation, but
the maximum penalty for any continuing violation shall not exceed $20,000
for each offense.
(3) Civil penalties under this section shall be imposed as provided
in ORS 183.745. [1993 c.508 §26]
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