As used in ORS 717.200 to 717.320, 717.900 and
717.905, unless the context requires otherwise:
(1) “Applicant” means a person filing an application for a license
under ORS 717.200 to 717.320, 717.900 and 717.905.
(2) “Authorized delegate” means a person designated by the licensee
under the provisions of ORS 717.200 to 717.320, 717.900 and 717.905 to
sell or issue payment instruments or engage in the business of
transmitting money on behalf of a licensee.
(3) “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 ownership of voting securities, by contract or
otherwise.
(4) “Controlling person” means any person in control of a licensee
or applicant for a license.
(5) “Controlling shareholder” means any person, or group of persons
acting in concert, that owns 25 percent or more of any voting class of an
applicant’s stock.
(6) “Director” means the Director of the Department of Consumer and
Business Services.
(7) “Electronic instrument” means a card or other tangible object
for the transmission or payment of money that contains a microprocessor
chip, magnetic stripe or other means for the storage of information, that
is prefunded and for which the value is decremented upon each use.
“Electronic instrument” does not include a card or other tangible object
that is redeemable by the issuer in the issuer’s goods or services.
(8) “Executive officer” means the licensee’s president, chairperson
of the executive committee, senior officer responsible for the licensee’s
business, chief financial officer and any other person who performs
similar functions.
(9) “Licensee” means a person licensed under ORS 717.200 to
717.320, 717.900 and 717.905.
(10) “Material litigation” means any litigation that, according to
generally accepted accounting principles, is deemed significant to an
applicant’s or licensee’s financial health and would be required to be
referenced in the applicant’s or licensee’s annual audited financial
statements, report to shareholders or similar documents.
(11) “Money transmission” means the sale or issuance of payment
instruments or engaging in the business of receiving money for
transmission or transmitting money within the United States or to
locations abroad by any and all means, including but not limited to
payment instrument, wire, facsimile or electronic transfer.
(12) “Payment instrument” means any electronic or written check,
draft, money order, traveler’s check or other electronic or written
instrument or order for the transmission or payment of money, sold or
issued to one or more persons, whether or not the instrument is
negotiable. “Payment instrument” does not include any credit card
voucher, any letter of credit or any instrument that is redeemable by the
issuer in goods or services.
(13) “Outstanding payment instrument” means any payment instrument
issued by a licensee that has been sold in the United States directly by
the licensee or any payment instrument issued by a licensee that has been
sold in the United States by an authorized delegate of the licensee, that
has been reported to the licensee as having been sold and that has not
yet been paid by or for the licensee.
(14) “Permissible investments” means:
(a) Cash;
(b) Certificates of deposit or other debt obligations of a
financial institution, either domestic or foreign;
(c) Bills of exchange or time drafts drawn on and accepted by a
commercial bank, otherwise known as bankers’ acceptances, that are
eligible for purchase by member banks of the Federal Reserve System;
(d) Any investment security bearing a rating of one of the three
highest grades as defined by a nationally recognized organization that
rates such securities;
(e) Investment securities that are obligations of the United States
Government, its agencies or instrumentalities, or obligations that are
guaranteed fully as to principal and interest by the United States, or
any obligations of any state, municipality or any political subdivision
thereof;
(f) Shares in a money market mutual fund, interest-bearing bills,
notes or bonds, debentures or stock traded on any national securities
exchange or national market system, mutual funds primarily composed of
such securities or a fund composed of one or more permissible investments
as set forth herein;
(g) Any demand borrowing agreement or agreements made to a
corporation or a subsidiary of a corporation whose capital stock is
listed on a national securities exchange;
(h) Receivables that are due to a licensee from the licensee’s
authorized delegates under a contract described in ORS 717.270 and that
are not past due or doubtful of collection; or
(i) Any other investments or security device approved by the
Director of the Department of Consumer and Business Services.
(15) “Person” means any individual, partnership, association, joint
stock association, limited liability company, trust or corporation.
(16) “Remit” means either to make direct payment of the funds to a
licensee or representatives of a licensee authorized to receive those
funds, or to deposit the funds in a bank, credit union or savings and
loan association or other similar financial institution in an account
specified by the licensee.
(17) “Security device” means a surety bond, irrevocable letter of
credit issued by an insured institution as defined in ORS 706.008 or
other similar security acceptable to the Director of the Department of
Consumer and Business Services. [1999 c.571 §2; 2001 c.104 §283](1) A person, other than a person that is exempt
under ORS 717.210, may not conduct a money transmission business without
a license as provided in ORS 717.200 to 717.320, 717.900 and 717.905.
(2) A licensee may conduct business in this state at one or more
locations that are directly or indirectly owned by the licensee, or
through one or more authorized delegates, or both. A licensee is required
to obtain only one license under ORS 717.200 to 717.320, 717.900 and
717.905.
(3) The conduct of a money transmission business by itself does not
constitute banking or branch banking for the purposes of the Bank Act.
(4) The Director of the Department of Consumer and Business
Services has jurisdiction over a person conducting a money transmission
business whether or not the person is a licensee or authorized delegate.
[1999 c.571 §3](1) ORS 717.200 to 717.320,
717.900 and 717.905 do not apply to:
(a) Any company that accepts deposits in this state and that is
insured under the Federal Deposit Insurance Act, 12 U.S.C. 1811 et seq.,
as amended.
(b) Credit unions or trust companies.
(c) The United States Government or any department, agency or
instrumentality thereof.
(d) The United States Postal Service.
(e) Any state or political subdivision of a state.
(f) The provision or electronic transfer of government benefits for
any federal, state or county government or other agency as defined in the
Federal Reserve Board Regulation E (12 C.F.R. part 205), by a contractor
for and on behalf of the United States Government or any department,
agency or instrumentality of the United States, or any state or any
political subdivision of a state.
(g) The provision or handling of electronic or other transfer of
escrowed moneys by an escrow agent licensed under ORS 696.511.
(h) Authorized delegates of a licensee, acting within the scope of
authority conferred by a written contract as described in ORS 717.270.
(i) Any bank holding company as defined in the federal Bank Holding
Company Act of 1956, 12 U.S.C. 1841 et seq., as amended, or any financial
holding company as defined in ORS 706.008.
(j) Any savings and loan holding company as defined in 12 U.S.C.
1467a (a)(1)(D), as amended.
(2) The Director of the Department of Consumer and Business
Services by rule or order may modify or waive the application of ORS
717.200 to 717.320, 717.900 and 717.905 to any person or group of persons
if the director determines that adequate regulation of the person or
group of persons is provided by law or by another agency of this state.
(3) The director by rule or order may temporarily suspend the
application of ORS 717.200 to 717.320, 717.900 and 717.905 to any person
or group of persons while the director considers whether an exemption
should be granted and during the pendency of any rulemaking proceeding
proposing to create an exemption. [1999 c.571 §4; 2001 c.377 §50](1) Each licensee shall at all times have a net worth of not
less than $100,000, calculated in accordance with generally accepted
accounting principles. Licensees engaging in money transmission at more
than one location or through authorized delegates shall have an
additional net worth of $25,000 per location in this state, not to exceed
a maximum of $500,000.
(2) Every applicant, at the time of filing of an application for a
license under ORS 717.200 to 717.320, 717.900 and 717.905 and at all
times after a license is issued, shall be in good standing in the state
of its incorporation or organization.
(3) Each licensee shall at all times possess permissible
investments having an aggregate market value, calculated in accordance
with generally accepted accounting principles, of not less than the
aggregate face amount of all outstanding payment instruments issued or
sold by the licensee in the United States. This requirement may be waived
by the Director of the Department of Consumer and Business Services if
the dollar volume of a licensee’s outstanding payment instruments does
not exceed the amount of any security device posted by the licensee under
ORS 717.225.
(4) In the event of the bankruptcy of the licensee, permissible
investments, even if commingled with other assets of the licensee, are
considered by operation of law to be held in trust for the benefit of the
purchasers and holders of the licensee’s outstanding payment instruments.
[1999 c.571 §5] (1) Each application for a license
under ORS 717.200 to 717.320, 717.900 and 717.905 shall be made in
writing in a form prescribed by rule by the Director of the Department of
Consumer and Business Services.
(2) For all applicants, the application shall contain:
(a) The exact name of the applicant, the applicant’s principal
address, any fictitious name, assumed business name or trade name used by
the applicant in the conduct of its business and the location of the
applicant’s business records;
(b) The history of the applicant’s material litigation and criminal
convictions for the five-year period prior to the date of the application;
(c) A history of operations and a description of the business
activities in which the applicant seeks to be engaged in this state;
(d) A list identifying the applicant’s proposed authorized
delegates in the state, if any, at the time of the filing of the license
application;
(e) A sample authorized delegate contract, if applicable;
(f) A sample form of payment instrument, if applicable;
(g) The address of each location at which the applicant and its
authorized delegates, if any, propose to conduct a money transmission
business in this state;
(h) The name and address of the clearing bank or banks on which the
applicant’s payment instruments will be drawn or through which such
payment instruments will be payable; and
(i) A business plan.
(3) If the applicant is a corporation, the application shall
contain:
(a) The date of the applicant’s incorporation and state of
incorporation;
(b) A certificate of good standing from the state in which the
applicant was incorporated;
(c) A description of the corporate structure of the applicant,
including the identity of any parent or subsidiary of the applicant, and
the disclosure of whether any parent or subsidiary is publicly traded on
any stock exchange;
(d) The name, business and residence address, and employment
history for the past five years of the applicant’s executive officers and
the officers or managers who will be in charge of the applicant’s money
transmission business;
(e) The name, business and residence address, and employment
history for the five-year period prior to the date of the application of
any controlling shareholder of the applicant;
(f) The history of material litigation and criminal convictions for
the five-year period prior to the date of the application of every
executive officer or controlling shareholder of the applicant;
(g) A copy of the applicant’s most recent audited financial
statement, including balance sheet, statement of income or loss,
statement of changes in shareholder equity and statement of changes in
financial position and, if available, a copy of the applicant’s audited
financial statements for the immediately preceding two-year period. If
the applicant is a wholly owned subsidiary of another corporation, the
applicant may submit either the parent corporation’s consolidated audited
financial statements for the current year and for the immediately
preceding two-year period, or the parent corporation’s Form 10K reports
filed with the United States Securities and Exchange Commission for the
prior three years, in lieu of the applicant’s financial statements. If
the applicant is a wholly owned subsidiary of a corporation having its
principal place of business outside the United States, similar
documentation filed with the parent corporation’s foreign regulator may
be submitted to satisfy the requirements of this paragraph; and
(h) Copies of all filings, if any, made by the applicant with the
United States Securities and Exchange Commission, or with a similar
regulator in a country other than the United States, within the year
preceding the date of the application.
(4) If the applicant is not a corporation, the application shall
contain:
(a) The name, business and residence address, personal financial
statement and employment history for the past five years of each
principal of the applicant and the name, business and residence address,
and employment history for the past five years of any other person or
persons that will be in charge of the applicant’s money transmission
business;
(b) The history of material litigation and criminal convictions for
the five-year period prior to the date of the application for each
individual having any ownership interest in the applicant and each
individual who exercises supervisory responsibility with respect to the
applicant’s activities; and
(c) Copies of the applicant’s audited financial statements,
including balance sheet, statement of income or loss, and statement of
changes in financial position, for the current year and, if available, a
copy of the applicant’s audited financial statements for the immediately
preceding two-year period.
(5) The director, for good cause shown, may waive any requirement
of this section with respect to any license application or may allow an
applicant to submit substituted information in a license application in
lieu of the information required under subsection (2) of this section.
[1999 c.571 §6; 2005 c.21 §12] (1) Each license application shall be
accompanied by a security device in the amount of $25,000. If the
applicant proposes to engage in business under ORS 717.200 to 717.320,
717.900 and 717.905 at more than one location through authorized
delegates or otherwise, the amount of the security device shall increase
by $5,000 per location, not to exceed a maximum of $150,000. The security
device shall be in a form satisfactory to the Director of the Department
of Consumer and Business Services and shall run to the State of Oregon
for the benefit of any claimants against the licensee to secure the
faithful performance of the obligations of the licensee with respect to
the receipt, handling, transmission and payment of money in connection
with the sale and issuance of payment instruments or transmission of
money. The aggregate liability on any security device shall not exceed
the principal sum of the security device. Claimants against the licensee
may bring suit directly on the security device or the director may bring
suit on behalf of such claimants, either in one action or in successive
actions.
(2) In lieu of the requirements of subsection (1) of this section,
a licensee may deposit with the director, or with insured institutions as
defined in ORS 706.008 located in this state and designated by the
licensee and approved by the director, securities in an aggregate amount,
based upon principal amount or market value, whichever is lower, of not
less than the amount of the security device applicable under subsection
(1) of this section or portion thereof. The securities shall be held to
secure the same obligations as would the security device. The depositor
shall be entitled to receive all interest and dividends on the securities
and may, with the approval of the director, substitute other securities
for those deposited. The director, in writing, for good cause shown, may
require the depositor to substitute other securities for those deposited.
As used in this subsection, “securities” includes interest-bearing stocks
and bonds, notes, debentures or other obligations of the United States
Government or any agency or instrumentality of the United States
Government, or guaranteed by the United States Government, or of this
state, or of a city, county, district or instrumentality of this state,
or guaranteed by this state.
(3) The security device shall remain in effect until cancellation,
which may occur only after 30 days’ written notice to the director.
Cancellation shall not affect any liability incurred or accrued during
the 30-day period.
(4) The security device shall remain in place for no longer than
five years after the licensee ceases money transmission operations in
this state. However, notwithstanding this provision, the director may
permit the security device to be reduced or eliminated prior to that time
to the extent that the amount of the licensee’s payment instruments
outstanding in this state are reduced. The director may also permit a
licensee to substitute a letter of credit or such other form of security
device acceptable to the director for the security device in place at the
time the licensee ceases money transmission operations in this state.
(5) In the event of bankruptcy of the licensee, the security device
shall be considered by operation of law to be held in trust for the
benefit of purchasers and holders of the licensee’s outstanding payment
instruments. [1999 c.571 §7] Each application shall be accompanied by a
nonrefundable application fee in the amount of $1,000, payable to the
Director of the Department of Consumer and Business Services. The
application fee shall also constitute the license fee for the applicant’s
first year of activities if the license is granted. [1999 c.571 §8](1) Upon the filing of a complete application, the Director of
the Department of Consumer and Business Services shall review the
application and may investigate the financial condition and
responsibility, financial and business experience, character and general
fitness of the applicant. The director may conduct an on-site
investigation of the applicant, the reasonable cost of which shall be
paid by the applicant. The director may disapprove an application if the
director finds that the applicant:
(a) Is insolvent, either in the sense that the person’s liabilities
exceed the person’s assets or that the person cannot meet obligations as
they mature, or that the person is in such financial condition that the
person cannot continue in business with safety to the person’s customers;
(b) Has engaged in dishonest, fraudulent or illegal practices or
conduct in any business or profession;
(c) Has willfully or repeatedly violated or failed to comply with
any provisions of the Oregon Bank Act, Oregon Securities Law, Savings
Association Act, Oregon Credit Union Act, Oregon Consumer Finance Act or
Pawnbrokers Act or any rule or order of the director adopted under those
laws;
(d) Has been convicted of a crime, an essential element of which is
fraud;
(e) Is not qualified to engage in the business of money
transmission on the basis of such factors as training, experience and
knowledge of the business;
(f) 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 banking business or of the money transmission
business;
(g) Is the subject of an order of the director subjecting the
person to a fine or other civil penalty or removing the person from an
office in any entity regulated by the director; or
(h) Is the subject of an order entered within the past five years,
subjecting the person to a fine or other civil penalty or removing the
person from an office in a state or federally chartered, licensed or
regulated financial services company.
(2) The director may also disapprove an application if the director
finds that any controlling person is subject to any provision of
subsection (1) of this section except subsection (1)(a) or (e) of this
section. If a controlling person is the sole owner of the applicant, then
the director may disapprove an application if the director finds that the
controlling person is subject to any provision of subsection (1) of this
section.
(3) If the director finds that the applicant’s business will be
conducted honestly, fairly and in a manner commanding the confidence and
trust of the community, and that the applicant has fulfilled the
requirements imposed by ORS 717.200 to 717.320, 717.900 and 717.905 and
has paid the required license fee, the director shall issue a license to
the applicant authorizing the applicant to conduct money transmission
business in this state for a term of one year. If these requirements have
not been met, the director shall deny the application in writing and
shall describe the reasons for the denial.
(4) An order of the director denying an application under ORS
717.200 to 717.320, 717.900 and 717.905 shall state the grounds upon
which the order is based and shall not become effective for at least 20
days after written notice of the order has been sent by registered or
certified mail to the applicant at the principal place of business of the
applicant.
(5) Appeals from an order of the director denying an application
may be taken to the courts of this state as provided by ORS chapter 183.
[1999 c.571 §9](1) Each licensee shall pay to the Director of the Department
of Consumer and Business Services a nonrefundable annual fee of $500 or
such other fee as established by the director by rule, not to exceed
$1,000, for renewal of a license.
(2) At the time the licensee pays the renewal fee, the licensee
shall submit an annual renewal report in a form prescribed by the
director. The annual renewal report shall include:
(a) A copy of the licensee’s most recent audited consolidated
annual financial statement, including a balance sheet, statement of
income or loss, statement of changes in shareholder equity and statement
of changes in financial position. In the case of a licensee that is a
wholly owned subsidiary of another corporation, the consolidated audited
annual financial statement of the parent corporation may be filed in lieu
of the licensee’s audited annual financial statement;
(b) For the most recent quarter for which data are available prior
to the date of the renewal application, but not more than 120 days prior
to the renewal date, a description of the number of payment instruments
sold by the licensee in this state, the dollar amount of those
instruments and the dollar amount of those instruments currently
outstanding;
(c) A description of any material changes to any of the information
submitted by the licensee on the licensee’s original application that
have not previously been reported to the director on any other report
required to be filed with the director;
(d) A list of the licensee’s permissible investments; and
(e) A list of the locations within this state at which business
regulated by ORS 717.200 to 717.320, 717.900 and 717.905 is being
conducted by either the licensee or its authorized delegate.
(3) If a licensee has not filed a renewal report or paid the
renewal fee before the license expires, and has not been granted an
extension of time to do so by the director, the director shall hold a
hearing at which the licensee may show cause as to why the license should
not be suspended pending compliance with the requirements of this
section. The director shall notify the licensee in writing of the
licensee’s rights under this subsection. The licensee may waive the
hearing. [1999 c.571 §10] Within 15
days following the occurrence of any one of the events listed in this
section, a licensee shall file a written report with the Director of the
Department of Consumer and Business Services describing the event and the
event’s expected effect on the licensee’s activities in this state:
(1) The filing for bankruptcy or reorganization by the licensee or
the licensee’s sole owner;
(2) The commencement of revocation or suspension proceedings
against the licensee by any state or governmental authority with regard
to the licensee’s money transmission activities;
(3) Any felony indictment of the licensee or any of its key
officers or directors;
(4) Any felony conviction of the licensee or any of its key
officers or directors; or
(5) The theft of payment instruments from the licensee in an amount
equal to or greater than 10 percent of a licensee’s monthly amount of
outstanding payment instruments. [1999 c.571 §11](1) Within 15 days of a change or acquisition of control of a
licensee, the licensee shall provide notice of the change to the Director
of the Department of Consumer and Business Services in writing and in a
form the director may prescribe by rule. The notice shall be accompanied
by such information, data and records as the director may require by rule.
(2) Notwithstanding subsection (1) of this section, the director
may waive the notice requirement if the director determines that the
change in control does not pose any risk to the interests of the public.
[1999 c.571 §12] (1) The Director of
the Department of Consumer and Business Services may conduct an annual
on-site examination of a licensee upon reasonable notice to the licensee.
The examination may be conducted at the principal place of business of
the licensee. Upon reasonable notice, the director may also conduct an
examination of any location of the licensee and its authorized delegates.
The on-site examination may be conducted in conjunction with examinations
to be performed by representatives of agencies of other states. In lieu
of an annual on-site examination, the director may accept the examination
report of an agency of another state or a report prepared by an
independent accountancy organization. Reports so accepted are considered
for all purposes as an official report of the director.
(2) The director may conduct an on-site examination of a licensee
or any authorized delegate without prior notice to the licensee or
authorized delegate if the director has a reasonable basis to believe
that the licensee or authorized delegate is in violation of any provision
of ORS 717.200 to 717.320, 717.900 and 717.905. The examination may be
conducted at the principal place of business of the licensee or
authorized delegate.
(3) The director shall have authority to examine under oath all
persons whose testimony the director may require in order to conduct the
examination.
(4) Each licensee examined under this section shall pay $60 per
hour for each examiner, plus costs of an examination, to the director.
The director may maintain an action for the recovery of such costs in any
court of competent jurisdiction. [1999 c.571 §13; 2001 c.104 §284] (1) Each licensee shall make, keep
and preserve the following books, accounts and other records for a period
of three years:
(a) A record of each payment instrument sold;
(b) A general ledger, posted at least once per month, containing
all assets, liabilities, capital, income and expense accounts;
(c) Settlement sheets received from authorized delegates;
(d) Bank statements and bank reconciliation records;
(e) Records of outstanding payment instruments;
(f) Records of each payment instrument paid within the three-year
period; and
(g) A list of the names and addresses of all the licensee’s
authorized delegates.
(2) Books, accounts and other records required to be maintained
under subsection (1) of this section may be maintained:
(a) In a photographic, electronic or other similar form.
(b) At a location outside this state, so long as the books,
accounts and other records are made accessible to the Director of the
Department of Consumer and Business Services following seven days’
written notice. [1999 c.571 §14] (1) The
Director of the Department of Consumer and Business Services may by order
suspend or revoke a license issued under ORS 717.200 to 717.320, 717.900
and 717.905 if the director finds that:
(a) Any fact or condition exists that, if it had existed at the
time when the licensee applied for a license, would have been grounds for
denying the application;
(b) The licensee’s net worth is inadequate and the licensee,
following 10 days’ written notice from the director, fails to take such
steps as the director considers necessary to remedy the inadequacy;
(c) The licensee has violated any material provision of ORS 717.200
to 717.320, 717.900 and 717.905 or of any rule or order validly adopted
or issued by the director under ORS 717.200 to 717.320, 717.900 and
717.905;
(d) The licensee is conducting its business in an unsafe or unsound
manner;
(e) The licensee is insolvent;
(f) The licensee has suspended payment of its obligations, has made
an assignment for the benefit of its creditors or has admitted in writing
its inability to pay its debts as they become due;
(g) The licensee has applied for an adjudication of bankruptcy,
reorganization, arrangement or other relief under any bankruptcy
proceeding;
(h) The licensee refuses to permit the director to make any
examination authorized by ORS 717.200 to 717.320, 717.900 and 717.905;
(i) The licensee knowingly fails to make any report required by ORS
717.200 to 717.320, 717.900 and 717.905;
(j) The licensee has failed to maintain the security device or
other securities as required by ORS 717.225;
(k) The licensee has engaged in fraud in the conduct of the money
transmission business;
(L) The licensee knowingly has submitted false information to the
director; or
(m) The licensee has failed to terminate an authorized delegate
when so ordered by the director.
(2) The suspension or revocation of a license shall not:
(a) Affect the licensee’s civil or criminal liability for acts
committed prior to the suspension or revocation;
(b) Affect the liability of the surety on the licensee’s security
device; or
(c) Entitle the licensee to a return of any part of the license or
renewal fee.
(3) Except for nonpayment of any fees required by ORS 717.200 to
717.320, 717.900 and 717.905 and except as provided in subsection (4) of
this section, a license shall not be revoked or suspended by the director
without opportunity for a hearing in accordance with ORS chapter 183.
(4) If required to protect the public interest, a license may be
suspended without a hearing in accordance with ORS 183.430 (2).
(5) An order of the director revoking or suspending a license
issued under ORS 717.200 to 717.320, 717.900 and 717.905 shall state the
grounds upon which the order is based and, except for a summary order
issued in accordance with ORS 183.430 (2), shall not become effective for
at least 20 days after written notice of the order has been sent by
registered or certified mail to the licensee at the principal place of
business of the licensee.
(6) Appeals from an order of the director revoking or suspending a
license may be taken to the courts of this state as provided by ORS
chapter 183. [1999 c.571 §15]Licensees desiring to conduct a money transmission
business through authorized delegates shall authorize each delegate to
operate pursuant to an express written contract. The contract shall
specify the following:
(1) That the licensee appoints the person as the licensee’s
delegate with authority to engage in money transmission on behalf of the
licensee;
(2) That neither a licensee nor an authorized delegate may
authorize subdelegates without the written consent of the Director of the
Department of Consumer and Business Services; and
(3) That licensees, authorized delegates and subdelegates are
subject to supervision and regulation by the director. [1999 c.571 §16] (1) An authorized
delegate shall not make any fraudulent or false statement or
misrepresentation to a licensee or to the Director of the Department of
Consumer and Business Services.
(2) All money transmission activities conducted by authorized
delegates shall be strictly in accordance with the licensee’s written
procedures provided to the authorized delegate.
(3) An authorized delegate shall remit all money owing to the
licensee in accordance with the terms of the contract between the
licensee and the authorized delegate. The failure of an authorized
delegate to remit all money owing to a licensee within the time
prescribed shall result in liability of the authorized delegate to the
licensee for three times the licensee’s actual damages.
(4) An authorized delegate is considered to consent to the
director’s inspection, with or without prior notice to the licensee or
authorized delegate, of the books and records of the authorized delegate
when the director has a reasonable basis to believe that the licensee or
authorized delegate is in noncompliance with ORS 717.200 to 717.320,
717.900 and 717.905.
(5) An authorized delegate is under a duty to act only as
authorized under the contract with the licensee. An authorized delegate
that exceeds the delegate’s authority is subject to cancellation of the
delegate’s contract and further disciplinary action by the director.
(6) All funds, not including fees, received by an authorized
delegate from the sale or delivery of a payment instrument issued by a
licensee, or received by an authorized delegate for transmission, shall
constitute trust funds owned by and belonging to the licensee during the
period beginning when the funds are received by the authorized delegate
and ending when the funds or an equivalent amount are remitted by the
authorized delegate to the licensee. If an authorized delegate commingles
any such funds with any other funds or property owned or controlled by
the authorized delegate, all commingled proceeds and other property shall
be impressed with a trust in favor of the licensee in an amount equal to
the amount of the proceeds due the licensee.
(7) An authorized delegate shall report to the licensee the theft
or loss of payment instruments within 24 hours from the time the
authorized delegate first knows of the theft or loss. [1999 c.571 §17](1) For any reason specified in subsection (2) of this section,
the Director of the Department of Consumer and Business Services may
issue an order suspending or barring an authorized delegate from
continuing to be or becoming an authorized delegate during the period
specified in the order. An order issued under this section shall require
the licensee to terminate the licensee’s relationship with the authorized
delegate during the period specified in the order.
(2) The director may issue an order under subsection (1) of this
section if the director finds that an authorized delegate or any
director, officer, employee or controlling person of the authorized
delegate has:
(a) Violated any provision of ORS 717.200 to 717.320, 717.900 and
717.905 or of any rule adopted or order issued under ORS 717.200 to
717.320, 717.900 and 717.905;
(b) Engaged or participated in any unsafe or unsound act with
respect to the business of selling or issuing payment instruments of the
licensee or the business of money transmission; or
(c) Made or caused to be made in any application or report filed
with the director, or in any proceeding before the director, any
statement that was, at the time and in the circumstances under which it
was made, false or misleading with respect to any material fact, or has
omitted to state in any such application or report any material fact that
is required to be stated in the application or report.
(3) Except as provided in subsection (4) of this section, the
director shall not issue an order under this section without opportunity
for a hearing in accordance with ORS chapter 183.
(4) If required for the immediate protection of the public
interest, an authorized delegate may be suspended without a hearing in
accordance with ORS 183.430 (2).
(5) An order of the director suspending or barring an authorized
delegate under this section shall state the grounds upon which the order
is based and, except for a summary order issued in accordance with ORS
183.430 (2), shall not become effective for at least 20 days after
written notice of the order has been sent by registered or certified mail
to the authorized delegate at the authorized delegate’s principal place
of business.
(6) Appeals from an order of the director suspending or barring an
authorized delegate may be taken to the courts of this state as provided
by ORS chapter 183. [1999 c.571 §18](1) The responsibility of a licensee to any person for a money
transmission conducted on that person’s behalf by the licensee or the
licensee’s authorized delegate shall be limited to the amount of money
transmitted or the face amount of the payment instrument purchased plus
statutory interest.
(2) In addition to any amounts under subsection (1) of this
section, the court may award a prevailing party reasonable costs and
attorney fees. [1999 c.571 §19] (1) If the Director of the
Department of Consumer and Business Services determines that any person
has engaged in, is engaging in or is about to engage in any act or
practice constituting a violation of ORS 717.200 to 717.320 or of any
rule adopted or order issued under ORS 717.200 to 717.320, the director
may:
(a) Order the person to cease and desist from the unlawful act or
practice; and
(b) Take any affirmative action as may be necessary to carry out
the provisions of ORS 717.200 to 717.320, including assessing the costs
of any investigation.
(2) Except as provided in subsection (3) of this section, the
director may not issue an order under this section without opportunity
for a hearing in accordance with ORS chapter 183.
(3) If required for the immediate protection of the public
interest, the director may issue a cease and desist order without a
hearing in accordance with ORS 183.430 (2).
(4) A cease and desist order of the director under ORS 717.200 to
717.320, 717.900 and 717.905 must state the grounds upon which the order
is based and, except for a summary order issued in accordance with ORS
183.430 (2), does not become effective for at least 20 days after written
notice of the order has been sent by registered or certified mail to the
person at the person’s principal place of business.
(5) Appeals from a cease and desist order of the director may be
taken to the courts of this state as provided by ORS chapter 183. [1999
c.571 §20; 2005 c.338 §23] (1) If the Director of the
Department of Consumer and Business Services believes that any person has
engaged in, is engaging in or is about to engage in any act or practice
constituting a violation of any provision of ORS 717.200 to 717.320,
717.900 and 717.905, or of any rule or order adopted or issued under ORS
717.200 to 717.320, 717.900 and 717.905, the director may initiate an
action in the Circuit Court for Marion County to enjoin the act or
practice and to enforce compliance with any provision of ORS 717.200 to
717.320, 717.900 and 717.905 or of any rule or order adopted or issued
under ORS 717.200 to 717.320, 717.900 and 717.905. Upon a proper showing,
a permanent or temporary injunction, restraining order or writ of
mandamus shall be granted or a receiver or conservator may be appointed
for the defendant’s assets. The director shall not be required to post a
bond. The court may award a prevailing party reasonable attorney fees and
costs.
(2) The director may enter into consent orders at any time with any
person to resolve any matter arising under ORS 717.200 to 717.320,
717.900 and 717.905. A consent order must be signed by the person to whom
it is issued or a duly authorized representative, and must indicate
agreement to the terms contained in the consent order. A consent order
need not constitute an admission by any person that any provision of ORS
717.200 to 717.320, 717.900 and 717.905, or of any rule or order adopted
or issued under ORS 717.200 to 717.320, 717.900 and 717.905, has been
violated, nor need it constitute a finding by the director that the
person has violated any provision of ORS 717.200 to 717.320, 717.900 and
717.905, or of any rule or order adopted or issued under ORS 717.200 to
717.320, 717.900 and 717.905.
(3) Notwithstanding the issuance of a consent order, the director
may seek civil or criminal penalties or compromise civil penalties
concerning matters encompassed by the consent order, unless the consent
order by its terms expressly precludes the director from so doing. [1999
c.571 §22] (1) For purposes of an investigation or
proceeding under ORS 717.200 to 717.320, 717.900 and 717.905, the
Director of the Department of Consumer and Business Services may
administer oaths and affirmations, subpoena witnesses and compel their
attendance, 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 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 issued pursuant to
this section or a party or witness refuses to testify on any matter, the
judge of the circuit court 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 the
court or a refusal to testify. [1999 c.571 §23](1) Any licensee, authorized delegate or other person
that knowingly engages in the money transmission business under ORS
717.200 to 717.320, 717.900 and 717.905, with or without filing a license
application, is considered to have:
(a) Consented to the jurisdiction of the courts of this state for
all actions arising under ORS 717.200 to 717.320, 717.900 and 717.905; and
(b) Appointed the Director of the Department of Consumer and
Business Services as the licensee’s, delegate’s or person’s lawful agent
for the purpose of accepting service of process in any action, suit or
proceeding that may arise under ORS 717.200 to 717.320, 717.900 and
717.905.
(2) Within three business days after service of process upon the
director, the director shall transmit by certified mail copies of all
lawful process accepted by the director as an agent to the person for
whom service of process is accepted at the person’s last known address.
Service of process shall be considered complete three business days after
the director deposits copies of the documents in the United States mail.
[1999 c.571 §26] (1) The Director of the Department of Consumer and
Business Services may adopt rules for the purpose of carrying out the
provisions of ORS 717.200 to 717.320, 717.900 and 717.905.
(2) In addition to the notice requirements of ORS chapter 183,
before the director adopts a permanent rule, the director shall submit a
copy of the proposed rule to each licensee. [1999 c.571 §25]
All fees, charges, costs and fines collected by the Director of the
Department of Consumer and Business Services under ORS 717.200 to
717.320, 717.900 and 717.905 shall be paid to the State Treasurer and
credited as provided in ORS 705.145. [1999 c.571 §28]ORS 717.200 to 717.320, 717.900 and 717.905
may be cited as the “Oregon Money Transmitters Act.” [1999 c.571 §27] (1) If the Director of the Department of
Consumer and Business Services finds that a person has violated any
provision of ORS 717.200 to 717.320, 717.900 and 717.905, or of a rule
adopted or order issued under ORS 717.200 to 717.320, 717.900 and
717.905, the director may impose a civil penalty in an amount specified
by the director, not to exceed $1,000 for each violation or, in the case
of a continuing violation, $1,000 for each day that the violation
continues. Civil penalties under this section shall be imposed in the
manner described in ORS 183.745. A penalty shall not be assessed under
this section until after the person subject to the penalty has been
notified in writing of the nature of the violation and has been afforded
a reasonable period of time, as set forth in the notice, to correct the
violation and has failed to do so.
(2) Appeals from orders of the director under this section may be
taken to the courts of this state as provided by ORS chapter 183.
(3) The director may compromise and settle with and collect civil
penalties from any person for violations of any provision of ORS 717.200
to 717.320, 717.900 and 717.905, or of any rule adopted or order issued
under ORS 717.200 to 717.320, 717.900 and 717.905. [1999 c.571 §21] (1) Except as provided in this section,
violation of any provision of ORS 717.200 to 717.320, 717.900 and 717.905
is a Class A misdemeanor.
(2) Any person that makes a material, false statement in any
document filed or required to be filed under ORS 717.200 to 717.320,
717.900 and 717.905 with the intent to deceive the recipient of the
document is guilty of a Class C felony.
(3) Any person that engages in the business of money transmission
without a license is guilty of a Class C felony. [1999 c.571 §24]
_______________CHAPTERS 718 TO 720[Reserved for expansion]
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