USA Statutes : oregon
Title : TITLE 50 TRADE REGULATIONS AND PRACTICES
Chapter : Chapter 646 Trade Practices and Antitrust Regulation
ORS
646.010 to 646.180 shall be known and designated as the Anti-price
Discrimination Law; and the inhibitions against discrimination in those
sections shall embrace any scheme of special concessions or rebates, any
collateral contracts or agreements or any device of any nature whereby
discrimination is, in substance or fact, effected in violation of the
spirit and intent of ORS 646.010 to 646.180.(1) When used in ORS 646.010
to 646.180, unless the context otherwise requires:

(a) “Commerce” means trade or commerce within this state, exclusive
of food commerce.

(b) “Food commerce” means trade or commerce within this state in
articles of food for human consumption and such other articles as usually
are sold in food stores in connection with articles of food for human
consumption. In the case of persons selling items other than items of
food commerce, the term “food commerce” is restricted solely to such
items of food commerce as are defined in this paragraph.

(c) “Person” means individual, corporation, partnership,
association, joint stock company, business trust or unincorporated
organization.

(d) “Price” means the net price to the buyer after the deduction of
all discounts, rebates, or other price concessions paid or allowed by the
seller.

(e) “Replacement cost” means the cost per unit at the retail outlet
at which the merchandise sold or offered for sale could have been bought
by the seller at any time within 10 days prior to the date of sale or the
date upon which it is offered for sale by the seller, if bought in the
same quantities as the seller’s usual or customary purchase of such
merchandise, after deducting all discounts, rebates or other price
concessions.

(f) “Retailer in food commerce” means any person engaged in food
commerce who sells directly to the consumer for use.

(g) “Wholesaler in food commerce” means any person engaged in food
commerce other than a retailer or producer, manufacturer or processor.

(2) As used in ORS 646.010 to 646.180, “vendor” includes any person
who performs work upon, renovates, alters or improves any personal
property belonging to another person.ORS 646.010 to
646.180 shall not prevent a cooperative association from returning to its
members, producers or consumers the whole, or any part of, the net
earnings or surplus resulting from its trading operations, in proportion
to their purchases or sales from, to or through the association. (1)
It is unlawful for any person engaged in commerce or food commerce, or
both, in the course of such commerce, either directly or indirectly, to
discriminate in price between different purchasers of commodities, or
services or output of a service trade, of like grade and quality or to
discriminate in price between different sections, communities or cities
or portions thereof or between different locations in sections,
communities, cities or portions thereof in this state, where the effect
of such discrimination may be substantially to lessen competition or tend
to create a monopoly in any line of commerce, or to injure, destroy or
prevent competition with any person who either grants or knowingly
receives the benefit of such discrimination, or with customers of either
of them.

(2) Subsection (1) of this section does not prevent:

(a) Differentials which make only due allowance for differences in
the cost of manufacture, sale or delivery, resulting from the differing
methods or quantities in which the commodities are sold or delivered to
purchasers.

(b) Persons engaged in selling goods, wares or merchandise, or
service or output of a service trade, in commerce from selecting their
own customers in bona fide transactions and not in restraint of trade.

(c) Price changes from time to time where in response to changing
conditions affecting the market for or marketability of the goods
concerned, such as but not limited to actual or imminent deterioration of
perishable goods, obsolescence of seasonal goods, distress sales under
court process, or sales in good faith in discontinuance of business in
the goods concerned.Upon proof being made, in any suit or
other proceeding in which any violation of ORS 646.010 to 646.180 is at
issue, that there has been discrimination in price, or in services or
facilities furnished, or in payment for services or facilities rendered
or to be rendered, the burden of rebutting the prima facie case thus made
by showing justification is upon the person charged with the violation;
but this section does not prevent a seller rebutting the prima facie case
so made by showing that the lower price of the seller, or the payment for
or furnishing of services or facilities to any purchaser or purchasers
was made in good faith to meet an equally low price of a competitor or
the services or facilities furnished by a competitor. No person engaged in commerce
or food commerce, or both, in the course of such commerce, shall pay,
grant, receive or accept anything of value as a commission, brokerage or
other compensation, or any allowance or discount in lieu thereof, except
for services rendered in connection with the sale or purchase of goods,
wares, service, or output of a service trade, or merchandise. In all such
transactions of sale and purchase, neither party to the transaction shall
pay or grant anything of value as a commission, brokerage or other
compensation, or any allowance or discount in lieu thereof, to the other
party to the transaction or to any agent, representative or other
intermediary therein, where such agent, representative or other
intermediary is acting for or in behalf of or is subject to the direct or
indirect control of the other party to the transaction. No person engaged in
commerce or food commerce, or both, in the course of such commerce, shall
pay or contract for the payment of anything of value to or for the
benefit of a customer of such person in the course of such commerce as
compensation or in consideration for any services or facilities furnished
by or through such customer in connection with the processing, handling,
sale or offering for sale of any products or commodities manufactured,
service or output of a service trade, sold or offered for sale by such
person, unless such payment or consideration is available on
proportionally equal terms to all other customers competing in the
distribution of such products or commodities, or service, or output of
service trades. No person engaged in
commerce or food commerce, or both, in the course of such commerce, shall
discriminate in favor of one purchaser against another purchaser or
purchasers of a commodity, or service, or output of a service trade,
bought for resale, with or without processing, by contracting to furnish
or furnishing, or by contributing to the furnishing of any services or
facilities connected with the processing, handling, sale or offering for
sale of such commodity, or service, or output of a service trade,
purchased upon terms not accorded to all purchasers on proportionally
equal terms. No
person engaged in commerce or food commerce, or both, in the course of
such commerce, shall knowingly induce or receive a discrimination in
price which is prohibited by ORS 646.040 to 646.080. Where a particular trade or
industry, of which the person, firm or corporation complained against is
a member, has an established cost survey for the locality and vicinity in
which the offense is committed, such cost survey is competent evidence to
be used in proving the costs of the person, firm or corporation
complained against within the provisions of ORS 646.010 to 646.180.(1) Any person injured by any
violation, or who will suffer injury from any threatened violation, of
ORS 646.010 to 646.180 may maintain an action in any court of general
equitable jurisdiction of this state, to prevent, restrain or enjoin the
violation or threatened violation. If in such action, a violation or
threatened violation of ORS 646.010 to 646.180 is established, the court
shall enjoin and restrain or otherwise prohibit such violation or
threatened violation, and the plaintiff in the action is entitled to
recover three-fold the damages sustained by the plaintiff. Except as
provided in subsection (2) of this section, the court may award
reasonable attorney fees to the prevailing party in an action under this
section.

(2) The court may not award attorney fees to a prevailing defendant
under the provisions of subsection (1) of this section if the action
under this section is maintained as a class action pursuant to ORCP 32.

(3) Actions brought under this section shall be commenced within
four years from the date of the injury. [Amended by 1981 c.897 §75; 1983
c.467 §2; 1995 c.696 §33] If no injunctive relief is sought or
required, any person injured by any violation of ORS 646.010 to 646.180
may maintain an action for damages alone in any court of general
jurisdiction in this state. The measure of damages in such action shall
be the same as that prescribed by ORS 646.140. In any proceedings instituted or
action brought in pursuance of the provisions of ORS 646.140 or 646.150,
the plaintiff, upon proof that the plaintiff has been unlawfully
discriminated against by the defendant, shall conclusively be presumed to
have sustained damages equal to the monetary amount or equivalent of the
unlawful discrimination; and, in addition thereto, may establish such
further damages, if any, as the plaintiff may have sustained as a result
of the discrimination. Any defendant in an action
brought under the provisions of ORS 646.140 to 646.160 may be required to
testify under the provisions of ORCP 65 or by deposition. In addition,
the books and records of any such defendant may be brought into court and
introduced, by reference, into evidence. No information so obtained may
be used against the defendant as a basis for a criminal prosecution under
ORS 646.990 (1). [Amended by 1979 c.284 §184; 1981 c.898 §52] Any contract, express or implied, made
by any person in violation of any of the provisions of ORS 646.010 to
646.180 is an illegal contract and no recovery thereon shall be had.SELLERS OF TRAVEL As used in ORS
646.185 to 646.195:

(1) “Accommodations” means the provision of land, sea or air
transportation or a combination of transportation and any goods and
services sold in conjunction with that transportation, including but not
limited to lodging, meals and entertainment.

(2) “Adequate financial security” means a bond executed by an
authorized surety insurer or an irrevocable letter of credit issued by an
insured institution as defined in ORS 706.008 for the benefit of every
person for whom services have not been delivered by the wrongful act of
the seller of travel acting in the course and scope of the seller’s
occupation or business or by any official, agent or employee of the
seller acting in the course or scope of that person’s employment or
agency. The financial security shall be in an amount not less than
$10,000. The financial security shall be continuous until canceled and
shall remain in full force and unimpaired at all times to comply with
this subsection. If the financial security is a bond, the surety insurer
shall give the Director of the Department of Consumer and Business
Services at least 30 days’ written notice before it cancels or terminates
its liability under the bond.

(3) “Consumer” means a person in Oregon that purchases
accommodations and on whose behalf money or other consideration has been
given to another, including another member of the same partnership,
corporation, joint venture, association, organization, group or other
entity, for procuring accommodations.

(4) “Department” means the Department of Consumer and Business
Services.

(5) “Director” means the Director of the Department of Consumer and
Business Services.

(6) “Seller of travel” or “seller” means a person that sells,
provides, furnishes, contracts for, arranges or advertises in this state
that the person can or may arrange or has arranged accommodations either
separately or in conjunction with other services.

(7) “State of Oregon certified association” or “certified
association” means an association of sellers of travel that has been
certified by the director as described in ORS 646.191. [Formerly 646.200;
2001 c.639 §1]An association of sellers of travel may apply to the
Director of the Department of Consumer and Business Services for
certification as a certified association by filing an application on a
form approved by the director. The application shall be accompanied by:

(1) A business plan describing provisions for enforcement of the
requirements of ORS 646.185 to 646.195 by the association;

(2) A copy of the governing rules or bylaws of the association;

(3) A description of the source of revenue for administration of
the association; and

(4) Any other information required by rule or order of the
director. [1999 c.194 §3](1) An association of sellers of travel
shall be eligible for certification as a certified association if the
Director of the Department of Consumer and Business Services determines
that:

(a) The rules or bylaws of the association require members of the
association to:

(A) Maintain adequate financial security;

(B) Maintain errors and omissions insurance; or

(C) Maintain accreditation by the Airlines Reporting Corporation,
its successor or a similar entity designated by the association and
approved by the director.

(b) The rules or bylaws of the association require members of the
association to participate in a program of mediation of disputes between
members and consumers.

(c) The rules or bylaws of the association require members of the
association to comply with a written code of ethics that sets
requirements for at least:

(A) Advertising and promotion policies;

(B) Disclosure of consumer rights;

(C) Disclosure of policies and procedures for refunds to consumers;
and

(D) Disclosure of the limits of liability of the seller of travel
in all transactions.

(d) The rules, bylaws or code of ethics of the association provides
that a seller of travel may not be admitted to the association or
maintain membership in the association if, during the three years prior
to application for membership in the association or at any time after
admission to the association, the seller of travel, or the owner,
principal or any person having control over the seller of travel, has
been:

(A) Convicted of any offense involving fraud, deception,
misrepresentation, misappropriation of property or breach of trust or
other fiduciary obligation;

(B) The subject of an order of any federal, state or local court or
administrative agency denying, suspending or revoking any license or any
other authority to engage in business as a seller of travel; or

(C) The subject of any civil judgment or penalty imposed by any
federal, state or local court or administrative agency.

(e) The rules or bylaws of the association provide for the
suspension or revocation of membership in the association if a member
does not comply with the rules or bylaws of the association, ORS 646.185
to 646.195 or rules adopted by the director under ORS 646.185 to 646.195.

(2) The director by rule may establish additional requirements for
certification.

(3) As used in this section:

(a) “Conviction” includes, but is not limited to, a plea of nolo
contendere, a consent judgment, a judgment, an administrative order and
an assurance of voluntary compliance.

(b) “Owner” means a person who owns or controls 10 percent or more
of the equity of, or otherwise has claim to 10 percent or more of the net
income of, the seller of travel.

(c) “Principal” means an owner, an officer of a corporation, a
general partner of a partnership or a sole proprietor of a sole
proprietorship. [1999 c.194 §4; 2001 c.639 §2; 2003 c.576 §528] (1) If
the Director of the Department of Consumer and Business Services
determines that an association of sellers of travel that has applied for
certification under ORS 646.189 has satisfied the requirements of ORS
646.185 to 646.195 and rules adopted by the director under ORS 646.185 to
646.195, the director shall certify the association as a State of Oregon
certified association.

(2)(a) Certification under this section shall remain in effect
until the certificate is surrendered by the association or revoked or
suspended by the director as provided in ORS 646.193.

(b) A certificate issued under subsection (1) of this section need
not be renewed.

(3) The director by rule shall provide for periodic review of the
operation of each certified association. The review shall be conducted at
least once every 24 months and shall be designed to determine whether the
certified association is complying with the provisions of ORS 646.185 to
646.195, with rules adopted by the director under ORS 646.185 to 646.195
and with the rules, bylaws and business plan of the certified
association. The director may assess the association for the actual and
reasonable costs of the review. [1999 c.194 §5] (1) The
Director of the Department of Consumer and Business Services may deny
certification or suspend or revoke any certification issued pursuant to
ORS 646.191 if the director finds that:

(a) The business plan of the association does not satisfy the
requirements of ORS 646.187;

(b) The association has violated any provision of ORS 646.185 to
646.195, any rule adopted by the director under ORS 646.185 to 646.195 or
any order of the director; or

(c) The association has violated or is not complying with its
rules, bylaws or business plan.

(2) If the director proposes to deny, suspend or revoke a
certificate, an opportunity for a hearing shall be accorded as provided
in ORS chapter 183.

(3) Judicial review of orders under subsection (2) of this section
shall be as provided in ORS chapter 183. [1999 c.194 §6]
(1) A person shall not claim membership in a certified association or
utilize any logo or other indicia of membership in a certified
association unless the person is a member in good standing of the
certified association.

(2) Prior to taking any enforcement action under ORS 646.608, the
Attorney General may refer any complaint alleging violation of any
provision of ORS 646.185 to 646.195 or any rule adopted by the director
under ORS 646.185 to 646.195 by a member of a certified association to
the member for resolution or mediation. [1999 c.194 §7]MAIL AGENTS As used in ORS
646.221 to 646.240:

(1) “Mail agent” means any person, sole proprietorship,
partnership, corporation or other entity who owns, manages, rents or
operates one or more mailboxes, as defined in this section, for receipt
of United States mail or materials received from or delivered by a
private express carrier, for any person, sole proprietorship,
partnership, corporation or other entity not the mail agent.

(2) “Mailbox” means any physical location or receptacle where
United States mail or materials received from or delivered by a private
express carrier are received, stored or sorted, including letter boxes.

(3) “Tenant” means any person, sole proprietorship, partnership,
corporation or other entity who contracts with or otherwise causes a mail
agent to receive, store, sort, hold or forward any United States mail or
materials received from or delivered by any private express carrier on
the tenant’s behalf. [1991 c.465 §1] (1)
A mail agent shall not contract with a tenant to receive United States
mail or materials received from or delivered by a private express carrier
on the tenant’s behalf if the mail agent knows or should know that the
tenant has provided a false name, title or address to the mail agent.

(2) Prior to contracting with a tenant to receive United States
mail or materials received from or delivered by a private express carrier
on the tenant’s behalf, the mail agent shall independently verify:

(a) The identity of the tenant.

(b) The residence address of the tenant if the tenant is an
individual or the business address of the tenant if the tenant is a
business entity.

(c) In the case of a corporation, that the corporation is
authorized to do business in this state.

(d) In the case of an entity using an assumed business name, that
the name has been registered for use in the State of Oregon.

(3) The mail agent shall accept mail or materials received from or
delivered by a private express carrier on behalf of the tenant only if
the mail is, or the materials received from or delivered by a private
express carrier are addressed to the tenant. The mail agent shall not
deposit United States mail or materials received from or delivered by a
private express carrier in any mailbox unless the addressee has rented a
mailbox from the mail agent.

(4) Whenever a mail agent has reason to believe that a tenant is
using a mailbox to escape identification, the mail agent shall
immediately notify the Attorney General and the United States Postal
Inspector. [1991 c.465 §2] (1) Except as
provided in subsection (5) of this section, a mail agent shall maintain:

(a) A surety bond in the sum of $10,000 executed by the mail agent
as obligor, together with a surety company authorized to do business in
this state as surety; or

(b) An irrevocable letter of credit issued by an insured
institution as defined in ORS 706.008 in the amount of $10,000.

(2) The bond or letter of credit must:

(a) Be executed to the State of Oregon and for the use of the state
and of any person who may have a cause of action against the obligor of
the bond or the letter of credit for a violation of ORS 646.225 or for
damages under ORS 646.235.

(b) Provide that the obligor will comply with ORS 646.225 and will
pay to the state and to any person the moneys that may become due or
owing to the state or to the person from the obligor for a violation of
ORS 646.225.

(3) The Attorney General shall approve the form of the bond or
letter of credit.

(4) If a person recovers a judgment against a mail agent for a
violation of ORS 646.225 and execution issued upon the judgment is
returned unsatisfied in whole or in part, the person may maintain an
action upon the bond or letter of credit.

(5) Subsection (1) of this section does not apply to a mail agent
whose activity as a mail agent consists solely of receiving, storing,
sorting, holding or forwarding United States mail or materials received
from or delivered by a private express carrier for tenants of the mail
agent if:

(a) The tenant is also renting or leasing from the mail agent an
office, store, residential unit or other space or unit intended for human
occupancy, and the space or unit is located on the same premises as the
mailbox; and

(b) The mail agent services that the mail agent is providing to the
tenant are incidental to and a part of the landlord-tenant relationship
that exists between the mail agent and the tenant with respect to the
leased space or unit. [1991 c.465 §3; 2005 c.384 §1] Upon proof by a preponderance of evidence that a
mail agent has failed to satisfy any of the mail agent’s duties set forth
in ORS 646.225, the mail agent shall be liable for actual damages caused
to any person who sent United States mail or materials received from or
delivered by a private express carrier addressed to a fictitious person
at any tenant’s mailbox and who is damaged because the person who sent
the United States mail or materials received from or delivered by a
private express carrier is unable to identify the tenant. A mail agent’s
liability under this section shall not exceed $1,000 per occurrence.
[1991 c.465 §4](1) The Attorney General may bring an
action in the name of the state against any mail agent for violation of
ORS 646.225 or 646.229. Upon proof by a preponderance of the evidence of
a violation of ORS 646.225 or 646.229, a mail agent shall forfeit and pay
a civil penalty of not more than $1,000 for an initial violation. For a
second or subsequent violation, the mail agent shall forfeit and pay a
civil penalty of not more than $5,000 for each violation.

(2) The Attorney General may bring an action in the name of the
state against any mail agent or other person or entity to restrain or
prevent any violation of ORS 646.225 or 646.229.

(3) The Attorney General may bring an action on behalf of a person
to obtain the damages caused to the person by a mail agent’s violation of
ORS 646.225 or 646.229.

(4) The court may award reasonable attorney fees and costs of
investigation, preparation and litigation to the Attorney General if the
Attorney General prevails in an action under this section. The court may
award reasonable attorney fees and costs of investigation, preparation
and litigation to a defendant who prevails in an action under this
section if the court determines that the Attorney General had no
objectively reasonable basis for asserting the claim or no reasonable
basis for appealing an adverse decision of the trial court. [1991 c.465
§5; 1995 c.696 §34; 2005 c.384 §2]LEASE-PURCHASE AGREEMENTS As used in ORS
646.245 to 646.259:

(1) “Advertisement” means a commercial message in any medium that
aids, promotes or assists, directly or indirectly, a lease-purchase
agreement.

(2) “Cash price” means the price at which the lessor would have
sold the property to the consumer for cash on the date of the
lease-purchase agreement.

(3) “Consumer” means an individual who rents personal property
under a lease-purchase agreement to be used primarily for personal,
family or household purposes.

(4) “Consummation” means the time a consumer becomes contractually
obligated on a lease-purchase agreement.

(5) “Lease-purchase agreement” means an agreement for the use of
personal property by an individual for personal, family or household
purposes, for an initial period of four months or less, that is
automatically renewable with each payment after the initial period, but
does not obligate or require the consumer to continue leasing or using
the property beyond the initial period, and that permits the consumer to
become the owner of the property.

(6) “Lessor” means a person who regularly provides the use of
property through lease-purchase agreements and to whom lease payments are
initially payable on the face of the lease-purchase agreement. [1993
c.283 §1] (1) Lease-purchase
agreements that comply with ORS 646.245 to 646.259 are not governed by
laws relating to:

(a) A security interest under ORS chapter 79.

(b) A retail installment contract under ORS 83.010 to 83.190.

(2) ORS 646.245 to 646.259 do not apply to the following:

(a) Lease-purchase agreements primarily for business, commercial or
agricultural purposes, or those made with governmental agencies or
instrumentalities or with organizations;

(b) A lease of a safe deposit box;

(c) A lease or bailment of personal property which is incidental to
the lease of real property, and which provides that the consumer has no
option to purchase the leased property; or

(d) A lease of a motor vehicle. [1993 c.283 §2] (1) The lessor shall
disclose to the consumer the information required by ORS 646.251. In a
transaction involving more than one lessor, only one lessor need make the
disclosures, but all lessors shall be bound by the disclosures.

(2) The disclosures shall be made at or before consummation of the
lease-purchase agreement.

(3) The disclosures shall be made clearly and conspicuously in
writing and a copy of the lease-purchase agreement shall be provided to
the consumer. The disclosures required under ORS 646.251 shall be made on
the face of the contract above the line for the consumer’s signature.

(4) If a disclosure becomes inaccurate as the result of any act,
occurrence or agreement by the consumer after delivery of the required
disclosures, the resulting inaccuracy is not a violation of ORS 646.245
to 646.259.

(5) If any portion of the transaction is conducted in any language
other than English, the disclosures required under ORS 646.245 to 646.259
shall be in the language other than English. This subsection does not
apply if any portion of the transaction is conducted through an
interpreter supplied by the lessee. [1993 c.283 §3] For each lease-purchase
agreement, the lessor shall disclose in the agreement the following
items, as applicable:

(1) Whether the periodic payment is weekly, monthly or otherwise,
the dollar amount of each payment and the total number and total dollar
amount of all periodic payments necessary to acquire ownership of the
property;

(2) A statement that the consumer will not own the property until
the consumer has made the total payment necessary to acquire ownership;

(3) A statement advising the consumer whether the consumer is
liable for loss or damage to the property, and, if so, the maximum amount
for which the consumer is liable;

(4) A brief description of the leased property, sufficient to
identify the property to the consumer and the lessor, including an
identification number, if applicable, and a statement indicating whether
the property is new or used. A statement that indicates new property is
used is not a violation of ORS 646.245 to 646.259;

(5) A statement of the cash price of the property. Where one
agreement involves a lease of two or more items as a set, a statement of
the aggregate cash price of all items shall satisfy this requirement;

(6) The total of initial payments paid or required at or before
consummation of the agreement or delivery of the property, whichever is
later;

(7) A statement that the total amount of payments does not include
other charges, such as late payment, default, pickup and reinstatement
fees. Fees listed in this subsection shall be disclosed separately in the
agreement;

(8) A statement clearly summarizing the terms of the consumer’s
option to purchase, including a statement that the consumer has the right
to exercise an early purchase option, and the price, formula or method
for determining the price at which the property may be so purchased;

(9) A statement identifying the party responsible for maintaining
or servicing the property while it is being leased, together with a
description of that responsibility, and a statement that if any part of a
manufacturer’s express warranty covers the lease property at the time the
consumer acquires ownership of the property, it shall be transferred to
the consumer, if allowed by the terms of the warranty;

(10) The date of the transaction and the identities of the lessor
and consumer;

(11) A statement that the consumer may terminate the agreement
without penalty by voluntarily surrendering or returning the property in
good repair, reasonable wear and tear excepted, upon expiration of any
lease term along with any past due rental payments; and

(12) Notice of the right to reinstate an agreement as provided in
ORS 646.245 to 646.259. [1993 c.283 §4] A
lease-purchase agreement may not contain:

(1) A confession of judgment;

(2) A negotiable instrument;

(3) A security interest or any other claim of a property interest
in any goods except those goods delivered by the lessor pursuant to the
lease-purchase agreement;

(4) A wage assignment;

(5) A waiver by the consumer of claims or defenses;

(6) A provision authorizing the lessor or a person acting on the
lessor’s behalf to enter upon the consumer’s premises without the
permission of the consumer or to commit any breach of the peace in the
repossession of goods;

(7) A provision requiring the purchase of insurance or liability
damage waiver from the lessor for property that is the subject of the
lease-purchase agreement;

(8) A provision that mere failure to return property constitutes
probable cause for a criminal action;

(9) A provision requiring the lessee to make a payment in addition
to regular lease payments in order to acquire ownership of the leased
property, or a provision requiring the lessee to make lease payments
totaling more than the dollar amount necessary to acquire ownership, as
disclosed pursuant to ORS 646.251;

(10) A provision requiring a late charge or reinstatement fee
unless a periodic payment is late more than two days on a weekly
agreement, or five days on a monthly agreement;

(11) A late charge or reinstatement fee in excess of $5; or

(12) More than one late charge or reinstatement fee on any one
periodic payment regardless of the period of time during which it remains
in default. [1993 c.283 §5](1) A consumer who fails to make a timely
rental payment may reinstate the agreement, without losing any rights or
options which exist under the agreement, by the payment of:

(a) All past due rental charges;

(b) If the property has been picked up, the reasonable costs of
pickup and redelivery; and

(c) Any applicable late fee, within five days of the renewal date
if the consumer pays monthly, or within two days of the renewal date if
the consumer pays more frequently than monthly.

(2) In the case of a consumer who has paid less than two-thirds of
the total of payments necessary to acquire ownership and where the
consumer has returned or voluntarily surrendered the property, other than
through judicial process, during the applicable reinstatement period set
forth in subsection (1) of this section, the consumer may reinstate the
agreement during a period of not less than 21 days after the date of the
return of the property.

(3) In the case of a consumer who has paid two-thirds or more of
the total of payments necessary to acquire ownership, and where the
consumer has returned or voluntarily surrendered the property, other than
through judicial process, during the applicable period set forth in
subsection (1) of this section, the consumer may reinstate the agreement
during a period of not less than 30 days after the date of the return of
the property.

(4) Nothing in this section shall prevent a lessor from attempting
to repossess property during the reinstatement period, but such a
repossession shall not affect the consumer’s right to reinstate. Upon
reinstatement, the lessor shall provide the consumer with the same
property or substitute property of comparable quality and condition.

(5) A lessor shall provide the consumer with a written receipt for
each payment made by cash or money order. [1993 c.283 §§6,7] (1)
A renegotiation shall occur when an existing lease-purchase agreement is
satisfied and replaced by a new agreement undertaken by the same lessor
and consumer. A renegotiation shall be considered a new agreement
requiring new disclosures. A renegotiation shall not include:

(a) The addition or return of property in a multiple item agreement
or the substitution of the lease property, if in either case the average
payment allocable to a payment period is not changed by more than 10
percent;

(b) A deferral or extension of one or more periodic payments, or
portions of a periodic payment;

(c) A reduction in charges in the lease or agreement; and

(d) A lease or agreement involved in a court proceeding.

(2) No disclosures are required for any extension of a
lease-purchase agreement. [1993 c.283 §8](1) If an advertisement for a lease-purchase agreement refers
to or states the dollar amount of any payment and the right to acquire
ownership for any one specific item, the advertisement shall also clearly
and conspicuously state the following items, as applicable:

(a) That the transaction advertised is a lease-purchase agreement;

(b) The total of payments necessary to acquire ownership; and

(c) That the consumer acquires no ownership rights if the total
amount necessary to acquire ownership is not paid.

(2) Any owner or personnel of any medium in which an advertisement
appears or through which it is disseminated shall not be liable under
this section.

(3) The provisions of subsection (1) of this section shall not
apply to an advertisement which does not refer to or state the amount of
any payment, or which is published in the yellow pages of a telephone
directory or in any similar directory of business.

(4) Every item displayed or offered under a lease-purchase
agreement shall have clearly and conspicuously indicated in Arabic
numerals, so as to be readable and understandable by visual inspection,
each of the following stamped upon or affixed to the item:

(a) The cash price of the item;

(b) The amount of the periodic payment; and

(c) The total number of periodic payments required for ownership.
[1993 c.283 §9]SERVICE CONTRACTS

(a) Create a legal framework within which service contracts may be
sold in this state;

(b) Encourage innovation in the marketing and development of more
economical and effective means of providing services under service
contracts, while placing the risk of innovation on the obligors rather
than on consumers; and

(c) Permit and encourage fair and effective competition among
different systems of providing and paying for service contracts.

(2) ORS 646.263 to 646.285 do not apply to:

(a) Warranties; or

(b) Maintenance agreements. [1995 c.801 §1] As used in ORS
646.263 to 646.285:

(1) “Maintenance agreement” means a contract of limited duration
that provides for scheduled maintenance only.

(2) “Obligor” means the person who is contractually obligated to
the service contract holder to provide service under a service contract
and who:

(a) Sold the merchandise covered by the service contract;

(b) Sells merchandise similar to that covered by the service
contract; or

(c) Is acting through or with the written consent of the
manufacturer, importer or seller of the merchandise covered by the
service contract.

(3) “Person” means an individual, partnership, corporation,
incorporated or unincorporated association, joint stock company,
reciprocal, syndicate or any similar entity or combination of entities
acting in concert.

(4) “Service contract” is a contract described in ORS 646.267.

(5) “Service contract holder” or “contract holder” means a person
who is the purchaser or holder of a service contract.

(6) “Service contract seller” means a person who markets, sells or
offers to sell a service contract.

(7) “Warranty” means a warranty made solely by the manufacturer,
importer or seller of property or services, without charge, that is not
negotiated or separated from the sale of the product and is incidental to
the sale of the product, and that guarantees indemnity for defective
parts, mechanical or electrical breakdown, labor or other remedial
measures, such as repair or replacement of the property or repetition of
services. [1995 c.801 §2](1) For
the purposes of this section, a service contract is a contract or
agreement to perform or indemnify for a specific duration the repair,
replacement or maintenance of property for operational or structural
failure due to a defect in materials, workmanship or normal wear and
tear, with or without additional provision for incidental payment of
indemnity under limited circumstances, including but not limited to
rental and emergency road service. A service contract may also provide
for the repair, replacement or maintenance of property for damage
resulting from lightning, power surges or accidental damage from
handling. Consideration for a service contract must be stated separately
from the price of the consumer product. The term “service contract” does
not include insurance policies issued by insurers under the Insurance
Code, or maintenance agreements.

(2) An obligor may not issue, sell or offer for sale a service
contract in this state unless the obligor has complied with the
provisions of this section and ORS 646.269 and 646.271.

(3) All obligors of service contracts issued, sold or covering
property located in this state shall file a registration with the
Director of the Department of Consumer and Business Services on a form,
at a fee and at a frequency prescribed by the director pursuant to ORS
646.281.

(4) An obligor shall keep accurate accounts, books and records
concerning transactions involving service contracts.

(5) Except as provided in subsection (6) of this section, to ensure
the faithful performance of an obligor’s obligations to its contract
holders, each obligor shall provide the director with one of the
following as proof of financial stability:

(a) A copy of the obligor’s or, if the obligor’s financial
statements are consolidated with those of its parent company, the
obligor’s parent company’s most recent Form 10-K filed with the
Securities and Exchange Commission which shows a net worth of the obligor
or its parent company of at least $100 million provided the Form 10-K was
filed with the Securities and Exchange Commission within the last
calendar year. If the obligor’s parent company’s Form 10-K is filed to
meet the obligor’s financial stability requirement, then the parent
company shall agree to guarantee the obligations of the obligor relating
to service contracts sold by the obligor in this state.

(b) Evidence of a reimbursement insurance policy described in ORS
742.390 that is obtained by the obligor and issued by an authorized
insurer that insures all service contracts issued by the obligor.

(6)(a) An obligor of a home service agreement as defined in ORS
731.164 shall file with the director a surety bond executed to the State
of Oregon in the sum of $25,000. The surety bond shall be issued by a
surety company authorized to do business in this state. An obligor of a
home service agreement is not required to file proof of financial
stability under subsection (5) of this section.

(b) The surety bond shall be issued on the condition that the
obligor comply with all provisions of ORS 646.263 to 646.285 and fully
perform on all contracts or agreements entered into.

(c) The surety bond shall be continuous until canceled and shall
remain in full force and unimpaired at all times to comply with this
section. The surety shall give the director at least 30 days’ written
notice by registered or certified mail before the surety cancels or
terminates its liability under the bond.

(d) Any person who suffers damage as a result of a violation of any
provision of ORS 646.263 to 646.285 or any rule adopted by the director
pursuant to ORS 646.263 to 646.285 shall have a right of action under the
bond. An action under the bond may be brought by the state or by any
person with a right of action by filing a complaint in a court of
competent jurisdiction not later than one year after the surety bond is
canceled or terminated. The court may award the prevailing plaintiff
reasonable attorney fees and costs in an action under the bond.

(e) The aggregate liability of the surety shall not exceed the
principal sum of the bond.

(7) Filing requirements are as follows:

(a) The obligor shall file with the director proof of financial
stability or a surety bond as required by subsection (5) or (6) of this
section.

(b) The director may adopt rules concerning the procedure for
filing the proof of financial stability or the surety bond.

(c) A person may not file or cause to be filed with the director
any article, certificate, report, statement, application or any other
information required or permitted to be filed under this subsection that
the person knows to be false or misleading in any material respect.

(8) Service contract sellers and their employees marketing, selling
or offering to sell service contracts for obligors who comply with this
section and ORS 646.269 and 646.271 are exempt from the requirements of
the Insurance Code including, but not limited to, the requirement to
belong to the Oregon Insurance Guaranty Association.

(9) Obligors complying with ORS 646.269 and 646.271 are not
required to comply with the Insurance Code including, but not limited to,
the requirement to belong to the Oregon Insurance Guaranty Association.

(10) If a service contract seller is not the same person as the
obligor under the service contract, the service contract seller shall
remit the agreed-upon consumer purchase price of the service contract to
the obligor within 30 days of the sale of such service contract or upon
such terms and conditions as may be agreed to in writing between the
service contract seller and obligor. [1995 c.801 §3; 2005 c.395 §1] A service contract
issued, sold or offered for sale in this state shall meet the following
requirements:

(1) The service contract shall be written in clear, understandable
language.

(2) The service contract shall identify the obligor and the service
contract seller.

(3) If prior approval of repair work is required, the service
contract shall state the procedure for obtaining prior approval and for
making a claim, including a toll-free telephone number for claim service
and a procedure for obtaining reimbursement for emergency repairs
performed outside of normal business hours.

(4) The service contract shall conspicuously state the existence of
any deductible amount.

(5) The service contract shall specify the merchandise covered,
services to be provided and any limitations, exceptions or exclusions.

(6) The service contract shall state any terms, restrictions or
conditions governing the transferability of the service contract by the
service contract holder.

(7) The service contract shall state the terms, restrictions or
conditions governing termination of the service contract by the service
contract holder. [1995 c.801 §4] (1) A service contract seller or
obligor shall not in a misleading or deceptive manner use in its name,
contracts or literature, the words insurance, casualty, guaranty, surety,
mutual or any other words descriptive of the insurance, casualty,
guaranty, surety or mutual business.

(2) In the offer or sale of any service contract, a person may not:

(a) Make, issue, circulate or cause to be made, issued or
circulated, any estimate, illustration, circular or statement
misrepresenting the terms of any service contract sold or to be sold or
the benefits or advantages therein.

(b) Employ any device, scheme or artifice to defraud.

(c) Obtain money or property by means of any untrue statement of a
material fact or any omission to state a material fact necessary in order
to make the statement made, in light of the circumstances under which it
was made, not misleading.

(d) Engage in any other transaction, practice or course of business
which operates as a fraud or deceit upon the service contract holder.

(3) In providing required services under a service contract, a
person may not:

(a) Fail to acknowledge and act within a reasonable time upon
communications requesting services under a service contract. Unless the
service contract provides otherwise, a person shall be deemed to have
acted within a reasonable time if the person responds to a communication
received from a service contract holder within 30 days of receipt of the
communication.

(b) Fail to act in good faith in reviewing a request for services
under a service contract and advising the service contract holder whether
the request is covered under the terms and conditions of the service
contract.

(c) Fail to act in good faith in providing covered services under a
service contract. [1995 c.801 §5](1) An obligor is
considered to be the agent of the insurer that issued the reimbursement
insurance policy. If a service contract seller acts as an obligor and
enlists other service contract sellers, the service contract seller
acting as the obligor shall notify the insurer of the existence and
identities of the other service contract sellers.

(2) An insurer that issues a reimbursement insurance policy may
seek indemnification or subrogation against a service contract seller if
the issuer pays or is obligated to pay the service contract holder sums
that the service contract seller was obligated to pay pursuant to the
provisions of the service contract or under a contractual agreement.
[1995 c.801 §9](1) The Director of the Department of Consumer and
Business Services may, upon a reasonable belief that a violation of ORS
646.267, 646.269 or 646.271 has occurred, make necessary public and
private investigations within or without this state to determine whether
any person has violated those provisions.

(2) In connection with any investigation conducted pursuant to
subsection (1) of this section, a service contract seller or obligor,
upon written request of the director, shall make available to the
director its service contract records for inspection and copying. The
records that must be made available in accordance with this section shall
be only those records necessary to enable the director to reasonably
determine compliance with ORS 646.267, 646.269 and 646.271.

(3) For the purpose of an investigation or proceeding under
subsection (1) of this section, the director may administer oaths and
affirmations, subpoena witnesses, compel their attendance, take evidence
and require the production of books, papers, correspondence, memoranda,
agreements or other documents or records that are relevant or material to
the inquiry. Each witness who appears before the director under a
subpoena shall receive the fees and mileage provided for witnesses in ORS
44.415 (2).

(4) If a person fails to comply with a subpoena issued under
subsection (3) of this section, or a party or witness refuses to testify
on any matters, the judge of the circuit court for any county, on the
application of the director, shall compel obedience by proceedings for
contempt as in the case of disobedience of the requirements of a subpoena
issued from such court or a refusal to testify therein.

(5) The director may, upon a reasonable belief that a person is or
is about to be in violation of ORS 646.267, 646.269 or 646.271, issue an
order, directed to the person, to discontinue or desist from the
violation or threatened violation. The copy of the order forwarded to the
person involved shall set forth a statement of the specific charges and
the fact that the person may request a hearing within 20 days of the date
of mailing. Where a hearing is requested, the director shall set a date
for the hearing to be held within 30 days after receipt of the request,
and shall give the person involved written notice of the hearing date at
least seven days prior thereto. The person requesting the hearing must
establish to the satisfaction of the director that the order should not
be complied with. The order shall become final 20 days after the date of
mailing unless within the 20-day period the person to whom it is directed
files with the director a written request for a hearing. To the extent
applicable and not inconsistent with the foregoing, the provisions of ORS
chapter 183 shall govern the hearing procedure and any judicial review
thereof. Where the hearing has been requested, the director’s order shall
become final at such time as the right to further hearing or review has
expired or been exhausted.

(6) A person who is found to have violated ORS 646.267, 646.269 or
646.271 may be ordered to pay to the General Fund a civil penalty in an
amount determined by the director of not more than:

(a) $2,000 for the first violation.

(b) $5,000 for the second violation.

(c) $10,000 for any subsequent violation.

(7) For purposes of this section, a violation consists of a single
course of conduct which is determined by the director to be untrue or
misleading. [1995 c.801 §10] (1)
Except as provided in subsection (3) of this section, a complaint made to
the director against any person regulated by ORS 646.263 to 646.285,
742.390 and 742.392, and the record thereof, shall be confidential, and
shall not be disclosed or available for public inspection or review. No
such complaint, or the record thereof, shall be used in any action, suit
or proceeding except to the extent it is essential to the prosecution of
apparent violations of ORS 646.263 to 646.285, 742.390 and 742.392.

(2) Except as provided in subsection (3) of this section, data
gathered pursuant to any investigation by the director shall be
confidential, and shall not be disclosed or available for public
inspection or review. The data shall not be used in any action, suit or
proceeding except to the extent it is essential in the investigation or
prosecution of apparent violations of ORS 646.263 to 646.285, 742.390 and
742.392.

(3) Notwithstanding subsections (1) and (2) of this section, the
director may disclose any complaint and any data gathered pursuant to ORS
646.263 to 646.285, 742.390 and 742.392 to any state, federal or local
enforcement agency. The recipient agency may use the complaint and data
for any official purpose, including the civil enforcement of laws subject
to the agency jurisdiction. [1995 c.801 §11]The Director of the Department of Consumer and Business
Services may refuse to continue or may suspend or revoke an obligor’s
registration if the director finds after a hearing that:

(1) The obligor has intentionally engaged in a pattern or practice
of failing to comply with any lawful order of the director relating to a
prior violation of ORS 646.271 (3)(c).

(2) The obligor fails to meet or maintain the financial stability
requirements set forth in ORS 646.267. [1995 c.801 §12] (1) Each
obligor that issues a service contract to a resident of this state shall
pay an assessment not to exceed $1,000 to the Director of the Department
of Consumer and Business Services for the purpose of supporting the
legislatively authorized budget of the department for administering ORS
646.263 to 646.285, 742.390 and 742.392. The director shall determine by
rule the basis of assessment, the amount or rate of assessment and when
assessments shall be paid.

(2) The fee prescribed by the director for registration under ORS
646.267 shall not exceed $200 per obligor per year. [1995 c.801 §13] The application of any remedy under
any provision of ORS 646.263 to 646.285, 742.390 and 742.392 shall not
preclude the application of any other remedy under ORS 646.263 to
646.285, 742.390 and 742.392 or any other provision of law. The
application of any remedy under any provision of law shall not preclude
the application of any remedy under ORS 646.263 to 646.285, 742.390 and
742.392. [1995 c.801 §14] (1) The Director of
the Department of Consumer and Business Services may adopt rules
necessary to implement ORS 646.263 to 646.285.

(2) The director may by rule exempt certain obligors or service
contract sellers or specific classes of service contracts that are not
otherwise exempt under ORS 646.263 (2) from any provision of ORS 646.263
to 646.285, 742.390 and 742.392. The director may include in the rules
substitute requirements on a finding that a particular provision of ORS
646.263 to 646.285, 742.390 and 742.392 is not necessary for the
protection of the public or that the substitute requirement is reasonably
certain to provide equivalent protection to the public. [1995 c.801 §15]SIMULATED INVOICES As used in ORS
646.291 to 646.302:

(1) “Invoice” means a document containing an itemized list of
previously ordered goods or services and an amount or amounts of money
owed by the recipient of the document.

(2) “Recipient” means the person to whom an invoice or simulated
invoice is uttered.

(3) “Simulated invoice” means a document containing an itemized
list of unordered goods or services and an amount or amounts of money to
be paid by the recipient of the document.

(4) “Utter” has the meaning given in ORS 165.002. [1997 c.72 §1] It is unlawful for any
person to utter a simulated invoice if:

(1) A reasonable recipient could, under all the circumstances of
its receipt, mistake the simulated invoice for an invoice; or

(2) The person knows or reasonably should know that a recipient
could mistake the simulated invoice for an invoice. [1997 c.72 §2](1) The Attorney General shall have a cause of action against any
person who violates ORS 646.293.

(2) If the Attorney General prevails, the court shall enter
judgment against the defendant for:

(a) Each simulated invoice uttered in this state, for the greater
of:

(A) Three times the amount stated in the simulated invoice; or

(B) $500;

(b) Such orders or judgments as may be necessary to restore to any
person any moneys of which the person was deprived by any conduct in
violation of ORS 646.293; and

(c) Such orders or judgments as may be necessary to ensure
cessation of conduct in violation of ORS 646.293.

(3) The court may award reasonable attorney fees to the prevailing
party in an action under this section.

(4) All sums of money received by the Department of Justice under a
judgment, settlement or compromise in an action or potential action
brought under this section, shall, upon receipt, be deposited with the
State Treasurer to the credit of the Consumer Protection and Education
Revolving Account established pursuant to ORS 180.095. [1997 c.72 §3]
(1) A recipient of a simulated invoice who has suffered any ascertainable
loss as a result shall have a cause of action against any person who
violates ORS 646.293.

(2) If the recipient prevails, the court shall enter judgment
against the defendant for:

(a) The greater of:

(A) Three times the amount stated in the simulated invoice
received; or

(B) $500 for each simulated invoice received;

(b) Such orders or judgments as may be necessary to restore to the
recipient any moneys of which the recipient was deprived by any conduct
in violation of ORS 646.293; and

(c) Such orders or judgments as may be necessary to ensure
cessation of conduct in violation of ORS 646.293.

(3) The court may award reasonable attorney fees to the prevailing
party in an action under this section. [1997 c.72 §4]

(1) A simulated invoice that has been paid by five or more persons
could be mistaken for an invoice by a reasonable recipient.

(2) A person knows that a simulated invoice uttered simultaneously
with a copy of a publication or portion of a publication previously
ordered by the recipient from a person other than the person uttering the
simulated invoice could be mistaken for an invoice by a reasonable
recipient. [1997 c.72 §5] (1) The provisions of ORS
646.291 to 646.302 shall be liberally construed to effectuate its
remedial purposes.

(2) The remedy provided by ORS 646.291 to 646.302 is in addition to
any other remedy, civil or criminal, that may be available under any
other provision of law. Claims based on remedies available under other
provisions of law may be joined in an action under ORS 646.291 to 646.302
or may be asserted in a separate action. [1997 c.72 §6]ENFORCEMENT OF EXPRESS WARRANTIES ON NEW MOTOR VEHICLES As used in ORS
646.315 to 646.375:

(1) “Consumer” means:

(a) The purchaser or lessee, other than for purposes of resale, of
a new motor vehicle normally used for personal, family or household
purposes;

(b) Any person to whom a new motor vehicle used for personal,
family or household purposes is transferred for the same purposes during
the duration of an express warranty applicable to such motor vehicle; and

(c) Any other person entitled by the terms of such warranty to
enforce the obligations of the warranty.

(2) “Motor vehicle” means a passenger motor vehicle as defined in
ORS 801.360 that is sold in this state. [1983 c.469 §1; 1985 c.16 §468;
1987 c.476 §1; 1989 c.171 §74; 1989 c.202 §1] The remedy under the provisions of
ORS 646.315 to 646.375 is available to a consumer if:

(1) A new motor vehicle does not conform to applicable
manufacturer’s express warranties;

(2) The consumer reports each nonconformity to the manufacturer,
its agent or its authorized dealer, for the purpose of repair or
correction, during the period of one year following the date of original
delivery of the motor vehicle to the consumer or during the period ending
on the date on which the mileage on the motor vehicle reaches 12,000
miles, whichever period ends earlier; and

(3) The manufacturer has received direct written notification from
or on behalf of the consumer and has had an opportunity to correct the
alleged defect. “Notification” under this subsection includes, but is not
limited to, a request by the consumer for an informal dispute settlement
procedure under ORS 646.355. [1983 c.469 §2; 1987 c.476 §6]
(1) If the manufacturer or its agents or authorized dealers are unable to
conform the motor vehicle to any applicable manufacturer’s express
warranty by repairing or correcting any defect or condition that
substantially impairs the use, market value or safety of the motor
vehicle to the consumer after a reasonable number of attempts, the
manufacturer shall:

(a) Replace the motor vehicle with a new motor vehicle; or

(b) Accept return of the vehicle from the consumer and refund to
the consumer the full purchase or lease price paid, including taxes,
license and registration fees and any similar collateral charges
excluding interest, less a reasonable allowance for the consumer’s use of
the vehicle.

(2) Refunds shall be made to the consumer and lienholder, if any,
as their interests may appear. A reasonable allowance for use is that
amount directly attributable to use by the consumer prior to the first
report of the nonconformity to the manufacturer, agent or dealer and
during any subsequent period when the vehicle is not out of service by
reason of repair.

(3) It shall be an affirmative defense to any claim under ORS
646.315 to 646.375:

(a) That an alleged nonconformity does not substantially impair
such use, market value or safety; or

(b) That a nonconformity is the result of abuse, neglect or
unauthorized modifications or alterations of the motor vehicle by the
consumer. [1983 c.469 §3; 1987 c.476 §2](1) It shall be presumed that a
reasonable number of attempts have been undertaken to conform a motor
vehicle to the applicable manufacturer’s express warranties if, during
the period of one year following the date of original delivery of the
motor vehicle to a consumer or during the period ending on the date on
which the mileage on the motor vehicle reaches 12,000 miles, whichever
period ends earlier:

(a) The same nonconformity has been subject to repair or correction
four or more times by the manufacturer or its agent or authorized dealer,
but such nonconformity continues to exist; or

(b) The vehicle is out of service by reason of repair or correction
for a cumulative total of 30 or more business days.

(2) A repair or correction for purposes of subsection (1) of this
section includes a repair that must take place after the expiration of
the earlier of either period.

(3) The period ending on the date on which the mileage on the motor
vehicle reaches 12,000 miles, the one-year period and the 30-day period
shall be extended by any period of time during which repair services are
not available to the consumer because of a war, invasion, strike, fire,
flood or other natural disaster.

(4) In no event shall the presumption described in subsection (1)
of this section apply against a manufacturer unless the manufacturer has
received prior direct written notification from or on behalf of the
consumer and has had an opportunity to cure the defect alleged. [1983
c.469 §4]If the manufacturer has
established or participates in an informal dispute settlement procedure
that substantially complies with the provisions of 16 C.F.R. part 703, as
from time to time amended, and causes the consumer to be notified of the
procedure, ORS 646.335 concerning refunds or replacement shall not apply
to any consumer who has not first resorted to the procedure. A decision
resulting from arbitration pursuant to the informal dispute settlement
procedure shall be binding on the manufacturer. [1983 c.469 §5]A manufacturer which has established or
participates in an informal dispute settlement procedure shall keep
records of all cases submitted to the procedure under ORS 646.355 and
shall make the records available to the Department of Justice if the
department requests them. The department may review all case records kept
under this section to determine whether or not the arbitrators are
complying with the provisions of ORS 646.315 to 646.375 in reaching their
decisions. [1987 c.476 §4](1) If a consumer brings an action in court
under ORS 646.315 to 646.375 against a manufacturer and the consumer is
granted one of the remedies specified in ORS 646.335 (1) by the court,
the consumer shall also be awarded up to three times the amount of any
damages, not to exceed $50,000 over and above the amount due the consumer
under ORS 646.335 (1), if the court finds that the manufacturer did not
act in good faith.

(2) The court may award reasonable attorney fees to the prevailing
party in an appeal or action under this section. [1987 c.476 §5; 1995
c.618 §96; 1999 c.346 §1] (1) Nothing in ORS
646.315 to 646.375 creates a cause of action by a consumer against a
vehicle dealer.

(2) A manufacturer may not join a dealer as a party in any
proceeding brought under ORS 646.315 to 646.375, nor may the manufacturer
try to collect from a dealer any damages assessed against the
manufacturer in a proceeding brought under ORS 646.315 to 646.375. [1987
c.476 §7] Any action brought
under ORS 646.315 to 646.375 shall be commenced within one year following
whichever period ends earlier:

(1) The period ending on the date on which the mileage on the motor
vehicle reaches 12,000 miles; or

(2) The period of one year following the date of the original
delivery of the motor vehicle to the consumer. [1983 c.469 §6]Nothing in ORS 646.315 to 646.375 is
intended in any way to limit the rights or remedies that are otherwise
available to a consumer under any other law. However, if the consumer
elects to pursue any other remedy in state or federal court, the remedy
available under ORS 646.315 to 646.375 shall not be available insofar as
it would result in recovery in excess of the recovery authorized by ORS
646.335 without proof of fault resulting in damages in excess of such
recovery. [1983 c.469 §7]CREDIT SERVICES ORGANIZATIONS The Legislative Assembly finds and
declares that:

(1) The ability to obtain and use credit has become of great
importance to consumers who have a vital interest in establishing and
maintaining their creditworthiness and credit standing. As a result,
consumers who have experienced credit problems may seek assistance from
credit services organizations which offer to obtain credit or improve the
credit standing of consumers.

(2) Certain advertising and business practices of some credit
services organizations have worked a financial hardship upon the people
of this state, particularly on those who have limited economic means and
are inexperienced in credit matters. Credit services organizations have
significant impact upon the economy and well-being of this state and its
people.

(3) The purposes of ORS 646.382 to 646.398 are to provide
prospective customers of credit services organizations with the
information necessary to make intelligent decisions regarding the
purchase of those services and to protect the public from unfair or
deceptive advertising and business practices. ORS 646.382 to 646.398
shall be interpreted liberally to achieve these purposes. [1993 c.582 §1] As used in ORS
646.382 to 646.398:

(1) “Consumer” means any individual who is solicited to purchase or
who purchases the services of a credit services organization.

(2)(a) “Credit services organization” means any person who, with
respect to the extension of credit by others, sells, provides, performs,
or represents that the organization can or will sell, provide or perform,
in return for the payment of money or other valuable consideration, any
of the following services:

(A) Improving, saving or preserving a consumer’s credit record,
history or rating.

(B) Obtaining an extension of credit for a consumer.

(C) Providing advice, assistance, instruction or instructional
materials to a consumer with regard to either subparagraph (A) or (B) of
this paragraph.

(b) “Credit services organization” does not include:

(A) Any person authorized to make loans or extensions of credit
under the laws of this state or the United States who is subject to
regulation and supervision by this state or the United States or a lender
approved by the Secretary of Housing and Urban Development for
participation in any mortgage insurance program under the National
Housing Act.

(B) Any financial institution, financial holding company or bank
holding company as those terms are defined in ORS 706.008 or any
subsidiary or affiliate of a financial institution, financial holding
company or bank holding company.

(C) A mortgage banker or mortgage broker as defined in ORS 59.840.

(D) Any nonprofit organization exempt from taxation under section
501(c)(3) of the Internal Revenue Code, provided that the organization
does not require a fee for its services and does not receive any money or
other valuable consideration prior to the rendering of any services by
the organization for the consumer.

(E) Any person licensed as a real estate broker or principal real
estate broker by this state if the person is acting within the course and
scope of that license.

(F) Any person licensed to practice law in this state if the person
renders services within the course and scope of practice as an attorney.

(G) Any broker-dealer registered with the Securities and Exchange
Commission or the Commodity Futures Trading Commission if the
broker-dealer is acting within the course and scope of that regulation.

(H) Any consumer reporting agency as defined in the Federal Fair
Credit Reporting Act, 15 U.S.C. 1681 et seq.

(I) Any licensee licensed under ORS chapter 725.

(3) “Department” means the Department of Consumer and Business
Services.

(4) “Director” means the director of the department or the
director’s designees.

(5) “Extension of credit” means the right to defer payment of debt
or to incur debt and defer its payment offered or granted primarily for
personal, family or household purposes. [1993 c.582 §§2,2a; 1997 c.631
§509; 2001 c.300 §77; 2001 c.377 §44]
(1) A credit services organization, its salespersons, agents,
representatives and independent contractors who sell or attempt to sell
the services of a credit services organization shall not do any of the
following:

(a) Misrepresent directly or indirectly in any advertising,
promotional materials, sales presentation or in any other manner:

(A) The nature of the services to be performed.

(B) The time within which the services will be performed.

(C) The ability to improve the consumer’s credit report or credit
rating.

(D) The amount or the type of credit a consumer can expect to
receive as a result of the performance of the services offered.

(E) The qualifications, training or experience of the
organization’s personnel.

(b) Make, counsel or advise any consumer to make any statement that
is untrue or misleading or that should be known by the exercise of
reasonable care to be untrue or misleading with respect to a consumer’s
creditworthiness, credit standing or credit capacity to a credit
reporting agency or a person to whom a consumer is applying for an
extension of credit.

(c) Charge or receive any money or other valuable consideration
prior to full and complete performance of the services the credit
services organization has agreed to perform for the consumer.

(d) Charge or receive any money or other valuable consideration
solely for referral of the consumer to a credit provider who will or may
extend credit that is or will be extended to the consumer on
substantially the same terms as those available to customers of the
credit provider.

(e) Transact any business as a credit services organization without
first having registered with the Department of Consumer and Business
Services as required by ORS 646.386.

(2) A consumer may cancel any contract between the consumer and a
credit services organization at any time prior to midnight of the third
business day after the date the contract is entered into. The consumer
shall be entitled to a full refund of any fees paid. [1993 c.582 §3; 2001
c.289 §1]
(1) A credit services organization shall file a registration statement
with the Department of Consumer and Business Services before conducting
business in this state. The department by rule shall establish a
registration system for credit services organizations. The system shall
provide for annual renewals of registrations.

(2) Applications for registration or renewal shall be in writing on
a form prescribed by the department and shall be accompanied by a fee in
an amount to be established by the director by rule.

(3) The registration statement shall contain information that the
director requires and that is consistent with ORS 646.382 to 646.398,
including, but not limited to:

(a) The name and address of the credit services organization.

(b) The name and address of a registered agent authorized to accept
service on behalf of the credit services organization.

(c) The name and address of any person who directly or indirectly
owns or controls 10 percent or more of the outstanding shares in the
credit services organization.

(d) The name and address of the surety company or insured
institution issuing a surety bond or irrevocable letter of credit
required by ORS 646.388.

(4) The registration statement shall also contain either:

(a) A full and complete disclosure of any litigation or unresolved
complaint filed with a governmental authority of this state, any other
state or the United States relating to the operation of the credit
services organization; or

(b) A notarized affidavit stating that there has been no litigation
or unresolved complaint filed with a governmental authority of this
state, any other state or the United States relating to the operation of
the credit services organization.

(5) Except as provided in this subsection, the credit services
organization shall update a registration statement not later than the
90th day after the date on which a change in the information required to
be listed on the statement occurs. The credit services organization shall
update a registration statement not later than 10 days before there is a
change in any information required under subsection (3)(a) or (b) of this
section.

(6) Each credit services organization registering under this
section shall maintain a copy of the registration statement in the
organization’s files. The credit services organization shall allow a
consumer to inspect the registration statement upon request.

(7) If the director receives a registration statement that complies
with this section and any rules of the director, the director shall
register the credit services organization. [1993 c.582 §4; 1997 c.631
§510; 2005 c.21 §2] (1) Every
applicant for registration as a credit services organization shall file
with the director a corporate surety bond or irrevocable letter of credit
running to the State of Oregon in the sum of $25,000. The surety bond or
irrevocable letter of credit shall be issued by a surety company or an
insured institution as defined in ORS 706.008 authorized to do business
in this state.

(2) The surety bond or irrevocable letter of credit shall be issued
on the condition that the credit services organization comply with all
provisions of ORS 646.382 to 646.398 and fully perform on all contracts
entered into with consumers.

(3) The surety bond or irrevocable letter of credit shall be
continuous until canceled and shall remain in full force and unimpaired
at all times to comply with this section. The surety or insured
institution shall give the director at least 30 days’ written notice
before it cancels or terminates its liability under the bond or
irrevocable letter of credit.

(4) Any person who suffers damage as a result of a violation of any
provision of ORS 646.380 to 646.398 and 646.608 or any rule adopted by
the director pursuant to ORS 646.382 to 646.398 shall have a right of
action under the bond or against the irrevocable letter of credit. An
action on the bond or against the irrevocable letter of credit may be
brought by the state or by any consumer by filing a complaint in a court
of competent jurisdiction not later than one year after the surety bond
or irrevocable letter of credit is canceled or terminated.

(5) The aggregate liability of the surety or issuer of the
irrevocable letter of credit shall not exceed the principal sum of the
bond or irrevocable letter of credit.

(6) If a credit services organization is in compliance with the
surety bond or irrevocable letter of credit provisions of this section,
the individual salespersons or agents or subagents of the credit services
organization who sell the services of that organization shall not be
required to obtain a separate surety bond or irrevocable letter of
credit. [1993 c.582 §5; 1997 c.631 §511] (1) Before any agreement is entered
into, or before any money is paid by a consumer, whichever occurs first,
the credit services organization shall provide the consumer with written
disclosure of the information described in subsection (2) of this
section. The credit services organization shall maintain on file for a
period of two years an exact copy of the disclosure statement, personally
signed by the consumer, acknowledging receipt of a copy of the disclosure
statement.

(2) The disclosure statement referred to in subsection (1) of this
section shall include:

(a) A complete and accurate statement of the consumer’s rights to
review any file on the consumer maintained by any consumer reporting
agency, as provided under the Federal Fair Credit Reporting Act, 15
U.S.C. 1681 et seq.

(b) A statement that the consumer may review the consumer’s file
under paragraph (a) of this subsection at no charge if the request is
made to the credit reporting agency within 30 days after receiving notice
that credit has been denied.

(c) The approximate price the consumer will be charged by the
credit reporting agency to review the consumer’s file maintained by the
credit reporting agency.

(d) A complete and detailed description of the services to be
performed by the credit services organization for the consumer and the
total amount the consumer will have to pay, or become obligated to pay,
for the services.

(e) A statement detailing the existence and purpose of the surety
bond or irrevocable letter of credit as described in ORS 646.388, and
describing the procedure for commencing an action on the bond or
irrevocable letter of credit.

(f) The name and address of the surety company or insured
institution that issued the bond or irrevocable letter of credit.

(g) A statement that a written, signed agreement is necessary
between the parties. [1993 c.582 §6; 1997 c.631 §512](1) Each contract between a consumer and a credit
services organization for the purchase of the services of the credit
services organization shall be in writing, in at least 10-point type,
signed and dated by the parties, and shall include all of the following:

(a) The terms and conditions of payment, including the total of all
payments to be made by the consumer, whether to the credit services
organization or to some other person;

(b) A full and detailed description of the services to be performed
by the credit services organization for the consumer, including all
guarantees and promises of full or partial refunds, and the date by which
the services are to be completely performed or the estimated length of
time for performing the services;

(c) The address of the principal place of business of the credit
services organization and of the organization’s registered agent within
the state authorized to accept service of process; and

(d) A conspicuous statement in at least 10-point boldfaced type, in
immediate proximity to the space reserved for the signature of the
consumer, as follows: “You, the consumer, may cancel this contract at any
time prior to midnight of the third business day after the date of this
transaction. See the attached notice of cancellation form for an
explanation of this right.”

(2) The contract shall be accompanied by a completed form in
duplicate, captioned “Notice of Cancellation” and printed in at least
10-point boldfaced type. The form shall be attached to the contract, be
easily detachable and provide a detailed and complete description of the
consumer’s right to cancel the contract. The director, by rule, shall
design the form.

(3) The credit services organization shall provide the consumer
with a copy of the completed contract with all attachments the consumer
is required to sign at the time the agreement is signed. [1993 c.582 §7](1) Any contract that violates any provision of ORS 646.382
to 646.398 and any waiver of any provision of ORS 646.382 to 646.398 by a
consumer shall be void and unenforceable as contrary to public policy. A
credit services organization shall not attempt to induce a consumer to
waive the application of any provision of ORS 646.382 to 646.398.

(2) In any proceeding under ORS 646.382 to 646.398, the burden of
proving an exemption from a definition is upon the person claiming such
an exemption.

(3) Any circuit court of this state has jurisdiction in equity to
restrain and enjoin violations of ORS 646.380 to 646.398 and 646.608.

(4) This section shall not prohibit the enforcement by any person
of any right provided by ORS 646.380 to 646.398 and 646.608 or any other
applicable law. [1993 c.582 §8]In addition to the authority conferred by ORS 646.608:

(1) Upon the director’s own motion or upon receipt of a complaint
by a customer of a credit services organization or of a person acting as
a credit services organization without registration, the director may
audit the organization’s customer records. If the director finds any
discrepancies in the customer records, the director may audit any other
accounts or records kept by the organization for discrepancies. The
credit services organization or person acting as a credit services
organization without registration shall pay the reasonable cost of any
audit under this section, as determined by the director.

(2) The director may refuse to issue or renew or may revoke or
suspend any registration under ORS 646.386 if the Department of Consumer
and Business Services determines that:

(a) Any information a credit services organization files with the
department is false or untruthful;

(b) A credit services organization has violated ORS 646.382 to
646.398;

(c) A credit services organization has violated any of the rules of
the department adopted under this section and ORS 646.608; or

(d) A credit services organization has failed to maintain in effect
the bond or an irrevocable letter of credit required by ORS 646.388.

(3) If the director issued an initial order of revocation of a
registration before the expiration of the registration, the director may
enter a final order of revocation even though the registration has
expired.

(4) The department may impose a civil penalty in an amount not to
exceed $1,000 per violation for each violation of ORS 646.382 to 646.398.
The civil penalties shall be imposed as provided in ORS 183.745.

(5) Actions of the director under subsections (1) to (4) of this
section are subject to the provisions of ORS chapter 183.

(6) The director may adopt rules necessary for the administration
of ORS 646.380 to 646.398 and 646.608. [1993 c.582 §§9,10; 2005 c.338 §7] The Director of the
Department of Consumer and Business Services may:

(1) Undertake the investigations, including investigations outside
this state, that the director considers necessary to determine whether a
person has violated, is violating or is about to violate ORS 646.382 to
646.398, a rule of the director adopted under ORS 646.386 or 646.396 or
an order of the director issued to enforce ORS 646.382 to 646.398;

(2) Require a person to file a statement in writing, under oath or
otherwise, concerning the matter being investigated;

(3) Take evidence from witnesses and compel the attendance of
witnesses and the production of books, papers, correspondence, memoranda,
agreements or other documents or records that the director considers
relevant or material to an investigation or proceeding; and

(4) If the director has reason to believe that a person has
violated, is violating or is about to violate ORS 646.382 to 646.398, a
rule of the director adopted under ORS 646.386 or 646.396 or an order of
the director issued to enforce ORS 646.382 to 646.398, issue an order to
cease and desist from the violation. [2005 c.338 §5](1) The Director of the Department of Consumer and
Business Services shall serve an order under ORS 646.397 on the person
named in the order.

(2) An order issued under ORS 646.397 becomes effective upon
service on the person named in the order.

(3) ORS 183.413 to 183.470 apply to an order issued under ORS
646.397.

(4) Notwithstanding subsection (3) of this section, a person may
not obtain a hearing on the order unless the person requests the hearing
in writing within 20 days after service of the order.

(5) A person who does not request a contested case hearing may not
obtain judicial review of the order.

(6) The director may vacate or modify an order issued under ORS
646.397. A modified order is effective upon service on the person named
in the order. [2005 c.338 §6]MANUFACTURED DWELLINGSAs used in this section and ORS 646.402:

(1) “Base price” means the total retail cost of the following
unless separately disclosed as described in ORS 646.402 (2):

(a) The manufactured dwelling as provided by the manufacturer;

(b) Features added by the dealer, if any;

(c) Freight; and

(d) Delivery and installation as stated in the purchase agreement.

(2) “Buyer” means a person who buys or agrees to buy a manufactured
dwelling.

(3) “Improvements” means goods and services not included in the
base price that are, in general, needed to prepare a site and complete
the setup of a manufactured dwelling. “Improvements” includes, but is not
limited to, permits, site preparation, sidewalks, concrete, utility
connections, skirting, steps, railings, decks, awnings, carports,
garages, sheds, gutters, downspouts, rain drains, heat pumps, air
conditioning, basements, plants and landscaping, installation fees and
system development charges.

(4) “Manufactured dwelling” has the meaning given that term in ORS
446.003.

(5) “Manufactured dwelling dealer” or “dealer” means a person who
sells a manufactured dwelling in a manner that makes the person subject
to the license requirement of ORS 446.671.

(6) “Purchase agreement” means the written contract between the
manufactured dwelling dealer and the buyer for the purchase of a
manufactured dwelling. “Purchase agreement” does not include documents of
a retail installment contract or loan agreement entered into as part of
the purchase transaction. [2001 c.969 §1; 2003 c.655 §80] (1) A manufactured dwelling
dealer who sells a manufactured dwelling shall use a purchase agreement
form that complies with this section and rules adopted in accordance with
ORS 646.404.

(2) The purchase agreement shall include the base price and a
written itemization that clearly and conspicuously discloses the retail
prices of the following, if not included in the base price:

(a) Manufactured dwelling options that are ordered by the buyer.

(b) The amount of any refundable or nonrefundable administrative or
processing fees paid to or collected by the dealer and the circumstances
under which the fees may be returned to the buyer.

(c) The amount of any earnest money paid and the circumstances
under which the earnest money may be returned to the buyer.

(d) Improvements provided by the dealer, or by a third party at the
request of the dealer, to the extent known to the dealer at the time of
sale. The written itemization of improvements under this paragraph
excuses the dealer from providing the buyer with a separate statement of
estimated costs under ORS 90.518 for those itemized improvements.

(e) All loan fees and credit report fees paid to or collected by
the dealer to obtain financing for the buyer’s purchase of the
manufactured dwelling and the circumstances under which the fees may be
returned to the buyer.

(f) Alterations and upgrades to the manufactured dwelling made by
the dealer or by a third party at the request of the dealer.

(g) Goods and services provided by the dealer, or by a third party
at the request of the dealer, that are not otherwise disclosed pursuant
to this section.

(h) Fees for the issuance or updating of an ownership document.

(i) The extended warranty contract, if any.

(j) Delivery, installation or site access costs that are not
otherwise disclosed pursuant to this section, if any.

(3) The purchase agreement form must be accompanied by a list,
provided by the Department of Justice, of governmental consumer
protection agencies having jurisdiction over manufactured dwelling issues.

(4) Failure of a manufactured dwelling dealer to use a purchase
agreement form that complies with this section and rules adopted in
accordance with ORS 646.404 is an unlawful practice under ORS 646.608.

(5) Except as provided in ORS 41.740, a purchase agreement is
considered to contain all of the terms of the contract between the buyer
and the manufactured dwelling dealer. No evidence of the terms of the
contract may be presented other than the contents of the purchase
agreement. As used in this subsection, “contract” does not include a
retail installment contract or loan agreement entered into as part of a
purchase transaction. [2001 c.969 §2; 2003 c.655 §81; 2005 c.41 §§7,8] The Department of Justice may adopt rules necessary
and proper for the administration and enforcement of ORS 646.402. [2001
c.969 §3]REPURCHASE OF FARM IMPLEMENTS BY SUPPLIER FROM RETAILER As used in ORS
646.415 to 646.459:

(1) “Catalog” includes catalogs published in any medium, including
electronic catalogs.

(2) “Change in competitive circumstances” means a material
detrimental effect on a retailer’s ability to compete with another
retailer who sells the same brand of farm implements.

(3) “Current model” means a model listed in the supplier’s current
sales manual or any supplements to the manual.

(4) “Current net price” means:

(a) The price of parts or farm implements listed in the supplier’s
price list or catalog in effect at the time the contract is canceled or
discontinued, less any applicable trade, volume or cash discounts, or
when the retailer made a warranty claim.

(b) For superseded parts, the price listed in the supplier’s price
list or catalog when the retailer purchased the parts.

(5) “Current signs” means the principal outdoor signs that:

(a) The supplier requires a retailer to obtain;

(b) Identify the supplier; and

(c) Identify the retailer as representing the supplier or the
supplier’s farm implements or machinery.

(6) “Dealership” means the location from which a retailer buys,
sells, leases, trades, stores, takes on consignment or in any other
manner deals in farm implements.

(7) “Distributor” means a person who sells or distributes new farm
implements to a retailer.

(8) “Farm implements” means:

(a) Any vehicle designed or adapted and used exclusively for
agricultural operations and only incidentally operated or used upon the
highways;

(b) Auxiliary items, such as trailers, used with vehicles designed
or adapted for agricultural operations;

(c) Other consumer products for agricultural purposes, including
lawn and garden equipment powered by an engine, supplied by the supplier
to the retailer pursuant to a retailer agreement;

(d) Attachments and accessories used in the planting, cultivating,
irrigating, harvesting and marketing of agricultural, horticultural or
livestock products; and

(e) Outdoor power equipment, including, but not limited to,
self-propelled equipment used to maintain lawns and gardens or used in
landscape, turf or golf course maintenance.

(9) “F.O.B.” has the meaning given that term in ORS 72.3190.

(10) “Inventory” means farm implements, machinery and repair parts.

(11) “Manufacturer” means a person who manufactures or assembles
new or unused farm implements.

(12) “Net cost” means the price the retailer actually paid for the
merchandise to the supplier.

(13) “Retailer” means any person engaged in the business of
retailing farm implements, machinery or repair parts in this state.

(14) “Retailer agreement” means an agreement between a supplier and
a retailer that provides for the rights and obligations of the parties
with respect to purchase or sale of farm implements.

(15) “Specialized tool” means a tool that:

(a) The supplier requires a retailer to obtain; and

(b) Is unique to the diagnosis or repair of the supplier’s farm
implements or machinery.

(16) “Supplier” means:

(a) A wholesaler, manufacturer, manufacturer’s representative or
distributor.

(b) A successor in interest of a manufacturer, manufacturer’s
representative or distributor, including, but not limited to:

(A) A purchaser of assets or shares of stock;

(B) A corporation or entity resulting from merger, liquidation or
reorganization; or

(C) A receiver or trustee.

(c) The assignee of a supplier.

(17) “Warranty claim” means a claim for payment submitted by a
retailer to a supplier for service or parts provided to a customer under
a warranty issued by the supplier. [1983 c.551 §1; 1993 c.406 §1; 2003
c.466 §1]A successor in interest includes a purchaser of assets or
shares, a surviving corporation or other entity resulting from a merger
or liquidation, a receiver and a trustee of the original supplier. [1989
c.404 §2](1) If a retailer agreement
is terminated, canceled or discontinued, unless the retailer elects to
keep the farm implements, machinery and repair parts under a contractual
right to do so, the supplier shall pay the retailer for the farm
implements, machinery and repair parts or, if the retailer owes any sums
to the supplier, credit the cost of the farm implements, machinery and
repair parts to the retailer’s account. The payment or credit shall be as
follows:

(a) The payment or the credit for the unused complete farm
implements and machinery in new condition shall be in a sum equal to 100
percent of the net cost of all complete farm implements and machinery
that are current models and that have been purchased by the retailer from
the supplier within the 24 months immediately preceding notice of intent
to cancel or discontinue the retailer agreement. The payment or credit
shall include the transportation charges to the retailer and from the
retailer to the supplier, if the charges have been paid by the retailer
or invoiced to the retailer’s account by the supplier, and a reasonable
reimbursement for services performed in connection with assembly or
predelivery inspection of the implements or machinery. The supplier
assumes ownership of the farm implements and machinery F.O.B. the
dealership.

(b) The payment or credit for equipment used for demonstration or
rental and that is in new condition shall equal the depreciated value of
the equipment to which the supplier and retailer have agreed.

(c)(A) The payment or credit for repair parts shall be a sum equal
to 95 percent of the current net prices of the repair parts, including
superseded parts, plus the charges for transportation from the retailer
to the destination designated by the supplier that the retailer paid or
the supplier invoiced to the retailer’s account. The supplier assumes
ownership of the repair parts F.O.B. the dealership.

(B) This paragraph applies to parts purchased by the retailer from
the supplier and held by the retailer on or after the date of the
cancellation or discontinuance of the retailer agreement.

(C) This paragraph does not apply to repair parts that:

(i) The supplier identified as not returnable when the retailer
ordered the parts.

(ii) The retailer purchased in a set of multiple parts, unless the
set is complete and in resalable condition.

(iii) The retailer failed to return after being offered a
reasonable opportunity to return the repair part at a price not less than
100 percent of the net price of the repair part as listed in the then
current price list or catalog.

(iv) Have a limited storage life or are otherwise subject to
deterioration, including but not limited to rubber items, gaskets and
batteries and repair parts in broken or damaged packages.

(v) Are single repair parts priced as a set of two or more items.

(vi) Are not resalable as new parts without new packaging or
reconditioning because of their condition.

(D) The supplier shall also pay the retailer or credit to the
retailer’s account a sum equal to five percent of the current net price
of all parts returned for the handling, packing and loading of the parts,
unless the supplier elects to list the inventory and perform packing and
loading of the parts itself.

(d) Upon the payment or allowance of credit to the retailer’s
account of the sum under this subsection, the title to the farm
implements, farm machinery or repair parts shall pass to the supplier
making the payment or allowing the credit and the supplier shall be
entitled to the possession of the farm implements, machinery or repair
parts.

(2)(a) If a retailer agreement is terminated, canceled or
discontinued, the supplier shall, upon request of the retailer, pay the
retailer for:

(A) Computer and communications hardware that:

(i) The supplier required the retailer to purchase within the
preceding five years; and

(ii) The retailer possesses on the date of the agreement’s
termination, cancellation or discontinuation.

(B) Computer software that:

(i) The supplier required the retailer to purchase from the
supplier; and

(ii) The retailer used exclusively to support the retailer’s
dealings with the supplier.

(b) If the retailer owes any sums to the supplier, the supplier may
credit the cost of the hardware and software to the retailer’s account.

(c) The payment or credit shall be the net cost of the hardware and
software, less 20 percent per year that the retailer possessed the
hardware and software.

(d) This subsection does not apply if the retailer exercises a
contractual right to keep the hardware or software.

(3)(a) If a retailer agreement is terminated, canceled or
discontinued, the supplier shall pay the retailer for the retailer’s
specialized tools.

(b) If the retailer owes any sums to the supplier, the supplier may
credit the cost of the specialized tools to the retailer’s account.

(c)(A) If a tool is new and unused and used for the supplier’s
current models, the payment or credit shall be the net cost of the tool.

(B) If a tool is not new and unused and used for the supplier’s
current models, the payment or credit shall be the net cost of the tool,
less 20 percent per year that the retailer possessed the tool.

(4)(a) If a retailer agreement is terminated, canceled or
discontinued, the supplier shall pay the retailer for the retailer’s
current signs.

(b) If the retailer owes any sums to the supplier, the supplier may
credit the cost of the signs to the retailer’s account.

(c) The payment or credit shall be the net cost of the sign, less
20 percent per year that the retailer possessed the sign.

(5) A supplier shall provide all payments or allowances due under
this section within 90 calendar days of the retailer’s return of the farm
implements, machinery, repair parts, computer and communications
hardware, computer software, specialized tools or current signs. A
supplier who does not provide a payment or allowance within 90 calendar
days of the retailer’s return of the farm implements, machinery, repair
parts, computer and communications hardware, computer software,
specialized tools or current signs shall pay the retailer interest of 18
percent per annum on the past due amount until paid.

(6) This section supplements any retailer agreement between the
retailer and the supplier covering the return of farm implements,
machinery, repair parts, computer and communications hardware, computer
software, specialized tools or current signs. The retailer may elect to
pursue either the retailer’s remedy under the retailer agreement or the
remedy provided under this section. An election by the retailer to pursue
the remedy under the retailer agreement does not bar the retailer’s right
to the remedy provided under this section as to those farm implements,
machinery, repair parts, computer and communications hardware, computer
software, specialized tools or current signs not affected by the retailer
agreement. This section does not affect the right of a supplier to charge
back to the retailer’s account amounts previously paid or credited as a
discount incident to the retailer’s purchase of goods.

(7) This section does not apply to farm implements, machinery,
repair parts, computer and communications hardware, computer software,
specialized tools or current signs that a retailer acquired from a source
other than the supplier. [1983 c.551 §2; 1991 c.83 §5; 1993 c.406 §6;
2003 c.466 §2]Note: Section 13 (1), chapter 466, Oregon Laws 2003, provides:

Sec. 13. (1) The amendments to ORS 646.425 by section 2 of this
2003 Act apply to retail agreements that:

(a) Are entered into on or after the effective date of this 2003
Act [January 1, 2004].

(b) Are entered into before the effective date of this 2003 Act and:

(A) Do not state a date for termination, cancellation or
discontinuation; and

(B) Are terminated, canceled or discontinued after the effective
date of this 2003 Act. [2003 c.466 §13(1)](1) A supplier shall repurchase the inventory of a retailer,
as if the supplier had terminated the retailer agreement, as follows:

(a) Upon the death of a retailer whose business is owned as a
tenancy by the entirety, at the option of the spouse or the heir or heirs
of the retailer.

(b) Upon the death of a stockholder of a corporation operating as a
retailer, at the option of the heir or heirs of the stockholder and upon
the consent of the board of directors.

(2) The surviving spouse or the heir or heirs may exercise the
option under this section not later than one year from the date of the
death of the retailer or the stockholder.

(3) Nothing in ORS 646.415 to 646.459 requires the repurchase of
inventory by the supplier:

(a) If the supplier and the corporation acting as a retailer enter
into a new retailer agreement to operate the retail dealership.

(b) If the supplier and the surviving spouse or the heir or heirs
of the retailer enter into a new retailer agreement to operate the retail
dealership. [1983 c.551 §3; 1993 c.406 §7] (1) If,
upon the cancellation of a retailer agreement by the retailer or the
supplier, the supplier fails to make payment as required by ORS 646.425
or 646.435, the supplier shall be liable in a civil action to be brought
by the retailer or by the retailer’s spouse, heir or heirs for the
payments required under ORS 646.425 or 646.435.

(2) A person who brings an action under this section must commence
the action in the county in which the principal place of business of the
retailer is located. [1983 c.551 §4; 1993 c.406 §8; 2003 c.466 §3] (1) A supplier may not:

(a) Coerce or compel any retailer to:

(A) Order any farm implements or parts.

(B) Accept delivery of farm implements with special features or
accessories not included in the base list price of the farm implements as
publicly advertised by the supplier.

(C) Enter into any agreement, whether written or oral,
supplementary to an existing retailer agreement with the supplier, unless
the supplementary agreement or amendment to the agreement is applicable
to all other similarly situated retailers in the state.

(b) Refuse to deliver in reasonable quantities and within a
reasonable time after receipt of the retailer’s order, to any retailer
having a retailer agreement for the retail sale of new equipment sold or
distributed by the supplier, equipment covered by the retailer agreement
represented by the supplier to be available for immediate delivery.

(c) Require:

(A) As a condition of renewal or extension of a retailer agreement
that the retailer complete substantial renovation of the retailer’s place
of business, or acquire new or additional space to serve as the
retailer’s place of business, unless the supplier provides at least one
year’s written notice of the condition which states all grounds
supporting the condition.

(B) A retailer to complete a renovation or acquisition in less than
a reasonable time.

(C) A retailer to waive a right to bring an action to enforce the
provisions of ORS 646.415 to 646.459.

(d) Discriminate among similarly situated retailers in this state
with respect to the prices charged for equipment of like grade and
quality sold to them by the supplier.

(e) Unreasonably withhold consent for a retailer to change the
capital structure of the retailer’s business or the means by which the
retailer finances the business.

(f) Prevent or attempt to prevent any retailer or any officer,
member, partner or stockholder of any retailer from selling or
transferring any interest to any other party or parties.

(g) Require a retailer to assent to a release, assignment,
novation, waiver or estoppel which would relieve any person from
liability imposed by ORS 646.415 to 646.459.

(h) Withhold consent to a transfer of an interest in a dealership
unless the retailer’s area of responsibility or trade area does not
afford sufficient sales potential to reasonably support a retailer.

(i) Unreasonably withhold consent to the sale, transfer or
assignment of the retailer’s interest or power of management or control
in the retailer’s business.

(j) In the event of the death or incapacity of the retailer or the
principal owner of the retailer’s business, unreasonably withhold consent
to the transfer of the retailer’s interest in the business to a person
who meets the reasonable financial, business experience and character
standards of the supplier.

(2)(a) Subsection (1)(a)(A) of this section does not apply if a law
requires a retailer to order farm implements or parts.

(b) Subsection (1)(a)(B) of this section does not apply if:

(A) A law requires a supplier to supply farm implements with
special features;

(B) The special features or accessories are safety features; or

(C) The retailer ordered the farm implements without coercion or
compulsion.

(c)(A) As used in this paragraph, “act of nature” means an
unanticipated grave natural disaster or other natural phenomenon of an
exceptional, inevitable and irresistible character, the effects of which
could not have been prevented or avoided by the exercise of due care or
foresight.

(B) Notwithstanding subsection (1)(b) of this section, a supplier
may refuse to deliver equipment if the refusal is due to:

(i) Prudent and reasonable restrictions on extension of credit by
the supplier to the retailer;

(ii) An act of nature;

(iii) A work stoppage or delay due to a strike or labor difficulty;

(iv) A bona fide shortage of materials;

(v) A freight embargo; or

(vi) Any other cause over which the supplier has no control.

(C) Subparagraph (B) of this paragraph applies only if the supplier
bases delivery on ordering histories with priority given to the sequence
in which the orders are received.

(d) Subsection (1)(d) of this section does not prohibit:

(A) A supplier from using differentials resulting from the
differing quantities in which equipment is sold or delivered.

(B) A retailer from offering a lower price in order to meet an
equally low price of a competitor or the services or facilities furnished
by a competitor.

(e) Subsection (1)(e) of this section applies only if:

(A) The retailer meets the reasonable capital requirements imposed
by the supplier;

(B) The retailer agreed to the capital requirements; or

(C) The change by the retailer does not result in a change of the
controlling interest in the executive management or board of directors,
or of any guarantors of the retailer.

(f) If a supplier does not accept a sale, transfer or assignment,
the supplier shall provide written notice of the supplier’s objection and
specific reasons for withholding consent.

(g) Notwithstanding subsection (1)(f) of this section, a retailer
may not sell, transfer or assign the retailer’s interest or power of
management or control without the written consent of the supplier.

(h) Subsection (1)(j) of this section does not apply if the
retailer and supplier agreed to rights of succession.

(i) Notwithstanding subsection (1)(f), (h), (i) and (j) of this
section, a supplier may withhold consent to a transfer of interest in a
retailer if, with due regard to regional market conditions and
distribution economies, the retailer’s area of responsibility or trade
does not afford sufficient sales potential to reasonably support a
retailer. [1993 c.406 §3; 2003 c.466 §4](1) As used in this section:

(a) “Good cause” means a retailer’s:

(A) Failing to comply with a term of a retail agreement that is the
same as a term in the supplier’s agreements with similarly situated
retailers, including failure to meet marketing criteria;

(B) Transferring a controlling ownership interest in the retailer’s
business without the supplier’s consent;

(C) Making a material misrepresentation or falsification of a
record, contract, report or other document that the retailer has
submitted to the supplier;

(D) Filing a voluntary petition in bankruptcy;

(E) Being placed involuntarily in bankruptcy and not discharging
the bankruptcy within 60 days after the filing;

(F) Becoming insolvent;

(G) Being placed in a receivership;

(H) Pleading guilty to, being convicted of or being imprisoned for
a felony;

(I) Failing to operate in the normal course of business for seven
consecutive business days or terminating business;

(J) Relocating or establishing a new or additional place or places
of business without the supplier’s consent;

(K) Failing to satisfy a payment obligation as it comes due and
payable to the supplier;

(L) Failing to promptly account to the supplier for any proceeds of
the sale of farm implements or otherwise failing to hold the proceeds in
trust for the benefit of the supplier;

(M) Consistently engaging in business practices that are
detrimental to the consumer or supplier, including, but not limited to,
excessive pricing, misleading advertising or failure to provide service
and replacement parts or to perform warranty obligations;

(N) Inadequately representing the supplier, causing lack of
performance in sales, service or warranty areas, and failing to achieve
satisfactory market penetration at levels consistent with similarly
situated retailers based on available documented information;

(O) Consistently failing to meet building and housekeeping
requirements; or

(P) Consistently failing to comply with the licensing laws that
apply to the supplier’s products and services.

(b) “Similarly situated retailer” means a retailer:

(A) In a similar geographic area;

(B) With similar sales volumes; and

(C) In a similar market for farm implements, machinery and repair
parts.

(2) With good cause, a supplier, directly or through an officer,
agent or employee, may terminate, cancel, fail to renew or substantially
change the competitive circumstances of a retailer agreement. The
termination, cancellation, nonrenewal or change becomes effective upon
notice to the retailer. The notice shall state the reasons constituting
good cause for the termination, cancellation, nonrenewal or change.

(3)(a) Except as provided in subsection (2) of this section, a
supplier shall give a retailer 90 calendar days’ written notice of the
supplier’s intent to terminate, cancel or fail to renew a retailer
agreement or change the competitive circumstances of a retailer agreement.

(b) The notice shall:

(A) State the reasons for termination, cancellation, nonrenewal or
change; and

(B) Provide that the retailer has 60 calendar days in which to cure
a claimed deficiency.

(c) If the retailer cures the deficiency within 60 calendar days,
the notice is void.

(d) If the retailer fails to cure the deficiency within 60 calendar
days, the termination, cancellation, failure to renew or change in
competitive circumstances becomes effective on the date specified in the
notice.

(4)(a) Notwithstanding subsection (3) of this section, a supplier
shall give a retailer one year’s written notice of the retailer’s failure
to meet reasonable marketing criteria.

(b) The notice shall:

(A) State the reasonable marketing criteria that the retailer has
failed to meet; and

(B) Provide the retailer one year in which to meet the criteria.

(c)(A) If the retailer fails to meet the criteria within the year,
the supplier may give notice of the termination, cancellation, failure to
renew the retail agreement or change to the retail agreement.

(B) A termination, cancellation, failure to renew or change under
this paragraph is effective 180 calendar days after the supplier gives
notice. [1993 c.406 §4; 2003 c.466 §5](1) If a supplier enters into an agreement to establish a
new retailer or dealership or to relocate a retailer or dealership, and
the agreement assigns an area of responsibility, the supplier must give
written notice of the agreement by certified mail to any retailer or
dealership within an assigned area of responsibility that is within or
contiguous to the area of the new or relocated retailer or dealership.

(2) If a supplier enters into an agreement to establish a new
retailer or dealership or to relocate a retailer or dealership, and the
agreement does not assign an area of responsibility, the supplier must
give written notice of the agreement by certified mail to any retailer or
dealership within a 75-mile radius of the new or relocated retailer or
dealership.

(3) A notice required by this section shall contain:

(a) The new location of the retailer or dealership;

(b) The date that the retailer or dealership will commence business
at the new location; and

(c)(A) If the agreement assigns an area of responsibility, the name
and address of retailers and dealerships with assigned areas of
responsibility that are within or contiguous to the area of the new or
relocated retailer or dealership; or

(B) If the agreement does not assign an area of responsibility, the
name and address of retailers and dealerships within a 75-mile radius of
the new or relocated retailer or dealership. [2003 c.466 §8] Unless
otherwise agreed:

(1) On a warranty claim, a supplier shall provide reasonable
compensation for the retailer’s costs, including but not limited to:

(a) Diagnostic services;

(b) Repair services;

(c) Repair parts; and

(d) Labor.

(2) For labor on warranty service, a supplier may not pay a
retailer an hourly rate that is less than rate that the retailer charges
for nonwarranty service.

(3) For repair parts on warranty service, a supplier may not pay a
retailer less than the amount that the retailer paid for the parts plus a
reasonable allowance for the shipping and handling of the parts.

(4) A supplier must allow a reasonable time for a retailer to
complete warranty service. [2003 c.466 §10] (1) A supplier shall approve
or disapprove a warranty claim in writing within 30 calendar days of the
supplier’s receipt of the claim.

(2) If a supplier does not approve or disapprove a warranty claim
in writing within 30 calendar days of the supplier’s receipt of the
claim, the supplier shall pay the claim within 60 calendar days of
receipt of the claim.

(3) A supplier that approves a warranty claim shall pay the claim
within 30 calendar days of the claim’s approval.

(4) A supplier that disapproves a warranty claim shall, in the
writing required by subsection (1) of this section, notify the retailer
of the reasons for the disapproval.

(5) If a supplier disapproves a warranty claim because the retailer
failed to comply with procedures for submitting the claim prescribed by
the retailer agreement, the retailer may resubmit the claim within 30
calendar days of the retailer’s receipt of the supplier’s disapproval.

(6) A supplier may not disapprove a warranty claim as untimely if
the claim covers service or parts provided while a retailer agreement was
in effect.

(7)(a) For one year after payment of a warranty claim, the supplier
may audit records that support the claim.

(b) A supplier may not audit a record that supports a claim more
than one year after paying the claim unless an audit has disclosed that
the retailer submitted a false claim.

(c) A supplier may:

(A) Adjust a claim paid in error;

(B) Require a retailer to return payment made on a false claim; and

(C) If the retailer owes an amount to the supplier, credit the
amount of a claim to the retailer’s account. [2003 c.466 §9] Unless otherwise
agreed:

(1) If a supplier requires a retailer to improve the safety of farm
implements or machinery, the supplier shall reimburse the retailer for
the costs of parts, labor and transportation that the retailer incurred
to make the improvement.

(2) If a supplier requires a retailer to improve farm implements or
machinery for reasons other than safety, the supplier shall reimburse the
retailer for the costs of parts and labor that the retailer incurred to
make the improvement.

(3) For labor to improve farm implements or machinery, a supplier
may not pay a retailer an hourly rate that is less than rate that the
retailer charges for like services.

(4) For parts to improve farm implements or machinery, a supplier
may not pay a retailer less than the amount that the retailer paid for
the parts plus a reasonable allowance for the shipping and handling of
the parts. [2003 c.466 §11](1)(a) Any party to a retailer agreement aggrieved by
the conduct of the other party to the agreement under ORS 646.447,
646.449, 646.452, 646.453, 646.454 or 646.456 may seek arbitration of the
issues under ORS 36.600 to 36.740. Unless the parties agree to different
arbitration rules, the arbitration shall be conducted pursuant to the
commercial arbitration rules of the American Arbitration Association. If
the parties agree, the arbitration shall be the parties’ only remedy and
the findings and conclusions of the arbitrator or panel of arbitrators
shall be binding upon both parties.

(b) The arbitrator or arbitrators may award the prevailing party:

(A) The costs of witness fees and other fees in the case;

(B) Reasonable attorney fees; and

(C) Injunctive relief against unlawful termination, cancellation,
nonrenewal or change in competitive circumstances.

(2) Notwithstanding subsection (1) of this section, any retailer
has a civil cause of action in circuit court against a supplier for
damages sustained by the retailer as a consequence of the supplier’s
violation of ORS 646.447, 646.449, 646.452, 646.453, 646.454 or 646.456,
together with:

(a) The actual costs of the action;

(b) Reasonable attorney fees; and

(c) Injunctive relief against unlawful termination, cancellation,
nonrenewal or change in competitive circumstances.

(3) A supplier bears the burden of proving that a retailer’s area
of responsibility or trade area does not afford sufficient sales
potential to reasonably support the retailer. The supplier’s proof must
be in writing.

(4) The remedies set forth in this section are not exclusive and
are in addition to any other remedies permitted by law, unless the
parties have chosen binding arbitration under subsection (1) of this
section. [Formerly 646.451]TRADE SECRETS As used in ORS
646.461 to 646.475, unless the context otherwise requires:

(1) “Improper means” includes theft, bribery, misrepresentation,
breach or inducement of a breach of a duty to maintain secrecy or
espionage through electronic or other means. Reverse engineering and
independent development alone shall not be considered improper means.

(2) “Misappropriation” means:

(a) Acquisition of a trade secret of another by a person who knows
or has reason to know that the trade secret was acquired by improper
means;

(b) Disclosure or use of a trade secret of another without express
or implied consent by a person who used improper means to acquire
knowledge of the trade secret;

(c) Disclosure or use of a trade secret of another without express
or implied consent by a person who, before a material change of position,
knew or had reason to know that it was a trade secret and that knowledge
of it had been acquired by accident or mistake; or

(d) Disclosure or use of a trade secret of another without express
or implied consent by a person, who at the time of disclosure or use,
knew or had reason to know that the knowledge of the trade secret was:

(A) Derived from or through a person who had utilized improper
means to acquire it;

(B) Acquired under circumstances giving rise to a duty to maintain
its secrecy or limit its use; or

(C) Derived from or through a person who owed a duty to the person
seeking relief to maintain its secrecy or limit its use.

(3) “Person” means a natural person, corporation, business trust,
estate, trust, partnership, association, joint venture, government,
governmental subdivision or agency or any other legal or commercial
entity.

(4) “Trade secret” means information, including a drawing, cost
data, customer list, formula, pattern, compilation, program, device,
method, technique or process that:

(a) Derives independent economic value, actual or potential, from
not being generally known to the public or to other persons who can
obtain economic value from its disclosure or use; and

(b) Is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy. [1987 c.537 §2](1) Actual or threatened misappropriation may be
temporarily, preliminarily or permanently enjoined. Upon application to
the court, an injunction shall be vacated when the trade secret has
ceased to exist, but the injunction may be continued for an additional
reasonable period of time in order to eliminate commercial advantage that
otherwise would be derived from the misappropriation.

(2) In exceptional circumstances, an injunction may condition
future use upon payment of a reasonable royalty for the period of time
for which use could have been prohibited. Exceptional circumstances
include, but are not limited to, a material and prejudicial change of
position prior to acquiring knowledge or reason to know of the
misappropriation that renders a prohibitive injunction inequitable.

(3) In appropriate circumstances, the court may order affirmative
acts to protect a trade secret. [1987 c.537 §3] (1) A complainant is entitled
to recover damages adequate to compensate for misappropriation, unless a
material and prejudicial change of position by a defendant prior to
acquiring knowledge or reason to know of the misappropriation renders a
monetary recovery inequitable.

(2) Damages may include both the actual loss caused by
misappropriation, and the unjust enrichment caused by misappropriation
that is not taken into account in computing actual loss, but shall not be
less than a reasonable royalty for the unauthorized disclosure or use of
a trade secret.

(3) Upon a finding of willful or malicious misappropriation,
punitive damages may be awarded in an amount not exceeding twice any
award made under subsections (1) and (2) of this section. [1987 c.537 §4] The court may award reasonable attorney fees
to the prevailing party if:

(1) A claim of misappropriation is made in bad faith;

(2) A motion to terminate an injunction is made or resisted in bad
faith; or

(3) Willful or malicious misappropriation is found by the court or
jury. [1987 c.537 §5] In any
action brought under ORS 646.461 to 646.475, the court shall preserve the
secrecy of an alleged trade secret by reasonable means, which may include
granting protective orders in connection with discovery proceedings,
holding in camera hearings, sealing the records of the action or ordering
any person involved in the litigation not to disclose an alleged trade
secret without prior court approval. [1987 c.537 §6] An action for
misappropriation must be brought within three years after the
misappropriation is discovered or by the exercise of reasonable diligence
should have been discovered. For the purposes of this section, a
continuing misappropriation constitutes a single claim. [1987 c.537 §7](1) Except as provided
in subsection (2) of this section, ORS 646.461 to 646.475 supersede
conflicting tort, restitution or other law of Oregon providing civil
remedies for misappropriation of a trade secret.

(2) ORS 646.461 to 646.475 shall not affect:

(a) Contractual remedies, whether or not based upon
misappropriation of a trade secret;

(b) Other civil remedies that are not based upon misappropriation
of a trade secret;

(c) Criminal remedies, whether or not based upon misappropriation
of a trade secret; or

(d) Any defense, immunity or limitation of liability afforded
public bodies, their officers, employees or agents under ORS 30.260 to
30.300.

(3) Notwithstanding any other provision in ORS 646.461 to 646.475,
public bodies and their officers, employees and agents are immune from
any claim or action for misappropriation of a trade secret that is based
on the disclosure or release of information in obedience to or in good
faith reliance on any order of disclosure issued pursuant to ORS 192.410
to 192.490 or on the advice of an attorney authorized to advise the
public body, its officers, employees or agents. [1987 c.537 §8](1) ORS 646.461 to 646.475 shall be
applied and construed to effectuate their general purpose to make uniform
the law with respect to the subject of ORS 646.461 to 646.475 among
states enacting them.

(2) ORS 646.461 to 646.475 may be cited as the Uniform Trade
Secrets Act.

(3) If any provision of ORS 646.461 to 646.475 or its application
to any person or circumstances is held invalid, the invalidity shall not
affect other provisions or applications of ORS 646.461 to 646.475 which
can be given effect without the invalid provision or application, and to
this end the provisions of ORS 646.461 to 646.475 are severable. [1987
c.537 §§9,10,11]WARRANTIES ON WHEELCHAIRS, SCOOTERS AND HEARING AIDS As used in ORS
646.482 to 646.498:

(1) “Assistive device” or “device” means:

(a) Wheelchairs and scooters of any kind, including other aids that
enhance the mobility or positioning of an individual using a wheelchair
or scooter of any kind, such as motorization, motorized positioning
features and the switches and controls for any motorized features; and

(b) Hearing aids as defined in ORS 694.015.

(2) “Assistive device system” means a system of assistive devices.
An “assistive device system” may be a single assistive device, or each
component part of the assistive device system may be considered a
separate assistive device.

(3) “Authorized dealer” means a dealer authorized by a manufacturer
to sell or lease assistive devices manufactured or assembled by the
manufacturer.

(4) “Collateral costs” means expenses incurred by a consumer in
connection with the repair of a nonconformity, including the cost of
delivering the assistive device to the manufacturer or dealer for repair
and obtaining an alternative device if no loaner was offered.

(5) “Consumer” means any of the following:

(a) The purchaser of an assistive device, if the device was
purchased from a dealer or manufacturer for purposes other than resale;

(b) A person to whom the assistive device is transferred for
purposes other than resale, if the transfer occurs before the expiration
of an express warranty applicable to the device;

(c) A person who may enforce the warranty; or

(d) A person who leases an assistive device from a dealer under a
written lease.

(6) “Current value of the written lease” means the total amount for
which the lease obligates the consumer during the period of the lease
remaining after its early termination, plus the dealer’s early
termination costs and the market value of the assistive device at the
lease expiration date if the lease sets forth that market value, less the
dealer’s early termination savings.

(7) “Dealer” means a person who is in the business of selling or
leasing assistive devices.

(8) “Demonstrator” means an assistive device that would be new but
for its use, since its manufacture, only for the purpose of demonstrating
the device to the public or prospective buyers or lessees.

(9) “Early termination cost” means any expense or obligation that a
dealer incurs as a result of both the termination of a written lease
before the termination date set forth in the lease and the return of an
assistive device to a manufacturer under ORS 646.486 (4). “Early
termination cost” includes a penalty for prepayment under a finance
arrangement.

(10) “Early termination savings” means any expense or obligation
that a dealer avoids as a result of both the termination of a written
lease before the termination date set forth in the lease and the return
of an assistive device to a manufacturer under ORS 646.486 (4). “Early
termination savings” includes the interest charge that the dealer would
have paid to finance the device or, if the dealer does not finance the
device, the difference between the total amount for which a lease
obligates the consumer during the period of the lease term remaining
after the early termination and the present market value of that amount
at the date of the early termination.

(11) “Individual with a disability” means any individual who is
considered to have a mental or physical disability, impairment or
handicap for the purposes of any law of this state or of the United
States, including any rules or regulations adopted under those laws.

(12) “Loaner” means an assistive device, provided to the consumer
for use by the user free of charge, that need not be new or be identical
to or have functional capabilities equal to or greater than those of the
original assistive device, but that meets the following conditions:

(a) It is in good working order;

(b) It performs at a minimum the most essential functions of the
original assistive device, in light of the disabilities of the user; and

(c) Any differences between it and the original assistive device do
not create a threat to safety.

(13) “Manufacturer” means a person who manufactures or assembles
assistive devices and agents of that person, including an importer, a
distributor, factory branch, distributor branch and any warrantor of the
manufacturer’s device, but does not include a dealer.

(14)(a) “Nonconformity” means a condition or defect that
substantially impairs the use, market value or safety of an assistive
device and that is covered by an express warranty applicable to the
device or to a component of the device.

(b) “Nonconformity” does not include a condition or defect that:

(A) Is the result of abuse or neglect of the device by a consumer;

(B) Is the result of an unauthorized modification or alteration of
the device by a consumer if the modification or alteration substantially
affects the performance of the device; or

(C) For hearing aids, is the result of normal use of the hearing
aid and when the condition or defect could be resolved through fitting
adjustments, cleaning or proper care.

(15)(a) “Reasonable allowance for use” means:

(A) When an assistive device has been sold to a consumer, no more
than the amount obtained by multiplying the full purchase price of the
device by a fraction, the denominator of which is the number of days in
the useful life of the device and the numerator of which is the number
days that the device was used before the consumer first reported the
nonconformity to the manufacturer or any authorized dealer.

(B) When an assistive device has been leased to a consumer, no more
than the amount obtained by multiplying the total amount for which the
written lease obligates the consumer by a fraction, the denominator of
which is the useful life of the device and the numerator of which is the
number of days that the device was used before the consumer first
reported the nonconformity to the manufacturer or any authorized dealer.

(b) As used in this subsection, the useful life of the assistive
device is the greater of:

(A) Five years; or

(B) Such other time that the consumer may prove to be the expected
useful life of assistive devices of the same kind.

(16) “Reasonable attempt to repair” means, within the terms of an
express warranty applicable to an assistive device:

(a) The same nonconformity is subject to repair at least two times
by the manufacturer or any authorized dealer and the nonconformity
continues; or

(b) The assistive device is out of service, by reason of repair or
correction, for an aggregate of at least 30 days after notification to
the manufacturer or any authorized dealer because of the nonconformity.

(17) “User” means an individual with a disability who, by reason
thereof, needs and actually uses the assistive device. [1997 c.562 §1;
1999 c.81 §1] (1) A manufacturer who sells or
leases an assistive device, including a demonstrator, to a consumer,
either directly or through a dealer, shall furnish, at a minimum, an
express warranty that the device shall be free from any nonconformity.
The manufacturer shall set forth the warranty fully in readily understood
language and shall clearly identify the party making the warranty, the
rights that the warranty gives the consumer and how the consumer can
exercise the rights.

(2) If the manufacturer does not furnish the express warranty
described in subsection (1) of this section, the manufacturer shall be
considered to have provided an express warranty that the device shall be
free from any nonconformity.

(3) The duration of the warranty shall be not less than one year
from the date of first delivery of the assistive device to the consumer.
[1997 c.562 §2] (1)(a) If a new assistive
device or demonstrator does not conform to an applicable express warranty
and the consumer reports the nonconformity to the manufacturer, the
dealer who sold or leased the device or any authorized dealer and makes
the assistive device available for repair before one year after first
delivery of the device to the consumer, the nonconformity shall be
repaired at no charge to the consumer. If the consumer notifies the
manufacturer, the manufacturer is jointly obligated together with any of
its authorized dealers.

(b) A repair for purposes of this subsection includes a repair that
must take place after the expiration of one year after first delivery of
the assistive device to the consumer, provided that the defect occurred
prior to the expiration of the warranty period and the consumer notified
the manufacturer within 30 days after expiration of the period.

(2)(a) Except as provided in paragraphs (b) and (c) of this
subsection, each manufacturer of an assistive device sold or leased in
this state shall:

(A) Maintain or cause to be maintained in this state sufficient
service and repair facilities to carry out the terms of the warranty
described in ORS 646.484; and

(B) At the time of the sale or lease, provide the consumer with the
names, addresses and telephone numbers of all such service and repair
facilities and of all authorized dealers.

(b) If the manufacturer does not provide service and repair
facilities in this state, the consumer may return the nonconforming
assistive device to the dealer who sold or leased the device or to any
authorized dealer for replacement, service or repair in accordance with
the terms and conditions of the express warranty. The replacement,
service or repair shall be at the option of the dealer to whom the device
is returned. If that dealer does not replace the nonconforming device or
does not effect the service or repair of the device in accordance with
the warranty, the dealer shall reimburse the consumer in an amount equal
to the purchase or lease price paid, less a reasonable allowance for use
by the consumer.

(c) Each manufacturer who, with respect to a new assistive device
sold within this state, does not provide a service or repair facility
within this state is liable for the following amounts to any dealer who
incurs obligations in giving effect to the express warranty described in
ORS 646.484:

(A) In the event of replacement, in an amount equal to the cost to
the dealer of the replaced assistive device and any cost of transporting
the device, plus a reasonable handling charge;

(B) In the event of service or repair, in an amount equal to that
which would ordinarily be received by the dealer for rendering such
service or repair, including actual and reasonable costs of the service
or repair and the costs of transporting the assistive device, if such
costs are incurred, plus a reasonable profit; or

(C) In the event of reimbursement under paragraph (b) of this
subsection, in an amount equal to that reimbursed to the consumer plus a
reasonable handling or service charge.

(3) For purposes of this section, a consumer reports a
nonconformity when the consumer:

(a) Makes any communication, written or oral, that describes the
problem with the assistive device, or that may be reasonably understood
as an expression of dissatisfaction with any aspect of the operation of
the device. The communication need only indicate in some way the nature
of the problem, such as an indication of the functions that the device is
not performing or performing unsatisfactorily for the consumer, and need
not be in technical language nor attempt to state the cause of the
problem; and

(b) Does not refuse to make the assistive device available to the
manufacturer, the dealer who sold or leased the device or any authorized
dealer for repair.

(4)(a) It shall be presumed that the consumer has made the
assistive device available to the manufacturer, the dealer who sold or
leased the device or an authorized dealer for repair if the consumer
allows the manufacturer or dealer to take the device from the consumer’s
residence or other location where the user customarily uses the device.

(b) The consumer shall be required to deliver the device to another
location only upon a showing that it would be a substantially greater
hardship for the manufacturer, the dealer who sold or leased the device
or any authorized dealer to take the device from the consumer’s residence
or other location where the user customarily uses the device than for the
consumer to deliver the device.

(c) If the consumer must deliver the device to another location in
order to enable the manufacturer to repair the device, the manufacturer
shall reimburse the consumer for the costs of the delivery.

(5)(a) A person required to repair an assistive device under this
section shall provide the consumer a loaner if the absence of a loaner
would be a threat to the safety of the user or if the assistive device is
out of service for more than seven calendar days.

(b) Paragraph (a) of this subsection applies whether or not the
rights of the consumer provided by ORS 646.488 (1) or (2) have arisen and
in addition to the remedies relating to collateral costs provided by ORS
646.482 to 646.498. [1997 c.562 §3] If a
nonconformity develops in a new assistive device or demonstrator, the
manufacturer shall, after a reasonable attempt to repair the device or
demonstrator, at the option of the consumer:

(1) In the case of a sale, refund to the consumer and to any holder
of a perfected security interest as their interest may appear, the full
purchase price plus any finance charge or sales tax paid by the consumer
at the point of sale and collateral costs, less a reasonable allowance
for use;

(2) In the case of a lease, refund to the dealer and to any other
holder of a perfected security interest, as their interest may appear,
the current value of the lease and refund to the consumer the amount that
the consumer paid under the lease plus any collateral costs, less a
reasonable allowance for use; or

(3) Provide a conforming replacement. [1997 c.562 §4] (1) To receive the
refund or replacement described in ORS 646.488, the consumer shall offer
to the manufacturer of the assistive device, the dealer who sold or
leased the device or any authorized dealer to transfer possession of the
device having the nonconformity. The manufacturer shall:

(a) Make the refund within 14 calendar days after the consumer
offers to transfer possession;

(b) Make the replacement within 30 calendar days after the consumer
offers to transfer possession; or

(c) Provide the consumer a loaner for use if the replacement is not
made within 14 calendar days after the consumer offers to transfer
possession. The loaner may be used until replacement is made.

(2) The manufacturer may require as a condition of making a timely
refund or replacement described in ORS 646.488 that the consumer deliver
possession of the original assistive device to the manufacturer, the
dealer who sold or leased the device or any authorized dealer and sign
any documents necessary to transfer title and possession of the device,
or necessary to provide evidence of the transfer, to any person
designated by the manufacturer.

(3) Subsection (2) of this section applies only if:

(a) The time and place of the mutual activities described in
subsection (2) of this section are readily accessible to the consumer; and

(b) The manufacturer provides the consumer written notice in
12-point bold type stating in clear and understandable language the time
and place of the mutual activities and directing the consumer to meet at
that time and place. The notice must be received by the consumer no later
than four business days before the time of the mutual activities.

(4) A person shall not enforce a lease against the consumer for use
of an assistive device during any period of nonconformity or after the
consumer returns the device to the manufacturer as described by this
section. [1997 c.562 §5] (1) An
assistive device returned by a consumer or dealer in this state, or by a
consumer or dealer in another state under a similar law of that state,
may not be sold or leased again in this state unless full disclosure of
the reasons for return is made to the prospective buyer or lessee.

(2) If a sale or lease is made in violation of subsection (1) of
this section, a consumer who bought or took the lease of the assistive
device shall have the rights of a consumer of a new device provided by
ORS 646.488, without regard to whether there is a nonconformity or to
whether there has been a reasonable attempt to repair the device. The
following paragraphs apply to a sale or lease under this section:

(a) If the consumer chooses the refund option described in ORS
646.488, there shall be no deduction from the full purchase price in
calculating the refund under ORS 646.488;

(b) The rights described in this subsection run against the person
who last sold or transferred the assistive device to any other person,
whether or not the other person is a consumer, so long as the last person
to sell or transfer the device had knowledge of the previous return of
the device and did not provide the disclosure required by subsection (1)
of this section; and

(c) The rights described under this subsection must be declared and
exercised by a consumer within two years after the consumer knows of the
previous return and can identify the person against whom the rights run.
[1997 c.562 §6] (1) A consumer shall have the option of
submitting any dispute arising under ORS 646.482 to 646.498 to a dispute
resolution procedure. A manufacturer shall submit to the dispute
resolution procedure.

(2) The procedure shall provide at a minimum the right of each
party to present its case, to be in attendance during any presentation
made by the other party and to rebut or refute such presentation. The
individuals conducting the dispute resolution procedure must be objective.

(3) A decision resulting from the dispute resolution procedure
shall be binding on the manufacturer.

(4) The records of the results of disputes settled under this
section shall be submitted to the Department of Justice if the department
requests them and shall be available to any person who makes a request
for the records free of cost within 10 business days of the person’s
request. The department may review all records created under this section
to determine whether or not the procedure and decisions comply with the
provisions of ORS 646.482 to 646.498.

(5) The Department of Justice shall establish a roster of dispute
resolution providers for consumers seeking to resolve disputes with
manufacturers or to assert their rights under this section. [1997 c.562
§7]ORS 646.482 to 646.498
shall not be construed as limiting rights or remedies available to a
consumer under any other law. Any waiver by a consumer of rights provided
by ORS 646.482 to 646.498 is void. [1997 c.562 §8](1) In addition to pursuing any other remedy, a consumer may
bring a private cause of action to recover damages caused by a violation
of any provision of ORS 646.482 to 646.498. The court shall award a
consumer who prevails in such an action pecuniary loss and noneconomic
damages, together with costs, disbursements, reasonable attorney fees and
any equitable relief that the court determines is appropriate. Pecuniary
loss caused by a violation of ORS 646.482 to 646.498 shall include
collateral costs, beginning at the time of the violation, whether or not
the consumer acquired the rights provided by ORS 646.488. If a consumer
has submitted a dispute arising under ORS 646.482 to 646.498 to a dispute
resolution procedure as described in ORS 646.494, the consumer may not
bring a private cause of action under this section relating to that
dispute until a decision resulting from the dispute resolution procedure
has been issued or until the consumer has withdrawn the dispute from the
dispute resolution procedure.

(2) If a consumer appeals to a court from a decision resulting from
the dispute resolution procedure described in ORS 646.494 because the
consumer was not granted one of the remedies by ORS 646.482 to 646.498,
and the consumer is granted one of the remedies by the court, the
consumer shall be awarded:

(a) Up to three times the amount of any damages awarded if the
court finds that the party opposing the consumer did not act in good
faith in the dispute resolution procedure;

(b) Reasonable attorney fees; and

(c) Any fees incurred in the dispute resolution procedure and any
judicial action.

(3) If the party opposing the consumer is the prevailing party in
an action brought under subsection (1) or (2) of this section, the party
opposing the consumer shall be entitled to reasonable attorney fees if
the court finds the action to have been frivolous.

(4) Any action brought under this section shall be commenced during
the period beginning one year after the date the assistive device was
originally delivered to the consumer and ending two years later. [1997
c.562 §9; 2001 c.542 §8; 2003 c.14 §392]INFANT CRIB SAFETY (1) The
Legislative Assembly finds that:

(a) The disability and death of infants resulting from injuries
sustained in crib accidents are a serious threat to the public health,
welfare and safety of the people of this state;

(b) Infants are an especially vulnerable class of people;

(c) The design and construction of a crib must ensure that the crib
is a safe place to leave an infant unattended for an extended period of
time;

(d) A parent or caregiver has a right to believe that a crib is a
safe place to leave an infant;

(e) The United States Consumer Product Safety Commission estimates
that 40 children suffocate or strangle in their cribs every year;

(f) Existing state and federal legislation is inadequate to deal
with the hazard of injuries and death to infants from unsafe cribs; and

(g) Prohibiting the remanufacture, retrofitting, sale, contracting
to sell or resell, leasing or subletting of unsafe cribs, particularly
unsafe secondhand, hand-me-down or heirloom cribs, will prevent injuries
and deaths caused by unsafe cribs.

(2) The purpose of ORS 646.500 to 646.507 is to prevent the
occurrence of injuries to and deaths of infants resulting from unsafe
cribs by making it illegal to remanufacture, retrofit, sell, contract to
sell or resell, lease, sublet or otherwise place in the stream of
commerce any crib that is unsafe for an infant using the crib. [2001
c.767 §1]ORS 646.500 to 646.507 may be referred to as
the Infant Crib Safety Act. [2001 c.767 §2]As used in ORS 646.500 to 646.507:

(1) “Commercial user” means any person, firm, corporation,
association or nonprofit corporation, or any agent or employee thereof,
including child care facilities or family child care homes certified or
registered by the Child Care Division under ORS 657A.250 to 657A.450, who:

(a) Deals in cribs of the kind governed by ORS 646.500 to 646.507;

(b) By virtue of the person’s occupation, purports to have
knowledge or skill peculiar to the cribs governed by ORS 646.500 to
646.507; or

(c) Is in the business of remanufacturing, retrofitting, selling,
leasing, subletting or otherwise placing cribs in the stream of commerce.

(2) “Crib” means:

(a) Any full-size crib as that term is defined in 16 C.F.R. 1508.3;
or

(b) Any nonfull-size crib as that term is defined in 16 C.F.R.
1509.2(b).

(3) “Individual” means a natural person who is not a commercial
user of cribs.

(4) “Infant” means an individual who is less than three years of
age. [2001 c.767 §3] (1) A commercial user may not
remanufacture, retrofit, sell, contract to sell or resell, lease, sublet
or otherwise place in the stream of commerce a crib that is unsafe for an
infant using the crib.

(2) A crib is presumed to be unsafe pursuant to ORS 646.500 to
646.507 if it does not conform to the following standards:

(a) 16 C.F.R. part 1508;

(b) 16 C.F.R. part 1509;

(c) 16 C.F.R. part 1303; and

(d) American Society for Testing Materials Voluntary Standards
F966-90, F1169.88, F1822 and F406.

(3) Cribs that are presumed to be unsafe under subsection (2) of
this section include but are not limited to cribs with any of the
following features or characteristics:

(a) Corner posts that extend more than one-sixteenth of an inch;

(b) Spaces between side slats more than two and three-eighths
inches;

(c) Mattress supports that can be easily dislodged from any point
of the crib. A mattress support can be easily dislodged if it cannot
withstand a 25-pound upward force from underneath the crib;

(d) Cutout designs on the end panels;

(e) Rail height dimensions that do not conform to the following:

(A) The height of the rail and end panel as measured from the top
of the rail or panel in its lowest position to the top of the mattress
support in its highest position is at least nine inches; or

(B) The height of the rail and end panel as measured from the top
of the rail or panel in its highest position to the top of the mattress
support in its lowest position is at least 26 inches;

(f) Any screws, bolts or hardware that is loose or not secured;

(g) Sharp edges, points, rough surfaces or any wood surfaces that
are not smooth and free from splinters, splits or cracks; or

(h) Cribs with tears in mesh or fabric sides.

(4) An individual may not remanufacture, retrofit, sell, contract
to sell or resell, lease, sublet or otherwise place in the stream of
commerce a crib that is unsafe for an infant using the crib. [2001 c.767
§§4,8] (1) A commercial user who willfully and
knowingly sells, leases or otherwise places in the stream of commerce an
unsafe baby crib as described in ORS 646.503 (1) to (3) commits a
violation punishable by a fine not exceeding $1,000.

(2) An individual who willfully and knowingly sells, leases or
otherwise places in the stream of commerce an unsafe baby crib as
described in ORS 646.503 (1) to (3) commits a violation punishable by a
fine not exceeding $200. [2001 c.767 §§5,9] (1) An antique or vintage crib that is clearly
not intended for use by an infant is exempt from the provisions of ORS
646.500 to 646.507 if the antique or vintage crib is accompanied at the
time of remanufacturing, retrofitting, selling, leasing, subletting or
otherwise placing in the stream of commerce by a notice furnished by the
commercial user that states that the antique or vintage crib is not
intended for use by an infant and that the antique or vintage crib is
dangerous for use by an infant.

(2) A commercial user is exempt from liability resulting from use
of an antique or vintage crib in a manner that is contrary to the notice
required by this section.

(3) As used in this section, “antique or vintage crib” means a crib
that is:

(a) 50 years or older measured from the current year;

(b) Maintained as a collector’s item; and

(c) Not intended for use by an infant. [2001 c.767 §6] Any person may
maintain an action against a commercial user who violates ORS 646.503 (1)
to (3), to enjoin the remanufacture, retrofitting, sale, contract to sell
or resell, lease or subletting of a crib that is unsafe for an infant,
and for reasonable attorney fees and costs. [2001 c.767 §7]Remedies available under ORS 646.504 and
646.506 are in addition to any other remedies available under law to an
aggrieved party. [2001 c.767 §10]PRODUCERS’ COOPERATIVE BARGAINING ASSOCIATIONS As used in ORS
646.515 to 646.545, unless the context requires otherwise:

(1) “Agricultural commodity” means any and all agricultural,
horticultural, viticultural and vegetable products produced in this
state, either in their natural state or as processed by a producer for
the purpose of marketing such product, including bees and honey, but not
including timber or timber products.

(2) “Cooperative bargaining association” means:

(a) An association of producers formed or operated pursuant to ORS
chapter 62 with the purpose of group bargaining with respect to the sale
of any agricultural commodity or Oregon seafood commodity.

(b) A fishermen’s marketing association or fishermen’s trade
association organized under ORS chapter 62 or 65.

(3)(a) “Dealer” means, except as provided in paragraph (b) of this
subsection, any person or agent of the person who purchases or contracts
to purchase an agricultural commodity or Oregon seafood commodity from a
producer or agent of the producer, for the purpose of packing, processing
or marketing such commodity.

(b) “Dealer” does not include any organization operating as an
agricultural cooperative or Oregon seafood harvester cooperative.

(4) “Oregon seafood commodity” means any food fish as defined in
ORS 506.011 over which the State Fish and Wildlife Commission has
jurisdiction.

(5) “Producer” means a person engaged in the business of producing
agricultural commodities or harvesting Oregon seafood commodities. [1963
c.514 §1; 1997 c.296 §1; 1997 c.393 §1; 2003 c.487 §4] Producers
shall have the right to join voluntarily and belong to cooperative
bargaining associations. [1963 c.514 §2] (1) A dealer
may not knowingly engage in the following unfair trade practices:

(a) Interfere with, restrain, coerce or boycott a producer in the
exercise of the rights guaranteed pursuant to ORS 646.525;

(b) Discriminate against a producer with respect to price or other
terms of purchase of raw agricultural commodities or Oregon seafood
commodities, by reason of the producer’s membership in or contract with
cooperative bargaining associations; or

(c) Pay or loan money, or give any other thing of value to a
producer as an inducement or reward for refusing to or ceasing to belong
to a cooperative bargaining association.

(2) A perennial ryegrass seed, annual ryegrass seed or tall fescue
seed dealer or an Oregon seafood commodity dealer who participates in
negotiating committee activities described in ORS 62.848 or 62.849 does
not violate subsection (1) of this section. [1963 c.514 §3; 1969 c.165
§1; 2001 c.142 §5; 2003 c.487 §5; 2005 c.290 §2] (1) In
addition to any other remedies provided by law, any producer injured by a
violation of ORS 646.535 may maintain an action for damages sustained by
such producer.

(2) The prevailing party in any action brought pursuant to
subsection (1) of this section shall be allowed, in addition to the costs
and disbursements otherwise prescribed by law, a reasonable sum for
attorney fees at trial and on appeal for the prosecution or defense of
such action. [1963 c.514 §§4,5; 1981 c.897 §76; 1995 c.658 §112]TELEPHONE SOLICITATION(Registration of Telephonic Sellers) As used in ORS
646.551 to 646.557, unless the context requires otherwise:

(1) “Telephonic seller” means a person who, on the person’s own
behalf, or on behalf of another person, causes or attempts to cause a
telephone solicitation to be made under the following circumstances:

(a) The person initiates telephonic contact with a prospective
purchaser and represents or implies any of the following:

(A) That a prospective purchaser who buys one or more goods or
services unit will receive additional units, whether or not of the same
type as purchased, without further cost. As used in this subparagraph,
“further cost” does not include actual postage or common carrier delivery
charges, if any;

(B) That a prospective purchaser will receive a prize or gift if
the person also encourages the prospective purchaser to do either of the
following:

(i) Purchase or rent any goods or services; or

(ii) Pay any money, including, but not limited to a delivery or
handling charge;

(C) That a prospective purchaser who buys goods or services,
because of some unusual event or imminent price increase, will be able to
buy these items at prices which are below those usually charged or will
be charged for those items;

(D) That the seller is a person other than the actual seller;

(E) That the items for sale or rent are manufactured or supplied by
a person other than the actual manufacturer or supplier; or

(F) That the items for sale are gold, silver or other precious
metals, diamonds, rubies, sapphires or other precious stones or any
interest in oil, gas or mineral fields, wells or exploration sites; or

(b) The telephone solicitation is made by the person in response to
inquiries from prospective purchasers generated by advertisement, on
behalf of the person and the solicitation is conducted as described in
paragraph (a) of this subsection.

(2) “Telephonic seller” does not include any of the following:

(a) A person selling a security as defined in ORS 59.015, or
securities which are exempt under ORS 59.025.

(b) A person licensed pursuant to ORS chapter 696 when the
transaction is governed by that chapter.

(c) A person licensed pursuant to ORS 701.055 when the solicited
transaction is governed by ORS chapter 701.

(d) A person licensed pursuant to ORS chapter 744 when the
solicited transaction is governed by the Insurance Code.

(e) A person soliciting the sale of a franchise when the solicited
transaction is governed by ORS 650.005 to 650.100.

(f) A person primarily soliciting the sale of a subscription to or
advertising in a newspaper of general circulation.

(g) A person primarily soliciting the sale of a magazine or
periodical, or contractual plans, including book or record clubs:

(A) Under which the seller provides the consumer with a form which
the consumer may use to instruct the seller not to ship the offered
merchandise, and which is regulated by the Federal Trade Commission trade
regulation concerning “Use of Negative Option Plans by Sellers in
Commerce”; or

(B) Using arrangements such as continuity plans, subscription
arrangements, standing order arrangements, supplements and series
arrangements under which the seller periodically ships merchandise to a
consumer who has consented in advance to receive such merchandise on a
periodic basis.

(h) A person soliciting business from prospective purchasers who
have previously purchased from the business enterprise for which the
person is calling.

(i) A person soliciting without the intent to complete and who does
not complete the sales presentation during the telephone solicitation and
who only completes the sale presentation at a later face-to-face meeting
between the solicitor and the prospective purchaser, unless at that later
meeting the solicitor collects or attempts to collect payment for
delivery of items purchased.

(j) Any supervised financial institution or parent, subsidiary, or
affiliate thereof. As used in this paragraph, “supervised financial
institution” means any financial institution or trust company, as those
terms are defined in ORS 706.008, or any personal property broker,
consumer finance lender, commercial finance lender or insurer that is
subject to regulation by an official or agency of this state or the
United States.

(k) A person soliciting the sale of funeral or burial services
regulated by ORS 59.670 and 59.680 or by ORS chapter 692.

(L) A person soliciting the sale of services provided by a cable
television system operating under authority of a franchise or permit
issued by a governmental agency of this state, or subdivision thereof.

(m) A person or affiliate of a person whose business is regulated
by the Public Utility Commission, or a telecommunications utility with
access lines of 15,000 or less or a cooperative telephone association.

(n) A person soliciting the sale of a farm product, as defined in
ORS 79.0102, if the solicitation does not result in a sale which costs
the purchaser in excess of $100.

(o) An issuer or a subsidiary of an issuer that has a class of
securities that is subject to section 12 of the Securities Exchange Act
of 1934 and that is either registered or exempt from registration under
paragraph (A), (B), (C), (E), (F), (G) or (H) of subsection (g) of that
section.

(p) A person soliciting exclusively the sale of telephone answering
services to be provided by that person or that person’s employer.

(q) A person registered under the Charitable Solicitations Act.
[1989 c.622 §2; 1997 c.249 §196; 1997 c.631 §513; 1999 c.59 §188; 1999
c.402 §5; 2001 c.445 §177]Note: For transition provisions regarding secured transactions, see
notes under 79.0628.(1) A telephonic seller shall
not conduct business in this state without having registered with the
Department of Justice at least 10 days prior to the conduct of such
business. A telephonic seller is required to register in the name under
which the telephonic seller conducts business. Individual employees of
the telephonic seller are not required to register. A telephonic seller
is conducting business in this state if telephone solicitations of
prospective purchasers are made from locations in this state or
solicitation is made of prospective purchasers located in this state.

(2) A registration shall be effective for one year from the date of
filing with the Department of Justice. Each application for registration,
or renewal thereof, shall be accompanied by a fee of $400.

(3) The Department of Justice shall send to each registrant a
certificate or other appropriate document demonstrating registration
compliance, which shall be posted at the telephonic seller’s principal
business location.

(4) Each application for registration shall be in writing and shall
contain such information regarding the conduct of the telephonic seller’s
business and the personnel conducting the business and shall be submitted
in such form and manner as the Department of Justice may prescribe.

(5) At the time of submission of a registration application, each
telephonic seller shall file with the Attorney General an irrevocable
consent appointing the Attorney General to act as the telephonic seller’s
attorney to receive service of process in any action, suit or proceeding
against the telephonic seller or the telephonic seller’s successor in
interest which may arise under ORS 646.605 to 646.652.

(6) The Department of Justice may refuse to issue a registration
to, and may suspend, revoke or refuse to renew the registration of, any
person who:

(a) Has obtained or attempted to obtain a registration under ORS
646.551 to 646.557 by fraud or material misrepresentation;

(b) Has violated any provision of ORS 646.551 to 646.557;

(c) Has violated a provision of ORS 646.607 or 646.608;

(d) Has violated an assurance of voluntary compliance entered into
under ORS 646.605 to 646.652;

(e) Is guilty of fraud or deceit, or of gross negligence,
incompetency or misconduct in the person’s practice of business as a
telephonic seller, creating a risk of financial or other injury to the
public;

(f) Has been convicted of a felony under the laws of any state or
of the United States. However, such conduct may be considered only to the
extent permissible under the provisions of ORS 670.280;

(g) Has been convicted of any crime, an element of which is
dishonesty or fraud, under the laws of any state or of the United States;
or

(h) Has had the person’s authority to engage in business as a
telephonic seller refused, canceled, revoked, suspended or not renewed in
any state.

(7) When the Department of Justice proposes to refuse to issue or
renew a registration or proposes to revoke or suspend a registration,
opportunity for hearing shall be accorded as provided in ORS chapter 183.
The Department of Justice shall adopt rules prescribing the conduct of
the hearing, including but not limited to rules governing the
admissibility of evidence.

(8) A person whose registration is revoked or not renewed pursuant
to this section shall not be eligible to apply for a registration under
ORS 646.551 to 646.557 until two years after the effective date of the
revocation or nonrenewal.

(9) A telephonic seller whose registration is revoked, suspended or
not renewed under this section shall not conduct business in this state.
[1989 c.622 §3; 1999 c.368 §1] In any
proceeding to enforce the provisions of ORS 646.551 to 646.565 and
646.608, the burden of proving an exemption or exception is upon the
person claiming it. [1989 c.622 §4] In addition to
complying with the requirements of ORS 646.553, each telephonic seller,
at the time the solicitation is made and prior to consummation of any
sales transaction, shall provide all of the following information to each
prospective purchaser:

(1) If the telephonic seller represents or implies that a
prospective purchaser will receive, without charge therefor, certain
specific items or one item from among designated items, whether the items
are denominated as gifts, premiums, bonuses, prizes or otherwise, the
seller shall provide the following:

(a) The information required to be filed by ORS 646.553.

(b) The complete street address of the location from which the
salesperson is calling the prospective purchaser and, if different, the
complete street address of the telephonic seller’s principal location.

(c) The total number of individuals who have actually received from
the telephonic seller, during the preceding 12 months or if the seller
has not been in business that long, during the period the telephonic
seller has been in business, the item having the greatest value and the
item with the smallest odds of being received.

(2) If the telephonic seller is offering to sell any metal, stone
or mineral, the seller shall provide the following information:

(a) The complete street address of the location from which the
salesperson is calling the prospective purchaser and, if different, the
complete street address of the telephonic seller’s principal location.

(b) The information required to be filed by ORS 646.553.

(3) If the telephonic seller is offering to sell an interest in
oil, gas or mineral fields, wells or exploration sites, the seller shall
provide the following information:

(a) The complete street address of the location from which the
salesperson is calling the prospective purchaser and, if different, the
complete street address of the telephonic seller’s principal location.

(b) The information required to be filed by ORS 646.553.

(4) If the telephonic seller represents that office equipment or
supplies being offered are offered at prices which are below those
usually changed for these items, the seller shall provide the following
information:

(a) The complete street address of the location from which the
salesperson is calling the prospective purchaser and, if different, the
complete street address of the telephonic seller’s principal location.

(b) The name of the manufacturer of each of the items the
telephonic seller has represented for sale and in which the prospective
purchaser expresses interest. [1989 c.622 §5] In accordance with any applicable provision of ORS
chapter 183, the Attorney General may adopt rules to carry out the
provisions of ORS 646.551 to 646.557. [1989 c.622 §6](Unlawful Telephone Solicitations) As used in ORS
646.561 to 646.565, unless the context otherwise requires:

(1) “Charitable organization” means an organization organized for
charitable purposes as defined in ORS 128.801.

(2) “Party” means a residential telephone customer of a
telecommunications company.

(3) “Telephone solicitation” means the solicitation by telephone by
any person of a party at the residence of the party for the purpose of
encouraging the party to purchase property, goods or services, or make a
donation. “Telephone solicitation” does not include:

(a) Calls made by a charitable organization, a public agency or
volunteers on behalf of the organization or agency to members of the
organization or agency or to persons who have made a donation or
expressed an interest in making a donation;

(b) Calls limited to polling or soliciting the expression of ideas,
opinions or votes; or

(c) Business to business contacts. [1989 c.622 §8]A person engages in an unlawful practice if, during a telephone
solicitation, the called party states a desire not to be called again and
the person making the telephone solicitation makes a subsequent telephone
solicitation of the called party at that number. [1989 c.622 §9; 2001
c.924 §15] As used in ORS
646.567 to 646.578, unless the context otherwise requires:

(1) “Charitable organization” means an organization organized for
charitable purposes as defined in ORS 128.801.

(2) “Information about a party” means information specific to a
party, including but not limited to the name and residence address of the
party and the method by which the party paid the fee required by ORS
646.574.

(3) “Party” means a residential telephone customer of a
telecommunications company.

(4) “Qualified trade association” means an organization with at
least the following characteristics:

(a) Written bylaws or governing documents including a code of
conduct for its members; and

(b) Criteria and procedures for expelling or suspending members who
violate the association’s bylaws or governing documents.

(5) “Telephone solicitation” means the solicitation by telephone by
any person of a party at the residence of the party for the purpose of
encouraging the party to purchase property, goods or services, or make a
donation. “Telephone solicitation” does not include:

(a) Calls made in response to a request or inquiry by the called
party;

(b) Calls made by a charitable organization, a public agency or
volunteers on behalf of the organization or agency to members of the
organization or agency or to persons who have donated or expressed an
interest in donating goods, services or real estate;

(c) Calls limited to polling or soliciting the expression of ideas,
opinions or votes; or

(d) Business to business contacts. [1989 c.451 §1; 1999 c.564 §6;
2001 c.170 §1](1) A person may not engage
in the telephone solicitation of a party at a telephone number included
on the then current list published by the administrator of the telephone
solicitation program established under ORS 646.572 and 646.574.

(2) For purposes of this section:

(a) “Predecessor of a business enterprise” means a financial
institution as defined in 15 U.S.C. 6827 that has:

(A) Merged with or been acquired by the business enterprise for
which the person is calling; or

(B) Sold or assigned an account of a party who has previously
purchased from the business enterprise, to the business enterprise for
which the person is calling.

(b) “Telephone solicitation” does not include a person soliciting
business from prospective purchasers who have previously purchased from:

(A) The person making the solicitation;

(B) The business enterprise for which the person is calling; or

(C) A predecessor of the business enterprise for which the person
is calling. [1989 c.451 §2; 1999 c.564 §1; 2001 c.503 §1] The
Attorney General shall advertise for bids and enter into a contract with
a person to act as the administrator of the telephone solicitation
program described in ORS 646.574. The contract may include any provision
that the Attorney General determines is in the public interest. [1999
c.564 §3](1) The administrator
referred to in ORS 646.572 shall create, maintain and distribute a
database containing a list of telephone numbers of parties who do not
wish to receive any telephone solicitation at the listed numbers.
Beginning on the date specified in the contract between the administrator
and the Attorney General and at least once each quarter thereafter, the
administrator shall update the list by:

(a) Adding the numbers of parties who have filed notice and paid
the fee as required in this section; and

(b) Removing the numbers of those parties who have requested that
their numbers be removed or whose listing has expired without renewal.

(2) A party may file notice together with a fee of $10 per listed
number, or such lesser amount as may be specified in the contract, with
the administrator indicating the party’s desire to place telephone
numbers on the list described in subsection (1) of this section. The
notice shall be filed in the form and manner specified in the contract
between the administrator and the Attorney General. The notice is
effective for one year from the date the party files the notice. The
party may renew the notice for additional periods of one year by filing
an additional notice and paying an additional fee by the anniversary of
the original filing date of the notice.

(3) Information about a party is confidential. The Attorney General
may not disclose information about a party.

(4) The administrator shall not furnish the list or disclose any
information about a party to any person, except as follows:

(a) Upon request of a person engaging or intending to engage in
telephone solicitations and after payment of the fees in the amounts
specified in the contract between the administrator and the Attorney
General, the administrator shall furnish to the person:

(A) The most recent copy of the list described in subsection (1) of
this section.

(B) The names of the parties whose telephone numbers are on the
list.

(b) Upon request of a qualified trade association and after payment
of the fees in the amounts specified in the contract between the
administrator and the Attorney General, the administrator shall furnish
to the qualified trade association:

(A) The most recent copy of the list described in subsection (1) of
this section.

(B) The names of the parties whose telephone numbers are on the
list.

(c) A qualified trade association that receives a list or the names
of the parties whose telephone numbers are on the list under this
subsection may make the list or the names available to its members on any
terms the association and its members may impose.

(d) Upon request of the Attorney General for the purpose of
enforcing ORS 646.569, the administrator shall furnish the Attorney
General with all requested information about a party or any person who
the Attorney General believes has engaged in a solicitation prohibited by
ORS 646.569. The administrator shall not charge any fee for furnishing
the information to the Attorney General.

(e) Upon request of any party who has filed a notice and paid the
fee as provided in subsection (2) of this section, the administrator
shall furnish the party with all requested information about the party or
any person who the party believes has engaged in a solicitation
prohibited by ORS 646.569. The administrator shall not charge any fee for
furnishing the information to the party.

(f) The administrator shall comply with any lawful subpoena or
court order directing disclosure of the list and of any other information.

(g) The administrator shall provide all information that may be
requested by any successor administrator who may be selected by the
Attorney General. The administrator shall not charge any fee for
furnishing the information to the successor administrator.

(5) The administrator shall promptly forward any complaints
concerning alleged violations of ORS 646.569 to the Attorney General.

(6) Fees paid to the administrator under this section shall be
considered income to the administrator in the manner specified in the
contract between the administrator and the Attorney General.

(7) When furnishing the list or names under subsection (4) of this
section, the administrator shall make the information available in
printed and electronic form. [1999 c.564 §4; 2001 c.170 §2] In the manner provided by ORS
chapter 183, the Attorney General may adopt rules relating to any aspect
of the establishment, operation or administration of the telephone
solicitation program established under ORS 646.572 and 646.574. [1999
c.564 §5]The Public Utility Commission shall by rule
require that telecommunications companies inform parties of the
provisions of ORS 646.567 to 646.578 and 646.608. Notification may be by:

(1) Annual inserts in the billing statements mailed to parties; or

(2) Conspicuous publication of the notice in the consumer
information pages of local telephone directories. [Formerly 646.571]UNLAWFUL TRADE PRACTICES As used in ORS
646.605 to 646.652:

(1) “Appropriate court” means the circuit court of a county:

(a) Where one or more of the defendants reside;

(b) Where one or more of the defendants maintain a principal place
of business;

(c) Where one or more of the defendants are alleged to have
committed an act prohibited by ORS 646.605 to 646.652; or

(d) With the defendant’s consent, where the prosecuting attorney
maintains an office.

(2) “Documentary material” means the original or a copy of any
book, record, report, memorandum, paper, communication, tabulation, map,
chart, photograph, mechanical transcription, or other tangible document
or recording, wherever situate.

(3) “Examination” of documentary material shall include inspection,
study, or copying of any such material, and taking testimony under oath
or acknowledgment in respect of any such documentary material or copy
thereof.

(4) “Person” means natural persons, corporations, trusts,
partnerships, incorporated or unincorporated associations, and any other
legal entity except bodies or officers acting under statutory authority
of this state or the United States.

(5) “Prosecuting attorney” means the Attorney General or the
district attorney of any county in which a violation of ORS 646.605 to
646.652 is alleged to have occurred.

(6) “Real estate, goods or services” means those which are or may
be obtained primarily for personal, family or household purposes, or
which are or may be obtained for any purposes as a result of a telephone
solicitation, and includes franchises, distributorships and other similar
business opportunities, but does not include insurance. Except as
provided in section 2, chapter 658, Oregon Laws 2003, real estate does
not cover conduct covered by ORS chapter 90.

(7) “Telephone solicitation” means a solicitation where a person,
in the course of the person’s business, vocation or occupation, uses a
telephone or an automatic dialing-announcing device to initiate
telephonic contact with a potential customer and the person is not one of
the following:

(a) A person who is a broker-dealer or salesperson licensed under
ORS 59.175, or a mortgage banker or mortgage broker licensed under ORS
59.850 when the solicitation is for a security qualified for sale
pursuant to ORS 59.055;

(b) A person who is licensed or is otherwise authorized to engage
in professional real estate activity pursuant to ORS chapter 696, when
the solicitation involves professional real estate activity;

(c) A person licensed or exempt from licensure as a builder
pursuant to ORS chapter 701, when the solicitation involves the
construction, alteration, repair, improvement or demolition of a
structure;

(d) A person licensed or otherwise authorized to sell insurance as
an insurance producer pursuant to ORS chapter 744, when the solicitation
involves insurance;

(e) A person soliciting the sale of a newspaper of general
circulation, a magazine or membership in a book or record club who
complies with ORS 646.611, when the solicitation involves newspapers,
magazines or membership in a book or record club;

(f) A person soliciting without the intent to complete and who does
not complete the sales presentation during the telephone solicitation and
who only completes the sales presentation at a later face-to-face meeting
between the solicitor and the prospective purchaser;

(g) A supervised financial institution or parent, subsidiary or
affiliate thereof. As used in this paragraph, “supervised financial
institution” means any financial institution or trust company, as those
terms are defined in ORS 706.008, or any personal property broker,
consumer finance lender, commercial finance lender or insurer that is
subject to regulation by an official or agency of this state or of the
United States;

(h) A person who is authorized to conduct prearrangement or
preconstruction funeral or cemetery sales, pursuant to ORS chapter 692,
when the solicitation involves prearrangement or preconstruction funeral
or cemetery plans;

(i) A person who solicits the services provided by a cable
television system licensed or franchised pursuant to state, local or
federal law, when the solicitation involves cable television services;

(j) A person or affiliate of a person whose business is regulated
by the Public Utility Commission of Oregon;

(k) A person who sells farm products as defined by ORS chapter 576
if the solicitation neither intends to nor actually results in a sale
that costs the purchaser in excess of $100;

(L) An issuer or subsidiary of an issuer that has a class of
securities that is subject to section 12 of the Securities Exchange Act
of 1934 and that is either registered or exempt from registration under
paragraph (A), (B), (C), (E), (F), (G) or (H) or subsection (g) of that
section;

(m) A person soliciting exclusively the sale of telephone answering
services to be provided by that person or that person’s employer when the
solicitation involves answering services; or

(n) A telecommunications utility with access lines of 15,000 or
less or a cooperative telephone association when the solicitation
involves regulated goods or services.

(8) “Trade” and “commerce” mean advertising, offering or
distributing, whether by sale, rental or otherwise, any real estate,
goods or services, and includes any trade or commerce directly or
indirectly affecting the people of this state.

(9) “Unconscionable tactics” include, but are not limited to,
actions by which a person:

(a) Knowingly takes advantage of a customer’s physical infirmity,
ignorance, illiteracy or inability to understand the language of the
agreement;

(b) Knowingly permits a customer to enter into a transaction from
which the customer will derive no material benefit; or

(c) Permits a customer to enter into a transaction with knowledge
that there is no reasonable probability of payment of the attendant
financial obligation in full by the customer when due.

(10) A willful violation occurs when the person committing the
violation knew or should have known that the conduct of the person was a
violation.

(11) A loan is made “in close connection with the sale of a
manufactured dwelling” if:

(a) The lender directly or indirectly controls, is controlled by or
is under common control with the seller, unless the relationship is
remote and is not a factor in the transaction;

(b) The lender gives a commission, rebate or credit in any form to
a seller who refers the borrower to the lender, other than payment of the
proceeds of the loan jointly to the seller and the borrower;

(c) The lender is related to the seller by blood or marriage;

(d) The seller directly and materially assists the borrower in
obtaining the loan;

(e) The seller prepares documents that are given to the lender and
used in connection with the loan; or

(f) The lender supplies documents to the seller used by the
borrower in obtaining the loan. [1965 c.490 §2; 1967 c.599 §1; 1971 c.744
§5; 1973 c.235 §1; 1977 c.195 §1; 1989 c.137 §1; 1993 c.508 §40; 1995
c.79 §328; 1997 c.249 §197; 1997 c.631 §514; 1999 c.59 §189; 1999 c.402
§6; 2001 c.917 §4; 2003 c.364 §52; 2003 c.658 §11]Note: The amendments to 646.605 by section 12, chapter 658, Oregon
Laws 2003, become operative January 1, 2008. See section 13, chapter 658,
Oregon Laws 2003. The text that is operative on and after January 1,
2008, is set forth for the user’s convenience.

646.605. As used in ORS 646.605 to 646.652:

(1) “Appropriate court” means the circuit court of a county:

(a) Where one or more of the defendants reside;

(b) Where one or more of the defendants maintain a principal place
of business;

(c) Where one or more of the defendants are alleged to have
committed an act prohibited by ORS 646.605 to 646.652; or

(d) With the defendant’s consent, where the prosecuting attorney
maintains an office.

(2) “Documentary material” means the original or a copy of any
book, record, report, memorandum, paper, communication, tabulation, map,
chart, photograph, mechanical transcription, or other tangible document
or recording, wherever situate.

(3) “Examination” of documentary material shall include inspection,
study, or copying of any such material, and taking testimony under oath
or acknowledgment in respect of any such documentary material or copy
thereof.

(4) “Person” means natural persons, corporations, trusts,
partnerships, incorporated or unincorporated associations, and any other
legal entity except bodies or officers acting under statutory authority
of this state or the United States.

(5) “Prosecuting attorney” means the Attorney General or the
district attorney of any county in which a violation of ORS 646.605 to
646.652 is alleged to have occurred.

(6) “Real estate, goods or services” means those which are or may
be obtained primarily for personal, family or household purposes, or
which are or may be obtained for any purposes as a result of a telephone
solicitation, and includes franchises, distributorships and other similar
business opportunities, but does not include insurance. Real estate does
not cover conduct covered by ORS chapter 90.

(7) “Telephone solicitation” means a solicitation where a person,
in the course of the person’s business, vocation or occupation, uses a
telephone or an automatic dialing-announcing device to initiate
telephonic contact with a potential customer and the person is not one of
the following:

(a) A person who is a broker-dealer or salesperson licensed under
ORS 59.175, or a mortgage banker or mortgage broker licensed under ORS
59.850 when the solicitation is for a security qualified for sale
pursuant to ORS 59.055;

(b) A person who is licensed or is otherwise authorized to engage
in professional real estate activity pursuant to ORS chapter 696, when
the solicitation involves professional real estate activity;

(c) A person licensed or exempt from licensure as a builder
pursuant to ORS chapter 701, when the solicitation involves the
construction, alteration, repair, improvement or demolition of a
structure;

(d) A person licensed or otherwise authorized to sell insurance as
an insurance producer pursuant to ORS chapter 744, when the solicitation
involves insurance;

(e) A person soliciting the sale of a newspaper of general
circulation, a magazine or membership in a book or record club who
complies with ORS 646.611, when the solicitation involves newspapers,
magazines or membership in a book or record club;

(f) A person soliciting without the intent to complete and who does
not complete the sales presentation during the telephone solicitation and
who only completes the sales presentation at a later face-to-face meeting
between the solicitor and the prospective purchaser;

(g) A supervised financial institution or parent, subsidiary or
affiliate thereof. As used in this paragraph, “supervised financial
institution” means any financial institution or trust company, as those
terms are defined in ORS 706.008, or any personal property broker,
consumer finance lender, commercial finance lender or insurer that is
subject to regulation by an official or agency of this state or of the
United States;

(h) A person who is authorized to conduct prearrangement or
preconstruction funeral or cemetery sales, pursuant to ORS chapter 692,
when the solicitation involves prearrangement or preconstruction funeral
or cemetery plans;

(i) A person who solicits the services provided by a cable
television system licensed or franchised pursuant to state, local or
federal law, when the solicitation involves cable television services;

(j) A person or affiliate of a person whose business is regulated
by the Public Utility Commission of Oregon;

(k) A person who sells farm products as defined by ORS chapter 576
if the solicitation neither intends to nor actually results in a sale
that costs the purchaser in excess of $100;

(L) An issuer or subsidiary of an issuer that has a class of
securities that is subject to section 12 of the Securities Exchange Act
of 1934 and that is either registered or exempt from registration under
paragraph (A), (B), (C), (E), (F), (G) or (H) or subsection (g) of that
section;

(m) A person soliciting exclusively the sale of telephone answering
services to be provided by that person or that person’s employer when the
solicitation involves answering services; or

(n) A telecommunications utility with access lines of 15,000 or
less or a cooperative telephone association when the solicitation
involves regulated goods or services.

(8) “Trade” and “commerce” mean advertising, offering or
distributing, whether by sale, rental or otherwise, any real estate,
goods or services, and includes any trade or commerce directly or
indirectly affecting the people of this state.

(9) “Unconscionable tactics” include, but are not limited to,
actions by which a person:

(a) Knowingly takes advantage of a customer’s physical infirmity,
ignorance, illiteracy or inability to understand the language of the
agreement;

(b) Knowingly permits a customer to enter into a transaction from
which the customer will derive no material benefit; or

(c) Permits a customer to enter into a transaction with knowledge
that there is no reasonable probability of payment of the attendant
financial obligation in full by the customer when due.

(10) A willful violation occurs when the person committing the
violation knew or should have known that the conduct of the person was a
violation.

(11) A loan is made “in close connection with the sale of a
manufactured dwelling” if:

(a) The lender directly or indirectly controls, is controlled by or
is under common control with the seller, unless the relationship is
remote and is not a factor in the transaction;

(b) The lender gives a commission, rebate or credit in any form to
a seller who refers the borrower to the lender, other than payment of the
proceeds of the loan jointly to the seller and the borrower;

(c) The lender is related to the seller by blood or marriage;

(d) The seller directly and materially assists the borrower in
obtaining the loan;

(e) The seller prepares documents that are given to the lender and
used in connection with the loan; or

(f) The lender supplies documents to the seller used by the
borrower in obtaining the loan.A person engages
in an unlawful practice when in the course of the person’s business,
vocation or occupation the person:

(1) Employs any unconscionable tactic in connection with sale,
rental or other disposition of real estate, goods or services, or
collection or enforcement of an obligation; or

(2) Fails to deliver all or any portion of real estate, goods or
services as promised, and upon request of the customer, fails to refund
any money that has been received from the customer that was for the
purchase of the undelivered real estate, goods or services and that is
not retained by the seller pursuant to any right, claim or defense
asserted in good faith. This subsection does not create a warranty
obligation and does not apply to a dispute over the quality of real
estate, goods or services delivered to a customer. [1977 c.195 §4; 1979
c.505 §1; 2003 c.759 §§9,10](1) A person engages in an unlawful practice when in the
course of the person’s business, vocation or occupation the person does
any of the following:

(a) Passes off real estate, goods or services as those of another.

(b) Causes likelihood of confusion or of misunderstanding as to the
source, sponsorship, approval, or certification of real estate, goods or
services.

(c) Causes likelihood of confusion or of misunderstanding as to
affiliation, connection, or association with, or certification by,
another.

(d) Uses deceptive representations or designations of geographic
origin in connection with real estate, goods or services.

(e) Represents that real estate, goods or services have
sponsorship, approval, characteristics, ingredients, uses, benefits,
quantities or qualities that they do not have or that a person has a
sponsorship, approval, status, qualification, affiliation, or connection
that the person does not have.

(f) Represents that real estate or goods are original or new if
they are deteriorated, altered, reconditioned, reclaimed, used or
secondhand.

(g) Represents that real estate, goods or services are of a
particular standard, quality, or grade, or that real estate or goods are
of a particular style or model, if they are of another.

(h) Disparages the real estate, goods, services, property or
business of a customer or another by false or misleading representations
of fact.

(i) Advertises real estate, goods or services with intent not to
provide them as advertised, or with intent not to supply reasonably
expectable public demand, unless the advertisement discloses a limitation
of quantity.

(j) Makes false or misleading representations of fact concerning
the reasons for, existence of, or amounts of price reductions.

(k) Makes false or misleading representations concerning credit
availability or the nature of the transaction or obligation incurred.

(L) Makes false or misleading representations relating to
commissions or other compensation to be paid in exchange for permitting
real estate, goods or services to be used for model or demonstration
purposes or in exchange for submitting names of potential customers.

(m) Performs service on or dismantles any goods or real estate when
not authorized by the owner or apparent owner thereof.

(n) Solicits potential customers by telephone or door to door as a
seller unless the person provides the information required under ORS
646.611.

(o) In a sale, rental or other disposition of real estate, goods or
services, gives or offers to give a rebate or discount or otherwise pays
or offers to pay value to the customer in consideration of the customer
giving to the person the names of prospective purchasers, lessees, or
borrowers, or otherwise aiding the person in making a sale, lease, or
loan to another person, if earning the rebate, discount or other value is
contingent upon occurrence of an event subsequent to the time the
customer enters into the transaction.

(p) Makes any false or misleading statement about a prize, contest
or promotion used to publicize a product, business or service.

(q) Promises to deliver real estate, goods or services within a
certain period of time with intent not to deliver them as promised.

(r) Organizes or induces or attempts to induce membership in a
pyramid club.

(s) Makes false or misleading representations of fact concerning
the offering price of, or the person’s cost for real estate, goods or
services.

(t) Concurrent with tender or delivery of any real estate, goods or
services fails to disclose any known material defect or material
nonconformity.

(u) Engages in any other unfair or deceptive conduct in trade or
commerce.

(v) Violates any of the provisions relating to auction sales,
auctioneers or auction marts under ORS 698.640, whether in a commercial
or noncommercial situation.

(w) Manufactures mercury fever thermometers.

(x) Sells or supplies mercury fever thermometers unless the
thermometer is required by federal law, or is:

(A) Prescribed by a person licensed under ORS chapter 677; and

(B) Supplied with instructions on the careful handling of the
thermometer to avoid breakage and on the proper cleanup of mercury should
breakage occur.

(y) Sells a thermostat that contains mercury unless the thermostat
is labeled in a manner to inform the purchaser that mercury is present in
the thermostat and that the thermostat may not be disposed of until the
mercury is removed, reused, recycled or otherwise managed to ensure that
the mercury does not become part of the solid waste stream or wastewater.
For purposes of this paragraph, “thermostat” means a device commonly used
to sense and, through electrical communication with heating, cooling or
ventilation equipment, control room temperature.

(z) Sells or offers for sale a motor vehicle manufactured after
January 1, 2006, that contains mercury light switches.

(aa) Violates the provisions of ORS 803.375, 803.385 or 815.410 to
815.430.

(bb) Violates ORS 646.850 (1).

(cc) Violates any requirement of ORS 646.661 to 646.686.

(dd) Violates the provisions of ORS 128.801 to 128.898.

(ee) Violates ORS 646.883 or 646.885.

(ff) Violates any provision of ORS 646.195.

(gg) Violates ORS 646.569.

(hh) Violates the provisions of ORS 646.859.

(ii) Violates ORS 759.290.

(jj) Violates ORS 646.872.

(kk) Violates ORS 646.553 or 646.557 or any rule adopted pursuant
thereto.

(LL) Violates ORS 646.563.

(mm) Violates ORS 759.690 or any rule adopted pursuant thereto.

(nn) Violates the provisions of ORS 759.705, 759.710 and 759.720 or
any rule adopted pursuant thereto.

(oo) Violates ORS 646.892 or 646.894.

(pp) Violates any provision of ORS 646.249 to 646.259.

(qq) Violates ORS 646.384.

(rr) Violates ORS 646.871.

(ss) Violates ORS 822.046.

(tt) Violates ORS 128.001.

(uu) Violates ORS 646.649 (2) to (4).

(vv) Violates ORS 646.877 (2) to (4).

(ww) Violates ORS 87.686.

(xx) Violates ORS 646.651.

(yy) Violates ORS 646.879.

(zz) Violates ORS 646.402 or any rule adopted under ORS 646.402 or
646.404.

(aaa) Violates ORS 180.440 (1).

(bbb) Commits the offense of acting as a vehicle dealer without a
certificate under ORS 822.005.

(ccc) Violates ORS 87.007 (2) or (3).

(ddd) Violates ORS 92.405 (1), (2) or (3).

(eee) Engages in an unlawful practice under ORS 646.648.

(2) A representation under subsection (1) of this section or ORS
646.607 may be any manifestation of any assertion by words or conduct,
including, but not limited to, a failure to disclose a fact.

(3) In order to prevail in an action or suit under ORS 646.605 to
646.652, a prosecuting attorney need not prove competition between the
parties or actual confusion or misunderstanding.

(4) An action or suit may not be brought under subsection (1)(u) of
this section unless the Attorney General has first established a rule in
accordance with the provisions of ORS chapter 183 declaring the conduct
to be unfair or deceptive in trade or commerce.

(5) Notwithstanding any other provision of ORS 646.605 to 646.652,
if an action or suit is brought under subsection (1)(aaa) of this section
by a person other than a prosecuting attorney, relief is limited to an
injunction and the prevailing party may be awarded reasonable attorney
fees. [1971 c.744 §7 (enacted in lieu of 646.615); 1973 c.235 §2; 1973
c.513 §1; 1975 c.437 §1; 1977 c.195 §2; 1979 c.503 §4; 1983 c.404 §5;
1985 c.251 §10a; 1985 c.538 §3; 1985 c.694 §8; 1985 c.729 §22; 1987 c.626
§5; 1989 c.273 §7; 1989 c.451 §4; 1989 c.458 §3; 1989 c.621 §4; 1989
c.622 §7; 1989 c.623 §3; 1989 c.913 §1; 1991 c.532 §25; 1991 c.672 §8;
1993 c.58 §3; 1993 c.283 §10; 1993 c.582 §11; 1993 c.645 §10; 1993 c.700
§2; 1995 c.713 §6; 1995 c.788 §2; 1997 c.132 §6; 1997 c.806 §2; 1999
c.194 §9; 1999 c.400 §4; 1999 c.669 §3; 1999 c.719 §3; 1999 c.875 §3;
2001 c.924 §§11,13; 2001 c.969 §5; 2003 c.133 §§1,2; 2003 c.486 §§2,3;
2003 c.778 §§4,5; 2003 c.801 §§18,19; 2005 c.42 §§1,2; 2005 c.799 §§2,3] As used in ORS
646.608 (1)(r), “pyramid club” means a sales device whereby a person,
upon condition that the person make an investment, is granted a license
or right to solicit or recruit for economic gain one or more additional
persons who are also granted such license or right upon condition of
making an investment and who may further perpetuate the chain of persons
who are granted such license or right upon such condition. “Pyramid club”
also includes any such sales device which does not involve the sale or
distribution of any real estate, goods or services, including but not
limited to a chain letter scheme. A limitation as to the number of
persons who may participate, or the presence of additional conditions
affecting eligibility for such license or right to recruit or solicit or
the receipt of economic gain therefrom, does not change the identity of
the scheme as a pyramid club. As used herein, “investment” means any
acquisition, for a consideration other than personal services, of
property, tangible or intangible, and includes without limitation,
franchises, business opportunities and services. It does not include
sales demonstration equipment and materials furnished at cost for use in
making sales and not for resale. For the purpose of ORS 646.608 (1)(r),
any person who organizes or induces or attempts to induce membership in a
pyramid club is acting in the course of the person’s business, vocation
or occupation. [1973 c.513 §3; 1981 c.379 §1]A person who solicits potential
customers by telephone or door to door as a seller is in violation of ORS
646.608 (1)(n) unless the person:

(1) Within 30 seconds after beginning the conversation:

(a) Provides identification of both the person and whom the person
represents;

(b) Explains the purpose of the person’s call;

(c) Provides a description in commonly understood terms of the
goods or services offered for sale; and

(d) Inquires whether the person being solicited is interested in
listening to a sales presentation and immediately discontinues the
solicitation if the person being solicited gives a negative response; and

(2) During the course of the solicitation, states the total cost of
the goods or services offered for sale and the number, timing and amount
of installment payments if payment on an installment basis is available
to the person being solicited. [1979 c.503 §6]

(1) Conduct in compliance with the orders or rules of, or a statute
administered by a federal, state or local governmental agency.

(2) Acts done by the publisher, owner, agent or employee of a
newspaper, periodical, telephone directory or radio or television station
in the publication or dissemination of an advertisement, when the
publisher, owner, agent or employee did not have knowledge of the false,
misleading or deceptive character of the advertisement. [1971 c.744 §10;
1977 c.195 §5; 2005 c.577 §1] (1) When it
appears to the prosecuting attorney that a person has engaged in, is
engaging in, or is about to engage in any act or practice declared to be
unlawful by ORS 646.607 or 646.608, the prosecuting attorney may execute
in writing and cause to be served an investigative demand upon any person
who is believed to have information, documentary material or physical
evidence relevant to the alleged or suspected violation. The
investigative demand shall require such person, under oath or otherwise,
to appear and testify, to answer written interrogatories, or to produce
relevant documentary material or physical evidence for examination, at
such reasonable time and place as may be stated in the investigative
demand, or to do any of the foregoing, concerning conduct of any trade or
commerce which is the subject matter of the investigation.

(2) At any time before the return date specified in an
investigative demand, or within 20 days after the demand has been served,
whichever period is shorter, a petition to extend the return date, or to
modify or set aside the demand, stating good cause including privileged
material, may be filed in the appropriate court. [1971 c.744 §14; 1973
c.235 §3; 1977 c.195 §6] Service of any
investigative demand under ORS 646.618 shall be made personally within
this state. If personal service within this state cannot be made,
substituted service therefor may be made by any of the following methods:

(1) Personal service thereof without this state;

(2) The mailing thereof by registered or certified mail to the
last-known place of business, residence or abode within or without this
state of such person for whom the same is intended;

(3) As to any person other than a natural person, in the manner
provided for service of summons in an action or suit; or

(4) Such service as the court may direct in lieu of personal
service within this state. [1971 c.744 §15; 1975 c.437 §2] (1) If any
person, after being served with an investigative demand under ORS
646.622, fails or refuses to obey an investigative demand issued by the
prosecuting attorney, the prosecuting attorney may, after notice, apply
to an appropriate court and, after hearing thereon, request an order:

(a) Granting injunctive relief to restrain the person from engaging
in conduct of any aspect of the trade or commerce that is involved in the
alleged or suspected violation; or

(b) Granting such other relief as may be required, until the person
obeys the investigative demand.

(2) Any disobedience of any final order of a court under this
section shall be punished as a contempt of court. [1971 c.744 §16; 1973
c.235 §4; 1977 c.195 §7; 2005 c.22 §448](1) A prosecuting attorney who has probable cause to believe that a
person is engaging in, has engaged in, or is about to engage in an
unlawful trade practice may bring suit in the name of the State of Oregon
in the appropriate court to restrain such person from engaging in the
alleged unlawful trade practice.

(2) Except as provided in subsections (5) and (6) of this section,
before filing a suit under subsection (1) of this section, the
prosecuting attorney shall in writing notify the person charged of the
alleged unlawful trade practice and the relief to be sought. Such notice
shall be served in the manner set forth in ORS 646.622 for the service of
investigative demands. The person charged thereupon shall have 10 days
within which to execute and deliver to the prosecuting attorney an
assurance of voluntary compliance. Such assurance shall set forth what
actions, if any, the person charged intends to take with respect to the
alleged unlawful trade practice. The assurance of voluntary compliance
shall not be considered an admission of a violation for any purpose. If
the prosecuting attorney is satisfied with the assurance of voluntary
compliance, it may be submitted to an appropriate court for approval and
if approved shall thereafter be filed with the clerk of the court. If an
approved assurance of voluntary compliance provides for the payment of an
amount of money, as restitution or otherwise, and if the amount is not
paid within 90 days of the date the court approves the assurance, or, if
the assurance of voluntary compliance requires periodic payments and if
any periodic payment is not paid within 30 days of the date specified in
the assurance of voluntary compliance for any periodic payment, then the
prosecuting attorney may submit that portion of the assurance of
voluntary compliance which provides for the payment of money to the court
with a certificate stating the unpaid balance in a form which fully
complies with the requirements of ORS 18.038 and 18.042. Upon submission
of an assurance of voluntary compliance under this subsection, the court
shall sign the assurance of voluntary compliance and it shall be entered
in the register of the court and the clerk of the court shall note in the
register that it creates a lien. The assurance of voluntary compliance
shall thereupon constitute a judgment in favor of the State of Oregon and
may be enforced as provided in ORS chapter 18. The notice of the
prosecuting attorney under this subsection shall not be deemed a public
record until the expiration of 10 days from the service of the notice.

(3) The prosecuting attorney may reject as unsatisfactory any
assurance:

(a) Which does not contain a promise to make restitution in
specific amounts or through arbitration for persons who suffered any
ascertainable loss of money or property as a result of the alleged
unlawful trade practice; or

(b) Which does not contain any provision, including but not limited
to the keeping of records, which the prosecuting attorney reasonably
believes to be necessary to ensure the continued cessation of the alleged
unlawful trade practice, if such provision was included in a proposed
assurance attached to the notice served pursuant to this section.

(4) Violation of any of the terms of an assurance of voluntary
compliance which has been approved by and filed with the court shall
constitute a contempt of court.

(5) The prosecuting attorney need not serve notice pursuant to
subsection (2) of this section before filing a suit if, within two years
of the filing of such suit, the person charged with the alleged unfair
trade practice submitted to any prosecuting attorney an assurance of
voluntary compliance which was accepted by and filed with an appropriate
court. The prosecuting attorney shall in such case serve notice on the
defendant in the manner set forth in ORS 646.622 for the service of
investigative demands, on the 10th or earlier day previous to the filing
of suit.

(6) If the prosecuting attorney alleges that the prosecuting
attorney has reason to believe that the delay caused by complying with
the provisions of subsection (2) or (5) of this section would cause
immediate harm to the public health, safety or welfare, the prosecuting
attorney may immediately institute a suit under subsection (1) of this
section.

(7) A temporary restraining order may be granted without prior
notice to the person if the court finds there is a threat of immediate
harm to the public health, safety or welfare. Such a temporary
restraining order shall expire by its terms within such time after entry,
not to exceed 10 days, as the court fixes, unless within the time so
fixed the order, for good cause shown, is extended for a like period or
unless the person restrained consents that it may be extended for a
longer period.

(8) The court may award reasonable attorney fees to the prevailing
party in an action under this section. If the defendant prevails in such
suit and the court finds that the defendant had in good faith submitted
to the prosecuting attorney a satisfactory assurance of voluntary
compliance prior to the institution of the suit or that the prosecuting
attorney, in a suit brought under subsections (5) and (6) of this
section, did not have reasonable grounds to proceed under those
subsections, the court shall award reasonable attorney fees at trial and
on appeal to the defendant. [1971 c.744 §11; 1975 c.437 §3; 1981 c.897
§77; 1989 c.745 §1; 1995 c.618 §97; 2003 c.576 §215] The court may make such additional
orders or judgments as may be necessary to restore to any person in
interest any moneys or property, real or personal, of which the person
was deprived by means of any practice declared to be unlawful in ORS
646.607 or 646.608, or as may be necessary to ensure cessation of
unlawful trade practices. [1971 c.744 §12; 1977 c.195 §8; 2005 c.22 §449](1)
Except as provided in subsection (8) of this section, any person who
suffers any ascertainable loss of money or property, real or personal, as
a result of willful use or employment by another person of a method, act
or practice declared unlawful by ORS 646.608, may bring an individual
action in an appropriate court to recover actual damages or $200,
whichever is greater. The court or the jury, as the case may be, may
award punitive damages and the court may provide the equitable relief the
court considers necessary or proper.

(2) Upon commencement of any action brought under subsection (1) of
this section the party bringing the action shall mail a copy of the
complaint or other initial pleading to the Attorney General and, upon
entry of any judgment in the action, shall mail a copy of the judgment to
the Attorney General. Failure to mail a copy of the complaint shall not
be a jurisdictional defect, but a court may not enter judgment for the
plaintiff until proof of mailing is filed with the court. Proof of
mailing may be by affidavit or by return receipt of mailing.

(3) Except as provided in subsection (4) of this section, the court
may award reasonable attorney fees to the prevailing party in an action
under this section.

(4) The court may not award attorney fees to a prevailing defendant
under the provisions of subsection (3) of this section if the action
under this section is maintained as a class action pursuant to ORCP 32.

(5) Any permanent injunction or final judgment or order of the
court made under ORS 646.632 or 646.636 is prima facie evidence in an
action brought under this section that the respondent used or employed a
method, act or practice declared unlawful by ORS 646.608, but an
assurance of voluntary compliance, whether or not approved by the court,
shall not be evidence of the violation.

(6) Actions brought under this section shall be commenced within
one year from the discovery of the unlawful method, act or practice.
However, whenever any complaint is filed by a prosecuting attorney to
prevent, restrain or punish violations of ORS 646.608, running of the
statute of limitations with respect to every private right of action
under this section and based in whole or in part on any matter complained
of in said proceeding shall be suspended during the pendency thereof.

(7) Notwithstanding subsection (6) of this section, in any action
brought by a seller or lessor against a purchaser or lessee of real
estate, goods or services, the purchaser or lessee may assert any
counterclaim the purchaser or lessee has arising out of a violation of
ORS 646.605 to 646.652.

(8) This section does not apply to any method, act or practice
described in ORS 646.608 (1)(aa). Actions for violation of laws relating
to odometers are provided under ORS 815.410 and 815.415. [1971 c.744 §13;
1973 c.235 §5; 1975 c.437 §4; 1977 c.195 §9; 1981 c.897 §78; 1985 c.251
§10b; 1995 c.696 §35; 2001 c.917 §3; 2001 c.924 §§16,18; 2005 c.42 §§3,4] (1) As used in
subsection (2) of this section:

(a) “Consumer” means a natural person who purchases or acquires
property, services or credit for personal, family or household purposes.

(b) “Consumer transaction” means a transaction between a consumer
and a person who sells, leases or provides property, services or credit
to consumers.

(c) “Commercial creditor” means a person who in the ordinary course
of business engages in consumer transactions.

(d) “Credit” means the right granted by a creditor to a consumer to
defer payment of a debt, to incur a debt and defer its payment, or to
purchase or acquire property or services and defer payment therefor.

(e) “Debt” means any obligation or alleged obligation arising out
of a consumer transaction.

(f) “Debtor” means a consumer who owes or allegedly owes an
obligation arising out of a consumer transaction.

(g) “Debt collector” means any person who by any direct or indirect
action, conduct or practice, enforces or attempts to enforce an
obligation that is owed or due to any commercial creditor, or alleged to
be owed or due to any commercial creditor, by a consumer as a result of a
consumer transaction.

(h) “Person” means an individual, corporation, trust, partnership,
incorporated or unincorporated association or any other legal entity.

(2) It shall be an unlawful collection practice for a debt
collector, while collecting or attempting to collect a debt to do any of
the following:

(a) Use or threaten the use of force or violence to cause physical
harm to a debtor or to the debtor’s family or property.

(b) Threaten arrest or criminal prosecution.

(c) Threaten the seizure, attachment or sale of a debtor’s property
when such action can only be taken pursuant to court order without
disclosing that prior court proceedings are required.

(d) Use profane, obscene or abusive language in communicating with
a debtor or the debtor’s family.

(e) Communicate with the debtor or any member of the debtor’s
family repeatedly or continuously or at times known to be inconvenient to
that person with intent to harass or annoy the debtor or any member of
the debtor’s family.

(f) Communicate or threaten to communicate with a debtor’s employer
concerning the nature or existence of the debt.

(g) Communicate without the debtor’s permission or threaten to
communicate with the debtor at the debtor’s place of employment if the
place is other than the debtor’s residence, except that the debt
collector may:

(A) Write to the debtor at the debtor’s place of employment if no
home address is reasonably available and if the envelope does not reveal
that the communication is from a debt collector other than a provider of
the goods, services or credit from which the debt arose.

(B) Telephone a debtor’s place of employment without informing any
other person of the nature of the call or identifying the caller as a
debt collector but only if the debt collector in good faith has made an
unsuccessful attempt to telephone the debtor at the debtor’s residence
during the day or during the evening between the hours of 6 p.m. and 9
p.m. The debt collector may not contact the debtor at the debtor’s place
of employment more frequently than once each business week and may not
telephone the debtor at the debtor’s place of employment if the debtor
notifies the debt collector not to telephone at the debtor’s place of
employment or if the debt collector knows or has reason to know that the
debtor’s employer prohibits the debtor from receiving such communication.
For the purposes of this subparagraph, any language in any instrument
creating the debt which purports to authorize telephone calls at the
debtor’s place of employment shall not be considered as giving permission
to the debt collector to call the debtor at the debtor’s place of
employment.

(h) Communicate with the debtor in writing without clearly
identifying the name of the debt collector, the name of the person, if
any, for whom the debt collector is attempting to collect the debt and
the debt collector’s business address, on all initial communications. In
subsequent communications involving multiple accounts, the debt collector
may eliminate the name of the person, if any, for whom the debt collector
is attempting to collect the debt, and the term “various” may be
substituted in its place.

(i) Communicate with the debtor orally without disclosing to the
debtor within 30 seconds the name of the individual making the contact
and the true purpose thereof.

(j) Cause any expense to the debtor in the form of long distance
telephone calls, telegram fees or other charges incurred by a medium of
communication, by concealing the true purpose of the debt collector’s
communication.

(k) Attempt to or threaten to enforce a right or remedy with
knowledge or reason to know that the right or remedy does not exist, or
threaten to take any action which the debt collector in the regular
course of business does not take.

(L) Use any form of communication which simulates legal or judicial
process or which gives the appearance of being authorized, issued or
approved by a governmental agency, governmental official or an attorney
at law when it is not in fact so approved or authorized.

(m) Represent that an existing debt may be increased by the
addition of attorney fees, investigation fees or any other fees or
charges when such fees or charges may not legally be added to the
existing debt.

(n) Collect or attempt to collect any interest or any other charges
or fees in excess of the actual debt unless they are expressly authorized
by the agreement creating the debt or expressly allowed by law.

(o) Threaten to assign or sell the debtor’s account with an
attending misrepresentation or implication that the debtor would lose any
defense to the debt or would be subjected to harsh, vindictive or abusive
collection tactics.

(3) It shall be an unlawful collection practice for a debt
collector, by use of any direct or indirect action, conduct or practice,
to enforce or attempt to enforce an obligation made void and
unenforceable by the provisions of ORS 759.720 (3) to (5). [1977 c.184
§2; 1985 c.799 §1; 1991 c.672 §9; 1991 c.906 §1; 1995 c.696 §50](1) Any person
injured as a result of willful use or employment by another person of an
unlawful collection practice may bring an action in an appropriate court
to enjoin the practice or to recover actual damages or $200, whichever is
greater. The court or the jury may award punitive damages, and the court
may provide such equitable relief as it deems necessary or proper.

(2) In any action brought by a person under this section, the court
may award reasonable attorney fees to the prevailing party.

(3) Actions brought under this section shall be commenced within
one year from the date of the injury. [1977 c.184 §3; 1981 c.897 §79;
1995 c.618 §99] (1) Any person who willfully violates the
terms of an injunction issued under ORS 646.632 shall forfeit and pay to
the state a civil penalty to be set by the court of not more than $25,000
per violation. For the purposes of this section, the court issuing the
injunction shall retain jurisdiction and the cause shall be continued,
and in such cases the prosecuting attorney acting in the name of the
state may petition for recovery of civil penalties.

(2) Any person who willfully violates any provision of an assurance
of voluntary compliance approved and filed with an appropriate court
under ORS 646.632 shall forfeit and pay to the state a civil penalty to
be set by the court of not more than $25,000 per violation. Any
prosecuting attorney may apply to an appropriate court for recovery of
such civil penalty. In any action brought by a prosecuting attorney under
this section, and in any contempt action brought by a prosecuting
attorney pursuant to ORS 646.632 (4), the court may award to the
prevailing party, in addition to any other relief provided by law,
reasonable attorney fees and costs at trial and on appeal.

(3) In any suit brought under ORS 646.632, if the court finds that
a person is willfully using or has willfully used a method, act or
practice declared unlawful by ORS 646.607 or 646.608, the prosecuting
attorney, upon petition to the court, may recover, on behalf of the
state, a civil penalty to be set by the court of not exceeding $25,000
per violation. [1971 c.744 §17; 1975 c.437 §5; 1977 c.195 §10; 1989 c.745
§2; 1995 c.618 §100] A debt collector who is
subject to and in compliance with the requirements of the Fair Debt
Collection Practices Act (Public Law 95-109, 15 U.S.C. 1692 et seq.)
shall also be considered to be in compliance with the requirements of ORS
646.639. [1991 c.906 §3]Upon petition by the prosecuting attorney, the court may, in
its discretion, order the dissolution or suspension or forfeiture of the
license or franchise of any person who violates the terms of any
injunction issued under ORS 646.632. [1971 c.744 §18] (1) As
used in this section:

(a) “Buyer” means a person who buys or agrees to buy a manufactured
dwelling from a manufactured dwelling dealer.

(b) “Cash sale price” means the price for which a manufactured
dwelling dealer would sell to a buyer, and the buyer would buy from a
dealer, a manufactured dwelling that is covered by a purchase agreement,
if the sale were a sale for cash instead of a retail installment sale.

(c) “Manufactured dwelling” has the meaning given that term in ORS
446.003.

(d) “Manufactured dwelling dealer” means a person licensed under
ORS 446.691 or 446.696 or a temporary manufactured structure dealer
licensee under ORS 446.701.

(e) “Retail installment sale” has the meaning given that term in
ORS 83.510.

(2) A manufactured dwelling dealer engages in an unlawful practice
when, in a sale of a manufactured dwelling, the dealer does any of the
following:

(a) Misrepresents to a buyer that, as a condition of financing, the
buyer must purchase:

(A) Credit life insurance;

(B) Credit disability insurance;

(C) Credit unemployment insurance;

(D) Credit property insurance;

(E) Health insurance;

(F) Life insurance; or

(G) An extended warranty.

(b) In close connection with the sale, misrepresents to a lender:

(A) The cash sale price;

(B) The amount of the buyer’s down payment; or

(C) The buyer’s credit or employment history. [2001 c.917 §1; 2003
c.655 §82]Note: Sections 2 and 14, chapter 658, Oregon Laws 2003, provide:

Sec. 2. (1) As used in this section, “facility,” “floating home,”
“landlord,” “manufactured dwelling” and “tenant” have the meanings given
those terms in ORS 90.100.

(2) A facility landlord engages in an unlawful trade practice when
the landlord violates ORS 90.680 (6) in a sale of a manufactured dwelling
or floating home by a tenant to a prospective purchaser who desires to
leave the dwelling or home on the rented space and become a tenant.

(3) Notwithstanding ORS 646.638, only a prosecuting attorney may
bring an action under ORS 646.605 to 646.652 for a violation described in
this section. [2003 c.658 §2]

Sec. 14. Section 2 of this 2003 Act is repealed January 1, 2008.
(1) As used in this section:

(a) “Cable service” means:

(A) One-way transmission to subscribers of a video programming
service;

(B) Two-way interactive service delivered over a cable system; or

(C) Any communication with subscribers necessary for the selection
and use of video programming or interactive services.

(b) “Cable system” means a facility consisting of closed
transmission paths and associated signal operation, reception and control
equipment that is designed to provide cable service.

(2)(a) A seller of cable service may assess a late fee on
delinquent subscriber accounts held by the seller that have an unpaid
balance of $10 or more.

(b) A late fee assessed under subsections (2), (3) and (4) of this
section shall not exceed five percent of the unpaid balance or $6,
whichever is greater.

(3) The seller of cable service shall conspicuously disclose on
each statement or invoice the terms under which a late fee may be
assessed, including the amount of the fee.

(4) Prior to assessing a late fee under subsections (2), (3) and
(4) of this section, the seller shall give written notice to the
subscriber. The notice shall conspicuously indicate the amount of the
unpaid balance, an address where payment may be made, the date on which
the late fee will be imposed and the amount of the late fee. The notice
shall be mailed to the subscriber’s last-known billing address as shown
in the seller’s records. The notice shall be mailed at least 10 days
prior to the date on which the late fee will be assessed. The late fee
may not be assessed earlier than 27 days after the due date for the
unpaid balance. [1999 c.400 §§2,3]Note: 646.649 and 646.651 were enacted into law by the Legislative
Assembly but were not added to or made a part of ORS chapter 646 or any
series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.(1) As used in this section:

(a) “Contest” means a procedure for awarding a prize in which the
outcome depends at least in part on the skill of the contestant.
“Contest” includes any competition in which a person is required to
purchase anything, pay anything of value or make a donation in order to
participate. “Contest” also includes a competition that is advertised in
a way that creates a reasonable impression that a payment of anything of
value, purchase of anything or making a donation is a condition of
winning a prize or competing for or obtaining information about a prize.

(b) “Sweepstakes” means a procedure for awarding a prize that is
based on chance. “Sweepstakes” includes any such procedure in which a
person is required to purchase anything, pay anything of value or make a
donation as a condition of winning a prize or of receiving or obtaining
information about a prize. “Sweepstakes” also includes any such procedure
that is advertised in a way that creates a reasonable impression that a
payment of anything of value, purchase of anything or making a donation
is a condition of winning a prize or receiving or obtaining information
about a prize.

(c) “Clearly and conspicuously” means the message is conveyed in a
manner that is reasonably apparent to the audience to whom it is
directed. In order for a message to be considered clear and conspicuous,
it shall, at a minimum:

(A) Not contradict or substantially alter any terms it purports to
clarify, explain or otherwise relate to; and

(B) In the case of printed solicitations:

(i) Be in close proximity to the terms it purports to clarify,
explain or otherwise relate to; and

(ii) Be of sufficient prominence in terms of placement, font or
color contrast as compared with the remainder of the solicitation so as
to be reasonably apparent to the audience to whom it is directed.

(2) A person engages in an unlawful practice when, in the course of
the person’s business, vocation or occupation, the person uses the United
States mail to solicit participation in a contest and the person does not
clearly and conspicuously disclose in the solicitation:

(a) The maximum number of rounds or levels, if the contest has more
than one round or level;

(b) The date the final winner will be determined;

(c) The maximum total cost the final winner will have paid to the
sponsor to participate in the contest;

(d) Whether the final winner must purchase or pay anything of value
to a person other than the sponsor if purchasing or paying is a condition
of eligibility;

(e) If the contest involves multiple rounds of increasing
difficulty, an example illustrative of the last determinative round or a
statement that subsequent rounds will be more difficult;

(f) If the contest is judged by someone other than the sponsor, the
identity of or description of the qualifications of the judges;

(g) The method used in judging; and

(h) The name and address of the sponsor or the sponsor’s agent.

(3) A person engages in an unlawful practice when, in the course of
the person’s business, vocation or occupation, the person uses the United
States mail to solicit participation in a sweepstakes and does not
clearly and conspicuously disclose in the solicitation:

(a) The odds of winning in Arabic numerals, except that if the odds
of winning depend on the number of entries received, a statement to that
effect will be deemed sufficient;

(b) The name and address of the sponsor or the sponsor’s agent,
consistently stated wherever it is used; and

(c) The procedure for entry without purchase.

(4) A person engages in an unlawful practice when, in the course of
the person’s business, vocation or occupation, the person solicits
participation in a contest or sweepstakes:

(a) By using the United States mail to represent that a person has
been selected to receive or has won a particular prize, when that is not
the case; or

(b) By using the United States mail to represent that a person is a
winner, is a finalist, is in first place or is otherwise in a limited
group of persons with an enhanced likelihood of winning or receiving a
prize, when more than 25 percent of the persons receiving the
solicitation have the same chance of winning. [1999 c.875 §2]Note: See note under 646.649.A district attorney shall make a full report to
the Attorney General of any action, suit, or proceeding prosecuted by
such district attorney under ORS 646.605 to 646.652, including the final
disposition of the matter, and shall file with the Attorney General
copies of all assurances of voluntary compliance accepted under ORS
646.632. [1971 c.744 §19]The remedies provided in ORS 646.605 to 646.652 are in addition
to all other remedies, civil or criminal, existing at common law or under
the laws of this state. [1971 c.744 §21a]HEALTH SPAS As used in ORS
646.608 and 646.661 to 646.691, unless the context requires otherwise:

(1) “Business day” means any day except a Sunday or a legal holiday.

(2) “Buyer” means a person who purchases health spa services.

(3) “Conspicuous” has the meaning given that term in ORS 71.2010
(10).

(4) “Health spa” means any person engaged, as a primary purpose, in
the sale of instruction, training, assistance or use of facilities which
are purported to assist patrons in physical exercise, weight control or
figure development. The term also includes any person engaged primarily
in the sale of the right or privilege to use tanning booths, exercise
equipment or facilities, such as a sauna, whirlpool bath, weight-lifting
room, massage, steam room, or other exercising machine or device. “Health
spa” does not include any facility owned and operated by the State of
Oregon or any of its political subdivisions.

(5) “Health spa services” means services, privileges or rights
offered for sale by a health spa.

(6) “Person” has the meaning given that term in ORS 646.605 (4).
[1985 c.694 §1] (1) Each health spa
shall prepare and provide to each prospective buyer a written list of
prices of all forms or plans of health spa services offered for sale by
the health spa.

(2) A health spa may not sell any form or plan of health spa
services not included in the list. [1985 c.694 §2] A contract for the sale of health spa
services must be in writing and a copy must be given to the buyer at the
time the buyer signs the contract. The contract must contain all of the
following:

(1) Identification of the person providing the health spa services.

(2) A description of the health spa services to be provided, or
acknowledgment in a conspicuous form that the buyer has received a
written description of the health spa services to be provided. If any of
the health spa services are to be delivered at a planned facility, at a
facility under construction or through substantial improvement to an
existing facility, the description must include a date for the completion
of the facility, construction or improvement.

(3) A complete statement of the rules of the health spa or an
acknowledgment in a conspicuous form that the buyer has received a copy
of the rules.

(4) A statement of the duration of the obligation of the health spa
to provide health spa services to the buyer. The duration shall not
exceed three years from the date of the contract.

(5) A provision for cancellation of the contract:

(a) If the buyer dies or becomes physically unable to use a
substantial portion of those health spa services used by the buyer from
the date of the contract until the time of disability. The contract may
require that disability be confirmed by an examination of a physician
agreeable to the buyer and the health spa.

(b) If the health spa goes out of business.

(c) If the health spa moves its facility closest to the residence
of the buyer on the date of the contract to a location more than five
additional miles from that residence.

(d) If a facility, construction or improvement is not completed by
the date represented in the contract.

(e) If the health spa materially changes the health spa services
promised as a part of the initial contract.

(6) A provision for a refund upon cancellation in an amount
computed by dividing the contract price by the number of weeks in the
contract term and multiplying the result by the number of weeks remaining
in the contract term.

(7) A provision under a conspicuous caption in capital letters and
boldfaced type stating:

___________________________________________________________________________
___

BUYER’S RIGHT TO CANCEL

If you wish to cancel this contract, without penalty, you may
cancel it by delivering or mailing a written notice to the health spa.
The notice must say that you do not wish to be bound by the contract and
must be delivered or mailed before midnight of the third business day
after you sign this contract. The notice must be mailed to:
_________(insert name and mailing address of health spa). If you cancel
within the three days, the health spa will return to you within 15 days
all amounts you have paid.

___________________________________________________________________________
___ [1985 c.694 §3] Upon request, a
health spa must deliver to a prospective buyer copies of the contract
required by ORS 646.671, and the rules of the health spa if not stated in
the contract, and must allow the prospective buyer to retain the copies
so provided. [1985 c.694 §5](1) All moneys paid to a health spa by a buyer
prior to the opening of the facility shall promptly be deposited by the
health spa in a trust account, maintained by the health spa for the
purpose of holding such moneys for the buyer, in a bank, savings and loan
association, mutual savings bank or licensed escrow agent located in
Oregon.

(2) The health spa shall within seven days of the first deposit
notify the office of the Attorney General, in writing, of the name,
address and location of the depository and any subsequent change thereof.

(3) The health spa shall provide the buyer with a written receipt
for the moneys and shall provide written notice of the name, address and
location of the depository and any subsequent change thereof.

(4) If prior to the opening of the facility the status of the
health spa is transferred to another, any sums in the trust account
affected by such transfer shall simultaneously be transferred to an
equivalent trust account of the successor, and the successor shall
promptly notify the buyer and the office of the Attorney General of the
transfer and of the name, address and location of the new depository.

(5) The buyer’s claim to any moneys under this section is prior to
that of any creditor of the health spa, including a trustee in bankruptcy
or receiver, even if such moneys are commingled.

(6) After the health spa receives a notice of cancellation of the
agreement or if the health spa fails to open a facility at the stated
date of completion the health spa shall within 10 days give a full refund
to the buyer, including the buyer’s pro rata share of any interest earned
thereon.

(7) All sums received by a health spa in excess of the health spa’s
normal monthly dues shall be placed in escrow subject to the terms and
provisions stated in this section in the event that the health spa is not
fully operational or in the event that the health spa is promising future
construction or improvements. [1985 c.694 §4]A health spa shall not request a buyer to
waive any provision of ORS 646.608 and 646.661 to 646.691. Any waiver by
a buyer of any provision of ORS 646.608 and 646.661 to 646.691 is
contrary to public policy and is void and unenforceable. [1985 c.694 §6]The remedies and obligations provided in ORS 646.608 and
646.661 to 646.691 are in addition to any other remedies and obligations,
civil or criminal, existing at common law or under the laws of this
state. [1985 c.694 §7]ANTITRUST LAW (1) As
used in ORS 136.617 and 646.705 to 646.805, “trade or commerce” means
trade or commerce within the state; or between the state and any state,
territory, or foreign nation.

(2) As used in ORS 646.775, “natural persons” shall not include
proprietorships or partnerships. [1975 c.255 §2; 1979 c.790 §1] (1) The Legislative Assembly deems
it to be necessary and the purpose of ORS 646.705 to 646.805 and 646.990
is to encourage free and open competition in the interest of the general
welfare and economy of the state, by preventing monopolistic and unfair
practices, combination and conspiracies in restraint of trade and
commerce, and for that purpose to provide means to enjoin such practices
and provide remedies for those injured by them.

(2) Without limiting the scope of ORS 646.705 to 646.805 and
646.990, it is the legislative purpose that it apply to intrastate trade
or commerce, and to interstate trade or commerce involving an actual or
threatened injury to a person or property located in this state. The
decisions of federal courts in construction of federal law relating to
the same subject shall be persuasive authority in the construction of ORS
646.705 to 646.805 and 646.990. [1975 c.255 §3; 2001 c.415 §1] Every contract, combination in the form of
trust or otherwise, or conspiracy in restraint of trade or commerce is
declared to be illegal. [1975 c.255 §4] Every person who shall monopolize,
or attempt to monopolize, or combine or conspire with any other person or
persons, to monopolize any part of trade or commerce, shall be in
violation of ORS 136.617, 646.705 to 646.805 and 646.990. [1975 c.255 §5]The provisions of ORS 136.617,
646.705 to 646.805 and 646.990 may not be construed to make illegal:

(1) The activities of any labor organization or individual working
men and women permitted by ORS chapters 661 to 663;

(2) The right of producers, as defined in ORS 646.515, and
commercial fishermen to join, belong to and act through cooperative
bargaining associations under ORS 646.515 to 646.545. For the purpose of
this subsection, activities of cooperative bargaining associations and
their members that are lawful under 15 U.S.C. 521 and 522 or 7 U.S.C. 291
and 292 are lawful under ORS 646.515 to 646.545;

(3) The activities of any person subject to regulation by the
Public Utility Commission under ORS chapters 756 to 759 to the extent
that such activities are so regulated and are lawful thereunder or the
activities of any person conducted or carried out in accordance with any
agreement or procedure approved as provided in 49 U.S.C. 5b or 5c;

(4) The activities of any person subject to regulation by the
Director of the Department of Consumer and Business Services under ORS
chapters 731 to 750 to the extent that such activities are so regulated
and are lawful thereunder;

(5) The activities of any state or national banking institution or
savings and loan association, and of any other lending institution, to
the extent that such activities are regulated by the Director of the
Department of Consumer and Business Services under ORS chapters 706 to
725 and are lawful thereunder;

(6) Any other activity specifically authorized under state law or
local ordinance;

(7) The activities of any metropolitan service district formed
under ORS chapter 268 and the activities of any person subject to
regulation by a metropolitan service district formed under ORS chapter
268 to the extent that those activities are so regulated and are lawful
thereunder;

(8) The activities of any person conducted or carried out in
accordance with the terms and conditions of a certificate issued pursuant
to 15 U.S.C. 4001 to 4021;

(9) The activities of a health care provider authorized by and in
accordance with ORS 442.700 to 442.760 to the extent the activities are
regulated and lawful under ORS 442.700 to 442.760;

(10) The negotiating activities of a dealer in agricultural
commodities that are carried out and supervised under ORS 62.848; or

(11) The negotiating activities of a dealer in Oregon seafood
commodities that are carried out and supervised under ORS 62.849. [1975
c.255 §6; 1977 c.545 §1; 1979 c.531 §7; 1983 c.200 §19; 1985 c.762 §185;
1987 c.373 §29; 1987 c.447 §136; 1993 c.769 §15; 1995 c.733 §75; 1997
c.296 §2; 2001 c.142 §6; 2003 c.487 §6](1) As
used in this section:

(a) “Affiliate” means an individual, or a corporation or other
entity controlling, controlled by or under common control with the owner
or operator of the arena. For purposes of this subsection, the term
“control” means ownership of more than 50 percent of the shares or other
ownership interests in the owner or operator of the arena or having
management power over the affairs of the owner or operator of the arena.

(b) “Arena” means a multipurpose arena with a seating capacity of
approximately 19,000 constructed or to be constructed on real property
adjacent to the Coliseum.

(c) “Coliseum” means the Memorial Coliseum in Portland.

(d) “Coliseum agreement” means an operating agreement, management
agreement, lease or any similar agreement between the City of Portland
and any corporation, partnership, limited partnership or individual who
owns or operates the arena or any affiliate of the owner or operator of
the arena.

(2) The Legislative Assembly finds that direct competition between
the Arena and Coliseum may require the City of Portland to spend limited
public resources to maintain the Coliseum, undermine the City of
Portland’s goal of creating a world-class center for athletic events,
conventions, trade shows and other events and otherwise result in
economic rivalry injurious to the interests of the City of Portland and
the citizens of this state.

(3) The Legislative Assembly declares that it is the policy and
intent of this state to displace competition between the Arena and
Coliseum by allowing the City of Portland to enter agreements for the
joint operation of the facilities by an owner or operator of the Arena in
order to further the following goals:

(a) To avoid economic rivalry which might undermine the continuing
economic viability of the Coliseum and require the public to subsidize
the operations of the Coliseum with funds which the City of Portland has
allocated to other public needs;

(b) To allow the joint operation of the Coliseum and Arena to avoid
scheduling conflicts and other related problems which would unduly burden
public safety resources and the transportation system of the City of
Portland;

(c) To encourage the joint marketing of the Arena and Coliseum to
attract trade shows, conventions and other events which require multiple
venues or could otherwise not be accommodated by the Coliseum or Arena;

(d) To avoid duplication of management and other services and
minimize the public funds necessary to operate the Coliseum;

(e) To encourage development of the Arena adjacent to the Coliseum
rather than in another location; and

(f) To limit financing risk and provide for development of the
Arena with private funding sources so that public funds may be used for
other pressing needs.

(4) The Legislative Assembly declares that the City of Portland is
the political subdivision of the State of Oregon best suited to monitor
and supervise the operation of the Coliseum Agreement. The Legislative
Assembly therefore delegates to the City of Portland the power to
supervise and review the activities of the owner or operator of the Arena
under the Coliseum Agreement and declares that this review shall be
equivalent to active supervision by the State of Oregon to the fullest
possible extent under the federal or state antitrust laws. The City of
Portland may, subject to any agreement with the owner or operator of the
Arena, review and approve annually or more frequently certain practices
under the Coliseum Agreement, including without limitation:

(a) Prices charged for Coliseum events;

(b) Decisions about event allocation between the Arena and
Coliseum; and

(c) Decisions to decline to accommodate events at either the
Coliseum or the Arena, or both. [1993 c.183 §2](1) When it appears to the Attorney General that a person has
engaged in, is engaging in, or is about to engage in any act or practice
declared to be unlawful by ORS 646.725 or 646.730, the Attorney General
may execute in writing and cause to be served an investigative demand
upon any person who is believed to have documentary material or
information relevant to the alleged or suspected violation. The
investigative demand shall require such person to produce relevant
documentary material for examination and copying or reproduction, to
answer in writing written interrogatories, to give oral testimony
concerning documentary material or information, or to furnish any
combination of such material, answers or testimony under penalty of
perjury, at such reasonable time and place as may be stated in the
investigative demand.

(2) At any time before the return day specified in the
investigative demand, or within 20 days after the demand has been served
whichever time is shorter, a petition to extend the return date, or to
modify or set aside the demand, stating good cause, may be filed in the
appropriate court.

(3) The investigative demand shall state the nature of the conduct
constituting the alleged antitrust violation under investigation and the
provisions of law believed to be applicable thereto. [1975 c.255 §13;
1977 c.729 §1] (1) The
Attorney General may prosecute an action for appropriate injunctive
relief and civil penalties in the name of the state for any violation of
ORS 646.725 or 646.730. The court may assess for the benefit of the state
a civil penalty of not more than $250,000 for each violation of ORS
136.617, 646.705 to 646.805 and 646.990. Any act or series of acts by one
or more individual persons (officers, agents or partners) on behalf of a
corporation or other business entity may be found to constitute a
violation or violations by such individual person or persons as well as
by the corporation or other business entity, and separate penalties may
be imposed against each of such individual defendants and corporate or
other business entity defendants for such a violation. The court may
award reasonable attorney fees, expert witness fees and costs of
investigation to the Attorney General if the Attorney General prevails in
an action under this section. The court may award reasonable attorney
fees, expert witness fees and costs of investigation to a defendant who
prevails in an action under this section if the court determines that the
Attorney General had no objectively reasonable basis for asserting the
claim or no reasonable basis for appealing an adverse decision of the
trial court.

(2) The complaint may also seek and the court may order, in an
appropriate case, the forfeiture of any corporate franchise, professional
or business license, right to do business or to use an assumed business
name, where the court finds the use by any defendant of such franchise,
license or right has been material to a violation of ORS 646.725 or
646.730.

(3) The court shall take into consideration in mitigation of any
penalty assessed under this section, any fine or penalty imposed against
the defendant by a United States court in a final judgment under sections
1 to 45 of Title 15 of the United States Code, which the court finds to
be based on the same or substantially the same acts of defendant. [1975
c.255 §8; 1981 c.897 §80; 1995 c.696 §36; 1999 c.370 §1] (1) Any person including
the state or any municipal corporation or political subdivision
threatened with injury in its business or property by a violation of ORS
646.725 or 646.730 may prosecute a suit for equitable relief, and in
addition to such relief shall recover the costs of suit, including
necessary reasonable investigative costs and reasonable experts’ fees.

(2) Except as provided in subsection (3) of this section, in an
action brought under the provisions of this section by a person other
than the state or any municipal corporation or political subdivision of
the state, the court may award reasonable attorney fees to the prevailing
party. Except as provided in subsection (3) of this section, in a civil
action brought under the provisions of this section by the state or any
municipal corporation or political subdivision of the state:

(a) The court may award reasonable attorney fees to the state or
political subdivision of the state if the state or political subdivision
prevails in the action; and

(b) The court may award reasonable attorney fees to a defendant who
prevails in an action under this section if the court determines that the
state or any municipal corporation or political subdivision of the state
had no objectively reasonable basis for asserting the claim or no
reasonable basis for appealing an adverse decision of the trial court.

(3) The court may not award attorney fees to a prevailing defendant
under the provisions of subsection (2) of this section if the action
under this section is maintained as a class action pursuant to ORCP 32.
[1975 c.255 §9; 1981 c.897 §81; 1995 c.696 §37](1)(a) The Attorney General may bring a civil action in
the name of the State of Oregon, on behalf of a political subdivision in
this state or as parens patriae on behalf of a natural person, in any
circuit court in which venue is proper under ORS 646.790, to secure
equitable and monetary relief as provided in this section for injury
sustained by the natural person or political subdivision to the natural
person’s or political subdivision’s property by reason of a violation of
ORS 646.725 or 646.730. The Attorney General may bring the action
authorized by this paragraph regardless of whether the natural person or
political subdivision dealt directly or indirectly with the adverse party.

(b) The court shall exclude from the amount of monetary relief
awarded in an action pursuant to paragraph (a) of this subsection any
amount of monetary relief:

(A) That duplicates amounts that have been awarded for the same
injury; or

(B) That is properly allocable to natural persons who have excluded
their claims pursuant to subsection (2)(b) of this section, or to any
business entity.

(c)(A) Subject to paragraph (b) of this subsection, the court shall
award the state as monetary relief three times the total damages
sustained by natural persons and political subdivisions and the costs the
state incurs in the action.

(B) The court may award reasonable attorney fees to the Attorney
General if the Attorney General prevails in an action under this section.

(C) The court may award reasonable attorney fees to a defendant who
prevails in an action under this section if the court determines that the
Attorney General had no objectively reasonable basis for asserting the
claim or no reasonable basis for appealing an adverse decision of the
trial court.

(d) Notwithstanding paragraph (c) of this subsection, the court
shall award the state only the actual damages sustained by natural
persons and political subdivisions in an action in which:

(A) The Attorney General prevails solely on the basis of a judgment
entered in a proceeding under 15 U.S.C. 1 to 45 or in another action by
the state under ORS 646.760, 646.770 or 646.780, used as collateral
estoppel against the defendant under ORS 646.805; or

(B) The natural person or political subdivision dealt indirectly
with the adverse party and the Attorney General establishes a violation
other than a per se violation of ORS 646.725.

(2)(a) In any action pursuant to subsection (1)(a) of this section,
the Attorney General shall, at the times, in the manner and with the
content the court directs, give notice by publication. If the court finds
that notice given solely by publication would deny due process of law to
a natural person or political subdivision, the court may direct further
notice to the natural person or political subdivision according to the
circumstances of the case.

(b) Any natural person or political subdivision on whose behalf an
action is brought pursuant to subsection (1)(a) of this section may elect
to exclude from adjudication the portion of the claim for monetary relief
attributable to the natural person or political subdivision by filing
notice of the election with the court within the time specified in the
notice given pursuant to paragraph (a) of this subsection.

(c) The final judgment in an action pursuant to subsection (1)(a)
of this section shall be res judicata as to any claim under this section
by any natural person or political subdivision on behalf of whom such
action was brought and who fails to give the notice specified in
paragraph (b) of this subsection within the period specified in the
notice given pursuant to paragraph (a) of this subsection.

(3) An action pursuant to subsection (1)(a) of this section shall
not be dismissed or compromised without the approval of the court, and
the notice of any proposed dismissal or compromise shall be given in the
manner the court directs.

(4) In any action pursuant to subsection (1)(a) of this section in
which there has been a determination that a defendant agreed to fix
prices in violation of ORS 646.725, damages may be proved and assessed in
the aggregate by statistical or sampling methods, by the computation and
pro rata allocation of illegal overcharges, or by any other reasonable
system of estimating aggregate damages as the court in its discretion may
permit without the necessity of separately proving the individual claim
of, or amount of damage to, natural persons or political subdivisions on
whose behalf the suit was brought.

(5)(a) Monetary relief recovered in an action pursuant to
subsection (1)(a) of this section shall be distributed in the manner the
court in its discretion may authorize, subject to the requirement that
any distribution procedure adopted afford each natural person or
political subdivision on whose behalf the suit was brought a reasonable
opportunity to secure an appropriate portion of the net monetary relief.

(b) The Attorney General shall deposit that portion of the monetary
relief awarded by the court as costs of suit and a reasonable attorney
fee in the Consumer Protection and Education Revolving Account
established pursuant to ORS 180.095.

(c) To the extent that the monetary relief awarded by the court is
not exhausted by distribution pursuant to paragraphs (a) and (b) of this
subsection, the remaining funds shall be deemed a civil penalty by the
court and assessed as such for the benefit of the state pursuant to ORS
646.760.

(6) The powers granted in this section are in addition to and not
in derogation of the common law powers of the Attorney General to act as
parens patriae, or the powers of the Attorney General to sue as a
representative party on behalf of a class pursuant to ORCP 32. [1979
c.790 §3; 1981 c.897 §82; 1995 c.696 §38; 2001 c.393 §1](1)(a) A person including the
state or any political subdivision in the state injured in its business
or property by a violation of ORS 646.725 or 646.730 may sue for the
injury and shall recover three times the damages sustained. The state may
bring the action authorized by this paragraph regardless of whether the
state dealt directly or indirectly with the adverse party.

(b) Notwithstanding paragraph (a) of this subsection, the state may
recover only the state’s actual damages sustained and any attorney fees,
expert witness fees or investigative costs that the court may award under
subsection (3) of this section, if the state:

(A) Brings an action under ORS 646.760;

(B) Commences a prosecution under ORS 646.815 and 646.990 (2); or

(C) Brings an action for an injury that the state suffered by
dealing indirectly with the adverse party and the state establishes a
violation other than a per se violation of ORS 646.725.

(c) Notwithstanding paragraph (a) of this subsection, in any action
under this section in which the plaintiff prevails solely on the basis of
a judgment or decree entered in a proceeding under 15 U.S.C. 1 to 45 or
in another action by the state under ORS 646.760, 646.770 or this
section, used as collateral estoppel against a defendant pursuant to ORS
646.805, plaintiff’s recovery shall be limited to the actual damages
sustained and any attorney fees, expert witness fees or investigative
costs that may be awarded under subsection (3) of this section.

(2) Unless there is a subsequent judgment that the court lacks
jurisdiction, the taking of any testimony at the commencement of trial on
a civil complaint for damages filed under the antitrust laws of the
United States shall constitute an absolute bar and waiver of any right of
a plaintiff in such action to recover damages from the same defendant
under this section for the same or substantially the same acts of
plaintiff.

(3)(a) Except as provided in subsection (4) of this section, in an
action brought under the provisions of this section by a person other
than the state or any political subdivision in the state, the court may
award reasonable attorney fees, expert witness fees and investigative
costs to the prevailing party.

(b) Except as provided in subsection (4) of this section, in a
civil action brought under the provisions of this section or under ORS
646.760 by the state or any political subdivision in the state:

(A) The court may award reasonable attorney fees, expert witness
fees and investigative costs to the state or political subdivision if the
state or political subdivision prevails in the action; and

(B) The court may award reasonable attorney fees, expert witness
fees and investigative costs to a defendant who prevails in an action
under this section if the court determines that the state or political
subdivision had no objectively reasonable basis for asserting the claim
or no reasonable basis for appealing an adverse decision of the trial
court.

(4) The court may not award attorney fees, expert witness fees or
investigative costs to a prevailing defendant under the provisions of
this section if the action is maintained as a class action pursuant to
ORCP 32. [1975 c.255 §10; 1981 c.897 §83; 1983 c.467 §1; 1985 c.251 §27;
1995 c.696 §39; 2001 c.393 §2] A suit or action based upon any violation of ORS
646.725 or 646.730 may be commenced in any circuit court within the
state, in which one or more of the defendants resides or has its
principal place of business or its registered agent. [1975 c.255 §7](1) An action under ORS 646.760
to recover a civil penalty shall be commenced within four years after the
cause of action accrued, or within one year after the conclusion of any
civil or criminal proceeding instituted by the United States under the
antitrust laws of the United States, except section 15a of Title 15 of
the United States Code, based in whole or in part on the same matter
complained of, whichever is later.

(2) An action under ORS 646.780 to recover damages shall be
commenced within four years after the cause of action accrued, or within
one year after the conclusion of any proceeding based in whole or in part
on the same matter complained of, filed either by the United States under
the antitrust laws of the United States, except section 15a of Title 15
of the United States Code, or by the state (except in an action for
damages by the state) under ORS 646.760, 646.770 or 646.780 (whichever is
first concluded), whichever is later. [1975 c.255 §12] (1) A final
judgment or decree heretofore or hereafter rendered in any civil or
criminal proceeding brought by or on behalf of the United States under
the antitrust laws of the United States to the effect that a defendant
has violated such laws, other than a judgment or decree entered in an
action under section 15a of Title 15 of the United States Code or a
consent judgment or decree entered before any testimony has been taken,
shall estop defendant from denial of any matters established in such
proceeding, in any action or proceeding brought against such defendant by
the state or any person under ORS 646.760, 646.770 or 646.780, to the
extent such judgment or decree would be an estoppel between the parties
thereto with respect to such matters.

(2) A final judgment or decree to the effect that a person has
violated ORS 136.617, 646.705 to 646.805 and 646.990 in an action brought
by the state under ORS 646.760, 646.770 or 646.780, other than a consent
judgment or decree entered before any testimony has been taken which
specifically provides therein that this subsection shall not be
applicable, shall estop defendant from denial of any matters established
in such action, in any other action against the defendant under ORS
646.770 or 646.780, to the extent such judgment or decree would be an
estoppel between the parties thereto with respect to such matters. [1975
c.255 §11](1) Exclusive
jurisdiction for criminal prosecution of any violation of ORS 646.725 or
646.730 is vested in the Attorney General. At any time, the Attorney
General may receive and respond to an offer to compromise pending or
potential criminal charges and any other related claims for relief under
ORS 646.760, 646.770, 646.775 or 646.780.

(2) The commencement of trial seeking civil penalties in any action
under ORS 646.760 shall bar any subsequent criminal prosecution for
violation of ORS 646.725 or 646.730, based upon the same acts complained
of. The commencement of trial in a criminal prosecution for violation of
ORS 646.725 or 646.730 shall bar any subsequent action for recovery of
civil penalties under ORS 646.760, based upon the same acts complained
of, but shall not bar a subsequent suit for injunctive relief under ORS
646.760. [1975 c.255 §16 (2), (3); 1999 c.552 §1] The oral
testimony of any person taken pursuant to a demand served under ORS
646.750 shall be taken in the county in which such person resides, is
found or transacts business, or in such other place as may be agreed
upon. [1977 c.729 §3]
Notwithstanding ORS 132.090 (1) the Attorney General may attend grand
jury proceedings, advise it in relation to its duties, subpoena and
examine witnesses and prepare such indictments or presentments as it
requires in investigations of violations of ORS 646.725 or 646.730. [1977
c.729 §7](1) Any
person compelled to appear under a demand for oral testimony pursuant to
ORS 646.750 may be accompanied, represented and advised by counsel with
respect to any questions asked of such person. Such advice may be given
in confidence.

(2) Such person may refuse to answer any question on grounds of any
constitutional or other legal right or privilege, including the privilege
against self-incrimination. Such person shall not otherwise refuse to
answer any question.

(3) If such person refuses to answer any question on grounds of the
privilege against self-incrimination, the testimony of the person may be
compelled by the same procedure as provided in ORS 136.617.

(4) The antitrust investigator or investigators conducting the
examination shall exclude from the place where examination is held all
other persons except the person being examined, the counsel of the
person, the officer before whom the testimony is to be taken and any
stenographer taking the testimony. [1977 c.729 §4] Any person
appearing for oral examination pursuant to a demand served under ORS
646.750 shall be entitled to the fees and mileage provided for witnesses
in ORS 44.415 (2). [1977 c.729 §5; 1989 c.980 §16](1) While in the possession of the Attorney
General any documentary material, answers to interrogatories and
transcripts of oral testimony shall be held in confidence and not
disclosed to any person except:

(a) The person providing such material or answers;

(b) The representative or attorney of the person providing the
material or answers;

(c) Persons employed by the Attorney General;

(d) Officials of the United States or any state who are authorized
to enforce federal or state antitrust laws, provided that prior to such
disclosure the Attorney General shall obtain the written agreement of
such officials to abide by the confidentiality restriction of this
section; and

(e) Other persons authorized in subsection (2) of this section.

(2) Any such material or answers may be used in any investigation
conducted pursuant to ORS 646.705 to 646.826 or in any case or proceeding
before a court or administrative agency, or may be disclosed to any
committee or subcommittee of the Legislative Assembly in such manner and
for such purposes as the Attorney General deems appropriate.

(3) Upon completion of a case brought under this section, the
Attorney General shall return any such documents, answers and transcripts
which have not passed into the control of the court through the
introduction thereof into the records, to the person who provided such
documents, answers or testimony upon the person’s request in writing. If
no case in which such material may be used has been commenced within a
reasonable time after completion of the examination or analysis of all
documentary material, but in no event later than four years after
production thereof, the Attorney General shall, upon written request of
the person who produced such material, return all documents, answers and
transcripts to the person who provided them. [1977 c.729 §6; 1987 c.500
§1]MISCELLANEOUS (1) A
person may not sell or offer for sale a novelty item that contains
encapsulated liquid mercury.

(2) Upon notification to the Department of Environmental Quality by
any person that a novelty item for sale in the state contains
encapsulated liquid mercury, the department shall notify persons
identified as selling the novelty item of the prohibition on the sale of
such items.

(3) The department may impose a penalty as provided in ORS 459.995
if a person continues to sell a novelty item that contains encapsulated
liquid mercury after notification of the prohibition on the sale of such
items. [2001 c.924 §5] (1) A person doing
business as a consignment store, a buy-sell store, a secondhand store or
a similar store or enterprise that in the regular course of business buys
used goods from individuals for the purpose of resale shall:

(a) Require that the individual from whom the person buys the used
goods present proof of identification; and

(b) Maintain a record of the name and address of the individual,
the type of identification provided by the individual, the date and a
description of the goods bought from the individual.

(2) The person shall make all records required to be maintained by
subsection (1) of this section available to law enforcement personnel
conducting an investigation.

(3) This section does not apply to pawnbrokers licensed under ORS
726.080.

(4) This section does not preempt, invalidate or in any way affect
the operation of any provision of a county, city or district ordinance
regulating the activities of consignment stores, buy-sell stores,
secondhand stores or similar stores or enterprises that in the regular
course of business buy used goods from individuals for the purpose of
resale. [2003 c.803 §1] A person that
violates ORS 646.848 commits a Class B violation. [2003 c.803 §2](1) Any person offering for sale or selling new or
reconditioned telephone handsets or keysets, private branch exchanges or
private automatic branch exchanges of not more than a 20-station capacity
shall disclose clearly, in writing, when reasonable, before sale all of
the following information:

(a) Whether the equipment uses pulse, tone, pulse-or-tone or other
signaling methods.

(b) Whether the equipment can access tone generated services.

(c) Whether the equipment is registered with the Federal
Communications Commission under applicable federal regulations.

(d) The person responsible for repair of the equipment.

(e) Minimum charges, if any, for repairs, handling and shipping.

(f) The terms of any written warranty offered with the equipment.

(2) A person who violates subsection (1) of this section commits an
unlawful practice under ORS 646.608. The requirement under subsection (1)
of this section is subject to enforcement and penalty as provided under
ORS 646.605 to 646.652. [1985 c.538 §1(1), (3); 2001 c.924 §20] (1) The requirement
of disclosure under ORS 646.850 does not apply:

(a) To any medium of advertising that accepts advertising in good
faith without knowledge that the advertising violates any requirement
under ORS 646.850.

(b) To the sale or the offering for sale of radio equipment used
for land, marine or air mobile service or any like service, regardless of
whether such equipment is capable of interconnection by manual or
automatic means to a telephone line.

(c) To equipment not intended for connection to the telephone
network or to used equipment located on the customer’s premises.

(2) The requirement of disclosure under ORS 646.850 (1)(d), (e) and
(f) does not apply if the seller satisfies applicable requirements under
the federal Magnuson-Moss Warranty Act (15 U.S.C. 2301 to 2312), except
that the seller must provide the purchaser a copy of the warranty at the
time of sale. [1985 c.538 §§1(2),2] As used in this
section and ORS 646.859:

(1) “Authorized driver” means:

(a) The person renting the vehicle;

(b) The spouse of the person renting the vehicle, if the spouse is
a licensed driver and meets any minimum age requirements contained in the
rental agreement;

(c) The employer or coworker of the person renting the vehicle if
the employer or coworker is engaged in a business activity with the
person renting the vehicle and the employer or coworker meets any minimum
age requirements contained in the rental agreement;

(d) Any person driving the vehicle during an emergency; and

(e) Any person expressly listed by the rental company on the rental
agreement as an authorized driver.

(2) “Collision damage waiver” means an agreement between the renter
and the rental company in which the company waives its right to impose a
financial obligation on the renter or authorized driver if the vehicle is
returned with physical damage.

(3) “Damage” means any damage or loss to the rented vehicle,
including loss of use and any costs and expenses incident to the damage
or loss.

(4) “Private passenger automobile” or “vehicle” means a motor
vehicle designed primarily for transportation of persons.

(5) “Rental agreement” means any written agreement setting forth
the terms and conditions governing the use of a private passenger
automobile provided by a rental company.

(6) “Rental company” means any person engaged in the business of
renting private passenger automobiles to the public.

(7) “Renter” means any person or organization obtaining the use of
a private passenger automobile from a rental company under the terms of a
rental agreement. [1989 c.458 §1] (1) Every
auto rental company doing business in the State of Oregon that offers
collision damage waivers shall post a sign approved by the Department of
Consumer and Business Services which states “OUR CONTRACTS OFFER OPTIONAL
COLLISION DAMAGE WAIVERS AT AN ADDITIONAL COST.”

(2)(a) No rental company shall sell or offer to sell to a renter a
collision damage waiver as part of a rental agreement unless the renter
is provided the following written notice in at least 10-point type:

___________________________________________________________________________
___NOTICE: Our contracts offer, for an additional charge, a collision damage
waiver to cover your responsibility for damage to the vehicle. Before
deciding whether or not to purchase the collision damage waiver, you may
wish to determine whether your own vehicle insurance affords you coverage
for damage to the rental vehicle and the amount of the deductible under
your own insurance coverage. The purchase of this collision damage waiver
is not mandatory and may be waived.

___________________________________________________________________________
___

(b) The notice required by this subsection shall either appear at
the top of the rental agreement or shall be on a separate piece of paper
attached to the top of the agreement. [1989 c.458 §2]In evaluating applications for
extensions of credit, a creditor shall treat the obligation of an
applicant to pay child support no more adversely than the creditor treats
or would treat any other obligation for the same amount, terms and
duration as the child support obligation. [1989 c.1013 §1]As used in ORS 646.861 to 646.865,
“creditor” means a person who, in the ordinary course of the person’s
business, regularly permits debtors to defer payment of their debts, or
to incur debt and defer the payment thereof, and in either case, to pay
the same with a finance charge or in more than four installments. [1989
c.1013 §2](1) Except as provided in subsection (2) of this
section, a person who is adversely affected by a creditor’s violation of
ORS 646.861 shall have a cause of action to recover compensatory damages
against the creditor and may also apply to a court for an injunction to
prevent the creditor’s further violation of ORS 646.861. If the damages
are awarded, or an injunction granted, the person shall be entitled to
reasonable attorney fees at trial and on appeal, as determined by the
court in addition to costs and necessary disbursements.

(2) A creditor shall have no liability for compensatory damages,
attorney fees or otherwise and no injunction shall issue:

(a) Where the creditor shows by a preponderance of evidence that
the violation was not intentional and resulted from a bona fide error
notwithstanding the maintenance of procedures reasonably adopted to avoid
any such error; or

(b) Where in violating ORS 646.861, the creditor shows by a
preponderance of evidence that it acted in good faith, in conformity with
any statute, law, ordinance, rule, regulation, administrative
interpretation or judicial determination then applicable to the
transaction in question. [1989 c.1013 §3](1) As used in this section:

(a) “Distributor” means any person engaged in the business of
distributing or supplying motion pictures to exhibitors by rental, sales,
license or any other agreement to sell rights to exhibit a motion picture.

(b) “Exhibitor” means any person engaged in the business of
operating one or more theaters in which motion pictures are exhibited to
the public for a charge.

(c) “Market” means any geographical area in this state for which a
distributor solicits exhibitors to compete, by bidding or other
negotiations, for the rights to exhibit a motion picture.

(2) No distributor shall sell rights to exhibit a motion picture in
this state unless each exhibitor solicited by the distributor for an
offer to exhibit the motion picture is first allowed a reasonable
opportunity to view the motion picture within the state. Any waiver of
this subsection is void and unenforceable.

(3) Nothing in this section applies to any form of solicitation of
offers for, negotiation concerning or sale of rights to exhibit a motion
picture:

(a) That has been exhibited in this state before October 3, 1979.

(b) In a market where the motion picture has been exhibited for one
week or more.

(c) That is 60 minutes or less in length.

(4) An exhibitor may enforce this section by bringing an action in
the appropriate court of this state. In enforcing this section a court
may:

(a) Issue an injunction to prohibit violation of this section; and

(b) Award an exhibitor any actual damages arising from violation of
this section.

(5) In any suit under subsection (4) of this section, the court
shall award reasonable attorney fees at trial and on appeal to the
prevailing party. [Formerly 646.890] No
person shall deliver, or cause to be delivered, any hazardous substance,
as defined in ORS 453.005 (7), to any residential premises without the
prior consent of any occupant of such premises. [1973 c.456 §2](1) Whenever the
purchaser of a product sold at retail is offered ongoing technical
support or service relating to the operation or use of the product, and
the support or service is offered exclusively or in part through an
information delivery system, the product or package of the product shall
contain, in clear view to the purchaser before the product is opened, a
statement disclosing that the technical support or service is provided
through an information delivery system and listing the cost per minute of
the support or service. The manufacturer of the product is responsible
for providing the statement required under this subsection.

(2) As used in this section:

(a) “Information delivery system” means any telephone-recorded
messages, interactive program or other information services that are
provided on a pay-per-call basis through an exclusive telephone number
prefix or service access code; and

(b) “Manufacturer” means a person who manufactures a product
described in subsection (1) of this section. When the product is
distributed or sold under a name other than that of the actual
manufacturer of the product, the term “manufacturer” includes any person
under whose name the product is distributed or sold. [1993 c.700 §1] (1) If a
person receives on a facsimile machine any unsolicited and unwanted
advertising material for the sale of any realty, goods or services, the
person may give the sender of such material written notice to discontinue
further such transmissions. No person who has received such a
discontinuance notice shall use a facsimile machine to transmit
unsolicited advertising material for the sale of realty, goods or
services to the person who gave the discontinuance notice for a period of
one calendar year from the date the notice was given.

(2) As used in this section, “facsimile machine” means a machine
that electronically transmits or receives facsimiles of documents through
connection with a telephone network. [1989 c.621 §3](1) The
manufacturer of a motor vehicle who repurchases the vehicle for any
reason shall inform any vehicle dealer to whom the manufacturer
subsequently delivers the vehicle for resale that the vehicle has been
repurchased by the manufacturer. If the reason for the repurchase was
failure or inability to conform the vehicle to express warranties under
the provisions of ORS 646.315 to 646.375 or any similar law of another
jurisdiction, the manufacturer shall also inform the dealer of that fact.

(2) A dealer who has been given information required by subsection
(1) of this section shall give the information, in writing, to any
prospective buyer of the vehicle.

(3) An owner of a motor vehicle who has been given information as
required by subsection (1) or (2) of this section shall give the
information, in writing, to any prospective buyer of the vehicle.

(4) As used in this section and ORS 646.876, “motor vehicle” has
the meaning given in ORS 646.315. [1991 c.593 §1; 1993 c.87 §1] The court may
award reasonable attorney fees to the prevailing party in an action
against a person who has a duty to disclose information under ORS
646.874. [1991 c.593 §2; 1993 c.87 §2; 1995 c.618 §105](1) As used in this section:

(a) “Buyer” means the purchaser or lessee of a motor vehicle.

(b) “Motor vehicle” means a motor vehicle, as defined in ORS
801.360, that is sold or leased in this state for personal, family or
household purposes.

(c) “Seller” means a holder of a current, valid vehicle dealer
certificate issued under ORS 822.020 or renewed under ORS 822.040.

(2) A seller may make an offer to sell or lease a motor vehicle to
a buyer or prospective buyer that is subject to future acceptance by a
lender that may finance the transaction at the request of the seller.

(3) In any transaction described in subsection (2) of this section:

(a) If a lender does not agree to finance the transaction on the
exact terms negotiated between the seller and the buyer, the seller shall
return to the buyer all items of value received from the buyer as part of
the transaction; or

(b) If the seller has accepted a trade-in motor vehicle from the
buyer or prospective buyer, the seller shall not sell or lease the
buyer’s or prospective buyer’s trade-in motor vehicle before the seller
has received final approval of funding from the lender.

(4) In any transaction described in subsection (2) of this section,
if the buyer has accepted a motor vehicle from the seller, and a lender
does not agree to finance the transaction on the exact terms negotiated
between the seller and the buyer, the buyer shall return to the seller
all items of value received from the seller as part of the transaction.
The offer or contract to sell or lease the motor vehicle may provide in
writing that the buyer is liable to the seller for:

(a) The fair market value of damage to, excessive wear and tear on
or loss of the motor vehicle occurring between the date the buyer takes
possession of the motor vehicle and the date the buyer returns the motor
vehicle to the seller’s custody; and

(b) If, within 20 days of the date the buyer takes possession of
the motor vehicle, the seller sends notice to the buyer by first class
mail that financing is unavailable, a reasonable charge per mile for the
use of the motor vehicle. If the buyer returns the motor vehicle within
five days of the mailing of the notice, the seller may charge the buyer
for miles driven during the first 20 days that the buyer had possession
of the motor vehicle. If the buyer does not return the vehicle within
five days of the mailing of the notice, the seller may charge the buyer
for all miles driven while the buyer has possession of the motor vehicle.
The charge may not exceed the rate per mile allowed under federal law as
a deduction for federal income tax purposes for an ordinary and necessary
business expense.

(5) It is an affirmative defense to a claim or charge of violating
subsection (3)(a) of this section that the buyer failed to return the
motor vehicle after the seller sent notice to the buyer by first class
mail that financing was unavailable. [1999 c.669 §§1,2; 2003 c.486 §1;
2003 c.655 §83](1) As used in this section:

(a) “Commission” means compensation accruing to a sales
representative for payment by a principal, the rate of which is expressed
as a percentage of the amount of orders or sales or as a specified amount
per order or per sale.

(b) “Principal” means a person who does not have a permanent or
fixed place of business in this state and who:

(A) Manufactures, produces, imports or distributes a tangible
product for wholesale;

(B) Contracts with a sales representative to solicit orders for the
product; and

(C) Compensates the sales representative, in whole or in part, by
commission.

(c) “Sales representative” means a person who:

(A) Contracts with a principal to solicit wholesale orders;

(B) Is compensated, in whole or in part, by commission;

(C) Does not place orders or purchase for the sales
representative’s own account or for resale; and

(D) Does not sell or take orders for the sale of products to the
ultimate consumer.

(2) When a contract between a sales representative and a principal
is terminated for any reason, the principal shall pay the sales
representative all commissions accrued under the contract to the sales
representative within 14 days after the effective date of the termination.

(3) A principal who fails to comply with the provisions of
subsection (2) of this section is liable to the sales representative in a
civil action for:

(a) All amounts due the sales representative plus interest on the
amount due at the rate of nine percent per annum until paid; and

(b) Treble damages, if the failure to comply with the provisions of
subsection (2) of this section is willful.

(4) The court shall award court costs and attorney fees actually
and reasonably incurred by the prevailing party in an action to recover
amounts, interest or damages due under subsection (3) of this section.

(5) A nonresident principal who contracts with a sales
representative to solicit orders in this state is subject to the
jurisdiction of the courts of this state to the extent specified in ORS
14.030.

(6) Any action commenced pursuant to this section must be commenced
in the county in which the plaintiff resides at the time the action is
commenced or in the county where the cause of action arose.

(7) Nothing in this section shall invalidate or restrict any other
or any additional right or remedy available to a sales representative, or
preclude a sales representative from seeking to recover in one action all
claims against a principal.

(8) A provision in any contract between a sales representative and
a principal purporting to waive any provision of this section, whether by
expressed waiver or by a contract subject to the laws of another state,
shall be void. [1993 c.225 §§1 to 8](1) As used in this section:

(a) “Exclusion request” means a written request to be excluded from
a sweepstakes promotion mailing list or to be placed on a list of persons
to whom sweepstakes promotions may not be mailed.

(b) “Sweepstakes promotion” has the meaning given that term in ORS
124.005.

(2) Any person who receives a sweepstakes promotion, or a
combination of sweepstakes promotions from the same service, in the
United States mail, regardless of the identities of the originators of
the sweepstakes promotion, may send a written exclusion request to the
originator of any sweepstakes promotion.

(3) The exclusion request shall be mailed to the address to which
the recipient would have sent a payment for any goods or services
promoted in the sweepstakes promotion had the recipient ordered the goods
or services instead of mailing an exclusion request.

(4) An originator of a sweepstakes promotion who receives an
exclusion request shall exclude the requestor’s name from the
originator’s sweepstakes promotion mailing list or shall place the
requestor’s name on a list of persons to whom sweepstakes promotions may
not be mailed.

(5) The Attorney General shall adopt rules necessary to implement
this section.

(6) It is an affirmative defense to a claim or charge of violating
subsection (4) of this section that the originator of the sweepstakes
promotion had, at the time of the violation, implemented reasonable
practices or procedures for preventing a violation. [1999 c.875 §5; 2001
c.404 §1]PRICE COMPARISON ADVERTISING As used in ORS
646.881 to 646.885, unless the context requires otherwise:

(1) “Advertisement” means any oral, written or graphic statement or
representation made in connection with the solicitation of business in
any manner by a seller and includes, but is not limited to, statements
and representations made in any newspaper or other publication, on radio
or television, or printed in any catalog, circular, or any other sales
literature or brochure, any billboard, or any banner or sign visible from
a street or highway adjacent to the seller’s place of business.

(2) “Price comparison” means the direct or indirect comparison in
any advertisement whether or not expressed wholly or in part in dollars,
cents, fractions or percentages of a seller’s current price for a product
with any other price or statement of value, whether or not such price is
actually stated in the advertisement. “Price comparison” includes any
price reduction claim or savings claim which a seller makes with respect
to the seller’s current price for any product. [1987 c.626 §2]
It shall be unlawful for a seller to include a price comparison in an
advertisement unless:

(1) The seller clearly and conspicuously identifies in the
advertisement the origin of the price that the seller is comparing to the
seller’s current price. The origin of the price that the seller is
comparing to the seller’s current price includes but is not limited to
the seller’s former selling price, a manufacturer’s list price or a
competitor’s price for the same real estate, goods or services.

(2) The price comparison is in compliance with ORS 646.608 (1)(j)
and the rules adopted under ORS 646.608 (4) and compliance is established
based on facts provable by the seller. [1987 c.626 §3]
(1) The use of terms such as “regular,” “reduced,” “sale,” “usually,”
“originally,” “clearance,” “liquidation” and “formerly” shall identify
the origin of the price that the seller is comparing to the seller’s
current price as the seller’s own former price, or in the case of
introductory advertisements, the seller’s future price.

(2) Unless the seller states otherwise in the advertisement, use of
terms such as “discount,” “_____percent discount,” “$_____discount,”
“_____percent off” and “$_____off” shall be considered to identify the
origin of the price that the seller is comparing to the seller’s current
price as the seller’s former price, or in the case of introductory
advertisements, the seller’s future price. [1987 c.626 §4]CREDIT, DEBIT AND CHARGE CARDS(Credit and Debit Card Receipts) As used in ORS
646.887 and 646.888:

(1) “Credit card” has the meaning given that term in ORS 646.893.

(2) “Debit card” has the meaning given “debit instrument” in 15
U.S.C. 1693n. [2003 c.290 §1] A person may not sell, lease or
rent a payment processing system that provides a customer receipt that
shows more information about a customer than the customer’s name and five
digits of the customer’s credit or debit card number. [2003 c.290 §2;
2003 c.803 §28] (1) In a credit or debit card
transaction with a customer, a person may not create a customer receipt
that shows more information about a customer than the customer’s name and
five digits of the customer’s credit or debit card number.

(2) A person that creates or retains a copy of a receipt containing
more information about a customer than the customer’s name and five
digits of the customer’s credit or debit card number shall shred,
incinerate or otherwise destroy the copy on or before the sooner of:

(a) The date the image of the copy is transferred onto microfilm or
microfiche; or

(b) Thirty-six months after the date of the transaction that
created the copy. [2003 c.290 §3; 2003 c.803 §29] The Attorney General may adopt rules under ORS
chapter 183 to carry out the provisions of ORS 646.886, 646.887 and
646.888. [2003 c.290 §5](Numbers, Expiration Dates or Personal Information in Credit or Debit
Card Transactions)(1) A person shall not
require as a condition of acceptance of a check or share draft, or as a
means of identification, that the person presenting the check or share
draft provide a credit card number or expiration date, or both, unless
the credit is issued by the person requiring the information.

(2) Subsection (1) of this section shall not prohibit a person from:

(a) Requesting a person presenting a check or share draft to
display a credit card as indicia of creditworthiness and financial
responsibility or as a source of additional identification;

(b) Recording the type of credit card and the issuer of the credit
card displayed by the person under paragraph (a) of this subsection;

(c) Requesting or receiving a credit card number or expiration
date, or both, and recording the number or date, or both, in lieu of a
security deposit to assure payment in event of default, loss, damage or
other occurrence;

(d) Recording a credit card number or expiration date, or both, as
a condition for acceptance of a check or share draft where the card
issuer guarantees checks or share drafts presented by the cardholder upon
the condition that the person to whom the check is presented records the
card number or expiration date, or both, on the check or share draft;

(e) Requesting and recording the name, address, motor vehicle
operator license number or state identification card number and telephone
number of a person offering payment by check; or

(f) Verifying the signature, name and expiration date on a credit
card.

(3) This section does not require acceptance of a check or share
draft whether or not a credit card is presented.

(4) For purposes of this section, “person” means any individual,
corporation, partnership or association. [1993 c.58 §1; 1995 c.631 §2]As used in ORS 646.892 and 646.894,
“credit card” has the meaning given that term under the federal Consumer
Credit Protection Act (P.L. 90-321, 82 Stat. 146, 15 U.S.C. 1602). [1995
c.631 §1](1) A merchant that accepts a credit card or debit card for
a transaction may require that the credit card or debit card holder
provide personal information, other than the personal information that
appears on the face of the credit card or debit card, for the purposes of
verification of the card holder’s identity. The merchant may not write
the information on the credit card or debit card transaction form.

(2) This section may not be construed to prevent a merchant from
requesting and keeping in written form information necessary for
shipping, delivery or installation of purchased goods or services, or for
warranty when the information is provided voluntarily by a credit card or
debit card holder.

(3) Any provision in a contract between a merchant and a credit
card or debit card issuer, financial institution or other person that
prohibits the merchant from verifying the identity of a person who
presents a credit card or debit card in payment for goods or services by
requiring or requesting identification is contrary to public policy and
void.

(4) Nothing in this section may be construed to:

(a) Compel a merchant to verify the identity of a person who
presents a credit card or debit card in payment for goods or services; or

(b) Interfere with the ability of a merchant to make and enforce
policies regarding verification of the identity of a person who presents
a credit card or debit card in payment for goods or services.

(5) As used in this section, “merchant” means a person who, in the
ordinary course of that person’s business, permits persons to present
credit cards or debit cards in payment for goods or services. [1993 c.58
§2; 2003 c.312 §1](Credit and Charge Card Solicitation Disclosure Requirements)
(1) Every solicitation for the issuance of a credit card shall disclose
the following information concerning the credit card account:

(a) The annual percentage rate or rates applicable to the credit
card account. If the rate or rates are variable, the solicitation shall
disclose that fact and shall further disclose either the rate or rates on
a specified date or the index from which the rate or rates are determined.

(b) Any minimum, fixed, transaction, activity or similar charge
that could be imposed in connection with any use of the credit card.

(c) Any annual or periodic membership or participation fee that may
be imposed for the availability, issuance or renewal of the credit card.

(d) Whether or not any time period is provided within which any
credit extended through the use of the credit card may be repaid without
incurring a finance charge, and a description of any such time period.

(2) As used in this section:

(a) “Card issuer,” “credit card,” “credit,” “annual percentage
rate” and “finance charge” have the meanings given those terms under the
federal Consumer Credit Protection Act (P.L. 90-321, 82 Stat. 146, 15
U.S.C. 1601).

(b) “Reasonable time” means the period beginning at the time of
publication of a magazine, newspaper or other publication and ending at
the time of the next publication of the magazine, newspaper or other
publication, but in no case shall the period exceed 90 days following the
date of publication.

(c) “Solicitation” means printed material primarily offering to
issue a credit card including printed material mailed directly to a
person by name that contains an application for or an offer to issue a
credit card in the person’s name, application materials available at the
credit card issuer’s place of business or other locations or application
materials, printed advertisements or other printed information or
materials contained in a magazine, newspaper or other publication which
shall be considered current at the time of publication and for a
reasonable time thereafter. “Solicitation” does not include material
which only refers to credit cards as one of the services provided by the
issuer nor does it include offers made by radio or television or through
a catalog. “Solicitation” does not include an incidental reference to a
credit card in the printed material. [1987 c.888 §1]
(1) A charge card solicitation shall disclose clearly and conspicuously
the annual fees and other charges, if any, applicable to the issuance or
use of the charge card.

(2) As used in this section:

(a) “Charge card” means any card, plate or other credit device
under which the issuer of the charge card extends credit to the card
holder that is not subject to a finance charge and the card holder does
not have automatic access to credit repayable in installments.

(b) “Reasonable time” means the period beginning at the time of
publication of a magazine, newspaper or other publication and ending at
the time of the next publication of the magazine, newspaper or other
publication, but in no case shall the period exceed 90 days following the
date of publication.

(c) “Solicitation” means printed material primarily offering to
issue a charge card including printed material mailed directly to a
person by name that contains an application for or an offer to issue a
charge card in the person’s name, application materials available at the
charge card issuer’s place of business or other locations or application
materials, printed advertisements or other printed information or
materials contained in a magazine, newspaper or other publication which
shall be considered current at the time of publication and for a
reasonable time thereafter. “Solicitation” does not include material
which only refers to charge cards as one of the services provided by the
issuer nor does it include offers made by radio or television or through
a catalog. “Solicitation” does not include an incidental reference to a
charge card in the printed material. [1987 c.888 §2](Enforcement)(1)(a) The Attorney General or a district attorney may bring
an action in the name of the state against a person to restrain and
prevent a violation of ORS 646.887, 646.888, 646.895 or 646.897.

(b) The Attorney General or a district attorney may in the name of
the state seek and obtain a civil penalty from a person who violates an
order or injunction issued pursuant to this subsection.

(2)(a) A person who violates an order or injunction issued pursuant
to subsection (1) of this section shall forfeit and pay a civil penalty
of not more than $1,000 per violation. The circuit court issuing the
order or injunction retains jurisdiction of the action to consider a
request for a civil penalty.

(b) In an action brought by a prosecuting attorney under this
section, the court may award the prevailing party, in addition to any
other relief provided by law, reasonable attorney fees at trial and on
appeal. [1987 c.888 §§3,4; 2003 c.290 §4] A person who is in
compliance with the requirements of the Fair Credit and Charge Card
Disclosure Act, (Public Law 100-583), shall also be considered in
compliance with the requirements of ORS 646.895 and 646.897. [1989 c.206
§1]VEHICLE FUELS(Blended Gasoline) As used in ORS
646.910 to 646.920:

(1) “Alcohol” means a volatile flammable liquid having the general
formula C:BSB6.n:SEC6.H(2n+1)OH used or sold for the purpose of blending
or mixing with gasoline for use in propelling motor vehicles, and
commonly or commercially known or sold as an alcohol, and includes
ethanol or methanol.

(2) “Co-solvent” means an alcohol other than methanol which is
blended with either methanol or ethanol or both to minimize phase
separation in gasoline.

(3) “Ethanol” means ethyl alcohol, a flammable liquid having the
formula C2H5OH used or sold for the purpose of blending or mixing with
gasoline for use in motor vehicles.

(4) “Gasoline” means any fuel sold for use in spark ignition
engines whether leaded or unleaded.

(5) “Methanol” means methyl alcohol, a flammable liquid having the
formula CH3OH used or sold for the purpose of blending or mixing with
gasoline for use in motor vehicles.

(6) “Motor vehicles” means all vehicles, vessels, watercraft,
engines, machines or mechanical contrivances that are propelled by
internal combustion engines or motors.

(7) “Nonretail dealer” means any person who owns, operates,
controls or supervises an establishment at which motor vehicle fuel is
dispensed through a card- or key-activated fuel dispensing device to
nonretail customers.

(8) “Retail dealer” means any person who owns, operates, controls
or supervises an establishment at which gasoline is sold or offered for
sale to the public.

(9) “Wholesale dealer” means any person engaged in the sale of
gasoline if the seller knows or has reasonable cause to believe the buyer
intends to resell the gasoline in the same or an altered form to another.
[1985 c.468 §1; 1997 c.310 §13]No wholesale or
retail dealer may sell or offer to sell any gasoline blended or mixed
with alcohol unless the blend or mixture meets the specifications or
registration requirements established by the United States Environmental
Protection Agency pursuant to section 211 of the Clean Air Act, 42 U.S.C.
section 7545 and 40 C.F.R. Part 79. [1985 c.468 §2(1)](1) A retail dealer or nonretail dealer of gasoline who
knowingly sells or offers for sale gasoline that is blended with ethanol,
methanol, co-solvent, alcohol or other oxygenates in quantities greater
than 1.5 mass percent shall be identified as “with,” “containing” or
other similar language indicating the oxygenate contributing the largest
mass percentage to the blend in the gasoline. When mixtures of only
ethers are present, the retail dealer or nonretail dealer shall post the
predominant oxygenate followed by the phrase “or other ethers.”
Gasoline-methanol blends containing more than 0.15 mass percent oxygen
from methanol shall be identified as “with” or “containing” methanol.

(2) The disclosure required by this section shall be posted on the
upper 50 percent of the dispensing device front panel in a position clear
and conspicuous from the driver’s position in type at least one-half inch
in height and one-sixteenth inch in width.

(3) In any county, city or other political subdivision designated
as a carbon monoxide nonattainment area pursuant to the provisions of
subchapter I of the Clean Air Act Amendments of 1990 (Public Law
101-549), and in which the sale of oxygenated gasoline is required by
section 211(m) of the Clean Air Act Amendments of 1990, 42 U.S.C.
7545(m), any retail dealer of gasoline who sells or dispenses a petroleum
product that contains at least one percent, by volume, ethanol, methanol
or other oxygenate, shall be required to post only such label or notice
as may be required pursuant to 42 U.S.C. 7545(m)(4) or any amendments
thereto or successor provision thereof. [1985 c.468 §3(1),(2); 1993 c.566
§1; 1997 c.310 §11] Before
or at the time of delivery of gasoline from a wholesale dealer to a
retail dealer or nonretail dealer, the wholesale dealer must give the
retail dealer or nonretail dealer on an invoice, bill of lading, shipping
notice or other documentation, a declaration of the predominant oxygenate
or combination of oxygenates present in concentration sufficient to yield
an oxygen content of at least 1.5 mass percent in the gasoline. When
mixtures of only ethers are present, the wholesale dealer shall identify
the predominant oxygenate in the gasoline followed by the phrase “or
other ethers.” Any gasoline containing more than 0.15 mass percent oxygen
from methanol shall be identified as “with” or “containing” methanol.
[1985 c.468 §4(1); 1997 c.310 §12] The State Department of Agriculture
shall enforce the provisions of ORS 646.910 to 646.920 and is authorized
to make any rules necessary to carry out the provisions of ORS 646.910 to
646.920 in accordance with the applicable provisions of ORS chapter 183.
[1985 c.468 §5] (1) A
person who operates a service station, business or other place for the
purpose of retailing and delivering gasoline, diesel or other fuel into
the tanks of motor vehicles may display on a sign visible from the street
the lowest cash prices charged for the sale of all grades of gasoline,
diesel or other fuel.

(2) The following apply to a sign displaying prices under this
section:

(a) The price per unit of measurement and the unit of measurement
for a particular kind of fuel must be the same on the sign as on any
dispensing device used for delivering that kind of fuel into the tanks of
motor vehicles.

(b) If a cash price displayed on a sign is available only under
some conditions, the sign and the dispensing device must clearly state
the conditions.

(c) If a price displayed on a sign is available only in a certain
area of the service station or business, the area where the price
displayed is available must be clearly identified.

(3) A person who displays a cash price that is available only under
some conditions may not require, as a condition of buying fuel at the
displayed price, that the buyer fill the fuel tank of the buyer’s
vehicle. [Formerly 646.875](1) As used in this section, “gas station” includes a
filling station, service station, garage or any other place where
gasoline is sold for use in motor vehicles.

(2) The owner or operator of a gas station shall post, in a manner
visible to customers, the following information:

(a) The amount of the price per gallon that is federal tax;

(b) The amount of the price per gallon that is state tax;

(c) The amount of the price per gallon that is local tax; and

(d) The total amount of federal, state and local taxes per gallon.

(3) The Department of Transportation shall furnish the information
described in subsection (2) of this section to each gas station in the
state. [1999 c.957 §8] (1) No person
operating a service station selling to the public at retail diesel fuel,
where delivery is regularly made into a receptacle on a vehicle from
which receptacle the fuel is supplied to propel the vehicle, shall refuse
to sell and deliver any quantity of such fuel to any vehicle during
regular business hours, upon demand and tender of the posted price plus
any applicable tax for such fuel delivered, subject to a rationing policy
established by state or federal statute or regulation.

(2) A price differential or method of delivery designed to
discriminate against or discourage purchases by vehicles of small fuel
capacity is prohibited. However, a reasonable discount or differential
based upon quantity of delivery shall not be considered discriminatory.
[Formerly 646.880](Octane Ratings) As used in ORS
646.947 to 646.963:

(1) “Bulk facility” means a facility, including pipeline terminals,
refinery terminals, rail and barge terminals and associated underground
and aboveground tanks, connected or separate, from which motor vehicle
fuels are withdrawn from bulk and delivered to retail, wholesale or
nonretail facilities or into a cargo tank or barge used to transport
those products.

(2) “Dealer” means any motor vehicle fuel retail dealer, nonretail
dealer or wholesale dealer.

(3) “Director” means the Director of Agriculture.

(4) “Motor vehicle fuel” means gasoline, diesel or any other liquid
product used for the generation of power in an internal combustion
engine, except aviation jet fuels, liquefied petroleum or natural gases.

(5) “Nonretail dealer” means any person who owns, operates,
controls or supervises an establishment at which motor vehicle fuel is
dispensed through a card- or key-activated fuel dispensing device to
nonretail customers.

(6) “Octane rating” means the rating of the anti-knock
characteristics of a grade or type of gasoline determined by dividing by
two the sum of the research octane number and the motor octane number.

(7) “Octane rating certification documentation” means an invoice,
bill of lading, delivery ticket, letter or other documentation that
specifies the actual octane rating or a rounded rating that is the
largest whole number or half of a number that is less than or equal to
the number determined by or certified to the person transferring the
gasoline.

(8) “Retail dealer” means any person who owns, operates, controls
or supervises an establishment at which motor vehicle fuel is sold or
offered for sale to the public.

(9) “Wholesale dealer” means any person who sells motor vehicle
fuel if the seller knows or has reasonable cause to believe that the
buyer intends to resell the motor vehicle fuel in the same or an altered
form to a retail dealer, a nonretail dealer or another wholesale dealer.

(10) “Withdrawn from bulk” means removed from a bulk facility for
delivery directly into a cargo tank or a barge to be transported to a
location other than another bulk facility for use or sale in this state.
[1997 c.310 §1] Notwithstanding any other provision
of ORS 646.947 to 646.963, it is unlawful for:

(1) A dealer to sell or offer for sale any motor vehicle fuel using
procedures that violate any rule or standard adopted pursuant to ORS
646.957.

(2) A dealer to sell or offer for sale any gasoline from a
dispensing device that does not have a sign displayed, on both sides of
the device, that accurately identifies the octane rating of the gasoline
being dispensed from that device pursuant to ORS 646.949.

(3) A wholesale dealer to deliver gasoline to a retail dealer or
nonretail dealer without giving to the retail dealer or nonretail dealer
octane rating certification documentation for the gasoline being
delivered. [1997 c.310 §2] (1) A dealer who sells or
offers for sale any gasoline shall conspicuously display a sign on each
side of the dispensing device, using descriptive commercial terms that
accurately identify the octane rating of the gasoline being dispensed
from that device. The sign shall be of such size and design and shall be
posted in such a manner as the Director of Agriculture determines will
adequately inform the purchaser of the octane rating of the gasoline.

(2) Rules adopted pursuant to this section shall conform, to the
greatest extent practicable, to rules of the Federal Trade Commission
regarding automotive fuel rating certification and posting. [1997 c.310
§3] (1) The Director of
Agriculture may test motor vehicle fuel for the purpose of inspecting the
motor vehicle fuel supply of any service station, business or other
establishment that sells or offers for sale, or distributes, transports,
hauls, delivers or stores motor vehicle fuel that is subsequently sold or
offered for sale, for compliance with the motor vehicle fuel quality
standards adopted pursuant to ORS 646.957.

(2) The director or the director’s authorized agent shall have
access during normal business hours to all places where motor vehicle
fuel is sold to or by a retail dealer, nonretail dealer or wholesale
dealer for the purpose of examination, inspection and investigation of
the establishment’s motor vehicle fuel supply, shall collect or cause to
be collected samples of the motor vehicle fuel and shall test or analyze
the samples for compliance with motor vehicle fuel quality standards
adopted pursuant to ORS 646.957.

(3) Before taking any enforcement action under ORS 646.953 or
646.963, the director shall cause motor vehicle fuel samples to be tested
in accordance with standards, reproducibility limits and procedures that
are, in the director’s judgment, consistent with American Society for
Testing and Materials standards and procedures.

(4) The director or the director’s authorized agent shall notify
the owner or person in charge of the facility of the sample collection as
soon as is practicable after a sample is taken. The volume of the sample
taken for testing must be adequate for the tests to be performed and to
allow for a portion of the sample to be retained for subsequent testing,
if the need arises. A sample with a test result that is outside the test
reproducibility limits, when compared to the applicable limits, shall be
properly stored to preserve the sample for at least 90 days. [1997 c.310
§4] (1) The Director of
Agriculture may issue a stop-use order, hold order or removal order for
any motor vehicle fuel offered or exposed for sale, or in the process of
delivery or susceptible to commercial use, that is found to be not in
compliance with the motor vehicle fuel quality standards adopted pursuant
to ORS 646.957. The director may rescind the stop-use order, hold order
or removal order if the fuel is brought into full compliance with motor
vehicle fuel quality standards.

(2) No person shall use, remove from the premises specified or fail
to remove from the premises specified any motor vehicle fuel in a manner
contrary to the terms of a stop-use order, hold order or removal order
issued under authority of this section. [1997 c.310 §5] (1) Each operator of a bulk facility and
each person who imports motor vehicle fuels into this state for sale in
this state shall keep, for at least one year, at the person’s registered
place of business complete and accurate records of any motor vehicle
fuels sold if sold or delivered in this state, for purposes of showing
compliance with ORS 646.947 to 646.963.

(2) The Director of Agriculture, upon reasonable oral or written
notice, may make such examinations of the books, papers, records and
equipment required to be kept under this section as may be necessary to
carry out the provisions of ORS 646.947 to 646.963.

(3) Retail dealers and nonretail dealers shall maintain at their
facilities the octane rating certification documentation for the three
most recent deliveries to the facility for each grade of gasoline sold or
offered for sale. [1997 c.310 §6] In accordance with any applicable provision of ORS
chapter 183, the Director of Agriculture, not later than December 1,
1997, shall adopt rules to carry out the provisions of ORS 646.947 to
646.963. Such rules may include, but are not limited to, motor vehicle
fuel grade advertising, pump grade labeling, testing procedures, quality
standards and identification requirements for motor vehicle fuels. Rules
adopted by the director under this section shall be consistent, to the
extent the director considers appropriate, with the most recent standards
adopted by the American Society for Testing and Materials. As standards
of the society are revised, the director shall revise the rules in a
manner consistent with the revisions unless the director determines that
those revised rules will significantly interfere with the director’s
ability to carry out the provisions of ORS 646.947 to 646.963. Rules
adopted pursuant to this section must adequately protect confidential
business information and trade secrets that the director or the
director’s authorized agent may discover when inspecting books, papers
and records pursuant to ORS 646.955. [1997 c.310 §8] (1) In
addition to and not in lieu of the license fee required by ORS 618.141,
each dealer that operates a metering instrument or device, other than a
remote readout device, required to be licensed by ORS 618.121 that is
operated for the measurement of motor vehicle fuel shall pay to the State
Department of Agriculture an annual fee of $5 for each such instrument or
device. The fee required by this section shall be paid at the same time
that the licensing fee for the instrument or measuring device is paid.

(2) All moneys received by the department pursuant to this section
shall be paid into the Motor Vehicle Fuel Inspection Program Account.

(3) As used in this section, “remote readout device” means a
console, cabinet, panel or instrument connected to or associated with a
weighing or measuring device that indicates, displays or prints values of
weight or measure at a location physically separate from the weighing or
measuring device. [1997 c.310 §10; 1999 c.237 §3] The Motor
Vehicle Fuel Inspection Program Account is created in the Department of
Agriculture Service Fund. Notwithstanding any other provision of law, all
moneys in the account are appropriated continuously to the State
Department of Agriculture for the administration of ORS 646.947 to
646.963. [1997 c.310 §9] (1) In addition to any other liability or
penalty provided by law, the Director of Agriculture may impose a civil
penalty as provided in subsection (3) of this section on any person who
violates any provision of ORS 646.947, 646.949 or 646.953, rules adopted
under ORS 646.957 or orders issued under ORS 646.953.

(2) Any civil penalty under subsection (1) of this section shall be
imposed in the manner provided by ORS 183.745.

(3) The director may impose civil penalties that are:

(a) Not more than $500 for a first violation.

(b) Not more than $2,500 for a second violation within two years
from the date of the first violation.

(c) Not more than $10,000 for a third violation within two years
from the date of the first violation.

(4) In imposing a penalty under subsection (3) of this section, the
director shall consider the following factors:

(a) The gravity of the violation.

(b) The scope of the violation.

(c) The past history of the person incurring the penalty.

(d) In the case of a penalty to be imposed on a retail dealer or
nonretail dealer, the degree of knowledge by the dealer of the violation.

(5) Civil penalties collected shall be deposited into the Motor
Vehicle Fuel Inspection Program Account. [1997 c.310 §7]PENALTIES (1) Each violation of any of the provisions of
ORS 646.010 to 646.180 by any person, firm or corporation, whether as
principal, agent, officer or director, is punishable, upon conviction, by
a fine of not less than $100 nor more than $500, or by imprisonment in
the county jail not exceeding six months, or by both.

(2) Violation of ORS 646.725 or 646.730 is a Class A misdemeanor.

(3) Any person who willfully and intentionally violates any
provision of ORS 646.895 to 646.899 shall be punished by a fine of not
more than $1,000 or by imprisonment for not more than six months or both.
Violation of any order or injunction issued pursuant to ORS 646.899 (1)
shall constitute prima facie proof of a violation of this subsection.

(4) Violation of ORS 646.910 is a Class D violation.

(5) Violation of ORS 646.915 is a Class D violation.

(6) Violation of ORS 646.920 is a Class D violation.

(7) A person violating ORS 646.930 commits a Class C misdemeanor.
[Amended by 1953 c.391 §2; 1967 c.144 §2; 1967 c.599 §4; subsection (8)
enacted as 1969 c.395 §2; 1971 c.744 §24; 1975 c.255 §15; subsection (4)
enacted as 1975 c.255 §16 (1); 1985 c.251 §28; subsection (4) enacted as
1985 c.468 §2 (2); subsection (5) enacted as 1985 c.468 §3 (3);
subsection (6) enacted as 1985 c.468 §4 (2); subsection (7) enacted as
1985 c.751 §1 (4); subsection (3) enacted as 1987 c.888 §5; 1999 c.1051
§213]
Violation of ORS 646.870 is a Class A misdemeanor. [1973 c.456 §3]

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