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Oregon Bulletin

November 1, 2011

 

Construction Contractors Board
Chapter 812

Rule Caption: Housekeeping — Correct Statutory Cite References.

Adm. Order No.: CCB 10-2011

Filed with Sec. of State: 9-29-2011

Certified to be Effective: 10-1-11

Notice Publication Date: 9-1-2011

Rules Amended: 812-002-0060, 812-002-0160, 812-002-0280, 812-002-0760, 812-002-0780, 812-005-0800

Subject: 812-002-0060, 812-002-0160, 812-002-0280, 812-002-0760, 812-002-0780, 812-005-0800 are amended to correct or add statutory reference of ORS 701.021 (operative 7/1/2010).

Rules Coordinator: Catherine Dixon—(503) 934-2185

812-002-0060

Bid

“Bid” as used in ORS 701.021(2) does not include a prospectus for an art project.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: ORS 279C.460 & 701

Hist.: CCB 4-1998, f. & cert. ef. 4-30-98; CCB 7-2005, f. 12-7-05, cert. ef. 1-1-06; CCB 18-2008, f. & cert. ef. 11-20-08; CCB 10-2011, f 9-29-11, cert. ef. 10-1-11

812-002-0160

Construction Management

“Construction management” is the coordinating of a construction project, including, but not limited to, selecting contractors to perform work on the project, obtaining permits, scheduling specialty contractors’ work, and purchasing materials. “Construction management” does not include consulting work performed by a registered engineer or a licensed architect when operating as provided by ORS 701.010(7).

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: ORS 701.005, 701.021, 701.026 & 701.238

Hist.: CCB 4-1998, f. & cert. ef. 4-30-98; CCB 7-2005, f. 12-7-05, cert. ef. 1-1-06; CCB 9-2008, f. 6-11-08, cert. ef. 7-1-08; CCB 10-2011, f 9-29-11, cert. ef. 10-1-11

812-002-0280

For Compensation or With the Intent to Sell

“For compensation or with the intent to sell” as used in ORS 701.005 is not intended to include real estate licensees engaged in professional real estate activities as defined in ORS 696.010(13).

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: ORS 701.005, 701.010, 701.021, 701.026 & 701.131

Hist.: CCB 4-1998, f. & cert. ef. 4-30-98; CCB 4-2003, f. & cert. ef. 6-3-03; CCB 9-2008, f. 6-11-08, cert. ef. 7-1-08; CCB 10-2011, f 9-29-11, cert. ef. 10-1-11

812-002-0760

Work as a Contractor Includes

“Work as a contractor”, as used in ORS 701.021 includes, but is not limited to:

(1) Except as modified by section (8) of this rule, construction, alteration, repair, improvement, inspection, set-up, erection, moving, or demolition of a structure or any other improvement to real estate, including activities performed on-site in the normal course of construction, or receiving and accepting any payments for the above.

(2) Concrete, asphalt and other testing that involves structural modifications, and soils testing associated with planned or existing structures.

(3) Construction management.

(4) Excavation, backfill, grading, and trenching for the structure or its appurtenances or to accomplish proper drainage and not for landscaping.

(5) Improvement of lots with the intent of selling lots with structure(s). This may include contracting with a primary contractor to construct, alter or improve structures.

(6) Inspection of cross connections and testing of backflow prevention devices performed by persons licensed under ORS 448.279 by the Health Division except when performed by a person licensed as a landscape contracting business as provided under ORS 671.510 through 671.710 or when performed by an employee of a water supplier as defined in ORS 448.115.

(7) Labor only, regardless of whether compensated by the hour or by the job.

(8) Pest control, if in the course of that work any structural modifications are performed. Structural modifications do not include the following when performed by a pesticide operator licensed under ORS 634.116. Installation of soil vapor barriers; sealing of holes, cracks, construction junctures or other small openings that allow the ingress of pests with mortar, plaster, caulking, or similar materials; installation of screens, bird netting and bird repellent devices; installation of rodent shields around utility entrances, doorways and other points of rodent ingress; and drilling of holes equal to or smaller than 3/8 inch in diameter for the purpose of injecting insecticides into small voids, removal and replacement of floor tiles for the purpose of drilling a slab floor for the control of subterranean termites; and the drilling of slab floors for control of termites.

(9) Shoring.

(10) Shelving attached to a structure.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: ORS 448.115, 448.279, 671.510-671.710, 701.005, 701.021 & 701.026

Hist.: CCB 4-1998, f. & cert. ef. 4-30-98; CCB 2-2005, f. 6-29-05, cert. ef. 7-1-05; CCB 7-2007, f. 12-13-07, cert. ef. 1-1-08; CCB 9-2008, f. 6-11-08, cert. ef. 7-1-08; CCB 10-2011, f 9-29-11, cert. ef. 10-1-11

812-002-0780

Work as a Contractor Does Not Include

“Work as a contractor”, as used in ORS 701.021, does not include:

(1) Sign painting unless the total area of all signs is more than 60 square feet.

(2) Work performed by persons engaged in creating objects, which exist exclusively for aesthetic reasons and have no other function, for example, murals, sculptures, etc., if said work by such person does not incorporate electrical or plumbing.

(3) Work performed by government agencies, except a school district.

(4) Work performed in setting, placing, removing, or repairing grave markers or monuments in cemeteries.

(5) Work by an employee when both the employer and employee are in compliance with applicable employer/employee requirements of ORS Chapters 305, 314, 316, 317, 318, 656, 657, and state and federal wage and hour laws.

(6) Concrete pumping.

(7) Utility connections done by utility company employees when the connection is owned by a utility company.

(8) Installation or repair of stand-alone industrial equipment when such activities are exempt from the requirement for a building permit under the Oregon Structural Specialty Code.

(9) Inspections done under contract with government agencies.

(10) Cable television work done by cable television franchise holders.

(11) Operation of a crane, including the lifting and placement of trusses or other construction materials onto the structure.

(12) Improvement of lots with the intent of selling the lots without structures when contracting with licensed contractors to perform the improvement of lots.

(13) Arranging for work to be performed by a licensed construction contractor when the person who arranges for the work is a real estate licensee, licensed under ORS Chapter 696; the real estate licensee is representing the seller of the property; and the real estate licensee is acting as the agent for the seller, as evidenced by a contract or agreement between the real estate licensee and the seller.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: ORS 634.116, 701.010, 701.021 & 701.026

Hist.: CCB 4-1998, f. & cert. ef. 4-30-98; CCB 7-2000, f. 6-29-00, cert. ef. 7-1-00; CCB 1-2001, f. & cert. ef. 4-6-01; CCB 7-2005, f. 12-7-05, cert. ef. 1-1-06; CCB 9-2008, f. 6-11-08, cert. ef. 7-1-08; CCB 10-2011, f 9-29-11, cert. ef. 10-1-11

812-005-0800

Schedule of Penalties

The agency may assess penalties, not to exceed the amounts shown in the following guidelines:

(1) $600 for advertising or submitting a bid to do work as a contractor in violation of ORS 701.021 and OAR 812-003-0120, which may be reduced to $200 if the respondent becomes licensed or to $50 if the advertisement or bid is withdrawn immediately upon notification from the agency that a violation has occurred and no work was accepted as a result of the advertisement or bid; and

(2) $700 per offense without possibility of reduction for advertising or submitting a bid to do work as a contractor in violation of ORS 701.021 and OAR 812-003-0120, when one or more previous violations have occurred, or when an inactive, lapsed, invalid, or misleading license number has been used; and

(3) $1,000 per offense for performing work as a contractor in violation of ORS 701.021 when the Board has no evidence that the person has worked previously without having a license and no consumer has suffered damages from the work, which may be reduced to $700 if the respondent becomes licensed within a specified time; and

(4) $5,000 per offense for performing work as a contractor in violation of ORS 701.021, when an owner has filed a complaint for damages caused by performance of that work, which may be reduced to $700 if the contractor becomes licensed within a specified time and settles or makes reasonable attempts to settle with the owner.

(a) A “complaint for damages” as used in section (4) of this rule includes, but is not limited to:

(A) A Construction Contractors Board Dispute Resolution Services (DRS) complaint; or

(B) A letter to Construction Contractors Board indicating that a citizen has been damaged by the contractor; and

(5) $5,000 per offense for performing work as a contractor in violation of ORS 701.021, when one or more violations have occurred, or when an inactive, lapsed, invalid, or misleading license number has been used; and

(6) $500 per offense for failure to respond to the agency’s request for the list of subcontractors required in ORS 701.345; and

(7) $1,000 per offense for hiring a unlicensed subcontractor; and

(8) For failing to provide an “Information Notice to Owners about Construction Liens” as provided in ORS 87.093, when no lien has been filed, $200 for the first offense, $400 for the second offense, $600 for the third offense, $1,000 for each subsequent offense. Any time a lien has been filed upon the improvement, $1,000.

(9) Failure to include license number in advertising or on contracts, in violation of OAR 812-003-0120: First offense $100, second offense $200, subsequent offenses $400.

(10) Failure to list with the Construction Contractors Board a business name under which business as a contractor is conducted in violation of OAR 812-003-0260: First offense $50, second offense $100, subsequent offenses $200.

(11) Failure to notify the Construction Contractors Board of a new or additional business name or personal surname (for sole proprietors) under which business as a contractor is conducted, in violation of OAR 812-003-0320: First offense warning, second offense $50, subsequent offenses $200.

(12) Failing to use a written contract as required by ORS 701.305: $500 for the first offense; $1,000 for the second offense; and $5,000 for subsequent offenses.

(13) Violation of OAR 812-012-0130(1), failure to provide a Consumer Notification form; $100 first offense; $500 second offense; $1,000 third offense; and $5,000 for subsequent offenses. Civil penalties shall not be reduced unless the agency determines from clear and convincing evidence that compelling circumstances require a suspension of a portion of the penalty in the interest of justice. In no event shall a civil penalty for this offense be reduced below $100.

(14) Failure to conform to information provided on the application in violation of ORS 701.046(4), issuance of a $5,000 civil penalty, and suspension of the license until the contractor provides the agency with proof of conformance with the application and the terms of the application.

(a) If the violator is a limited contractor or residential limited contractor working in violation of the conditions established pursuant to OAR 812-003-0130 or 812-003-0131, the licensee shall be permanently barred from licensure in the limited contractor category or residential limited contractor endorsement.

(b) If the violator is a licensed developer, residential developer or commercial developer working in violation of the conditions established pursuant to ORS 701.005(3), (6) or (13) or 701.042, the licensee shall be permanently barred from licensure in the licensed developer category or residential developer or commercial developer endorsement.

(15) Knowingly assisting an unlicensed contractor to act in violation of ORS Chapter 701, $1,000.

(16) Failure to comply with any part of ORS Chapters 316, 656, or 657, 701.035, 701.046 or 701.091, as authorized by ORS 701.106, $1,000 and suspension of the license until the contractor provides the agency with proof of compliance with the statute.

(17) Violating an order to stop work as authorized by ORS 701.225(3), $1,000 per day.

(18) Working without a construction permit in violation of ORS 701.098, $1,000 for the first offense; $2,000 and suspension of CCB license for three (3) months for the second offense; $5,000 and permanent revocation of CCB license for the third and subsequent offenses.

(19) Failure to comply with an investigatory order issued by the Board, $500 and suspension of the license until the contractor complies with the order.

(20) Violation of ORS 701.098(1)(k) by engaging in conduct as a contractor that is dishonest or fraudulent and injurious to the welfare of the public: first offense, $1,000, suspension of the license or both; second and subsequent offenses, $5,000, per violation, revocation or suspension of the license until the fraudulent conduct is mitigated in a manner satisfactory to the agency or both.

(21) Engaging in conduct as a contractor that is dishonest or fraudulent and injurious to the welfare of the public by:

(a) Not paying prevailing wage on a public works job; or

(b) Violating the federal Davis-Bacon Act; or

(c) Failing to pay minimum wages or overtime wages as required under state and federal law; or

(d) Failing to comply with the payroll certification requirements of ORS 279C.845; or

(e) Failing to comply with the posting requirements of ORS 279C.840: $1,000 and suspension of the license until the money required as wages for employees is paid in full and the contractor is in compliance with the appropriate state and federal laws.

(22) Violation of ORS 701.098(1)(k) by engaging in conduct as a contractor that is dishonest or fraudulent and injurious to the welfare of the public, as described in subparagraphs (19) or (20), where more than two violations have occurred: $5,000 and revocation of the license.

(23) When, as set forth in ORS 701.098(1)(h), the number of licensed contractors working together on the same task on the same job site, where one of the contractors is licensed exempt under ORS 701.035(2)(b), exceeded two sole proprietors, one partnership, or one limited liability company, penalties shall be imposed on each of the persons to whom the contract is awarded and each of the persons who award the contract, as follows: $1,000 for the first offense, $2,000 for the second offense, six month suspension of the license for the third offense, and three-year revocation of license for a fourth offense.

(24) Performing home inspections without being an Oregon certified home inspector in violation of OAR 812-008-0030(1): $5,000.

(25) Using the title Oregon certified home inspector in advertising, bidding or otherwise holding out as a home inspector in violation of OAR 812-008-0030(3): $5,000.

(26) Failure to conform to the Standards of Practice in violation of OAR 812-008-0202 through 812-008-0214: $750 per offense.

(27) Failure to conform to the Standards of Behavior in OAR 812-008-0201(2)–(8): $750 per offense.

(28) Offering to undertake, bidding to undertake or undertaking repairs on a structure inspected by an owner or employee of the business entity within 12 months following the inspection in violation of ORS 701.355: $5,000 per offense.

(29) Failure to include certification number in all written reports, bids, contracts, and an individual’s business cards in violation of OAR 812-008-0201(4): $400 per offense.

(30) Violation of work practice standards for lead-based paint (LBP) activity pursuant to OAR 812-007-0140 or 812-007-0240 first offense, $1,000; second offense, $3,000; and third offense, $5,000 plus suspension of license for up to one year. The civil penalty is payable to the Construction Contractors Board LBP Activities Fund as provided in ORS 701.995 and OAR 812-007-0025.

(31) Violation of work practice standards for LBP renovation pursuant to OAR 812-007-0340 or violation of recordkeeping and reporting requirements pursuant to OAR 333-070-0110: first offense, $1,000; second offense, $3,000; and third offense, $5,000 and suspension of the certified LBP renovation contractor license for up to one year. The civil penalty is payable to the Construction Contractors Board LBP Activities Fund as provided in ORS 701.995 and OAR 812-007-0025.

(32)Violation of OAR 812-007-0100, 812-007-0200 or 812-007-0300: first offense, $1,000; second offense, $3,000; and third offense, $5,000. The civil penalty is payable to the Construction Contractors Board Lead-Based Paint (LBP) Activities Fund as provided in ORS 701.995 and OAR 812-007-0025.

(33) Violation of ORS 279C.590:

(a) Imposition of a civil penalty on the contractor of up to ten percent of the amount of the subcontract bid submitted by the complaining subcontractor to the contractor or $15,000, whichever is less; and

(b) Imposition of a civil penalty on the contractor of up to $1,000; and

(c) Placement of the contractor on a list of contractors not eligible to bid on public contracts established to ORS 701.227(4), for a period of up to six months for a second offense if the offense occurs within three years of the first offense.

(d) Placement of the contractor on a list of contractors not eligible to bid on public contracts established to ORS 701.227(4), for a period of up to one year for a third or subsequent offense if the offense occurs within three years of the first offense.

(34) Violation of ORS 701.315, inclusion of provisions in a contract that preclude a homeowner from filing a breach of contract complaint with the Board: $1,000 for the first offense, $2,000 for the second offense, and $5,000 for the third and subsequent offenses.

(35) Violation of ORS 701.345, failure to maintain the list of subcontractors: $1,000 for the first offense; $2,000 for the second offense, and $5,000 for the third and subsequent offenses.

(36) Violation of 701.098(1)(e), knowingly providing false information to the Board: $1,000 and suspension of the license for up to three months for the first offense; $2,000 and suspension of the license for up to one year for the second offense; and $5,000 and permanent revocation of license for the third offense.

(37) Failing to provide a written contract with the contractual terms provided by ORS 701.305 or OAR 812-012-0110: $200 for the first offense; $500 for the second offense; and $1,000 for subsequent offenses.

(38) Working while the license is suspended if the licensee was required to provide an increased bond under ORS 701.068(5), 701.068(6), or OAR 812-003-0175: revocation.

(39) Working while the license is suspended for any violation of ORS 701.098(4)(a)(A) or 701.098(4)(a)(B): $5,000 for first offense, and revocation for second or subsequent offense.

(40) Working while the license is suspended for any reason except as otherwise provided for by this rule: revocation.

(41) Failure to comply with ORS 701.106(1)(a); $1,000 for the first offense, $5,000 for the second offense; $5,000 and permanent revocation of CCB license for the third offense.

(42) Failure to deliver as required by ORS 701.109(2) a copy of a final judgment; $200 first offense, $400 second offense; $600 for the third offense; $1,000 for each subsequent offense.

(43) Failure to maintain insurance as required under ORS 701.073 or to provide proof of insurance as required under OAR 812-003-0200, where there is no claim of loss submitted to the insurance company: first offense, $500; second offense, $1,000; third and subsequent offenses, $5,000.

(44) Failure to maintain insurance as required under ORS 701.073 or to provide proof of insurance as required under OAR 812-003-0200, where there is a claim of loss submitted to the insurance company: first offense, $2,000; second and subsequent offenses, $5,000.

(45) Undertaking, offering to undertake, or submitting a bid to work as a locksmith when an individual is not certified as a locksmith or otherwise exempt under ORS 701.490: first offense, $1,000; second offense, $3,000; third offense, $5,000.

(46) Undertaking, offering to undertake, or submitting a bid to provide locksmith services when a business is not a licensed construction contractor or otherwise exempt under ORS 701.490: first offense, $1,000; second offense, $3,000; third offense, $5,000.

(47) Using the title of locksmith, locksmith professional, commercial locksmith, lock installer or any title using a form of the word “locksmith” that indicates or tends to indicate that the individual is a locksmith, unless an individual is certified as a locksmith or otherwise exempt under ORS 701.490: first offense, $1,000; second offense, $3,000; third offense, $5,000.

(48) Using the title of locksmith, locksmith professional, commercial locksmith, lock installer or any title using a form of the word “locksmith” that indicates or tends to indicate that the business providing locksmith services, unless a business (a) is a licensed construction contractor and (b) is owned by or employs a certified locksmith or is otherwise exempt under ORS 701.490: first offense, $1,000; second offense, $3,000; third offense, $5,000.

(49) Violating any applicable provision of the rules in division 30, including violating any standard of professional conduct other than OAR 812-030-0300(4): first offense, $1,000; second offense, $3,000; third offense, $5,000 and revocation of the certificate.

(50) Violating OAR 812-030-0300(4): first offense, $200; second offense, $500; third offense, $1,000.

Stat. Auth.: ORS 183.310 to 183.500, 670.310, 701.235, 701.515, 701.992 & 701.995

Stats. Implemented: ORS 87.093, 279C.590, 701.005, 701.021, 701.026, 701.042, 701.046, 701.073, 701.091, 701.098, 701.106, 701.109, 701.227, 701.305, 701.315, 701.330, 701.345, 701.480, 701.485, 701.510, 701.515, 701.992 & 701.995

Hist.: 1BB 4-1982, f. & ef. 10-7-82; 1BB 1-1983, f. & ef. 3-1-83; Renumbered from 812-011-0080(13); 1BB 3-1983, f. 10-5-83, ef. 10-15-83; 1BB 3-1984, f. & ef. 5-11-84; 1BB 3-1985, f.& ef. 4-25-85; BB 1-1987, f. & ef. 3-5-87, BB 1-1988(Temp), f. & cert. ef. 1-26-88; BB 2-1988, f. & cert. ef. 6-6-88; CCB 1-1989, f. & cert. ef. 11-1-89; CCB 2-1990, f. 5-17-90, cert. ef. 6-1-90; CCB 3-1990(Temp), f. & cert. ef. 7-27-90; CCB 4-1990, f. 10-30-90, cert. ef. 11-1-90; CCB 3-1991, f. 9-26-91, cert. ef. 9-29-91; CCB 1-1992, f. 1-27-92, cert. ef. 2-1-92; CCB 2-1992, f. & cert. ef. 4-15-92; CCB 4-1992, f. & cert. ef. 6-1-92; CCB 5-1993, f. 12-7-93, cert. ef. 12-8-93; CCB 2-1994, f. 12-29-94, cert. ef. 1-1-95; CCB 3-1995, f. 9-7-95, cert. ef. 9-9-95; CCB 4-1995, f. & cert. ef. 10-5-95; CCB 3-1996, f. & cert. ef. 8-13-96; CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 7-1999(Temp), f. & cert. ef. 11-1-99 thru 4-29-00; CCB 4-2000, f. & cert. ef. 5-2-00; CCB 7-2000, f. 6-29-00, cert. ef. 7-1-00; CCB 13-2000(Temp), f. & cert. ef 11-13-00 thru 5-11-01; CCB 2-2001 f. & cert. ef. 4-6-01; CCB 8-2001, f. 12-12-01, cert. ef. 1-1-02; CCB 1-2002(Temp), f. & cert. ef. 3-1-02 thru 8-26-02; CCB 2-2002, f. & cert. ef. 3-1-02; CCB 7-2002, f. 6-26-02 cert. ef. 7-1-02; CCB 8-2002, f. & cert. ef. 9-3-02; CCB 11-2003, f. 12-5-03, cert. ef. 1-1-04; CCB 6-2004, f. 6-25-04, cert. ef. 9-1-04; CCB 9-2004, f. & cert. ef. 12-10-04; CCB 5-2005, f. 8-24-05, cert. ef. 1-1-06; Renumbered from 812-005-0005, CCB 7-2005, f. 12-7-05, cert. ef. 1-1-06; CCB 2-2006, f. & cert. ef. 1-26-06; CCB 7-2006, f. & cert. ef. 6-23-06; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07; CCB 4-2007, f. 6-28-07, cert. ef. 7-1-07; CCB 2-2008(Temp), f. & cert. ef. 1-2-08 thru 6-29-08; CCB 5-2008, f. 2-29-08, cert. ef. 7-1-08; CCB 13-2008, f. 6-30-08, cert. ef. 7-1-08; CCB 17-2008, f. 9-26-08, cert. ef. 10-1-08; CCB 19-2008, f. & cert. ef. 11-20-08; CCB 1-2009, f. 1-30-09, cert. ef. 2-1-09; CCB 4-2009, f. 5-6-09, cert. ef. 6-1-09; CCB 6-2009, f. & cert. ef. 9-1-09; CCB 2-2010, f. & cert. ef. 2-1-10; CCB 8-2010, f. & cert. ef. 4-28-10; CCB 13-2010(Temp), f. & cert. ef. 7-7-10 thru 1-2-11; Administrative correction 1-25-11; CCB 1-2011, f. 2-28-11, cert. ef. 3-1-11; CCB 4-2011, f. 6-24-11, cert. ef. 7-1-11; CCB 10-2011, f 9-29-11, cert. ef. 10-1-11

 

Rule Caption: Amend and Adopt rules to implement SB 939, Dispute Resolution Services Change to Mediation Only Process.

Adm. Order No.: CCB 11-2011

Filed with Sec. of State: 9-29-2011

Certified to be Effective: 10-1-11

Notice Publication Date: 9-1-2011

Rules Adopted: 812-004-1001, 812-004-1110, 812-004-1120, 812-004-1140, 812-004-1160, 812-004-1180, 812-004-1195, 812-004-1210, 812-004-1240, 812-004-1250, 812-004-1260, 812-004-1300, 812-004-1320, 812-004-1340, 812-004-1350, 812-004-1360, 812-004-1400, 812-004-1420, 812-004-1440, 812-004-1450, 812-004-1460, 812-004-1480, 812-004-1490, 812-004-1500, 812-004-1505, 812-004-1510, 812-004-1520, 812-004-1530, 812-004-1537, 812-004-1600

Rules Amended: 812-004-0001, 812-004-0110, 812-004-0120, 812-004-0140, 812-004-0300, 812-004-0320, 812-004-0340, 812-004-0600, 812-009-0010, 812-010-0020

Rules Repealed: 812-004-0001(T), 812-004-1001(T), 812-004-1110(T), 812-004-1120(T), 812-004-1140(T), 812-004-1160(T), 812-004-1180(T), 812-004-1195(T), 812-004-1210(T), 812-004-1240(T), 812-004-1250(T), 812-004-1260(T), 812-004-1300(T), 812-004-1320(T), 812-004-1340(T), 812-004-1350(T), 812-004-1360(T), 812-004-1400(T), 812-004-1420(T), 812-004-1440(T), 812-004-1450(T), 812-004-1460(T), 812-004-1480(T), 812-004-1490(T), 812-004-1500(T), 812-004-1505(T), 812-004-1510(T), 812-004-1520(T), 812-004-1530(T), 812-004-1537(T), 812-004-1600(T), 812-009-0010(T), 812-010-0020(T)

Subject: • 812-004-0001, 812-009-0010, and 812-010-0020 are amended to implement Ch. 630 OR Laws 2011 (SB 939). They identify the existing rules as applicable to complaints filed before July 1, 2011.

      • 812-004-0110 is amended to reflect the current poverty guidelines.

      • 812-004-0120 is amended to correct citation for definition of term “licensee”. The definition is now at OAR 812-004-0450.

      • 812-004-0140 is amended to correct citation for exemption for owner’s property. The exemption is now at ORS 701.010(7).

      • 812-004-0300 is amended to correct statutory reference of ORS 701.139 (2010 legislation).

      • 812-004-0320 is amended to correct statutory reference of ORS 701.021 (operative 7/1/2010).

      • 812-004-0340 is amended for clarity and consistency with new rules.

      • 812-004-0600 is amended to remove reference to section (5) which is repealed, to make subsequent bond responsible for the complaint if the initial bond was cancelled more than 14 months before the agency received the complaint. This is consistent with the requirements of ORS 701.150(3), which is retained by Ch. 630 OR Laws 2011 (SB 939). And, is amended to delete section that apportions multiple surety bonds. These were bonds that were used by persons of whom the agency required an increased bond. For example, if the agency required a $75,000 bigger bond, some contractors obtained four $20,000 bonds. The law no longer permits this practice. Therefore, the rule is unnecessary and is repealed.

      • 812-004-1001, 812-004-1110, 812-004-1120, 812-004-1140, 812-004-1160, 812-004-1180, 812-004-1195, 812-004-1210, 812-004-1240, 812-004-1250, 812-004-1260, 812-004-1300, 812-004-1320, 812-004-1340, 812-004-1350, 812-004-1360, 812-004-1400, 812-004-1420, 812-004-1440, 812-004-1450, 812-004-1460, 812-004-01480, 812-004-1490, 812-004-1500, 812-004-1505, 812-004-1510, 812-004-1520, 812-004-1530, 812-004-1537, 812-004-1600 are adopted to implement Ch. 630 OR Laws 2011 (SB 939).

Rules Coordinator: Catherine Dixon—(503) 934-2185

812-004-0001

Application of Rules

(1) The rules in division 4 of OAR chapter 812 apply to a complaint involving work on a residential structure or an appurtenance to the structure and any other complaint filed under ORS 701.145 before July 1, 2011.

(2) Except as provided in section (4) of this rule, the following rules apply to a complaint involving work on a large commercial structure or an appurtenance to the structure and any other complaint filed under ORS 701.146:

(a) OAR 812-004-0001 through 812-004-0240;

(b) OAR 812-004-0260 through 812-004-0320;

(c) OAR 812-004-0340, except 812-004-0340(2)(c), (2)(i) and (8);

(c) OAR 812-004-0420;

(d) OAR 812-004-0520; and

(e) OAR 812-004-0550 through 812-004-0600.

(3)(a) Except as provided in subsection (3)(b) of this rule, the rules that apply to a complaint involving work on a residential structure under section (1) of this rule apply to a complaint involving work on a small commercial structure or an appurtenance to the structure.

(b) The rules that apply to the complaint involving work on a large commercial structure under section (2) of this rule apply to a complaint involving work on a small commercial structure or an appurtenance to the structure if the complainant files the complaint under ORS 701.146.

(4) The rules that apply to a complaint involving work on a residential structure under section (1) of this rule apply to a complaint involving work on a large commercial structure or an appurtenance to the structure if:

(a) The complaint is filed by the owner of the structure;

(b) The total contract for the work is $25,000 or less; and

(c) The complainant files the complaint under ORS 701.145.

Stat. Auth.: ORS 183.310 - 183.500, 670.310 & 701.235

Stats. Implemented: ORS 701.139, 701.140, 701.145 & 701.146

Hist.: CCB 1-1989, f. & cert. ef. 11-1-89; CCB 2-1990, f. 5-27-90, cert. ef. 6-1-90; CCB 2-1991, f. 6-28-91, cert. ef. 7-1-91; CCB 3-1991, f. 9-26-91, cert. ef. 9-29-91; CCB 5-1993, f. 12-7-93, cert. ef. 12-8-93; CCB 2-1994, f. 12-29-94, cert. ef. 1-1-95; CCB 1-1995, f. & cert. ef. 2-2-95; CCB 4-1995, f. & cert. ef. 10-5-95; CCB 4-1997, f. & cert. ef. 11-3-97; CCB 4-1998, f. & cert. ef. 4-30-98; CCB 6-1998, f. 8-31-98, cert. ef. 9-1-98; CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 1-1999, f. 3-29-99, cert. ef. 4-1-99; CCB 8-2001, f. 12-12-01, cert. ef. 1-1-02; CCB 2-2003, f. & cert. ef. 3-4-03; CCB 9-2004, f. & cert. ef. 12-10-04; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07; CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-0110

Complaint Processing Fee; Waiver of Fee

(1) The complaint processing fee authorized under ORS 701.133 is $50 for a complaint filed under ORS 701.145. There is no complaint processing fee for a complaint filed under ORS 701.146.

(2) The agency must collect the processing fee under OAR 812-004-0400.

(3) A complainant may request that the agency waive the complaint processing fee described in section (1) of this rule by submitting a properly executed waiver request. The waiver request must be submitted on a form provided by the agency.

(4) The agency may waive the complaint processing fee if the waiver request submitted by the complainant shows that:

(a) The complainant is an individual;

(b) The complainant has no significant assets except the home that is the subject of the complaint and one automobile; and

(c) The complainant’s gross income does not exceed the 2011 Department of Health and Human Services Poverty Guidelines published in the Federal Register, Vol. 76, No. 13, January 20, 2011, pp. 3637–3638.

(5) A complainant, who requests a waiver of the complaint processing fee under section (3) of this rule, must certify that the information on the request is true.

(6) The agency may require that the complainant pay a complaint processing fee of $97 if the agency finds that the complainant provided false information on a request for a waiver of the complaint processing fee submitted under section (3) of this rule.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: ORS 701.133 & 701.146

Hist.: CCB 11-2003, f. 12-5-03, cert. ef. 1-1-04; CCB 14-2003(Temp), f. 12-24-03, cert. ef. 1-1-04 thru 6-18-04; CCB 2-2004, f. 2-27-04, cert. ef. 3-1-04; CCB 4-2004, f. 5-28-04, cert. ef. 6-1-04; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07; CCB 5-2007, f. 6-28-07, cert. ef. 7-1-07; CCB 9-2008, f. 6-11-08, cert. ef. 7-1-08; CCB 10-2008, f. 6-30-08, cert. ef. 7-1-08; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-0120

Liability of Licensee

A licensee, as defined in OAR 812-002-0450, participating in a corporation wholly-owned by the licensee, or a limited liability partnership, limited liability company, joint venture, limited partnership or partnership, may be held individually liable for complaints brought under ORS 701.131 to 701.180, whether or not the corporation, limited liability partnership, limited liability company, joint venture, limited partnership, or partnership was licensed as required by ORS Chapter 701.

Stat. Auth.: ORS 183.310 - 183.500, 670.310 & 701.235

Stats. Implemented: ORS 701.102, 701.139, 701.140 & 701.145

Hist.: CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 7-2000, f. 6-29-00, cert. ef. 7-1-00; CCB 8-2001, f. 12-12-01, cert. ef. 1-1-02; CCB 3-2005, f. & cert. ef. 8-24-05; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07; CCB 9-2008, f. 6-11-08, cert. ef. 7-1-08; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-0140

Liability of Contractor for Complaint Related to Contractor’s Property

(1) If an employee complaint, material complaint or subcontractor complaint arises from property owned by a licensed contractor, the licensed contractor is a contractor subject to ORS Chapter 701 unless the contractor supplies pre-contract written notice to suppliers, subcontractors, and other potential complainants that the property is for the contractor’s personal use and that the contractor is not subject to ORS Chapter 701, as provided in ORS 701.010(7).

(2) If a licensed contractor files a complaint against another licensed contractor arising from property owned by the contractor filing the complaint, the contractor filing the complaint is a contractor subject to ORS Chapter 701 unless the property is for the contractor’s personal use and occupancy.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: ORS 701

Hist.: CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 7-2000, f. 6-29-00, cert. ef. 7-1-00; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-0300

Filing Date of Complaints

(1) Except as provided under section (3) of this rule, a complaint submitted to the agency for processing under ORS 701.139 is deemed to have been filed when a Breach of Contract Complaint is received by the agency that:

(a) Meets the requirements of OAR 812-004-0340(1) and (2)(m); and

(b) Contains information sufficient to identify the complainant and respondent.

(2) The agency must return a Breach of Contract Complaint that does not meet the requirements of section (1) of this rule to the person who submitted the complaint.

(3) If the agency returns a Breach of Contract Complaint to a person under section (2) of this rule because the person did not meet the requirements of OAR 812-004-0340(2)(m) related to pre-complaint notice, that person may resubmit the Breach of Contract Complaint with the required evidence. If the resubmitted Breach of Contract Complaint satisfies the agency that the person met the requirements under OAR 812-002-0340(2)(m) before the agency received the original Breach of Contract Complaint, the complaint is deemed to have been filed on the date the Breach of Contract Complaint was first received by the agency.

(4) A Breach of Contract Complaint that does not fully comply with the requirements of OAR 812-004-0340 is subject to OAR 812-004-0350.

(5) The date of filing of a complaint submitted to the agency for processing under ORS 701.146 is the date when the complainant complies with ORS 701.133(1) and 701.146(2).

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: ORS 701.139, 701.143, 701.145 & 701.146

Hist.: CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 2-2003, f. & cert. ef. 3-4-03; CCB 8-2004, f. & cert. ef. 10-1-04; CCB 7-2005, f. 12-7-05, cert. ef. 1-1-06; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07; CCB 9-2008, f. 6-11-08, cert. ef. 7-1-08; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-0320

Jurisdictional Requirements

(1) A complaint must be of a type described under ORS 701.140.

(2) A complaint must be filed with the agency within the time allowed under ORS 701.143.

(3) A complaint will be processed only against a licensed entity. Whether a respondent is licensed for purposes of this section must be determined as follows:

(a) For an owner, primary contractor or subcontractor complaint, the respondent will be considered licensed if the respondent was licensed during all or part of the work period.

(b) For a material complaint, the respondent will be considered licensed if one or more invoices involve material delivered while the respondent was licensed. Damages will be awarded only for material delivered within the period of time that the respondent was licensed.

(c) For an employee or employee trust complaint, the respondent will be considered licensed if the respondent was licensed on one or more days that the complainant or the employee that is the subject of the trust performed work that was not paid for. Damages will be awarded only for unpaid wages or benefits provided on days on which the respondent was licensed.

(4)(a) The complainant must have been properly licensed at the time the bid was made or the contract was entered into and must have remained licensed continuously throughout the work period if:

(A) The work at issue in the complaint requires that the complainant be licensed under ORS 701.021 in order to perform the work; and

(B) The complaint does not arise from defects, deficiencies or inadequate performance of construction work.

(b) As used in section (4) of this rule, “properly licensed” means the complainant:

(A) Had a current valid license issued by the agency and was not on inactive status;

(B) Was licensed for the type of work at issue in the complaint;

(C) Complied with the requirements of ORS 701.035 and OAR 812-003-0250 as they applied to the complainant’s license status as an “exempt” or “nonexempt” contractor; and

(D) Complied with any other requirements and restrictions on the complainant’s license.

(5) Complaints will be accepted only when one or more of the following relationships exist between the complainant and the respondent:

(a) A direct contractual relationship based on a contract entered into by the complainant and the respondent, or their agents;

(b) An employment relationship or assigned relationship arising from a Bureau of Labor and Industries employee claim;

(c) A contract between the complainant and the respondent providing that the complainant is a trustee authorized to receive employee benefit payments from the respondent for employees of the respondent; or

(d) A real estate purchase conditioned upon repairs made by the respondent.

(6) Complaints will be accepted only for work performed within the boundaries of the State of Oregon or for materials or equipment supplied or rented for fabrication into or use upon structures located within the boundaries of the State of Oregon.

(7) The agency may refuse to process a complaint or any portion of a complaint that includes an allegation of a breach of contract, negligent or improper work or any other act or omission within the scope of ORS 701.140 that is the same as an allegation contained in a complaint previously filed by the same complainant against the same respondent, except that the agency may process a complaint that would otherwise be dismissed under this section (7) if the previously filed complaint was:

(a) Withdrawn before the on-site meeting;

(b) Closed without a determination on the merits before the on-site meeting;

(c) Closed because the complainant failed to pay the complaint processing fee required under OAR 812-004-0110.

(d) Closed or dismissed with an explicit provision allowing the subsequent filing of a complaint containing the same allegations as the closed or dismissed complaint; or

(e) Closed or withdrawn because the respondent filed bankruptcy.

(8) Nothing in section (7) of this rule extends the time limitation for filing a complaint under ORS 701.143.

(9) A complaint by a person furnishing material, or renting or supplying equipment to a contractor may not include a complaint for non-payment for tools sold to a licensee, for equipment sold to a licensee and not fabricated into a structure, for interest or service charges on an account, or for materials purchased as stock items.

(10) Complaints by a contractor or by persons furnishing material, or renting or supplying equipment to a contractor will not be processed unless they are at least $150 in amount, not including the processing fee required by 812-004-0110.

(11) The agency may process a complaint against a licensed contractor whose license was inactive under OAR 812-003-0330, 812-003-0340, 812-003-0350, 812-003-0360 and 812-003-0370 during the work period.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: ORS 701.131, 701.133, 701.139, 701.140, 701.143, 701.145 & 701.146

Hist.: CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 7-2000, f. 6-29-00, cert. ef. 7-1-00; CCB 8-2001, f. 12-12-01, cert. ef. 1-1-02; CCB 5-2002, f. 5-28-02, cert. ef. 6-1-02; CCB 2-2003, f. & cert. ef. 3-4-03; CCB 7-2003, f. & cert. ef. 8-8-03; CCB 11-2003, f. 12-5-03, cert. ef. 1-1-04; CCB 8-2004, f. & cert. ef. 10-1-04; CCB 9-2004, f. & cert. ef. 12-10-04; CCB 7-2005, f. 12-7-05, cert. ef. 1-1-06; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07; CCB 10-2008, f. 6-30-08, cert. ef. 7-1-08; CCB 7-2009, f. 11-30-09, cert. ef. 1-1-10; CCB 12-2010, f. 6-24-10, cert. ef. 7-1-10; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-0340

Form of Complaints, Pre-Complaint Notice

(1) A complaint must be submitted on a complaint form provided by the agency. The complaint form shall be entitled “Breach of Contract Complaint.” The agency may require the use of the most recent revision of the complaint form.

(2) The complainant must submit the following information on or with the complaint form required under section (1) of this rule if applicable:

(a) The name, address and telephone number of the complainant;

(b) The name, address, telephone number and license number of the respondent;

(c) The amount, if known at the time the complaint is filed, that the complainant alleges is due from the licensee after crediting payments, offsets and counterclaims in favor of the respondent to which the complainant agrees;

(d) Identification of the type of complaint;

(e) The date on which the contract was entered into;

(f) If the contract was in writing, a copy of the contract, including all relevant attachments, if any;

(g) The location of the work at issue in the complaint, described by a postal address or other description sufficient to locate the work site on a map and on the ground;

(h) The beginning and ending date of the work or invoices;

(i) Payments, offsets and counterclaims of the respondent, if known;

(j) Whether the project involves work on a residential, small commercial or large commercial structure;

(k) A certification by the complainant that the information provided on the complaint form is true;

(l) If a court judgment or arbitration award is the basis for the complaint, a copy of the judgment or award, the original complaint and any answers or counter-suits related to the parties to the complaint filed in the court action or arbitration;

(m) Documents described in section (9) of this rule that are related to the pre-complaint notice requirement in ORS 701.133.

(n) Additional information required under sections (3) through (8) of this rule.

(3) A subcontractor complaint must include copies of each original invoice relating to the complaint.

(4) An employee complaint must include evidence that an employee worked for a contractor and evidence of the amount of unpaid wages or benefits. Evidence may include:

(a) Time cards;

(b) Paycheck stubs;

(c) W-4 forms; or

(d) A sworn affidavit or written declaration under perjury of a third-person stating facts that indicate the employee worked for the contractor. A written declaration under perjury must contain the following statement, “I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury.”

(5) An employee trust complaint must include the name of each employee that is the subject of the complaint, the dates that employee worked without payment of employee benefits and the following information for each date and employee:

(a) The hours worked without payment of employee benefits;

(b) The amount of the unpaid benefits;

(c) The address of the job site where the employee worked; and

(d) Whether the structure at the job site is a residential structure, small commercial structure or large commercial structure.

(6) A construction lien complaint must include evidence that the complainant paid the primary contractor, a copy of the notice of right to lien, a copy of the lien bearing the county recorder’s stamp and signature, a copy of each invoice or billing constituting the basis of the lien, a copy of the ledger sheet or other accounting of invoices from the lienor, if applicable, and any foreclosure documents.

(7) A material complaint must include recapitulation of the indebtedness showing the job site address, the date of each invoice, each invoice number, each invoice amount and a copy of each original invoice relating to the complaint.

(8) A complaint involving negligent or improper work must include a list of the alleged negligent or improper work. A complaint involving a breach of contract must describe the nature of the breach of contract.

(9) A complaint must include one of the following:

(a) A copy of the pre-complaint notice required under ORS 701.133 and of the certified or registered mail receipt for the pre-complaint notice; or

(b) Written evidence that the respondent had actual notice of the dispute that is the subject of the complaint at least 30 days before the complainant filed the complaint. The agency will only accept evidence under this subsection (9)(b) if it is in one of the following forms:

(A) A return receipt signed by the respondent indicating receipt of a notice of intent to file a complaint sent to the respondent by the complainant; or

(B) A letter signed by the respondent acknowledging receipt of a notice of intent to file a complaint.

(c) Written evidence that the complainant and the respondent are parties to mediation, arbitration or a court action arising from the same contract or issues that are the subject of the complaint. The agency will only accept evidence under this subsection (9)(c) if it is in one of the following forms:

(A) Copies of a complaint or answer in the court action; or

(B) Copies of a document that initiated the mediation or arbitration.

(d) Evidence that the complainant and the respondent are parties to another complaint filed with the agency arising from the same contract or issues that are the subject of the complaint.

(10) Except as provided in subsections (9)(c) and (9)(d), the agency may not accept a statement by the complainant alleging that the respondent had actual knowledge of the dispute as written evidence required under section (9) of this rule.

(11) The completed complaint form must be signed by the complainant or an agent of the complainant.

(12) A complaint form submitted to the agency that does not comply with the requirements of this rule is subject to OAR 812-004-0350.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: ORS 701.139, 701.140, 701.143, 701.145 & 701.146

Hist.: CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 7-2000, f. 6-29-00, cert. ef. 7-1-00; CCB 2-2001, f. & cert. ef. 4-6-01; CCB 8-2001, f. 12-12-01, cert. ef. 1-1-02; CCB 5-2002, f. 5-28-02, cert. ef. 6-1-02; CCB 2-2003, f. & cert. ef. 3-4-03; CCB 11-2003, f. 12-5-03, cert. ef. 1-1-04; CCB 7-2005, f. 12-7-05, cert. ef. 1-1-06; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07; CCB 9-2008, f. 6-11-08, cert. ef. 7-1-08; CCB 7-2010, f. & cert. ef. 4-28-10; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-0600

Payment From Surety Bond, Letter of Credit or Cash Deposit

(1) The agency may notify the surety company or financial institution of complaints pending.

(2) The agency must notify the surety company or financial institution of complaints ready for payment. This notice constitutes notice that payment is due on the complaints. A complaint is ready for payment when all of the following have occurred:

(a)(A) A final order was issued in a contested case and 30 days have elapsed to allow the respondent time to pay the order; or

(B) An arbitration award was issued and is ready for payment under OAR 812-010-0470 and 30 days have elapsed to allow the respondent time to pay the award;

(b) The agency has received no evidence that the respondent has complied with the award or final order;

(c) The agency has not granted a stay of enforcement of the final order or award pending judicial review by the Court of Appeals; and

(d) All other complaints filed against the respondent within the same 90-day filing period under ORS 701.150 have either been resolved, been closed or have reached the same state of processing as the subject complaint.

(3) Complaints related to a job that are satisfied from a surety bond, letter of credit or cash deposit must be paid as follows:

(a) If a surety bond, letter of credit or cash deposit was in effect when the work period began and that bond, letter of credit or cash deposit was not cancelled more than 14 months before the agency received the complaint, payment must be made from that surety bond, letter of credit or cash deposit.

(b) If no surety bond, letter of credit or cash deposit was in effect when the work period began and that bond, letter of credit or cash deposit was not cancelled more than 14 months before the agency received the complaint, but a surety bond, letter of credit or cash deposit subsequently became effective during the work period of the contract, payment must be made from the first surety bond, letter of credit or cash deposit to become effective after the beginning of the work period.

(c) A surety bond, letter of credit or cash deposit that is liable for a complaint under subsection (3)(a) or (b) of this rule is liable for all complaints related to the job and subsequent surety bonds, letters of credit or cash deposits have no liability for any complaint related to the job.

(4) If during a work period the amount of a surety bond, letter of credit or cash deposit is changed and a complaint is filed relating to work performed during that work period, the complainant may recover from the surety bond, letter of credit or cash deposit up to the amount in effect at the time the contract was entered into.

(5) If the contractor holds a residential surety bond, that bond is available only for payments ordered by the agency involving residential or small commercial structures or for the development of property zoned or intended for use compatible with residential or small commercial structures.

(6) If the contractor holds a commercial surety bond, that bond is available only for payments ordered by the agency involving small or large commercial structures or for development of property zoned or intended for use compatible with small or large commercial structures.

(7) If more than one complaint must be paid from a surety bond, letter of credit or cash deposit under section (3) of this rule and the total amount due to be paid exceeds the total amount available from the surety bond, letter of credit or cash deposit, payment on a complaint must be made in the same proportion that the amount due on that complaint bears to the total due on all complaints that must be paid.

(8) The full penal sum of a bond is available to pay complaints under this rule, notwithstanding that the penal sum may exceed the bond amount required under OAR 812-003-0170 or 812-003-0171.

(9) Unless the order provides otherwise, if an award or a final order provides that two or more respondents are jointly and severally liable for an amount due to a complainant and payment is due from the surety bonds, letter of credit or cash deposit of the respondents, payment must be made in equal amounts from each bond, letter of credit or cash deposit subject to payment. If one or more of the bonds, letters of credit or cash deposits is or becomes exhausted, payment must be made from the remaining bond, letter of credit or cash deposit or in equal amounts from the remaining bonds, letters of credit or cash deposits. If one of the respondents liable on the complaint makes payment on the complaint, that payment shall reduce the payments required from that respondent’s bond, letter of credit or cash deposit under this section by an amount equal to the payment made by the respondent.

(10) A surety company or financial institution may not condition payment of a complaint on the execution of a release by the complainant.

(11) Inactive status of the license of the respondent does not excuse payment by a surety company or financial institution required under this rule.

Stat. Auth.: ORS 670.310, 701.150 & 701.235

Stats. Implemented: ORS 701.081, 701.084, 701.088 & 701.150

Hist.: 1BB 6-1980, f. & ef. 11-4-80; 1BB 3-1981, f. 10-30-81, ef. 11-1-81; 1BB 1-1983, f. & ef. 3-1-83; Renumbered from 812-011-0075; 1BB 6-1984(Temp), f. & ef. 9-18-84; 1BB 3-1985, f. & ef. 4-25-85; BB 3-1987, f. 12-30-87, ef. 1-1-88; BB 2-1988, f. & cert. ef. 6-6-88; CCB 1-1989, f. & cert. ef. 11-1-89; CCB 4-1997, f. & cert. ef. 11-3-97; CCB 1-1998, f. & cert. ef. 2-6-98; CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98, Renumbered from 812-004-0070; CCB 1-1999, f. 3-29-99, cert. ef. 4-1-99; CCB 7-2000, f. 6-29-00, cert. ef. 7-1-00; CCB 2-2001, f. & cert. ef. 4-6-01; CCB 8-2001, f. 12-12-01, cert. ef. 1-1-02; CCB 4-2002(Temp), f. & cert. ef. 5-23-02 thru 11-19-02; CCB 8-2002, f. & cert. ef. 9-3-02; CCB 6-2004, f. 6-25-04, cert. ef. 9-1-04; CCB 8-2004, f. & cert. ef. 10-1-04; CCB 9-2004, f. & cert. ef. 12-10-04; CCB 2-2005, f. 6-29-05, cert. ef. 7-1-05; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07; CCB 5-2007, f. 6-28-07, cert. ef. 7-1-07; CCB 7-2007, f. 12-13-07, cert. ef. 1-1-08; CCB 5-2008, f. 2-29-08, cert. ef. 7-1-08; CCB 11-2008, f. 6-30-08, cert. ef. 7-1-08; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1001

Application of Rules

(1) The rules in 812-004-1001 to 812-004-1600 apply to all complaints filed under ORS 701.145 on or after July 1, 2011.

(2) The following rules apply to a complaint filed under ORS 701.146:

(a) OAR 812-004-1001 through 812-004-1240;

(b) OAR 812-004-1260 through 812-004-1320;

(c) OAR 812-004-1340, except 812-004-1340(2)(c), (2)(i) and (8);

(c) OAR 812-004-1420;

(d) OAR 812-004-1520; and

(e) OAR 812-004-1600.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1110

Complaint Processing Fee; Waiver of Fee

(1) The complaint processing fee authorized under ORS 701.133 is $50 for a complaint filed under ORS 701.145. There is no complaint processing fee for a complaint filed under ORS 701.146.

(2) The agency must collect the processing fee under OAR 812-004-1400.

(3) A complainant may request that the agency waive the complaint processing fee described in section (1) of this rule by submitting a properly executed waiver request. The waiver request must be submitted on a form provided by the agency.

(4) The agency may waive the complaint processing fee if the waiver request submitted by the complainant shows that:

(a) The complainant is an individual;

(b) The complainant has no significant assets except the home that is the subject of the complaint and one automobile; and

(c) The complainant’s gross income does not exceed the 2011 Department of Health and Human Services Poverty Guidelines published in the Federal Register, Vol. 76, No. 13, January 20, 2011, pp. 3637–3638.

(5) A complainant, who requests a waiver of the complaint processing fee under section (3) of this rule, must certify that the information on the request is true.

(6) The agency may require that the complainant pay a complaint processing fee of $97 if the agency finds that the complainant provided false information on a request for a waiver of the complaint processing fee submitted under section (3) of this rule.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1120

Liability of Licensee

A licensee, as defined in OAR 812-002-0450, participating in a corporation wholly owned by the licensee, or a limited liability partnership, limited liability company, joint venture, limited partnership or partnership, may be held individually liable for complaints brought under ORS 701.131 to 701.180, whether or not the corporation, limited liability partnership, limited liability company, joint venture, limited partnership, or partnership was licensed as required by ORS Chapter 701.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1140

Liability of Contractor for Complaint Related to Contractor’s Property

(1) If an employee complaint, material complaint or subcontractor complaint arises from property owned by a licensed contractor, the licensed contractor is a contractor subject to ORS Chapter 701 unless the contractor supplies pre-contract written notice to suppliers, subcontractors, and other potential complainants that the property is for the contractor’s personal use and that the contractor is not subject to ORS Chapter 701, as provided in ORS 701.010(7).

(2) If a licensed contractor files a complaint against another licensed contractor arising from property owned by the contractor filing the complaint, the contractor filing the complaint is a contractor subject to ORS Chapter 701 unless the property is for the contractor’s personal use and occupancy.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1160

Establishment of Co-Complainant

The agency may allow a person to become a co-complainant, with the complainant’s permission, even though that person did not sign the complaint form if the person would otherwise qualify as a complainant.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1180

Complainant’s Responsibility to Pursue Complaint

(1) Throughout the processing of a complaint, a complainant has the responsibility to pursue the complaint and to respond in a timely manner to requests from the agency for information or documents.

(2) The agency may close a complaint under OAR 812-004-1260 if:

(a) The complainant does not respond to a written request from the agency, or to provide requested information or documents within a time limit specified in that request; or

(b) The complainant does not respond in writing to a written request from the agency, after being instructed to do so by the agency.

(3) A written request from the agency under section (2) of this rule must comply with the requirements of OAR 812-004-1260(2).

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1195

Exhibits

(1) If a party to a complaint submits a document that is larger than 8-1/2 inches by 14 inches or a photograph as an exhibit, the agency may require that the party submit four copies of the document or photo.

(2) The disposal of large exhibits is subject to OAR 812-001-0130.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1210

Address of Complainant and Respondent

(1) All communications directed to the last known address of record of a party to a complaint is considered delivered when deposited in the United States mail and sent by regular mail.

(2) A party must notify the agency in writing within 10 days of any change in the party’s address, withdrawal or change of the party’s attorney or change of address of the party’s attorney during the processing of the complaint and until 90 days after the date the agency notifies the parties that the complaint is closed.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1240

Exhaustion of Surety Bond, Letter of Credit or Cash Deposit

The agency may continue processing a complaint even though the surety bond, letter of credit or cash deposit related to that complaint is exhausted by prior complaints.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1250

Payments From the Bond for Court Costs, Complaint Processing Fee, Interest and Other Costs

(1) For complaints filed under ORS 701.145, the agency may include the following costs in the amount of a judgment that is subject to payment by a surety or financial institution:

(a) Court costs;

(b) Interest;

(c) Costs, other than attorney fees, to pursue litigation or the complaint; or

(d) Service charges or fees.

(2) For complaints filed under ORS 701.145, the agency’s determination of payment due from a surety or financial institution may not include amounts arising out of claims for anything other than construction work involving negligence, improper work or breach of contract.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1260

Closing a Complaint

(1) The agency may close a complaint because:

(a) The complainant did not act in response to a request from the agency;

(b) The complaint is not the type of complaint that the agency has jurisdiction to determine under ORS 701.140;

(c) The complaint was not filed within the time allowed under ORS 701.143;

(d) The complainant failed to pay the complaint processing fee as required under OAR 812-004-1110 and 812-004-1400;

(e) The complaint contains a mediation or arbitration agreement that the complainant has not waived;

(f) The complainant does not comply with the on-site meeting requirements as provided in OAR 812-004-1450(2);

(g) The complainant and respondent settle the complaint as provided in OAR 812-004-1500;

(h) The complainant does not, within 30 days of the date of completion of the settlement agreement, notify the agency whether the terms of the settlement agreement have been fulfilled;

(i) The complainant fails to provide documents to the agency as required by OAR 812-004-1520; or

(j) The agency does not timely receive evidence of a stay or counter-suit on a construction lien complaint, as provided in OAR 812-004-1530.

(2) The agency may close a complaint under section (1) of this rule if the agency notifies the complainant that complainant must provide information or that complainant must comply with an agency rule and that:

(a) Failing to respond to the agency’s request may result in closing the complaint; and

(b) Closing the complaint will prevent access to the bond, letter of credit or cash deposit.

(3) The agency may not close the complaint sooner than 14 days after giving the notice required in subsection (2) of this rule.

(4) The agency may, within 60 days after closing a complaint, reopen a complaint closed under section (1) of this rule if the complainant did not comply with the agency’s request or failed to comply with an agency rule due to excusable neglect by the complainant. The agency may reopen the complaint after receiving evidence supporting reopening the complaint.

(5) The agency’s determination to close a complaint is an order in other than a contested case.

(6) The agency’s determination to close a complaint is subject to judicial review under ORS 183.484.

(7) A party must file a motion for reconsideration of the agency’s determination to close a complaint before seeking judicial review of the order.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1300

Filing Date of Complaint

(1) Except as provided under section (3) of this rule, a complaint filed with the agency under ORS 701.139 is deemed to have been filed when a complaint is received by the agency that:

(a) Meets the requirements of OAR 812-004-1340(1) and (2)(m); and

(b) Contains information sufficient to identify the complainant and respondent.

(2) The agency must return a complaint that does not meet the requirements of section (1) of this rule to the person who submitted the complaint.

(3) If the agency returns a complaint to a person under section (2) of this rule because the person did not meet the requirements of OAR 812-004-1340(2)(m) related to pre-complaint notice, that person may resubmit the complaint with the required evidence. If the resubmitted complaint satisfies the agency that the person met the requirements under OAR 812-002-1340(2)(m) before the agency received the original complaint, the complaint is deemed to have been filed on the date the complaint was first received by the agency.

(4) A complaint that does not fully comply with the requirements of OAR 812-004-1340 is subject to OAR 812-004-1350.

(5) The date of filing of a complaint submitted to the agency for processing under ORS 701.146 is the date when the complainant complies with ORS 701.133(1) and 701.146(2).

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1320

Jurisdictional Requirements

(1) A complaint must be of a type described under ORS 701.140.

(2) A complaint must be filed with the agency within the time allowed under ORS 701.143.

(3) A complaint will be processed only against a licensed entity. Whether a respondent is licensed for purposes of this section must be determined as follows:

(a) For an owner, primary contractor or subcontractor complaint, the respondent will be considered licensed if the respondent was licensed during all or part of the work period.

(b) For a material complaint, the respondent will be considered licensed if one or more invoices involve material delivered while the respondent was licensed. A surety company or financial institution is only liable for payments for material delivered within the period of time that the respondent was licensed.

(c) For an employee or employee trust complaint, the respondent will be considered licensed if the respondent was licensed on one or more days that the complainant, or the employee that is the subject of the trust, performed work that was not paid for. A surety company or financial institution is only liable for payments for unpaid wages or benefits provided on days on which the respondent was licensed.

(4)(a) The complainant must have been properly licensed at the time the bid was made or the contract was entered into and must have remained licensed continuously throughout the work period if:

(A) The work at issue in the complaint requires that the complainant be licensed under ORS 701.021 in order to perform the work; and

(B) The complaint does not arise from defects, deficiencies or inadequate performance of construction work.

(b) As used in section (4) of this rule, “properly licensed” means the complainant:

(A) Had a current valid license issued by the agency and was not on inactive status;

(B) Was licensed for the type of work at issue in the complaint;

(C) Complied with the requirements of ORS 701.035 and OAR 812-003-1250 as they applied to the complainant’s license status as an “exempt” or “nonexempt” contractor; and

(D) Complied with any other requirements and restrictions on the complainant’s license.

(5) Complaints will be accepted only when one or more of the following relationships exist between the complainant and the respondent:

(a) A direct contractual relationship based on a contract entered into by the complainant and the respondent, or their agents;

(b) An employment relationship or assigned relationship arising from a Bureau of Labor and Industries employee claim;

(c) A contract between the complainant and the respondent providing that the complainant is a trustee authorized to receive employee benefit payments from the respondent for employees of the respondent; or

(d) A real estate purchase conditioned upon repairs made by the respondent.

(6) Complaints will be accepted only for work performed within the boundaries of the State of Oregon or for materials or equipment supplied or rented for fabrication into or use upon structures located within the boundaries of the State of Oregon.

(7) The agency may refuse to process a complaint or any portion of a complaint that includes an allegation of a breach of contract, negligent or improper work or any other act or omission within the scope of ORS 701.140 that is the same as an allegation contained in a complaint previously filed by the same complainant against the same respondent, except that the agency may process a complaint that would otherwise be closed if the previously filed complaint was:

(a) Withdrawn before the on-site meeting;

(b) Closed without a determination on the merits before the on-site meeting;

(c) Closed because the complainant failed to pay the complaint processing fee required under OAR 812-004-0110 or 812-004-1110.

(d) Closed or dismissed with an explicit provision allowing the subsequent filing of a complaint containing the same allegations as the closed or dismissed complaint; or

(e) Closed or withdrawn because the respondent filed bankruptcy.

(8) Nothing in section (7) of this rule extends the time limitation for filing a complaint under ORS 701.143.

(9) A complaint by a person furnishing material, or renting or supplying equipment to a contractor may not include a complaint for non-payment for tools sold to a licensee, for equipment sold to a licensee and not fabricated into a structure, for interest or service charges on an account, or for materials purchased as stock items.

(10) Complaints by a contractor or by persons furnishing material, or renting or supplying equipment to a contractor will not be processed unless they are at least $150 in amount, not including the processing fee required by 812-004-1110.

(11) The agency may process a complaint against a licensed contractor whose license was inactive under OAR 812-003-0330, 812-003-0340, 812-003-0350, 812-003-0360 and 812-003-0370 during the work period.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1340

Form of Complaints, Pre-Complaint Notice

(1) A complaint must be submitted on a complaint form provided by the agency. The agency may require the use of the most recent revision of the complaint form.

(2) The complainant must submit the following information on or with the complaint form required under section (1) of this rule if applicable:

(a) The name, address and telephone number of the complainant;

(b) The name, address, telephone number and license number of the respondent;

(c) The amount, if known at the time the complaint is filed, that the complainant alleges is due from the respondent after crediting payments, offsets and counterclaims in favor of the licensee to which the complainant agrees;

(d) Identification of the type of complaint;

(e) The date on which the contract was entered into;

(f) If the contract was in writing, a copy of the contract, including all relevant attachments, if any;

(g) The location of the work at issue in the complaint, described by a postal address or other description sufficient to locate the work site on a map and on the ground;

(h) The beginning and ending date of the work or invoices;

(i) Payments, offsets and counterclaims of the respondent, if known;

(j) Whether the project involves work on a residential, small commercial or large commercial structure;

(k) A certification by the complainant that the information provided on the complaint form is true;

(l) If a court judgment or judgment based on an arbitration award is the basis for the complaint, a copy of the judgment, arbitration award, the original complaint and any answers or counter-suits related to the parties to the complaint filed in the court action or arbitration;

(m) Documents described in section (9) of this rule that are related to the pre-complaint notice requirement in ORS 701.133.

(n) Additional information required under sections (3) through (8) of this rule.

(3) A subcontractor complaint must include copies of each original invoice relating to the complaint.

(4) An employee complaint must include evidence that an employee worked for a contractor and evidence of the amount of unpaid wages or benefits. Evidence may include:

(a) Time cards;

(b) Paycheck stubs;

(c) W-4 forms; or

(d) A sworn affidavit or written declaration under perjury of a third-person stating facts that indicate the employee worked for the contractor. A written declaration under perjury must contain the following statement, “I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury.”

(5) An employee trust complaint must include the name of each employee that is the subject of the complaint, the dates that employee worked without payment of employee benefits and the following information for each date and employee:

(a) The hours worked without payment of employee benefits;

(b) The amount of the unpaid benefits;

(c) The address of the job site where the employee worked; and

(d) Whether the structure at the job site is a residential structure, small commercial structure or large commercial structure.

(6) A construction lien complaint must include evidence that the complainant paid the primary contractor, a copy of the notice of right to lien, a copy of the lien bearing the county recorder’s stamp and signature, a copy of each invoice or billing constituting the basis of the lien, a copy of the ledger sheet or other accounting of invoices from the lienor, if applicable, and any foreclosure documents.

(7) A material complaint must include recapitulation of the indebtedness showing the job site address, the date of each invoice, each invoice number, each invoice amount and a copy of each original invoice relating to the complaint.

(8) A complaint involving negligent or improper work must include a list of the alleged negligent or improper work. A complaint involving a breach of contract must describe the nature of the breach of contract.

(9) A complaint must include one of the following:

(a) A copy of the pre-complaint notice required under ORS 701.133 and of the certified or registered mail receipt for the pre-complaint notice; or

(b) Written evidence that the respondent had actual notice of the dispute that is the subject of the complaint at least 30 days before the complainant filed the complaint. The agency will only accept evidence under this subsection (9)(b) if it is in one of the following forms:

(A) A return receipt signed by the respondent indicating receipt of a notice of intent to file a complaint sent to the respondent by the complainant; or

(B) A letter signed by the respondent acknowledging receipt of a notice of intent to file a complaint.

(c) Written evidence that the complainant and the respondent are parties to mediation, arbitration or a court action arising from the same contract or issues that are the subject of the complaint. The agency will only accept evidence under this subsection (9)(c) if it is in one of the following forms:

(A) Copies of a complaint or answer in the court action; or

(B) Copies of a document that initiated the mediation or arbitration.

(d) Evidence that the complainant and the respondent are parties to another complaint filed with the agency arising from the same contract or issues that are the subject of the complaint.

(10) Except as provided in subsections (9)(c) and (9)(d), the agency may not accept a statement by the complainant alleging that the respondent had actual knowledge of the dispute as written evidence required under section (9) of this rule.

(11) The completed complaint form must be signed by the complainant or an agent of the complainant.

(12) A complaint form submitted to the agency that does not comply with the requirements of this rule is subject to OAR 812-004-1350.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1350

Procedure if Information on Complaint Form is Incomplete

If the agency receives a complaint form that does not meet the requirements of OAR 812-004-0340, the agency may close the complaint if the complainant does not provide the missing information in response to a written request for the information from the agency. The written request and closure must comply with OAR 812-004-0260.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1360

Addition of Complaint Items at On-Site Meeting

If the agency holds an on-site meeting, the complainant may add new complaint items up to and through the initial on-site meeting. New items added to a timely filed complaint under this rule are considered timely filed.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1400

Initial Administrative Processing of Complaints; Collection of Fee

(1) Upon receipt of a complaint, the agency must:

(a) Send a copy of the complaint to the respondent;

(b) Verify that the complainant has provided information required under OAR 812-004-1340 and request additional information from the complainant if necessary;

(c) Make a preliminary determination that the board has or lacks jurisdiction over the complaint based on the information provided by the complainant;

(2) If the agency makes a preliminary determination under subsection (1)(c) of this rule that it has jurisdiction over the complaint and the agency does not waive the complaint processing fee required under OAR 812-004-1110, the agency must request payment of the complaint processing fee. The agency may suspend processing of the complaint until complainant pays this fee.

(3) If the complainant does not pay the fee required under OAR 812-004-1110 within 14 days of written notification that the fee is due, the agency may close the complaint. The agency may extend the time for payment of the fee upon a showing of good cause by the complainant.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1420

Processing Owner and Primary Contractor Complaints Together

If an owner complaint based on the same facts and issues is received at any time during the processing of a primary contractor complaint, the two complaints will be processed together.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1440

Contracts With Arbitration Agreements

(1) If a complaint is based on a contract that contains an agreement by the parties to mediate disputes arising out of the contract, the specific terms of the mediation agreement supersede agency rules except as set forth in ORS 701.180.

(2) If the contract requires mediation, the agency will be the mediator unless the contract requires mediation by a specific mediator other than the agency.

(3) If the contract requires mediation by a specific mediator other than the agency, the agency must inform the respondent by written notice that, if the respondent wants to mediate under the terms of the contract, the respondent must initiate the contractual mediation process within the time allowed under ORS 701.180 and submit evidence to the agency within 40 days from the date of the agency’s written notice that respondent initiated mediation under the terms of the contract.

(4) If mediation under the contract is timely commenced under ORS 701.180, the agency must suspend processing the complaint until the mediation is complete.

(5) Notwithstanding receipt of a notice of intent to file a complaint under ORS 701.133 or any prior communication from the agency referencing a complaint, for purposes of ORS 701.180, a respondent receives notice of a complaint when the agency sends the respondent the notice described under section (3) of this rule.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 8-2011(Temp), f. & cert. ef. 9-2-11 thru 12-28-11; CCB 9-2011(Temp), f. & cert. ef. 9-9-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1450

On-site Meeting and Telephone Mediation; Attendance of the Complainant

(1) The agency may schedule one or more on-site meetings or telephone mediations among the parties for the purpose of discussing a settlement of a complaint under ORS 701.145. The agency must mail notice of an on-site meeting no less than 14 days before the date scheduled for the meeting. The notice must include notice of the requirements of section (2) and (3) of this rule and must comply with the requirements of OAR 812-004-1260(2).

(2) If the agency schedules an on-site meeting, the following apply:

(a) The complainant must allow access to the property that is the subject of the complaint.

(b) The complainant or an agent of the complainant must attend the meeting. An agent of the complainant must have knowledge of all complaint items included in the complaint and must have authority to enter into a settlement of the complaint.

(c) The complainant must allow the respondent to be present at the on-site meeting as required by ORS 701.145.

(3) If the complainant does not comply with the requirements of section (2) of this rule, the agency may close the complaint. OAR 812-004-1260 applies to closure of a complaint under this section.

(4) Notwithstanding subsection (2)(b), the agency may continue to process the complaint if the respondent does not appear at the on-site meeting.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1460

Agency Recommendation of Resolution

If it appears that the respondent has breached a contract or performed work negligently or improperly, the agency may recommend to the complainant and respondent a resolution consistent with the terms of the contract, generally accepted building practices, and industry standards.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1480

Resolution by Settlement and Construction of Settlement Agreement

(1) The agency may present a settlement proposal to the complainant and respondent for their consideration and agreement at or after an on-site meeting or telephone mediation conducted under OAR 812-004-0450.

(2) If the complainant and respondent sign a settlement agreement, the agreement shall be binding upon each party unless breached by the other.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1490

Subsequent On-Site Meetings; Determining Compliance; Closing Complaint

(1) If a dispute arises as to whether the respondent complied with the settlement agreement, the agency may schedule a subsequent on-site meeting.

(2) If the agency determines that the respondent complied with the terms of the settlement agreement, the agency may close the complaint.

(3) If the agency determines that the respondent did not comply with the terms of the settlement agreement, the complainant must obtain a judgment and submit the judgment to the agency in order to recover under the respondent’s bond.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1500

Closure of Complaint After Settlement

If the complainant and respondent agree to a settlement, within 30 days from the date the settlement agreement requires completion of the terms of the settlement, the complainant must notify the agency in writing whether the terms of the settlement have been fulfilled.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1505

Complaint Not Settled

(1) For other than a BOLI final order, if the complainant and respondent do not settle the complaint, the complainant must obtain a court judgment, including a judgment on an arbitration award, in order to recover from the respondent’s bond.

(2) The agency will process the judgment and issue its determination as to the amount of the judgment that complainant is entitled to recover from respondent’s bond.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1510

Court Judgments, Arbitration Awards and Bureau of Labor and Industries Final Orders

(1) A judgment based on a court action or arbitration award or a Bureau of Labor and Industries (BOLI) final order constitute the basis for a complaint if:

(a) A complaint is filed under OAR 812-004-1300 and 812-004-1340 within the time limit in ORS 701.143; and

(b) All or a portion of the judgment or the BOLI final order is within the jurisdiction of the agency.

(2) A complaint based on a judgment or BOLI final order will be processed under OAR 812-004-1520.

(3) This rule does not apply to a complaint filed and processed under ORS 701.146.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1520

Processing of Complaint Based on Judgments and Bureau of Labor and Industries Final Orders

(1) The agency may suspend processing a complaint if:

(a) The complainant or respondent submits to a court, arbitrator or BOLI a complaint based on the same facts and issues contained in the complaint filed with the agency; or

(b) The complainant in an owner complaint involving a residential structure submits copies of a notice of defect required under ORS 701.565 and the registered mail receipt for the notice and the notice of defect relates to the same facts and issues contained in the complaint.

(2) Beginning six months after the date that the agency suspends processing the complaint and no less frequently than every sixth month thereafter, the complainant must deliver to the agency a written report describing the current status of the notice of defect or action before the court, arbitrator or BOLI.

(3) The agency may, at any time, demand from the complainant a written report describing the current status of the notice of defect or the action before the court, arbitrator or BOLI. The complainant must deliver a written response to the agency within 30 days from the date the agency mails the demand letter.

(4) Within 30 days from the date of final action by the court or BOLI, the complainant must deliver to the agency a certified copy of the final judgment or BOLI final order. The agency may extend the time in which to submit the final judgment or BOLI final order if it determines there is good cause to do so.

(5) If the complainant does not comply with sections (2), (3) or (4) of this rule, the agency may close the complaint under OAR 812-004-1260(1)(i).

(6) If the agency suspends processing a complaint because respondent filed a court action, the complainant must file its complaint as a counter-suit, complaint or counter-claim in the court, arbitration or other proceedings and submit evidence, including a copy of the countersuit, complaint or counter claim, to the agency. The complainant must provide this information within 30 days from the date that the agency suspended processing the complaint, unless the agency determines there is good cause to extend the permissible time period.

(7) If the complainant does to submit the evidence required under subsection (6) of this rule, the agency may close the complaint.

(8) At its discretion and with the agreement of the complainant and respondent, the agency may hold an on-site meeting under OAR 812-004-1450 before suspending complaint processing under section (2) of this rule if the agency finds that an on-site meeting may help the parties to resolve the complaint.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1530

Construction Lien Complaints

(1) The agency may schedule one or more on-site meetings or telephone mediations among the parties to a construction lien complaint filed under ORS 701.145 for the purpose of discussing settlement of the complaint. Notice of the meeting must comply with OAR 812-004-1450(1). The agency may invite the lienor to participate in the settlement discussions. The on-site meeting may be held on the property of the complainant or another mutually agreeable site. OAR 812-004-1450(2), (3) and (4) apply to an on-site meeting held under this section.

(2) If the complaint does not settle, the complainant must:

(a) Join the respondent in an action to foreclose the lien if the lienor has filed such an action; or

(b) File an action against respondent to recover damages caused by respondent’s failure to pay for material, rental services, labor or subcontractor services that gave rise to the lien.

(3) The agency will suspend processing the complaint while the complainant complies with section (2) of this rule. If complainant fails, within 60 days from the date of the last on-site meeting or telephone mediation, to comply with section (2) of this rule, the agency may close the complaint. The agency may extend the time to comply with section (2) for good cause.

(4) While the court action described in section (2) is proceeding, the complainant must comply with OAR 812-004-1520.

(5) If a construction lien complaint involves the same facts and issues as any other open complaint, the agency must process the complaints together.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1537

Standards of Care and Workmanship

(1) For purposes of this rule, “NASCLA Standards” mean the Residential Construction Standards, dated March 20, 2009, as adopted by the National Association of State Contractors Licensing Agencies.

(2) Except as provided in section (3) of this rule, the agency will apply NASCLA standards; to the extent such standards cover the work at issue, in order to determine if construction work performed on a residential structure meets the standards of care and workmanship in the industry.

(3) The agency may apply a standard different than the NASCLA standard if:

(a) The contract between the parties provides for a standard of care and workmanship that differs from the NASCLA standard; or

(b) The work involved installation of a product for which the manufacturer provided installation instructions that establish a standard that differs from the NASCLA standard.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-004-1600

Payment From Surety Bond, Letter of Credit or Cash Deposit

(1) The agency must notify the surety company or financial institution the agency’s determination. The determination is the amount of the judgment that is subject to payment by the surety or financial institution.

(2) A complaint is ready for payment when there is a court judgment and 30 days have elapsed or there is a BOLI final order and 60 days have elapsed and:

(a) The respondent has not paid the judgment or BOLI order;

(b) A court has not granted a stay of judgment or BOLI has not granted a stay of its final order; and

(c) All other complaints filed against the respondent within the same 90-day filing period under ORS 701.150 are resolved, closed or have reached the same state of processing as the subject complaint.

(3) For purposes of section (2), a BOLI final order is final except that the 60-day period for judicial review has not expired.

(4) Complaints related to a job that are satisfied from a surety bond, letter of credit or cash deposit must be paid as follows:

(a) If a surety bond, letter of credit or cash deposit was in effect when the work period began and that bond, letter of credit or cash deposit was not cancelled more than 14 months before the agency received the complaint, payment must be made from that surety bond, letter of credit or cash deposit.

(b) If no surety bond, letter of credit or cash deposit was in effect when the work period began and that bond, letter of credit or cash deposit was not cancelled more than 14 months before the agency received the complaint, but a surety bond, letter of credit or cash deposit subsequently became effective during the work period of the contract, payment must be made from the first surety bond, letter of credit or cash deposit to become effective after the beginning of the work period.

(c) A surety bond, letter of credit or cash deposit that is liable for a complaint under subsection (4)(a) or (b) of this rule is liable for all complaints related to the job and subsequent surety bonds, letters of credit or cash deposits have no liability for any complaint related to the job.

(5) If during a work period the amount of a surety bond, letter of credit or cash deposit is changed and a complaint is filed relating to work performed during that work period, the complainant may recover from the surety bond, letter of credit or cash deposit up to the amount in effect at the time the contract was entered into.

(6) If the contractor holds a residential surety bond, that bond is available only for payments ordered by the agency involving residential or small commercial structures or for the development of property zoned or intended for use compatible with residential or small commercial structures.

(7) If the contractor holds a commercial surety bond, that bond is available only for payments ordered by the agency involving small or large commercial structures or for development of property zoned or intended for use compatible with small or large commercial structures.

(8) If more than one complaint must be paid from a surety bond, letter of credit or cash deposit under section (4) of this rule and the total amount due to be paid exceeds the total amount available from the surety bond, letter of credit or cash deposit, payment on a complaint must be made in the same proportion that the amount due on that complaint bears to the total due on all complaints that must be paid.

(9) The full penal sum of a bond is available to pay complaints under this rule, notwithstanding that the penal sum may exceed the bond amount required under OAR 812-003-0170 or 812-003-0171.

(10) If two or more respondents are jointly and severally liable for an amount due to a complainant and payment is due from the surety bonds, letter of credit or cash deposit of the respondents, payment must be made in equal amounts from each bond, letter of credit or cash deposit subject to payment. If one or more of the bonds, letters of credit or cash deposits is or becomes exhausted, payment must be made from the remaining bond, letter of credit or cash deposit or in equal amounts from the remaining bonds, letters of credit or cash deposits. If one of the respondents liable on the complaint makes payment on the complaint, that payment shall reduce the payments required from that respondent’s bond, letter of credit or cash deposit under this section by an amount equal to the payment made by the respondent.

(11) A surety company or financial institution may not condition payment of a complaint on the execution of a release by the complainant.

(12) Inactive status of the license of the respondent does not excuse payment by a surety company or financial institution required under this rule.

Stat. Auth.: ORS 670.310 & 701.235

Stats. Implemented: Ch. 630 OL 2011 (SB 939)

Hist.: CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-009-0010

Application of Rules

Subject to OAR 812-004-0590, contested case hearings on complaints filed before July 1, 2011, arising under ORS 701.139-701.180 are governed by OAR 812-009-0020–812-009-0220 and 137-003-0501–137-003-0700.

Stat. Auth.: ORS 670.310, 701.145, 701.235 & OL 1999, Ch. 849, Sec. 8

Stats. Implemented: ORS 183.413 - 183.470 & 701.145

Hist.: CCB 1-2000(Temp), f. 1-20-00, cert. ef. 1-24-00 thru 7-22-00; CCB 4-2000, f. & cert. ef. 5-2-00; CCB 6-2002 f. 6-10-02 cert. ef. 7-1-02; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07; CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

812-010-0020

Applicability of Rules; Application of ORS 36.600–36.740

(1) The rules in division 10 of this chapter apply to complaints filed before July 1, 2011, when:

(a) A complaint is referred to the Office of Administrative Hearings for arbitration under OAR 812-004-0590.

(b) The parties to the arbitration agree that the Construction Contractors Board may arbitrate a construction dispute and the agency accepts the dispute for arbitration under ORS 701.148.

(c) A timely complaint is filed relative to work performed under a contract that contains an arbitration clause specifying that the Construction Contractors Board must arbitrate disputes arising from the contract and the agency accepts the dispute for arbitration under ORS 701.148.

(d) Arbitration by the Construction Contractors Board is ordered by a court under ORS 36.600 or 36.625.

(2) Except as otherwise provided in the rules in division 10 of this chapter, an arbitration conducted under this division is governed by ORS 36.600 to 36.740, and sections 3 and 31, Chapter 598, Oregon Laws 2003.

Stat. Auth.: ORS 183.310 - 183.500, 670.310 & 701.235

Stats. Implemented: ORS 36.600–36.740, ch. 183, 701.133, 701.139 & 701.148

Hist.: CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 5-1999, f. & cert. ef. 9-10-99; CCB 8-2001, f. 12-12-01, cert. ef. 1-1-02; CCB 6-2002 f. 6-10-02 cert. ef. 7-1-02; CCB 8-2002, f. & cert. ef. 9-3-02; CCB 7-2003, f. & cert. ef. 8-8-03; CCB 11-2003, f. 12-5-03, cert. ef. 1-1-04; CCB 4-2004, f. 5-28-04, cert. ef. 6-1-04; CCB 8-2004, f. & cert. ef. 10-1-04; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07; CCB 9-2008, f. 6-11-08, cert. ef. 7-1-08; CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11

 

Rule Caption: Lead-Based Paint Rule Updated to Conform to Oregon Health Authority Rules.

Adm. Order No.: CCB 12-2011

Filed with Sec. of State: 9-29-2011

Certified to be Effective: 10-1-11

Notice Publication Date: 9-1-2011

Rules Amended: 812-007-0000, 812-007-0020, 812-007-0100, 812-007-0110, 812-007-0130, 812-007-0150, 812-007-0200, 812-007-0210, 812-007-0230, 812-007-0250, 812-007-0300, 812-007-0350, 812-007-0370, 812-007-0372, 812-007-0374

Subject: • 812-007-0000 is amended to revise the Oregon Department of Human Services, Health Division, name which has changed to the Oregon Health Authority. These rules use the acronym “OHA” instead of the term “Authority” which is used in the OHA rules. The reason is that the term “authority” is already used in both OHA and CCB rules and, we believe, it would be confusing to use that term to refer to another agency.

      • 812-007-0020 is amended to replace “Department” with “OHA”; revise language re: accredited training program to be consistent with language in recently revised OHA rule; make grammatical corrections (number format); remove definition for “lead-based paint (LBP) hazard” because it is not used in the CCB rules; change heat gun temperature to correspond to changed OHA work practice standards. See OAR 333-070-0090(6)(c). This higher temperature is permitted by federal law.

      • 812-007-0100, 812-007-0110, 812-007-0130, 812-007-0200, 812-007-0210, 812-007-0230 are amended to replace the word “Department” with the word “OHA.

      • 812-007-0150 is amended to replace the word “Department” with the word “OHA” and change reference to statutes for contested case hearings to reflect statutes that have been repealed.

      • 812-007-0250 and 812-007-0350 are amended to replace the word “Department” with the word “OHA” and change reference to statutes for contested case hearings to reflect statutes that have been repealed.

      • 812-007-0300 is amended to remove date that has passed.

      • 812-007-0370 is amended to replace the word “person” with the word “individual” as used in OHA rule, OAR 333-070-0095(1)(b)(B)(iii).

      • 812-007-0372 is amended to add language contained in OHA notification requirements, common areas, OAR 333-070-0095(2)(b)(B).

      • 812-007-0374 is amended to add language contained in OHA notification requirements, child-occupied facilities, OAR 333-070-0095(4)(c)(B).

Rules Coordinator: Catherine Dixon—(503) 934-2185

812-007-0000

Authority, Purpose, Scope

(1) Authority. These rules are promulgated in accordance with and under the authority of ORS 701.505 to 701.520 and 701.995.

(2) Purpose. These rules establish a system to license individuals certified by the Oregon Health Authority (OHA) to perform lead-based paint (LBP) activities. These rules establish a system to license contractors as LBP activities contractors and as certified LBP renovation contractors.

(3) Scope. These rules:

(a) Prescribe the requirements for, and the manner of, licensing applicants.

(b) Establish fees.

(c) Prescribe actions that constitute failure to achieve or maintain licensing requirements, or that otherwise are contrary to the public interest, for which the board may deny, suspend or revoke a license.

Stat. Auth.: ORS 670.310, 701.235 & 701.515

Stats. Implemented: ORS 701.515

Hist.: CCB 6-1996(Temp), f. & cert. ef. 11-26-96; Administrative Renumber from 812-007-0005, 5-19-97; CCB 1-1997, f. & cert. ef. 5-15-97; CCB 7-2000, f. 6-29-00, cert. ef. 7-1-00; CCB 13-2006, f. 12-12-06, cert. ef. 1-1-07; CCB 2-2010, f. & cert. ef. 2-1-10; CCB 12-2011, f. 9-29-11, cert. ef. 10-1-11

812-007-0020

Definitions

The following definitions apply to division 7 of OAR chapter 812.

(1) “Abatement” means any measure or set of measures designed to permanently eliminate LBP hazards.

(2) “Accredited training program” means a training program provisionally accredited or accredited by the OHA, the Environmental Protection Agency (EPA) or an EPA-authorized state or tribal program.

(3) “Certified” means certified by OHA to perform LBP activities.

(4) “Certified lead-based paint renovation contractor” means a construction contractor that is licensed by the board to conduct LBP renovation under ORS 701.515.

(5) “Certified renovator” means an individual who has successfully completed a renovator course accredited by OHA, EPA, or EPA authorized program.

(6) “Child-occupied facility” means a building, or portion of a building, constructed before 1978 and visited regularly by the same child, under age six, on at least two different days within any week (Sunday through Saturday), provided that each day’s visit lasts at least three hours and the combined weekly visit lasts at least six hours, and the combined annual visits last at least 60 hours. Child-occupied facilities may include, but are not limited to, day-care centers, preschools and kindergarten classrooms. Child-occupied facilities may be located in target housing or in public or commercial buildings. With respect to common areas in public or commercial buildings that contain child-occupied facilities, the child-occupied facility encompasses only those common areas that are routinely used by children under age six, such as restrooms and cafeterias. Common areas that children under age six only pass through, such as hallways, stairways, and garages are not included. In addition, with respect to exteriors of public or commercial buildings that contain child-occupied facilities, the child-occupied facility encompasses only the exterior sides of the building that are immediately adjacent to the child-occupied facility or the common areas routinely used by children under age six.

(7) “Component or building component” means specific design or structural elements or fixtures of a building or residential dwelling that are distinguished from each other by form, function, and location. These include, but are not limited to: interior components such as ceilings, crown molding, walls, chair rails, doors, door trim, floors, fireplaces, radiators and other heating units, shelves, shelf supports, stair treads, stair risers, stair stringers, newel posts, railing caps, balustrades, windows and tri (including sashes, window heads, jambs, sills or stools and troughs), built-in cabinets, columns, beams, bathroom vanities, counter tops, and air conditioners; and exterior components such as painted roofing, chimneys, flashing, gutters and downspouts, ceilings, soffits, fascias, rake boards, corner boards, bulkheads, doors and door trim, fences, floors, joists, lattice work, railings and railing caps, siding, handrails, stair risers and treads, stair stringers, columns, balustrades, window sills or stools and troughs, casings, sashes and wells, and air conditioners.

(8) “Course completion certificate” means documentation issued by an accredited training program to an individual as proof of successful completion of an accredited renovator training program (initial or refresher).

(9) “Deteriorated lead-based paint (LBP)” means any interior or exterior paint or other covering that is peeling, chipping, chalking, cracking, flaking or any paint or coating located on an interior or exterior surface or fixture that is otherwise damaged or separated from the substrate.

(10) “Dust-lead hazard” means surface dust that contains a mass-per-area concentration of lead equal to or exceeding 40 µg/ft² on floors or 250 µg/ft² on interior windows or 400 µg/ft² in troughs based on wipe samples.

(11) “Inspection” means a surface-to-surface investigation to determine the presence of LBP and an accompanying report explaining the results of the investigation.

(12) “Lead abatement contractor” means a construction contractor that is licensed by the board to perform abatement.

(13) “Lead assessor” or “risk assessor” means an individual who has been trained by an accredited training program and certified by the Department to conduct risk assessments.

(14) “Lead-based paint” or “LBP” means paint or other surface coatings that contain lead equal to or in excess of 1.0 milligrams per square centimeter or more than 0.5 percent by weight.

(15) “Lead-based paint activities” means, in the case of target housing and child-occupied facilities, inspection, risk assessment, and abatement.

(16) “Lead inspection contractor” means a construction contractor that is licensed by the board to perform inspections or risk assessments.

(17) “Lead inspector” means an individual who has been trained by an accredited training program and certified by OHA to conduct inspections.

(18) “Lead supervisor” means an individual who has been trained by an accredited training program and certified by OHA to supervise and conduct abatements and prepare abatement reports.

(19) “Lead worker” or “lead abatement worker” means an individual who has been trained by an accredited training program and certified by OHA to perform abatements.

(20) “Minor repair and maintenance” means activities, (including minor heating, ventilation, air conditioning work, electrical work, or plumbing) that disrupt 6 square feet or less of painted surface per room for interior activities or 20 square feet or less of painted surface for exterior activities, that do not involve prohibited or restricted work activities and do not involve window replacement or painted surface demolition. Jobs, other than emergency renovations, performed within the same 30 days must be considered the same job for the purpose of determining whether the job is a minor repair and maintenance activity.

(21) “Prohibited or restricted work activities” include:

(a) Open flame burning or torching;

(b) Machines to remove paint through high-speed operation without HEPA exhaust control; and

(c) Operating a heat gun at temperatures at or above 1100 degrees Fahrenheit.

(22) “Recognized test kit” means a commercially available kit recognized by EPA under 40 CFR § 745.88 as being capable of allowing a user to determine the presence of lead at levels equal to or in excess of 1.0 milligrams per square centimeter, or more than 0.5 percent lead by weight, in a paint chip, paint powder, or painted surface.

(23) “Renovation” means the modification of any existing structure, or portion thereof, which results in the disturbance of painted surfaces, unless that activity is performed as part of an abatement. The term renovation includes, but is not limited to:

(a) Removal, modification or repair of painted surfaces or painted components, such as modification of painted doors, surface restoration, window repair, surface preparation activity (such as sanding, scraping or other such activities that may generate paint dust);

(b) The removal of building components, such as walls, ceilings, plumbing and windows;

(c) Window replacement;

(d) Weatherization projects, such as cutting holes in painted surfaces to install blown-in insulation or to gain access to attics, or planing thresholds to install weather-stripping;

(e) Interim controls that disturb painted surfaces. A renovation for the purpose of converting a building, or part of a building, into target housing or a child-occupied facility is a renovation. The term “renovation” does not include minor repair and maintenance.

(24) “Renovation Right Pamphlet” means the pamphlet entitled Renovate Right: Important Lead Hazard Information for Families, Child Care Providers and Schools or any pamphlet approved by the Environmental Protection Agency (EPA) for the same purpose.

(25) “Risk assessment” means an on-site investigation to determine the existence, nature, severity, and location of a LBP hazard and an accompanying report explaining the results of the investigation and options for reducing LBP hazards.

(26) “Soil lead hazard” means 400 ppm of lead in child play areas or 1200 ppm in non-child play areas.

(27) “Target housing” means any housing constructed before 1978, except housing for the elderly or persons with disabilities or any housing with no bedrooms.

Stat. Auth.: ORS 670.310, 701.235 & 701.515

Stats. Implemented: ORS 701.505 - 701.520

Hist.: CCB 6-1996(Temp), f. & cert. ef. 11-26-96; Administrative Renumber from 812-007-0015, 5-19-97; CCB 1-1997, f. & cert. ef. 5-15-97; CCB 4-1997, f. & cert. ef. 11-3-97; CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 1-1999, f. 3-29-99, cert. ef. 4-1-99; CCB 7-2000, f. 6-29-00, cert. ef. 7-1-00; CCB 13-2006, f. 12-12-06, cert. ef. 1-1-07; CCB 2-2010, f. & cert. ef. 2-1-10; CCB 5-2010(Temp), f. & cert. ef. 3-11-10 thru 9-3-10; CCB 10-2010(Temp), f. & cert. ef. 6-1-10 thru 9-3-10; CCB 14-2010, f. 8-24-10, cert. ef. 9-1-10; CCB 12-2011, f. 9-29-11, cert. ef. 10-1-11

812-007-0100

Licenses Required for Lead-Based Paint Activities — Individuals

No individual shall offer to perform or perform LBP activities in target housing or child-occupied facilities without first receiving certification from OHA and a license from the board, unless such individual is exempt from the board’s licensing requirements. The following are individuals that perform LBP activities:

(1) Lead assessor;

(2) Lead inspector;

(3) Lead supervisor;

(4) Lead worker.

Stat. Auth.: ORS 670.310, 701.235 & 701.515

Stats. Implemented: ORS 701.510 & 701.515

Hist.: CCB 2-2010, f. & cert. ef. 2-1-10; CCB 12-2011, f. 9-29-11, cert. ef. 10-1-11

812-007-0110

Application and Eligibility Requirements for Lead-Based Paint Activity Licenses — Individuals

(1) An individual applying for a license as a lead assessor must submit the following:

(a) Completed application on a form provided by the board;

(b) The fee established in OAR 812-007-0160; and

(c) Proof that OHA certified the individual as a certified risk assessor.

(d) Copy of OHA photo identification badge.

(2) An individual applying for a license as a lead inspector must submit the following:

(a) Completed application on a form provided by the board;

(b) The fee established in OAR 812-007-0160; and

(c) Proof that OHA certified the individual as a certified inspector.

(d) Copy of OHA photo identification badge.

(3) An individual applying for a license as a lead supervisor must submit the following:

(a) Completed application on a form provided by the board;

(b) The fee established in OAR 812-007-0160; and

(c) Proof that OHA certified the individual as a certified supervisor.

(d) Copy of OHA photo identification badge.

(4) An individual applying for a license as a lead worker must submit the following:

(a) Completed application on a form provided by the board;

(b) The fee established in OAR 812-007-0160; and

(c) Proof that OHA certified the individual as a certified abatement worker.

(d) Copy of OHA photo identification badge.

Stat. Auth.: ORS 670.310, 701.235 & 701.515

Stats. Implemented: ORS 701.515

Hist.: CCB 2-2010, f. & cert. ef. 2-1-10; CCB 12-2011, f. 9-29-11, cert. ef. 10-1-11

812-007-0130

Renewal of Lead-Based Paint Activity Licenses — Individuals

Individuals licensed under these rules may renew their licenses by submitting the following:

(1) A properly completed application for license renewal on a form provided by the board;

(2) The fee established in OAR 812-007-0160; and

(3) Proof that the individual is certified by OHA.

Stat. Auth.: ORS 670.310, 701.235 & 701.515

Stats. Implemented: ORS 701.515

Hist.: CCB 2-2010, f. & cert. ef. 2-1-10; CCB 12-2011, f. 9-29-11, cert. ef. 10-1-11

812-007-0150

Denial, Suspension or Revocation of Lead-Based Paint Activity Licenses — Individuals

(1) The board may deny, suspend, or revoke an individual’s license on the following grounds:

(a) Obtaining OHA certification through misrepresentation of certification requirements such as education, training, professional registration, or experience;

(b) Gaining admission to or completing continuing education by misrepresenting initial or previous education;

(c) Obtaining a license through invalid documentation;

(d) Permitting the duplication or use of the license by another;

(e) Failing to comply with applicable work practice standards set forth in these rules and OAR 333-069-0070; or

(f) Being subject to a final administrative order or criminal conviction based on engaging in a prohibited act under rules of OHA or the board.

(2) Hearings on denial, suspension or revocation of a license shall be conducted as a contested case in accordance with ORS 183.310 to 183.470.

Stat. Auth.: ORS 670.310, 701.235 & 701.515

Stats. Implemented: ORS 701.515

Hist.: CCB 2-2010, f. & cert. ef. 2-1-10; CCB 12-2011, f. 9-29-11, cert. ef. 10-1-11

812-007-0200

Licenses Required for Lead-Based Paint Activities — Contractors

(1) No contractor shall offer to perform or perform LBP abatement in target housing or child-occupied facilities without first receiving certification from OHA and a license from the board as a lead abatement contractor, unless such contractor is exempt from the certification or licensing requirements.

(2) No contractor shall offer to perform or perform LBP inspection or risk assessment in target housing or child-occupied facilities without first receiving certification from OHA and a license from the board as a lead inspection contractor, unless such contractor is exempt from the certification or licensing requirements.

Stat. Auth.: ORS 670.310, 701.235 & 701.515

Stats. Implemented: ORS 701.510 & 701.515

Hist.: CCB 2-2010, f. & cert. ef. 2-1-10; CCB 12-2011, f. 9-29-11, cert. ef. 10-1-11

812-007-0210

Application and Eligibility Requirements for Lead-Based Paint Activity Licenses — Contractors

(1) A person applying for a license as a lead abatement contractor must submit the following:

(a) Completed application on a form provided by the board;

(b) Proof that the person is licensed by the board as a construction contractor;

(c) The fee established in OAR 812-007-0260;

(d) Proof that the applicant is owned by or employs one or more persons who are licensed lead supervisor(s); and

(e) Proof that OHA certified the person as qualified to perform abatement.

(2) A person applying for a license as a lead inspection contractor must submit the following:

(a) Completed application on a form provided by the board;

(b) Proof that the person is licensed by the board as a construction contractor;

(c) The fee established in OAR 812-007-0260;

(d) Proof that the applicant is owned by or employs one or more persons who are licensed lead inspector(s) or licensed lead risk assessor(s); and

(e) Proof that OHA certified the person as qualified to perform inspection or risk assessment.

Stat. Auth.: ORS 670.310, 701.235 & 701.515

Stats. Implemented: ORS 701.515

Hist.: CCB 2-2010, f. & cert. ef. 2-1-10; CCB 12-2011, f. 9-29-11, cert. ef. 10-1-11

812-007-0230

Renewal of Lead-Based Paint Activity Licenses — Contractors

Persons licensed under these rules may renew their licenses by submitting the following:

(1) A properly completed application for license renewal on a form provided by the board;

(2) Proof that the person is licensed by the board as a construction contractor;

(3) The fee established in OAR 812-007-0260; and

(4) Proof that the contractor is certified by OHA.

Stat. Auth.: ORS 670.310, 701.235 & 701.515

Stats. Implemented: ORS 701.515

Hist.: CCB 2-2010, f. & cert. ef. 2-1-10; CCB 12-2011, f. 9-29-11, cert. ef. 10-1-11

812-007-0250

Denial, Suspension or Revocation of License for Lead-Based Paint Activities — Contractors

(1) The board may deny, suspend, or revoke a license of a lead abatement contractor or a lead inspection contractor on the following grounds:

(a) Obtaining OHA certification through misrepresentation of certification requirements such as education, training, professional registration, or experience;

(b) Obtaining a license through invalid documentation;

(c) Performing work requiring a license without having a current valid original license identification card available at the job site for inspection;

(d) Performing work for which there is no current, appropriate certification issued by OHA;

(e) Permitting the duplication or use of the license by another;

(f) Failing to comply with applicable work practice standards set forth in these rules and OAR 333-069-0070;

(g) Failing to comply with local, state, or federal statutes or regulations including execution of a consent agreement in settlement of an enforcement action;

(h) Failing to maintain required records;

(i) Being subject to a final administrative order or criminal conviction based on engaging in a prohibited act under rules of the Department or the board;

(j) Failing to comply with a consent agreement in settlement of an enforcement action;

(k) For a lead abatement contractor, failing to have an owner or employee that is a licensed lead supervisor or lead worker; or

(l) For a lead inspection contractor, failing to have an owner or employee that is a licensed lead inspector or licensed lead assessor.

(2) Hearings on denial, suspension or revocation of a license shall be conducted as a contested case in accordance with ORS 183.310 to 183.470.

Stat. Auth.: ORS 670.310, 701.235 & 701.515

Stats. Implemented: ORS 701.510 & 701.515

Hist.: CCB 2-2010, f. & cert. ef. 2-1-10; CCB 12-2011, f. 9-29-11, cert. ef. 10-1-11

812-007-0300

License Required for Lead-Based Paint Renovation

No contractor shall offer to perform or perform renovation in target housing or child-occupied facilities without first receiving a certified LBP renovation contractor license from the board, unless such contractor is exempt from the board’s licensing requirements.

Stat. Auth.: ORS 670.310, 701.235 & 701.515

Stats. Implemented: ORS 701.510 & 701.515

Hist.: CCB 2-2010, f. & cert. ef. 2-1-10; CCB 12-2011, f. 9-29-11, cert. ef. 10-1-11

812-007-0350

Denial, Suspension or Revocation of Certified Lead-Based Paint Renovation Contractor License

(1) The board may deny, suspend, or revoke a license of a certified LBP renovation contractor on the following grounds:

(a) Obtaining a license through invalid documentation;

(b) Permitting the duplication or use of the license by another;

(c) Violating a rule of the board; or.

(d) Violating OAR 333-070-0090 (work practice standards), 333-070-0100(4) (renovator responsibilities), or 333-070-0110 (recordkeeping and reporting requirements.) For purposes of recordkeeping and reporting requirements, as used in OAR 333-070-0110, the terms “Oregon Health Authority” and “Authority” to the board.

(2) Hearings on denial, suspension or revocation of a license shall be conducted as a contested case in accordance with ORS 183.310 to 183.470.

Stat. Auth.: ORS 670.310, 701.235 & 701.515

Stats. Implemented: ORS 701.510 & 701.515

Hist.: CCB 2-2010, f. & cert. ef. 2-1-10; CCB 8-2010, f. & cert. ef. 4-28-10; CCB 12-2011, f. 9-29-11, cert. ef. 10-1-11

812-007-0370

Notification Requirements for Certified Lead-Based Paint Renovation Contractors — Renovation in Target Housing Dwelling Units

(1) No more than 60 days before beginning renovation in target housing dwelling units, the contractor must provide the owner of the dwelling unit with an Renovation Right Pamphlet and do one of the following:

(a) Obtain from the owner a written acknowledgment that the owner has received the Renovation Right Pamphlet; or

(b) Obtain a certificate of mailing of the Renovation Right Pamphlet dated at least 7 days before the start of the renovation.

(2) In addition to the requirements of (1), if the owner does not occupy the dwelling unit, the contractor must provide the Renovation Right Pamphlet to an adult occupant of the dwelling unit and comply with one of the following:

(a) Obtain, from the adult occupant, a written acknowledgment that the occupant has received the Renovation Right Pamphlet;

(b) Obtain a certificate of mailing of the Renovation Right Pamphlet at least 7 days before the start of the renovation; or

(c) Certify in writing that the contractor delivered the Renovation Right Pamphlet to the dwelling unit but was unsuccessful in obtaining a written acknowledgment from an adult occupant. Certification must include:

(A) The address of the dwelling unit undergoing renovation;

(B) The date and method of delivery of the Renovation Right Pamphlet;

(C) The name of the individual delivering the Renovation Right Pamphlet;

(D) A reason for lack of acknowledgment (e.g., occupant refuses to sign, no adult occupant available);

(E) The signature of an owner or employee of the contractor; and

(F) The date the contractor’s owner or employee signed the certification.

(3) The written acknowledgment required by paragraphs (1)(a) and (2)(a) must:

(a) Include a statement acknowledging receipt of the Renovation Right Pamphlet before the start of the renovation, the name of the recipient, the address undergoing renovation, the signature of the recipient and the date of signature;

(b) Be either a separate sheet of paper or part of a written contract or service agreement for the renovation; and

(c) Be written in the same language as the agreement for renovation or, in the case of non-owner target housing, the same language as the lease or rental agreement.

Stat. Auth.: ORS 670.310, 701.235 & 701.515

Stats. Implemented: ORS 701.510 & 701.515

Hist.: CCB 2-2010, f. & cert. ef. 2-1-10; CCB 12-2011, f. 9-29-11, cert. ef. 10-1-11

812-007-0372

Notification Requirements for Certified Lead-Based Paint Renovation Contractors — Renovation in Target Housing Common Areas

(1) No more than 60 days before beginning renovation in target housing common areas, the contractor must provide the owner of the target housing with an Renovation Right Pamphlet and do one of the following:

(a) Obtain from the owner a written acknowledgment that the owner has received the Renovation Right Pamphlet; or

(b) Obtain a certificate of mailing of the Renovation Right Pamphlet dated at least 7 days before the start of the renovation.

(2) In addition to the requirements of (1), the contractor must comply with one of the following:

(a) Notify, in writing, each affected dwelling unit occupant and make the Renovation Right Pamphlet available upon request before the start of renovation. The written notice should describe:

(A) The general nature and locations of the planned renovation activities;

(B) The expected starting and ending dates; and

(C) A statement of how the occupant can obtain the Renovation Right Pamphlet, at no charge, from the contractor performing the renovation.

(b) While the renovation is ongoing, post signs describing the general nature and locations of the renovation and the anticipated completion date. These signs must be posted in areas where they are likely to be seen by the occupants of all of the affected dwelling units. The signs must be accompanied by:

(A) A posted copy of the Renovation Right Pamphlet; or

(B) Information on how interested occupants can review or obtain a copy of the Renovation Right Pamphlet from the contractor at no cost.

(c) The posted signs must also include information on how interested occupants may review a copy of the records required by OAR 333-070-0110 or obtains a copy from the contractor at no cost to the occupants.

(3) The contractor must prepare, sign, and date a statement describing the steps taken to notify occupants of the intended renovation and to provide the Renovation Right Pamphlet.

(4) The written acknowledgment required by paragraphs (1)(a) and (2)(a) must:

(a) Include a statement acknowledging receipt of the Renovation Right Pamphlet before the start of the renovation, the name of the recipient, the address undergoing renovation, the signature of the recipient and the date of signature;

(b) Be either a separate sheet of paper or part of a written contract or service agreement for the renovation; and

(c) Be written in the same language as the agreement for renovation or, in the case of non-owner target housing, the same language as the lease or rental agreement.

(5) If the scope, location, or expected starting or ending dates of the planned renovation change and the contractor provided written notification in accordance with (1) or (2)(a), the contractor must provide further written notification to the owners and occupants including revised information on the ongoing or planned renovation. This subsequent notification must be provided before the contractor performing the renovation initiates work beyond that described in the original notice.

Stat. Auth.: ORS 670.310, 701.235 & 701.515

Stats. Implemented: ORS 701.510 & 701.515

Hist.: CCB 2-2010, f. & cert. ef. 2-1-10; CCB 12-2011, f. 9-29-11, cert. ef. 10-1-11

812-007-0374

Notification Requirements for Certified Lead-Based Paint Renovation Contractors — Renovation in Child-Occupied Facilities

(1) No more than 60 days before beginning renovation in any child-occupied facility, the contractor performing the renovation must provide the building owner with the Renovation Right Pamphlet and comply with one of the following:

(a) Obtain from the owner a written acknowledgment that the owner has received the Renovation Right Pamphlet; or

(b) Obtain a certificate of mailing of the Renovation Right Pamphlet dated at least 7 days before the start of the renovation.

(2) In addition to the requirements of (1), if the owner does not occupy the building, the contractor must provide the Renovation Right Pamphlet to an adult representative of the child-occupied facility and comply with one of the following:

(a) Obtain, from the adult representative, a written acknowledgment that the adult representative has received the Renovation Right Pamphlet;

(b) Obtain a certificate of mailing of the Renovation Right Pamphlet at least 7 days before the start of the renovation; or

(c) Certify in writing that the contractor delivered the Renovation Right Pamphlet to the dwelling unit but was unsuccessful in obtaining a written acknowledgment from an adult occupant. Certification must include:

(A) The address of the facility undergoing renovation;

(B) The date and method of delivery of the Renovation Right Pamphlet;

(C) The name of the person delivering the Renovation Right Pamphlet;

(D) A reason for lack of acknowledgment (e.g., occupant refuses to sign, no adult occupant available);

(E) The signature of an owner or employee of the contractor; and

(F) The date the contractor’s owner or employee signed the certification.

(3) In addition to the requirements of (1) and (2), the contractor must provide the parents and guardians of children using the child-occupied facility with the Renovation Right Pamphlet and information describing the general nature and locations of the renovation and the anticipated completion date. The contractor may comply by doing one of the following:

(a) Mail or hand-deliver the Renovation Right Pamphlet and the renovation information to each parent or guardian of a child using the child-occupied facility;

(b) While the renovation is ongoing, post signs describing the general nature and locations of the renovation and the anticipated completion date. These signs must be posted in areas where they are likely to be seen by the parents or guardians of the children frequenting the child-occupied facility. The signs must be accompanied by:

(A) A posted copy of the Renovation Right Pamphlet; or

(B) Information on how the parents or guardians can review or obtain a copy of the Renovation Right Pamphlet from the contractor at no cost.

(c) The posted signs must also include information on how interested parents or guardians of children frequenting the child-occupied facility may review a copy of the records required by OAR 333-070-0110 or obtains a copy from the contractor at no cost to the parents or guardians.

(4) The contractor must prepare, sign, and date a statement describing the steps performed to notify all parents and guardians of the intended renovation activities and to provide the pamphlet.

(5) The written acknowledgment required by paragraphs (1)(a) and (2)(a) must:

(a) Include a statement acknowledging receipt of the Renovation Right Pamphlet before the start of the renovation, the name of the recipient, the address undergoing renovation, the signature of the recipient and the date of signature;

(b) Be either a separate sheet of paper or part of a written contract or service agreement for the renovation; and

(c) Be written in the same language as the agreement for renovation.

Stat. Auth.: ORS 670.310, 701.235 & 701.515

Stats. Implemented: ORS 701.510 & 701.515

Hist.: CCB 2-2010, f. & cert. ef. 2-1-10; CCB 12-2011, f. 9-29-11, cert. ef. 10-1-11

 

Rule Caption: Residential Continuing Education (RCE) exemptions, and CCB CORE class requirements, and housekeeping.

Adm. Order No.: CCB 13-2011

Filed with Sec. of State: 9-29-2011

Certified to be Effective: 10-1-11

Notice Publication Date: 9-1-2011

Rules Adopted: 812-021-0021

Rules Amended: 812-021-0015, 812-021-0025, 812-021-0028, 812-021-0031, 812-021-0035

Rules Repealed: 812-021-0015(T), 812-021-0021(T), 812-021-0028(T)

Subject: • 812-021-0015 is amended. The CCB board determined that mandatory core requirements should be limited to (1) BEST, (2) building codes and (3) laws, regulations and business practices. Education on “green” or sustainable building practices should be treated as elective education. However, since some contractors have already completed the requirement in advance of renewing their licenses or obligated themselves to take such education, the board will continue to credit the education towards the mandatory core requirement provided that it is completed on or before September 30, 2011.

      This permanent rule also incorporates a (slightly modified) temporary rule, adopted July 1, 2011, to allow for building code courses that were approved by the Building Codes Division or the International Codes Council to qualify for the mandatory building code requirement, if completed by July 1, 2012. Thereafter, only CCB-approved courses will qualify.

      The rule also clarifies when contractor renews between October 1, 2011, and October 1, 2013, it may use core education obtained before the previous license period (10/1/2009–10/1/2011) provided that the education was obtained no earlier than July 1, 2009.

      • OAR 812-021-0021 is adopted to incorporate a (slightly modified) temporary rule adopted July 1, 2011, that exempts from BEST and building codes those contractors that are licensed plumbing or electrical contractors and exempts those contractors that have an owner or officer licensed as an architect or a professional engineer, regardless of whether the architect or engineer is acting within the scope of their license. (Those individuals are already exempt from ORS chapter 701 under ORS 701.010(8)(a) and (8)(b)). In addition, the amendment exempts from residential continuing education BEST and building codes for those contractors that do not “touch” a residential structure that is a “dwelling” or “outbuilding.” The rule amendment defines the terms “dwelling” and “outbuilding.” The rule amendment lists examples of contractors that are exempt, and those that are not. The rule amendment requires that contractors exempt from mandatory BEST and building code hours must complete an equivalent number of elective hours.

      • 812-021-0025 is amended because the agency will no longer approve providers to offer education on “green” or sustainable building practices for mandatory core continuing education. However, the rule extends the use of such courses, if offered by an approved provider, so long as the course is completed on or before September 30, 2011.

      • 812-021-0028 is amended because the agency will no longer approve providers to offer education on “green” or sustainable building practices for mandatory core continuing education. However, the rule extends the use of such courses, if offered by an approved provider, so long as the course is completed on or before September 30, 2011.

      • 812-021-0031 is amended because the agency will no longer approve providers to offer education on “green” or sustainable building practices for mandatory core continuing education. However, the rule extends the use of such courses, if offered by an approved provider, so long as the course is completed on or before September 30, 2011.

      • 812-021-0035 is a housekeeping amendment; to make section (3) the same as section (2).

Rules Coordinator: Catherine Dixon—(503) 934-2185

812-021-0015

Minimum Continuing Education Requirements — Continuing Education for Residential Contractors

(1) Residential contractors, other than residential limited contractors, shall have an owner, officer, RMI or employee, or a combination of those persons, who complete a minimum of 16 hours of continuing education every license period as described in sections (3) and (4).

(2) Residential limited contractors shall have an owner, officer, RMI or employee, or a combination of those persons, who complete:

(a) A minimum of eight hours of continuing education as described in subsection (3)(a), for license renewals on or after October 1, 2011, and before October 1, 2013;

(b) A minimum of eight hours of continuing education, for license renewals on or after October 1, 2013 as follows:

(A) Five core hours as described in subsection (4)(a); and

(B) Three elective hours as described in OAR 812-021-0019.

(3) For a residential contractor renewing on or after October 1, 2011, and before October 1, 2013, continuing education hours shall consist of the following:

(a) Eight core hours consisting of the following:

(A)Three hours of BEST offered by the agency or an approved provider;

(B) Two hours of education on one or more building codes offered by:

(i) A provider approved by the agency to offer courses in building codes; or

(ii) A provider offering a building codes course completed by the contractor on or before June 30, 2012, and approved by the Oregon Department of Consumer and Business Services, Building Codes Division, or the International Codes Council; and

(C) Three hours of education on laws, regulations, and business practices offered by the agency.

(b) For residential contractors renewing on or after October 1, 2011, and before October 1, 2013, education on “green” or sustainable building practices may satisfy the requirement for education on one or more building codes as required in paragraph (B) of subsection (a) provided that the contractor completes the education on “green” or sustainable building practices on or before September 30, 2011.

(c) Eight elective hours which may be satisfied by completing additional core hours or by completing other construction related courses or as otherwise set forth in OAR 812-021-0019.

(4) If a residential contractor renews its license on or after October 1, 2011, but before October 1, 2013, for that renewal period only, the contractor may include any core hours that it earned between July 1, 2009, and September 30, 2009.

(5) For a residential contractor renewing on or after October 1, 2013, continuing education hours shall consist of the following:

(a) Five core hours consisting of the following:

(A) Two hours of education on one or more building codes offered by a provider approved by the agency to offer courses in building codes; and

(B) Three hours of education on laws, regulations, and business practices offered by the agency.

(b) Eleven elective hours which may be satisfied by completing additional core hours or by completing other construction related courses or as otherwise set forth in OAR 812-021-0019.

(6) Courses shall be a minimum of one clock hour to qualify for one hour of continuing education credit.

(7) Credit shall not be given for a person repeating the same continuing education course during a two-year period.

(8) If, during the two years immediately preceding the expiration date of the license, a residential contractor served on active duty in the United States armed forces, including but not limited to mobilization or deployment, the continuing education requirement is waived for that two-year period. This exemption applies only if the residential contractor is a:

(a) Sole proprietor without employees;

(b) Sole owner of a corporation; or

(c) Sole member of a limited liability company.

Stat. Auth.: ORS 670.310, 701.126 & 701.235

Stats. Implemented: ORS 701.126

Hist.: CCB 5-2009, f. 6-25-09, cert. ef. 7-1-09; CCB 5-2011(Temp), f. & cert. ef. 7-1-11 thru 12-28-11; CCB 13-2011, f. 9-29-11, cert. ef. 10-1-11

812-021-0021

Exemptions from Continuing Education

(1) For purposes of this rule, “dwelling” means a shelter in which people live, such as buildings used exclusively for residential occupancy, including single-family, two-family (e.g. duplex) and multi-family (e.g. apartment) buildings.

(2) For purposes of this rule, “outbuilding” means a building accessory to a dwelling that is used by the persons who occupy the dwelling, including detached garages, shops, sheds and barns.

(3) The following persons are exempt from obtaining BEST education as required under OAR 812-021-0015(2) or (3)(a)(A):

(a) Contractors that are licensed as:

(A) Plumbing contractors under ORS 447.010 to 447.156; or

(B) Electrical contractors under ORS 479.630.

(b) Contractors that have an owner or officer who is licensed as:

(A) An architect under ORS 671.010 to 671.220, whether or not operating within the scope of that license; or

(B) A professional engineer under ORS 672.002 to 672.325, whether or not operating within the scope of that license.

(c) Unless provided otherwise, contractors that do not perform work on a residential structure that is a dwelling or an outbuilding, including but not limited to:

(A) Contractors that only perform tree pruning, tree and stump removal, or tree and limb guying;

(B) Contractors that only forge, weld or fabricate ornamental iron, so long as the contractor does not attach or install the ornamental iron in or on a residential structure that is a dwelling or outbuilding;

(d) The following contractors are not exempt under subsection (c) of this section:

(A) Contractors that perform excavation for residential construction;

(B) Contractors that perform grading for residential construction;

(C) Contractors that perform concrete work for residential construction; and

(D) Contractors that perform paving for residential construction.

(4) The following persons are exempt from obtaining education in building codes as required under OAR 812-021-0015(2), (3)(a)(B) or (4)(a)(A):

(a) Contractors that are licensed as:

(A) Plumbing contractors under ORS 447.010 to 447.156; or

(B) Electrical contractors under ORS 479.630.

(b) Contractors that have an owner or officer who is licensed as:

(A) An architect under ORS 671.010 to 671.220, whether or not operating within the scope of that license; or

(B) A professional engineer under ORS 672.002 to 672.325, whether or not operating within the scope of that license.

(c) Unless provided otherwise, contractors that do not perform work on a residential structure that is a dwelling or outbuilding, including but not limited to:

(A) Contractors that only perform tree pruning, tree and stump removal, or tree and limb guying;

(B) Contractors that only forge, weld or fabricate ornamental iron, so long as the contractor does not attach or install the ornamental iron in or on a residential structure that is a dwelling or an outbuilding;

(d) The following contractors are not exempt under subsection (c) of this section:

(A) Contractors that perform excavation for residential construction;

(B) Contractors that perform grading for residential construction;

(C) Contractors that perform concrete work for residential construction; and

(D) Contractors that perform paving for residential construction.

(5) Contractors that are exempt from the continuing education requirements under sections (3) or (4) of this rule must complete additional elective continuing education, as provided in OAR 812-021-0019, in an amount totaling the number of core hours that the contractor would otherwise be required to complete under OAR 812-021-0015 but for the exemption.

Stat. Auth.: ORS 670.310, 701.126 & 701.235

Stats. Implemented: ORS 701.126

Hist.: CCB 6-2011(Temp), f. & cert. ef. 7-1-11 thru 12-28-11; CCB 8-2011(Temp), f. & cert. ef. 9-2-11 thru 12-28-11; CCB 13-2011, f. 9-29-11, cert. ef. 10-1-11

812-021-0025

Provider Approval, Standards, Fees and Renewal for Core — Continuing Education for Residential Contractors

(1) The agency will review and approve providers offering core continuing education.

(2) Providers will apply for approval on a form prescribed by the agency. Providers may, but need not, apply for approval at the same time they apply for course approval.

(3) Providers seeking approval to offer training in BEST or building codes must submit the following to the agency:

(a) Name, address and contact information of the provider;

(b) Business entity type of the provider and, if applicable, the Corporation Division business registry number;

(c) Description of provider business plan;

(d) Description of the core subject area(s) provider intends to offer; and

(e) Such other information or documentation as the agency may request.

(4) Notwithstanding sections (1) through (3) of this rule, a provider offering education on “green” or sustainable building practices that obtained provider approval before January 1, 2011, may continue to offer courses qualifying for mandatory core continuing education until September 30, 2011.

(5) Providers must remit to the agency together with their application:

(a) A non-refundable fee of $2,000 if applying to offer BEST;

(b) A non-refundable fee of $500 if applying to offer building codes; or

(c) A non-refundable fee of $2,500 if applying to offer both BEST and building codes.

(6) To qualify for approval, providers must:

(a) Certify the programs offered meet the minimum standards and content objectives established by the Board;

(b) Employ or contract with educators who have at least two years work experience or two years of education, or any combination of both, in the subject that they instruct;

(c) Be capable of entering and transmitting electronic data to the agency;

(d) Describe a process for prompt resolution of complaints by registrants;

(e) Describe a process for cancellations and refunding registrant payments; and

(f) If applying to offer BEST, provide a surety bond in an amount of $20,000 obligating the surety to pay registrants to whom the provider owes money for cancellation or other refunds that the provider fails to pay. The bond must be in the form adopted by the board as the “Continuing Education Provider Surety Bond” dated December 1, 2009.

(7) Provider approval will be valid for two (2) years from the date the provider is approved by the agency.

(8) Providers must re-submit application and fees required under sections (3) and (5) of this rule for renewal of approval. Renewal of approval will be subject to the same requirements as initial approval.

Stat. Auth.: ORS 670.310, 701.126 & 701.235

Stats. Implemented: ORS 701.126

Hist.: CCB 5-2009, f. 6-25-09, cert. ef. 7-1-09; CCB 8-2009, f. 12-28-09, cert. ef. 1-1-10; CCB 14-2010, f. 8-24-10, cert. ef. 9-1-10; CCB 13-2011, f. 9-29-11, cert. ef. 10-1-11

812-021-0028

Course Approval, Standards, Fees and Renewal for Core — Continuing Education for Residential Contractors

(1) The agency will approve courses that provide training in BEST or building codes.

(2) Approved courses may be offered as an individual course or as part of a comprehensive curriculum.

(3) A provider seeking approval of its courses must submit the following:

(a) Course name, course description, objectives of the offered course, and number of hours of continuing education credit;

(b) A written description of the course educator’s credentials;

(c) Copies of the course materials provided to registrants as described in section (4)(b);

(d) Cost of the offered course(s) to registrant;

(e) For live classes and classes held in real-time:

(A) Anticipated date, time, place of the course; and

(B) Number of registrants that each course can accommodate;

(f) For self-study courses:

(A) Anticipated date when the course will first be offered;

(B) Description of provider’s procedures to answer student questions; and

(C) The length of time a student has to complete the course and receive credit; and

(g) A non-refundable fee of $50 per credit hour submitted for approval.

(4) To meet minimum standards for course approval, the provider must:

(a) Submit the course syllabus describing the course objectives and content on BEST or building codes, as appropriate;

(b) Submit a comprehensive course outline on BEST or building codes, as appropriate;

(c) Have materials for each registrant:

(A) Of sufficient explanation and quality to provide information about the subject of BEST or building codes, as appropriate;

(B) A course syllabus; and

(C) A statement that the provider is responsible for the content of the course.

(d) Have no attendance restrictions except for payment of money or membership in the provider organization.

(5) Notwithstanding sections (1) through (4) of this rule, a course on “green” or sustainable building practices that obtained approval before January 1, 2011, may continue to qualify for mandatory core continuing education if completed on or before September 30, 2011.

(6) Providers seeking to offer BEST must offer training substantially equivalent to criteria established by the agency.

(7) Except as provided in section (5) of this rule, course approval will be valid for two (2) years from the date the course is approved by the agency.

(8) Providers must re-submit application and fees under this section for renewal of approval. Renewal of approval will be subject to the same requirements as initial approval.

Stat. Auth.: ORS 670.310, 701.126 & 701.235

Stats. Implemented: ORS 701.126

Hist.: CCB 5-2009, f. 6-25-09, cert. ef. 7-1-09; CCB 5-2011(Temp), f. & cert. ef. 7-1-11 thru 12-28-11; CCB 13-2011, f. 9-29-11, cert. ef. 10-1-11

812-021-0031

Core Hours: Building Codes — Continuing Education for Residential Contractors

(1) Any provider approved by the agency in building codes may offer training in their approved subject area.

(2) Approved providers may charge contractors for building code training in an amount determined by the provider.

(3) Notwithstanding sections (1) and (2) of this rule, a provider approved by the agency before January 1, 2011 as qualified to offer training in “green” or sustainable building practices for mandatory core education may:

(a) Offer such training, so long as the course is completed on or before September 30, 2011; and

(b) Charge contractors for such training in an amount determined by the provider.

Stat. Auth.: ORS 670.310, 701.126 & 701.235

Stats. Implemented: ORS 701.126

Hist.: CCB 5-2009, f. 6-25-09, cert. ef. 7-1-09; CCB 13-2011, f. 9-29-11, cert. ef. 10-1-11

812-021-0035

Agency Tracking of Hours — Continuing Education for Residential Contractors

(1) The agency will track completion of core hours.

(2) The agency may notify contractors, in advance of their renewal dates, of the number and type of core hours left to be completed before renewal.

(3) The agency may notify contractors, in advance of their renewal dates, of the reported elective hours and the number left to be completed before renewal.

Stat. Auth.: ORS 670.310, 701.126 & 701.235

Stats. Implemented: ORS 701.126

Hist.: CCB 5-2009, f. 6-25-09, cert. ef. 7-1-09; CCB 13-2011, f. 9-29-11, cert. ef. 10-1-11

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.

2.) Copyright 2011 Oregon Secretary of State: Terms and Conditions of Use

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