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The Oregon Administrative Rules contain OARs filed through June 15, 2016
 
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LANDSCAPE CONTRACTORS BOARD

 

DIVISION 4

CLAIMS

808-004-0120

Liability of Landscape Contracting Business

A licensed landscape contracting business participating in a corporation wholly-owned by the landscape contracting business, or a limited liability partnership, limited liability company, joint venture, limited partnership or partnership, may be held liable for claim actions brought under ORS 671.690 to 671.710, whether or not the corporation, limited liability partnership, limited liability company, joint venture, limited partnership or partnership was licensed as required by ORS chapter 671.

Stat. Auth.: ORS 183.310 - 183.500, 670.310 & 671
Stats. Implemented: ORS 671.
Hist.: LCB 4-2002, f. & cert. ef. 12-4-02; LCB 3-2006, f. & cert. ef. 8-2-06; LCB 4-2007, f. 12-19-07, cert. ef. 1-1-08; LCB 3-2008, f. & cert. ef. 4-11-08

808-004-0160

Establishment of Co-Claimant

The agency may allow a person to become a co-claimant, with the claimant's permission and if the person otherwise qualifies as a claimant, even if the co-claimant did not sign the Statement of Claim form.

Stat. Auth.: ORS 183, 670.310 & 671.670
Stats. Implemented: ORS 183.455 & 671.703
Hist.: LCB 1-2000, f. & cert. ef. 2-1-00; LCB 6-2016, f. & cert. ef. 5-23-16

808-004-0195

Exhibits

If a party to a claim 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.

Stat. Auth.: ORS 36, 87, 183, 670, 671.670, HB 2279, Ch. 598, OL
Stats. Implemented: ORS 36, 87, 183, 671
Hist.: LCB 1-2005, f. & cert. ef. 2-15-05

808-004-0211

Address of Claimant and Respondent

(1) Initial notice of a contested case or arbitration directed to the last known address of record of a party to a claim shall be considered delivered when deposited in the United States mail and sent registered or certified or post office receipt secured.

(2) All other communication directed to the last known address of record of a party to a claim shall be considered delivered when deposited in the United States mail and sent by regular mail.

(3) 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 claim and until 90 days after the date the agency notifies the parties that the claim is closed.

Stat. Auth: ORS 670.310 & 671.670
Stats. Implemented ORS 671.603
Hist.: LCB 6-2004(Temp), f. & cert. ef. 12-15-04 thru 6-10-05; LCB 1-2005, f. & cert. ef. 2-15-05; LCB 9-2015, f. 12-22-15, cert. ef. 1-1-16; LCB 6-2016, f. & cert. ef. 5-23-16

808-004-0250

Exclusion of Certain Damages from Award

(1) Except as provided in section (2) of this rule and subject to OAR 808-008-0420, an order of the board or arbitration award for monetary damages in a claim, including but not limited to an order of the Board arising from a court judgment, award or decision by a court, arbitrator or other entity may not include an award for:

(a) Attorney fees;

(b) Court costs;

(c) Interest;

(d) Costs to pursue litigation or the claim;

(e) Service charges or fees; or

(f) Other damages not directly related to negligent or improper work under the contract or breach of the contract that is the basis of the claim.

(2) An order by the board or arbitration award for monetary damages that are payable from the respondent's bond required under ORS 671.690 may include an award for attorney fees, costs, interest or other costs as follows:

(a) An order or arbitration award in an owner claim may include interest expressly allowed as damages under a contract that is the basis of the claim.

(b) An order in a construction lien claim may include attorney fees, court costs, interest and service charges allowed under OAR 808-004-0530(4).

Stat. Auth.: ORS 670.310 & 671.670
Stats. Implemented: ORS 183.415 & 183.460
Hist.: LC 3, f. & ef. 2-7-77; LC 1-1981, f. & ef. 10-8-81; LC 1-1984, f. & ef. 7-17-84; Renumbered from 808-010-0045; LCB 1-1988, f. 1-26-88, cert. ef. 2-1-88; LCB 3-1991(Temp), f. & cert. ef. 12-3-91; LCB 1-1992, f.; LSCB 2-1995, f. 8-8-95, cert. ef. 8-15-95; LCB 1-2000, f. & cert. ef. 2-1-00; Renumbered from 808-004-0030; LCB 4-2002, f. & cert. ef. 12-4-02; LCB 1-2005, f. & cert. ef. 2-15-05; LCB 3-2006, f. & cert. ef. 8-2-06; LCB 6-2007, f. 12-24-07, cert. ef. 1-1-08; LCB 6-2016, f. & cert. ef. 5-23-16

808-004-0260

Order Dismissing a Claim

(1) If the agency dismisses a claim because the claimant did not allow the person against whom the claim was filed to be present at any on-site investigation made by the board, or because the claimant does not permit the person against whom the claim was filed to comply with recommendations made by the board through the mediation process, the dismissal of the claim is an order in other than a contested case.

(2) Before a claim is dismissed, the agency shall, in writing, provide the claimant an opportunity, to offer evidence that the basis for dismissal was due to excusable neglect. An order to dismiss a claim shall be made in writing and issued to the claimant and the person against whom the claim was filed.

(3) The agency may determine not to dismiss a claim closed under this rule if the claimant, within 30 days of the Board offering the claimant an opportunity to demonstrate excusable neglect, provides the board with evidence that the cause of the claimant’s failure to allow the person against whom the claim was filed to be present at any on-site investigation or failure to permit the person against whom the claim was filed to comply with recommendations made by the board through the mediation process was due to excusable neglect by the claimant.

Stat. Auth.: ORS 670.310 & 671.703
Stats. Implemented: ORS 183.480 & 671.703
Hist.: LCB 4-2002, f. & cert. ef. 12-4-02; LCB 6-2003, f. & cert. ef. 10-1-03; LCB 6-2016, f. & cert. ef. 5-23-16

Filing of Claims

808-004-0300

Filing Date of Claims

(1) A claim shall be deemed to have been filed when a Statement of Claim is received by the agency that:

(a) Is in substantial compliance with OAR 808-004-0340; and

(b) Contains information that is sufficient to identify the claimant and respondent.

(2) A claim form that does not fully comply with the requirement of OAR 808-004-0340 is subject to 808-004-0350

Stat. Auth.: ORS 183, 670.310 & 671.670
Stats. Implemented: ORS 671.700 & 671.703
Hist.: LC 3, f. & ef. 2-7-77; LC 1-1981, f. & ef. 10-8-81; LC 1-1984, f. & ef. 7-17-84; Renumbered from 808-010-0045; LCB 1-1988, f. 1-26-88, cert. ef. 2-1-88; LCB 3-1991(Temp), f. & cert. ef. 12-3-91; LCB 1-1992, f.; LSCB 2-1995, f. 8-8-95, cert. ef. 8-15-95; LCB 1-2000, f. & cert. ef. 2-1-00; Renumbered from 808-004-0030; LCB 5-2003, f. & cert. ef. 8-1-03; LCB 1-2005, f. & cert. ef. 2-15-05

808-004-0310

Notice Required by ORS 671.700

A Statement of Claim in compliance with OAR 808-004-0340 filed with the agency is notice of the claim for purposes of ORS 671.700.

Stat. Auth.: ORS 183, 670.310 & 671.670
Stats. Implemented: ORS 671.700
Hist.: LCB 1-2000, f. & cert. ef. 2-1-00; LCB 6-2016, f. & cert. ef. 5-23-16

808-004-0320

Jurisdictional Requirements

(1) A claim must be of a type described under ORS 671.690(2) & (3), OAR 808-002-0220 and ORS 671.695.

(2) A claim may be accepted for negligent or improper work for the following activities performed or contracted to be performed on or after January 1, 2012:

(a) Backflow assembly testing services provided by employees of the landscape contracting business who are certified under ORS 448.279; and

(b) The installation, repair or maintenance by the landscape contracting business of backflow assemblies for irrigation systems and ornamental water features as described in ORS 447.060; and

(c) The installation by the landscape contracting business of landscape irrigation control wiring and outdoor landscape lighting as described in ORS 479.940.

(3) The agency will only process a claim that is filed within the following time limitations:

(a) State tax and contribution claims must be filed within one year of the due date of the tax or contribution.

(b) Labor, material and equipment claims must be filed within one year of the delivery date of the labor, material or equipment.

(c) Negligent or improper work claims must be filed within one year following the date the work was completed.

(d) Breach of contract claims must be filed within one year of the contract date or the last date of work on the project, whichever is later.

(4)(a) A claim will be processed only against a licensed landscape contracting business.

(b) For a State tax and contribution claim, the landscape contracting business against which the claim is filed will be considered licensed if the tax and contribution liability arose while the business was licensed.

(c) For a material claim, the landscape contracting business against which the claim is filed will be considered licensed if one or more invoices involve material delivered while the landscaping business was actively licensed. Damages will be awarded only for material delivered within the period of time that the landscape contracting business was actively licensed.

(d) For any other claim, the landscape contracting business against which the claim is filed will be considered licensed if the landscape contracting business was actively licensed during all or part of the work period.

(5) A labor, material and equipment claim, negligent or improper work claim or breach of contract claim will be accepted only when one or more of the following relationships exist between the claimant and the licensed landscape contracting business:

(a) A direct contractual relationship based on a contract entered into by the claimant and the landscape contracting business, or their agents; or

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

(6) A claim by a person furnishing material, or renting or supplying equipment to a landscape contracting business may not include a claim for non-payment for tools sold to a landscape contracting business, for equipment sold to the landscape contracting business that is not incorporated into the job site, for interest or service charges on an account or for materials purchased as stock items.

(7) Claims will be accepted only for work performed within the boundaries of the State of Oregon or for materials or equipment supplied or rented for installation or use on property located within the boundaries of the State of Oregon.

(8)(a) Except as provided in subsection (b) of this section, the agency may refuse to accept a claim or any portion of a claim that includes an allegation of a breach of contract, negligent or improper work or any other act or omission within the scope of ORS 671.510 to 671.710 that is the same as an allegation contained in a claim previously filed by the same claimant against the same landscape contracting business.

(b) The agency may accept a claim that would otherwise be refused under subsection (a) of this section if the previously filed claim was:

(A) Withdrawn prior to the on-site meeting.

(B) Dismissed with an explicit provision allowing the subsequent filing of a claim containing the same allegations as the dismissed claim.

(c) Nothing in this section extends the time limitation for filing a claim under ORS 671.710.

Stat. Auth.: ORS 183, 670.310 & 671.670
Stats. Implemented: ORS 671.690, 671.695, 671.703 & 2011 OL Ch. 104
Hist.: LCB 1-1988, f. 1-26-88, cert. ef. 2-1-88; LCB 1-2000, f. & cert. ef. 2-1-00; Renumbered from 808-004-0020; LCB 4-2002, f. & cert. ef. 12-4-02; LCB 1-2004, f. 1-27-04, cert. ef. 2-1-04; LCB 6-2005, f. 12-30-05, cert. ef. 1-1-06; LCB 4-2007, f. 12-19-07, cert. ef. 1-1-08; LCB 17-2011, f. 12-29-11, cert. ef. 1-1-12; LCB 9-2015, f. 12-22-15, cert. ef. 1-1-16; LCB 6-2016, f. & cert. ef. 5-23-16

808-004-0340

Form of Claims

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

(2) The claimant must provide the following information with the Statement of claim, if applicable:

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

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

(c) The amount, if known at the time the Statement of Claim is filed, that the claimant alleges is due from the landscaping business after crediting payments, offsets, and counterclaims in favor of the landscaping business to which the claimant agrees;

(d) Identification of the type of claim as defined in OAR 808-002-0220;

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

(f) If the contract was in writing, a copy of the contract with attached material invoices, time sheets, or other relevant attached documents;

(g) Job site address with driving directions to the job site;

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

(i) Payments, offsets, and counterclaims of the landscaping business, if known, to which the claimant does not agree;

(j) A certification by the claimant that the Statement of Claim is true;

(k) A copy of any court judgment or arbitration award, including the original complaint and any answers or counter-suits related to the work that is the subject of the claim; and

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

(3) A claim by a subcontractor shall include a copy of each original invoice relating to the claim.

(4) An employee claim shall include copies of time cards or other evidence of the amount of compensation claimed.

(5) A material supplier or equipment claim shall include a copy of each original invoice relating to the claim and a recapitulation of the indebtedness showing the job site address, the date of each invoice, each invoice number, and each invoice amount. Claimant shall include documentation that claim is a minimum of 60 days old and two attempts to collect have been made.

(6) A claim involving negligent or improper work shall include a list of the alleged negligent or improper work.

(7) A claim involving a breach of contract shall describe the nature of the breach of contract.

(8) A construction lien claim must include evidence that the claimant paid the landscape contracting business as required in OAR 808-004-0530(1)(a), 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.

(9) The Statement of Claim form must be signed by the claimant or an agent of the claimant.

(10) A Statement of Claim that does not comply with the requirements of this rule is subject to OAR 808-004-0350.

Stat. Auth.: ORS 183, 670.310 & 671.670
Stats. Implemented: ORS 671.703
Hist.: LC 3, f. & ef. 2-7-77; LC 1-1981, f. & ef. 10-8-81; LC 1-1984, f. & ef. 7-17-84; Renumbered from 808-010-0040; LCB 1-1988, f. 1-26-88, cert. ef. 2-1-88; LSCB 2-1997, f. & cert. ef. 11-3-97; LCB 1-2000, f. & cert. ef. 2-1-00; Renumbered from 808-004-0010; LCB 4-2002, f. & cert. ef. 12-4-02; LCB 5-2003, f. & cert. ef. 8-1-03; LCB 3-2006, f. & cert. ef. 8-2-06; LCB 4-2007, f. 12-19-07, cert. ef. 1-1-08; LCB 6-2007, f. 12-24-07, cert. ef. 1-1-08

808-004-0350

Procedure if Information on Statement of Claim is Incomplete

The agency may refuse to accept a claim if:

(1) The Statement of Claim does not meet the requirements of OAR 808-004-0340; and

(2) The claimant fails to provide the missing information in response to a written request from the agency for the information within 30 days.

Stat. Auth.: ORS 670.310 & 671.670
Stats. Implemented: ORS 671.703
Hist.: LCB 5-2003, f. & cert. ef. 8-1-03; LCB 6-2016, f. & cert. ef. 5-23-16

Administrative Processing of Claims

808-004-0400

Initial Administrative Processing of Claims

(1) Upon receipt of a claim, the agency shall

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

(b) Verify that claimant has provided information required under OAR 808-004-0340 and request additional information from claimant if necessary:

(2) If the agency determines that the claim should be accepted based on the information submitted by the claimant, the agency shall:

(a) Furnish the landscape contracting business with a copy of the claim; and

(b) Request the landscape contracting business respond to the claim items.

(3) The agency may initiate an investigation to determine the validity of the claim. The investigation may include an on-site meeting.

Stat. Auth.: ORS 183, 670.310 & 671.670
Stats. Implemented: ORS 183.415, 183.460 & 671.703
Hist.: LC 3, f. & ef. 2-7-77; LC 1-1981, f. & ef. 10-8-81; LC 1-1984, f. & ef. 7-17-84; Renumbered from 808-010-0045; LCB 1-1988, f. 1-26-88, cert. ef. 2-1-88; LCB 3-1991(Temp), f. & cert. ef. 12-3-91; LCB 1-1992, f.; LSCB 2-1995, f. 8-8-95, cert. ef. 8-15-95; LCB 1-2000, f. & cert. ef. 2-1-00; Renumbered from 808-004-0030; LCB 5-2003, f. & cert. ef. 8-1-03; LCB 1-2004, f. 1-27-04, cert. ef. 2-1-04; LCB 4-2007, f. 12-19-07, cert. ef. 1-1-08; LCB 6-2016, f. & cert. ef. 5-23-16

808-004-0420

Processing Owner and Primary Contractor Claim Together

If a claim based on the same facts and issues is received at any time during the processing of a primary contractor claim or a homeowner claim, the two claims will be processed together.

Stat. Auth.: ORS 670.310 & ORS 671.670
Stats. Implemented: ORS 671.703
Hist.: LCB 5-2003, f. & cert. ef. 8-1-03

808-004-0440

Contracts With Mediation or Arbitration Agreements

If a claim is received that is based upon a contract that contains an agreement by the parties to mediate or arbitrate disputes arising out of the contract, the specific terms of the mediation or arbitration agreement supersede agency rules except as provided in this rule. Unless the contract requires mediation or arbitration by the agency, the agency will take the following action:

(1) The agency shall inform the claimant by written notice that the agency will not accept the claim unless it receives, within 60 days of the date of the notice:

(a) A written waiver of mediation or arbitration under the contract signed by the claimant and respondent;

(b) Documentation showing that the claimant or respondent initiated mediation under the contract to resolve the same facts and issues raised in the claim and the mediation failed; or

(c) Documentation showing the claimant or Respondent has already initiated mediation or arbitration under the contract.

(2) The agency may accept a claim, but will suspend processing of the claim if respondent or claimant has initiated mediation or arbitration under the contract, until arbitration or the mediation process is complete.

(3) The agency will not accept claims based on a contract that includes a requirement of binding arbitration unless the claimant provides a written waiver or arbitration signed by the claimant and respondent.

Stat. Auth.: ORS 183, 670.310 & 671.670
Stats. Implemented: ORS 671.703
Hist.: LCB 1-2000, f. & cert. ef. 2-1-00; LCB 4-2002, f. & cert. ef. 12-4-02; LCB 2-2003, f. 1-31-03, cert. ef. 2-1-03; LCB 1-2005, f. & cert. ef. 2-15-05; LCB 6-2016, f. & cert. ef. 5-23-16

808-004-0450

On-site Meeting and Attendance

(1) If the parties agree to agency mediation, the agency may schedule an on-site meeting among the parties for the purpose of discussion of a mediation settlement of a claim and investigation of the claim. The agency shall mail notice of the meeting no less than 14 days prior to the date scheduled for the meeting.

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

(a) The claimant must allow access to the property that is the subject of the claim.

(b) The claimant or an agent of the claimant must attend the meeting. An agent of the claimant must have knowledge of all claim items included in the claim and must have authority to enter into a mediation settlement of the claim. The agency may waive the requirement that an agent have authority to enter into a settlement of the claim if there is evidence that the respondent will not attend the on-site meeting.

(c) The claimant must allow the respondent to be present at the on-site meeting as required under ORS 671.703.

(d) The individual landscape construction professional whose phase of license is the basis for the landscape contracting business license and who supervised the project must attend the meeting as required by OAR 808-003-0018.

Stat. Auth.: ORS 670.310 & 671.670
Stats. Implemented: ORS 671.703
Hist.: LCB 4-2002, f. & cert. ef. 12-4-02; LCB 3-2006, f. & cert. ef. 8-2-06; LCB 4-2007, f. 12-19-07, cert. ef. 1-1-08; LCB 6-2016, f. & cert. ef. 5-23-16

808-004-0480

Resolution by Settlement and Construction of Settlement Agreement

(1) The agency may present a mediation settlement proposal to the claimant and respondent for their consideration and agreement at an on-site meeting conducted under OAR 808-004-0450.

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

(3) Mediation settlement agreements may be considered by the agency to be substituted contracts and damages may be based on the settlement.

(4) If at any time during the processing of the claim, the claimant accepts a promissory note from the respondent or other compromise as settlement of the claim, the agency may consider the agreement to be a substituted contract, and base the continued processing of the claim on the substituted contract.

Stat. Auth.: ORS 183, 670.310 & 671.670
Stats. Implemented: ORS 183.415, 183.460 & 671.703
Hist.: LC 3, f. & ef. 2-7-77; LC 1-1981, f. & ef. 10-8-81; LC 1-1984, f. & ef. 7-17-84; Renumbered from 808-010-0045; LCB 1-1988, f. 1-26-88, cert. ef. 2-1-88; LCB 3-1991(Temp), f. & cert. ef. 12-3-91; LCB 1-1992, f.; LSCB 2-1995, f. 8-8-95, cert. ef. 8-15-95; LCB 1-2000, f. & cert. ef. 2-1-00; Renumbered from 808-004-0030; LCB 4-2002, f. & cert. ef. 12-4-02; LCB 6-2016, f. & cert. ef. 5-23-16

808-004-0500

Closure of Claim After Settlement

If claimant and respondent agree to a mediation settlement, the following apply:

(1) The agency shall notify the claimant that the claimant must notify the agency in writing whether the terms of the settlement have been fulfilled within 30 days of the date shown on the mediation settlement for completion of the terms of the settlement.

(2) If the claimant notifies the agency that the terms of the mediation settlement agreement have been fulfilled, or fails within 30 days to notify the agency that terms of the mediation settlement have not been fulfilled, the agency shall consider the claim satisfied.

(3) If the claimant notifies the agency within 30 days of the date shown on the mediation settlement for completion that the terms of the mediation settlement have not been fulfilled, the agency shall make inquiry, investigation, or both into what is alleged not to have been fulfilled.

(a) If the agency agrees that those terms have not been fulfilled, the agency may provide the respondent an opportunity to fulfill the terms and forward the claim to the board for issuance of an order for award of damages if the terms remain unfulfilled for a period of time determined by the agency, or may forward the claim directly to the board for issuance of an award for damages.

(b) If the agency determines those terms have been fulfilled, the agency may consider the claim satisfied.

Stat. Auth.: ORS 183, 670.310 & 671.670
Stats. Implemented: ORS 183.415, 183.460 & 671.703
Hist.: LC 3, f. & ef. 2-7-77; LC 1-1981, f. & ef. 10-8-81; LC 1-1984, f. & ef. 7-17-84; Renumbered from 808-010-0045; LCB 1-1988, f. 1-26-88, cert. ef. 2-1-88; LCB 3-1991(Temp), f. & cert. ef. 12-3-91; LCB 1-1992, f.; LSCB 2-1995, f. 8-8-95, cert. ef. 8-15-95; LCB 1-2000, f. & cert. ef. 2-1-00; Renumbered from 808-004-0030; LCB 2-2000(Temp), f. 5-31-00, cert. ef. 5-31-00 thru 11-26-00; LCB 3-2000, f. & cert. ef. 7-26-00; LCB 4-2002, f. & cert. ef. 12-4-02; LCB 6-2016, f. & cert. ef. 5-23-16

808-004-0510

Court Judgments and Other Authorized Entity Determinations

(1) As used in this rule "a court judgment, arbitration award or other entity determination" means a judgment, award or determination by a court, arbitrator or other entity, as that phrase is defined in Division 2 of these rules.

(2) The agency will not accept a claim based on a court judgment, arbitration award or other entity determination, but such determination may constitute a landscaping contracting business debt under ORS 671.607, and be the basis for suspension of a license issued by the board.

(3) The agency may accept a claim based on facts and issues within the jurisdiction of the agency not previously determined by a court, arbitrator or other entity, even if those facts and issues are related to landscape contracting work that was subject to a determination previously made by a court, arbitrator or other entity.

Stat. Auth.: ORS 183.325 - 183.410, 670.310 & 671.670
Stats. Implemented: ORS 671.703
Hist.: LCB 1-1988, f. 1-26-88, cert. ef. 2-1-88; LCB 3-1991 (Temp), f. & cert. ef. 12-3-91; LCB 1-1992, f. 1-27-92, cert. ef. 2-1-92; LSCB 2-1995, f. 8-8-95, cert. ef. 8-15-95; LCB 1-2000, f. & cert. ef. 2-1-00; Renumbered from 808-004-0040; LCB 2-2000(Temp), f. 5-31-00, cert. ef. 5-31-00 thru 11-26-00; LCB 3-2000, f. & cert. ef. 7-26-00; LCB 4-2002, f. & cert. ef. 12-4-02; Renumbered from 808-004-0200; LCB 1-2005, f. & cert. ef. 2-15-05; LCB 6-2016, f. & cert. ef. 5-23-16

808-004-0520

Processing of Claim Submitted to Court, Arbitrator or Other Entity

(1) "Court, arbitrator or other entity" has the meaning given that phrase in division 2 of this chapter.

(2) The agency may suspend processing a claim if:

(a) Either party transfers a claim to a court, arbitrator or other entity, to address the same facts and issues contained in the statement of claim filed against respondent, including but not limited to suits based on breach of contract, negligence or incompetence, damages, a complaint for declaratory judgment, another complaint that arises from the contract or work that is the subject of the claim, and suits to foreclose a lien involving the same contract at issue in the claim; or

(b) The agency requires the claimant to submit the claim to a court of competent jurisdiction because the agency determined that a court is the appropriate forum for the adjudication of the claim due to the nature or complexity of the claim.

(3) If the agency suspends processing a claim under subsection (2) of this rule, the agency shall notify the claimant on the date it suspends processing the claim that processing has been suspended.

(4) Within 30 days of the date of final action by the court, arbitrator or other entity, the claimant shall deliver to the agency a certified copy of the final judgment; a copy of the arbitration award, or a copy of the decision by another entity, as well as copy of the complaint or other pleadings on which the judgment, award or decision was based. The agency shall accept a final judgment, award or decision of the court, arbitrator or other entity as the final determination of the merits of the claim, with respect to any and all issues from the claim addressed by the final judgment, award or decision. If the final judgment, award or decision includes a requirement for the Respondent to pay the claimant, such award, judgment or decisions qualifies as a landscaping debt. If all issues of the claim are addressed by the final judgment, award or decision, the claim shall be closed.

(5) If any issues from the claim are not addressed by the final judgment, award, or decision, the agency may resume processing the claim, with respect to those issues from the claim that are not addressed by the final judgment, award, or decision.

Stat. Auth.: ORS 183, 670.310 & 671.670
Stats. Implemented: ORS 183.415, 183.460, 671.703 & 671.575
Hist.: LC 3, f. & ef. 2-7-77; LC 1-1981, f. & ef. 10-8-81; LC 1-1984, f. & ef. 7-17-84; Renumbered from 808-010-0045; LCB 1-1988, f. 1-26-88, cert. ef. 2-1-88; LCB 3-1991(Temp), f. & cert. ef. 12-3-91; LCB 1-1992, f.; LSCB 2-1995, f. 8-8-95, cert. ef. 8-15-95; LCB 1-2000, f. & cert. ef. 2-1-00; Renumbered from 808-004-0030; LCB 4-2002, f. & cert. ef. 12-4-02; LCB 6-2003, f. & cert. ef. 10-1-03; LCB 1-2005, f. & cert. ef. 2-15-05; LCB 3-2006, f. & cert. ef. 8-2-06; LCB 6-2016, f. & cert. ef. 5-23-16

808-004-0530

Construction Lien Claims

(1) For a construction lien claim to be accepted, the following conditions must be met:

(a) The claimant must have paid the respondent in full for the landscape job or paid in full for the materials supplied or equipment rented and the landscape contracting business must have failed to pay the subcontractor or material or equipment supplier, thereby causing the subcontractor or material or equipment supplier to file a lien against the claimant's property;

(b) The lienor must have delivered to the claimant a "Notice of the Right to Lien" as specified in ORS 87.018, 87.021 and 87.025; and

(c) The lienor must have filed the lien with the recording officer of the county in accordance with ORS 87.035.

(2) If the respondent contends that payment has been made to the lienor, either directly or by the return of goods constituting a credit to the respondent's account, the respondent may subpoena the lienor and pertinent records to an arbitration or contested case hearing on a claim processed under this rule in accordance with OAR 808-009-0095.

(3) If at any time before the issuance of an order the agency determines that the lien is unenforceable or invalid, the agency must dismiss the claim. Before the proposed order of dismissal is issued by the agency, the lienor must be notified, by certified mail, of the lienor's opportunity to become a party, as that term is defined in ORS 183.310, to the claim and to request arbitration or a hearing.

(4) A construction lien claim may include attorney fees, court costs, interest and service charges if these items are included as part of the lien or incurred as costs to discharge the lien. An award to the claim for attorney fees incurred to discharge the lien must not exceed the amount of the lien or $3,000, whichever is less.

(5) The agency may reduce the amount awarded to the claimant by:

(a) Any amount the claimant owes the landscape contracting business; and

(b) Any amount included for tools sold to a landscape contracting business, for equipment sold to the landscape contracting business that is not incorporated into the job site, for interest or service charges on an account or for materials purchased as stock items.

(6) If a claimant files two or more claims against the respondent relating to work performed under the same contract and if the claimant has not paid the respondent the full amount of the contract, the amount awarded on each claim will be reduced on a pro rata basis. A proposed or final order may not be issued on a claim until all claims involving the claimant and the respondent filed within the same 90-day period are ready for an order.

(7) If an action is filed to enforce a lien that is the subject of a claim, the agency must send notice to the claimant that:

(a) The agency will hold the claim open for 60 days from the date of the notice to allow the claimant to file a counter-suit or complaint in the foreclosure action; and

(b) The agency may close the claim under section (10) of this rule if the agency does not receive evidence within 60 days from the date of the notice that the claimant filed a complaint as a counter-suit or complaint in the court.

(8) Upon timely receipt of evidence that the claimant filed a counter-suit or complaint in the court under paragraph (7)(b) of this rule, the agency must suspend processing the claim and send notice to the claimant of the requirements of OAR 808-004-0520(3). Further processing of the claim must be under OAR 808-004-0520.

(9) Time limitations in this rule supersede conflicting time limitations in OAR 808-004-0520.

(10) The agency may close a construction lien claim under OAR 808-004-0260 if the agency does not receive evidence that the claimant obtained a stay or filed a counter-suit or complaint within the time limitation in the notice required under section (7) of this rule.

(11) If a construction lien claim involves the same facts and issues as any other open claim, the agency must process the claims together.

Stat. Auth.: ORS 670.310 & 671.670
Stats. Implemented: CH. 149 OL 2007
Hist.: LCB 6-2007, f. 12-24-07, cert. ef. 1-1-08; LCB 6-2016, f. & cert. ef. 5-23-16

808-004-0540

Establishing Monetary Damages, Issuing Proposed Default Order or Referring Claim for Hearing

If the claimant seeks monetary damages or the agency so requests, the claimant shall file a declaration of damages stating the amount the claimant alleges the respondent owes the claimant, limited to claim items listed in the Statement of Claim. The agency may require the claimant to submit, in support of the amount alleged:

(1) One or more estimates from licensed landscape contracting businesses for the cost of correction of each of the claim items; or

(2) Other basis for monetary award.

Stat. Auth.: ORS 183, 670.310, 671.670
Stats. Implemented: ORS 183.415, 183.460, 183.470, 671.703
Hist.: LC 3, f. & ef. 2-7-77; LC 1-1981, f. & ef. 10-8-81; LC 1-1984, f. & ef. 7-17-84; Renumbered from 808-010-0045; LCB 1-1988, f. 1-26-88, cert. ef. 2-1-88; LCB 3-1991(Temp), f. & cert. ef. 12-3-91; LCB 1-1992, f.; LSCB 2-1995, f. 8-8-95, cert. ef. 8-15-95; LCB 1-2000, f. & cert. ef. 2-1-00; Renumbered from 808-004-0030; LCB 2-2000(Temp), f. 5-31-00, cert. ef. 5-31-00 thru 11-26-00; LCB 3-2000, f. & cert. ef. 7-26-00; LCB 4-2002, f. & cert. ef. 12-4-02; LCB 6-2003, f. & cert. ef. 10-1-03; LCB 3-2006, f. & cert. ef. 8-2-06; LCB 4-2007, f. 12-19-07, cert. ef. 1-1-08; LCB 6-2016, f. & cert. ef. 5-23-16

808-004-0580 [Renumbered to 808-004-0470]

808-004-0590

Referral of Claim to Arbitrator or Contested Case Hearing or Removal to Court

(1) If a hearing on a claim is conducted by the Office of Administrative Hearings:

(a) The hearing shall be held as an arbitration under the rules in Division 8 of this chapter, unless a party requests that the hearing be held as a contested case hearing under subsection (b) of this section or files the dispute in court under section (2) of this rule.

(b) Except as provided in sections (2) and (6) of this rule, the hearing shall be held as a contested case hearing under OAR 137-003-0501 to 137-003-0700 and the rules in division 9 of this chapter if:

(A) A party to the claim makes a timely written request under section (4) of this rule that the claim be heard as a contested case; or

(B) The agency requests under sections (4) and (6) of this rule that the claim be heard as a contested case.

(2) Subject to section (3) of this rule, a claim shall be decided in court if:

(a) The claimant files a complaint in court that alleges the elements of the claim in the complaint; or

(b) The respondent files a complaint in court for damages, a complaint for declaratory judgment, or another complaint that arises from the contract or work that is the subject of the claim and that allows the claimant to file a response alleging the elements of the claim.; or

(c) The Board requires the claimant to move the claim to a court of competent jurisdiction, due the nature and complexity of the claim.

(3) A copy of a complaint filed under section (2) of this rule must be received by the agency or the Office of Administrative Hearings no later than 30 days after the Office of Administrative Hearings sends the first notice that an arbitration or contested case hearing is scheduled. Failure to deliver the copy of the complaint within the time limitation in this rule constitutes waiver of the right to have the claim decided in court and consent to the hearing being held as binding arbitration or a contested case hearing under section (1) of this rule. Delivery shall be either to the agency or the Office of Administrative Hearings as required by OAR 137-003-0520 or 808-010-0085, whichever is applicable.

(4) A request that a claim be heard as a contested case filed under section (1)(b) of this rule is subject to the following:

(a) The request by a party or the agency must be in writing and received by the agency or the Office of Administrative Hearings no later than 30 days after the Office of Administrative Hearings sends the first notice that an arbitration is scheduled. Delivery shall be either to the agency or the Office of Administrative Hearings as required by OAR 137-003-0520 or 808-008-0085, whichever is applicable.

(b) A referral of a claim to the Office of Administrative Hearings by the agency for a contested case hearing shall be deemed a request that the claim be heard as a contested case under section (1)(b) of this rule.

(c) A party or the agency may not withdraw a request made under this section without the written consent of the agency and all parties to the claim.

(5) Failure to deliver a timely written request for a contested case hearing under sections (1)(b) and (4) of this rule or a copy of a filed complaint under sections(2) and (3) of this rule constitutes consent to the hearing on the claim being held as binding arbitration through the Office of Administrative Hearings under section (1)(a) of this rule.

(6) The agency may request under section (1)(b)(B) of this rule that a hearing be held as a contested case hearing if:

(a) The agency's jurisdiction to decide the claim under ORS 671.690 to 671.710 is at issue; or

(b) The agency determines that the agency has an interest in interpreting the rules and statutes that apply to the claim.

Stat. Auth: ORS 670.310 & 671.703
Stats. Implemented: ORS 671.703
Hist. LCB 2-2003, f. 1-31-03, cert. ef. 2-1-03; LCB 6-2003, f. & cert. ef. 10-1-03; LCB 6-2016, f. & cert. ef. 5-23-16

808-004-0600

Payment From Bond, Irrevocable Letter of Credit or Other Security

(1) The board may notify the surety company of claims pending.

(2) The board shall notify the surety company or deposit holder of claims ready for payment. This notice shall constitute notice that payment is due on the claim. Claims are ready for payment when all of the following have occurred:

(a) An arbitration award has been issued and is ready for payment under OAR 808-008-0440 after 30 days have elapsed to allow the respondent time to pay the award or file exceptions with the circuit court or a final order has been issued in a contested case and 30 days have elapsed to allow the respondent time to pay the order;

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

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

(d) All other claims filed against the licensee under ORS 671.510 to 671.710 within the same or prior 90-day period under ORS 671.710 have either been resolved, been closed or have reached the same state of processing as the subject claim.

(3) Claims related to jobs that are satisfied from a surety bond, irrevocable letter of credit or deposit shall be paid as follows:

(a) If a surety bond, irrevocable letter of credit or deposit was in effect when the work period began, payment shall be made from that surety bond or deposit.

(b) If no surety bond, irrevocable letter of credit or deposit was in effect when the work period began, but a surety bond, irrevocable letter of credit or deposit subsequently became effective during the work period of the contract, payment must be made from the first surety bond, irrevocable letter of credit or deposit to become effective after the beginning of the work period.

(4) If during a landscape job the job charges increase to an amount that requires an increase in the bonding amount for a landscape contracting business, any claims filed on that specific landscape job and any other landscape jobs contracted for by this business after the effective date of the increased bond amount will have access to the higher bond amount. Landscape jobs that were contracted for before the effective date of a bond increase will only have access to the bond amount in effect at the time of entering into the contract for that job unless the job charges on that contracted job increase to an amount requiring an equal to or greater bond amount for the landscape contracting business.

(5) The full penal sum of the bond, irrevocable letter of credit or deposit shall be available to pay claims under this rule, notwithstanding that the penal sum may exceed the bond amount required under ORS 671.690.

(6) 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 claimant and payment is due from the surety bonds, irrevocable letters of credit or deposits of the respondents, payment shall be made in equal amounts from each bond, irrevocable letter of credit or deposit subject to payment. If one or more of the bonds, irrevocable letters of credit or deposits is or becomes exhausted, payment shall be made from the remaining bond, irrevocable letter of credit or deposit or in equal amounts from the remaining bond, irrevocable letter of credit s or deposits. If one of the respondents liable on the claim makes payment on the claim, that payment shall reduce the payments required from that respondent's bond, irrevocable letter of credit or deposit under this section by an amount equal to the payment made by the respondent.

(7) A surety company may not condition payment of a claim on the execution of a release by claimant.

(8) An expired or terminated status of the license of the respondent does not excuse payment by a surety company required under this rule.

Stat. Auth.: ORS 183, 670.310 & 671.670
Stats. Implemented: ORS 671.690 & 671.710
Hist.: LCB 1-1988, f. 1-26-88, cert. ef. 2-1-88;LCB 3-1999, f. & cert. ef. 11-17-99, Renumbered from 808-004-0060; LCB 4-2002, f. & cert. ef. 12-4-02; LCB 5-2003, f. & cert. ef. 8-1-03; LCB 6-2005, f. 12-30-05, cert. ef. 1-1-06; LCB 3-2006, f. & cert. ef. 8-2-06; LCB 4-2007, f. 12-19-07, cert. ef. 1-1-08

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