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CONSTRUCTION CONTRACTORS BOARD
DIVISION 4
COMPLAINTS
For Complaints
Filed Before July 1, 2011
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
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
812-004-0160
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: ORS 183.455, 701.140 & 701.145
Hist.: CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 8-2001, f. 12-12-01, cert. ef. 1-1-02; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07
812-004-0180
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 812-004-0260 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 812-004-0260.
Stat. Auth.: ORS 670.310, 701.235 & 701.145
Stats. Implemented: ORS 183.415, 183.460 & 701.145
Hist.: CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 2-2001, f. & cert. ef. 4-6-01; CCB 7-2005, f. 12-7-05, cert. ef. 1-1-06; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07
812-004-0195
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: ORS 183.450 & 183.460
Hist.: 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
812-004-0210
Address of Complainant and Respondent
(1) Initial notice of a contested case or of arbitration conducted by the agency 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 registered or certified or post office receipt secured.
(2) All other communication directed to the last know address of record of a party to a complaint is 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 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: ORS 701.117
Hist.: CCB 11-2003, f. 12-5-03, cert. ef. 1-1-04; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07; CCB 9-2008, f. 6-11-08, cert. ef. 7-1-08
812-004-0240
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: ORS 183.415, 183.460, 701.085 (2005), 701.068, 701.088, 701.145 & 701.150
Hist.: CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; 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 7-2007, f. 12-13-07, cert. ef. 1-1-08; CCB 9-2008, f. 6-11-08, cert. ef. 7-1-08
812-004-0250
Award of Complaint-Processing Fee, Attorney Fees, Interest and Other Costs
(1) Except as provided in section (2) of this rule and subject to OAR 812-010-0420, an order or arbitration award of the board awarding monetary damages in a complaint that are payable from respondent’s bond, letter of credit or cash deposit required under ORS 701.085 (2005), 701.068 or 701.088, including, but not limited to an order of the board arising from a 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 complaint;
(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 complaint.
(2) An order or arbitration award by the board awarding monetary damages that are payable from respondent’s bond, letter of credit or cash deposit required under ORS 701.085 (2005), 701.068 or 701.088 may include an award for attorney fees, costs, interest or other costs as follows:
(a) An order in a construction lien complaint may include attorney fees, court costs, interest and service charges allowed under OAR 812-004-0530(5).
(b) An order or arbitration award in an owner complaint may include interest expressly allowed as damages under a contract that is the basis of the complaint.
(c) An order or arbitration award awarding monetary damages or issued under OAR 812-004-0540(6) may include an award of a complaint processing fee paid by the complainant under OAR 812-004-0110.
(d) An order or arbitration award may include attorney fees, court costs, other costs and interest included in an order or award of a court, arbitrator or other entity that are related to the portion of the order or award of the court, arbitrator or other entity that is within the jurisdiction of the board if the order or award of the court, arbitrator or other entity arises from litigation, arbitration or other proceedings authorized by law or the parties to effect a resolution to the dispute:
(A) That was initiated by the respondent; or
(B) That the agency required the complainant to initiate under ORS 701.145.
(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: ORS 183.415, 183.460, 701.068, 701.088, 701.145, 701.146
Hist.: CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 2-2001, f. & cert. ef. 4-6-01; CCB 8-2001, f. 12-12-01, cert. ef. 1-1-02; CCB 7-2003, f. & cert. ef. 8-8-03; 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 8-2004, f. & cert. ef. 10-1-04; CCB 3-2005, f. & cert. ef. 8-24-05; 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 7-2007, f. 12-13-07, cert. ef. 1-1-08; CCB 9-2008, f. 6-11-08, cert. ef. 7-1-08; CCB 12-2010, f. 6-24-10, cert. ef. 7-1-10
812-004-0260
Order 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 was not filed within the time allowed under ORS 701.143;
(c) The complainant failed to pay the complaint processing fee as required under OAR 812-004-0400(1)(f);
(d) The complaint contains a mediation or arbitration agreement as provided in OAR 812-004-0440;
(e) The complainant does not comply with the on-site meeting requirements as provided in OAR 812-004-0450;
(f) The complainant and respondent settle the complaint as provided in OAR 812-004-0500;
(g) The complainant fails to provide documents to the agency as required by OAR 812-004-0520; or
(h) The agency does not timely receive evidence of a stay or counter-suit on a construction lien complaint, as provided in OAR 812-004-0530(11).
(2) The agency may close a complaint under section (1)(a) of this rule only if it complies with the following:
(a) The agency must include notice in its request to the complainant that failure to act as requested may result in closure of the complaint and that closure of the complaint will prevent access to the bond, letter of credit or cash deposit.
(b) The agency may not close the complaint sooner than 14 days after giving the notice required in subsection (2)(a) of this rule.
(c) The agency must notify the parties to the complaint that the complaint is closed and cite the statutes and rules under which the order may be appealed.
(3) The agency may reopen a complaint closed under section (1)(a) of this rule if the record of the complaint contains evidence that shows that the reason the complainant did not act as requested by the agency was due to excusable neglect by the complainant. The agency may reopen the complaint:
(a) In response to a motion for reconsideration; or
(b) On the agency’s own initiative under OAR 137-004-0080 after receiving evidence supporting reconsideration of the order closing the complaint.
(4) Except as provided in section (5), the agency’s determination to close a complaint is an order in other than a contested case.
(5) At the agency’s discretion, the agency may refer a complaint to the Office of Administrative Hearings for a contested case hearing on whether closure of the complaint under this rule is proper.
(6) An order to close a complaint is subject to judicial review under ORS 183.484.
(7) A party must file a motion for reconsideration of an order closing a complaint under this rule before seeking judicial review of the order.
Stat. Auth.: ORS 670.310 & 701.235
Stats. Implemented: ORS 183.480, 701.140, 701.145 & 701.146
Hist.: CCB 2-2001, f. & cert. ef. 4-6-01; CCB 6-2001, f. & cert. ef. 9-27-01; CCB 5-2002, f. 5-28-02, cert. ef. 6-1-02; CCB 7-2003, f. & cert. ef. 8-8-03; 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 7-2007, f. 12-13-07, cert. ef. 1-1-08; CCB 10-2008, f. 6-30-08, cert. ef. 7-1-08; CCB 14-2010, f. 8-24-10, cert. ef. 9-1-10
Filing of Complaints
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
812-004-0350
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 812-004-0260.
Stat. Auth.: ORS 670.310 & 701.235
Stats. Implemented: ORS 701.139, 701.140, 701.143, 701.145 & 701.146
Hist.: CCB 2-2003, f. & cert. ef. 3-4-03; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07
812-004-0360
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, 701.140, 701.145 & 701.235
Stats. Implemented: ORS 701.140 & 701.145
Hist.: CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 10-2002, f. & cert. ef. 11-20-02; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07
Administrative Processing of Complaint
812-004-0400
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 812-004-0340 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;
(d) If the agency makes a preliminary determination that it has jurisdiction over the complaint and the agency does not waive the complaint processing fee required under OAR 812-004-0110, the agency must request payment of the complaint processing fee. Except as provided in section (2) of this rule, the agency may suspend processing of the complaint until complainant pays this fee.
(e) Except as provided in subsection (g), if the agency determines that the complaint should be dismissed based on the information submitted by complainant, the agency must issue a proposed order to dismiss under OAR 812-004-0550.
(f) If the complainant requests a hearing on the proposed order of dismissal and the agency does not waive the complaint processing fee required under OAR 812-004-0110, the agency must request payment of the complaint processing fee and may not transmit the complaint to the Office of Administrative Hearings for a hearing until the fee is paid.
(g) If the agency determines that the complaint should be closed for lack of jurisdiction due to failure to file the complaint within the time allowed under ORS 701.143, the agency will issue an order under OAR 812-004-0260 closing the complaint.
(h) If the complainant does not pay the fee required under OAR 812-004-0110 within 30 days of written notification that the fee is due, the agency may close the complaint. The request for payment and closure must comply with OAR 812-004-0260. The agency may extend the time for payment of the fee upon a showing of good cause by the complainant.
(2) The agency may initiate an investigation to determine the validity of the complaint. The investigation may include an investigation conducted at an on-site meeting. At the agency’s discretion, the agency may investigate a complaint even though the fee required under OAR 812-004-0110 has not been paid if the agency believes the public will benefit from continuing to investigate the complaint.
Stat. Auth.: ORS 670.310 & 701.235
Stats. Implemented: ORS 183.415, 183.460, 701.133, 701.140, 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 4-2003, f. & cert. ef. 6-3-03; CCB 11-2003, f. 12-5-03, cert. ef. 1-1-04; 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 12-2010, f. 6-24-10, cert. ef. 7-1-10; CCB 14-2010, f. 8-24-10, cert. ef. 9-1-10
812-004-0420
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, 701.145 & 701.235
Stats. Implemented: ORS 183.415, 183.460, 701.140 & 701.145
Hist.: CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 7-2005, f. 12-7-05, cert. ef. 1-1-06; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07
812-004-0440
Contracts with Arbitration Agreements
(1) If a complaint is based on 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 set forth in ORS 701.180. Unless the contract requires mediation or arbitration by the agency, the agency must take the following action:
(a) The agency must inform the complainant by written notice that complies with the requirements of OAR 812-004-0260 that the agency will close the complaint unless the agency receives within 30 days of the date of the notice:
(A) A written waiver of mediation or arbitration under the contract signed by the complainant; or
(B) Evidence that the complainant or respondent initiated mediation or arbitration under the contract to resolve the same facts and issues raised in the complaint.
(b) If the agency does not receive the written waiver or evidence of initiation of mediation or arbitration required under subsection (1)(a) of this rule from the complainant within 30 days from the date of the written notice described in subsection (1)(a) of this rule, the agency may close the complaint under OAR 812-004-0260. The agency may not close the complaint under section (1) of this rule if the respondent initiates mediation or arbitration under the contract before the expiration of the 30-day period for providing the waiver or evidence that mediation or arbitration was initiated.
(c) The agency must inform the respondent by written notice that:
(A) If the respondent wants the issues in the complaint mediated or arbitrated under the contract, respondent must initiate the mediation or arbitration process under the contract 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 the respondent initiated mediation or arbitration under the contract.
(B) If the respondent does not initiate mediation or arbitration and submit evidence within the time provided in paragraph (1)(c)(A) of this subsection, the respondent waives the right to mediation or arbitration under the contract;
(C) The agency will continue to process the complaint until the agency receives the evidence required under paragraphs (1)(c)(A) and (B) of this subsection; and
(D) If the respondent submits timely evidence that the respondent began mediation or arbitration within the time allowed under ORS 701.180, the agency will suspend processing of the complaint pending the outcome of the mediation or arbitration under the contract.
(d) If mediation or arbitration under the contract is properly commenced under this section (1) of this rule, the agency must suspend processing the complaint until the mediation or arbitration is complete.
(2) If a complaint is based on a contract that contains an agreement by the parties to mediate and arbitrate disputes arising out of the contract, the complaint must be processed as required under section (1) of this rule, except that the respondent will be deemed to have commenced mediation and arbitration within the time allowed under ORS 701.180 if:
(a) The respondent commences mediation within the time allowed under ORS 701.180; and
(b) If the complaint is not resolved in mediation, the respondent submits to arbitration within 30 days of the completion of mediation, unless the parties to the complaint mutually agree on a different schedule.
(3) 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 701.180, a respondent receives notice of a complaint when the agency sends the respondent the notice described under subsection (1)(c) of this rule.
(4) Nothing in this rule prevents the parties from mutually agreeing to have the agency arbitrate the dispute, rather than process the complaint as a contested case.
Stat. Auth.: ORS 670.310 & 701.235
Stats. Implemented: ORS 701.145 & 701.180
Hist.: 1BB 6-1980, f. & ef. 11-4-80; 1BB 1-1982, f. 3-31-82, ef. 4-1-82; 1BB 4-1982, f. & ef. 10-7-82; 1BB 1-1983, f. & ef. 3-1-83; Renumbered from 812-011-0053; 1BB 3-1984, f. & ef. 5-11-84; 1BB 2-1985(Temp), f. & ef. 3-5-85; 1BB 3-1985, f. & ef. 4-25-85; BB 2-1987, f. & ef. 7-2-87; BB 3-1987, f. 12-30-87, ef. 1-1-88; Renumbered from 812-004-0015; CCB 1-1989, f. & cert. ef. 11-1-89; CCB 2-1990, f. 5-17-90, cert. ef. 6-1-90; CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98, Renumbered from 812-004-0042; CCB 2-2001, f. & cert. ef. 4-6-01; CCB 8-2001, f. 12-12-01, cert. ef. 1-1-02; 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 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
812-004-0450
On-site Meeting and Attendance of the Complainant
(1) The agency may schedule one or more on-site meetings among the parties for the purpose of discussion of a settlement of a complaint and investigation of the complaint under ORS 701.145. The agency must mail notice of a 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 812-004-0260.
(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. The agency may waive the requirement that an agent have authority to enter into a settlement of the complaint if there is evidence that the respondent will not attend the on-site meeting.
(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 under OAR 812-004-0260.
Stat. Auth.: ORS 670.310, 701.145 & 701.235
Stats. Implemented: ORS 701.140 & 701.145
Hist.: CCB 2-2001, f. & cert. ef. 4-6-01; CCB 8-2001, f. 12-12-01, cert. ef. 1-1-02; CCB 7-2005, f. 12-7-05, cert. ef. 1-1-06; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07
812-004-0460
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, 701.145 & 701.235
Stats. Implemented: ORS 183.415, 183.460, 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 7-2005, f. 12-7-05, cert. ef. 1-1-06; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07
812-004-0470
Challenge to Investigation Report
The complainant or respondent may challenge and offer evidence to disprove the agency’s investigation report, if any, at an arbitration or contested case hearing.
Stat. Auth.: ORS 670.310, 701.235
Stats. Implemented: ORS 183.415, 183.460, 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; Renumbered from 812-004-0580; CCB 5-2002, f. 5-28-02, cert. ef. 6-1-02; 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 9-2008, f. 6-11-08, cert. ef. 7-1-08
812-004-0480
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 an on-site meeting 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.
(3) 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 complaint, the complainant accepts a promissory note from the respondent or other compromise as settlement of the complaint, the agency may consider the agreement to be a substituted contract, and base the continued processing of the complaint on the substituted contract.
Stat. Auth.: ORS 670.310, 701.145 & 701.235
Stats. Implemented: ORS 183.415, 183.460, 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 2-2001, f. & cert. ef. 4-6-01; CCB 8-2001, f. 12-12-01, cert. ef. 1-1-02; CCB 7-2005, f. 12-7-05, cert. ef. 1-1-06; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07
812-004-0500
Closure of Complaint After Settlement
If the complainant and respondent agree to a settlement, the following apply:
(1) The agency must notify the complainant that the complainant must notify the agency in writing whether the terms of the settlement have been fulfilled within 30 days from the date shown on the settlement for completion of the terms of the settlement. This notice must comply with the requirements of OAR 812-004-0260.
(2) If the complainant notifies the agency that the terms of the settlement agreement have been fulfilled, the agency must close the complaint.
(3) If the complainant does not notify the agency as required under section (1) of this rule, the agency may close the complaint under OAR 812-004-0260.
Stat. Auth.: ORS 670.310, & 701.235
Stats. Implemented: ORS 701.145
Hist.: CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 1-2000(Temp), f. 1-20-00, cert. ef. 1-24-00 thru 7-22-00; CCB 3-2000(Temp), f. 3-10-00, cert. ef. 3-10-00 thru 7-22-00; CCB 4-2000, f. & cert. ef. 5-2-00; CCB 2-2001, f. & cert. ef. 4-6-01; 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 5-2007, f. 6-28-07, cert. ef. 7-1-07
812-004-0510
Court Judgments, Arbitration Awards and Other 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.
(2) A court judgment, arbitration award or other entity determination may constitute the basis for a complaint if a Breach of Contract Complaint is filed under OAR 812-004-0300 and 812-004-0340 within the time limit in ORS 701.143 and all or a portion of the judgment is within the jurisdiction of the board.
(3) Facts and issues within the jurisdiction of the Board previously determined by a court, arbitrator or other entity will not be relitigated unless a party shows there was not a full and fair opportunity to be heard in the prior proceeding. A party asserting a prior determination must specify the facts and issues involved and provide a copy of appropriate parts of the record of the prior proceeding.
(4) A complaint based on a court judgment, arbitration award or other entity determination must be processed under OAR 812-004-0520. An award of damages on the complaint based on a court judgment, arbitration award or other entity determination may be limited under 812-004-0250.
(5) This rule does not apply to a complaint filed and processed under ORS 701.146.
Stat. Auth.: ORS 670.310 & 701.235
Stats. Implemented: ORS 183.415, 183.470, 701.143, 701.145 & 701.146
Hist.: 1BB 1-1982, f. 3-31-82, ef. 4-1-82; 1BB 1-1983, f. & ef. 3-1-83; Renumbered from 812-011-0054; 1BB 3-1983, f. 10-5-83, ef. 10-15-83; 1BB 3-1984, f. & ef. 5-11-84; BB 3-1987, f. 12-30-87, ef. 1-1-88; Renumbered from 812-004-0020; CCB 1-1989, f. & cert. ef. 11-1-89; CCB 2-1990, f. 5-17-90, cert. ef. 6-1-90; CCB 4-1990, f. 10-30-90, cert. ef. 11-1-90; CCB 2-1992, f. & cert. ef. 4-15-92; CCB 2-1994, f. 12-29-94, cert. ef. 1-1-95; CCB 4-1997, f. & cert. ef. 11-3-97; CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98, Renumbered from 812-004-0044; CCB 1-2000(Temp), f. 1-20-00, cert. ef. 1-24-00 thru 7-22-00; CCB 3-2000(Temp), f. & cert. ef. 3-10-00 thru 7-22-00; CCB 4-2000, f. & cert. ef. 5-2-00; CCB 2-2001, f. & cert. ef. 4-6-01CCB 8-2001, f. 12-12-01, cert. ef. 1-1-02; Renumbered from 812-004-0200; CCB 8-2004, f. & cert. ef. 10-1-04; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07
812-004-0520
Processing of Complaint 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 complaint if:
(a) The respondent submits a complaint against the complainant to a court, arbitrator or other entity that relates to same facts and issues contained in the complaint filed against the respondent, including but not limited to a breach of contract complaint or a suit to foreclose a lien involving the same contract at issue in the complaint;
(b) The complainant submits a complaint against respondent to a court, arbitrator or other entity that relates to same facts and issues contained in the complaint filed against respondent; or
(c) The agency requires the complainant to submit the complaint to a court because the agency determined that a court is the appropriate forum for the adjudication of the complaint because of the nature or complexity of the complaint.
(d) 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.
(3) If the agency suspends processing a complaint under section (2) of this rule, the agency must notify the complainant on the date it suspends processing the complaint that processing has been suspended. The following provisions apply to the agency and the complainant if processing is suspended:
(a) The notice of suspension of processing must include notice of the requirements contained in subsections (3)(b) and (d) of this rule and must comply with the requirements of OAR 812-004-0260.
(b) 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 action before the court, arbitrator or other entity or with regard to the notice of defect.
(c) The agency may, at any time, demand from the complainant a written report describing the current status of the action before the court, arbitrator or other entity or with regard to the notice of defect. The demand must be in writing and must comply with the requirements of OAR 812-004-0260. The complainant must deliver a written response to the agency within 30 days from the date the agency mails the demand letter.
(d) Within 30 days from the date of final action by the court, arbitrator or other entity, the complainant must deliver to the agency a certified copy of the final judgment; a copy of the arbitration award or decision by another entity and a copy of the complaint or other pleadings on which the judgment, award or decision is based.
(e) If the complainant complies with subsections (3)(b), (c) and (d) of this rule, the agency may resume processing the complaint. If the complainant does not comply with subsections (3)(b), (c) or (d) of this rule, the agency may close the complaint under OAR 812-004-0260.
(4) If the agency suspends processing a complaint under subsection (2)(a) of this rule, the following provisions apply in addition to the provisions in section (3) of this rule:
(a) The agency must notify the complainant that the complainant must file the complaint as a counter-suit, complaint or counter-claim in the court, arbitration or other proceedings and submit evidence, including a copy of the counter-suit, complaint or counter-claim, to the agency that the complainant has done so within 30 days from mailing of the notice. The notice must comply with the requirements of OAR 812-004-0260.
(b) If the complainant does not submit the evidence as required under subsection (4)(a) of this rule, the agency may close the complaint under OAR 812-004-0260.
(5) If the agency suspends processing a complaint under subsection (2)(c) of this rule, the following provisions apply in addition to the provisions in section (3) of this rule:
(a) The agency must notify the complainant, in a notice that complies with the requirements of OAR 812-004-0260, that agency has suspended processing the complaint and that the complainant must:
(A) File the complaint as a complaint in a court of competent jurisdiction within 90 days from notice that the agency has suspended processing the complaint; and
(B) Submit evidence, including a copy of the complaint, to the agency that the complainant complied with paragraph (5)(a)(A) of this rule within 21 days of filing the complaint.
(b) If the complainant does not submit the evidence as required under subsection (5)(a) of this rule, the agency may close the complaint under OAR 812-004-0260.
(6) If the agency resumes processing a complaint under section (3) of this rule:
(a) The agency must accept a final judgment, award or decision of the court, arbitrator or other entity as the final determination of the merits of the complaint.
(b) Based on the judgment, award or decision, the agency must issue a proposed default order to pay damages or to dismiss or refer the complaint to the Office of Administrative Hearings for arbitration or a contested case hearing. The following apply to proceedings under subsection (6)(b) of this rule:
(A) The provisions of OAR 812-004-0560 and 812-004-0590 apply to a proposed default order or a referral to the Office of Administrative Hearings.
(B) A proposed default order to pay damages issued under section (6) of this rule must include a statement of the portion of the final judgment, award or decision of the court, arbitrator or other entity that the agency finds is within the jurisdiction of the agency.
(C) If the agency refers the complaint to the Office of Administrative Hearings for arbitration or a contested case hearing, the arbitrator or administrative law judge must determine the portion of the final judgment, award or decision, if any, that is within the jurisdiction of the agency.
(7) At its discretion and with the agreement of the complainant and respondent, the agency may hold an on-site meeting under OAR 812-004-0450 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: ORS 183.415, 183.460, 701.133, 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 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 8-2004, f. & cert. ef. 10-1-04; CCB 3-2005, f. & cert. ef. 8-24-05; 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 9-2008, f. 6-11-08, cert. ef. 7-1-08
812-004-0530
Construction Lien Complaints
(1) Upon acceptance of a construction lien complaint, the agency must send a copy of the complaint to the respondent and must initiate an investigation to determine the validity of the complaint.
(2) For a construction lien complaint to be valid, the following conditions must be met:
(a) The complainant must have paid the respondent for work performed or materials supplied or equipment rented subject to ORS chapter 701 and the primary contractor 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 complainant's property;
(b) The lienor must have delivered to the complainant 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.
(3) 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 complaint processed under this rule.
(4) 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 complaint. Before such dismissal, 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 complaint and to request arbitration or a hearing.
(5)(a) A construction lien complaint may include attorney fees, court costs, interest and service charges if these items are included as part of the construction lien or incurred as costs to discharge the lien. An award to the complainant for attorney fees incurred to discharge the lien must not exceed the amount of the lien.
(b) A construction lien complaint may not include excess interest paid as a result of the inability of the complainant to refinance at a lower interest rate due to the existence of the lien.
(6) The agency may reduce the amount awarded to the complainant by:
(a) Any amount the complainant owes the primary contractor; and
(b) Any amount included for tools or equipment not fabricated into the structure.
(7) If a complainant files two or more complaints against the respondent relating to work performed under the same contract and if the complainant has not paid the respondent the full amount of the contract, the amount awarded on each complaint will be reduced on a pro rata basis. A proposed or final order may not be issued on a complaint until all complaints involving the complainant and the respondent filed within the same 90-day period are ready for an order.
(8) If an action is filed to enforce a lien that is the subject of a complaint, the agency must send notice to the complainant that:
(a) The complainant has the right to request a stay of the proceedings until the agency's processing of the complaint is complete;
(b) The agency will hold the complaint open for 60 days from the date of the notice to allow the complainant to obtain a stay or to file a counter-suit or complaint in the foreclosure action; and
(c) The agency may close the complaint under section (11) of this rule if the agency does not receive evidence within 60 days from the date of the notice:
(A) That the complainant obtained a stay; or
(B) That the complainant filed the complaint as a counter-suit or complaint in the court.
(9)(a) Upon timely receipt of evidence that the complainant obtained a stay, the agency will resume processing the complaint.
(b) Upon timely receipt of evidence that the complainant filed a counter-suit or complaint in the court under paragraph (8)(c)(B) of this rule, the agency must suspend processing the complaint and send notice to the complainant of the requirements of OAR 812-004-0520(3). Further processing of the complaint must be under 812-004-0520.
(10) Time limitations in this rule supersede conflicting time limitations in OAR 812-004-0520.
(11) The agency may close a construction lien complaint under OAR 812-004-0260 if the agency does not receive evidence that the complainant obtained a stay or filed a counter-suit or complaint required under subsection (8)(c) of this rule within the time limitation in the notice required under section (8) of this rule.
(12) 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: ORS 87.057 87.058 & 701.145
Hist.: 1BB 6-1980, f. & ef. 11-4-80; 1BB 1-1981, f. & ef. 3-11-81; 1BB 1-1982, f. 3-31-82, ef. 4-1-82; 1BB 1-1983, f. & ef. 3-1-83; Renumbered from 812-011-0069; 1BB 1-1985(Temp), f. & ef. 2-7-85; 1BB 3-1985, f. & ef. 4-25-85; BB 3-1987, f. 12-30-87, ef. 1-1-88; CCB 1-1989, f. & cert. ef. 11-1-89; CCB 1-1993, f. & cert. ef. 2-1-93; 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, Renumbered from 812-004-0046; 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; Renumbered from 812-004-0220; CCB 5-2002, f. 5-28-02, cert. ef. 6-1-02; CCB 7-2002, f. 6-26-02 cert. ef. 7-1-02; 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
812-004-0535
Elements of Complaint That Must Be Proved
The following provisions apply to OAR 812-004-0540(5) and (6), 812-004-0550(2), 812-009-0100 and 812-009-0120:
(1) Except as provided in section (3) of this rule, in order for the agency to award damages to the complainant the record of the complaint must contain evidence that persuades the agency, arbitrator or administrative law judge that:
(a) The complainant suffered damages;
(b) The respondent caused those damages by acts or omissions within the scope of ORS 701.140; and
(c) The monetary value of those damages is substantiated on the record.
(2) The agency must dismiss the complaint if the evidence in the record of the complaint does not persuade the agency, arbitrator or administrative law judge of the existence of the facts described in section (1) of this rule.
(3) Notwithstanding the presence of evidence described in section (1) of this rule, a complaint for damages must be dismissed if the record of the complaint contains evidence that persuades the agency, arbitrator or administrative law judge that the complainant is not entitled to recover the damages. Evidence that the complainant may not be entitled to recover all or part of the damages alleged includes, but is not limited to a valid release of liability or a valid limitation of damages.
Stat. Auth.: ORS 670.310 & 701.235
Stats. Implemented: ORS 701.133, 701.139, 701.140, 701.143, 701.145 & 701.146
Hist.: 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 2-2004, f. 2-27-04, cert. ef. 3-1-04; 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
812-004-0537
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 and the Office of Administrative Hearings shall 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 or an Administrative Law Judge of the Office of Administrative Hearings may apply a standard different than the NASCLA standard if a party shows, by a preponderance of the evidence, that:
(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: ORS 701
Hist.: CCB 15-2010, f. 10-27-10, cert. ef. 11-1-10
812-004-0540
Establishing Monetary Damages and Issuing Proposed Default Order or Referral for Hearing
(1) A complainant may seek monetary damages if the agency has not closed the complaint and:
(a) The complainant disagrees with the resolution recommended by the agency;
(b) The respondent cannot or will not comply with the recommended resolution; or
(c) The parties signed a settlement agreement but, through no fault of the complainant, the respondent failed to satisfy one or more terms of the settlement agreement, and the complainant so advises the agency in writing within 30 days from the date the settlement agreement was to have been completed.
(2) If the complainant seeks monetary damages or the agency so requests, the complainant must file a statement of damages stating the amount the complainant alleges the respondent owes the complainant, limited to complaint items listed in the Breach of Contract Complaint and those complaint items added up to and through any initial on-site meeting. The agency may require the complainant to submit, in support of the amount alleged:
(a) One or more estimates from licensed contractors for the cost to correct the complaint items; or
(b) Other bases for a monetary award.
(3) If the agency does not hold an on-site meeting, the agency may issue a proposed default order or refer the complaint for an arbitration or contested case hearing under section (4) of this rule after each party to the complaint has had an opportunity to provide evidence supporting its position with regard to the complaint. The agency may require that the complainant file a statement of damages and supporting evidence described under section (2) of this rule, except that the statement of damages must be limited to complaint items listed in the Breach of Contract Complaint.
(4) After the agency receives documents required under sections (2) or (3) of this rule, the agency may:
(a) Issue a proposed default order proposing dismissal of the complaint under OAR 812-004-0550(2) or payment of an amount by the respondent to the complainant; or
(b) Refer the complaint to the Office of Administrative Hearings for an arbitration or contested case hearing to determine the validity of the complaint and whether the amount of damages alleged, or some lesser amount is proper.
(5)(a) The agency may issue a proposed default order that the respondent pay damages to the complainant only if the record of the complaint supports an award of damages under OAR 812-004-0535.
(b) The agency may issue a proposed default order that is not described in subsections (5)(a) or (6)(a) of this rule only if the record of the complaint contains evidence that persuades the agency of the existence of facts necessary to support the order.
(6)(a) If the record of a complaint supports an award of damages to the complainant under OAR 812-004-0535 and the respondent pays the complainant the amount of those damages after the complainant submits to the agency the complaint processing fee required under OAR 812-004-0110, the agency may issue a proposed default order proposing that the respondent reimburse the complainant the amount of the processing fee paid.
(b) Subsection (6)(a) of this rule does not apply if the respondent paid damages to the complainant to satisfy a written settlement agreement that the complainant signed.
(c) Before issuing a proposed default order under subsection (6)(a) of this rule, the agency must notify the respondent of the agency’s intent to issue the proposed order and allow the respondent 30 days to submit written evidence that the respondent reimbursed the complaint processing fee to the complainant.
(7) The provisions of OAR 812-004-0560 apply to a proposed default order or a referral to the Office of Administrative Hearings issued under this rule.
Stat. Auth.: ORS 670.310 & 701.235
Stats. Implemented: ORS 183.415, 183.460, 183.470, 701.133 & 701.145
Hist.: CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; 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 2-2001, f. & cert. ef. 4-6-01; CCB 5-2002, f. 5-28-02, cert. ef. 6-1-02; CCB 10-2002, f. & cert. ef. 11-20-02; Hist.: CCB 2-2003, f. & cert. ef. 3-4-03; CCB 7-2003, f. & cert. ef. 8-8-03; CCB 2-2004, f. 2-27-04, cert. ef. 3-1-04; CCB 9-2004, f. & cert. ef. 12-10-04; CCB 3-2005, f. & cert. ef. 8-24-05; 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 9-2008, f. 6-11-08, cert. ef. 7-1-08
812-004-0550
Proposed Default Order to Dismiss, Other Resolution of Complaint by Proposed Default Order
(1) The agency may issue a proposed default order proposing dismissal of a complaint if the evidence in the complaint record persuades the agency that one of the following grounds for dismissal exists:
(a) The complaint is not the type of complaint that the agency has jurisdiction to determine under ORS 701.140.
(b) The complainant did not permit the respondent to comply with agency recommendations under ORS 701.145(3)(d).
(c) The complaint must be dismissed for lack of jurisdiction under OAR 812-004-0320(4) or (5).
(d) The respondent breached a contract or performed work negligently or improperly, but the monetary value of damages sustained by the complainant is less than an amount due to the respondent from the complainant under the terms of the contract.
(e) The complainant contends that the respondent did not fulfill the terms of a settlement that resolved the complaint but the agency finds that the respondent fulfilled the respondent’s obligation under the settlement agreement.
(2) The agency may issue a proposed default order proposing dismissal of a complaint if the agency investigates the complaint and finds that the record of the complaint supports dismissal under OAR 812-004-0535.
(3) If the complainant makes a timely request for a hearing after the agency issued a proposed default order under section (1) or (2) of this rule, the agency may:
(a) Refer the complaint for an arbitration or contested case hearing solely to determine whether the dismissal was proper; or
(b) Require that the complainant file a statement of damages stating an amount the complainant alleges the respondent owes the complainant and refer the complaint for arbitration or a contested case hearing to determine if the complaint should be dismissed and if not, the validity of the complaint and whether the amount alleged, or some lesser amount is proper.
(4) The provisions of OAR 812-004-0560 apply to a proposed default order or a referral to the Office of Administrative Hearings issued under this rule.
Stat. Auth.: ORS 670.310 & 701.235
Stats. Implemented: ORS 183.415, 183.460, 183.470, 701.133 & 701.145
Hist.: CCB 1-2000(Temp), f. 1-20-00, cert. ef. 1-24-00 thru 7-22-00; CCB 3-2000(Temp), f. 3-10-00, cert. ef. 3-10-00 thru 7-22-00; CCB 4-2000, f. & cert. ef. 5-2-00; 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 7-2003, f. & cert. ef. 8-8-03; CCB 2-2004, f. 2-27-04, cert. ef. 3-1-04; 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 10-2008, f. 6-30-08, cert. ef. 7-1-08; CCB 12-2010, f. 6-24-10, cert. ef. 7-1-10; CCB 14-2010, f. 8-24-10, cert. ef. 9-1-10
812-004-0560
General Requirements for Proposed Default Order or Referral to Office of Administrative Hearings, Hearing Request
(1) A proposed default order
on a complaint issued by the agency must include a contested case notice that complies
with OAR 137-003-0505.
(2) A referral to the Office
of Administrative Hearings for arbitration or a contested case hearing must:
(a) Comply with OAR 812-004-0590,
which regulates whether the complaint will be arbitrated or heard as a contested
case hearing.
(b) Comply with OAR 137-003-0515,
which sets out requirements for the referrals including, but not limited to formal
requirements.
(c) Include a contested case
notice if the agency did not issue a contested case notice under OAR 137-003-0505
before the agency’s referral of the complaint to the Office of Administrative
Hearings.
(3) If the agency refers a complaint
to the Office of Administrative Hearings for arbitration or a contested case hearing
on the amount, if any, that the respondent owes the complainant, the following requirements
apply:
(a) The referral to the Office
of Administrative Hearings must identify by date the statement of damages or the
Breach of Contract Complaint that limits the amount that the respondent may be ordered
to pay the complainant and state the amount that the order is limited to under OAR
812-009-0160 and 812-010-0420.
(b) The agency must serve on
the parties an explanation of:
(A) The limitation on the amount
a respondent may be ordered to pay a complainant under OAR 812-009-0160 and 812-010-0420;
and
(B) The procedure to file a
new statement of damages under OAR 812-009-0020 and OAR 812-010-0110.
(4)(a) To be timely, a request
for hearing must be in writing and be received by the agency within 21 days from
the date the agency mails a proposed default order.
(b) An untimely request for
a hearing must comply with the requirements of OAR 137-003-0528.
(5) The agency may issue a proposed
default order under OAR 137-003-0670(4) that will automatically become a final order
21 days after the date of issue without further notice if no party makes a timely
request for a hearing.
(6) A contested case notice
issued under this rule must include a statement that the agency’s file on
the complaint is designated as the record for purposes of a default order under
this rule and for purposes of a contested case hearing or arbitration on the complaint.
For purposes of this rule, the agency’s file consists of all documents submitted
by parties, all agency correspondence with the parties and any other material designated
by the agency as part of the record.
Stat. Auth.: ORS 670.310 &
701.235
Stats. Implemented: ORS 183.415,
183.417, 183.460, 183.470, 701.133 & 701.145
Hist.: 1BB 1-1986, f. &
ef. 5-30-86; CCB 1-1989, f. & cert. ef. 11-1-89; CCB 4-1997, f. & cert.
ef. 11-3-97; CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98, Renumbered from 812-001-0004;
CCB 1-2000(Temp), f. 1-20-00, cert. ef. 1-24-00 thru 7-22-00; CCB 3-2000(Temp),
f. 3-10-00, cert. ef. 3-10-00 thru 7-22-00; CCB 4-2000, f. & cert. ef. 5-2-00;
CCB 2-2001, f. & cert. ef. 4-6-01; CCB 6-2002 f. 6-10-02 cert. ef. 7-1-02; CCB
9-2002(Temp), f. & cert. ef. 9-6-02 thru 3-5-03; CCB 10-2002, f. & cert.
ef. 11-20-02; CCB 2-2003, f. & cert. ef. 3-4-03; CCB 7-2003, f. & cert.
ef. 8-8-03; CCB 9-2004, f. & cert. ef. 12-10-04; CCB 15-2006, f. 12-12-06, cert.
ef. 1-1-07; 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 5-2012, f. 4-25-12, cert. ef. 5-1-12
812-004-0590
Referral of Complaint to Arbitration or Contested Case Hearing or Removal to Court
(1) If the Office of Administrative Hearings conducts a hearing on a complaint:
(a) The hearing must be held as an arbitration under the rules in division 10 of this chapter, unless a party requests that the hearing be held as a contested case hearing under subsection (1)(b) of this rule 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 must 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 complaint makes a timely written request under section (4) of this rule that the complaint be heard as a contested case; or
(B) The agency requests under sections (4) and (7) of this rule that the complaint be heard as a contested case.
(2) Subject to section (3) of this rule, a complaint must be decided in court if:
(a) The complainant files a complaint in court that alleges the elements of the complaint in the complaint; or
(b) The respondent files a complaint in court for damages, a complaint for declaratory judgment or other complaint that arises from the contract or work that is the subject of the complaint and that allows the complainant to file a response alleging the elements of the complaint.
(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 limit in this rule constitutes waiver of the right to have the complaint 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 must be either to the agency or the Office of Administrative Hearings as required by OAR 137-003-0520 or 812-010-0085, whichever is applicable.
(4) A request that a complaint be heard as a contested case filed under subsection (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 must be either to the agency or the Office of Administrative Hearings as required by OAR 137-003-0520 or 812-010-0085, whichever is applicable.
(b) A referral of a complaint to the Office of Administrative Hearings by the agency for a contested case hearing shall be deemed a request that the complaint be heard as a contested case under subsection (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 complaint.
(5) Failure to deliver a timely written request for a contested case hearing under subsection (1)(b) and section (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 complaint being held as binding arbitration under subsection (1)(a) of this rule.
(6) Except as provided in paragraph (1)(b)(B) and section (7) of this rule, if the complainant in a complaint does not seek $1,000 or more, a hearing on the complaint may not be conducted as a contested case hearing.
(7) Notwithstanding section (6) of this rule, the agency may request under paragraph (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 complaint under ORS 701.131 to 701.180 is at issue;
(b) The agency determines that the agency has an interest in interpreting the rules and statutes that apply to the complaint; or
(c) The agency determines, in its discretion, that a contested case hearing is in the interest of one or more of the parties or of the agency.
Stat. Auth.: ORS 670.310 & 701.235
Stats. Implemented: ORS 701.133 & 701.145
Hist.: CCB 5-1999, f. & cert. ef. 9-10-99; 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 8-2002, f. & cert. ef. 9-3-02; CCB 7-2003, f. & cert. ef. 8-8-03; CCB 9-2004, f. & cert. ef. 12-10-04; CCB 3-2005, f. & cert. ef. 8-24-05; 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 8-2007, f. 12-13-07, cert. ef. 1-1-08; CCB 9-2008, f. 6-11-08, cert. ef. 7-1-08
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
For Complaints
Filed On or After July 1, 2011
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: OAR 701.133,
701.139, 701.140, 701.145, & 701.146
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: ORS 701.133
& 701.146
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: ORS 701.133
& 701.146
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: OAR 701)
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: ORS 701.140
& 701.145
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: ORS 701.145)
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: OAR 701.145
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: OAR 701.117
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: OAR 701.068,
701.088, 701.145 & 701.150
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: OAR 701.068,
701.088, 701.133, 701.145 & 701.146
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: ORS 701.133,
701.140, 701.145 & 701.146
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: ORS 701.133,
701.139, 701.143, 701.145 & 701.146
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: ORS 701.131,
701.133, 701.139, 701.140, 701.143, 701.145 & 701.146
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: ORS 701.131,
701.133, 701.139, 701.140, 701.143, 701.145 & 701.146
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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 812-004-1340, 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 812-004-1260.
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 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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: ORS 701.140
& 701.145
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
Administrative Processing
of Complaint
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: ORS 701.133,
701.140, 701.143, 701.145 & 701.146
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: ORS 701.140
& 701.145
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: ORS 701.140
& 701.145
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; CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: OAR 701.139,
701.140 & 701.145
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: ORS 701.130,
701.145 & 701.150
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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 812-004-1450.
(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: ORS 701.130,
701.145 & 701.150
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: ORS 701.139,
701.140 & 701.145
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: ORS 701.145
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: ORS 701.145
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: ORS 701.143,
701.145, 701.146 & 701.150
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: ORS 701.133,
701.140, 701.145 & 701.146
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: ORS 87.057,
87.058, 701.145 & 701.150
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: ORS 701
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
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: ORS 701.081,
701.084, 701.088 & 701.150
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;
CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12
The official copy of an Oregon Administrative Rule is
contained in the Administrative Order filed at the Archives Division,
800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the
published version are satisfied in favor of the Administrative Order.
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