(2) Subject to subsection (5) of this section, if the resolution of the claim requires a hearing, the board may require that the hearing be conducted as a binding arbitration under rules adopted by the board under subsection (4) of this section.

(3) The board may use arbitration, mediation or other forms of dispute resolution to resolve a landscaping dispute between any parties who agree to follow the rules of the board, including parties to a dispute that is not a claim described in ORS 671.695.

(4) Except as provided in this subsection, rules adopted by the board to regulate arbitration under subsections (2) and (3) of this section must substantially conform with the provisions of ORS 36.600, 36.610 to 36.630, 36.635 (2), 36.640, 36.645 (2), 36.650 to 36.680, 36.685 (1) and 36.690 to 36.740. The rules may:

(a) Require that a hearing under ORS 183.413 to 183.470 be conducted for issues for which a petition could be filed under ORS 36.615, 36.620, 36.625 and 36.640;

(b) Limit orders and awards made by the arbitrator as necessary to comply with ORS 671.510 to 671.760;

(c) Require that a request that an arbitrator modify or correct an award under ORS 36.690 be submitted in a form specified by the rule;

(d) Require that a petition under ORS 36.705 (2) or 36.710 (1) be filed in a shorter period of time than provided by ORS 36.705 and 36.760; and

(e) Include any other provision necessary to conform the arbitration to ORS 671.510 to 671.760.

(5) A party to a claim that is subject to a board order of binding arbitration under subsection (2) of this section may avoid the arbitration if the party requests to have the claim resolved through a contested case hearing or files a complaint in a court. A party making a request or filing a complaint under this subsection is subject to the following provisions:

(a) If the party requests to have a claim resolved through a contested case hearing, the party must, within the time specified in paragraph (c) of this subsection, deliver the request in writing to the board and to all parties entitled by board rule to receive a copy of the request.

(b) If the party files a complaint in a court, the party must, within the time specified in paragraph (c) of this subsection, deliver a copy of the complaint to the board and to all parties entitled by the board rule to receive a copy of the complaint. If the party filing the complaint is the claimant, the claimant must allege all elements of the claim in the complaint. If the complaint is filed by the licensed landscape contracting business against whom a claim is alleged, the complaint may be a complaint for damages, a complaint for declaratory judgment or other complaint that allows the claimant to file a response alleging the elements of the claim. The claimant has the burden of proving the elements of the claim in any action described in this paragraph.

(c) A party that is subject to paragraph (a) or (b) of this subsection must deliver a request or complaint to the board as described in paragraphs (a) and (b) of this subsection no later than the 30th day after the board sends notice that an arbitration hearing has been scheduled. Failure to timely deliver a request or complaint under this paragraph constitutes consent to the binding arbitration.

(d) If a party makes a timely request under paragraph (a) of this subsection for a contested case hearing and another party timely files a complaint in compliance with paragraph (b) of this subsection, the filing of the complaint supersedes the request for a contested case hearing.

(e) A party may not withdraw a request made in compliance with paragraph (a) of this subsection unless all parties agree to the withdrawal.

(f) The provisions of paragraph (b) of this subsection are in addition to any other requirements imposed by law regarding the filing of a complaint.

(6) An arbitration conducted under subsection (2) or (3) of this section must be held before an administrative law judge acting as arbitrator. The administrative law judge assigned to act as arbitrator of the case on behalf of the board must be from the Office of Administrative Hearings established under ORS 183.605. The assignment of an administrative law judge to act as arbitrator is subject to a request for a different arbitrator under ORS 183.645 or a rule adopted pursuant to ORS 183.645.

(7) If a party to a claim described in ORS 671.695 requests a contested case hearing, the board shall schedule the hearing. If a party files a court action to determine the matter described in the claim, the board shall suspend further processing of the claim until the action is resolved by an appropriate court.

(8) If the matter described in a claim is submitted for determination by a court, the board may require that the claimant provide status reports on the pending action. The board may dismiss or close a claim described in ORS 671.695 as established by rule of the board if the claimant fails to submit status reports on a pending action.

(9) If a final order or arbitration award is issued under this section and the landscape contracting business does not pay the claim on or before the 30th day after receiving the order, the board shall order the claim paid out of the bond, letter of credit or deposit filed under ORS 671.690.

(10) The board may dismiss or close a claim as established by rule of the board if:

(a) The claimant does not permit the person against whom the claim is filed to be present at any on-site investigation made by the board; or

(b) The board determines that the person against whom the claim is filed is capable of complying with recommendations made by the board relative to the claim, but the claimant does not permit the person to comply with the recommendations. The board may dismiss or close a claim under this paragraph only if the person was licensed at the time the work was first performed and is licensed at the time the board makes its recommendations.

(11) The board may suspend processing a claim if the board determines that the nature or complexity of the claim is such that a court is the appropriate forum for the adjudication of the claim. [1979 c.840 §8; 1983 c.452 §17; 1987 c.461 §4; 1989 c.153 §1; 1991 c.533 §2; 1995 c.645 §4; 2001 c.198 §§3,4; 2003 c.75 §56; 2003 c.598 §§48,49; 2007 c.149 §7; 2007 c.541 §37a]