Chapter 692 — Funeral Service Practitioners; Embalmers; Funeral Establishments; Cemetery and Crematory Operators
2007 EDITION
FUNERALS; CEMETERIES AND CREMATORIUMS
OCCUPATIONS AND PROFESSIONS
GENERAL PROVISIONS
692.010 Definitions
692.025 License required for funeral service practitioner, embalmer, funeral establishment operator, cemetery or crematory operator
692.040 Application of chapter
LICENSING
692.045 Funeral service practitioner license; application; examination; experience
692.070 Scope of examination for funeral service practitioner license; notice of examination
692.105 Embalmer license; application; qualifications of applicant
692.130 Scope and conduct of embalmer examination
692.140 Reciprocity for embalmers or funeral service practitioners
692.146 Application for funeral establishment or immediate disposition company license
692.148 When new or reissued license, registration or certificate required; fee
692.160 License fees; expiration date of licenses; notice of renewal
692.170 Reinstatement of lapsed licenses
692.180 Grounds for revocation, suspension or refusal to issue or renew licenses or certificates; civil penalty; investigation; confidentiality
692.190 Application for and issuance of apprentice registration; conditions and duration of apprenticeship
692.230 Grounds for suspension and revocation of certificates of apprenticeship; reregistration when certificate has lapsed or is suspended or revoked; investigation; confidentiality
692.260 Grounds for revocation, suspension or refusal to renew funeral establishment or immediate disposition company license
692.265 License denial and civil penalty procedure; rules and orders; judicial review
692.270 Certificate of removal registration for removal of dead human bodies; requirements; sanctions
692.275 Certificate for operating cemetery or crematorium; registration of certain cemeteries; rules applicable to crematoriums
STATE BOARD
692.300 State Mortuary and Cemetery Board; appointment; term; qualifications
692.310 Meetings; officers
692.320 Powers and duties; rules
692.330 Compensation and expenses
692.350 Publication of statutes and rules
692.375 State Mortuary and Cemetery Board Account; disposition of receipts
ENFORCEMENT
692.380 Courts having jurisdiction; initiation of proceedings
692.385 Enforcement proceedings instituted by board; relation to other enforcement provisions
692.387 Availability of inspection warrants; effect
692.389 Issuance of inspection warrant upon cause; supporting affidavit; cause of issuance of warrant
692.391 Issuance of inspection warrant by magistrate; examination of applicant; contents and conditions of warrant
692.393 Execution of inspection warrant; presentation of credentials; authority and purpose; time of expiration
MISCELLANEOUS
692.405 Identifying receptacle
PENALTIES
692.990 Penalties
GENERAL PROVISIONS
692.010 Definitions. As used in this chapter:
(1) “Board” means the State Mortuary and Cemetery Board.
(2) “Cemetery” means any one, or a combination of more than one, of the following, in a place used, or intended to be used, and dedicated, for cemetery purposes:
(a) A burial park, for earth interments;
(b) A mausoleum, for crypt interments; or
(c) A columbarium, for permanent cinerary interments.
(3) “Holding room” means a room that is located in a licensed facility for the care, storage or holding of dead human bodies prior to effecting disposition.
(4) “Immediate disposition” means a direct method of disposition of dead human remains by way of immediate burial or immediate cremation.
(5) “Immediate disposition company” means any business licensed under this chapter, other than a licensed funeral establishment, where a licensed funeral service practitioner operates the business of immediate disposition and where business records are kept.
(6) “Operating cemetery” means a cemetery that:
(a) Performs interments;
(b) Has fiduciary responsibility for endowment care, general care or special care funds; or
(c) Has outstanding preneed service contracts for unperformed services.
(7) “Rental cover” means a partial enclosure that appears similar to a casket that is utilized for viewing purposes and surrounds the burial or cremation container. [Amended by 1957 c.596 §1; 1983 c.810 §3; 1985 c.207 §7; 1987 c.252 §10; 1989 c.177 §1; 1997 c.638 §2; 2001 c.224 §1]
692.020 [Amended by 1973 c.411 §1; repealed by 1983 c.810 §29]
692.025 License required for funeral service practitioner, embalmer, funeral establishment operator, cemetery or crematory operator. (1) An individual may not practice as a funeral service practitioner unless the individual is licensed as a funeral service practitioner under ORS 692.045. An individual practices as a funeral service practitioner if the individual for payment is engaged directly or indirectly in supervising or otherwise controlling the transportation, care, preparation, processing and handling of dead human bodies before the bodies undergo cremation, entombment or burial, or before the bodies are transported out of the State of Oregon.
(2) An individual may not practice as an embalmer unless the individual is licensed as an embalmer under ORS 692.105. An individual practices as an embalmer if the individual is engaged or purports to be engaged in either of the following:
(a) The practice of disinfecting or preserving from decay dead human bodies.
(b) Preparing human bodies dead of contagious or infectious disease for transportation by railroad, express company or common carrier.
(3) A person may not operate a funeral establishment unless the establishment meets the requirements under this subsection. A place is a funeral establishment if the place is used for the care and preparation of dead human bodies before the bodies undergo cremation, entombment or burial, or before the bodies are transported out of the State of Oregon. A funeral establishment must:
(a) Be licensed by the State Mortuary and Cemetery Board under ORS 692.146;
(b) Be operated by a funeral service practitioner;
(c) Have on the premises embalming facilities or holding room facilities meeting requirements established by the board; and
(d) Have access to hospital or mortuary refrigeration.
(4) A person may not operate an immediate disposition company unless the immediate disposition company meets the requirements under this subsection. An immediate disposition company must:
(a) Be licensed at a fixed location under ORS 692.146; and
(b) Be operated by a licensed funeral service practitioner.
(5) No person or city, county or other municipal corporation shall conduct the business of an operating cemetery without first receiving a certificate of authority to conduct the business of an operating cemetery under ORS 692.275.
(6) A person may not operate a crematorium unless the crematorium meets the requirements of ORS 692.275.
(7) All applicants for licenses, certificates, or licensees under this section and all principals of any licensed establishment must consent to a background check, including information solicited from the Department of State Police. [1983 c.810 §4; 1985 c.207 §9; 1989 c.177 §2; 1991 c.542 §2; 1997 c.638 §3]
692.030 [Amended by 1973 c.411 §2; repealed by 1983 c.810 §29]
692.040 Application of chapter. This chapter does not apply to any of the following:
(1) A public institution, medical college, county medical society, anatomical association, college of embalming, or any officer thereof, or to any other recognized person carrying out the statutes of the State of Oregon prescribing the conditions under which indigent dead human bodies are held subject for scientific or anatomical study.
(2) The customs or rites of any religious sect except as to the burial or other disposition of their dead.
(3) A person who picks up dead human bodies under the direction of a funeral service practitioner for delivery to a funeral service practitioner, funeral establishment, cemetery or crematorium pursuant to an agreement with the funeral service practitioner, if the person is not otherwise engaged in any of the activities of a funeral service practitioner, an embalmer, a funeral establishment, a cemetery or a crematorium as described in ORS 692.025.
(4) A person who picks up dead human bodies under the direction of a licensed funeral service practitioner employed by a funeral establishment registered under ORS 692.270 for transportation out of the state or for delivery to a funeral service practitioner, funeral establishment, cemetery or crematorium pursuant to an agreement with the funeral service practitioner, if the person is not otherwise engaged in any of the activities of a funeral service practitioner, an embalmer, a funeral establishment, a cemetery or a crematorium as described in ORS 692.025. [Amended by 1957 c.596 §2; 1983 c.810 §5; 1985 c.207 §10; 1999 c.724 §5]
LICENSING
692.045 Funeral service practitioner license; application; examination; experience. (1) The State Mortuary and Cemetery Board shall issue a license to an individual to practice as a funeral service practitioner if the individual meets the following requirements:
(a) The individual must apply to the board for a funeral service practitioner’s license on an application form provided by the board.
(b) The individual must pass an examination conducted by the board under ORS 692.070 following application for the funeral service practitioner’s license.
(c) The individual must successfully complete practical experience as a funeral service practitioner’s apprentice under ORS 692.190.
(2) An individual may not take an examination under ORS 692.070 until the individual has provided written evidence of graduation from an associate degree program meeting the requirements established by board rule.
(3) Notwithstanding subsection (2) of this section, an applicant with four years of experience as a licensed funeral service practitioner or embalmer in another state is not required to provide written evidence of graduation from an associate degree program in order to take the examination under ORS 692.070. [1983 c.810 §6; 1989 c.177 §3; 1993 c.308 §4; 1997 c.638 §4; 1999 c.724 §8]
692.050 [Repealed by 1983 c.810 §29]
692.060 [Amended by 1971 c.115 §1; 1979 c.858 §1; repealed by 1983 c.810 §29]
692.070 Scope of examination for funeral service practitioner license; notice of examination. (1) The State Mortuary and Cemetery Board shall offer an examination at least once each year to applicants for a license to practice as a funeral service practitioner.
(2) The examination shall include Oregon and federal laws, rules and regulations relating to the care, preparation, disposition and transportation of dead human bodies and to survivor death benefits.
(3) Notice of the time and place of the examination shall be sent to the applicants by mail at least 10 days before the examination. [Amended by 1981 c.719 §1; 1983 c.810 §7; 1989 c.177 §4; 1997 c.638 §5]
692.080 [Repealed by 1983 c.810 §29]
692.090 [Amended by 1971 c.115 §2; repealed by 1997 c.638 §12]
692.100 [Repealed by 1983 c.810 §29]
692.105 Embalmer license; application; qualifications of applicant. (1) The State Mortuary and Cemetery Board shall issue a license to an individual to practice as an embalmer if the individual is 18 years of age or older, applies for a license and has successfully met the qualifications described in this section.
(2) An individual must apply for a license by applying to the board on an application form provided by the board.
(3) An individual applying for a license under this section must meet the following requirements:
(a) The individual must complete 12 months of practical experience as an embalmer’s apprentice as provided in ORS 692.190.
(b) The individual must provide written evidence of graduation from an accredited program of funeral service education.
(c) The individual must obtain a passing score on the examination provided in ORS 692.130 or show evidence satisfactory to the board that the individual has successfully passed the National Board Examination as administered by the Conference of Funeral Service Examining Boards.
(d) The individual must be knowledgeable in the application of state law.
(4) When an individual provides written evidence of graduation from an accredited program of funeral service education, if the individual does not show evidence satisfactory to the board, as provided under subsection (3) of this section, that the individual has passed the National Board Examination, the board may examine the individual as provided in ORS 692.130. In any case, however, the board shall not issue an embalmer’s license until an individual has completed the apprenticeship qualification. [1983 c.810 §8; 1993 c.308 §5]
692.110 [Amended by 1971 c.115 §3; repealed by 1983 c.810 §29]
692.120 [Amended by 1971 c.115 §4; 1981 c.719 §2; repealed by 1983 c.810 §29]
692.130 Scope and conduct of embalmer examination. (1) The State Mortuary and Cemetery Board shall offer an examination at least once each year to applicants for a license to practice as an embalmer.
(2) Notice of the time and place of the examination shall be sent to the applicants by mail at least 10 days before the examination.
(3) The board shall specify the subjects in funeral service arts and science to be included in the examination for a license to operate as an embalmer. The board may use the questions prepared by the Conference of Funeral Service Examining Boards or its successor.
(4) The board shall adopt rules establishing standards for minimum performance on the examination and conditions for reexamination. [Amended by 1955 c.754 §1; 1971 c.115 §5; 1973 c.411 §3; 1979 c.858 §2; 1981 c.719 §3; 1983 c.810 §9]
692.140 Reciprocity for embalmers or funeral service practitioners. (1) The State Mortuary and Cemetery Board shall issue a license to practice as a funeral service practitioner or an embalmer to an applicant from another state if:
(a) The applicant for recognition of the license applies to the board and fulfills the requirements specified in subsection (2) of this section; and
(b) The board is satisfied that the applicant has the requisite qualifications for licensing as a funeral service practitioner or an embalmer in this state.
(2) An applicant under this section shall apply to the board on a form provided by the board. The applicant shall include the following with the application:
(a) Proof satisfactory to the board that the applicant is licensed and has practiced as a funeral service practitioner or an embalmer in another state for the two years immediately preceding the application date.
(b) Proof satisfactory to the board of compliance, in the state in which the applicant is regularly licensed, with requirements substantially equal to the requirements of this chapter.
(c) Payment of the initial reciprocity licensing fee established under ORS 692.160. [Amended by 1971 c.115 §6; 1973 c.411 §4; 1981 c.719 §4; 1983 c.810 §10; 1989 c.177 §5; 1997 c.638 §6]
692.144 [1957 c.596 §4; 1971 c.115 §7; repealed by 1983 c.810 §29]
692.146 Application for funeral establishment or immediate disposition company license. (1) The State Mortuary and Cemetery Board shall issue a license to a funeral establishment or immediate disposition company if the person who will operate the establishment or immediate disposition company applies to the board for a license on a form provided by the board. The application shall be accompanied by the application fee established under ORS 692.160.
(2) The application shall disclose the following:
(a) The name and address of the establishment or company.
(b) That the establishment is operated by a licensed funeral service practitioner.
(c) That the immediate disposition company is operated by a licensed funeral service practitioner.
(3) For purposes of this section and ORS 692.025, each branch of a licensee’s funeral establishment or immediate disposition company is a separate establishment and must be licensed at a fixed place of business. [1957 c.596 §5; 1971 c.115 §8; 1983 c.810 §11; 1989 c.177 §6; 1997 c.638 §7]
692.148 When new or reissued license, registration or certificate required; fee. (1) If the principals of a licensed funeral establishment or immediate disposition company change, the establishment or company shall apply to the State Mortuary and Cemetery Board for a new license.
(2) A person holding a license or certificate of authority or who is registered under this chapter shall apply to the board for reissuance of the license, certificate or registration if any of the following occur:
(a) The name of the person changes;
(b) The location of the funeral establishment, immediate disposition company or crematorium changes;
(c) An apprentice registered under ORS 692.190 transfers from one licensed funeral service practitioner or licensed embalmer to another;
(d) The original license, registration or certificate is lost or destroyed; or
(e) When a person holding a license or certificate of authority issued under this chapter obtains another license or certificate of authority issued under this chapter.
(3) The application for reissuance of the license, registration or certificate shall include payment of the fee established under ORS 692.160. The board shall reissue the license, certificate or registration when the board receives the application and the fee. [1993 c.308 §3]
692.150 [Repealed by 1983 c.810 §29]
692.160 License fees; expiration date of licenses; notice of renewal. (1) The fees that may be charged under this chapter are:
(a) A fee covering requests for applications for a funeral establishment license, an immediate disposition company license, a certificate of authority for a cemetery, a certificate of authority for a crematorium, registration as a funeral service practitioner apprentice, registration as an embalmer apprentice, a certificate of removal registration, a license as a reciprocal funeral service practitioner or a license as a reciprocal embalmer. The application fee shall be accompanied by an additional fee for each principal of a funeral establishment, immediate disposition company, cemetery or crematorium.
(b) A fee covering the renewal of a license for a funeral establishment, a license for an immediate disposition company or a certificate of authority for a crematorium.
(c) A fee covering the renewal of a funeral service practitioner license or an embalmer license.
(d) A fee for renewal of a combination funeral service practitioner and embalmer license.
(e) A fee for renewal of the registration of a funeral service practitioner apprentice or an embalmer apprentice.
(f) An examination fee for a funeral service practitioner license or an embalmer license.
(g) A fee covering the renewal of a certificate of authority for a cemetery.
(h) A fee covering the reinstatement of a lapsed license or certificate of authority.
(i) A fee for reissuing a license, registration or certificate of authority as provided in ORS 692.148.
(j) Fees for copying any public record maintained by the State Mortuary and Cemetery Board, for documents distributed by the board and postage for mailing any copies or documents.
(2) All licenses granted under this chapter to funeral service practitioners and embalmers shall expire on January 1 in even-numbered years unless renewed as provided in this section. All licenses or certificates of authority granted under this chapter to operators of funeral establishments, to operators of immediate disposition companies, to operators of cemeteries or to operators of crematoriums shall expire on January 1 in odd-numbered years unless renewed as provided in this section.
(3) The board shall mail to each licensed funeral service practitioner, to each licensed embalmer, to each licensed operator of a funeral establishment or immediate disposition company and to each cemetery and crematorium holding a certificate of authority under ORS 692.275, addressed to the licensee or certificate holder at the licensee’s or certificate holder’s last-known address, a notice that the renewal fee is due and payable and that if the fee is not paid by the renewal date the license or certificate of authority shall lapse. The notice shall be mailed to each licensed funeral service practitioner and to each licensed embalmer on or before November 1 of each odd-numbered year. The notice shall be mailed to each licensed operator of a funeral establishment or immediate disposition company and to each cemetery and crematorium holding a certificate of authority under ORS 692.275 on or before November 1 of each even-numbered year. On or after July 1, 1986, the board may impose continuing education requirements as a prerequisite for relicensure.
(4) Subject to prior approval of the Oregon Department of Administrative Services and a report to the Emergency Board prior to adopting the fees and charges, the fees and charges established under this section shall not exceed the cost of administering the regulatory program of the State Mortuary and Cemetery Board pertaining to the purpose for which the fee or charge is established, as authorized by the Legislative Assembly within the board’s budget, as the budget may be modified by the Emergency Board. [Amended by 1957 c.596 §11; 1971 c.115 §9; 1973 c.411 §5; 1977 c.873 §11; 1979 c.36 §1; 1981 c.719 §5; 1983 c.290 §1; 1985 c.207 §11; 1989 c.177 §7; 1991 c.703 §35; 1993 c.248 §1; 1993 c.308 §1; 1997 c.638 §8; 1999 c.724 §9]
692.165 [1957 c.596 §7; 1971 c.115 §10; 1983 c.810 §14; 1989 c.177 §8; repealed by 1993 c.308 §6]
692.170 Reinstatement of lapsed licenses. (1) When a licensee or an apprentice has allowed a license or a certificate of apprenticeship to lapse, the State Mortuary and Cemetery Board may reinstate the license or certificate if the licensee or apprentice:
(a) Applies for reinstatement not later than the 90th day after the lapse; and
(b) Pays all fees owing to the date of reinstatement as well as a reinstatement fee established under ORS 692.160.
(2) Upon the lapse of a license or certificate, the board shall send the notice of lapse to the licensee or apprentice by registered or certified mail at the last-known address of the licensee or apprentice. [Amended by 1971 c.115 §11; 1973 c.411 §6; 1983 c.810 §15]
692.180 Grounds for revocation, suspension or refusal to issue or renew licenses or certificates; civil penalty; investigation; confidentiality. (1) Upon complaint or upon its own motion, the State Mortuary and Cemetery Board may investigate any complaint concerning any person, licensee or holder of a certificate of authority made by any person or by the board. If the board finds any of the causes described in this section in regard to any person, licensee or applicant or the holder of a certificate of authority, the board may impose a civil penalty of not more than $1,000 for each violation, suspend or revoke a license to practice or to operate under this chapter or refuse to grant or renew a license. The causes are as follows:
(a) Misrepresentation in the conduct of business or in obtaining a license.
(b) Fraudulent or dishonest conduct, when the conduct bears a demonstrable relationship to funeral service practice, embalming practice or the operation of cemeteries or crematoriums.
(c) Except as provided in this paragraph, solicitation of human dead bodies by the licensee or any agent, assistant or employee of the licensee, either before or after death. This paragraph does not apply to:
(A) Activities permissible under ORS 97.923 to 97.949; or
(B) The sale, in accordance with provisions of the Insurance Code, of prearranged funeral or cemetery merchandise or services, or any combination thereof, to be funded by the contemporaneous or subsequent assignment of a life insurance policy or an annuity contract.
(d) Offensive treatment of dead human bodies or a body in the person’s custody has been disposed of in violation of ORS chapter 432 or rules adopted pursuant thereto.
(e) Aiding or abetting a person who is not a licensee or an apprentice in any act involving the disposition of dead human bodies before the bodies undergo cremation, entombment or burial or before the bodies are transported out of the State of Oregon.
(f) Sale or reuse of any casket or body container that has been previously utilized for the placement of a deceased human body. This does not include use of a rental cover as defined in ORS 692.010.
(g) Violation of any of the provisions of this chapter or any rules adopted under this chapter.
(h) Violation of any provision of ORS 97.929 or 97.937 or regulations adopted by the Federal Trade Commission regulating funeral industry practices.
(i) Conviction of a crime, when the crime bears a demonstrable relationship to funeral service practice, embalming practice or the operation of cemeteries or crematoriums. A copy of the record of the conviction certified to by the clerk of the court entering the conviction shall be conclusive evidence of the conviction.
(j) Violation of ORS chapter 97 as it relates to disposition of human bodies and to cemeteries.
(k) Refusing to surrender promptly the custody of a dead human body, upon the express order of the person lawfully entitled to the custody of the body.
(L) Acting as the legal representative of any deceased person for whom the licensee has rendered services governed by this chapter. This subsection does not prohibit a licensee from acting as the legal representative of a deceased relative or a deceased licensee if the deceased licensee was a partner, employee or employer in the licensee’s practice.
(m) Failure to pay any civil penalty imposed by the board within 10 days after the order is entered or, if appealed, within 10 days after the order is sustained on appeal.
(2) All amounts recovered under this section shall be deposited in accordance with ORS 692.375.
(3) Civil penalties under this section shall be imposed as provided in ORS 183.745.
(4) Upon receipt of a complaint, the board shall conduct an investigation as described under ORS 676.165.
(5) Information that the board obtains as part of an investigation into licensee or applicant conduct or as part of a contested case proceeding, consent order or stipulated agreement involving licensee or applicant conduct is confidential as provided under ORS 676.175. [Amended by 1971 c.115 §12; 1983 c.810 §16; 1985 c.207 §12; 1987 c.252 §8; 1987 c.813 §10; 1991 c.734 §82; 1995 c.326 §1; 1995 c.696 §45; 1997 c.791 §53; 1999 c.59 §207; 2001 c.796 §21]
692.190 Application for and issuance of apprentice registration; conditions and duration of apprenticeship. (1) An individual who wishes to engage as an apprentice shall apply to the State Mortuary and Cemetery Board for registration as a funeral service practitioner apprentice or an embalmer apprentice upon a form provided by the board. The individual must consent to a background check, including information solicited from the Department of State Police. The application must be accompanied by the fee established under ORS 692.160.
(2) One funeral service practitioner apprentice at a time is authorized to operate under or in connection with each licensed funeral service practitioner practicing in this state for the purpose of learning the functions of a funeral service practitioner.
(3) One embalmer apprentice at a time is authorized to engage in the study of the art of embalming under the instruction and supervision of each licensed embalmer practicing in this state.
(4) The duration of an apprenticeship is:
(a) Twelve months for a funeral service practitioner apprentice.
(b) Twelve months for an embalmer apprentice.
(5) The apprenticeship of a funeral service practitioner apprentice:
(a) Shall not include time lost by interruptions caused by active duty of the applicant in the military service of the United States or its allies during war or national emergency, or time lost through attendance of formal funeral service education, or time lost by interruptions that the board finds excusable under rules of the board.
(b) Shall be completed not more than two years before or after the date of the examination under ORS 692.070, excluding time lost for interruptions described in paragraph (a) of this subsection.
(6) An embalmer apprentice may serve the apprenticeship concurrently with the funeral service practitioner apprenticeship.
(7) An embalmer apprentice shall complete the required apprenticeship within a period of not more than four consecutive years and not more than two years before the date of the examination under ORS 692.130. In computing time under this subsection, the board shall exclude time lost by interruptions caused by active duty of the apprentice in the military service of the United States or its allies during war or national emergency and by interruptions that the board finds are excusable under rules of the board.
(8) The board shall adopt rules under which the board may confer credit for apprenticeship service or its equivalency performed by:
(a) An applicant in another state; or
(b) An applicant whose license or certificate of apprenticeship has lapsed. [Amended by 1973 c.411 §7; 1981 c.719 §8; 1983 c.810 §12; 1985 c.207 §13; 1989 c.177 §9; 1993 c.275 §1; 1997 c.97 §1; 1997 c.638 §9]
692.200 [Amended by 1973 c.411 §8; repealed by 1983 c.810 §29]
692.210 [Repealed by 1983 c.810 §29]
692.220 [Repealed by 1983 c.810 §29]
692.230 Grounds for suspension and revocation of certificates of apprenticeship; reregistration when certificate has lapsed or is suspended or revoked; investigation; confidentiality. (1) The State Mortuary and Cemetery Board may suspend or revoke a certificate of apprenticeship, after notice and upon hearing, if the board finds any of the causes specified in ORS 692.180 in regard to the apprentice.
(2) An apprentice who has had a certificate of apprenticeship suspended or revoked may apply for reregistration within one year after the suspension or revocation, but the board shall not allow more than two reregistrations. When the circumstances warrant, the board may allow an apprentice credit under a reregistration for time actually served under a previous registration. However, if the previous registration has been suspended or revoked under subsection (1) of this section, the board shall not credit on the registration more than 75 percent of the time previously served.
(3) Upon receipt of a complaint, the board shall conduct an investigation as described under ORS 676.165.
(4) Information that the board obtains as part of an investigation into licensee or applicant conduct or as part of a contested case proceeding, consent order or stipulated agreement involving licensee or applicant conduct is confidential as provided under ORS 676.175. [Amended by 1973 c.411 §9; 1983 c.810 §17; 1997 c.791 §54]
692.240 [Amended by 1971 c.115 §13; repealed by 1971 c.734 §21]
692.250 [Repealed by 1971 c.734 §21]
692.260 Grounds for revocation, suspension or refusal to renew funeral establishment or immediate disposition company license. The State Mortuary and Cemetery Board may revoke, suspend or refuse to renew a license issued to a funeral establishment or immediate disposition company if the board finds any of the following in regard to the establishment or company or its operation:
(1) Any of the causes specified in ORS 692.180.
(2) Violation of ORS 692.025 (3).
(3) Failure to comply with the rules of the board. [1957 c.596 §6; 1971 c.734 §149; 1983 c.810 §18; 1989 c.177 §10; 1997 c.638 §10]
692.265 License denial and civil penalty procedure; rules and orders; judicial review. (1) If the State Mortuary and Cemetery Board proposes to impose a civil penalty or to revoke, suspend or refuse to issue or renew any license or certificate, the board shall accord an opportunity for hearing as provided in ORS chapter 183.
(2) Adoption of rules, conduct of hearings and issuance of orders and judicial review of rules and orders shall be as provided in ORS chapter 183. [1971 c.734 §151; 1983 c.810 §19]
692.270 Certificate of removal registration for removal of dead human bodies; requirements; sanctions. (1) The State Mortuary and Cemetery Board shall issue a certificate of removal registration to a funeral establishment licensed in another state contiguous to Oregon with laws substantially similar to the provisions of this section for the limited purpose of removing dead human bodies from Oregon, prior to submitting a certificate of death, if the establishment that will make the removals applies to the board for a certificate of removal registration on a form provided by the board. The application fee established under ORS 692.160 shall accompany the application. A certificate issued under this subsection expires upon a change of ownership of the funeral establishment.
(2) For purposes of this section, each branch of a registrant’s funeral establishment is a separate establishment and must be registered as a fixed place of business.
(3) Notwithstanding ORS 692.025 (1) and 692.045, a funeral service practitioner who files death certificates in another state may file an Oregon certificate of death if the funeral service practitioner is employed by a licensed funeral establishment registered with the board under this section.
(4) The conduct of a funeral service practitioner or any other person employed by or acting on behalf of a removal registrant shall be the direct responsibility of the holder of a certificate of removal registration.
(5) For any of the causes described in ORS 692.180, or for violation of any death care rule or law in another state, the board may impose upon the holder of a certificate of removal registration or applicant any of the sanctions described in ORS 692.180. [1999 c.724 §6]
Note: 692.270 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 692 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.
692.275 Certificate for operating cemetery or crematorium; registration of certain cemeteries; rules applicable to crematoriums. (1) The application for a certificate of authority to conduct the business of an operating cemetery shall be made on a form provided by the State Mortuary and Cemetery Board. The application shall be accompanied by the application fee established under ORS 692.160. However, any operating cemetery that has five or fewer interments annually is entitled to receive a certificate of authority to operate upon payment of the initial fee but is not required to pay the renewal fee or the fee for any change in principal other than the cemetery manager.
(2) A cemetery, other than an operating cemetery or a historic cemetery listed with the Oregon Commission on Historic Cemeteries under ORS 97.782, shall be registered with the board. An owner of a cemetery, other than an operating cemetery or a historic cemetery listed with the Oregon Commission on Historic Cemeteries under ORS 97.782, shall register the cemetery with the board on a form provided by the board. No fee shall be required of a cemetery registrant.
(3) The person who plans to operate a crematorium shall apply before operation for a certificate of authority to operate a crematorium on a form provided by the board. The application shall be accompanied by the application fee established under ORS 692.160.
(4) For purposes of this section and ORS 692.025, each location of a cemetery or crematorium is a separate location and must be licensed separately. Those cemeteries that are subject to registration shall be registered separately.
(5) The recommendation of the Cremation Association of North America shall be used in adopting rules regulating crematoriums.
(6) This section applies to operating cemeteries or other cemeteries owned by any city, county or other municipal corporation. [1985 c.207 §19; 1989 c.177 §11; 1991 c.542 §3; 1999 c.731 §11; 2001 c.224 §2; 2003 c.173 §10]
692.285 [1985 c.207 §21; 1987 c.813 §14; 1993 c.467 §1; 1995 c.144 §6; 1995 c.325 §1; 1997 c.98 §1; repealed by 2001 c.796 §29]
STATE BOARD
692.300 State Mortuary and Cemetery Board; appointment; term; qualifications. (1) There is created the State Mortuary and Cemetery Board in the Department of Human Services to carry out the purposes and enforce the provisions of this chapter. The board shall consist of 11 members. The members of the board shall be as follows:
(a) Two members shall be licensed funeral service practitioners. One of the members under this paragraph shall be a funeral service practitioner who does not offer embalming.
(b) One member shall be a licensed embalmer.
(c) Three members shall be representatives of cemeteries, one representing for-profit cemeteries, one representing a city or county owned or operated cemetery and one representing a special district owned or operated cemetery.
(d) One member shall be a representative of a crematorium.
(e) Four members shall be representatives of the public, one of whom shall be a member of a recognized senior citizen organization.
(2) The term of office of the members of the board shall be four years ending on December 31. A member is eligible for no more than two consecutive terms. They shall be appointed by the Governor and hold office until the appointment and qualification of their successors. [Amended by 1971 c.650 §25; 1973 c.792 §46; 1979 c.858 §3; 1981 c.439 §1; 1983 c.810 §20; 1985 c.207 §15; 1991 c.542 §5; 1997 c.632 §12]
692.310 Meetings; officers. The State Mortuary and Cemetery Board shall meet at least semiannually, and at such other times as it may determine, and shall elect from its members, each for a term of one year, a president and secretary. The secretary shall also act and serve as treasurer of the board. [Amended by 1971 c.115 §14; 1973 c.411 §10; 1983 c.810 §21]
692.320 Powers and duties; rules. (1) The State Mortuary and Cemetery Board has the power to adopt and enforce for the protection of the public health, safety and welfare reasonable rules relating to the following:
(a) The licensing of funeral service practitioners, embalmers, funeral establishments, crematoriums and cemeteries.
(b) The registration of apprentices.
(c) The practice of funeral service practitioners and embalmers, and the operation of funeral establishments, immediate disposition companies, crematoriums and cemeteries.
(d) Sanitary conditions of funeral establishments, crematoriums, cemeteries and any location in which dead human bodies are stored or processed prior to final disposition.
(e) Matters necessary to carry out the provisions of this chapter.
(2) Other than areas used as living quarters, the board shall inspect not less than once biennially the facilities and records of funeral establishments, cemeteries and crematoriums and immediate disposition companies and any location in which dead human bodies may be stored, temporarily held or processed prior to final disposition. The inspection of the records of such locations shall be limited to those records required to comply with this chapter or ORS chapter 432 or rules adopted pursuant thereto. The board may make random inspections at other times. The board shall employ one or more persons to perform such inspections and aid in the enforcement of this chapter and rules adopted thereunder. No person employed under this subsection may be a member of the board or actively engaged in a practice regulated by this chapter.
(3) The board may hold hearings, conduct investigations, subpoena witnesses, administer oaths and take testimony in order to carry out the provisions of this chapter.
(4) The board shall have a common seal and, subject to any applicable provision of the State Personnel Relations Law, may employ necessary administrative staff, fix the compensation for them and incur other necessary expenses. [Amended by 1957 c.596 §8; 1973 c.411 §11; 1983 c.389 §6; 1983 c.810 §22; 1985 c.207 §17; 1987 c.252 §1; 1989 c.177 §12; 1993 c.248 §4; 1997 c.638 §11]
692.330 Compensation and expenses. Each member of the State Mortuary and Cemetery Board is entitled to compensation and expenses as provided in ORS 292.495. [Amended by 1969 c.314 §93; 1973 c.411 §12]
692.340 [Repealed by 1973 c.411 §15]
692.350 Publication of statutes and rules. Except as provided in this section, after each change in the provisions of this chapter or in the rules adopted under this chapter, the State Mortuary and Cemetery Board shall publish for distribution to funeral service practitioners, embalmers and apprentices and to other interested persons, the provisions of this chapter together with all rules adopted under this chapter. If a change or changes in the rules are not extensive in scope, the board may publish the changes in supplementary form. [Amended by 1983 c.810 §23]
692.360 [Repealed by 1973 c.411 §15]
692.370 [Amended by 1967 c.637 §35; repealed by 1973 c.411 §15]
692.375 State Mortuary and Cemetery Board Account; disposition of receipts. The State Mortuary and Cemetery Board Account is established in the State Treasury, separate and distinct from the General Fund. All moneys received by the State Mortuary and Cemetery Board under this chapter shall be paid into the account and are appropriated continuously to be used only for the administration and enforcement of this chapter, for the administration and enforcement of ORS 97.931 and for the purpose of education of funeral service practitioners and embalmers. Any interest or other income from moneys in the account shall be credited to the account. [1973 c.411 §14; 1983 c.810 §24; 2001 c.796 §26; 2005 c.726 §1]
ENFORCEMENT
692.380 Courts having jurisdiction; initiation of proceedings. Circuit courts, justice courts and municipal courts sitting as justice courts have concurrent jurisdiction with the circuit courts of the State of Oregon in all prosecutions arising under this chapter. The district attorney is authorized to institute prosecutions for violations of this chapter by information, or prosecutions may be instituted by indictment, or by complaint verified before any magistrate.
692.385 Enforcement proceedings instituted by board; relation to other enforcement provisions. (1) Whenever it appears to the State Mortuary and Cemetery Board that any person is engaged or about to engage in any acts or practices which constitute a violation of any statute administered by the board, or any rule or order issued thereunder, the board may institute proceedings in the circuit courts to enforce obedience thereto by injunction, or by other processes, mandatory or otherwise, restraining such person, or its officers, agents, employees and representatives from further violation of such statute, rule or order, and enjoining upon them obedience thereto.
(2) The provisions of this section are in addition to and not in substitution of any other enforcement provisions contained in any statute administered by the board. [1987 c.252 §3]
692.387 Availability of inspection warrants; effect. Upon application of the State Mortuary and Cemetery Board, or any public officer, agent or employee of the board acting in the course of official duties, magistrates authorized to issue search warrants may issue an inspection warrant whenever an inspection or investigation of any place subject to the jurisdiction of the board is required or authorized. The inspection warrant is an order authorizing the inspection or investigation to be conducted at a designated place subject to jurisdiction of the board. [1987 c.252 §4]
692.389 Issuance of inspection warrant upon cause; supporting affidavit; cause of issuance of warrant. (1) An inspection warrant shall be issued only upon cause, supported by affidavit, particularly describing the applicant’s status in applying for the warrant under ORS 692.387 to 692.393, the statute, ordinance or regulation requiring or authorizing the inspection or investigation, the place to be inspected or investigated and the purpose for which the inspection or investigation is to be made including the basis upon which cause exists to inspect. In addition, the affidavit shall contain either a statement that entry has been sought and refused or facts or circumstances reasonably showing that the purposes of the inspection or investigation might be frustrated if entry were sought without an inspection warrant.
(2) Cause shall be considered to exist if reasonable legislative or administrative standards for conducting a routine, periodic or area inspection are satisfied with respect to the particular place subject to the jurisdiction of the State Mortuary and Cemetery Board, or there is probable cause to believe that a condition of nonconformity with a statute, rule or order within the board’s authority exists with respect to the particular place, or an investigation is reasonably believed to be necessary in order to determine or verify the existence of jurisdiction or of a violation of any statute, rule or order enforceable by the board. [1987 c.252 §5]
692.391 Issuance of inspection warrant by magistrate; examination of applicant; contents and conditions of warrant. (1) Before issuing an inspection warrant, the magistrate may examine under oath the applicant and any other witness until satisfied of the existence of grounds for granting such application.
(2) If the magistrate is satisfied that cause for the inspection or investigation exists and that the other requirements for granting the application are satisfied, the magistrate shall issue the warrant, particularly describing the name and title of the person or persons authorized to execute the warrant, the place to be entered and the purpose of the inspection or investigation. The warrant shall contain a direction that it be executed on any day of the week between the hours of 8 a.m. and 6 p.m., or where the magistrate has specially determined upon a showing that it cannot be effectively executed between those hours, that it be executed at any additional or other time of the day or night. [1987 c.252 §6]
692.393 Execution of inspection warrant; presentation of credentials; authority and purpose; time of expiration. (1) Except as provided in subsection (2) of this section, in executing an inspection warrant, the person authorized to execute the warrant shall, before entry, make a reasonable effort to present the person’s credentials, authority and purpose to an occupant or person in possession of the place designated in the warrant and show upon request to the occupant or person in possession of the place the warrant or a copy thereof.
(2) In executing an inspection warrant, the person authorized to execute the warrant need not inform anyone of the person’s authority and purpose, as prescribed in subsection (1) of this section, but may promptly enter the designated place if it is at the time unoccupied or not in the possession of any person or at the time reasonably believed to be in such condition.
(3) A peace officer may be requested to assist in the execution of the inspection warrant.
(4) An inspection warrant must be executed and returned to the magistrate by whom it was issued within 10 days from its date, unless such magistrate before the expiration of such time, by indorsement thereon, extends the time for five days. After the expiration of the time prescribed by this subsection, the warrant unless executed is void. [1987 c.252 §7]
MISCELLANEOUS
692.405 Identifying receptacle. The funeral service practitioner or person acting as such shall be responsible for causing to be affixed to each receptacle, as defined by rule of the State Mortuary and Cemetery Board, in which a dead human body is contained an identifying metal disc, of a design to be approved by rule of the State Mortuary and Cemetery Board, that shall remain attached to the receptacle in which the body is contained and shall bear a corresponding number that is also on both the death certificate and the final disposition permit. In the event of cremation, the disc shall stay with the cremated remains. [1985 c.207 §20]
PENALTIES
692.990 Penalties. Violation of ORS 692.025 is a misdemeanor. [Amended by 1957 c.596 §9; 1983 c.810 §25]
_______________
Chapter 265 — Cemetery Maintenance Districts
2007 EDITION
CEMETERY MAINTENANCE DISTRICTS
PUBLIC ORGANIZATIONS FOR COMMUNITY SERVICE
265.005 "District" defined
265.010 Formation; filing boundary change with county assessor and Department of Revenue
265.020 Area in which district may not be formed
265.050 Board of directors; terms
265.075 Changing number of members of board of directors
265.100 Organization of board; terms of first directors
265.120 Special elections
265.130 Meetings of board; officers
265.135 Application of ORS chapter 255 to district
265.140 Powers of district
265.150 Disposition of district funds
265.160 Interest on unpaid warrants
265.005 "District" defined. As used in this chapter, "district" means a cemetery maintenance district organized under this chapter. [2003 c.802 §89]
265.010 Formation; filing boundary change with county assessor and Department of Revenue. (1) A cemetery maintenance district may be formed in the manner provided by this chapter.
(2) For purposes of ad valorem taxation, a boundary change must be filed in final approved form with the county assessor and the Department of Revenue as provided in ORS 308.225. [Amended by 1953 c.69 §2; 1957 c.117 §1; 1963 c.519 §34; 1971 c.727 §85; 2001 c.138 §9; 2003 c.802 §90]
265.020 Area in which district may not be formed. A cemetery maintenance district may be formed in an area aggregating not less than 4,000 acres in one body, or in an area of less extent if it has an assessed valuation of not less than $200,000, as shown by the last county assessment roll. [Amended by 1971 c.727 §86]
265.030 [Repealed by 1971 c.727 §203]
265.040 [Amended by 1967 c.609 §2; repealed by 1971 c.727 §191]
265.050 Board of directors; terms. (1) The power and authority given a cemetery maintenance district shall be exercised by and through a board of directors, each member of which shall be an elector of the district.
(2) The electors of a district may elect a board of three directors or five directors.
(3) Except as provided by ORS 265.100, each director shall be elected to serve for a term of four years.
(4) The board of directors shall fill any vacancy on the board as provided in ORS 198.320. [Amended by 1971 c.727 §88; 1973 c.796 §21; 1975 c.647 §25; 1983 c.83 §40; 1983 c.350 §106; 2003 c.284 §1]
265.060 [Repealed by 1971 c.727 §203]
265.070 [Amended by 1961 c.324 §1; repealed by 1971 c.647 §149]
265.075 Changing number of members of board of directors. (1) At a meeting of the board of directors of a cemetery maintenance district, the board may change the number of directors to be elected to the board by a motion approved by an affirmative vote of a majority of the board.
(2) If the board votes to change the number of directors to be elected to the board, the board shall notify the county clerk of the county in which the petition to form the district was filed and the Secretary of State within 30 days of taking action.
(3) If the board votes to increase the number of directors from three to five, two new directors shall be elected at the next regular district election. The board shall specify the term of office of the new directors to maintain the election schedule for a five-member board as specified in ORS 265.100.
(4) If the board votes to decrease the number of directors from five to three, the board shall determine which director positions will be eliminated. A person serving as a director in a position to be eliminated may complete the person's term. The director positions that are eliminated may not be placed on the ballot at a subsequent district election. [2003 c.284 §4]
265.080 [Repealed by 1971 c.727 §203]
265.090 [Repealed by 1971 c.727 §203]
265.100 Organization of board; terms of first directors. (1) Within 10 days after issuance of their certificates of election, the directors elected as the first board of a district shall meet and organize by first taking and subscribing an oath of office to the effect that they will discharge faithfully the duties of their office to the best of their ability. They first shall determine by lot the length of term each shall hold.
(2) If the district has first elected a board of three directors, the term of one director shall expire on June 30 next following the first regular district election and the terms of two directors shall expire on June 30 next following the second regular district election.
(3) If the district has first elected a board of five directors, the term of two directors shall expire on June 30 next following the first regular district election and the terms of three directors shall expire on June 30 next following the second regular district election. [Amended by 1971 c.727 §90; 1973 c.796 §22; 1975 c.647 §26; 1983 c.350 §107; 2003 c.284 §2]
265.110 [Amended by 1967 c.609 §3; 1969 c.669 §5; 1971 c.647 §50; 1973 c.796 §23; 1975 c.647 §27; repealed by 1983 c.350 §331a]
265.120 Special elections. The directors at any regular meeting may call a special election of the electors of the district. [Amended by 1971 c.647 §51]
265.130 Meetings of board; officers. (1) The directors shall hold meetings at such time and place within the district as they may determine upon. They shall hold at least one regular meeting in each month on a day to be fixed by them and may hold such special meetings under such rules as they may make.
(2) The directors shall, at the time of their organization, choose from their number a chairperson, a secretary and a treasurer. The secretary and treasurer may be the same person. All officers shall hold their offices until the first regular meeting in January following election and until their successors are elected and qualified. These officers shall have, respectively, powers to perform the duties usual in such cases.
(3) A majority shall constitute a quorum to do business. [Amended by 1969 c.345 §5]
265.135 Application of ORS chapter 255 to district. (1) ORS chapter 255 governs the following:
(a) The nomination and election of directors.
(b) The conduct of district elections.
(2) The electors may exercise the powers of the initiative and referendum regarding a district measure, in accordance with ORS 255.135 to 255.205. [1983 c.350 §110]
265.140 Powers of district. The board of directors shall transact all business pertinent to the affairs of a cemetery maintenance district. The district has the power:
(1) To sue and be sued.
(2) To purchase, take by gift or devise, own, hold, manage and operate land for cemetery purposes.
(3) To acquire in any manner permitted by law existing cemeteries and to manage, operate, enlarge, maintain and beautify them.
(4) To plat and lay out in suitable cemetery lots and blocks for burial purposes any land it may own or control.
(5) To make such contracts and to purchase and own such personal property as may be necessary or convenient for carrying out the purposes of this chapter.
(6) To sell or perpetually lease cemetery lots or tracts for burial purposes.
(7) To set aside, at the discretion of the board of directors, not to exceed one-half of the moneys derived from the sale or lease of cemetery lots and tracts as an irreducible maintenance fund. Any money gift or bequest, if so designated in the instrument creating the same, shall be placed and held in the irreducible maintenance fund, and the interest of such fund shall be used in the perpetual upkeep and beautification of the cemetery and lots therein. Such fund shall be invested only in such securities as state funds may be invested in by the State Treasurer under the laws of this state.
(8) To do any and all things necessary or convenient for proper ownership, operation, maintenance and management of the district property.
(9) To levy a tax on all taxable property within the district, computed in accordance with ORS 308.207, for the purpose of defraying the expenses of operation of the district and purchase of necessary property therefor. [Amended by 1953 c.53 §2; 1963 c.9 §10; 1971 c.647 §52; 1987 c.531 §1; 2003 c.802 §91]
265.150 Disposition of district funds. (1) All funds collected on behalf of the district through the levy of taxes, and all donations, contributions, bequests or equities, or from any other source, shall be deposited with the county treasurer to the credit of the district fund and, except as otherwise provided in subsection (2) of this section, shall be drawn out only upon proper order and warrant or check. The warrant or check shall bear the signature of the treasurer and countersignature of the chairperson.
(2) At the request of the district, all funds on deposit with the county treasurer to the credit of the district shall be paid over by the county treasurer to the district. [Amended by 1961 c.516 §1]
265.160 Interest on unpaid warrants. All warrants for payment of any indebtedness of the cemetery maintenance district which are unpaid for want of funds shall bear interest at a rate to be fixed by the board of directors, but in no event to exceed six percent per annum from the date of indorsement "not paid for want of funds." The aggregate amount of warrants issued shall not exceed the revenue to be received for the year in which the indebtedness is incurred.
265.170 [Repealed by 1971 c.727 §203]
265.210 [1963 c.389 §1; repealed by 1971 c.727 §203]
265.220 [1963 c.389 §2; repealed by 1971 c.727 §203]
265.230 [1963 c.389 §3; repealed by 1971 c.727 §203]
_______________
Chapter 226 — City Parks, Memorials and Cemeteries
2007 EDITION
CITY PARKS, MEMORIALS AND CEMETERIES
CITIES
GENERAL PROVISIONS
226.010 Control of municipal corporation over property outside its boundaries
PARK COMMISSION IN CITIES OF 3,000 OR MORE
226.110 Definitions for ORS 226.120 to 226.240
226.120 Composition and selection of board of park commissioners
226.131 Vote required for creation of park commission; conduct of election
226.140 Organization of board; compensation
226.150 Duties of secretary
226.160 Duties of treasurer
226.170 Publication of penalties
226.180 Meetings; participation required for business transactions
226.190 Prohibition of interest in contracts
226.200 Taxing power of board
226.210 General powers of board; rules
226.220 Vote required for special tax levy
226.230 Dissolution of board and transfer of powers
- Transfer of functions on favorable vote
PARKS, MEMORIALS AND OTHER PUBLIC GROUNDS IN CITIES OF 5,000 OR MORE
226.310 Definition of “city” for ORS 226.320 to 226.400; public character of use
226.320 Authority to acquire land for certain purposes
226.330 Appropriation in excess of needs
226.340 Terms of appropriation ordinance
226.350 Sale of excess land; restrictive covenants in deed of resale
226.360 Application of proceeds from sale of excess land
226.370 Notice and conduct of sale of excess land
226.380 Condemnation procedure
226.390 Financing of projects by bond issues
226.400 Construction of memorials or veterans’ facilities in parks within city limits
MUNICIPAL CEMETERIES
226.410 Authority to establish cemeteries and crematoria within or without city limits
226.420 Acquisition of property of cemetery association
226.430 Control by city after conveyance
226.440 Sale of lots by city
226.450 Authority to expend funds for maintenance of cemeteries
ABANDONED CEMETERIES
226.510 Abandoned cemeteries declared a menace to public health, safety and welfare; acquisition and removal of such cemeteries declared to be public uses
226.520 Definitions for ORS 226.510 to 226.630
226.530 Powers of city to acquire and remove cemeteries to another site
226.540 Public hearing concerning abandoned cemetery
226.550 Governing body to publish resolution or ordinance upon finding that cemetery should be discontinued
226.560 City may expend public funds for disinterment, removal and reinterment of remains from abandoned cemetery
226.570 Power of city to condemn cemetery
226.580 Parties defendant to suit to condemn
226.590 Service of summons
226.600 Effect of service by publication on person or parties in interest
226.610 Compensation for condemned property determined by jury; factors considered
226.620 City which acquires abandoned cemetery to proceed with disinterment, removal and reinterment of remains
226.630 Acts to be done by city in disinterring, removing and reinterring remains; compliance with section a defense in action for damages
PENALTIES
226.990 Penalties
GENERAL PROVISIONS
226.010 Control of municipal corporation over property outside its boundaries. Every incorporated city or municipal corporation owning or controlling any lands without its boundaries may enact any police or penal ordinance necessary to protect the same or preserve the peace and order therein or regulate the use of such park, enforce the ordinance by penalties of fine or imprisonment and make arrests and serve process of courts therein or upon persons therein or thereon in like manner and with like effect as the same might be enacted or enforced within its corporate limits.
PARK COMMISSION IN CITIES OF 3,000 OR MORE
226.110 Definitions for ORS 226.120 to 226.240. As used in ORS 226.120 to 226.240, unless the context requires otherwise:
(1) “Board” means board of city park commissioners.
(2) “City” means incorporated city containing not less than 3,000 inhabitants.
(3) “Commissioner” means city park commissioner. [Amended by 2005 c.22 §171]
226.120 Composition and selection of board of park commissioners. The board of park commissioners of the city shall be composed of the mayor and city engineer, if there is one, and if not, the city auditor, together with five citizens thereof, to be appointed by the circuit court in which the city is located. If there is more than one circuit judge in the circuit in which the city is located, the appointment shall be made by all the judges acting together. Not more than three citizens so appointed to the board shall be of the same political party.
226.130 [Repealed by 1983 c.350 §53 (226.131 enacted in lieu of 226.130)]
226.131 Vote required for creation of park commission; conduct of election. The question whether ORS 226.110 to 226.240 shall take effect in a city shall be decided by election as provided in this section. The governing body may submit the question to the electors of the city at an election on a date specified in ORS 221.230. The election shall be conducted under ORS chapters 246 to 260. [1983 c.350 §54 (enacted in lieu of 226.130)]
226.140 Organization of board; compensation. The commissioners shall organize at a meeting thereof, to be called by the mayor not less than 30 nor more than 60 days after appointment of the commissioners is complete. The mayor shall be chairperson of the board. Whenever a vacancy occurs in the board appointed under ORS 226.120, the proper judge or judges shall fill the vacancy. Commissioners shall not receive compensation for their services as such.
226.150 Duties of secretary. The board shall appoint a secretary, who shall keep an accurate record of all proceedings of the board, including all rules and regulations adopted for government or use of the parks.
226.160 Duties of treasurer. The city treasurer shall be treasurer of the board. The treasurer shall keep an accurate account of all moneys received and paid out on account of the board apart from all other accounts, and shall pay out no moneys on account of the board, except upon a warrant drawn upon the treasurer by the chairperson or acting chairperson, countersigned by the secretary or acting secretary, of the board.
226.170 Publication of penalties. The rules and regulations of the board for violation of which penalties are fixed shall be made public, as the board determines.
226.180 Meetings; participation required for business transactions. Regular meetings of the board shall be held on the first Tuesday of each month. Special meetings may be called by the chairperson upon application of three members of the board. No business shall be transacted at any meeting of the board without the presence of three or more of the commissioners. No land shall be purchased without concurrence of a majority of the board.
226.190 Prohibition of interest in contracts. No commissioner shall be interested in any contract to which the board of which the commissioner is a member is a party or in which it is interested.
226.200 Taxing power of board. The board, at any of its regular meetings, may assess a tax, not exceeding one-half mill on the dollar in any one year, upon the taxable property of the city of which it is the board. This tax shall be collected like other city taxes and when so collected shall be exclusively under the control of the commissioners, and shall be exclusively used for park purposes according to their judgment.
226.210 General powers of board; rules. (1) The board shall have full and exclusive control of all parks within or connected with its respective city. For that purpose it may:
(a) Lay out and improve such parks.
(b) Appoint all necessary engineers, surveyors and all other employees, including a police force to act in the parks and fix the amount of their compensation.
(c) Do all acts needful and proper for the protection, care or improvement of the parks.
(d) Make all necessary rules or regulations for the use or government of the parks.
(e) Affix penalties for breaches of the rules or regulations made under paragraph (d) of this subsection. These penalties shall not exceed $20 for any one offense and shall be collected as other fines and penalties are collected in the city where such offense is committed.
(f) Acquire title by purchase, gift, devise or otherwise, to any land it deems desirable for parks, the title to be taken in the name of the city.
(2) The board shall disburse all moneys appropriated, given, received or collected for the improvement or use of the parks.
(3) All contracts for the purchase of land for park purposes shall be made by the board.
(4) If the board, being desirous of acquiring any land for any park, cannot agree with the owner as to the amount to be paid therefor, the board may proceed in the circuit court of the county in which the land is situated, as provided in ORS 223.005 to 223.020 for the appropriation of such land for park purposes.
226.220 Vote required for special tax levy. (1) If necessary, the board may provide for payment of land purchases under ORS 226.210 (1)(f) by a special tax, not to exceed one-half mill on the dollar in any one year, on taxable property in the city, to be levied by the board and collected like other city taxes.
(2) Before such tax shall be levied and upon written application of the board, signed by its chairperson and secretary and filed with the proper city official in such cases, the city council, in the manner provided in subsection (3) of this section, shall submit the proposition of the special tax levy to electors of the city at an election on a date specified in ORS 221.230.
(3) If the proposition is approved, the special tax shall be levied and collected as provided in ORS 226.200; otherwise the levy shall not be made.
(4) This section does not apply to the ordinary tax for park purposes as provided by ORS 226.200. [Amended by 1983 c.350 §55]
226.230 Dissolution of board and transfer of powers. If the governing body of a city with a park board created under ORS 226.120 decides that the city should abolish the board and transfer its powers, functions and duties, as defined in ORS 226.110 to 226.220, to the governing body of the city, the governing body shall submit the question of the transfer to the electors of the city. The election shall be held on a date specified in ORS 221.230. [Amended by 1983 c.350 §56]
226.240 Transfer of functions on favorable vote. If the electors of the city approve abolition of the park board under ORS 226.230, the park commission shall cease and the offices of park commissioner terminate within 30 days after the returns of the election have been canvassed. Thereafter, all powers, functions and duties of the park commission shall be exercised and performed by the city council or city commission exclusively, to the same extent as if those powers, functions and duties had originally been vested in and exercised by the city council or the city commission. [Amended by 1983 c.350 §57]
PARKS, MEMORIALS AND OTHER PUBLIC GROUNDS IN CITIES OF 5,000 OR MORE
226.310 Definition of “city” for ORS 226.320 to 226.400; public character of use. (1) As used in ORS 226.320 to 226.400, “city” means any incorporated city having 5,000 inhabitants or more.
(2) The taking, using, acquiring and appropriating of private property for any purpose specified in ORS 226.320 to 226.390 is declared to be done for public use.
226.320 Authority to acquire land for certain purposes. Whenever the municipal authorities determine by ordinance to do so, the city may purchase, acquire, take, use, enter upon and appropriate land and property within or without its corporate limits for the purpose of:
(1) Public squares, parks, memorial monuments or buildings, pioneer memorials, pioneer museums, memorials and monuments to United States war veterans, sites or buildings for meeting places for such war veterans, auto campgrounds, playgrounds or comfort stations.
(2) Enlarging any public square, park, auto campground, playground or comfort station.
226.330 Appropriation in excess of needs. The city may purchase, acquire, take, use, enter upon and appropriate land and property in excess of what may be needed for any public squares, parks or playgrounds.
226.340 Terms of appropriation ordinance. (1) In the ordinance providing for an appropriation under ORS 226.330, the municipal authorities shall specify and describe the land authorized to be taken, purchased, acquired, used and appropriated. Such land shall not embrace more than 200 feet beyond the boundary line of the property to be used for the public squares, parks or playgrounds in order to protect the same by resale of the neighboring property with restrictions whenever the council determines thereon by ordinance.
(2) The council shall declare in the ordinance that the control of the neighboring property within 200 feet of the boundary lines of the public squares, parks or playgrounds is reasonably necessary in order to protect the public squares, parks or playgrounds, their environs, the preservation of the view, appearance, light, air, health or usefulness thereof.
226.350 Sale of excess land; restrictive covenants in deed of resale. After so much land and property referred to in ORS 226.330 as is needed has been appropriated for public squares, parks or playgrounds, the municipal authorities of the city may by ordinance authorize the sale of the remainder of such land or property and impose such restrictions in any deed of resale as may be deemed necessary or proper. The ordinance shall specify correctly and describe the land or property to be sold, and the restrictions in regard to the use thereof. The restrictions shall fully insure the protection of the public squares, parks, or playgrounds, their environs, the preservation of the view and appearance, light, air, health or usefulness thereof, whenever the council shall by ordinance determine thereon and which are to be imposed and inserted in the deed of resale.
226.360 Application of proceeds from sale of excess land. The proceeds from resale of any neighboring property taken in excess of what may be necessary for actual construction, opening, widening, extending and laying out of any public square, park or playground as provided in ORS 226.310 to 226.390 shall be deposited in the city treasury and used in payment of interest and as a sinking fund to retire any bond issues authorized under ORS 226.390. Any surplus arising from such transaction shall be turned over to and for the use of the park department of the city.
226.370 Notice and conduct of sale of excess land. Before selling the neighboring lands or property acquired under ORS 226.320 to 226.360, or any part thereof or any right or interest therein, the municipal authorities of the city shall give a notice of such sale by publication for five successive days in one or more daily newspapers of the city having a general circulation therein and by posting a similar notice in two conspicuous places in or upon the property described and referred to in the notice. The notice shall describe the property to be sold and shall state any restrictions under which the property will be sold and the terms of sale. The notice shall further state that sealed proposals will be received by an officer of the city named in the notice at the office of the officer for such purchase until the day and hour named therein. At the time appointed, such municipal authority shall open the proposals and shall either award to the highest responsible bidder for the purchase of the property; or at their discretion, reject any or all bids, and readvertise in the manner provided in this section.
226.380 Condemnation procedure. When it is intended by the municipal authorities of the city to take, use and appropriate private property for any of the purposes mentioned in ORS 226.320 to 226.340 and the owners and the municipal authorities cannot agree upon compensation and damages arising therefrom, compensation and damages shall be considered, ascertained, determined, awarded and paid in the manner provided by general laws relative to condemnation or by such means as may be prescribed by the city charter for widening, opening, laying out or extending streets, or for acquiring private property for park purposes, at the option of the municipal authorities.
226.390 Financing of projects by bond issues. The municipal authorities may issue bonds for the costs and expenses of acquiring the private property for any of the purposes mentioned in ORS 226.320 to 226.380. The bonds shall be at such rate of interest and for such length of time as the municipal authorities determine, shall be advertised and sold in such manner as the municipal authorities determine and shall be a general obligation of the city. The municipal authorities shall, at the time of issuing the bonds, make provisions for the payment of interest and a sinking fund for the retirement thereof.
226.400 Construction of memorials or veterans’ facilities in parks within city limits. The city may permit and authorize the following uses of parks, which are lawful uses of any grounds or premises dedicated as public parks, unless the use thereof for such purposes is forbidden by the terms of the conveyance creating such parks:
(1) The erection and construction of memorial monuments and buildings.
(2) Pioneer memorials and pioneer museums.
(3) Memorials and monuments to United States war veterans.
(4) Buildings for meeting places of pioneer associations or veterans upon any public park within the limits of the city. [Amended by 2005 c.22 §172]
MUNICIPAL CEMETERIES
226.410 Authority to establish cemeteries and crematoria within or without city limits. Any incorporated city may acquire, own, maintain and operate cemeteries and crematoria either inside or outside its corporate limits, in accordance with such plans as the city governing body deems best.
226.420 Acquisition of property of cemetery association. Any incorporated city may acquire, by purchase or gift, any ground or other property belonging to any cemetery association, situate within the corporate limits of the city, for the purpose of owning, controlling or operating such cemetery and the interment of the body of any deceased person therein, or the disinterment and removal to a different cemetery of the body of any person buried therein, or for any other purpose.
226.430 Control by city after conveyance. Whenever any cemetery association transfers to any incorporated city, as provided in ORS 226.420, the ground and property of such cemetery association, from and after such transfer the city shall have exclusive control of such cemetery and all property connected therewith.
226.440 Sale of lots by city. Any incorporated city acquiring incorporated cemetery association property as provided in ORS 226.420, may sell or otherwise dispose of any lots or blocks situate in and being a part of such cemetery in the manner prescribed by the common council of such city.
226.450 Authority to expend funds for maintenance of cemeteries. All cities owning and controlling lands, lots or parcels of ground used for cemetery purposes may expend, for the purpose of beautifying, caring for and keeping up all such lands and premises, such public funds as have been included for that purpose in their annual budget.
226.480 [1953 c.51 §1; repealed by 1981 c.48 §8]
226.490 [1971 c.38 §1; repealed by 1981 c.48 §8]
ABANDONED CEMETERIES
226.510 Abandoned cemeteries declared a menace to public health, safety and welfare; acquisition and removal of such cemeteries declared to be public uses. It hereby is found and declared:
(1) That there exists within municipal corporations of the state, cemeteries which have been abandoned and cemeteries which have deteriorated and become dilapidated and overgrown with weeds, trees, shrubs or other uncontrolled growth.
(2) That such cemeteries, by reason of their unsightly appearance, fire hazard, and by reason of their providing a place of concealment conducive to criminal activities and juvenile delinquency, constitute a menace to the health, safety, morals and welfare of the residents of such municipal corporations; and that these conditions necessitate the use of public funds for crime prevention, fire protection, control of juvenile delinquency, accident protection and other public services and facilities.
(3) That the clearance and removal of such cemeteries are public uses and purposes for which public money may be spent, private property acquired, and are governmental functions of municipal and state concern.
(4) That the varied nature of ownership of cemetery plots, the diverse ownership of land, the difficulty of locating interested persons, the existence of unknown graves and remains and other conditions prevent an orderly removal of such remains and clearance of such cemeteries, and because of such conditions, it is in the public interest that such cemeteries be acquired by municipal corporations by eminent domain or otherwise, for the orderly removal of such remains to other suitable place or places and the discontinuance of such cemeteries and the exercise of the power of eminent domain, and the financing of the acquisition and preparation of land by a municipal corporation for disinterment and reinterment is declared a public use and purpose. [1953 c.298 §1]
226.520 Definitions for ORS 226.510 to 226.630. As used in ORS 226.510 to 226.630:
(1) “Abandoned cemetery” means any cemetery in which no remains of deceased persons have been interred for a period of five years.
(2) “Cemetery” means any tract of land set apart by deed, will or otherwise, for a burial ground, or for the purpose of interring the remains of deceased persons.
(3) “Diligent search” means a search as shall be reasonably calculated to discover:
(a) Graves from the existence of monuments, contour of land and terrain, fencing, curbing and other evidences of the location of graves; and
(b) The location of human remains and the determination as to whether or not a given plot contains such remains, for which it shall be sufficient to employ the method commonly known as probing.
(4) “Municipal corporation” means the governing body of any city incorporated under the laws of this state.
(5) “Remains” means the remains of any deceased person.
(6) “Suitable location” means any cemetery, now in existence or hereafter established, including a portion of any cemetery subject to the provisions of ORS 226.510 to 226.630, where provision is made for the perpetual care and upkeep of the graves. [1953 c.298 §2; 2005 c.22 §173]
226.530 Powers of city to acquire and remove cemeteries to another site. Any municipal corporation, by and through its governing body, in addition to the powers and privileges heretofore conferred upon municipal corporations by the laws of this state, shall for the purposes of ORS 226.530 to 226.630 have the power to:
(1) Acquire cemeteries and cemetery properties, by eminent domain, conveyance or otherwise.
(2) Acquire real property for the purpose of reinterment of remains.
(3) Disinter remains and remove all gravestones, monuments or other evidences of the location or existence of graves, and to move the same to another site.
(4) Sell, lease or convey land acquired under the authority of ORS 226.530 to 226.630, or through voluntary transfers or otherwise. [1953 c.298 §3]
226.540 Public hearing concerning abandoned cemetery. The governing body of any municipal corporation that has within its boundaries a cemetery that has been abandoned, or that has deteriorated and become neglected, and so located as to endanger the health, welfare, comfort or safety of the public, may upon petition signed by not less than 10 percent of the electors of the municipal corporation, and filed with the recorder, or similar officer thereof, set a date for public hearing, and give notice thereof by publication, once a week for two successive weeks, prior to the hearing, in a newspaper having general circulation within the county in which the municipal corporation is located, said public hearing to be had within 60 days after the filing of such petition. [1953 c.298 §4; 2005 c.22 §174]
226.550 Governing body to publish resolution or ordinance upon finding that cemetery should be discontinued. Upon a finding by the governing body of a municipal corporation, after such hearing, that a cemetery located within such corporation is abandoned, or has become deteriorated or dilapidated and overgrown with weeds, trees, shrubs or other uncontrolled growth, and is so located as to endanger the health, welfare, comfort or safety of the public, and that the public welfare requires that such cemetery be discontinued, relocated and cleared, the governing body shall publish its findings by ordinance or resolution. [1953 c.298 §5]
226.560 City may expend public funds for disinterment, removal and reinterment of remains from abandoned cemetery. Upon the adoption of a resolution or ordinance, as provided for by ORS 226.540 and 226.550, the governing body of said municipal corporation may provide for the expenditure of public funds necessary for the disinterment, removal and reinterment of remains and any and all other expenses incident thereto, including, but not limited to, acquisition of property, cost of court proceedings, publications, fees and other incidental expenses incurred in connection with any proceeding under the provisions of ORS 226.510 to 226.630, and may include the same in the next annual budget of such municipal corporation. [1953 c.298 §6]
226.570 Power of city to condemn cemetery. Upon the adoption by the governing body of a municipal corporation of an ordinance or resolution, as provided by ORS 226.540 and 226.550, such governing body shall have the authority, by an action filed in the circuit court of the State of Oregon for the county in which such municipal corporation is located to condemn any cemetery subject to condemnation by the provisions of ORS 226.510 to 226.630. [1953 c.298 §7; 1979 c.284 §124]
226.580 Parties defendant to suit to condemn. The complaint in any suit brought under the provisions of ORS 226.510 to 226.630 shall include as defendants the names of all record owners of lots, or plots located in the cemetery sought to be condemned or any portion or parcel of such cemetery, and the names of the heirs of all record owners as shown by the probate records of the county in which such cemetery is located, and shall include any and all other persons having or claiming any interest of any kind or nature in such cemetery, or any lot or plot thereof, who may be joined as defendants and designated as “all other persons or parties having or claiming any right, title, estate or interest.” [1953 c.298 §8]
226.590 Service of summons. The summons in the action shall be served on all named defendants who, by diligent search, can be found, in a like manner as service of summons in a civil action. Service of summons on named defendants who cannot be found may be made by publication as provided in ORCP 7. Service of summons on the defendants included in the complaint as “all other persons or parties having or claiming any right, title, estate or interest” may be made by publication. The manner of making publication in the case of those defendants designated as “all other persons or parties having or claiming any right, title, estate or interest” shall be the same as provided in the order for publication of summons in the case of named defendants, except that no order shall be required. [1953 c.298 §9; 1979 c.284 §125]
226.600 Effect of service by publication on person or parties in interest. All such persons or parties having or claiming any right, title, estate or interest in the real property in controversy, so served by publication as in ORS 226.590 provided, shall have the same rights as provided by law in case of all other defendants upon whom service is made by publication, and the suit shall proceed against such persons in the same manner as against defendants who are named, upon whom service is made by publication, and with like effect; and any such persons or parties who claim any right, title, estate or interest in said real property in controversy, at the time of the commencement of the suit, duly served as aforesaid, shall be found and concluded by the judgment in such suit, and if the same is in favor of the plaintiff therein, as effectually as if the suit was brought against such defendant by his or her name and constructive service obtained. [1953 c.298 §10; 2003 c.576 §401]
226.610 Compensation for condemned property determined by jury; factors considered. The matter of compensation, if any, shall be determined by a jury called for such purpose; and the court shall, in addition to other instructions, instruct that the jury shall consider the following factors as a benefit and offset:
(1) The cost of a suitable reinterment site.
(2) The cost of preparation of site and its perpetual care and maintenance.
(3) The cost of removal and reinterment of remains.
(4) The cost of such marker or monument as may be placed at the site of reinterment. [1953 c.298 §11]
226.620 City which acquires abandoned cemetery to proceed with disinterment, removal and reinterment of remains. Whenever any municipal corporation shall have proceeded under ORS 226.510 to 226.630, and a judgment of the court shall vest in said municipal corporation the title to such cemetery properties, as referred to herein, by eminent domain, such municipal corporation shall proceed with the removal of remains, stones, monuments and any and all evidences of a grave, and provide for reinterment in a suitable location, within a reasonable time after the entry of a general judgment, and the expiration of the time for appeal therefrom, or the final disposition of any appeal which may be filed in connection with the judgment. [1953 c.298 §12; 2003 c.576 §402]
226.630 Acts to be done by city in disinterring, removing and reinterring remains; compliance with section a defense in action for damages. (1) The removal of remains, headstones and other evidence of the locations of graves, and the clearance of the cemetery property, may be done under the direct supervision of the governing body of the municipal corporation, or such commission as such governing body may appoint, and such removal, reinterment, clearance and other acts in connection with this program shall be sufficient, if the following specific acts are done:
(a) If all of the remains that can be located within said cemetery, after a reasonable search for such remains, as in ORS 226.520 defined, has been conducted, are removed in a manner reasonably providing for respectful and careful treatment of such remains, and providing for reinterment and recommitment, in a respectful manner.
(b) If the identity of remains is preserved in so far as reasonably practicable, having due regard to the conditions of the cemetery, the condition and location, or dislocation of stones and monuments, and other factors related to the particular project, and, in so far as practicable, the identity shall be shown upon the relocation of said graves in a new location, by the erection of suitable markers at the location of such graves.
(c) In the event that there are remains in such cemetery which cannot be identified, all of such remains may be interred in a section of the new cemetery site, and the same may be marked by one suitable monument, which shall contain the names of persons, known to have been interred in said cemetery, but whose remains could not be identified.
(2) It shall be a complete defense, in any action brought by any person for damages against the municipal corporation, or other persons or organization affecting such relocation and reinterment, as above described, upon any grounds whatever, to plead and prove a substantial compliance with the provisions of this section. [1953 c.298 §13]
PENALTIES
226.990 Penalties. Violation of ORS 226.190 is punishable, upon conviction, in the same manner and to the same extent as for a crime defined in ORS 164.043, 164.045, 164.055 and 164.057. [Amended by 1971 c.743 §347; 1987 c.907 §14]
Chapter 97 — Rights and Duties Relating to Cemeteries, Human Bodies and Anatomical Gifts
2007 EDITION
CEMETERIES, HUMAN BODIES AND ANATOMICAL GIFTS
PROPERTY RIGHTS AND TRANSACTIONS
GENERAL PROVISIONS
97.010 Definitions
97.020 Exemption of certain organizations and cemeteries from certain sections of chapter
97.030 Vested rights not acquired
97.040 Private family burial grounds
AUTOPSIES
97.082 Consent for certain autopsies; form
DISPOSITION OF HUMAN BODIES
97.110 Human remains not to be attached
97.120 Human remains to be deposited in accordance with ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990
97.130 Right to control disposition of remains; delegation
97.145 Liability for failure to conform to written instrument directing control of remains
97.150 Disposition of cremated remains; procedures; notice; actions against cemetery or funeral service providers
97.153 Diagnostic or therapeutic radioisotopes in body
97.160 Duty of hospital or sanitarium to notify before sending remains to undertaker; procedures
97.170 Disposition of body of indigent or child in custody of Department of Human Services
97.180 Period within which body may not be used
97.190 Post-mortem examination of body
97.200 Disposition of remains after educational use thereof
97.210 Exceptions to application of ORS 97.170 to 97.200; rules
97.220 Disinterment
DEDICATION TO CEMETERY PURPOSES; PLATTINGS
97.310 Survey and subdivision of land; map or plat of mausoleum or columbarium; access easement
97.320 Filing map or plat and declaration of dedication of land to cemetery purposes
97.330 When dedication is complete
97.340 Effect of dedication
97.350 Dedication to cemetery purposes not invalid
97.360 Resurvey and alteration in shape or size; vacation of streets, walks, driveways and parks and replatting into lots
97.370 Fixing date of hearing; notice
97.380 Hearing; order allowing replatting
97.390 Assessment of benefits and damages
97.400 Disposal of newly created lots; disposition and use of proceeds from sale; failure of owner to perform duties
97.410 Right of adjacent lot owner upon vacation of way
97.420 Effect of failure to object
97.430 Declaration of exercise of police power and right of eminent domain
97.440 Removal of dedication
97.445 Vacating county interest in cemetery real property
97.450 Discontinuance of cemetery and removal of remains and markers
97.460 Approval required prior to establishment of cemetery or burial park
SALES AND RIGHTS IN RESPECT OF CEMETERY PLOTS
97.510 Sale and conveyance of plots by cemetery authority
97.520 Sale or offer to sell cemetery plot upon promise of resale at financial profit
97.530 Commission, bonus or rebate for sale of plot or services
97.540 Commission, bonus or rebate for recommendation of cemetery
97.550 Plots are indivisible
97.560 Presumption of sole ownership in grantee of plot
97.570 Spouse has vested right of interment
97.580 Divestiture of spouse’s right of interment
97.590 Transfer of plot or right of interment
97.600 Descent of plot
97.610 Determining occupant of burial plot having coowners
97.620 Death of coowner; authorization to use plot under directions of surviving owners
97.630 Family plots; order of occupation
97.640 Waiver or termination of vested right of interment
97.650 Limitations upon vested right of interment
CEMETERY MANAGEMENT
97.710 Power of cemetery to make rules and regulations
97.720 Record of interments and cremations; inspection
97.730 Gifts and bequests in trust for cemeteries
INDIAN GRAVES AND PROTECTED OBJECTS
97.740 Definitions for ORS 97.740 to 97.760
97.745 Prohibited acts; application; notice
97.750 Permitted acts; notice
97.760 Civil action by Indian tribe or member; time for commencing action; venue; damages; attorney fees
OREGON COMMISSION ON HISTORIC CEMETERIES
97.772 Definition of “historic cemetery”
97.774 Oregon Commission on Historic Cemeteries; terms
97.776 Commission members; nominations
97.778 Chairperson; quorum; meetings
97.780 Duties
97.782 Listing of historic cemeteries; form
97.784 Executive secretary; support services
CEMETERY CARE
97.810 Endowment care and nonendowed care cemeteries
97.820 Placing cemetery under endowed care; deposit; commingling endowment and special care funds; trustee or custodian of fund
97.825 Suits to enforce endowed care statutes; attorney fees
97.830 Investment and reinvestment of principal of endowed care funds; use and application of income
97.835 Limitation of duties and liability of trustee
97.840 Cemetery authority authorized to receive and hold gifts of property; disposition of gifts
97.850 Endowment and special care funds are charitable
97.860 Agreements for care
97.865 Application of ORS 97.810 to 97.865 to religious, county and city cemeteries
97.870 Unused and uncared for portions of cemetery declared common nuisances
97.880 Resolution declaring a nuisance
97.890 Complaint
97.900 Summons
97.910 Disuse as prima facie evidence of abandonment
97.920 Judgment declaring nuisance, authorizing abatement and creating and foreclosing lien
PREARRANGEMENT SALES AND PRECONSTRUCTION SALES
97.923 Definitions for ORS 97.923 to 97.949
97.925 Purpose
97.927 Applicability of ORS 97.923 to 97.949
97.929 Exceptions to ORS 97.923 to 97.949
97.931 Registration of salesperson for endowment care cemeteries, preconstruction sales and prearrangement sales; rules; background check; civil penalties
97.933 Certification of provider of prearrangement or preconstruction sales; annual reports; audits; fees
97.935 Registration of master trustees; annual reports; annual audits; rules; fees
97.937 Deposit of trust funds made by endowment care cemeteries
97.939 Prearrangement or preconstruction sales contracts; contents; delivery
97.941 Prearrangement or preconstruction trust fund deposits
97.943 Distributions from prearrangement trust fund deposits
97.944 Distributions from preconstruction trust fund deposits
97.945 Funeral and Cemetery Consumer Protection Trust Fund; fee; rules
97.946 Advertising and marketing prohibitions
97.947 Examination of providers and master trustees by director; subpoena power; depositions
97.948 Grounds for discipline by director for violation of ORS 97.923 to 97.949; suspension and revocation of certificate or registration; civil penalties; notification of board
97.949 Notification by director to appropriate federal, state or local law enforcement officer of violation of ORS 97.923 to 97.949
ANATOMICAL GIFTS
97.950 Definitions for ORS 97.950 to 97.964
97.952 Personal authority to make anatomical gift; procedure; delegation; transfer of donor designation information to procurement organization
97.954 Authority to make anatomical gift of body of decedent; priority; procedure
97.956 Authority of medical examiner or local public health officer over body within examiner’s jurisdiction or officer’s custody; documentation
97.958 Duties of hospital staff at or near time of patient’s death; notification of procurement organization and persons authorized to make anatomical gift; search for document of gift
97.960 Delivery of document of anatomical gift; effect on validity of gift
97.962 Rights of procurement organization accepting anatomical gift; autopsies
97.964 Anatomical gift as authorization for examination to assure medical acceptability
97.966 Liability of executor who carries out anatomical gift
97.968 Transplants not covered by implied warranty
FEDERAL AID FOR CEMETERIES
97.975 Department of Transportation use of federal moneys for cemetery care
PENALTIES
97.990 Penalties
97.992 Penalties for ORS 97.937
97.994 Penalties for ORS 97.931, 97.933 and 97.941
GENERAL PROVISIONS
97.010 Definitions. As used in ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990:
(1) “Human remains” or “remains” means the body of a deceased person in any stage of decomposition or after cremation.
(2) “Cemetery” means any place dedicated to and used, or intended to be used, for the permanent interment of human remains.
(3) “Burial park” means a tract of land for the burial of human remains in the ground used, or intended to be used, and dedicated for cemetery purposes.
(4) “Mausoleum” means a structure for the entombment of human remains in crypts or vaults in a place used, or intended to be used, and dedicated for cemetery purposes.
(5) “Crematory” means a structure containing a retort for the reduction of bodies of deceased persons to cremated remains.
(6) “Columbarium” means a structure or room containing niches for permanent inurnment of cremated remains in a place used, or intended to be used, and dedicated for cemetery purposes.
(7) “Interment” means the disposition of human remains by cremation, inurnment, entombment or burial.
(8) “Cremation” means the reduction of a body of a deceased person to cremated remains in a crematory.
(9) “Inurnment” means placing cremated remains in an urn and depositing it in a niche.
(10) “Entombment” means the placement of human remains in a crypt or vault.
(11) “Burial” means the placement of human remains in a grave.
(12) “Grave” means a space of ground in a burial park used, or intended to be used, for burial of the remains of one person.
(13) “Crypt” or “vault” means a space in a mausoleum of sufficient size used, or intended to be used, to entomb uncremated human remains.
(14) “Niche” is a recess in a columbarium used, or intended to be used, for the interment of the cremated remains of one or more persons.
(15) “Cemetery authority” includes cemetery corporation, association, corporation sole or other person or persons owning or controlling cemetery lands or property.
(16) “Cemetery association” means any corporation or association authorized by its articles to conduct any or all the businesses of a cemetery, but does not include a corporation sole or a charitable, eleemosynary association or corporation.
(17) “Cemetery business,” “cemetery businesses” and “cemetery purposes” are used interchangeably and mean any business and purpose requisite or incident to, or necessary for establishing, maintaining, operating, improving or conducting a cemetery, interring human remains, and the care, preservation and embellishment of cemetery property.
(18) “Directors” or “governing body” means the board of directors, board of trustees, or other governing body of a cemetery association.
(19) “Lot,” “plot” or “burial space” means space in a cemetery owned by one or more individuals, an association or fraternal or other organization and used, or intended to be used, for the permanent interment therein of the remains of one or more deceased persons. Such terms include and apply with like effect to one, or more than one, adjoining grave, crypt, vault or niche.
(20) The term “plot owner” or “owner” means any person in whose name a burial plot stands as owner of the right of sepulture therein in the office of the cemetery authority, or who holds from such cemetery authority a conveyance of the right of sepulture or a certificate of ownership of the right of sepulture in a particular lot, plot or space.
(21) “Endowment care” means the general care and maintenance of developed portions of a cemetery and memorials erected thereon financed from the income of a trust fund established and maintained pursuant to the provisions of ORS 97.810 to 97.865. Endowment care cemeteries owned by a city or a county may supplement their general care and maintenance trust funds from general revenues.
(22) “Special care” is any care in excess of endowed care in accordance with the specific directions of any donor of funds for such purposes. [Amended by 1955 c.545 §1; 1965 c.396 §1]
97.020 Exemption of certain organizations and cemeteries from certain sections of chapter. (1) The provisions of ORS 97.030, 97.120, 97.310 to 97.350, 97.360 (1), 97.510 and 97.550 relating to private cemeteries do not apply to:
(a) Any religious or eleemosynary corporation, church, religious society or denomination, corporation sole administering temporalities of any church or religious society or denomination or any cemetery that such entity organizes, controls or operates.
(b) Any county or city cemetery.
(2) The provisions of ORS 97.810 to 97.865 relating to private cemeteries do not apply to:
(a) Any religious or eleemosynary corporation, church, religious society or denomination, corporation sole administering temporalities of any church or religious society or denomination or any cemetery that such entity organizes, controls or operates, unless the cemetery authority for an entity described in this paragraph elects to subject itself to ORS 97.810 to 97.865.
(b) Any county or city cemetery, unless the county or city elects to subject itself to ORS 97.810 to 97.865. [Amended by 1955 c.473 §1; 1997 c.167 §1]
97.030 Vested rights not acquired. No cemetery authority or person having a right of sepulture or any other right under ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990 acquires any vested right by virtue thereof which the Legislative Assembly may not subsequently amend, alter or repeal.
97.040 Private family burial grounds. Except for ORS 97.730, 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990 do not apply to private family burial grounds where lots are not offered for sale.
97.050 [1977 c.183 §1; 1983 c.526 §4; 1985 c.747 §49; 1987 c.660 §16; 1989 c.1034 §8; renumbered 127.605 in 1989]
97.055 [1977 c.183 §2; 1979 c.211 §1; 1983 c.526 §5; renumbered 127.610 in 1989]
97.060 [1977 c.183 §3; renumbered 127.615 in 1989]
97.065 [1977 c.183 §4; renumbered 127.620 in 1989]
97.070 [1977 c.183 §5; renumbered 127.625 in 1989]
97.075 [1977 c.183 §6; repealed by 1983 c.526 §7]
97.080 [1977 c.183 §7; renumbered 127.630 in 1989]
AUTOPSIES
97.082 Consent for certain autopsies; form. (1) Except as provided in subsection (2) of this section, whenever a person dies and no autopsy is ordered by a medical examiner or district attorney pursuant to ORS 146.117, an autopsy may not be conducted without the prior written consent of a person within the first applicable class of the following listed classes:
(a) The spouse of the decedent;
(b) A son or daughter of the decedent 18 years of age or older;
(c) Either parent of the decedent;
(d) A brother or sister of the decedent 18 years of age or older;
(e) A guardian of the decedent at the time of death;
(f) A person in the next degree of kindred to the decedent;
(g) The personal representative of the estate of the decedent; or
(h) The person nominated as the personal representative of the decedent in the decedent’s last will.
(2)(a) Consent required under subsection (1) of this section must be granted on a written autopsy consent form developed pursuant to subsection (3) of this section.
(b) If the person authorized by subsection (1) of this section to grant written consent to conduct an autopsy is not available to grant written consent in person, the authorized person may grant consent by completing the required consent form and returning the signed form, by facsimile or other electronic transmission, to the party requesting permission.
(3) The Public Health Officer, in consultation with the State Medical Examiner, shall develop and make available a standardized written autopsy consent form that:
(a) Grants the person specified in subsection (1) of this section the authority to:
(A) Grant permission to conduct an unlimited autopsy;
(B) Grant permission to conduct a limited autopsy and to specify what limitations are imposed upon the autopsy; or
(C) Refuse permission to conduct an autopsy.
(b) Provides a section for the person specified in subsection (1) of this section to submit specific instructions with respect to tests to be performed during the autopsy and to the disposition of organs and tissue removed for purposes of a limited autopsy.
(c) Provides that the consent signature be accompanied by the signature of a witness. [2003 c.416 §1]
Note: 97.082 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 97 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.
97.083 [1983 c.526 §1; renumbered 127.635 in 1989]
97.084 [1983 c.526 §2; renumbered 127.640 in 1989]
97.085 [1977 c.183 §§8,9,10; renumbered 127.645 in 1989]
97.090 [1977 c.183 §11; renumbered 127.650 in 1989]
DISPOSITION OF HUMAN BODIES
97.110 Human remains not to be attached. No person shall attach, detain or claim to detain any human remains for any debt or demand or upon any pretended lien or charge.
97.120 Human remains to be deposited in accordance with ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990. A cemetery authority shall deposit or dispose of human remains as provided by ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990.
97.130 Right to control disposition of remains; delegation. (1) Any individual of sound mind who is 18 years of age or older, by completion of a written signed instrument or by preparing or prearranging with any funeral service practitioner licensed under ORS chapter 692, may direct any lawful manner of disposition of the individual’s remains. Except as provided under subsection (6) of this section, disposition directions or disposition prearrangements that are prepaid or that are filed with a funeral service practitioner licensed under ORS chapter 692 shall not be subject to cancellation or substantial revision.
(2) A person within the first applicable listed class among the following listed classes that is available at the time of death or, in the absence of actual notice of a contrary direction by the decedent as described under subsection (1) of this section or actual notice of opposition by completion of a written instrument by a member of the same class or a member of a prior class, may direct any lawful manner of disposition of a decedent’s remains by completion of a written instrument:
(a) The spouse of the decedent.
(b) A son or daughter of the decedent 18 years of age or older.
(c) Either parent of the decedent.
(d) A brother or sister of the decedent 18 years of age or older.
(e) A guardian of the decedent at the time of death.
(f) A person in the next degree of kindred to the decedent.
(g) The personal representative of the estate of the decedent.
(h) The person nominated as the personal representative of the decedent in the decedent’s last will.
(i) A public health officer.
(3) The decedent or any person authorized in subsection (2) of this section to direct the manner of disposition of the decedent’s remains may delegate such authority to any person 18 years of age or older. Such delegation shall be made by completion of the written instrument described in subsection (7) of this section. The person to whom the authority is delegated shall have the same authority under subsection (2) of this section as the person delegating the authority.
(4) If a decedent or the decedent’s designee issues more than one authorization or direction for the disposal of the decedent’s remains, only the most recent authorization or direction shall be binding.
(5) A donation of anatomical gifts under ORS 97.952 or 97.954 shall take priority over directions for the disposition of a decedent’s remains under this section only if the person making the donation is of a priority under subsection (1) or (2) of this section the same as or higher than the priority of the person directing the disposition of the remains.
(6) If the decedent directs a disposition under subsection (1) of this section and those financially responsible for the disposition are without sufficient funds to pay for such disposition or the estate of the decedent has insufficient funds to pay for the disposition, or if the direction is unlawful, the direction shall be void and disposition shall be in accordance with the direction provided by those persons given priority in subsection (2) of this section and who agree to be financially responsible.
(7) The signature of the individual shall be required for the completion of the written instrument required in subsection (3) of this section. The following form or a form substantially similar shall be used by all individuals:
APPOINTMENT OF PERSON
TO MAKE DECISIONS
CONCERNING DISPOSITION
OF REMAINS
I, __________________, appoint__________________, whose address is _______________ and whose telephone number is (___)_________, as the person to make all decisions regarding the disposition of my remains upon my death for my burial or cremation. In the event ____________ is unable to act, I appoint____________, whose address is __________________ and whose telephone number is (___)_________, as my alternate person to make all decisions regarding the disposition of my remains upon my death for my burial or cremation.
It is my intent that this Appointment of Person to Make Decisions Concerning Disposition of Remains act as and be accepted as the written authorization presently required by ORS 97.130 (or its corresponding future provisions) or any other provision of Oregon Law, authorizing me to name a person to have authority to dispose of my remains.
DATED this ___ day of______,_____.
__________________
(Signature)
DECLARATION OF WITNESSES
We declare that ____________ is personally known to us, that he/she signed this Appointment of Person to Make Decisions Concerning Disposition of Remains in our presence, that he/she appeared to be of sound mind and not acting under duress, fraud or undue influence, and that neither of us is the person so appointed by this document.
Witnessed By:
_______________ Date: _____
Witnessed By:
_______________ Date: _____
(8) Subject to the provisions of ORS 97.950 to 97.964, if disposition of the remains of a decedent has not been directed and authorized under this section within 10 days after the date of the death of the decedent, a public health officer may direct and authorize disposition of the remains. [Amended by 1969 c.175 §10; 1969 c.591 §279; 1973 c.823 §97; 1995 c.717 §10; 1997 c.472 §1; 1999 c.201 §5]
97.132 [1961 c.674 §1; repealed by 1969 c.175 §12]
97.134 [1961 c.674 §§2,3; repealed by 1969 c.175 §12]
97.140 [Repealed by 1957 c.423 §1 (97.141 and 97.145 enacted in lieu of 97.140)]
97.141 [1957 c.423 §2 (97.141 and 97.145 enacted in lieu of 97.140); repealed by 1997 c.472 §13]
97.145 Liability for failure to conform to written instrument directing control of remains. No cemetery authority, crematory operator or licensed funeral service practitioner interring or cremating remains pursuant to a written instrument signed by the decedent or a person described in ORS 97.130 (2) shall be liable for any failure to conform to the priority of control of remains provided in ORS 97.130, except when it shall have received two or more conflicting written instruments prior to interment or cremation of said remains. [1957 c.423 §3 (97.141 and 97.145 enacted in lieu of 97.140); 1997 c.472 §2]
97.150 Disposition of cremated remains; procedures; notice; actions against cemetery or funeral service providers. (1) If the cemetery authority, crematory operator or licensed funeral service practitioner has been authorized to cremate remains of a decedent pursuant to ORS 97.130, the authorization shall also contain further instructions to the cemetery authority, crematory operator or licensed funeral service practitioner as to the final disposition of the cremated remains. If the cremated remains are left in the possession of the cemetery authority, crematory operator or licensed funeral service practitioner and no such instructions are given to the cemetery authority, crematory operator or licensed funeral service practitioner within 180 days after the date of cremation, the cemetery authority, crematory operator or licensed funeral service practitioner shall make a reasonable effort to notify the person, pursuant to ORS 97.130, who has the right to control the disposition of the cremated remains. The notice shall state that the cemetery authority, crematory operator or licensed funeral service practitioner intends to dispose of the cremated remains unless such person gives instructions to the contrary to the cemetery authority, crematory operator or licensed funeral service practitioner within 30 days of the date of such notice from the cemetery authority, crematory operator or licensed funeral service practitioner. Reasonable effort to notify shall include, but not be limited to, notice, personally or by certified mail, return receipt requested, to the person who has the right to control the disposition of the cremated remains at the address of such person in the records of the cemetery authority, crematory operator or licensed funeral service practitioner. If disposition of the cremated remains has not been directed and authorized by such person within said 30-day period, the cemetery authority, crematory operator or licensed funeral service practitioner may dispose of the cremated remains as is legally practicable.
(2) No cemetery authority, crematory operator or licensed funeral service practitioner shall be liable, and no action shall lie against any cemetery authority, crematory operator or licensed funeral service practitioner relating to any cremated remains that have been left in its possession for a period of 180 days unless the cemetery authority, crematory operator or licensed funeral service practitioner has failed to make such reasonable effort to notify the person described in subsection (1) of this section or unless a written contract has been entered into with the cemetery authority, crematory operator or licensed funeral service practitioner for their care or unless permanent interment has been made. If the cemetery authority, crematory operator or licensed funeral service practitioner has complied with this section, then the cemetery authority, crematory operator or licensed funeral service practitioner may dispose of the remains as is legally practicable. [Amended by 1989 c.669 §1; 1997 c.472 §3]
97.153 Diagnostic or therapeutic radioisotopes in body. Notwithstanding section 14, chapter 653, Oregon Laws 1991, or ORS 469.525, diagnostic or therapeutic radioisotopes remaining inside the uncremated body of a deceased person may be buried, entombed or otherwise disposed of in a cemetery or other lawful place for the burial, entombment or other disposal of the uncremated body of the deceased person even though the body contains low-level radioactive waste as defined under 42 U.S.C. 2021(b) as of January 1, 1995, by-product material as defined under 42 U.S.C. 2014 as of January 1, 1995, or special nuclear material exempted by the United States Nuclear Regulatory Commission as of January 1, 1995, under authority of 42 U.S.C. 2077(d). [1995 c.252 §1]
Note: 97.153 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 97 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.
97.160 Duty of hospital or sanitarium to notify before sending remains to undertaker; procedures. (1) No hospital or sanitarium, or the employees, agents or representatives thereof, shall send or cause to be sent to any funeral service practitioner, undertaker, mortician or embalmer the remains of any decedent without having complied with this section before final disposition of the remains.
(2) If the admitting record contains the name of a relative, friend or other person identified by the decedent in the admitting record, or if the hospital or sanitarium is aware of the name of any other person chargeable with the funeral expenses of the decedent, the hospital or the sanitarium must notify the relative, friend or other person personally or by certified mail, return receipt requested.
(3) If a hospital or sanitarium is unable to give actual notice to a relative, friend or other person under the provisions of subsection (2) of this section, the hospital or sanitarium must publish a notice of death at least one time in a newspaper of general circulation in the county where the death occurred, or, if there is no such newspaper, in a newspaper most likely to give notice of the death to relatives and friends of the decedent. The notice must contain the name of the decedent and the address and phone number for the hospital or sanitarium.
(4) If the remains of the decedent are not claimed within 10 days after the giving of notice under subsection (2) of this section, or within 10 days after publication under subsection (3) of this section if publication is made under subsection (3) of this section, the hospital or sanitarium may arrange for the disposal of the remains of the decedent without further notice in the manner specified by ORS 97.170 to 97.200.
(5) Nothing in this section limits or governs the authority of any administrator or executor, trustee or other person having a fiduciary relationship with the deceased or to the state, counties, cities or towns in the disposition of the remains of a deceased person. [Amended by 1993 c.92 §1]
97.170 Disposition of body of indigent or child in custody of Department of Human Services. (1) Except as set forth in subsection (4) of this section, any licensed funeral service practitioner having charge of the body of a deceased person thought to be an unclaimed indigent shall use all reasonable diligence promptly to notify the relatives of the deceased person or any other person having an interest in the deceased person and shall arrange with any relative who claims the body or with any friend of the deceased person who will pay the expenses to make disposition of the body. If no one claims the body within five days after death, or if those notified acquiesce, the funeral service practitioner shall notify, by telephone, the Demonstrator of Anatomy of the Oregon Health and Science University. The Demonstrator of Anatomy, who shall be appointed by the Oregon Health and Science University Board of Directors from the staff of the Oregon Health and Science University, shall immediately inform the funeral service practitioner whether the body is deemed to be in fit condition and is desired for medical instruction or the advancement of medical science. If the body is desired for these purposes, the funeral service practitioner shall arrange for a licensed embalmer to make such preparation as is necessary and shall, within 72 hours, deliver it to the Oregon Health and Science University, or any other school or college within the State of Oregon qualifying applicants for examination in the fundamental sciences as required and specified in ORS 683.010 to 683.335 and ORS chapters 676 to 681 and 684 to 686, as the Demonstrator of Anatomy directs. The expenses of embalming, transportation of the body to such school or college, filing fees and other related expenses shall be paid from the funds appropriated specifically for the purposes of this section. Such expenses shall not exceed the normal rates charged for such services to the general public.
(2) If the Demonstrator of Anatomy does not require any such body for instruction or research, it may be assigned, on request, to any other properly authorized institution within this state or to any qualified physician for instruction or research.
(3) When the body of a deceased person is deemed in unfit condition by the Demonstrator of Anatomy and disposition does not take place as set forth in subsections (1) and (2) of this section, and no relatives, friends or interested persons claim the body after notification is attempted, then the funeral service practitioner may commence to cremate or bury the body without the consent of persons listed in ORS 97.130 and is furthermore indemnified from any liability arising from having made such disposition. The method of disposition must be in the least costly manner that complies with law, and that does not conflict with known wishes of the deceased. Reimbursement for costs of disposition shall be made as set forth in subsection (5) of this section.
(4) When the deceased person is a child over whom the Department of Human Services held guardianship at the time of death, and no relatives, friends or interested persons claim the body after notification is attempted as set forth in subsection (1) of this section, the department may at its discretion notify the Demonstrator of Anatomy and proceed as set forth in subsection (1) of this section, or may authorize burial or cremation of the body. Expenses related to burial or cremation authorized by the department under this subsection shall be borne by the department.
(5) Upon receipt of an itemized statement of expenses, the department shall reimburse the funeral service practitioner within 30 days the reasonable costs for disposition of any unclaimed deceased person who has insufficient assets and for whom no one takes responsibility. The method of disposition must be in the least costly manner and shall not exceed $450 per disposition. [Amended by 1973 c.842 §1; 1985 c.704 §1; 1993 c.345 §4; 1995 c.162 §62]
97.180 Period within which body may not be used. Upon receipt of any body by a school or college pursuant to ORS 97.170, it shall be properly embalmed for anatomical purposes, but shall be retained 30 days before being used or dismembered. If it is claimed by any relative or friend within that period, it shall be delivered to the claimant.
97.190 Post-mortem examination of body. Unless required by a medical examiner to determine the cause of death or specifically authorized and ordered by the superintendent of the hospital or institution in which any person coming under the provisions of ORS 97.170 may die, no such body as is mentioned in ORS 97.170 is subject to post-mortem examination, except by consent of the Demonstrator of Anatomy. [Amended by 1959 c.629 §43; 1965 c.221 §13; 1977 c.582 §1]
97.200 Disposition of remains after educational use thereof. The remains of any corpse used for the purposes authorized by ORS 97.170 shall, upon completion of such use, be decently buried or cremated and the ashes, in case of cremation, shall be delivered to any relative who claims them, after establishing relationship. All expenses incident to burial and cremation and the delivery of ashes to any relative shall be borne by the educational institution which used the body for educational purposes.
97.210 Exceptions to application of ORS 97.170 to 97.200; rules. The body of any person who died of smallpox, diphtheria, scarlet fever or other disease that the Department of Human Services, by rule, may prescribe, shall not be subject to the provisions of ORS 97.170 to 97.200. [Amended by 1977 c.582 §2]
97.220 Disinterment. (1) The remains of a deceased person interred in a plot in a cemetery may be removed therefrom with the consent of the cemetery authority and written consent of the person who has the right to control the disposition of the remains of the deceased person. If the consent of any such person or of the cemetery authority cannot be obtained, permission by the county court or the board of county commissioners of the county where the cemetery is situated is sufficient. Notice of application to the court for such permission must be given at least 60 days prior thereto, personally or by mail, to the cemetery authority, to the person not consenting and to every other person or authority on whom service of notice is required by the county court or the board of county commissioners.
(2) If the payment for the purchase of an interment space becomes past due and so remains for a period of 90 days, this section does not apply to or prohibit the removal of any remains from one plot to another in the same cemetery or the removal of remains by the cemetery authority from a plot to some other suitable place.
(3) This section does not apply to the disinterment of remains upon order of court or if ordered under the provisions of ORS 146.045 (3)(e). [Amended by 1977 c.582 §3]
97.230 [Repealed by 1973 c.286 §1]
97.250 [1969 c.175 §1; repealed by 1995 c.717 §9]
97.255 [1969 c.175 §3; repealed by 1995 c.717 §9]
97.260 [1969 c.175 §2; repealed by 1995 c.717 §9]
97.265 [1969 c.175 §4; 1973 c.823 §§98,157; 1993 c.218 §1; repealed by 1995 c.717 §9]
97.268 [1985 c.379 §1; repealed by 1995 c.717 §9]
97.270 [1969 c.175 §5; repealed by 1995 c.717 §9]
97.275 [1969 c.175 §6; 1969 c.591 §278a; 1975 c.215 §1; repealed by 1995 c.717 §9]
97.280 [1969 c.175 §7; repealed by 1995 c.717 §9]
97.285 [1969 c.175 §8; repealed by 1995 c.717 §9]
97.290 [1969 c.175 §9; repealed by 1995 c.717 §9]
97.295 [Formerly 116.115; 1995 c.717 §11; renumbered 97.966 in 1995]
97.300 [1969 c.271 §1; 1995 c.717 §12; renumbered 97.968 in 1995]
DEDICATION TO CEMETERY PURPOSES; PLATTINGS
97.310 Survey and subdivision of land; map or plat of mausoleum or columbarium; access easement. (1) Every cemetery authority, from time to time as its property may require for cemetery purposes, shall:
(a) In case of land, survey and subdivide it into sections, blocks, plots, avenues, walks or other subdivisions and make a good and substantial map or plat showing them, with descriptive names or numbers. In all instances this shall be done in compliance with ORS 92.010 to 92.190 except that ORS 92.090 (2)(a) and (b) shall not be applicable to streets, alleys, ways and footpaths located wholly within a cemetery.
(b) In case of a mausoleum or columbarium, make a good substantial map or plat on which are delineated the sections, halls, rooms, corridors, elevation and other divisions, with descriptive names or numbers. In all instances this shall be done in compliance with the state building code.
(2) Every lot in a cemetery subdivision shall include an access easement across the lot for the benefit of adjacent lots. Designated areas between lots for the purpose of providing access to separate lots are not required to approve a subdivision under this section. A cemetery authority must disclose to a potential purchaser of a lot in the cemetery the existence of the access easement across the lot. [Amended by 1965 c.396 §2; 1979 c.57 §1; 1985 c.582 §3; 1999 c.381 §1]
97.320 Filing map or plat and declaration of dedication of land to cemetery purposes. In case of a cemetery lot, the cemetery authority shall file the map or plat in the office of the recording officer of the county in which all or a portion of the property is situated, and it forthwith shall file for record in that officer’s office a written declaration dedicating the property delineated on the plat or map exclusively to cemetery purposes.
97.330 When dedication is complete. Upon the filing of the map or plat and of the declaration for record, the dedication is complete for all purposes, and thereafter the property shall be held, occupied and used exclusively for cemetery purposes.
97.340 Effect of dedication. After property is dedicated to cemetery purposes pursuant to ORS 97.310 to 97.330 and 97.360 (1), neither the dedication nor the title of a plot owner shall be affected by the dissolution of the cemetery authority by nonuser on its part, by alienation of the property, by any encumbrances, by sale under execution or otherwise, except as provided in ORS 97.310 to 97.350, 97.360 (2), 97.440, 97.510 to 97.650, 97.710, 97.720 and 97.810 to 97.865.
97.350 Dedication to cemetery purposes not invalid. Dedication to cemetery purposes pursuant to ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990 is not invalid as violating any laws against perpetuities or the suspension of the power of alienation of title to or use of property, and is deemed to be in respect for the dead, and is a provision for the interment of human remains and is a duty to, and for the benefit of, the general public.
97.360 Resurvey and alteration in shape or size; vacation of streets, walks, driveways and parks and replatting into lots. (1) Any part or subdivision of the property so mapped and platted may, by order of the directors and consent of the lot owners, be resurveyed and altered in shape and size and an amended map or plat filed, so long as such change does not disturb any interred remains.
(2) Whenever a majority of the lots as platted or laid out in any cemetery established before March 3, 1927, or any part thereof, has been sold without the owners or persons in control of the cemetery having made provision for the establishment of an adequate endowment fund for the perpetual maintenance, upkeep and beautification of the cemetery and of the lots therein, the avenues, streets, alleys, walks, driveways and parks therein may be vacated or altered and replatted into lots which may be sold for burial purposes in the manner provided in this subsection and in ORS 97.370 to 97.430. Application for the vacation or alteration of any avenues, streets, alleys, walks, driveways or parks, and for the replatting of the same, or any portion thereof, for cemetery lots in any such cemetery shall be made to the county court or board of county commissioners in the county where the cemetery is situated. The application may be by the owners or persons in control of the cemetery or by a group of 20 or more persons owning lots or having relatives buried therein. The application shall be verified and shall specify the lots owned by each petitioner in which are buried bodies of relatives in which the petitioner is interested and shall state the reason for the proposed change and what provisions have theretofore been made for the perpetual upkeep, maintenance and beautification of the cemetery, and there shall be presented therewith a plat of the cemetery, together with the proposed replat, which shall have clearly indicated thereon the proposed changes.
97.370 Fixing date of hearing; notice. When any application mentioned in ORS 97.360 (2) is filed, the court or board shall fix the time for the hearing of it and notice of the time thereof shall be given by publication in a paper of general circulation published in the town in which the cemetery is situated or in the town to which it is nearest once a week for a period of six successive weeks prior to the date of the hearing and a copy of such notice shall be posted for a like period at three public and conspicuous places in the cemetery. Such notice shall be addressed to all persons owning lots or having an interest in the cemetery, but need not name them, and shall set forth in a general way the proposed changes, the reason stated in the application for making it, the time when the hearing of the application will be had, and shall state that a plat showing the proposed changes is on file with the county clerk of the county in which the cemetery is situated.
97.380 Hearing; order allowing replatting. At the hearing mentioned in ORS 97.370 the court or board shall consider and hear any evidence introduced in favor of the proposed change and all objections thereto and, after a full hearing thereon, may allow the proposed change and replat in whole or in part. If the proposed change is allowed, either in whole or in part, an order allowing it shall be made providing that title to any new lot created by the alteration or vacation of any avenues, streets, alleys, driveways, walks or parks, or any part thereof, shall be vested in the owner of the fee of the part of the cemetery sought to be vacated in trust for burial purposes, or vested in any association which may be formed for the purpose of taking over the cemetery and operating and maintaining it in accordance with the provisions of ORS 97.400. [Amended by 1985 c.582 §4; 1999 c.381 §2]
97.390 Assessment of benefits and damages. If any damages are claimed by the owner of any lot in any such cemetery as is mentioned in ORS 97.360 (2), which lot is adjacent to the avenues, streets, alleys, driveways or parks vacated as provided in ORS 97.380, they shall be ascertained by the county court or board of county commissioners and offset against the benefits accruing to the lot owner on account of the upkeep and beautification of the cemetery in the manner provided in ORS 97.400. Any person feeling aggrieved at the amount of damages so assessed by the board may appeal from such order of allowance to the circuit court of the county in which the cemetery is situated in the same manner as is provided by statute for appeal from the assessment of damages by the exercise of eminent domain in locating a county road and on such appeal the jury, in assessing the amount of damages to be allowed to the appellant, shall offset against such damages the benefits accruing to the appellant as in this section above provided.
97.400 Disposal of newly created lots; disposition and use of proceeds from sale; failure of owner to perform duties. Any owner or association accepting the trust of handling and disposing of lots newly created pursuant to ORS 97.380 shall by the acceptance thereof agree to dispose of the lots only for burial purposes and at a price not less than that fixed by the county court or board of county commissioners. The net funds derived from the sale of the lots remaining after the payment of the reasonable expenses incident to the vacation and of the sale shall be placed in an irreducible and perpetual fund and the interest therefrom shall be used for the perpetual upkeep and beautification of the cemetery and the lots therein situated. The fund shall be placed in some reliable trust company specified by the court or board, which trust company shall invest the same and pay the income therefrom to the owner or association charged with the disposal of such lots. Any owner or association taking over the sale of the lots shall comply with such provisions as the court or board may require of it in the upkeep, beautification and care of the cemetery with the income thereof, and if such owner or association for any reason fails to perform such duties, the court or board may, on its own motion, from time to time, appoint some other association or individual to perform them. The restrictions of this section shall not apply to the sale of lots obtained by replatting cemeteries owned and maintained by any county.
97.410 Right of adjacent lot owner upon vacation of way. The vacation of an avenue, street, alley, driveway, walk or park adjacent to a cemetery lot shall vest in the owner of such lot no interest in the vacated portion thereof; but the adjacent owner shall, for 30 days after the date of such an order of vacation, have the right to purchase any new lot adjacent to the lot of the owner at the price fixed by the court or board at which the lots are to be sold, and if there is more than one adjacent lot owner, the new lot shall be sold to the one offering the highest price therefor.
97.420 Effect of failure to object. Any owner of such cemetery as is mentioned in ORS 97.360 (2), or of any lot therein, or any relative or heir of any deceased person buried in such cemetery who fails to appear and file written objection to any proposed replat, alteration or vacation, authorized by ORS 97.360 (2), shall be deemed to have consented to the proposed change and shall be forever barred from claiming any right to use and have open for traffic or passageway any streets, alleys, driveways or parks vacated, or any right, title or interest therein, except as provided in ORS 97.360 (2) and 97.370 to 97.410.
97.430 Declaration of exercise of police power and right of eminent domain. The enactment of ORS 97.360 (2) and 97.370 to 97.430 is hereby declared to be a necessary exercise of the police powers of the state in order to preserve and keep existing cemeteries as resting places for the dead and to preserve old and historic cemeteries from becoming unkempt and places of reproach and desolation in the communities in which they are located. The taking of avenues, streets, alleys, walks, driveways and parks for the purpose and by the method specified in ORS 97.360 (2) and 97.370 to 97.420 is hereby declared an exercise of the right of eminent domain in behalf of the public health, safety, comfort, pleasure and historic instruction.
97.440 Removal of dedication. (1) Property dedicated to cemetery purposes shall be held and used exclusively for cemetery purposes until the dedication is removed from all or any part of it by an order and decree of the county court or board of county commissioners of the county in which the property is situated in a proceeding brought by the cemetery authority for that purpose and upon notice of hearing and proof satisfactory to the court that:
(a) The portion of the property from which dedication is sought to be removed is not being used for interment of human remains; or
(b) The Oregon Commission on Historic Cemeteries has received notice of and had the opportunity to comment on the removal from the dedicated property of all human remains and markers dated prior to February 14, 1909.
(2) The notice of hearing required by this section must:
(a) Be given by publication once a week for at least four consecutive weeks in a newspaper of general circulation in the county where the cemetery is located and by publication twice in a newspaper with statewide circulation;
(b) Be posted in three conspicuous places on that portion of the property from which the dedication is to be removed;
(c) Describe the portion of the cemetery property sought to be removed from dedication;
(d) State that all remains and markers have been removed or that no interments have been made in the portion of the cemetery property sought to be removed from dedication; and
(e) Specify the time and place of the hearing. [Amended by 2003 c.237 §1]
97.445 Vacating county interest in cemetery real property. Consistent with the provisions of ORS 368.326 to 368.366, a county may vacate any real property interests the county may own in a cemetery. Consistent with ORS 368.366 (2), the county may vacate its real property interests in favor of a private nonprofit organization provided the organization states its intent to provide for the continuing maintenance and care of the cemetery and associated facilities. [1997 c.747 §2]
97.450 Discontinuance of cemetery and removal of remains and markers. (1)(a) Whenever any cemetery that is within the limits of any county, city or town has been abandoned, or it is desirable to abandon such cemetery, the governing body of any county, if the cemetery is owned by the county, or the corporate authorities of the city or town, if the cemetery is owned by the city or town, or the trustees or directors, if the cemetery is owned by an association or corporation, may order that such burial ground be discontinued, have the remains of all persons interred in the cemetery moved to some other suitable place and provide for the removal and reerection of all stones and monuments marking said graves. Each removal must be made in an appropriate manner and in accordance with the directions of the Director of Human Services. Prior to any removal authorized under this section, written notice must be given to the family, or next of kin of the deceased, if known, and if unknown, notice of the removal shall be published for at least four successive weeks in a newspaper of general circulation in the county in which the cemetery is located and twice in a newspaper with statewide circulation.
(b) Any removal and the costs of the proceedings under this section shall be at the expense of the county, city or town, individual, corporation or association owning the cemetery to be moved.
(2) Notwithstanding subsection (1)(a) of this section, a cemetery or burial ground containing human remains that were interred before February 14, 1909, may not be discontinued or declared abandoned or have remains removed from the burial ground or cemetery without prior notice to and comment by the Oregon Commission on Historic Cemeteries. When commenting on a request to discontinue or declare abandoned a cemetery or burial ground, the commission shall consider:
(a) The listing of the cemetery or burial ground under ORS 97.782;
(b) The historic significance of the cemetery or graves included in the request; and
(c) The findings of any archaeological survey of the cemetery or burial ground. [Amended by 1955 c.472 §1; 2003 c.237 §2]
97.460 Approval required prior to establishment of cemetery or burial park. No association, corporation, cemetery authority, or person shall after February 24, 1903, lay out, open up or use any property for cemetery or burial park purposes, without the approval of the planning commission of the county or city having jurisdiction under ORS 92.042 or, if there is no such commission in such county or city, the governing body of such county or city. [Formerly 64.060; 1965 c.396 §3]
SALES AND RIGHTS IN RESPECT OF CEMETERY PLOTS
97.510 Sale and conveyance of plots by cemetery authority. After filing the map or plat and recording the declaration of dedication, a cemetery authority may sell and convey plots subject to such rules and regulations as may be then in effect and subject to such other and further limitations, conditions and restrictions made a part of the declaration of dedication by reference or included in the instrument of conveyance of the plot.
97.520 Sale or offer to sell cemetery plot upon promise of resale at financial profit. No person, firm or corporation shall sell or offer to sell a cemetery plot upon the promise, representation or inducement of resale at a financial profit, except with the consent and approval of the Secretary of State. Each violation of this section constitutes a separate offense. [Amended by 1989 c.171 §13]
97.530 Commission, bonus or rebate for sale of plot or services. No cemetery authority shall pay or offer to pay, and no person, firm or corporation shall receive, directly or indirectly, a commission, bonus, rebate or other thing of value for the sale of a plot or services. This does not apply to a person regularly employed by the cemetery authority for such purpose. Each violation of this section constitutes a separate offense.
97.540 Commission, bonus or rebate for recommendation of cemetery. No person shall pay, cause to be paid or offer to pay, and no person, firm or corporation shall receive, directly or indirectly, except as provided in ORS 97.530, any commission, bonus, rebate or other thing of value in consideration of recommending or causing a dead human body to be disposed of in any cemetery. Each violation of this section constitutes a separate offense.
97.550 Plots are indivisible. All plots, the use of which has been conveyed by deed or certificate of ownership as a separate plot, are indivisible except with the consent of the cemetery authority, or as provided by law.
97.560 Presumption of sole ownership in grantee of plot. All plots conveyed to individuals are presumed to be solely and separately owned by the person named in the instrument of conveyance.
97.570 Spouse has vested right of interment. (1) The spouse of an owner of any plot containing more than one interment space has a vested right of interment of the remains of the spouse in the plot, and any person thereafter becoming the spouse of the owner has a vested right of interment of the remains of the person in the plot if more than one interment space is unoccupied at the time the person becomes the spouse of the owner.
(2) The purchase by a married person of more than one interment space shall create in the spouse a right of interment therein.
97.580 Divestiture of spouse’s right of interment. No conveyance or other action of the owner without the written consent or joinder of the spouse of the owner divests the spouse of the vested right of interment, except that a judgment of divorce between them terminates the right unless otherwise provided in the judgment. [Amended by 2003 c.576 §357]
97.590 Transfer of plot or right of interment. No transfer of any plot, heretofore or hereafter made, or any right of interment is complete or effective until recorded on the books of the cemetery authority.
97.600 Descent of plot. Upon the death of the owner, unless the owner has disposed of the plot either by specific direction in the will of the owner or by a written declaration filed and recorded in the office of the cemetery authority, if no interment has been made in an interment plot which has been transferred by deed or certificate of ownership to an individual owner or if all remains previously interred are lawfully removed, the plot descends to the heirs at law of the owner, subject to the rights of interment of the decedent and the surviving spouse of the decedent.
97.610 Determining occupant of burial plot having coowners. When there are two or more owners of a burial plot or of rights of interment therein, such owners may designate one or more persons to designate the burials to be made in the plot and file written notice of such designation with the cemetery association. In the absence of such notice or of written objection to its so doing, the cemetery association is not liable to any owner for interring or permitting an interment therein upon the request or direction of any registered coowner of the plot.
97.620 Death of coowner; authorization to use plot under directions of surviving owners. An affidavit by any person having knowledge of the fact, setting forth the fact of the death of one owner and establishing the identity of the surviving owners named in the deed to any plot, when filed with the cemetery authority operating the cemetery in which the plot is located, is authorization to the cemetery authority to permit the use of the unoccupied portion of the plot in accordance with the directions of the surviving owners or their successors in interest.
97.630 Family plots; order of occupation. (1) Whenever an interment of the remains of a member or of a relative of a member of the family of the record owner, or of the remains of the record owner, is made in a plot transferred by deed or certificate of ownership to an individual owner, and the owner dies without making disposition of the plot, either by direction in the owner’s will, or by a written declaration filed and recorded in the office of the cemetery authority, the plot thereby becomes inalienable and shall be held as the family plot of the owner, and occupied in the following order:
(a) One grave, niche or crypt may be used for the owner’s interment; one for the owner’s surviving spouse, if there is one, who by ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990 has a vested right of interment in it; and in those remaining, if any, the children of the deceased owner in order of death may be interred without the consent of any person claiming any interest in the plot.
(b) If no child survives, the right of interment goes in order of death to the spouse of any child of the record owner.
(2) Any surviving spouse, child or child’s spouse who has a right of interment in a family plot may waive such right in favor of any other relative or spouse of a relative of either the deceased owner or of the deceased owner’s spouse, and upon such waiver the remains of the person in whose favor the waiver is made may be interred in the plot.
(3) Notwithstanding subsection (1) of this section, the personal representative of the deceased owner of a family plot may sell unoccupied interment spaces in the plot as property of the estate of the deceased owner when there are no existing rights of interment in those spaces or all existing rights of interment in those spaces have been waived and thereby terminated.
(4) Whenever a plot is transferred by deed or certificate of ownership to an individual owner and the transfer is recorded on the books of the cemetery authority, the cemetery authority shall provide to the individual owner a written statement, in a form approved by the State Mortuary and Cemetery Board, containing a clear explanation of the provisions of subsections (1) and (2) of this section and of the rights of interment established thereby. [Amended by 1985 c.652 §1]
97.640 Waiver or termination of vested right of interment. A vested right of interment may be waived and is terminated upon the interment elsewhere of the remains of the person in whom it is vested.
97.650 Limitations upon vested right of interment. No vested right of interment gives to any person the right to have the remains of the person interred in any interment space in which the remains of any deceased person having equal or prior vested right of interment have been interred; nor does it give any person the right to have the remains of more than one deceased person interred in a single interment space in violation of the rules and regulations of the cemetery in which the interment space is located.
CEMETERY MANAGEMENT
97.710 Power of cemetery to make rules and regulations. (1) The cemetery authority may make and enforce rules and regulations for:
(a) The use, care, control, management, restriction and protection of its cemetery;
(b) Restricting and limiting the use of all property within its cemetery;
(c) Regulating the uniformity, class and kind of all markers, monuments and other structures within its cemetery;
(d) Prohibiting the erection of monuments, markers or other structures in or upon any portion of its property;
(e) Regulating or preventing the erection of monuments, effigies and structures within any portion of the cemetery grounds and for the removal thereof;
(f) Regulating the care or preventing the introduction of plants or shrubs within such grounds;
(g) Preventing the interment in any part thereof of a body not entitled to interment therein;
(h) Preventing the use of burial plots for purposes violative of its restrictions;
(i) Regulating the conduct of persons and preventing improper assemblages therein; and
(j) All other purposes deemed necessary by the cemetery authority for the proper conduct of its business and the protection and safeguarding of the premises and the principles, plans and ideals on which the cemetery was organized.
(2) The cemetery authority from time to time may amend, add to, revise, change or modify such rules and regulations.
(3) Such rules and regulations shall be plainly printed or typewritten and maintained, subject to inspection, in the office of the cemetery authority.
97.720 Record of interments and cremations; inspection. (1) The person in charge of any premises on which interments or cremations are made shall keep a record of all remains interred or cremated on the premises under the person’s charge, in each case stating the name of each deceased person, the date of interment or cremation, and the name and address of the funeral service practitioner. The interment records shall be open to inspection by survivors of the decedent during the customary office hours of the cemetery authority.
(2) A record shall be kept of the ownership of all plots in the cemetery which have been conveyed by the cemetery authority and of all transfers of plots in the cemetery.
97.730 Gifts and bequests in trust for cemeteries. Gifts, grants and bequests of personal property in trust for the purpose of providing perpetual care and maintenance, improvement or embellishment of private burial lots in or outside of cemeteries and of the walks, fences, monuments, structures or tombs thereon, are permitted and shall be deemed to be for perpetual and benevolent uses. They are not invalid by reason of any indefiniteness or uncertainty of the persons designated as beneficiaries in the instrument creating the trust; nor are they invalid as violating any existing laws against perpetuities or suspension of the power of alienation of title to property. But nothing in this section affects any existing authority or cause to pass upon the reasonableness of the amount of such gift, grant or bequest. Any cemetery association may act as trustee of and execute any such trust with respect to lots, walks, fences, monuments, structures or tombs, both within or outside its own cemetery limits, but within the county where such cemetery association has its principal office and place of business, whether such power is otherwise included in its corporate powers or not.
INDIAN GRAVES AND PROTECTED OBJECTS
97.740 Definitions for ORS 97.740 to 97.760. For the purposes of ORS 97.740 to 97.760:
(1) “Burial” has the meaning given that term in ORS 358.905.
(2) “Funerary object” has the meaning given that term in ORS 358.905.
(3) “Human remains” has the meaning given that term in ORS 358.905.
(4) “Indian tribe” means any tribe of Indians recognized by the Secretary of the Interior or listed in the Klamath Termination Act, 25 U.S.C. 3564 et seq., or listed in the Western Oregon Indian Termination Act, 25 U.S.C. 3691 et seq., if the traditional cultural area of the tribe includes Oregon lands.
(5) “Object of cultural patrimony” has the meaning given that term in ORS 358.905.
(6) “Professional archaeologist” means a person who has extensive formal training and experience in systematic, scientific archaeology.
(7) “Sacred object” has the meaning given that term in ORS 358.905. [1977 c.647 §1; 1981 c.442 §3; 1985 c.198 §2; 1993 c.459 §9; 1997 c.249 §34]
97.745 Prohibited acts; application; notice. (1) Except as provided in ORS 97.750, no person shall willfully remove, mutilate, deface, injure or destroy any cairn, burial, human remains, funerary object, sacred object or object of cultural patrimony of any native Indian. Persons disturbing native Indian cairns or burials through inadvertence, including by construction, mining, logging or agricultural activity, shall at their own expense reinter the human remains or funerary object under the supervision of the appropriate Indian tribe.
(2) Except as authorized by the appropriate Indian tribe, no person shall:
(a) Possess any native Indian artifacts, human remains or funerary object having been taken from a native Indian cairn or burial in a manner other than that authorized under ORS 97.750.
(b) Publicly display or exhibit any native Indian human remains, funerary object, sacred object or object of cultural patrimony.
(c) Sell any native Indian artifacts, human remains or funerary object having been taken from a native Indian cairn or burial or sell any sacred object or object of cultural patrimony.
(3) This section does not apply to:
(a) The possession or sale of native Indian artifacts discovered in or taken from locations other than native Indian cairns or burials; or
(b) Actions taken in the performance of official law enforcement duties.
(4) Any discovered human remains suspected to be native Indian shall be reported to the state police, the State Historic Preservation Officer, the appropriate Indian tribe and the Commission on Indian Services. [1977 c.647 §2; 1979 c.420 §1; 1981 c.442 §4; 1985 c.198 §1; 1993 c.459 §10]
97.750 Permitted acts; notice. (1) Any proposed excavation by a professional archaeologist of a native Indian cairn or burial shall be initiated only after prior written notification to the State Historic Preservation Officer and the state police, as defined in ORS 358.905, and with the prior written consent of the appropriate Indian tribe in the vicinity of the intended action. Failure of a tribe to respond to a request for permission within 30 days of its mailing shall be deemed consent. All associated material objects, funerary objects and human remains removed during such an excavation shall be reinterred at the archaeologist’s expense under the supervision of the Indian tribe.
(2) In order to determine the appropriate Indian tribe under this section and ORS 97.745, a professional archaeologist or other person shall consult with the Commission on Indian Services which shall designate the appropriate tribe. [1977 c.647 §3; 1979 c.420 §2; 1981 c.442 §5; 1993 c.459 §11]
97.760 Civil action by Indian tribe or member; time for commencing action; venue; damages; attorney fees. (1) Apart from any criminal prosecution, an Indian tribe or enrolled member thereof shall have a civil action to secure an injunction, damages or other appropriate relief against any person who is alleged to have violated ORS 97.745. The action must be brought within two years of the discovery of the violation by the plaintiff. The action may be filed in the circuit court of the county in which the subject grave, cairn, remains or artifacts are located, or within which the defendant resides.
(2) Any conviction pursuant to ORS 97.990 (5) shall be prima facie evidence of a violation of ORS 97.745 in an action brought under this section.
(3) If the plaintiff prevails:
(a) The court may grant injunctive or such other equitable relief as is appropriate, including forfeiture of any artifacts or remains acquired or equipment used in the violation. The court shall order the disposition of any items forfeited as it sees fit, including the reinterment of any human remains in accordance with ORS 97.745 (1);
(b) The plaintiff shall recover imputed damages in an amount not to exceed $10,000 or actual damages, whichever is greater. Actual damages include special and general damages, which include damages for emotional distress;
(c) The plaintiff may recover punitive damages upon proof that the violation was willful. Punitive damages may be recovered without proof of actual damages. All punitive damages shall be paid by the defendant to the Commission on Indian Services for the purposes of Indian historic preservation; and
(d) An award of imputed or punitive damages may be made only once for a particular violation by a particular person, but shall not preclude the award of such damages based on violations by other persons or on other violations.
(4) The court may award reasonable attorney fees to the prevailing party in an action under this section. [1981 c.442 §2; 1995 c.543 §1; 1995 c.618 §55]
97.770 [1995 c.457 §7; repealed by 1999 c.731 §14]
97.771 [1995 c.457 §1; 1997 c.632 §1; repealed by 1999 c.731 §14]
OREGON COMMISSION ON HISTORIC CEMETERIES
97.772 Definition of “historic cemetery.” For purposes of ORS 97.772 to 97.784, “historic cemetery” means any burial place that contains the remains of one or more persons who died before February 14, 1909. [1999 c.731 §1; 2003 c.173 §1]
Note: 97.772 to 97.784 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 97 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.
97.773 [1995 c.457 §3; repealed by 1999 c.731 §14]
97.774 Oregon Commission on Historic Cemeteries; terms. (1) There is established within the State Parks and Recreation Department the Oregon Commission on Historic Cemeteries consisting of seven members appointed by the State Parks and Recreation Director.
(2) The term of office of each member is four years, but a member serves at the pleasure of the director. Before the expiration of the term of a member, the director shall appoint a successor whose term begins on July 1 next following. A member is eligible for reappointment. If there is a vacancy for any cause, the director shall make an appointment to become immediately effective for the unexpired term.
(3) A member of the commission is entitled to compensation and expenses as provided in ORS 292.495. [1999 c.731 §2; 2003 c.173 §2]
Note: See note under 97.772.
97.775 [1995 c.457 §4; repealed by 1999 c.731 §14]
97.776 Commission members; nominations. The members of the Oregon Commission on Historic Cemeteries must be citizens of this state who are well informed on the restoration and maintenance of historic cemeteries. The State Parks and Recreation Director shall select members from nominations made by organizations of local historic cemeteries, organizations of nonprofit cemeteries, the State Mortuary and Cemetery Board and statewide cemetery associations. The director shall try to appoint individuals to the commission who represent or are knowledgeable concerning Native American burial places, rural cemeteries, family burial places and metropolitan cemeteries. [1999 c.731 §4; 2003 c.173 §3]
Note: See note under 97.772.
97.777 [1995 c.457 §5; repealed by 1999 c.731 §14]
97.778 Chairperson; quorum; meetings. (1) The Oregon Commission on Historic Cemeteries shall select one of its members as chairperson and another as vice chairperson for such terms and with duties and powers necessary for the performance of the functions of such offices as the commission determines.
(2) A majority of the members of the commission constitutes a quorum for the transaction of business.
(3) The commission shall meet at least once every three months at a place, day and hour determined by the commission. The commission also shall meet at other times and places specified by the call of the chairperson or of a majority of the members of the commission. [1999 c.731 §5; 2003 c.173 §4]
Note: See note under 97.772.
97.779 [1995 c.457 §6; repealed by 1999 c.731 §14]
97.780 Duties. The Oregon Commission on Historic Cemeteries shall:
(1) Maintain a listing of all historic cemeteries in this state.
(2) Assist in coordination of restoration, renovation and maintenance of Oregon’s historic cemeteries.
(3) Make recommendations to the State Parks and Recreation Director for projects and funding to help maintain and improve Oregon’s historic cemeteries.
(4) Obtain grant funding and seek legislative appropriations for individual historic cemeteries and groups of historic cemeteries.
(5) Make recommendations to the Legislative Assembly for changes in law that will help protect historic cemeteries as part of Oregon’s heritage.
(6) Assist the director in locating and listing historic cemeteries.
(7) Assist cemeteries listed as historic cemeteries with the commission to rehabilitate and maintain those cemeteries and to promote public education relating to historic cemeteries.
(8) Establish a process to obtain advice from authorities on the subject of the care of old grave markers and graveyards as part of any restoration process. [1999 c.731 §6; 2003 c.173 §5]
Note: See note under 97.772.
97.782 Listing of historic cemeteries; form. A historic cemetery that is not an operating cemetery, as defined in ORS 692.010, shall be listed with the Oregon Commission on Historic Cemeteries. An owner or any other person or association of individuals that maintains such a historic cemetery shall list the historic cemetery with the Oregon Commission on Historic Cemeteries on a form provided by the commission. No fee shall be required from a historic cemetery for listing. [1999 c.731 §7; 2003 c.173 §6]
Note: See note under 97.772.
97.784 Executive secretary; support services. The State Parks and Recreation Department shall provide support services to the Oregon Commission on Historic Cemeteries. One staff person of the department shall be the executive secretary of the commission. [1999 c.731 §8; 2003 c.173 §7]
Note: See note under 97.772.
CEMETERY CARE
97.810 Endowment care and nonendowed care cemeteries. (1) An endowment care cemetery is one which after July 5, 1955, deposits with the trustee or custodian of its endowment care fund not less than the following amounts for plots sold after that date:
(a) Fifteen percent of the gross sales price with a minimum of $5 for each grave or, when the gross sales price is paid in installments, 15 percent of each installment until at least 15 percent of the gross sales price has been deposited, with a minimum of $5 for each grave.
(b) Five percent of the gross sales price for each niche or, when the gross sales price is paid in installments, five percent of each installment until at least five percent of the gross sales price has been deposited.
(c) Five percent of the gross sales price for each crypt or, when the gross sales price is paid in installments, five percent of each installment until at least five percent of the gross sales price has been deposited.
(2) The cemetery authority shall deposit with the trustee or custodian of its endowment care fund any payment received by it and required by subsection (1) of this section to be paid into such fund, within 30 days from the receipt of such payment.
(3) Within 75 days of the end of its fiscal year, each endowment care cemetery, except one owned by a city or a county, shall file with the Director of the Department of Consumer and Business Services a statement containing the following information pertaining to the endowment care fund: The total amount invested in bonds, securities, mortgages and other investments, the total amount of cash on hand not invested at the close of the previous calendar or fiscal year, the income earned by investments in the preceding calendar or fiscal year, the amounts of such income expended for maintenance in the preceding calendar or fiscal year, the amount paid into the fund in the preceding calendar or fiscal year and such other items as the director may from time to time require to show accurately the complete financial condition of the trust on the date of the statement.
(4) All of the information appearing on the statement shall be verified by an owner or officer of the cemetery authority, and a copy of the statement shall be maintained in the business office of the cemetery authority.
(5) The director shall have authority to require, as often as the director deems necessary, the cemetery authority to make under oath a detailed report of the condition and assets of any cemetery endowment care fund.
(6) At the time of the filing of the statements of its endowment care fund each cemetery filing shall pay to the director an annual fee as follows:
(a) Up to 100 interments per year, $40.
(b) Over 100 interments per year, $100.
(7) All fees received by the director under this section shall be immediately turned over to the State Treasurer who shall deposit the moneys in the Consumer and Business Services Fund created under ORS 705.145.
(8) No cemetery shall operate after July 5, 1955, as an endowment care, permanent maintenance or free care cemetery until the provisions of this section are complied with. There shall be printed or stamped at the head of all contracts and certificates of ownership or deeds referring to plots in an endowment care cemetery, the following statement: “This cemetery is an endowment care cemetery,” in lettering equivalent to at least 10-point No. 2 black type, and there shall be printed in the body of or stamped upon the above-described instruments the following statement: “Endowment care means the general care and maintenance of all developed portions of the cemetery and memorials erected thereon.”
(9) A cemetery which otherwise complies with this section may be designated an endowment care cemetery even though it contains a small area which may be sold without endowed care, if it is separately set off from the remainder of the cemetery. There shall be printed or stamped at the head of all contracts and certificates of ownership or deeds referring to plots in this area the phrase “nonendowed care” in lettering equivalent to at least 10-point No. 2 black type.
(10) A nonendowed care cemetery is one that does not deposit in an endowment care fund the minimum specified in subsection (1) of this section.
(11) No cemetery shall in any way advertise or represent that it operates wholly or partially as an endowment care, permanent maintenance or free care cemetery, or otherwise advertise or represent that it provides general care or maintenance of all or portions of the cemetery or memorials erected thereon, until the provisions of this section are complied with. [Amended by 1955 c.545 §2; 1965 c.396 §4; 1967 c.213 §1; 1987 c.295 §1; 1995 c.144 §4; 1999 c.66 §1; 2001 c.796 §23]
97.820 Placing cemetery under endowed care; deposit; commingling endowment and special care funds; trustee or custodian of fund. (1) Every cemetery authority that operates a cemetery may place its cemetery under endowed care and establish, maintain and operate an endowment care fund. All endowed care funds shall be deposited with and held solely by the trustee or custodian appointed by the cemetery authority. The provisions of this subsection shall not apply to a city or county-owned cemetery, unless the city or county has elected to subject itself to ORS 97.810 to 97.865.
(2) Endowment care and special care funds may be commingled for investment and the income therefrom shall be divided between the endowment care and special care funds in the proportion that each fund contributed to the principal sum invested. The income of the endowment care fund may be used only to finance the care of the cemetery.
(3) The cemetery authority shall appoint as sole trustee of the endowment care fund a trust company as defined in ORS 706.008 that is authorized to transact trust business in this state, or an insured institution as defined in ORS 706.008 that is authorized to accept deposits in this state. Such trust company or insured institution shall receive and accept the fund, including any accumulated endowment care fund in existence at the time of its appointment and perform such duties as are agreed upon in the agreement between it and the cemetery authority. An insured institution not qualified to transact trust business in this state may act as custodian of such endowment care fund provided:
(a) The duties of the insured institution are essentially custodial or ministerial in nature; and
(b) The insured institution invests the funds from such plan only in its own time or savings deposits.
(4) The trustee or custodian may resign upon written notice to the cemetery authority or the cemetery authority may remove the trustee or custodian by written notice to it. In case of the resignation or removal of the trustee or custodian, the cemetery authority forthwith shall appoint a successor trustee or custodian and provide for the direct transfer of all endowed care funds and earnings thereon from the former trustee or custodian to the successor trustee or custodian.
(5) ORS 294.035 does not apply to funds held by a county or city under ORS 97.810 to 97.865. [Amended by 1955 c.545 §3; 1965 c.396 §5; 1985 c.450 §1; 1987 c.295 §2; 1993 c.18 §19; 1993 c.229 §22; 1993 c.318 §11; 1997 c.167 §2; 1997 c.631 §395]
97.825 Suits to enforce endowed care statutes; attorney fees. (1) Should the cemetery authority fail to remit to the trustee or trustees in accordance with the law, the funds herein provided for endowment and special care, or fail to expend all such funds and generally care for and maintain any portion of a cemetery entitled to endowment care, any three lot owners whose lots are entitled to endowment care, or any one lot owner whose lot is entitled to special care, or the next of kin, heirs at law or personal representatives of such lot owners, shall have the right, or the district attorney of any county wherein is situated such lots, shall have the power, by suit for mandatory injunction or for appointment of a receiver, to sue for, to take charge of, and to expend such net income. Such suit may be filed in the circuit court of the county in which said cemetery is located, to compel the expenditure either by the cemetery authority or by any receiver so appointed by the court, of the net income from such endowment care fund for the purposes set out in ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990.
(2) When the Director of the Department of Consumer and Business Services has reason to believe that a cemetery endowment care fund does not conform to the requirement of law, or when the director has reason to believe that any cemetery is operating in violation of ORS 97.810 or 97.820, or when an endowment care cemetery fails after 30 days’ notice of delinquency to make any report to the director required by ORS 97.810, the director shall give notice of the foregoing to the trustee or trustees of the cemetery endowment care fund, the cemetery for the benefit of which the fund is established, the Attorney General of Oregon and the State Mortuary and Cemetery Board. Within 90 days after the receipt of such notice, the Attorney General shall institute suit in the circuit court of any county of this state in which such cemetery is located, for a mandatory injunction against further sales of graves, plots, crypts, niches, burial vaults, markers or other cemetery merchandise by such cemetery or for the appointment of a receiver to take charge of the cemetery, unless the Attorney General shall prior to that time be notified by the director that such failure to conform to the requirements of the law or to report has been corrected.
(3) If a trustee fails to perform the duties of the trustee under ORS 97.810 to 97.920, the trustee shall be liable for any damage resulting from that failure to any lot owners or the next of kin, heirs at law or personal representatives of such lot owners.
(4) The court may award reasonable attorney fees, costs and disbursements to the prevailing party in an action under this section. [1955 c.545 §5; 1965 c.396 §6; 1985 c.450 §2; 1999 c.67 §1; 2001 c.796 §24]
97.830 Investment and reinvestment of principal of endowed care funds; use and application of income. (1) The principal of all funds for endowed care shall be invested, from time to time reinvested and kept invested. If a trust agreement imposes upon the trustee or custodian the duty to direct the investment or reinvestment of endowed care funds, the trustee or custodian shall perform this duty governed by ORS 130.750 to 130.775. Otherwise, the cemetery authority, governed by ORS 130.750 to 130.775, shall direct the investment and reinvestment of endowed care funds in the time or savings deposits of the custodian bank or savings association.
(2) The principal of invested endowed care funds shall never be voluntarily reduced, but shall be maintained separate and distinct by the trustee or custodian from all other funds except that it shall be proper to commingle endowment care funds with special care funds. The payment of charges chargeable against principal under ORS chapter 129 or of other expenses necessarily incurred in the administration of the trust in accordance with subsection (1) of this section shall not constitute a voluntary reduction of principal. The net income earned shall be used solely for the general care and maintenance of the cemetery property entitled to endowment care, as stipulated in the resolution, bylaw and other action or instrument by which the fund was established, and in such manner as the cemetery authority may from time to time determine to be in the best interests of such endowed property. Such net income shall never be used for the improvement or embellishment of undeveloped property offered for sale. [Amended by 1955 c.545 §4; 1985 c.450 §3; 1987 c.295 §3; 1995 c.157 §24; 1995 c.297 §1; 2003 c.279 §32; 2005 c.348 §125]
97.835 Limitation of duties and liability of trustee. The trustee shall have no duty whatsoever to operate, maintain or to supervise the general maintenance of any endowment fund cemetery, and the trustee shall have no duty whatsoever to enforce collection of any of the trust funds either from the purchasers of lots, or from the cemetery authority, and the trustee shall have no duty whatsoever to see to the application of the net income after payment of the net income to the cemetery authority. The trustee shall be entitled to rely without liability upon the affidavit of the cemetery authority showing the amount payable to the trustee as endowment care funds. [1955 c.545 §6]
97.840 Cemetery authority authorized to receive and hold gifts of property; disposition of gifts. A cemetery authority which has established an endowment care fund may take, receive and hold any property, real, personal or mixed, bequeathed, devised, granted, given or otherwise contributed to it for its endowment care fund. Within 30 days of the receipt of such contributions, the cemetery authority shall deposit, with the trustee or custodian of the fund to which the property was contributed, all moneys and all documents or instruments of title or conveyance evidencing the contribution. As soon as practicable, the cemetery authority shall provide for the sale of all property for fair market value and, within 30 days of the receipt of the proceeds thereof, shall deposit the proceeds with the trustee or custodian. The trustee or custodian shall execute all documents necessary to effect the sale, consistent with the purposes of this section. [Amended by 1987 c.295 §4]
97.850 Endowment and special care funds are charitable. The endowment and special care funds and all payments or contributions to them are expressly permitted as and for charitable and eleemosynary purposes. Endowment care is a provision for the discharge of a duty from the persons contributing to the persons interred and to be interred in the cemetery and a provision for the benefit and protection of the public by preserving and keeping cemeteries from becoming unkempt and places of reproach and desolation in the communities in which they are situated.
97.860 Agreements for care. (1) Upon payment of the purchase price, including the amount fixed as a proportionate contribution for endowed care, there may be included in the deed of conveyance, or by separate instrument, an agreement to care, in accordance with the plan adopted, for the cemetery and its appurtenances to the proportionate extent the income received by the cemetery authority from the contribution permits.
(2) Upon the application of an owner of any plot, and upon the payment by the owner of the amount fixed as a reasonable and proportionate contribution for endowed care, a cemetery authority may enter into an agreement with the owner for the care of the plot of the owner and its appurtenances.
97.865 Application of ORS 97.810 to 97.865 to religious, county and city cemeteries. (1) The cemetery authority that operates a cemetery for any religious or eleemosynary corporation, church, religious society or denomination, corporation sole administering temporalities of any church or religious society or denomination and any county or city may make an irrevocable election to have ORS 97.810 to 97.865 apply to any cemetery controlled or operated by the cemetery authority, county or city by filing a written statement indicating such action with the Director of the Department of Consumer and Business Services. The statement shall be in the form prescribed by the director and shall contain the information specified by the director.
(2) When a cemetery authority, county or city files a statement described in this section with the director, ORS 97.810 to 97.865 will apply to a cemetery controlled or operated by the cemetery authority, county or city beginning on the first day of the fiscal year next following the filing of the statement. [1997 c.167 §4; 2001 c.796 §25]
97.870 Unused and uncared for portions of cemetery declared common nuisances. In all cases where a cemetery authority has owned a site for a cemetery for more than 40 years and has during that period sold lots, subdivisions of lots, pieces or parcels of the cemetery for burial purposes and the grantee or party claiming through the grantee has not used portions of such lots, subdivisions of lots, pieces or parcels of the cemetery for purposes of burial and has not kept them free of weeds or brush, but has allowed them to remain entirely unused for more than 40 years or uncared for and unused for more than 20 years prior to the adoption of the resolution provided for in ORS 97.880, and such lots, subdivisions of lots, pieces and parcels of the cemetery are adjacent to improved parts thereof, and by reason of their uncared-for condition detract from the appearance of the cemetery and interfere with the harmonious improvement thereof, and furnish a place for the propagation of weeds and brush, thereby becoming a menace to adjacent property, such lots, subdivisions of lots, pieces and parcels of such cemetery, which are unused and uncared for as aforesaid, hereby are declared to be a common nuisance and contrary to public policy. The provisions of this section are not applicable to portions of cemeteries which have been or are sold with agreements between the cemetery authority or its successor in interest, or both, and the grantee providing for endowment care, permanent care, maintenance or free care. [Amended by 1965 c.396 §7]
97.880 Resolution declaring a nuisance. The governing board of a cemetery authority described in ORS 97.870 may adopt a resolution declaring such unused and unimproved portion of its cemetery as is described in ORS 97.870 a common nuisance and an abandoned and unused portion of such cemetery, and may direct its officers to file the complaint described in ORS 97.890. [Amended by 1983 c.740 §9]
97.890 Complaint. (1) Upon the adoption of the resolution described in ORS 97.880 the officers of the cemetery association may file a complaint in the circuit court for the county in which the cemetery is located against the owners, holders or parties interested in such abandoned portion of its cemetery demanding that the court require such owners, holders or interested parties to keep the premises clear of weeds and brush and in condition in harmony with other lots and, if the owners, holders, or interested parties fail to appear in court and comply with the order of the court, demanding that the court make a judgment declaring such portions of the cemetery a common nuisance, directing the governing board to abate the nuisance by clearing the premises and keeping them clear of weeds and brush, creating a lien upon such lots and parcels in favor of the cemetery association or other proprietor, providing that the lien be foreclosed and the lots and parcels be sold in the same manner as other sales upon execution are made and authorizing the governing board to become a purchaser thereof on behalf of the association or the proprietor.
(2) In such suit any number of owners of different lots, subdivisions of lots, pieces or parcels of the cemetery may be included in the one suit.
(3) It is a sufficient designation of the property so abandoned and unimproved to give the lot number or portion thereof, or a description of the piece or parcel having no lot number, together with the name of the owner thereof, as appears on the record of the cemetery association.
(4) In addition to the names of the persons that appear on the records of the cemetery association as the record owners of such unused and unimproved portions of the cemetery, the plaintiff shall include as a defendant in a complaint the following: “Also all other persons unknown claiming any right, title, estate, lien or interest in the unused and unimproved portions of the cemetery described in the complaint.” [Amended by 2003 c.576 §358]
97.900 Summons. (1) Summons shall be served upon all owners or holders who are residents of this state in like manner as in service of summons in a civil action if such owners and holders are known to the sheriff in the county in which the cemetery is located. If the defendants are not known to the sheriff, it is sufficient to serve the owners and holders whose names appear on the tax rolls of the county for the year previous to that in which the suit is started. The plaintiff is not required to mail a copy of the summons or complaint to nonresident defendants.
(2) All owners and holders of such unimproved lots whose names do not appear on the tax rolls as aforesaid as shown by the return of the sheriff may be served by publication in any legal newspaper published in the county in which the cemetery is located for four consecutive weeks upon return of the sheriff that such owners and holders are not known and cannot be served in the jurisdiction of the sheriff.
(3) The published summons shall contain the names of the record owners, as shown by the records of the cemetery association, and “also all other persons unknown claiming any right, title, estate, lien or interest in the unused and unimproved portions of the cemetery described in the complaint,” together with a brief description of the lot, or subdivisions of lots, pieces or parcels of the cemetery and a statement setting forth the order and judgment described in ORS 97.890 (1) for which the plaintiff has applied to the court in the complaint. Such summons shall require all parties defendant to appear and show cause why an order should not be made declaring the unused and unimproved portions of the cemeteries to be a common nuisance, directing the cemetery association or other proprietor to abate the nuisance, creating a lien thereon, providing that it be foreclosed and directing that the unused and unimproved portion of the cemetery be sold within four weeks from and after the date of the first publication thereof. [Amended by 2003 c.576 §359]
97.910 Disuse as prima facie evidence of abandonment. In all cases arising under ORS 97.870 to 97.900, the fact that the owner, holder or interested party, of the unused and unimproved portion of the cemetery has not, for a term of 20 years or more, used the plot and has failed to keep it clear of weeds or brush is prima facie evidence that the owner, holder or interested party has abandoned it.
97.920 Judgment declaring nuisance, authorizing abatement and creating and foreclosing lien. Upon the failure of the owner of the premises to comply with the order of the court requiring proper care of the premises or upon the failure of any of the defendants to appear and answer the complaint or upon the trial of the cause, if the court finds that the allegations of the complaint are supported by the evidence and that the summons has been served as provided in ORS 97.900, the court may enter a judgment in accordance with the allegations of the complaint and the provisions of ORS 97.890 (1). [Amended by 2003 c.576 §360]
PREARRANGEMENT SALES AND PRECONSTRUCTION SALES
97.923 Definitions for ORS 97.923 to 97.949. As used in ORS 97.923 to 97.949 and 97.994 unless the context requires otherwise:
(1) “Beneficiary” means the person, if known, who is to receive the funeral and cemetery merchandise, funeral and cemetery services or completed interment, entombment or cremation spaces.
(2) “Certified provider” means any person certified under ORS 97.933 to sell or offer for sale prearrangement sales contracts or preconstruction sales contracts.
(3) “Delivery” occurs when:
(a) Physical possession of the funeral and cemetery merchandise is transferred to the purchaser;
(b) Title to the funeral and cemetery merchandise has been transferred to the purchaser, has been paid for, and is in the possession of the seller, who has placed it, until needed, for storage on the seller’s premises; or
(c) The merchandise has been identified for the purchaser or the beneficiary and held by the manufacturer for future delivery.
(4) “Depository” means a financial institution or trust company, as those terms are defined ORS 706.008, that is authorized to accept deposits in this state or to transact trust business in this state.
(5) “Director” means the Director of the Department of Consumer and Business Services.
(6) “Funeral and cemetery merchandise” includes nonperishable items of personal property customarily sold by funeral service establishments, cemeteries, crematoriums and monument companies, including, but not limited to, caskets, burial vaults, memorials, markers and foundations, but shall not include rights of interment or entombment in a cemetery section, lawn crypt section, mausoleum or columbarium that is in existence at the time of initial payment on the contract.
(7) “Funeral and cemetery services” includes all services customarily performed:
(a) By a funeral service practitioner, embalmer, funeral service establishment, cemetery or crematorium licensed under ORS chapter 692;
(b) In conjunction with an interment, entombment or cremation; and
(c) In conjunction with the sale, installation or erection of a memorial, marker, monument or foundation.
(8) “Guaranteed contract” means a written preconstruction sales contract or prearrangement sales contract that guarantees the beneficiary the specific undeveloped space or spaces or funeral and cemetery merchandise or funeral and cemetery services contained in the contract and under which no charges other than the sales price contained in the contract shall be required upon delivery or performance of the funeral and cemetery services.
(9) “Master trustee” means an entity appointed by a certified provider to administer moneys received from the certified provider under ORS 97.941 who acts independently from any certified provider and who is not also a certified provider under ORS 97.923 to 97.949. “Master trustee” does not include a financial institution, as defined in ORS 706.008, that acts solely as a depository under ORS 97.923 to 97.949.
(10) “Nonguaranteed contract” means a written preconstruction sales contract or prearrangement sales contract that guarantees the beneficiary the specific undeveloped space or spaces or funeral and cemetery merchandise or funeral and cemetery services contained in the contract and under which additional charges other than the sales price contained in the contract may be required at the time of delivery or performance of the funeral and cemetery services.
(11) “Preconstruction sales” or “preconstruction sales contract” means any sale made to a purchaser, which has as its purpose the furnishing of undeveloped interment, entombment or cremation spaces and where the sale terms require payment or payments to be made at a currently determinable time.
(12) “Prearrangement sales” or “prearrangement sales contract” means any sale, excluding the sale and contemporaneous or subsequent assignment of a life insurance policy or an annuity contract, made to a purchaser, that has as its purpose the furnishing of funeral and cemetery merchandise or funeral and cemetery services in connection with the final disposition or commemoration of the memory of a dead human body, for use at a time determinable by the death of the person or persons whose body or bodies are to be disposed and where the sale terms require payment or payments to be made at a currently determinable time.
(13) “Provider” means any entity that sells and offers for sale funeral and cemetery merchandise or funeral and cemetery services.
(14) “Purchaser” means a beneficiary or a person acting on behalf of a beneficiary who enters into a prearrangement sales contract or a preconstruction sales contract with a certified provider under which any payment or payments made under the contract are required to be deposited in trust under ORS 97.941.
(15) “Salesperson” means an individual registered under ORS 97.931 and employed by a certified provider to engage in the sale of prearrangement or preconstruction sales contracts on behalf of the certified provider.
(16) “Sales price” means the gross amount paid by a purchaser for a prearrangement sales contract or preconstruction sales contract, excluding sales taxes, credit life insurance premiums and finance charges.
(17) “Trust” means an express trust created under ORS 97.941 whereby a trustee has the duty to administer the amounts specified under ORS 97.941 received under a prearrangement sales contract or a preconstruction sales contract for the benefit of the purchaser of a prearrangement sales contract or preconstruction sales contract.
(18) “Undeveloped interment, entombment or cremation spaces” or “undeveloped spaces” means any space to be used for the reception of human remains that is not completely constructed or developed at the time of initial payment. [Formerly 128.400; 2003 c.362 §1]
Note: 97.923 to 97.949 (formerly 128.400 to 128.440) were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 97 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.
97.925 Purpose. It is the purpose of ORS 97.923 to 97.949, 97.992, 97.994 and 692.180 to assure funds for performance to those purchasers who contract through prearrangement sales contracts for the purchase of funeral and cemetery merchandise and funeral and cemetery services, and through preconstruction sales contracts for undeveloped interment, entombment or cremation spaces. It is also the purpose of ORS 97.923 to 97.949, 97.992, 97.994 and 692.180 to provide for the certification or registration of persons selling or offering for sale prearrangement sales contracts and preconstruction sales contracts, the creation and administration of prearrangement sales contract and preconstruction sales contract trust funds, the disbursement and allocation of trust funds upon the certified provider’s performance of its contractual obligations and to provide protection for the purchaser upon the certified provider’s default. [Formerly 128.405]
Note: See note under 97.923.
97.927 Applicability of ORS 97.923 to 97.949. (1) Except as provided in this section, ORS 97.923 to 97.949, 97.992, 97.994 and 692.180 apply to all certified providers, master trustees and salespersons who sell or offer for sale prearrangement sales contracts or preconstruction sales contracts.
(2) ORS 97.923 to 97.949, 97.992, 97.994 and 692.180 do not apply to:
(a) Agreements to sell or sales made by endowment care cemeteries under ORS 97.929; or
(b) Any nonprofit memorial society charging less than a $100 membership fee. [Formerly 128.407; 2003 c.362 §2]
Note: See note under 97.923.
97.929 Exceptions to ORS 97.923 to 97.949. (1) The provisions of ORS 97.923 to 97.949, 97.992, 97.994 and 692.180 do not apply to:
(a) Agreements to sell or sales of graves, crypts or niches where such graves, crypts or niches are in existence at the time of the sale or agreement to sell and are located in an endowment care cemetery as defined in ORS 97.810.
(b) Agreements to sell or sales of crypts or niches where such crypts or niches are not in existence at the time of the sale or agreement to sell and are to be located in an endowment care cemetery, provided that:
(A) Thirty-five percent of the sales price of each crypt or niche described in this paragraph is deposited in accordance with the provisions of ORS 97.937; or
(B) Such endowment care cemetery deposits a bond with a corporate surety authorized to do business in this state, or an irrevocable letter of credit issued by an insured institution, as defined in ORS 706.008. The bond or letter of credit shall be in an amount equal to 35 percent of the total sales price of all crypts or niches described in this paragraph that have been sold by the endowment care cemetery and that have not yet been completed.
(c) Agreements to sell or sales of burial vaults or markers for installation in an endowment care cemetery, provided that:
(A) Sixty-six and two-thirds percent of the sale price of such vaults or markers is deposited in accordance with the provisions of ORS 97.937;
(B) Such endowment care cemetery is at the time of the sale or agreement to sell and for not less than 24 months before such sale or agreement has been in continuous operation as an endowment care cemetery and has assumed the obligation to supply and install the vault or marker and maintain it as part of its endowment care program; and
(C) Such endowment care cemetery deposits with the Director of the Department of Consumer and Business Services:
(i) A bond in a form approved by the director in the amount of $10,000 issued by a corporate surety authorized to do business in this state; or
(ii) An irrevocable letter of credit in a form approved by the director in the amount of $10,000 issued by an insured institution, as defined in ORS 706.008.
(2) Notwithstanding the exception provided in subsection (1) of this section, a person who would otherwise have a claim against a certified provider, a master trustee or a salesperson under the provisions of ORS 97.923 to 97.949 or ORS chapter 692 shall have a right against the bond or letter of credit described in subsection (1)(b) and (c) of this section. [Formerly 128.412; 2003 c.271 §1]
Note: Section 2, chapter 68, Oregon Laws 1999, provides:
Sec. 2. (1) The amendments to ORS 128.412 [renumbered 97.929] by section 1 of this 1999 Act apply only to agreements to sell crypts or niches entered into on or after the effective date of this 1999 Act [October 23, 1999], and sales of crypts and niches made on or after the effective date of this 1999 Act.
(2) An endowment care cemetery that deposited a bond or an irrevocable letter of credit under the provisions of ORS 128.412 (2)(b) (1997 Edition) before the effective date of this 1999 Act must continue to maintain the bond or irrevocable letter of credit in the amount provided by ORS 128.412 (2)(b) (1997 Edition) until such time as all the crypts and niches that were part of the development covered by the bond or letter of credit are completed. Any endowment care cemetery that maintains a bond or letter of credit pursuant to this subsection is not required to maintain a bond or letter of credit in the amount required by ORS 128.412 (2)(b) [renumbered 97.929 (2)(b)], as amended by section 1 of this 1999 Act, for the purpose of crypts and niches located in the development covered by the bond or letter of credit maintained under the provisions of this subsection, but the endowment care cemetery must maintain a bond or letter of credit in the amount required by ORS 128.412 (2)(b) [renumbered 97.929 (2)(b)], as amended by section 1 of this 1999 Act, for sales of, and agreements to sell, crypts or niches located in any development commenced on or after the effective date of this 1999 Act. [1999 c.68 §2]
Note: 97.929 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 97 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.
97.930 [1977 c.715 §§2,3; renumbered 97.975 in 2001]
97.931 Registration of salesperson for endowment care cemeteries, preconstruction sales and prearrangement sales; rules; background check; civil penalties. (1) A salesperson may not engage in prearrangement sales made by endowment care cemeteries under ORS 97.929 or in preconstruction sales or prearrangement sales unless the salesperson is registered with the State Mortuary and Cemetery Board or holds a current funeral service practitioner license, embalmer license, funeral service practitioner apprentice registration or embalmer apprentice registration. The board by rule shall:
(a) Establish procedures for issuing salesperson registrations under this subsection;
(b) Establish standards for determining whether a salesperson registration should be issued;
(c) Set renewal and salesperson registration fees; and
(d) Require biennial renewal of salesperson registrations.
(2) The board may conduct a background check of any salesperson applying for registration under subsection (1) of this section. The background check may include information solicited from the Department of State Police. After consideration of information obtained from any background check and any other information in its possession, the board shall determine whether to register the salesperson.
(3)(a) The board may impose a civil penalty of up to $1,000 per violation or suspend, revoke or refuse to issue or renew the registration of a salesperson described in subsection (1) of this section upon a determination that the applicant or holder has not complied with the provisions of ORS 97.923 to 97.949 or ORS chapter 692, or any rules adopted thereunder. When the board proposes to take such action, the person affected by the action shall be accorded notice and an opportunity for hearing as provided by ORS chapter 183. The board shall notify the Director of the Department of Consumer and Business Services of its intent to take action against a salesperson or person acting as a salesperson.
(b) The board shall suspend, revoke or refuse to issue or renew the registration of a salesperson if the director requests the board to take such action.
(4) Fees and other moneys received by the board under this section shall be deposited into the State Mortuary and Cemetery Board Account established in ORS 692.375. [Formerly 128.414; 2005 c.726 §2]
Note: See note under 97.923.
97.933 Certification of provider of prearrangement or preconstruction sales; annual reports; audits; fees. (1) A provider may not engage in prearrangement sales or preconstruction sales unless the provider is certified by the Director of the Department of Consumer and Business Services. The director shall:
(a) Establish procedures for issuing certificates required by this section.
(b) Establish standards for determining whether a certificate should be issued.
(c) Set certification and renewal fees.
(d) Require annual renewal of certification.
(e) Establish standards for rules of conduct of certified providers.
(2) The fees described in this section shall be reasonable and shall defray the costs associated with the administration of ORS 97.923 to 97.949.
(3)(a) Every certified provider shall file an annual report with the director on forms provided by the director. The annual report shall contain any information reasonably considered necessary by the director, including but not limited to:
(A) A disclosure of changes in trust deposits;
(B) The number of consecutively numbered prearrangement or preconstruction sales contracts sold during the reporting period; and
(C) The number of withdrawals from or terminations of any trusts.
(b) If the annual report is not filed or is filed and shows any material discrepancy, the director may take appropriate action and send notification of the matter to the State Mortuary and Cemetery Board.
(c) The director may relieve a certified provider of the duty to file the annual report upon a determination that the certified provider has performed all obligations under the prearrangement sales contract or preconstruction sales contract, or that such obligations lawfully have been assumed by another or have been discharged or canceled.
(4) The director may audit the records of a certified provider that relate to prearrangement sales or preconstruction sales, as the director may consider appropriate. The director may refer any matter outside of normal auditing procedures to the office of the Attorney General for investigation and send notification of the referral to the State Mortuary and Cemetery Board.
(5) The conduct of individuals, including salespersons as defined in ORS 97.923, employed by a certified provider is the direct responsibility of the certified provider. [2001 c.796 §1; 2003 c.362 §3]
Note: See note under 97.923.
97.935 Registration of master trustees; annual reports; annual audits; rules; fees. (1) A person may not operate as a master trustee unless the person is registered with the Director of the Department of Consumer and Business Services. The director shall:
(a) Establish procedures for registering persons under this section.
(b) Establish standards for master trustees.
(c) Set registration and renewal fees.
(d) Establish standards for rules of conduct of master trustees.
(2)(a) Every master trustee shall file an annual report with the director on forms provided by the director. The annual report shall contain any information reasonably considered necessary by the director, including but not limited to:
(A) A disclosure of changes in trust deposits; and
(B) A list of all certified providers for which the master trustee holds funds and the total amount of funds held for each certified provider.
(b) The director may take appropriate action under ORS 97.948 and 97.949 if a master trustee fails to file the annual report or the report contains any material discrepancy.
(c) The director may relieve a master trustee of the duty to file the annual report upon a determination that the master trustee has performed all obligations under the trust agreement with each certified provider, or that the master trustee’s obligations have been lawfully assumed by another person or have been discharged or canceled.
(3) The director may conduct an annual audit of a master trustee. The director shall prescribe the form of audits under this section.
(4) A master trustee who is audited under this section shall pay all expenses and costs incurred by the director in conducting the audit.
(5) The director shall adopt rules necessary to administer this section. The rules shall identify the specific trust provisions that are the subject of an audit conducted under this section. [2001 c.796 §2; 2003 c.362 §4]
Note: See note under 97.923.
97.937 Deposit of trust funds made by endowment care cemeteries. (1) This section applies to trust deposits required to be made by endowment care cemeteries under ORS 97.929.
(2) As used in this section, “common trust account” means trust funds received by a provider from two or more purchasers.
(3) All such trust funds shall be deposited by the provider with a financial institution in the State of Oregon carrying deposit insurance, within 15 days after receipt thereof. A trust fund shall be held in a separate account in the name of the provider followed by the words “funeral plan trust account,” in trust for the person for whom such prearranged funeral plan is made, or in a common trust account in the name of the provider in trust for each person for whom such prearranged funeral plan is made, until a trust fund is released under any of the following conditions:
(a) Upon presentation of proof of the death of the person for whom a prearranged funeral plan is made, the financial institution shall release such trust fund to the provider.
(b) Upon presentation of the written request of the purchaser of a revocable trust, the financial institution shall release such trust fund as directed in such request.
(c) Upon presentation of proof of the death, dissolution, insolvency or merger with another of the provider of a revocable trust, the financial institution shall release such trust fund to the purchaser.
(d) Upon presentation of proof of the death, dissolution, insolvency or merger with another of the provider of an irrevocable trust, the financial institution shall continue to hold such trust fund subject to the funeral plan trust, and upon appointment of a successor provider by the purchaser, the purchaser’s legal representative, the Director of the Department of Consumer and Business Services or a court of competent jurisdiction, the financial institution shall release such trust fund to the successor provider only as provided in paragraph (a) of this subsection.
(4) If trust funds are held in a common trust account under subsection (3) of this section, the provider shall maintain records showing the purchaser and beneficiary of each individual trust fund in the account and the allocation to each individual trust fund of interest earned by the account.
(5) The provider may appoint a successor depository. The original depository shall only release the trust funds to the successor depository except as described in subsections (1) to (4) of this section.
(6) The financial institution shall in no way be responsible for the fulfillment of any prearranged funeral plan, excepting only such financial institution shall release a trust fund as provided in this section.
(7) The director may appoint a successor provider upon a determination that the original provider has ceased to provide the kinds of services and things which the original provider agreed to provide, that the purchaser or the purchaser’s legal representative cannot be readily identified or contacted and that the appointment of a successor provider is appropriate in order to protect the interests of the trust beneficiaries. Financial institutions holding deposits of such trust funds shall change their records to reflect such appointment of a successor provider upon receipt of written notice of the appointment from the director. Where the director proposes to take such action under this subsection, the provider being replaced shall be accorded notice and an opportunity for hearing as provided in ORS chapter 183. [Formerly 128.415]
Note: Section 16, chapter 813, Oregon Laws 1987, provides:
Sec. 16. Notwithstanding the repeal of ORS 128.410 by section 17 of this Act and the amendments to ORS 128.415 [renumbered 97.937] by section 12 of this Act, ORS 128.410 and ORS 128.415 (1985 Replacement Part) shall continue to apply to any prearranged funeral plan entered into prior to the effective date of this Act [September 27, 1987]. [1987 c.813 §16]
Note: 97.937 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 97 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.
97.939 Prearrangement or preconstruction sales contracts; contents; delivery. (1) Three copies of a written sales contract shall be executed for each prearrangement sales contract or preconstruction sales contract sold by a certified provider. The certified provider shall retain one copy of the contract and a copy of the completed contract shall be given to:
(a) The purchaser; and
(b) The depository or the master trustee, if applicable.
(2) Upon receiving a trust deposit under ORS 97.941, the master trustee shall sign a copy of the contract received under subsection (1) of this section and return the contract to the purchaser.
(3) Each completed contract shall:
(a) Comply with the plain language standards described in ORS 180.545 (1);
(b) Be consecutively numbered;
(c) Have a corresponding consecutively numbered receipt;
(d) Be preprinted or, if the certified provider uses a master trustee, be obtained from the master trustee;
(e) Identify the purchaser and certified provider who sold the contract;
(f) Specify whether the contract is a guaranteed contract or a nonguaranteed contract;
(g) Specify the specific funeral and cemetery merchandise, funeral and cemetery services or undeveloped interment, entombment or cremation spaces included and not included in the contract; and
(h) If a guaranteed contract, disclose that the certified provider may retain 10 percent of the sales price.
(4) Notwithstanding ORS 97.943 (8), in the case of a prearrangement sales contract, if at the time of completion of the contract, the beneficiary of the contract is a recipient of public assistance or reasonably anticipates becoming a recipient of public assistance, the contract may provide that the contract is irrevocable. The contract may provide for an election by the beneficiary, or by the purchaser on behalf of the beneficiary, to make the contract thereafter irrevocable if after the contract is entered into, the beneficiary becomes eligible or seeks to become eligible for public assistance. [Formerly 128.421]
Note: See note under 97.923.
97.941 Prearrangement or preconstruction trust fund deposits. (1) Upon receiving anything of value under a prearrangement sales contract or preconstruction sales contract, the certified provider who sold the contract shall deposit the following amounts into one or more trust funds maintained pursuant to ORS 97.923 to 97.949, 97.992, 97.994 and 692.180:
(a) Ninety percent of the amount received in payment of a guaranteed prearrangement sales contract or guaranteed preconstruction sales contract. The remaining 10 percent shall be paid to the provider who sold the contract; or
(b) One hundred percent of the amount received in payment of a nonguaranteed prearrangement sales contract or nonguaranteed preconstruction sales contract.
(2) All trust deposits required by ORS 97.923 to 97.949, 97.992, 97.994 and 692.180 shall be made within five business days of their receipt.
(3) Trust deposits required under ORS 97.923 to 97.949, 97.992, 97.994 and 692.180 shall be placed in a depository as defined in ORS 97.923. The trust deposits shall be maintained in a depository, except that the provider of a prearrangement sales contract or preconstruction sales contract may invest the trust funds in a manner that is, in the opinion of the provider, reasonable and prudent under the circumstances, provided that all investments are certificates of deposit, U.S. Treasuries, issues of U.S. government agencies, guaranteed investment contracts, banker’s acceptances or corporate bonds rated A or better by Standard & Poor’s Corporation or Moody’s Investors Service, and provided that all investments shall be placed in the custody of the depository in which the trust funds were originally deposited or any other depository that may qualify under ORS 97.923 to 97.949. Prearrangement sales contract trust fund and preconstruction sales contract trust fund accounts shall be in the name of the provider who sold the contract under ORS 97.923 to 97.949, 97.992, 97.994 and 692.180.
(4) Funds deposited in the trust fund account shall be identified in the records of the provider by the name of the purchaser and beneficiary and adequate records shall be maintained to allocate all earnings to each prearrangement sales contract or preconstruction sales contract. Nothing shall prevent the provider from commingling the deposits in any such trust fund account for purposes of managing and investing the funds. A common trust fund account shall be identified by the name of the provider.
(5) When a prearrangement sales contract or preconstruction sales contract includes rights of interment, entombment or cremation, funeral or cemetery merchandise or funeral or cemetery services, the application of payments received under the contract shall be clearly provided in the contract.
(6) Any person engaging in prearrangement sales or preconstruction sales who enters into a combination sale which involves the sale of items subject to trust and any item not subject to trust shall be prohibited from increasing the sales price of those items not subject to trust with the purpose of allocating a lesser sales price to items which require a trust deposit.
(7)(a) A provider may appoint a successor provider. The depository shall release the trust funds deposited under ORS 97.923 to 97.949, 97.992, 97.994 and 692.180 only to the successor provider as described in ORS 97.943 and 97.944 or upon presentation of the written request of the purchaser.
(b) If appointing a successor provider under this subsection, the original provider shall notify the Director of the Department of Consumer and Business Services of the proposed change at least 30 days prior to the appointment.
(8)(a) A provider may appoint a successor depository or a master trustee that is a depository as defined in ORS 97.923.
(b) If appointing a successor depository or master trustee under this subsection, the provider, the successor depository and the master trustee must notify the director of the proposed change at least 30 days prior to the appointment.
(9) The trust fund accounts shall be a single purpose fund. In the event of the provider’s bankruptcy, the funds shall not be available to any creditor as assets of the provider, but shall be distributed to the purchasers or managed for their benefit by the trustee in bankruptcy, receiver or assignee.
(10)(a) If the original provider is licensed under ORS chapter 692 and voluntarily surrenders the license to the State Mortuary and Cemetery Board, the original provider shall transfer responsibility as provider under this section to a successor provider who holds a certificate issued by the director under ORS 97.933.
(b) If the original provider is not licensed under ORS chapter 692, upon presentation of proof of the death, dissolution, insolvency or merger with another provider of the original provider, the depository shall release the prearrangement trust fund deposits or preconstruction trust fund deposits to the purchaser.
(c) If the original provider is licensed under ORS chapter 692, upon proof of the death, insolvency or involuntary surrender of the license of the original provider, the depository shall release the prearrangement trust fund deposits or preconstruction trust fund deposits to the purchaser.
(11) The purchaser or beneficiary of a prearrangement sales contract or preconstruction sales contract may be named cotrustee with the provider with the written consent of the purchaser or beneficiary.
(12) A provider who has not appointed a master trustee shall have an annual audit of all trust account funds performed by an independent certified public accountant in accordance with generally accepted audit procedures. The provider shall make the audit results available to the director if requested.
(13) As used in this section, “common trust fund account” means trust funds received by a provider from two or more purchasers. [Formerly 128.423]
Note: See note under 97.923.
97.943 Distributions from prearrangement trust fund deposits. (1) A depository shall make no distributions from prearrangement sales contract trust deposits except as provided in this section.
(2) The principal of a trust created pursuant to a prearrangement sales contract shall be paid to the certified provider who sold the contract if the certified provider who sold the contract swears, by affidavit, that the certified provider has delivered all merchandise and performed all services required under the prearrangement sales contract and delivers to the depository one of the following:
(a) A certified death certificate of the beneficiary; or
(b) A sworn affidavit signed by the certified provider and by:
(A) One member of the beneficiary’s family; or
(B) The executor of the beneficiary’s estate.
(3) The principal of a trust created pursuant to a prearrangement sales contract shall be paid to the purchaser if the original provider is no longer qualified to serve as provider under ORS 97.941 (10).
(4) Upon completion by the certified provider of the actions described in subsection (2) of this section, the depository shall pay to the certified provider from the prearrangement sales contract trust fund an amount equal to the sales price of the merchandise delivered.
(5) Upon the final payment to the certified provider of the principal in trust under subsection (2) of this section, the undistributed earnings of the trust shall be paid to:
(a) The certified provider who sold the contract if the contract is a guaranteed contract; or
(b) The contract purchaser, or the purchaser’s estate, if the contract is a nonguaranteed contract.
(6) The depository may rely upon the certifications and affidavits made to it under the provisions of ORS 97.923 to 97.949, 97.992, 97.994 and 692.180, and shall not be liable to any person for such reliance.
(7) If for any reason a certified provider who sold the prearrangement sales contract has refused to comply, or cannot or does not comply with the terms of the prearrangement sales contract within a reasonable time after the certified provider is required to do so, the purchaser or heirs or assigns or duly authorized representative of the purchaser or the beneficiary shall have the right to a refund in the amount equal to the sales price paid for undelivered merchandise and unperformed services plus undistributed earnings amounts held in trust attributable to such contract, within 30 days of the filing of a sworn affidavit with the certified provider who sold the contract and the depository setting forth the existence of the contract and the fact of breach. A copy of this affidavit shall be filed with the Director of the Department of Consumer and Business Services. In the event a certified provider who has sold a prearrangement sales contract is prevented from performing by strike, shortage of materials, civil disorder, natural disaster or any like occurrence beyond the control of the certified provider, the certified provider’s time for performance shall be extended by the length of such delay.
(8) At any time prior to the death of the beneficiary of a prearrangement sales contract, the purchaser of the prearrangement sales contract may cancel the contract and shall be entitled to a 100 percent refund of the entire amount paid on the contract including undistributed earnings attributable to such amount, but excluding any amount paid for merchandise already delivered, which amount shall be retained by the certified provider who sold the contract as liquidated damages.
(9) Notwithstanding ORS 97.941 (4) and subsection (5) of this section, upon receiving a sworn affidavit from the provider stating that qualifying expenses, taxes or fees have been incurred, a depository shall allow a provider to pay from earnings of trust fund deposits any expenses, accounting fees, taxes, depository fees, investment manager fees and other fees as may be necessary to enable the provider to comply with the reporting required by ORS 97.923 to 97.949, and to perform other services for the trust as may be authorized by ORS 97.923 to 97.949. Any payment of expenses or fees from earnings of a trust fund deposit under this subsection shall not:
(a) Exceed an amount equal to two percent per calendar year of the value of the trust as determined on the first day of January of each calendar year;
(b) Include the payment of any fee to the provider in consideration for services rendered as provider; or
(c) Reduce, diminish or in any other way lessen the value of the trust fund deposit so that the services or merchandise provided for under the contract are reduced, diminished or in any other way lessened. [Formerly 128.425; 2005 c.66 §1]
Note: See note under 97.923.
97.944 Distributions from preconstruction trust fund deposits. (1) A depository shall make no distributions from preconstruction sales contract trust deposits except as provided in this section.
(2) The construction or development of undeveloped interment, entombment or cremation spaces shall be commenced on the phase of construction or development, or the section or sections of spaces in which sales are made within five years of the date of the first sale. The certified provider who sold the preconstruction sales contract shall give written notice including a description of the project to the Director of the Department of Consumer and Business Services no later than 30 days after the first sale. Once commenced, construction or development shall be pursued diligently to completion. The first phase of construction must be completed within seven years of the first sale. If construction or development is not commenced or completed within the times specified, any contract purchaser may surrender and cancel the contract and upon cancellation shall be entitled to a refund of the actual amounts paid toward the purchase price. However, any delay caused by strike, shortage of materials, civil disorder, natural disaster or any like occurrence beyond the control of the certified provider shall extend the time of such completion by the length of such delay.
(3) Except as otherwise authorized by this section, every certified provider selling undeveloped spaces shall provide facilities for temporary interment or entombment or for cremation for purchasers or beneficiaries of contracts who die prior to completion of the space. Such temporary facilities shall be constructed of permanent materials, and, insofar as practical, be landscaped and groomed to the extent customary in that community. The heirs, assigns or personal representative of a purchaser or beneficiary shall not be required to accept temporary underground interment space where undeveloped space contracted for was an aboveground entombment or cremation space. In the event that temporary facilities as described in this subsection are not made available upon the death of a purchaser or beneficiary, the heirs, assigns or personal representative is entitled to a refund of the entire sales price paid plus undistributed interest attributable to such amount while in trust.
(4) If the certified provider who sold the preconstruction sales contract delivers a completed space acceptable to the heirs, assigns or personal representative of a purchaser or beneficiary, other than a temporary facility, in lieu of the undeveloped space purchased, the certified provider shall provide the depository with a delivery certificate and all sums deposited under the preconstruction sales contract shall be paid to the certified provider.
(5) During the construction or development of interment, entombment or cremation spaces, upon receiving the sworn certification by the certified provider who sold the preconstruction sales contract and the contractor, the depository shall disburse from the trust fund the amount equivalent to the cost of performed labor or delivered materials as certified. A person who executes and delivers a completion certificate with actual knowledge of a falsity contained therein shall be considered in violation of ORS 97.923 to 97.949 and 692.180.
(6) Upon completion of the phase of construction or development, section or sections of the project as certified to the depository by the certified provider and the contractor, the trust requirements shall terminate and all funds held in the preconstruction sales contract trust fund attributable to the completed phase, section or sections shall be paid to the certified provider who sold the preconstruction sales contract.
(7) Upon the payment to a certified provider of preconstruction sales contract trust funds under subsection (4) or (6) of this section, the undistributed income of the trust shall be paid to:
(a) The certified provider who sold the contract if the contract is a guaranteed contract; or
(b) The contract purchaser, or the purchaser’s estate, if the contract is a nonguaranteed contract.
(8) If the preconstruction sales contract purchaser defaults in making payments under an installment preconstruction sales contract, and default continues for at least 30 days after the purchaser has received written notice of default, the certified provider who sold the contract may cancel the contract and withdraw from the trust fund the entire balance of the defaulting purchaser’s account as liquidating damages. Upon certification of the default, the depository shall deliver the balance to the certified provider. The depository may rely on the certification and affidavits made to it under the provisions of ORS 97.923 to 979.949, 97.992, 97.994 and 692.180 and shall not be liable to any person for such reliance.
(9) This section and the trust fund requirements in ORS 97.941 shall not apply to the sale of undeveloped spaces if there has been any such sale in the same phase of construction or development or the section or sections of the project prior to September 27, 1987. [Formerly 128.430]
Note: See note under 97.923.
97.945 Funeral and Cemetery Consumer Protection Trust Fund; fee; rules. (1) Every prearrangement sales contract or preconstruction sales contract seller shall pay to the Director of the Department of Consumer and Business Services a $5 fee for each prearrangement sales contract or preconstruction sales contract entered into, to be paid into a special income earning fund in the State Treasury, separate from the General Fund, known as the Funeral and Cemetery Consumer Protection Trust Fund. The fees shall be remitted to the director annually within 30 days after the end of December for all contracts that have been entered into during the 12-month period.
(2) Except as provided in this section, the fund shall be used solely for the purpose of providing restitution to purchasers who have suffered pecuniary loss arising out of prearrangement sales contracts or preconstruction sales contracts. The fund may be used for payment of actual administrative expenses incurred in administering the fund. All moneys in the Funeral and Cemetery Consumer Protection Trust Fund are appropriated continuously to the director for the payment of restitution under this section and the payment of expenses incurred in performing the duties and functions of the director required under ORS 97.923 to 97.949, 97.992, 97.994 and 692.180.
(3) The director shall administer the fund and shall adopt rules governing the payment of restitution from the fund.
(4) Payments for restitution shall be made only upon order of the director where the director determines that the obligation is noncollectible from the certified provider. Restitution shall not exceed the amount of the sales price paid plus interest at the statutory rate.
(5) The fund shall not be applied toward any restitution for losses on a prearrangement sales contract or preconstruction sales contract entered into prior to September 27, 1987.
(6) The fund shall not be allocated for any purpose other than that specified in ORS 97.923 to 97.949, 97.992, 97.994 and 692.180.
(7) If the director proposes to deny an application for restitution from the fund, the director shall accord an opportunity for a hearing as provided in ORS chapter 183.
(8) Notwithstanding any other provision of this section, the payment of restitution from the fund shall be a matter of grace and not of right and no purchaser shall have vested rights in the fund as a beneficiary or otherwise.
(9) The status of the fund shall be reviewed annually by the director. If the review determines that the fund together with all accumulated income earned on the fund is sufficient to cover costs of potential claims against the fund and that the total number of outstanding claims filed against the fund is less than 10 percent of the fund’s current balance, then payments to the fund shall be adjusted accordingly at the discretion of the director. [Formerly 128.435; 2003 c.362 §5]
Note: See note under 97.923.
97.946 Advertising and marketing prohibitions. (1) A person may not engage in unsolicited door to door or telephone advertising and marketing of prearrangement sales contracts or preconstruction sales contracts. The costs of advertising and marketing may not be paid from trust funds.
(2) Advertising and marketing a prearrangement sales contract or a preconstruction sales contract by a funeral service practitioner, embalmer or funeral service establishment licensed under ORS chapter 692 does not constitute a violation of ORS 692.180 (1)(c). [Formerly 128.440]
Note: See note under 97.923.
97.947 Examination of providers and master trustees by director; subpoena power; depositions. (1)(a) The Director of the Department of Consumer and Business Services may examine the conditions and resources, including sales contracts, of a certified provider, master trustee or person acting as a certified provider or master trustee without certification or registration to determine whether the certified provider, master trustee or person acting as a certified provider or master trustee without certification or registration is complying with ORS 97.923 to 97.949, the rules of the director and any other laws of this state applicable to a certified provider or master trustee.
(b) In addition to the authority conferred by ORS 97.948, the director may require a certified provider, master trustee or person acting as a certified provider or master trustee without certification or registration to pay the actual and reasonable costs of the examination.
(2) For the purpose of an examination under this section, the director may administer oaths and affirmations, compel the attendance of witnesses, take evidence and require the production of books, papers, correspondence, memoranda, agreements or other documents or records that the director considers relevant or material to the examination.
(3) If a certified provider, master trustee or person acting as a certified provider or master trustee without certification or registration fails to comply with a subpoena issued under this section or a party or witness refuses to testify on any matter, the judge of the circuit court for any county, on the application of the director, shall compel obedience by proceedings for contempt as in the case of disobedience of the requirements of a subpoena issued from the court or a refusal to testify on a matter before the court.
(4) Each witness who appears before the director under a subpoena issued under this section shall receive the fees and mileage provided for witnesses in ORS 44.415 (2), except that a witness subpoenaed at the instance of parties other than the director or an examiner may not be compensated for attendance or travel unless the director certifies that the testimony of the witness was material to the matter investigated.
(5) During the course of any examination, the director may cause the depositions of witnesses to be taken in the manner prescribed by law for like depositions in civil suits in the circuit court. [2001 c.796 §3; 2003 c.362 §6; 2005 c.338 §1]
Note: Section 30, chapter 338, Oregon Laws 2005, provides:
Sec. 30. The amendments to ORS 97.947 by section 1 of this 2005 Act apply to:
(1) Conditions and resources, including sales contracts, in existence before, on or after the effective date of this 2005 Act [January 1, 2006].
(2) Conduct occurring before, on or after the effective date of this 2005 Act. [2005 c.338 §30]
Note: See note under 97.923.
97.948 Grounds for discipline by director for violation of ORS 97.923 to 97.949; suspension and revocation of certificate or registration; civil penalties; notification of board. (1) The Director of the Department of Consumer and Business Services may discipline a certified provider, master trustee or person acting as a certified provider or master trustee without certification or registration who has been found by an audit or examination conducted by the director:
(a) To be in violation of ORS 97.923 to 97.949;
(b) To have liabilities that exceed assets;
(c) To be unable to meet obligations as they come due; or
(d) To be in a financial condition that fails to adequately protect the interests of customers.
(2) In disciplining a certified provider, master trustee or person acting as a certified provider or master trustee without certification or registration under subsection (1) of this section, the director may take the following actions:
(a) Impose probation.
(b) Suspend the certificate or registration.
(c) Revoke the certificate or registration.
(d) Place limitations on the certificate or registration.
(e) Refuse to issue or renew a certificate or registration.
(f) Issue an order to cease and desist from the activities that support the discipline.
(g) Take any other disciplinary action that the director finds proper, including assessment of the costs of the investigation and disciplinary proceedings and assessment of a civil penalty not to exceed $10,000 per violation.
(3) If the certificate or registration of a certified provider or master trustee is suspended under this section, the holder of the certificate or registration may not engage in the activities allowed by the certificate or registration during the term of suspension. Upon the expiration of the term of suspension, the director shall reinstate the certificate or registration if the conditions for which the certificate or registration was suspended no longer exist.
(4) The director shall enter each case of disciplinary action on the records of the Department of Consumer and Business Services.
(5) Civil penalties under this section may be imposed as provided in ORS 183.745.
(6) If the director takes disciplinary action under this section, the director may send a notice of the action to the State Mortuary and Cemetery Board and to the Attorney General. [2001 c.796 §4; 2003 c.362 §7; 2005 c.338 §2]
Note: Section 31, chapter 338, Oregon Laws 2005, provides:
Sec. 31. The order authorized by the amendments to ORS 97.948 by section 2 of this 2005 Act applies to actions occurring before, on or after the effective date of this 2005 Act [January 1, 2006]. [2005 c.338 §31]
Note: See note under 97.923.
97.949 Notification by director to appropriate federal, state or local law enforcement officer of violation of ORS 97.923 to 97.949. (1) If the Director of the Department of Consumer and Business Services has reason to believe that a person has violated any provision of ORS 97.923 to 97.949, the director may give the information relative to the violation to the appropriate federal, state or local law enforcement officer having jurisdiction over the violation.
(2) If the director, in the course of taking an action against a certified provider, master trustee or person acting as a certified provider or master trustee without certification or registration, finds that a salesperson or person acting as a salesperson has violated any provision of ORS 97.923 to 97.949, the director shall provide the State Mortuary and Cemetery Board with a copy of the findings and the order of the director. The board shall, upon receipt of such information, discipline the salesperson or person acting as a salesperson as required by law. [2001 c.796 §5; 2003 c.362 §8; 2005 c.338 §3]
Note: See note under 97.923.
ANATOMICAL GIFTS
97.950 Definitions for ORS 97.950 to 97.964. As used in ORS 97.950 to 97.964:
(1) “Anatomical gift” means a donation of all or part of a human body to take effect upon or after death.
(2) “Capable” has the meaning given in ORS 127.505 (13).
(3) “Decedent” means an individual who is dead as defined under ORS 432.300. “Decedent” includes a stillborn infant or fetus.
(4) “Document of anatomical gift” means a driver license or identification card endorsed with an appropriate code, a will, an advance directive or other signed document used to make an anatomical gift.
(5) “Donor” means an individual who makes an anatomical gift of all or part of that individual’s body.
(6) “Enucleator” means a licensed embalmer, apprentice embalmer or eye bank technician that has completed a course in ocular procurement and has a certificate of competence from an Oregon procurement organization.
(7) “Hospital” means a facility licensed, accredited or approved as a hospital under the laws of any state or a facility operated as a hospital by the United States Government, a state or a subdivision of a state.
(8) “Identification card” means the card described in ORS 807.400 or a comparable provision of the motor vehicle laws of another state.
(9) “Part” means an organ or part thereof, tissue, eye or part thereof, bone, artery, blood, fluid or other portion of a human body.
(10) “Physician” means an individual licensed or otherwise authorized to practice medicine under the laws of any state.
(11) “Procurement organization” means an agency licensed, accredited or approved under the laws of any state for the acceptance, procurement, distribution or storage of human bodies or parts.
(12) “Public health officer” means the State Medical Examiner or a county public health officer.
(13) “Registry” means a centralized, confidential record of individuals who have indicated their intention to donate organs, eyes or tissue as an anatomical gift upon their death.
(14) “Technician” means an individual who is employed and authorized by a procurement organization to remove or process a part. [1995 c.717 §1; 1997 c.472 §4; 1999 c.201 §1; 2005 c.505 §1]
Note: 97.950 to 97.964 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 97 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.
97.952 Personal authority to make anatomical gift; procedure; delegation; transfer of donor designation information to procurement organization. (1) A capable individual who is at least 18 years of age may be the donor of an anatomical gift.
(2) An anatomical gift may be made by:
(a) A document of anatomical gift signed by the donor. If the donor cannot sign, the document of anatomical gift must be signed by another individual and two witnesses, all of whom have signed at the direction and in presence of the donor and of each other and state that it has been so signed; or
(b) Listing on a registry with the permission of the donor.
(3)(a) An anatomical gift may be made by a designation to be provided on the driver license and identification card of an individual who is at least 18 years of age. The holder of a driver license or identification card desiring to be designated as a donor on the license or card must furnish a statement at the time of application for granting or renewing the license or card in the manner provided by the Department of Transportation. Signature of the license or card shall validate it as a document of anatomical gift. Revocation, cancellation or suspension of a driver license shall not invalidate the anatomical gift. Cancellation of a card or lapse of a license revokes the anatomical gift indorsement, which must be reinstated upon the reinstatement of the license or card. The form prepared by the Department of Transportation and incorporated in its application shall be in all respects a valid document of anatomical gift. Designation of intent to be a donor of an anatomical gift on the driver license or identification card of an individual satisfies all requirements for consent to make an anatomical gift and constitutes permission to be placed on a registry.
(b) When requested by a procurement organization that has established a statewide donor registry of donors in this state, the department shall electronically transfer the name, address, birth date and donor designation as listed on the driver license or identification card of any person designated as a donor under this subsection. The information transferred to a procurement organization shall be treated as confidential by the procurement organization and may be used only to expedite the making of anatomical gifts authorized by the donor.
(4) An anatomical gift by will takes effect upon death of the testator, whether the will is probated or not probated. If, after death, the will is declared invalid for testamentary purposes, the validity of the anatomical gift is unaffected.
(5) A donor may amend or revoke an anatomical gift not made by will only by:
(a) A signed statement;
(b) An oral statement made in the presence of two individuals;
(c) Any form of communication during a terminal illness or injury addressed to a physician or surgeon;
(d) In the case of an anatomical gift made by driver license or identification card application, written notification to the department; or
(e) Purposeful destruction, cancellation or mutilation of the document of anatomical gift in the case of an anatomical gift not made by driver license or identification card. A donor who intentionally destroys, cancels, or mutilates a document of anatomical gift shall notify a procurement organization to instruct the organization to remove the name of the donor from its registry. If the organization notified does not maintain a registry of Oregon residents, the organization shall notify any entity that maintains a registry of donors residing in this state.
(6) The donor of an anatomical gift made by will may amend or revoke the gift in the manner provided for amendment or revocation of wills, or as provided in subsection (5) of this section.
(7) An anatomical gift that is not revoked by the donor before death is irrevocable and:
(a) Does not require the consent or concurrence of any person after the death of the donor.
(b) Shall not be subject to cancellation or substantial revision by persons described in ORS 97.954 (1).
(8) In the absence of contrary indications by the donor, an anatomical gift of a part is not a refusal to give other parts or a limitation on an anatomical gift under ORS 97.954 or on a removal or release of other parts under ORS 97.956.
(9) In the absence of contrary indications by the donor, a revocation or amendment of an anatomical gift is not a refusal to make an anatomical gift of a different part.
(10) If an individual has amended or revoked an anatomical gift made by driver license or identification card, the department shall issue a replacement license upon payment by the individual of the department’s fee for reissuance of the license or card.
(11) Notwithstanding any other requirement of this section, a license, card or document purporting to evidence the creation of a valid anatomical gift under the laws of another state shall be valid in this state absent evidence of revocation.
(12) Any anatomical gift validly made under ORS 97.275 (1993 Edition) prior to September 9, 1995, and not revoked shall continue in effect for its original period of validity.
(13) An individual described in subsection (1) of this section or any person authorized in ORS 97.954 (1) to make an anatomical gift of all or any part of a decedent’s body may delegate such authority to any person 18 years of age or older. Such delegation shall be in writing and signed by the person delegating the authority. The person to whom the authority is delegated shall have the same priority under ORS 97.954 (1) as the person delegating the authority.
(14) If the individual described in subsection (1) of this section issues more than one authorization or donation of anatomical gift for all or any part of the individual’s body, only the most recent authorization or donation shall be binding. [1995 c.717 §2; 1997 c.472 §5; 2005 c.505 §2]
Note: See note under 97.950.
97.954 Authority to make anatomical gift of body of decedent; priority; procedure. (1) A person within the first applicable listed class among the following listed classes that is available at the time of death or, in the absence of actual notice of a contrary direction by the decedent or actual notice of opposition by a member of the same class or a member of a prior class, may make an anatomical gift of all or a part of the body of a decedent for any authorized purpose:
(a) A person to whom the decedent has granted power of attorney;
(b) The spouse of the decedent;
(c) A son or daughter of the decedent 18 years of age or older;
(d) Either parent of the decedent;
(e) A brother or sister of the decedent 18 years of age or older;
(f) A guardian of the decedent at the time of death;
(g) A person in the next degree of kindred to the decedent;
(h) The personal representative of the estate of the decedent;
(i) The person nominated as the personal representative of the decedent in the decedent’s last will; or
(j) A public health officer.
(2) No person, hospital or procurement organization shall accept a gift made by an individual under subsection (1) of this section if:
(a) An individual in a prior class is available at the time of death to make an anatomical gift;
(b) The individual proposing to make an anatomical gift knows of a refusal or contrary indications by the decedent; or
(c) The individual proposing to make an anatomical gift knows of an objection to making an anatomical gift by another member of the individual’s class or a member of a prior class.
(3) An anatomical gift by an individual authorized under subsection (1) of this section must be made by a document of anatomical gift signed by the individual or the individual’s telegraphic, recorded telephonic or other recorded message, or other form of communication from the individual that is contemporaneously put in written form and signed by the recipient of the communication.
(4) An anatomical gift by an individual authorized under subsection (1) of this section may be revoked by any member of the same or a prior class if, before procedures have begun for the removal of a part from the body of the decedent, the physician, technician or enucleator removing the part knows of the revocation. [1995 c.717 §3; 1997 c.472 §6; 1999 c.201 §2; 2005 c.505 §3]
Note: See note under 97.950.
97.956 Authority of medical examiner or local public health officer over body within examiner’s jurisdiction or officer’s custody; documentation. (1) A medical examiner may release and permit the removal of a part from a body within the examiner’s jurisdiction for transplantation, therapy or research if:
(a) The examiner has received a request for the part from a hospital, physician or procurement organization;
(b) The examiner does not know of a refusal or contrary indication by the decedent or objection by a person having priority to act as listed in ORS 97.954 (1);
(c) The person requesting the part has made a reasonable effort to contact the person having priority to act as listed in ORS 97.954 (1);
(d) The removal of the part is by a physician or technician or, in the case of eyes, by an enucleator, physician or technician;
(e) The removal does not interfere with any autopsy or investigation;
(f) The removal is performed in accordance with accepted medical standards; and
(g) The person performing the removal also performs a restoration of the removed part, if appropriate.
(2) If the body is not within the jurisdiction of the medical examiner, the local public health officer may release and permit the removal of a part from a body in the local public health officer’s custody for transplantation, therapy or research, if the requirements of subsection (1)(a) to (g) of this section are met.
(3) An official releasing and permitting the removal of a part shall retain, in the permanent death record of the decedent, documentation of the person making the request, the date and purpose of the request, and the person to whom it was released.
(4) For purposes of this section, “reasonable effort” means:
(a) The person requesting the part has attempted to contact the person having priority to act as listed in ORS 97.954 (1), following notification of the death by the medical examiner or other authority or medical facility, and to obtain that person’s consent or objection to the removal of the part requested;
(b) Unless the elapsed time from the notification of death would render the part useless for the purpose intended, any attempt described in paragraph (a) of this subsection that was unsuccessful has been repeated at least two additional times by telephone; and
(c) The attempts shall be documented by the person requesting the part, and the documentation shall be maintained in that person’s permanent file. [1995 c.717 §4; 1997 c.472 §7; 1999 c.201 §3]
Note: See note under 97.950.
97.958 Duties of hospital staff at or near time of patient’s death; notification of procurement organization and persons authorized to make anatomical gift; search for document of gift. (1) At or near the time of death of a hospitalized patient, the hospital administrator or a representative designated by the administrator shall:
(a) Notify the appropriate procurement organization of the imminent or actual death of the patient; and
(b) In collaboration with the procurement organization, ensure that readily available persons listed in ORS 97.954 are informed of the donor status of the patient and of the option to make or refuse to make an anatomical gift under ORS 97.952 or 97.954. Contact must be made with reasonable discretion and sensitivity to the circumstances of the persons contacted. The person designated by the administrator to make a request for an anatomical gift under this section must be a representative of a procurement organization or a person who has had training offered or approved by a procurement organization in the methodology for approaching the family of potential donors.
(2) Circumstances permitting, a law enforcement officer, firefighter, paramedic or other emergency rescuer or a funeral home representative who finds an individual who is deceased shall:
(a) Make a reasonable search for a document of anatomical gift or other information identifying the individual as a person who has made or who has refused to make an anatomical gift; and
(b) As soon as is reasonably possible and if the information is known, notify an appropriate procurement organization of the identity of the deceased person and of persons listed in accordance with ORS 97.954.
(3) A person who fails to discharge the duties imposed by this section is not subject to criminal or civil liability. [1995 c.717 §5; 1997 c.472 §8; 1999 c.201 §4; 2005 c.505 §4]
Note: See note under 97.950.
97.960 Delivery of document of anatomical gift; effect on validity of gift. Delivery of a document of anatomical gift during the lifetime of a donor is not required for the validity of an anatomical gift. If delivery of a document of anatomical gift is desired, it may be deposited in any hospital, procurement organization or registry office that accepts it for safekeeping or for facilitation of procedures after death. On request of an interested person, upon or after the death of a donor, the person in possession shall allow the interested person to examine or copy the document of anatomical gift. [1995 c.717 §6; 1997 c.472 §9]
Note: See note under 97.950.
97.962 Rights of procurement organization accepting anatomical gift; autopsies. (1) Rights of a procurement organization accepting an anatomical gift are superior to rights of others except with respect to autopsies required by law. A procurement organization may accept or reject an anatomical gift. If a procurement organization accepts an anatomical gift of an entire body, the organization, subject to the terms of the gift, may allow embalming and use of the body in funeral services. If the gift is of a part of a body, the procurement organization, upon the death of the donor and before embalming, shall cause the part to be removed without unnecessary mutilation. After removal of the part, custody of the remainder of the body vests in the person under obligation to dispose of the body.
(2) The time of death must be determined by a physician who attends the donor at death or, if none, the physician who certifies the death. Neither the physician who attends the donor at death nor the physician who determines the time of death may participate in the procedures for removing or transplanting a part.
(3) If there has been an anatomical gift, a technician may remove any donated parts other than eyes and an enucleator may remove any donated eyes after determination of death by a physician. [1995 c.717 §7]
Note: See note under 97.950.
97.964 Anatomical gift as authorization for examination to assure medical acceptability. (1) An anatomical gift authorizes any examination necessary to assure medical acceptability of the gift for the purposes intended, including but not limited to access to the decedent’s medical chart and permission to test a sample of the decedent’s blood for communicable diseases.
(2) ORS 97.950 to 97.964 are subject to the laws of this state governing autopsies.
(3) A person, organization, hospital or institution that acts or makes a good faith effort to act in accordance with ORS 97.950 to 97.964 or to determine the acceptability of an anatomical gift in accordance with a protocol developed by a procurement organization is not liable for those actions in a civil action or criminal proceeding.
(4) An individual who makes an anatomical gift under ORS 97.952 or 97.954 and the individual’s estate are not liable for any injury or damage that may result from the making or the use of the anatomical gift. [1995 c.717 §8; 2005 c.505 §5]
Note: See note under 97.950.
97.966 Liability of executor who carries out anatomical gift. A person named executor who carries out the gift of the testator made under the provisions of ORS 97.950 to 97.964 before issuance of letters testamentary or under a will which is not admitted to probate shall not be liable to the surviving spouse or next of kin for performing acts necessary to carry out the gift of the testator. [Formerly 97.295]
97.968 Transplants not covered by implied warranty. (1) The procuring, processing, furnishing, distributing, administering or using of any part of a human body for the purpose of injecting, transfusing or transplanting that part into a human body is not a sales transaction covered by an implied warranty under the Uniform Commercial Code or otherwise.
(2) As used in this section, “part” means organs or parts of organs, tissues, eyes or parts of eyes, bones, arteries, blood, other fluids and any other portions of a human body. [Formerly 97.300]
FEDERAL AID FOR CEMETERIES
97.975 Department of Transportation use of federal moneys for cemetery care. (1) In addition to any other duties of the Department of Transportation, the department may apply for, accept and expend, use or dispose of moneys and property received from the federal government for the purpose of establishing any program of restoration, care, maintenance and preservation of cemeteries. The department shall administer any funds received pursuant to this section in accordance with the conditions established by the federal government.
(2) In carrying out the provisions of subsection (1) of this section the Department of Transportation may contract or consult with any nonprofit corporation established for the purpose of promoting cemetery care and maintenance. [Formerly 97.930]
PENALTIES
97.990 Penalties. (1) Violation of ORS 97.160 is a misdemeanor and upon conviction is punishable by a fine not exceeding $100.
(2) Every officer, agent or employee of this state or of any county, city or any other municipal subdivision thereof who willfully neglects to notify the Demonstrator of Anatomy of the existence of a body as required by ORS 97.170 to 97.210 or who refuses to deliver possession of such body according to the provisions of ORS 97.170 to 97.210 or who mutilates or permits any such body to be mutilated so that it is not valuable for anatomical purposes or who refuses or neglects to perform any of the duties enjoined upon the officer, agent or employee by ORS 97.170 to 97.210, is guilty of a misdemeanor and upon conviction is punishable by a fine of not more than $50 for each offense.
(3) Violation of ORS 97.520, 97.530 or 97.540 is a misdemeanor.
(4) Any person, association or corporation who operates a cemetery, mausoleum or columbarium contrary to the provisions of ORS 97.020 to 97.040, 97.110 to 97.130, 97.145, 97.150, 97.220, 97.310 to 97.360 (1), 97.440, 97.510 to 97.560, 97.710, 97.720, 97.810, 97.820, 97.830 and 97.840 to 97.860 is guilty of maintaining a nuisance and, upon conviction, is punishable by a fine not exceeding $500 or by imprisonment in the county jail for not more than six months, or both.
(5)(a) Violation of ORS 97.745 is a Class C felony.
(b) In addition to any other sentence provided by law for criminal violations of ORS 97.745, the judge shall impose a penalty not to exceed $10,000 on any person convicted of a criminal violation of ORS 97.745.
(6) In addition to the penalty of subsection (5) of this section, any native Indian artifacts or human remains taken by, or in possession of, any person sentenced under subsection (5) of this section and all equipment used in the violation may be ordered forfeited by the court in which conviction occurs, and may be disposed of as the court directs. [Subsections (5) to (7) enacted as 1977 c.183 §12; subsection (8) enacted as 1977 c.647 §4; 1979 c.420 §3; 1983 c.526 §6; 1985 c.198 §5; subsections (5) to (7) renumbered 127.990 in 1991; subsection (5)(b) of 1995 Edition enacted as 1995 c.543 §3]
97.992 Penalties for ORS 97.937. Violation of any of the provisions of ORS 97.937 is punishable, upon conviction, by a fine not exceeding $1,000, or imprisonment in the county jail not exceeding one year, or both. [Formerly 128.990]
Note: 97.992 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 97 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.
97.994 Penalties for ORS 97.931, 97.933 and 97.941. Violation of any of the provisions of ORS 97.931, 97.933, 97.941 or 97.943 is punishable as a Class A misdemeanor. [Formerly 128.991; 2003 c.362 §9]
Note: 97.994 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 97 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.
_______________
Chapter 432 — Vital Statistics
2007 EDITION
VITAL STATISTICS
PUBLIC HEALTH AND SAFETY
VITAL AND PUBLIC HEALTH STATISTICS SYSTEM; STATE, COUNTY AND LOCAL
REGISTRARS
432.005 Definitions
432.010 Center for Health Statistics; standards
432.015 Rules
432.020 State registrar; appointment
432.025 Assistant state registrars
432.030 Duties of state registrar
432.035 County registrars
432.040 Duties of county and local registrars
432.060 Confidentiality and inadmissibility of information obtained in connection with epidemiologic morbidity and mortality studies; exceptions; nonliability of informants
432.075 Duty to furnish information to state registrar; immunity
432.080 Copy of vital records furnished without charge for use in proceeding on war veteran’s benefits
432.085 Sale of birth and death certificate copies; rules
432.090 Issuance of additional birth certificate; fee; form; distribution of funds received
432.095 Application of chapter provisions
GENERAL PROVISIONS ON CERTIFICATION AND RECORDS; FEES
432.105 Procedure for transmitting and filing certificates
432.115 Form of records and reports; status; disposition; rules
432.119 Abstracts of birth and death certificates as public records; limitations
432.121 Disclosure and certification of records and reports; rules
432.122 Verification of birth certificate and death records; rules
432.124 Disclosure of death records filed in conjunction with claims or interests in land
432.130 Compelling access to records
432.140 Application for delayed certificates
432.142 Procedure when application for delayed certificate denied
432.146 Fees
432.165 Death records
432.180 Certified copies of vital records or vital reports; evidentiary value; fraud or misrepresentation
RECORDS OF BIRTHS; CERTIFICATION OF UNRECORDED BIRTHS; VOLUNTARY
ACKNOWLEDGMENT OF PATERNITY
432.206 Compulsory registration of births; rules; persons required to file
432.230 When new certificate issued; contents; amendment upon adoption; delayed certificate
432.235 Amendment of certificate or report; rules
432.240 Issuance of certified copy of certificate of birth to adopted persons; Contact Preference Form
432.266 Commemorative Certificate of Stillbirth; rules
432.285 Availability of voluntary acknowledgment of paternity form; responsibility of health care facility and parents
432.287 Voluntary acknowledgment of paternity form; rules; filing; when form is sworn document; copy to child support agency
432.289 Full faith and credit
DETERMINATION OF DEATH
432.300 Determination of death
DEATH CERTIFICATES; BURIAL PERMITS
432.307 Compulsory filing of death certificates; persons required to file
432.312 Death certificate fee; use; limitation
432.317 Report upon receipt of body or fetus; authorization for final disposition; rules
432.327 Authority to grant extensions on certificates, reports and permits; rules
432.333 Reports on fetal deaths
432.337 Status of reports under ORS 435.496; rules
RECORDS OF MARRIAGES, DIVORCES, ADOPTIONS, ANNULMENTS AND CERTAIN
BIRTHS
432.405 Filing of marriage record; rules
432.408 Record of dissolution of marriage judgment; rules
432.412 Marriage and divorce records subject to full disclosure; exemption
432.415 Reports on adoptions
432.420 Access to adoption records
432.430 Duty to report on child of unknown parentage; rules
CANCER AND TUMOR REGISTRY SYSTEM
432.500 Definitions
432.510 Cancer and tumor registry system; purpose; rulemaking; duties of Department of Human Services
432.520 Reporting requirement; review of records; special studies
432.530 Confidentiality of information
432.540 Use of confidential data; rules
432.550 Action for damages; license; disciplinary action prohibited for good faith participation in reporting of data
432.570 No requirement or prohibition regarding operation of separate cancer and tumor registry
PENALTIES
432.900 Civil penalty
432.993 Unlawful use of vital record or vital report; criminal penalty
432.995 Obstructing the keeping of vital records or vital reports; criminal penalty
VITAL AND PUBLIC HEALTH STATISTICS SYSTEM; STATE, COUNTY AND LOCAL
REGISTRARS
432.005 Definitions. As used in this chapter, unless the context requires otherwise:
(1) “Dead body” means a human body or such parts of such human body from the condition of which it reasonably may be concluded that death occurred.
(2) “Department” means the Department of Human Services.
(3) “Director” means the Director of Human Services.
(4) “Divorce” means dissolution of a marriage.
(5) “Fetal death” means death prior to the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy. The death is indicated by the fact that after such expulsion or extraction the fetus does not breathe or show any other evidence of life such as beating of the heart, pulsation of the umbilical cord or definite movement of the voluntary muscles.
(6) “File” means the presentation and acceptance of a vital record or vital report provided for in this chapter by the Center for Health Statistics.
(7) “Final disposition” means the burial, interment, cremation, removal from the state or other authorized disposition of a dead body or fetus, except that when removal from the state is conducted by the holder of a certificate of removal registration issued under ORS 692.270, the final disposition may not be considered complete until the certificate of death is filed.
(8) “Induced termination of pregnancy” means the purposeful interruption of an intrauterine pregnancy with the intention other than to produce a live-born infant and that does not result in a live birth.
(9) “Institution” means any establishment, public or private, that provides inpatient or outpatient medical, surgical or diagnostic care or treatment or nursing, custodial or domiciliary care, or to which persons are committed by law.
(10) “Live birth” means the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy, that, after such expulsion or extraction, breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached.
(11) “Person acting as a funeral service practitioner” means:
(a) A person other than a funeral service practitioner licensed under ORS 692.045, including but not limited to a relative, friend or other interested party, who performs the duties of a funeral service practitioner without payment; or
(b) A funeral service practitioner who files death certificates in another state if the funeral service practitioner is employed by a funeral establishment licensed in another state and registered with the State Mortuary and Cemetery Board under ORS 692.270.
(12) “Physician” means a person authorized or licensed under the laws of this state to practice medicine, osteopathy, chiropractic or naturopathic medicine.
(13) “Registration” means the process by which vital records and vital reports are completed, filed and incorporated into the official records of the Center for Health Statistics.
(14) “State registrar” means the State Registrar of the Center for Health Statistics.
(15) “System of vital statistics” means the registration, collection, preservation, amendment and certification of vital records and vital reports; the collection of other reports required by this chapter, and activities related thereto including the tabulation, analysis, dissemination and publication of vital statistics and training in the use of health data.
(16) “Vital records” means certificates or reports of birth, death, marriage, dissolution of marriage and data related thereto.
(17) “Vital reports” means reports of fetal death, induced termination of pregnancy, suicide attempts by persons under 18 years of age and survey and questionnaire documents and data related thereto.
(18) “Vital statistics” means the data derived from certificates and reports of birth, death, fetal death, induced termination of pregnancy, marriage, dissolution of marriage, suicide attempts by persons under 18 years of age and related reports. [Subsections (1) and (2) enacted as 1973 c.829 §15; 1983 c.709 §1; 1997 c.783 §1; 1999 c.254 §4; 1999 c.724 §7; 2001 c.900 §154]
432.010 Center for Health Statistics; standards. (1) The Department of Human Services shall establish the Center for Health Statistics, which shall install, maintain and operate the system of vital statistics throughout this state in cooperation with appropriate units of local government. The Center for Health Statistics shall be responsible for the proper administration of the system of vital statistics and for the preservation and security of its official records.
(2) In order to promote and maintain nationwide uniformity in the system of vital statistics, the State Registrar of the Center for Health Statistics may refer to the 1992 federal revision of the Model State Vital Statistics Act and Regulations for recommendations regarding the forms of certificates and reports required by this chapter.
(3) Each certificate, report and other document required by this chapter shall be on a form or in a format prescribed by the state registrar.
(4) All vital records shall contain the date of filing.
(5) Information required in certificates, forms, records or reports authorized by this chapter may be filed, verified, registered and stored by photographic, electronic or other means as prescribed by the state registrar. [Amended by 1983 c.709 §2; 1993 c.324 §2; 1997 c.783 §2]
432.015 Rules. The State Registrar of the Center for Health Statistics, under the supervision of the Director of Human Services, in compliance with ORS chapter 183, shall adopt rules necessary to the installation and efficient performance of an adequate system of vital and public health statistics including rules for the return of evidence affecting delayed certificates, or affecting alteration of a certificate, after the certificate has been filed with the state registrar. [Amended by 1961 c.191 §4; 1983 c.709 §3; 1997 c.783 §3]
432.020 State registrar; appointment. The Director of Human Services shall appoint the State Registrar of the Center for Health Statistics who shall qualify in accordance with standards of education and experience as the director shall determine. [Amended by 1973 c.829 §34; 1983 c.709 §26]
432.025 Assistant state registrars. The State Registrar of the Center for Health Statistics, with the approval of the Director of Human Services, may appoint, when necessary, assistant state registrars who shall be assistants to the state registrar. [Amended by 1983 c.709 §27]
432.030 Duties of state registrar. (1) The State Registrar of the Center for Health Statistics shall:
(a) Under the supervision of the Director of Human Services, have charge of the Center for Health Statistics.
(b) Administer and enforce the provisions of this chapter and the rules adopted pursuant thereto for the efficient administration of the system of vital statistics.
(c) Direct and supervise the system of vital statistics and the Center for Health Statistics and be custodian of its records.
(d) Direct, supervise and control the activities of all persons when they are engaged in activities pertaining to the operation of the system of vital statistics.
(e) Conduct training programs to promote uniformity of policy and procedures throughout the state in matters pertaining to the system of vital statistics.
(f) Prescribe, furnish and distribute such forms as are required by this chapter and the rules adopted pursuant thereto or prescribe other means for transmission of data to accomplish the purpose of complete and accurate reporting and registration.
(g) Prepare and publish reports of vital statistics of this state and such other reports as may be required by the Department of Human Services.
(h) Provide to local health agencies such copies of or data derived from certificates and reports required under this chapter as the state registrar shall determine are necessary for local health planning and program activities. The state registrar shall establish a schedule with each local health agency for transmittal of the copies or data. The copies or data shall remain the property of the Center for Health Statistics and the uses that may be made of them shall be determined by the state registrar.
(i) Provide local health agencies training and consultation in working with health data.
(2) The state registrar may delegate such functions and duties vested in the state registrar to employees of the Center for Health Statistics and to employees of any office established or designated under ORS 432.035. [Amended by 1975 c.605 §22; 1983 c.709 §4; 1997 c.783 §4]
432.035 County registrars. The State Registrar of the Center for Health Statistics shall designate for each county a county registrar. In consultation with the state registrar, the county registrar may designate one or more deputy county registrars in any county. So far as practical, a county health official shall be designated county registrar. [Amended by 1983 c.709 §5; 1985 c.207 §3; 1997 c.783 §5]
432.040 Duties of county and local registrars. The county and local registrars and their deputies shall:
(1) Comply with all instructions of the State Registrar of the Center for Health Statistics.
(2) Check upon the compliance by others with the provisions of this chapter and with the rules of the state registrar.
(3) Make an immediate report to the state registrar of any violation of this chapter or of the rules of the state registrar coming to their notice by observation or upon complaint of any person, or otherwise. [Amended by 1983 c.709 §28]
432.045 [Amended by 1971 c.16 §1; 1983 c.709 §29; repealed by 1997 c.783 §48]
432.050 [Amended by 1983 c.709 §30; repealed by 1997 c.783 §48]
432.055 [Repealed by 1973 c.829 §71]
432.060 Confidentiality and inadmissibility of information obtained in connection with epidemiologic morbidity and mortality studies; exceptions; nonliability of informants. (1)(a) All information procured by or furnished to the Department of Human Services, any federal public health agency or any nonprofit health agency that is exempt from taxation under the laws of this state or procured by any agency, organization or person acting jointly with or at the request of the department, in connection with special epidemiologic morbidity and mortality studies, is confidential, nondiscoverable and inadmissible in any proceeding and is exempt from disclosure under ORS 192.410 to 192.505. A person communicating information in connection with special epidemiologic morbidity and mortality studies pursuant to this subsection may not be examined about the communication or the information.
(b) Nothing in this subsection affects the confidentiality or admissibility into evidence of data not otherwise confidential or privileged that is obtained from sources other than the department.
(c) As used in this subsection, “information” includes, but is not limited to, written reports, notes, records, statements and studies.
(2) The furnishing of morbidity and mortality information to the department or health agency, to its authorized representatives or to any other agency, organization or person cooperating in a special epidemiologic study, does not subject any hospital, sanitarium, rest home, nursing home or other organization or person furnishing such information to an action for damages.
(3) Subsection (1) of this section does not prevent the department or a health agency from publishing:
(a) Statistical compilations and reports relating to special epidemiologic morbidity and mortality studies, if such compilations and reports do not identify individual cases and sources of information.
(b) General morbidity and mortality studies customarily and continuously conducted by the department or health agency that do not involve patient identification.
(4) Nothing in this section prevents disposition of records described in subsection (1) of this section pursuant to ORS 192.105. [1961 c.191 §§2,3; 1983 c.709 §31; 2005 c.342 §1]
432.075 Duty to furnish information to state registrar; immunity. (1) Any person having knowledge of the facts shall furnish all information the person may possess regarding any birth, death, fetal death, induced termination of pregnancy, marriage, dissolution of marriage or suicide attempt by a person under 18 years of age, upon demand of the State Registrar of the Center for Health Statistics.
(2) Any person or institution that in good faith provides information required by this chapter or by rules adopted pursuant thereto shall not be subject to any action for civil damages. [1983 c.709 §23; 1997 c.783 §6]
432.080 Copy of vital records furnished without charge for use in proceeding on war veteran’s benefits. Notwithstanding ORS 432.146, the State Registrar of the Center for Health Statistics or the county registrar shall furnish, without charge therefor, a certified copy of a vital record to the United States Department of Veterans Affairs, the Director of Veterans’ Affairs or any county service officer appointed under ORS 408.410 when the record is requested by the agency or officer in connection with, or for use as evidence in, any proceeding involving a claim based upon war veterans’ benefits. [1985 c.397 §1; 1991 c.67 §114; 1997 c.783 §8]
Note: 432.080 and 432.085 were added to and made a part of ORS chapter 432 by legislative action but were not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.
432.085 Sale of birth and death certificate copies; rules. The Department of Human Services shall adopt, taking into consideration local service needs and interests, rules to allow a county registrar to sell, within six months of the date of the event occurring in the county, certified copies of birth certificates and death certificates. [1985 c.397 §2; 1993 c.18 §108; 1997 c.783 §9]
Note: See note under 432.080.
432.090 Issuance of additional birth certificate; fee; form; distribution of funds received. (1) In addition to the original birth certificate, the State Registrar of the Center for Health Statistics shall issue upon request and upon payment of a fee in an amount set by the state registrar a birth certificate representing that the birth of the person named thereon is recorded in the office of the state registrar. The certificate issued under this section shall be in a form consistent with the need to protect the integrity of vital records but shall be suitable for display. It may bear the seal of the state printed thereon and may be signed by the Governor. It shall have the same status as evidence as the original birth certificate.
(2) Of the funds received under subsection (1) of this section, the amount needed to reimburse the state registrar for expenses incurred in administering this section shall be credited to the Public Health Account. The remainder shall be credited to the subaccount created pursuant to section 36 (2), chapter 1084, Oregon Laws 1999, or a successor subaccount, account or fund.
(3) In setting the fee amount under subsection (1) of this section, the state registrar shall give substantial consideration to the amount suggested by the holder of the subaccount created pursuant to section 36 (2), chapter 1084, Oregon Laws 1999, or a successor subaccount, account or fund. [1985 c.549 §10; 1997 c.783 §§10,10a; 1999 c.1084 §46]
432.095 Application of chapter provisions. The provisions of this chapter regarding the copying, inspection, disclosure or furnishing of vital records and vital reports also apply to all certificates or reports of birth, death, marriage, dissolution of marriage, fetal death, induced termination of pregnancy and suicide attempt by a person under 18 years of age received prior to October 4, 1997, by the Vital Statistics Unit or in the custody of any other custodian of vital records. [1997 c.783 §44]
Note: 432.095 was added to and made a part of ORS chapter 432 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.
GENERAL PROVISIONS ON CERTIFICATION AND RECORDS; FEES
432.105 Procedure for transmitting and filing certificates. (1) Each local registrar shall promptly transmit each birth certificate and each death certificate filed with the local registrar to the county registrar. The county registrar shall maintain an abstract of each death certificate and may prepare and maintain an abstract for each birth certificate as follows:
(a) The abstract of death shall include the information contained on the report of death card prescribed by the State Registrar of the Center for Health Statistics.
(b) The abstract of birth shall contain only the full names of the child and the parent or parents, sex of the child, the county and date of birth, the residence address of the mother, date of filing and local file number.
(2) Abstracts shall be filed and indexed in alphabetical order and safely kept by the county registrar. [Amended by 1973 c.829 §35; 1983 c.709 §32; 1997 c.783 §11]
432.110 [Repealed by 1971 c.16 §3]
432.115 Form of records and reports; status; disposition; rules. To preserve vital records and vital reports, the State Registrar of the Center for Health Statistics is authorized to prepare typewritten, photographic, electronic or other reproductions of certificates or reports in the Center for Health Statistics. Such reproductions when verified and approved by the state registrar shall be accepted as original records, and the documents from which permanent reproductions have been made may be disposed of as provided by rule of the state registrar, rule of the Secretary of State and ORS 192.105. [Amended by 1983 c.709 §19; 1997 c.783 §12]
432.119 Abstracts of birth and death certificates as public records; limitations. (1) Abstracts of birth and death certificates as provided in ORS 432.105 are public records and open to public inspection except as provided in this section. The county registrar shall mark the abstract of birth in a manner designated by the State Registrar of the Center for Health Statistics to indicate that the record is not to be used by any person compiling a list for publication or a business contact list under the following conditions:
(a) If a birth certificate indicates any of the following:
(A) The father of the child is not identified.
(B) The infant dies after birth.
(C) Congenital anomaly is reported.
(D) Maternal disability or death is indicated.
(b) If the parent of the infant requests that the record not be made available for publication or business contact lists.
(2) The Department of Human Services or local health department, as provided in ORS 431.416, may use any birth record or abstract as a source of information for activities necessary for the preservation of health or prevention of disease. [1973 c.829 §11; 1979 c.426 §1; 1983 c.709 §33; 1997 c.783 §13]
432.120 [Amended by 1983 c.709 §20; repealed by 1997 c.783 §14 (432.121 enacted in lieu of 432.120)]
432.121 Disclosure and certification of records and reports; rules. (1) To protect the integrity of vital records and vital reports, to ensure their proper use and to ensure the efficient and proper administration of the system of vital statistics, it shall be unlawful for any person to permit inspection of, or to disclose information from vital records or vital reports in the custody of the State Registrar of the Center for Health Statistics, county registrar or local registrar or to copy or issue a copy of all or part of any such record or report unless authorized by this chapter and by rules adopted pursuant thereto or by order of a court of competent jurisdiction. Rules adopted under this section shall provide for adequate standards of security and confidentiality of vital records and vital reports. The state registrar shall adopt rules to ensure that, for records of dissolution of marriage issued in proceedings under ORS 107.085 or 107.485, Social Security numbers of the parties are kept confidential and exempt from public inspection.
(2) The State Registrar of the Center for Health Statistics shall authorize the inspection, disclosure and copying of the information referred to in subsection (1) of this section as follows:
(a) To the subject of the record; spouse, child, parent, sibling or legal guardian of the subject of the record; an authorized representative of the subject of the record, spouse, child, parent, sibling or legal guardian of the subject of the record; and, in the case of death, marriage or divorce records, to other next of kin.
(b) When a person demonstrates that a death, marriage or divorce record is needed for the determination or protection of a personal or property right.
(c) When 100 years have elapsed after the date of birth or 50 years have elapsed after the date of death, marriage or divorce.
(d) When the person requesting the information demonstrates that the person intends to use the information solely for research purposes. In order to receive the information, the person must submit a written request to the state registrar requesting a research agreement. The state registrar shall issue a research agreement if the person demonstrates that the information will be used only for research and will be held confidential. The research agreement shall prohibit the release by the person of any information other than that authorized by the agreement that might identify any person or institution.
(e) To the federal agency responsible for national vital statistics, upon request. The copies or data may be used solely for the conduct of official duties. Before furnishing the records, reports or data, the state registrar shall enter into an agreement with the federal agency indicating the statistical or research purposes for which the records, reports or data may be used. The agreement shall also set forth the support to be provided by the federal agency for the collection, processing and transmission of the records, reports or data. Upon written request of the federal agency, the state registrar may approve, in writing, additional statistical or research uses of the records, reports or data supplied under the agreement.
(f) To federal, state and local governmental agencies, upon request. The copies or data may be used solely for the conduct of official duties of the requesting governmental agency.
(g) To offices of vital statistics outside this state when such records or other reports relate to residents of those jurisdictions or persons born in those jurisdictions. Before furnishing the records, reports or data, the state registrar shall enter into an agreement with the office of vital statistics. The agreement shall specify the statistical and administrative purposes for which the records, reports or data may be used and the agreement shall further provide instructions for the proper retention and disposition of the copies. Copies received by the Center for Health Statistics from offices of vital statistics in other states shall be handled in the same manner as prescribed in this section.
(h) To an investigator licensed under ORS 703.430, upon request.
(3) The state registrar, upon request of a family member or legal representative, shall issue a certified copy or other copy of a death certificate containing the cause of death information as provided in subsection (2) of this section or as follows:
(a) When a person has demonstrated through documented evidence a need for the cause of death to establish a legal right or claim.
(b) When the request for the copy is made by or on behalf of an organization that provides benefits to the decedent’s survivors or beneficiaries.
(4) Nothing in this section prohibits the release of information or data that would not identify any person or institution named in a vital record or a vital report.
(5) Nothing in this section shall prohibit a health care provider from disclosing information contained in the provider’s records as otherwise allowed by law.
(6) Nothing in this section shall be construed to permit disclosure of information contained in the “Information for Medical and Health Use Only” section of the birth certificate, fetal death report or the “Information for Statistical Purposes Only” section of the certificate of marriage or certificate of divorce, unless specifically authorized by the state registrar for statistical or research purposes. The data shall not be subject to subpoena or court order and shall not be admissible before any court, tribunal or judicial body.
(7) All forms and procedures used in the issuance of certified copies of vital records and vital reports shall be uniform and provided by or approved by the state registrar. All certified copies issued shall have security features that safeguard the document against alteration, counterfeiting, duplication or simulation without ready detection.
(8) Each copy issued shall show the date of filing. Copies issued from records marked “Amended” shall be similarly marked and shall show the effective date of the amendment. Copies issued from records marked “Delayed” shall be similarly marked and shall include the date of filing and a description of the evidence used to establish the delayed certificate.
(9) Any copy issued of a certificate of foreign birth shall indicate this fact and show the actual place of birth and the fact that the certificate is not proof of United States citizenship for an adoptive child.
(10) Appeals from decisions of the state registrar to refuse to disclose information or to permit inspection or copying of records as prescribed by this section and rules adopted pursuant thereto shall be made under ORS chapter 183.
(11) The state registrar shall adopt rules to implement this section in accordance with the applicable sections of ORS chapter 183.
(12) Indexes of deaths, marriages or divorces that list names, dates of events, county of events or certificate numbers may be disclosed. [1997 c.783 §15 (enacted in lieu of 432.120); 1999 c.254 §1; 1999 c.312 §3; 2001 c.838 §23; 2003 c.380 §8]
432.122 Verification of birth certificate and death records; rules. To protect the integrity of vital records and to prevent the fraudulent use of birth certificates of deceased persons, the State Registrar of the Center for Health Statistics is authorized to match birth and death certificates, in accordance with rules adopted by the state registrar that require proof beyond a reasonable doubt the fact of death, and to post the facts of death to the appropriate birth certificate. Copies issued from birth certificates marked “deceased” shall be similarly marked. [1983 c.709 §24; 1997 c.783 §18]
432.124 Disclosure of death records filed in conjunction with claims or interests in land. Notwithstanding any other provision of law, all death records filed in conjunction with owning or having a claim or interest in land in the county that are in the custody of a county clerk or county recording officer are open and subject to full disclosure. [1999 c.254 §7]
Note: 432.124 was added to and made a part of ORS chapter 432 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.
432.125 [Repealed by 1983 c.709 §45]
432.130 Compelling access to records. Any person who is refused an inspection of any record provided for in this chapter may proceed in the manner set forth in ORS 183.480 and 183.484 to seek access to the record. [Amended by 1983 c.709 §25]
432.135 [Amended by 1983 c.709 §9; renumbered 432.142]
432.140 Application for delayed certificates. (1) When a certificate of birth of a person born in this state has not been filed within one year after the date of birth, a delayed certificate of birth may be filed in accordance with rules of the State Registrar of the Center for Health Statistics. If a hospital fails to file a certificate of birth within one year after the date of birth, a certificate of birth may be filed as provided by rule of the state registrar. No delayed certificate shall be registered until the evidentiary requirements as specified by rule have been met.
(2) A certificate of birth registered one year or more after the date of birth shall be registered on a delayed certificate of birth form and show on its face the date of filing.
(3) A summary statement of the evidence submitted in support of the delayed registration shall be indorsed on the certificate.
(4)(a) When an applicant does not submit the minimum documentation required by rule of the state registrar for delayed registration or when the state registrar has cause to question the validity or adequacy of the applicant’s sworn statement or the documentary evidence, and if the deficiencies are not corrected, the state registrar shall not register the delayed certificate of birth and shall enter an order to that effect stating the reasons for the action. The state registrar shall advise the applicant of the right to appeal under ORS 183.480 to 183.484.
(b) The state registrar by rule may provide for the dismissal of an application which is not actively prosecuted. [Amended by 1983 c.709 §8; 1997 c.783 §19]
432.142 Procedure when application for delayed certificate denied. (1) If the State Registrar of the Center for Health Statistics refuses to file a delayed certificate of birth under the provisions of ORS 432.140, the applicant may file a signed and sworn petition with a court of competent jurisdiction seeking an order establishing a record of the date and place of birth and the parentage of the person whose birth is to be registered.
(2) The petition shall be made on a form prescribed and furnished or approved by the state registrar and shall allege:
(a) That the person for whom a delayed certificate of birth is sought was born in this state;
(b) That no certificate of birth of the person can be found in the records of the Center for Health Statistics;
(c) That diligent efforts by the petitioner have failed to obtain the evidence required in accordance with ORS 432.140 and rules adopted pursuant thereto;
(d) That the state registrar has refused to file a delayed certificate of birth; and
(e) Such other allegations as may be required under ORS 183.480 and 183.484.
(3) The petition shall be accompanied by a statement made in accordance with ORS 432.140 and all documentary evidence which was submitted to the state registrar in support of the filing.
(4) The court shall fix a time and place for hearing the petition and shall give the state registrar notice of the hearing. The state registrar or an authorized representative may appear and testify in the proceeding.
(5) If the court finds, from the evidence presented, that the person for whom a delayed certificate of birth is sought was born in this state, it shall make findings as to the place and date of birth, parentage and such other findings as may be required and shall issue an order, on a form prescribed and furnished or approved by the state registrar, to establish a court-ordered certificate of birth. This order shall include the birth data to be registered, a description of the evidence presented and the date of the court’s action.
(6) The clerk of the court shall forward each order to the state registrar not later than the 10th day of the calendar month following the month in which it was entered. The order shall be registered by the state registrar and shall constitute the certificate of birth. [Formerly 432.135; 1997 c.783 §20]
432.145 [Amended by 1957 c.339 §1; 1971 c.16 §2; 1979 c.696 §1; 1983 c.709 §21; repealed by 1991 c.245 §1 (432.146 enacted in lieu of 432.145)]
432.146 Fees. Except as provided in ORS 432.090 and 432.312, subject to the review of the Oregon Department of Administrative Services, the Department of Human Services shall establish all fees for services or records provided under ORS 432.005 to 432.165. The fees and charges established under this section shall be authorized by the Legislative Assembly for the department’s budget, as the budget may be modified by the Emergency Board. [1991 c.245 §2; 1993 c.345 §1; 1997 c.636 §2]
432.150 [Amended by 1957 c.185 §1; repealed by 1983 c.709 §45]
432.155 [Repealed by 1979 c.696 §14]
432.160 [Repealed by 1971 c.743 §432]
432.165 Death records. (1) All superintendents or managers or other persons in charge of institutions shall keep a record of personal data concerning each person admitted or confined to the institution. This record shall include information as required for the certificates of birth and death and the reports of fetal death and induced termination of pregnancy required by this chapter. The record shall be made at the time of admission from information provided by the person being admitted or confined, but when it cannot be so obtained, the information shall be obtained from relatives or other persons acquainted with the facts. The name and address of the person providing the information shall be a part of the record.
(2) When a dead body or fetus is released or disposed of by an institution, the person in charge of the institution shall keep a record showing the name of the decedent, Social Security number, if issued, date of death, name and address of the person to whom the body or fetus is released and the date of removal from the institution. If final disposition is made by the institution, the date, place and manner of disposition shall also be recorded.
(3) A funeral service practitioner, embalmer, sexton or other person who removes from the place of death, transports or makes final disposition of a dead body or fetus, in addition to filing any certificate or other report required by this chapter or rules adopted pursuant thereto, shall keep a record which shall identify the body, and information pertaining to receipt, removal, delivery, burial or cremation of the body as may be required by rules adopted by the State Registrar of the Center for Health Statistics.
(4) A medical examiner, physician or nurse practitioner authorized by law to sign a death certificate who is notified of the death of a person not under the care of institutions shall keep a record.
(5) Copies of records described in this section shall be sent to the state registrar at least monthly. Records maintained under this section shall be retained by the institution, medical examiner, physician or nurse practitioner and the persons described in subsection (3) of this section for a period of not less than two years and shall be made available for inspection by the state registrar or a representative of the state registrar upon demand. [Amended by 1983 c.709 §22; 1985 c.207 §4; 1997 c.783 §21; 1999 c.80 §70; 2005 c.471 §4]
432.175 [Formerly 43.380; 1983 c.709 §34; 1985 c.565 §71; repealed by 1997 c.783 §48]
432.180 Certified copies of vital records or vital reports; evidentiary value; fraud or misrepresentation. (1) A certified copy of a vital record or vital report or any part thereof shall be considered for all purposes the same as the original and shall be prima facie evidence of the facts stated therein. However, the evidentiary value of a record or report filed more than one year after the event, a record or report that has been amended or a certificate of foreign birth shall be determined by the judicial or administrative body or official before whom the record or report is offered as evidence.
(2) The contents, or part of the contents, and the due execution of any certificate on file in the Center for Health Statistics may be evidenced by a copy of the material in the certificate, as certified by the State Registrar of the Center for Health Statistics.
(3) When the state registrar receives information that a certificate may have been registered through fraud or misrepresentation, the state registrar shall withhold issuance of any copy of that certificate. The state registrar shall advise the applicant of the right to appeal under ORS 183.480 to 183.484. If fraud or misrepresentation is found, the state registrar shall remove the certificate from the file. The certificate and evidence shall be retained but shall not be subject to inspection or copying except upon order of a court of competent jurisdiction or by the state registrar for purposes of administering the system of vital statistics.
(4) No person may prepare or issue any certificate that purports to be an original, certified copy or copy of a vital record or vital report except as authorized in this chapter or rules adopted pursuant thereto. No person may prepare or issue any certified copies of birth or death abstracts. [1997 c.783 §17]
RECORDS OF BIRTHS; CERTIFICATION OF UNRECORDED BIRTHS; VOLUNTARY ACKNOWLEDGMENT OF PATERNITY
432.205 [Amended by 1979 c.426 §2; 1983 c.709 §6; 1995 c.514 §5; repealed by 1997 c.783 §22 (432.206 enacted in lieu of 432.205)]
432.206 Compulsory registration of births; rules; persons required to file. (1) A certificate of birth for each birth that occurs in this state shall be filed with the county registrar of the county in which the birth occurred or with the Center for Health Statistics, or as otherwise directed by the State Registrar of the Center for Health Statistics, within five days after the birth and shall be registered if the certificate has been completed and filed in accordance with this section. Any birth certificate not containing the name of the father or on which the surname of the father is at variance with that of the child, at the request of either parent, may be filed with the state registrar and not with the registrar of the county in which the birth occurred.
(2) When a birth occurs in an institution or en route thereto, the person in charge of the institution or authorized designee shall obtain the personal data, prepare the certificate, certify either by signature or by an approved electronic process that the child was born alive at the place and time and on the date stated and file the certificate as directed in subsection (1) of this section. The physician or other person in attendance shall provide the medical information required by the certificate within 72 hours after the birth.
(3) When a birth occurs outside of an institution:
(a) The certificate shall be prepared and filed within five days after the birth by one of the following in the indicated order of priority, in accordance with rules adopted by the state registrar:
(A) The physician in attendance at the birth or immediately after the birth, or in the absence of such a person;
(B) The midwife in attendance at the birth or immediately after the birth, or in the absence of such a person;
(C) Any other person in attendance at the birth or immediately after the birth, or in the absence of such a person; or
(D) The father, the mother or, in the absence of the father and the inability of the mother, the person with authority over the premises where the birth occurred.
(b) The state registrar shall by rule determine what evidence shall be required to establish the facts of birth.
(4) When a birth occurs on a moving conveyance:
(a) Within the United States and the child is first removed from the conveyance in this state, the birth shall be registered in this state and the place where it is first removed shall be considered the place of birth.
(b) While in international waters or air space or in a foreign country or its air space and the child is first removed from the conveyance in this state, the birth shall be registered in this state but the certificate shall show the actual place of birth insofar as can be determined.
(5) If the mother is not married at the time of birth, the name of the father shall not be entered on the certificate unless:
(a) The mother was married to and cohabiting with her husband at the time of conception, in which case the husband’s name shall be entered on the certificate, provided that the husband was not impotent or sterile; or
(b) Both the father and mother have signed a voluntary acknowledgment of paternity form that has been executed in accordance with ORS 432.287 and filed with the registrar.
(6) In the case of a child born to a married woman as a result of artificial insemination with the consent of her husband, the husband’s name shall be entered on the certificate.
(7) If the mother was not married at the time of either conception or birth or between conception and birth, the name of the father shall not be entered on the certificate unless a voluntary acknowledgment of paternity form or other form prescribed under ORS 432.287 signed by the mother and the person to be named as the father is filed with the state registrar.
(8) In any case in which paternity of a child is determined by a court of competent jurisdiction, or by an administrative determination of paternity, the Center for Health Statistics shall enter the name of the father on the new certificate of birth. The Center for Health Statistics shall change the surname of the child if so ordered by the court or, in a proceeding under ORS 416.430, by the administrator as defined in ORS 25.010.
(9) If the father is not named on the certificate of birth, no other information about the father shall be entered on the legal portion of the certificate. Information pertaining to the father may be entered in the “Medical and Confidential” section of the certificate of birth.
(10) Certificates of birth filed after five days, but within one year after the date of birth, shall be registered on the standard form of birth certificate in the manner prescribed in this section. The certificates shall not be marked “Delayed.” The state registrar may require additional evidence in support of the facts of birth. [1997 c.783 §23 (enacted in lieu of 432.205); 1999 c.254 §2; 1999 c.840 §1; 2001 c.455 §24]
432.210 [Repealed by 1983 c.709 §45]
432.215 [Amended by 1983 c.709 §35; repealed by 1997 c.783 §48]
432.220 [Repealed by 1983 c.709 §45]
432.230 When new certificate issued; contents; amendment upon adoption; delayed certificate. (1) The State Registrar of the Center for Health Statistics shall establish a new certificate of birth for a person born in this state when the state registrar receives either of the following:
(a) A report of adoption as provided in ORS 432.415 or a report of adoption prepared and filed in accordance with the laws of another state or foreign country, or a certified copy of the judgment of adoption, together with the information necessary to identify the original certificate of birth and to establish a new certificate of birth, except that a new certificate of birth shall not be established if so requested by the court entering the judgment of adoption, the adoptive parents or the adopted person.
(b) A request that a new certificate of birth be established as prescribed by rule and the evidence required by rule of the state registrar proving that:
(A) The person has been legitimated;
(B) A court of competent jurisdiction has determined the paternity of the person;
(C) An administrative determination of paternity has been filed; or
(D) Both parents have voluntarily acknowledged the paternity of the person and requested that the surname be changed from that shown on the original certificate.
(2) When a new certificate of birth is established, the actual city or county, or both, and date of birth shall be shown. The new certificate shall be substituted for the original certificate of birth in the files, and the original certificate of birth and the evidence of adoption, legitimation, court determination of paternity, administrative determination of paternity, voluntary acknowledgment of paternity or other form prescribed in ORS 432.287 shall not be subject to inspection except upon order of a court or as provided by rule of the state registrar.
(3) Upon receipt of a report of an amended judgment of adoption, the certificate of birth shall be amended as provided by rule of the state registrar.
(4) Upon receipt of a report or judgment of annulment of adoption, the original certificate of birth shall be restored to its place in the files and the adoption certificate and evidence shall not be subject to inspection except upon order of a court of competent jurisdiction or as provided by rule of the state registrar.
(5) Upon written request of both parents and receipt of a voluntary acknowledgment of paternity form or other form prescribed in ORS 432.287 signed by both parents of a child born out of wedlock, the state registrar shall issue a new certificate of birth to show such paternity if paternity is not already shown on the certificate of birth. Such certificate shall not be marked “Amended.”
(6) If no certificate of birth is on file for the person for whom a new birth certificate is to be established under this section, and the date and place of birth have not been determined in the adoption or paternity proceedings, a delayed certificate of birth shall be filed with the state registrar as provided in ORS 432.140 and 432.142, before a new certificate of birth is established. The new birth certificate shall be prepared on the delayed birth certificate form.
(7) When a new certificate of birth is established by the state registrar, all copies of the original certificate of birth in the custody of any other custodian of vital records in this state shall be sealed from inspection or forwarded to the state registrar as the state registrar shall direct.
(8) The state registrar, upon request, shall prepare and register a certificate in this state for a person born in a foreign country who is not a citizen of the United States and who was adopted through a court of competent jurisdiction in this state. The certificate shall be established upon receipt of a report of a judgment of adoption from the court, proof of the date and place of the person’s birth, and a request from the court, the adopting parents or the adopted person, if 18 years of age or over, that such a certificate be prepared. The certificate shall be labeled “Certificate of Foreign Birth” and shall show the actual country of birth. A statement shall also be included on the certificate indicating that it is not evidence of United States citizenship for the person for whom it is issued. After registration of the birth certificate in the new name of the adopted person, the state registrar shall seal the report of adoption, which shall not be subject to inspection except upon order of a court of competent jurisdiction. [1983 c.709 §11a; 1997 c.783 §24; 2003 c.576 §454]
432.235 Amendment of certificate or report; rules. (1) A certificate or report registered under this chapter may be amended only in accordance with this chapter and rules adopted by the State Registrar of the Center for Health Statistics to protect the integrity and accuracy of vital records and vital reports.
(2) A certificate or report that is amended under this section shall indicate that it has been amended, except as otherwise provided in ORS 432.230, this section or by rule of the state registrar. A record shall be maintained that identifies the evidence upon which the amendment was based, the date of the amendment and the identity of the person making the amendment. The state registrar shall prescribe by rule the conditions under which additions or minor corrections may be made to certificates or reports within one year without the certificate or report indicating that it has been amended.
(3) Upon receipt of a certified copy of an order of a court changing the name of a person born in this state and upon request of such person or if the person is a minor or incompetent, the parents, guardian or legal representative of the person, the state registrar shall amend the certificate of birth to show the new name.
(4) Upon receipt of a certified copy of an order of a court of competent jurisdiction indicating that the sex of an individual born in this state has been changed by surgical procedure and whether such individual’s name has been changed, the certificate of birth of such individual shall be amended as prescribed by rule of the state registrar.
(5) When an applicant does not submit the minimum documentation required by rule of the state registrar for amending a vital record or when the state registrar has cause to question the validity or adequacy of the applicant’s sworn statements or the documentary evidence, and if the deficiencies are not corrected, the state registrar shall not amend the vital record and shall advise the applicant of the reason for this action and shall further advise the applicant of the right of appeal under ORS 183.480 and 183.484.
(6) When a certificate or report is amended under this section by the state registrar, the state registrar shall report the amendment to any other custodian of the vital record and the record of the other custodian shall be amended accordingly.
(7) When an amendment is made to a certificate of marriage by the local official issuing the marriage license, copies of the amendment shall be forwarded to the state registrar.
(8)(a) When a party or legal representative proposes to set aside or change any information recorded in a dissolution of marriage judgment filed pursuant to ORS 432.408, the party or legal representative seeking the amendment or set aside order shall prepare a summary of the changes in the form prescribed or furnished by the state registrar and shall present the form to the clerk of the court along with the proposed supplemental judgment. In all cases the completed form shall be a prerequisite to the entry of the supplemental judgment.
(b) The clerk of the court shall complete and forward to the Center for Health Statistics the records of each such supplemental judgment in the same manner prescribed by ORS 432.408. [Formerly 432.290; 1997 c.783 §25; 2003 c.576 §455]
432.240 Issuance of certified copy of certificate of birth to adopted persons; Contact Preference Form. (1) Upon receipt of a written application to the state registrar, any adopted person 21 years of age and older born in the State of Oregon shall be issued a certified copy of his/her unaltered, original and unamended certificate of birth in the custody of the state registrar, with procedures, filing fees, and waiting periods identical to those imposed upon nonadopted citizens of the State of Oregon pursuant to ORS 432.121 and 432.146. Contains no exceptions.
(2) A birth parent may at any time request from the State Registrar of the Center for Health Statistics or from a voluntary adoption registry a Contact Preference Form that shall accompany a birth certificate issued under subsection (1) of this section. The Contact Preference Form shall provide the following information to be completed at the option of the birth parent:
(a) I would like to be contacted;
(b) I would prefer to be contacted only through an intermediary; or
(c) I prefer not to be contacted at this time. If I decide later that I would like to be contacted, I will register with the voluntary adoption registry. I have completed an updated medical history and have filed it with the voluntary adoption registry. Attached is a certificate from the voluntary adoption registry verifying receipt of the updated medical history.
(3) The certificate from the voluntary adoption registry verifying receipt of an updated medical history under subsection (2) of this section shall be in a form prescribed by the Department of Human Services and shall be supplied upon request of the birth parent by the voluntary adoption registry.
(4) When the State Registrar of the Center for Health Statistics receives a completed Contact Preference Form from a birth parent, the state registrar shall match the Contact Preference Form with the adopted person’s sealed file. The Contact Preference Form shall be placed in the adopted person’s sealed file when a match is made.
(5) A completed Contact Preference Form shall be confidential and shall be placed in a secure file until a match with the adopted person’s sealed file is made and the Contact Preference Form is placed in the adopted person’s file.
(6) Only those persons who are authorized to process applications made under subsection (1) of this section may process Contact Preference Forms. [1999 c.2; 1999 c.604 §1]
Note: 432.240 was adopted by the people by initiative petition but was not added to or made a part of ORS chapter 432 or any series therein. See Preface to Oregon Revised Statutes for further explanation.
432.255 [Repealed by 1983 c.709 §45]
432.260 [Amended by 1981 c.6 §1; repealed by 1983 c.709 §45]
432.265 [Repealed by 1983 c.709 §45]
432.266 Commemorative Certificate of Stillbirth; rules. (1) The State Registrar of the Center for Health Statistics shall establish a Commemorative Certificate of Stillbirth. The certificate shall be signed by the state registrar.
(2) The state registrar shall issue a Commemorative Certificate of Stillbirth for a stillbirth occurring on or after January 1, 1999, upon:
(a) Request of a biological parent of the stillborn fetus; and
(b) Payment of the fee adopted by the state registrar by rule.
(3) The state registrar shall adopt by rule:
(a) A form for the certificate;
(b) The type of information that may be included on the form; and
(c) The fee required for issuance of the certificate.
(4) A certificate issued under this section is for commemorative purposes only and has no legal effect. [2005 c.769 §1]
432.270 [Repealed by 1983 c.709 §45]
432.275 [Repealed by 1983 c.709 §45]
432.280 [Repealed by 1983 c.709 §45]
432.285 Availability of voluntary acknowledgment of paternity form; responsibility of health care facility and parents. Any health care facility as defined in ORS 442.015 shall make available to the biological parents of any child born live, or expected to be born within the health care facility, a voluntary acknowledgment of paternity form when the facility has reason to believe that the mother of the child is unmarried. The responsibility of the health care facility is limited to providing the form and submitting the form with the birth certificate to the State Registrar of the Center for Health Statistics. The biological parents are responsible for ensuring that the form is accurately completed. This form shall be as prescribed by ORS 432.287. [1995 c.514 §3; 1997 c.783 §26]
432.287 Voluntary acknowledgment of paternity form; rules; filing; when form is sworn document; copy to child support agency. (1) The Director of Human Services shall adopt by rule a form of a voluntary acknowledgment of paternity that includes the minimum requirements specified by the United States Secretary of Health and Human Services. When the form is signed by both biological parents and witnessed by a third party, the form establishes paternity for all purposes when filed with the State Registrar of the Center for Health Statistics, provided there is no male parent already named on the birth certificate. Establishment of paternity under this section is subject to the provisions and the requirements in ORS 109.070. When there is no other male named as father on the child’s birth certificate, the filing of such voluntary acknowledgment of paternity form shall cause the state registrar to place the name of the male parent who has signed the voluntary acknowledgment of paternity form on the birth certificate of the child or, if appropriate, issue a new birth certificate containing the name of the child’s male parent, as that parent is named in the voluntary acknowledgment of paternity form. When signed by both parents in the health care facility of the child’s birth within five days after the birth, the voluntary acknowledgment of paternity form is not a sworn document. When thus signed, a staff member of the health care facility shall witness the signatures of the parents. In all other circumstances, the form is a sworn document. The filing of the voluntary acknowledgment of paternity form created by this section is subject to the payment of any fees that may apply.
(2) The voluntary acknowledgment of paternity form must contain:
(a) A statement of rights and responsibilities including any rights afforded to a minor parent;
(b) A statement of the alternatives to and consequences of signing the acknowledgment;
(c) Instructions on how to file the form with the state registrar and information about any fee required;
(d) Lines for the Social Security numbers and addresses of the parents; and
(e) A statement that the rights, responsibilities, alternatives and consequences listed on the acknowledgment were read to the parties prior to signing the acknowledgment.
(3) Upon request, the state registrar shall provide a copy of any voluntary acknowledgment of paternity form to the state agency responsible for administration of the child support enforcement program created under Title IV-D of the Social Security Act. The duty imposed upon the state registrar by this section is limited to birth certificates executed and filed with the state registrar after October 1, 1995. [1995 c.514 §4; 1997 c.783 §27; 1999 c.80 §21]
432.289 Full faith and credit. A determination of paternity by another state is entitled to full faith and credit. [1995 c.514 §4a]
432.290 [1981 c.221 §3; 1983 c.709 §18; 1995 c.514 §6; renumbered 432.235 in 1995]
DETERMINATION OF DEATH
432.300 Determination of death. (1) A person is dead if the person has sustained either:
(a) Irreversible cessation of circulatory and respiratory functions; or
(b) Irreversible cessation of all functions of the entire brain, including the brain stem.
(2) A determination of whether the conditions described in subsection (1)(a) or (b) of this section have occurred must be made in accordance with accepted medical standards.
(3) For purposes of this section as it relates to fetal death, heartbeats shall be distinguished from transient cardiac contractions and breathing shall be distinguished from fleeting respiratory efforts or gasps.
(4) This section may be cited as the Uniform Determination of Death Act. [1987 c.517 §2 (enacted in lieu of 146.001); 1997 c.783 §28]
432.305 [Repealed by 1963 c.200 §6]
DEATH CERTIFICATES; BURIAL PERMITS
432.307 Compulsory filing of death certificates; persons required to file. (1) A certificate of death for each death that occurs in this state shall be submitted to the county registrar of the county in which the death occurred or to the Center for Health Statistics, or as otherwise directed by the State Registrar of the Center for Health Statistics, within five days after death or the finding of a dead body and prior to final disposition, and shall be registered if it has been completed and filed in accordance with this section.
(a) If the place of death is unknown, but the dead body is found in this state, the certificate of death shall be completed and filed in accordance with this section. The place where the body is found shall be shown as the place of death. If the date of death is unknown, it shall be determined by approximation. If the date cannot be determined by approximation, the date the dead body is found shall be entered and identified as the date of death.
(b) When death occurs in a moving conveyance:
(A) In the United States and the body is first removed from the conveyance in this state, the death shall be registered in this state and the place where it is first removed shall be considered the place of death.
(B) While in international waters or air space or in a foreign country or its air space and the body is first removed from the conveyance in this state, the death shall be registered in this state but the certificate shall show the actual place of death insofar as can be determined.
(c) In all other cases, the place where death is pronounced shall be considered the place where death occurred.
(2) The funeral service practitioner or person acting as a funeral service practitioner who first assumes custody of the dead body shall submit the certificate of death. The funeral service practitioner or person acting as a funeral service practitioner shall obtain the personal data from the next of kin or the best qualified person or source available and shall obtain the medical certification from the person responsible therefor. The funeral service practitioner or person acting as a funeral service practitioner shall provide the certificate of death containing information as specified by rule to identify the decedent to the certifier within 48 hours after death.
(3) The physician, physician assistant practicing under the supervision of a person licensed to practice medicine under ORS chapter 677 or certified nurse practitioner, in charge of the care of the patient for the illness or condition that resulted in death shall complete, sign and return the medical certification of death to the funeral service practitioner or person acting as a funeral service practitioner within 48 hours after receipt of the certificate of death by the physician, physician assistant or nurse practitioner, except when inquiry is required by ORS chapter 146. In the absence or inability of the physician, physician assistant or nurse practitioner, or with the approval of the physician, the medical certification of death may be completed by an associate physician, the chief medical officer of the institution in which death occurred or the physician who performed an autopsy upon the decedent, provided that the individual has access to the medical history of the case and death is due to natural causes. The person completing the medical certification of death shall attest to its accuracy either by signature or by an approved electronic process.
(4) When inquiry is required by ORS chapter 146, the medical examiner shall determine the cause of death and shall complete and sign the medical certification of death within 48 hours after taking charge of the case.
(5) If the cause of death cannot be determined within the time prescribed, the medical certification of death shall be completed as provided by rule of the state registrar. The attending physician, physician assistant practicing under the supervision of a person licensed to practice medicine under ORS chapter 677, nurse practitioner or medical examiner shall give the funeral service practitioner or person acting as a funeral service practitioner notice of the reason for the delay, and final disposition of the body shall not be made until authorized by the attending physician, physician assistant, nurse practitioner or medical examiner.
(6) Upon receipt of autopsy results or other information that would change the information in the “Cause of Death” section of the certificate of death from that originally reported, the certifier shall immediately file a supplemental report of cause of death with the Center for Health Statistics to amend the certificate.
(7) When a death is presumed to have occurred within this state but the body cannot be located, a certificate of death may be registered by the state registrar only upon receipt from the State Medical Examiner. Such a death certificate shall be marked “Presumptive” and shall show on its face the date of registration.
(8) When a death occurring in this state has not been registered within the time period prescribed by this section, a certificate of death may be filed in accordance with rules of the state registrar. The certificate shall be registered subject to evidentiary requirements as the state registrar by rule shall prescribe to substantiate the alleged facts of death.
(9) A certificate of death registered one year or more after the date of death or the date the dead body was found shall be marked “Delayed” and shall show on its face the date of the delayed registration.
(10) When an applicant does not submit the minimum documentation required by rule of the state registrar for delayed registration or when the state registrar has cause to question the validity or adequacy of the applicant’s sworn statement or the documentary evidence and if the deficiencies are not corrected, the state registrar shall not register the delayed certificate of death and shall advise the applicant of the right of appeal under ORS 183.480 to 183.484.
(11) A certificate of death required to be filed under this section shall contain the Social Security number of the decedent whenever the Social Security number is reasonably available from other records concerning the decedent or can be obtained from the person in charge of the final disposition of the decedent. [1963 c.200 §2; 1965 c.221 §26; 1977 c.582 §33; 1983 c.709 §12; 1985 c.207 §5; 1997 c.783 §29; 1999 c.80 §71; 1999 c.724 §1; 2001 c.357 §2; 2003 c.104 §3]
432.310 [Amended by 1959 c.629 §32; repealed by 1963 c.200 §6]
432.312 Death certificate fee; use; limitation. (1) The Department of Human Services shall impose and collect a filing fee of $7 for each certificate of death. Of the fee, $2 shall be deposited to the credit of the Public Health Account and used to carry out the purposes of ORS 97.170 (5) and $5 shall be deposited to the credit of the State Mortuary and Cemetery Board Account and used in the same manner as funds credited to the account under ORS 692.375.
(2) The expenditures under ORS 97.170 (5) and 692.375 shall not exceed the funds collected under subsection (1) of this section, and in no event shall expenditure on the administration of the funds exceed five percent of the moneys collected. [1993 c.345 §3; 1997 c.783 §30; 2005 c.726 §3]
432.315 [Amended by 1959 c.629 §33; repealed by 1963 c.200 §6]
432.317 Report upon receipt of body or fetus; authorization for final disposition; rules. (1) The funeral service practitioner or person acting as a funeral service practitioner who first assumes possession of a dead body or fetus shall make a written report to the county registrar in the county in which death occurred or in which the body or fetus was found within 24 hours after taking possession of the body or fetus. The report shall be on a form prescribed and furnished by the State Registrar of the Center for Health Statistics and in accordance with rules adopted by the Department of Human Services.
(2) Prior to final disposition of the body, the funeral service practitioner or person acting as a funeral service practitioner who first assumes custody of a dead body shall, prior to final disposition of the body, obtain written authorization for final disposition of the body from the physician, physician assistant practicing under the supervision of a person licensed to practice medicine under ORS chapter 677, certified nurse practitioner or medical examiner who certifies the cause of death as provided in ORS 432.307 (3) on a form prescribed and furnished by the state registrar. If the funeral service practitioner or person acting as a funeral service practitioner is unable to obtain such written authorization prior to final disposition of the body, the practitioner or person, with the oral consent of the physician, the physician assistant, the nurse practitioner, the medical examiner or a licensed health professional authorized to give such consent on behalf of the physician or medical examiner who is responsible for certifying the cause of death, may authorize final disposition of the body on a form prescribed and furnished by the state registrar.
(3) Prior to final disposition of a fetus, irrespective of the duration of pregnancy, the funeral service practitioner, the person in charge of the institution or other person assuming responsibility for final disposition of the fetus shall authorize final disposition of the fetus on a form prescribed and furnished or approved by the state registrar.
(4) With the consent of the physician, physician assistant practicing under the supervision of a person licensed to practice medicine under ORS chapter 677, nurse practitioner or medical examiner who is to certify the cause of death, a dead body may be moved from the place of death for the purpose of being prepared for final disposition.
(5) An authorization for final disposition issued under the laws of another state which accompanies a dead body or fetus brought into this state shall be authority for final disposition of the body or fetus in this state. Permits for transporting a body or fetus out of another state issued under the laws of another state shall be authority for transporting a body or fetus into Oregon.
(6) No sexton or other person in charge of any place in which interment or other disposition of dead bodies is made shall inter or allow interment or other disposition of a dead body or fetus unless it is accompanied by authorization for final disposition.
(7) Each person in charge of any place for final disposition shall include in the authorization the date of disposition and shall complete and return all authorizations to the county registrar within 10 days after the date of the disposition. When there is no person in charge of the place for final disposition, a responsible party other than the funeral service practitioner or person acting as a funeral service practitioner shall complete and return the authorization to the county registrar within 10 days after the date of disposition.
(8) Authorization for disinterment and reinterment shall be required prior to disinterment of a dead body or fetus. The authorization shall be issued by the state registrar to a licensed funeral service practitioner or person acting as a funeral service practitioner, upon proper application.
(9) Prior to removing a dead body or fetus from the State of Oregon under ORS 692.270, a person acting as a funeral service practitioner as defined in ORS 432.005 (11)(b) shall submit a written notice of removal to the county registrar in the county in which death occurred or in which the body or fetus was found. The notice shall be on a form prescribed and furnished by the State Registrar of the Center for Health Statistics and in accordance with rules adopted by the Department of Human Services. A copy of the written notice of removal shall serve as a transit permit for the remains of the decedent named on the notice. [1963 c.200 §3; 1983 c.709 §16; 1985 c.207 §6; 1987 c.252 §9; 1989 c.669 §2; 1997 c.783 §31; 1999 c.724 §4; 2001 c.357 §3; 2003 c.104 §4]
432.320 [Repealed by 1963 c.200 §6]
432.325 [Repealed by 1963 c.200 §6]
432.327 Authority to grant extensions on certificates, reports and permits; rules. Upon such conditions as the State Registrar of the Center for Health Statistics may prescribe to ensure compliance with the purposes of this chapter, by rule the state registrar may provide for the extension, not to exceed 60 days, of the periods prescribed in ORS 432.307 and 432.317 for the filing of certificates of death and fetal death reports, medical certifications of death, and for the obtaining of permits for disposition of human remains in cases where compliance with the applicable prescribed period would result in undue hardship. [1963 c.200 §4; 1983 c.709 §36; 1997 c.783 §32]
432.330 [Repealed by 1963 c.200 §6]
432.333 Reports on fetal deaths. (1) Each fetal death of 350 grams or more, or, if weight is unknown, of 20 completed weeks gestation or more, calculated from the date last normal menstrual period began to the date of delivery, that occurs in this state shall be reported within five days after delivery to the county registrar of the county in which the fetal death occurred or to the Center for Health Statistics or as otherwise directed by the State Registrar of the Center for Health Statistics. All induced terminations of pregnancy shall be reported in the manner prescribed in ORS 435.496 and shall not be reported as fetal deaths.
(2) When a fetus is delivered in an institution, the person in charge of the institution or a designated representative shall prepare and file the report.
(3) When a fetus is delivered outside an institution, the physician in attendance at or immediately after delivery shall prepare and file the report.
(4) When a fetal death required to be reported by this section occurs without attendance by a physician at or immediately after the delivery or when inquiry is required by ORS 146.003 to 146.165 and 146.710 to 146.992, the medical examiner shall investigate the cause of fetal death and shall prepare and file the report.
(5) When a fetal death occurs in a moving conveyance and the fetus is first removed from the conveyance in this state or when a fetus is found in this state and the place of fetal death is unknown, the fetal death shall be reported in this state. The place where the fetus was first removed from the conveyance or the fetus was found shall be considered the place of fetal death.
(6) All information regarding the father shall be entered on the fetal death report if the father is identified. [1983 c.709 §13; 1989 c.171 §54; 1997 c.783 §33]
432.335 [Repealed by 1963 c.200 §6]
432.337 Status of reports under ORS 435.496; rules. The reports required under ORS 435.496 are statistical reports to be used only for medical and health purposes and shall not be incorporated into the permanent official records of the system of vital statistics. A schedule for the disposition of these reports may be provided by rule of the State Registrar of the Center for Health Statistics. [1983 c.709 §15; 1997 c.783 §34]
432.340 [Repealed by 1963 c.200 §6]
432.345 [Repealed by 1983 c.709 §45]
RECORDS OF MARRIAGES, DIVORCES, ADOPTIONS, ANNULMENTS AND CERTAIN BIRTHS
432.405 Filing of marriage record; rules. (1) A record of each marriage performed in this state shall be filed with the Center for Health Statistics and shall be registered if it has been completed and filed in accordance with this section and rules adopted by the State Registrar of the Center for Health Statistics.
(2) The county clerk or county official who issues the marriage license shall prepare the record in the form prescribed or furnished by the state registrar upon the basis of information obtained from the parties to be married.
(3) Each person who performs a marriage ceremony shall certify the fact of marriage and return the record to the official who issued the license within 10 days after the ceremony.
(4) Every official issuing marriage licenses shall complete and forward to the Center for Health Statistics on or before the 10th day of each calendar month the records of marriages returned to such official during the preceding calendar month.
(5) A marriage record not filed within the time prescribed by this section may be registered in accordance with rules adopted by the state registrar. [Amended by 1983 c.709 §17; 1997 c.783 §35]
432.408 Record of dissolution of marriage judgment; rules. (1) A record of each dissolution of marriage judgment by any court in this state shall be filed by the clerk of the court with the Center for Health Statistics and shall be registered if it has been completed and filed in accordance with this section. The record shall be prepared by the petitioner or a legal representative of the petitioner in the form prescribed or furnished by the State Registrar of the Center for Health Statistics and shall be presented to the clerk of the court with the petition. In all cases the completed record shall be prerequisite to the entry of the judgment. The state registrar shall design the record so that, for judgments or orders issued in proceedings under ORS 107.085 or 107.485, the state registrar, county clerks, county recording officers and state courts may keep Social Security numbers confidential and exempt from public inspection.
(2) The clerk of the court shall complete and forward to the Center for Health Statistics on or before the 10th day of each calendar month the records of each dissolution of marriage judgment granted during the preceding calendar month. The clerk shall comply with procedures established under ORS 107.840 to ensure that, in the records completed and forwarded under this subsection, the Social Security numbers of parties to a proceeding under ORS 107.085 or 107.485 are kept confidential and exempt from public inspection.
(3) A dissolution of marriage record not filed within the time prescribed by subsection (2) of this section may be registered in accordance with rules adopted by the state registrar. [1997 c.783 §37; 2003 c.380 §9; 2003 c.576 §456a]
432.410 [Repealed by 1959 c.430 §5]
432.412 Marriage and divorce records subject to full disclosure; exemption. (1) Except as provided in subsection (2) of this section, notwithstanding any other provision of law, all marriage records and all divorce records in the custody of a county clerk or county recording officer and all divorce records in the custody of the state courts are open and subject to full disclosure.
(2) Divorce records in the custody of the state courts shall be completed and maintained in accordance with procedures established under ORS 107.840 to ensure that the Social Security numbers of parties to proceedings under ORS 107.085 and 107.485 are kept confidential and exempt from public inspection. [1999 c.254 §6; 2003 c.380 §10]
432.415 Reports on adoptions. (1) For each judgment of adoption entered by a court in this state, the court shall require the preparation of a report of adoption on a form prescribed and furnished by the State Registrar of the Center for Health Statistics. The report shall:
(a) Include such facts as are necessary to locate and identify the certificate of birth of the person adopted or, in the case of a person who was born in a foreign country, evidence from sources determined to be reliable by the court as to the date and place of birth of the person;
(b) Provide information necessary to establish a new certificate of birth of the person adopted; and
(c) Identify the order of adoption and be certified by the clerk of the court.
(2) Information necessary to prepare the report of adoption shall be furnished by each petitioner for adoption or the attorney of the petitioner. The Department of Human Services or any person having knowledge of the facts shall supply the court with such additional information as may be necessary to complete the report of adoption. The provision of such information shall be prerequisite to the issuance of a judgment of adoption.
(3) Whenever an adoption judgment is amended or annulled, the clerk of the court shall prepare a report thereof, which shall include such facts as are necessary to identify the original adoption report and the facts amended in the adoption judgment as shall be necessary to properly amend the birth record.
(4) Not later than the 10th day of each calendar month or more frequently, as directed by the state registrar, the clerk of the court shall forward to the state registrar reports of adoption, reports of annulment of adoption and amendments of judgments of adoption that were entered in the preceding month, together with such related reports as the state registrar shall require.
(5) When the state registrar receives a report of adoption, report of annulment of adoption or amendment of a judgment of adoption for a person born outside this state, the state registrar shall forward such report to the state registrar in the state of birth.
(6) If the birth occurred in a foreign country, except Canada, and the person is not a citizen of the United States at the time of birth, the state registrar shall prepare a certificate of foreign birth as provided by ORS 432.230. If the person was born in Canada, the state registrar shall forward the report of adoption, report of annulment of adoption or amendment of a judgment of adoption to the appropriate registration authority in Canada.
(7) If the person was born in a foreign country but was a citizen of the United States at the time of birth, the state registrar shall not prepare a certificate of foreign birth and shall notify the adoptive parents of the procedures for obtaining a revised birth certificate for the person through the United States Department of State. [Amended by 1959 c.430 §2; 1983 c.709 §10; 1997 c.783 §38; 2003 c.576 §457]
432.420 Access to adoption records. The documents forwarded to the State Registrar of the Center for Health Statistics or sealed under ORS 432.230 may be opened by the state registrar only upon an order of an Oregon court of competent jurisdiction or when requested by an agency operating a voluntary adoption registry as defined in ORS 109.425 for the purpose of facilitating the identification of persons registering under the provisions of ORS 109.425 and 109.435 to 109.507. [Amended by 1957 c.193 §1; 1983 c.672 §18; 1995 c.79 §221; 1995 c.730 §11; 1997 c.783 §39; 1999 c.254 §3]
432.425 [Amended by 1955 c.680 §1; repealed by 1983 c.709 §45]
432.430 Duty to report on child of unknown parentage; rules. (1) A person who assumes the custody of a child of unknown parentage shall report on a form and in a manner prescribed by the State Registrar of the Center for Health Statistics, within five days of assuming custody, to the state registrar the following information:
(a) The date and the city or county, or both, where the child was found.
(b) Sex and approximate birth date of child.
(c) Name and address of the person or institution with whom the child has been placed for care.
(d) Name given to the child by the custodian of the child.
(e) Other data required by the state registrar.
(2) The place where the child was found shall be entered as the place of birth.
(3) The report registered under this section shall constitute the certificate of birth for the child.
(4) If the child is identified and a certificate of birth is found or obtained, the report registered under this section shall be placed in a sealed file and shall not be subject to inspection except upon order of a court of competent jurisdiction or as provided by rule of the state registrar. [Amended by 1983 c.709 §7; 1997 c.783 §40]
CANCER AND TUMOR REGISTRY SYSTEM
432.500 Definitions. As used in ORS 432.510 to 432.550 and 432.900:
(1) “Clinical laboratory” means a facility where microbiological, serological, chemical, hematological, immunohematological, immunological, toxicological, cytogenetical, exfoliative cytological, histological, pathological or other examinations are performed on material derived from the human body, for the purpose of diagnosis, prevention of disease or treatment of patients by physicians, dentists and other persons who are authorized by license to diagnose or treat humans.
(2) “Department” means the Department of Human Services or its authorized representative.
(3) “Health care facility” means a hospital, as defined in ORS 442.015 (19), or an ambulatory surgical center, as defined in ORS 442.015.
(4) “Practitioner” means any person whose professional license allows the person to diagnose or treat cancer in patients. [1995 c.585 §1; 2001 c.104 §154; 2003 c.14 §243; 2003 c.269 §1]
Note: 432.500 to 432.570 and 432.900 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 432 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.
432.510 Cancer and tumor registry system; purpose; rulemaking; duties of Department of Human Services. (1) The Department of Human Services shall establish a uniform, statewide, population-based registry system for the collection of information determining the incidence of cancer and benign tumors of the brain and central nervous system and related data. The purpose of the registry shall be to provide information to design, target, monitor, facilitate and evaluate efforts to determine the causes or sources of cancer and benign tumors among the residents of Oregon and to reduce the burden of cancer and benign tumors in Oregon. Such efforts may include but are not limited to:
(a) Targeting populations in need of cancer screening services or evaluating screening or other cancer control services;
(b) Supporting the operation of hospital registries in monitoring and upgrading the care and the end results of treatment for cancer and benign tumors;
(c) Investigating suspected clusters or excesses of cancer and benign tumors both in occupational settings and in the state’s environment generally;
(d) Conducting studies to identify cancer hazards to the public health and cancer hazard remedies; and
(e) Projecting the benefits or costs of alternative policies regarding the prevention or treatment of cancer and benign tumors.
(2) The department shall adopt rules necessary to carry out the purposes of ORS 432.510 to 432.550 and 432.900, including but not limited to designating which types of cancer and benign tumors of the brain and central nervous system are reportable to the statewide registry, the data to be reported, the data reporting standards and format and the effective date after which reporting by health care facilities, clinical laboratories and practitioners shall be required. When adopting rules under this subsection, the department shall, to the greatest extent practicable, conform the rules to the standards and procedures established by the American College of Surgeons Commission on Cancer, with the goal of achieving uniformity in the collection and reporting of data.
(3) The department shall:
(a) Conduct a program of epidemiologic analyses of registry data collected under subsection (1) of this section to assess control, prevention, treatment and causation of cancer and benign tumors in Oregon; and
(b) Utilize the data to promote, facilitate and evaluate programs designed to reduce the burden of cancer and benign tumors among the residents of Oregon.
(4) The department shall:
(a) Collaborate in studies of cancer and benign tumors with clinicians and epidemiologists and publish reports on the results of such studies; and
(b) Cooperate with the National Institutes of Health and the Centers for Disease Control in providing incidence data for cancer and benign tumors.
(5) The department shall establish a training program for the personnel of participating health care facilities and a quality control program for data for cancer and benign tumors reported to the state registry. [1995 c.585 §2; 2003 c.269 §2]
Note: See note under 432.500.
432.520 Reporting requirement; review of records; special studies. (1) Except as provided in subsection (2) of this section, any health care facility in which patients are diagnosed or provided treatment for cancer or benign tumors of the brain and central nervous system shall report each case of cancer or benign tumors of the brain and central nervous system to the Department of Human Services within a time period and in a format prescribed by the department. The department shall provide, at cost, reporting services to any health care facility at the option of the health care facility. Health care facilities may also purchase reporting services from another facility or commercial vendor. If a health care facility is unable to report in conformance with the format and standards prescribed by the department, the department may, after consultation with the health care facility, elect to activate its reporting service for the facility. When activated, the department may enter the facility, obtain the information and report it in conformance with the appropriate format and standards. In these instances, the facility shall reimburse the department or its authorized representative for the cost of obtaining and reporting the information.
(2) Upon application to the department by a health care facility, the department shall grant to the health care facility an extension of time in which to meet the reporting requirements of this section. In no event shall the extension of time exceed two years from the date of application.
(3) Any practitioner diagnosing or providing treatment to patients with cancer or benign tumors of the brain and central nervous system shall report each case to the department or its authorized representative within a time period and in a format prescribed by the department. Those cases diagnosed or treated at an Oregon health care facility or previously admitted to an Oregon health care facility for diagnosis or treatment of that instance of cancer or benign tumors of the brain and central nervous system shall be considered by the department to have been reported by the health care practitioner.
(4) Any clinical laboratory diagnosing cases of cancer or benign tumors of the brain and central nervous system shall report each case to the department or its authorized representative within a time period and in a format prescribed by the department.
(5) For the purpose of assuring the accuracy and completeness of reported data, the department shall have the right to periodically review all records that would:
(a) Identify cases of cancer and benign tumors, the treatment of the cancer or benign tumors or the medical status of any patient identified as being treated for cancer or benign tumors; or
(b) Establish characteristics of the cancer or benign tumors.
(6) The department may conduct special studies of cancer morbidity and mortality. As part of such studies, registry personnel may obtain additional information that applies to a patient’s cancer or benign tumors and that may be in the medical record of the patient. The record holder may either provide the requested information to the registry personnel or provide the registry personnel access to the relevant portions of the patient’s medical record. Neither the department nor the record holder shall bill the other for the cost of providing or obtaining this information. [1995 c.585 §3; 2003 c.269 §3]
Note: See note under 432.500.
432.530 Confidentiality of information. (1) All identifying information regarding individual patients, health care facilities and practitioners reported pursuant to ORS 432.520 shall be confidential and privileged. Except as required in connection with the administration or enforcement of public health laws or rules, no public health official, employee or agent shall be examined in an administrative or judicial proceeding as to the existence or contents of data collected under the registry system for cancer and benign tumors of the brain and central nervous system.
(2) All additional information reported in connection with a special study shall be confidential and privileged and shall be used solely for the purposes of the study, as provided by ORS 432.060. Nothing in this section shall prevent the Department of Human Services from publishing statistical compilations relating to morbidity and mortality studies that do not identify individual cases or prevent use of this data by third parties to conduct research as provided by ORS 432.540 (1). [1995 c.585 §5; 2003 c.269 §4]
Note: See note under 432.500.
432.540 Use of confidential data; rules. (1) The Department of Human Services shall adopt rules under which confidential data may be used by third parties to conduct research and studies for the public good. Research and studies conducted using confidential data from the statewide registry must be reviewed and approved by the Committee for the Protection of Human Research Subjects established in accordance with 45 C.F.R. 46.
(2) The department may enter into agreements to exchange information with other registries for cancer and benign tumors of the brain and central nervous system in order to obtain complete reports of Oregon residents diagnosed or treated in other states and to provide information to other states regarding the residents of other states diagnosed or treated in Oregon. Prior to providing information to any other registry, the department shall ensure that the recipient registry has comparable confidentiality protections. [1995 c.585 §6; 2003 c.269 §6]
Note: See note under 432.500.
432.550 Action for damages; license; disciplinary action prohibited for good faith participation in reporting of data. (1) No action for damages arising from the disclosure of confidential or privileged information may be maintained against any person, or the employer or employee of any person, who participates in good faith in the reporting of registry data for cancer or benign tumors of the brain and central nervous system or data for cancer morbidity or mortality studies in accordance with ORS 432.510 to 432.540 and 432.900.
(2) No license of a health care facility or practitioner may be denied, suspended or revoked for the good faith disclosure of confidential or privileged information in the reporting of registry data for cancer or benign tumors of the brain and central nervous system or data for cancer morbidity or mortality studies in accordance with ORS 432.510 to 432.540 and 432.900.
(3) Nothing in this section shall be construed to apply to the unauthorized disclosure of confidential or privileged information when such disclosure is due to gross negligence or willful misconduct. [1995 c.585 §7; 2003 c.269 §5]
Note: See note under 432.500.
432.560 [1995 c.585 §8; repealed by 2001 c.900 §261]
432.570 No requirement or prohibition regarding operation of separate cancer and tumor registry. Nothing in ORS 432.510 to 432.550 and 432.900 shall prohibit a health care facility from operating its own registry for cancer and benign tumors of the brain and central nervous system or require a health care facility to operate its own registry for cancer and benign tumors. [1995 c.585 §9; 2003 c.269 §7]
Note: See note under 432.500.
PENALTIES
432.900 Civil penalty. (1) In addition to any other liability or penalty provided by law, the Director of Human Services may impose a civil penalty on any person for willful failure to comply with any part of ORS 432.520. A civil penalty may be imposed against a health care facility for each day compliance is refused. The penalty shall be $50 per day for the first 30 days and $500 per day thereafter. A civil penalty of $50 may be imposed against a practitioner for each day compliance is refused.
(2) Any fines collected pursuant to subsection (1) of this section shall be paid into the State Treasury and deposited in the General Fund.
(3) Civil penalties described in subsection (1) of this section shall be imposed in the manner provided in ORS 183.745. [1995 c.585 §4]
Note: See note under 432.500.
432.990 [Amended by 1963 c.200 §5; 1971 c.743 §369; repealed by 1997 c.783 §48]
432.993 Unlawful use of vital record or vital report; criminal penalty. (1) A person commits the crime of unlawful use of a vital record or vital report if the person willfully and knowingly:
(a) Makes any false statement in a certificate, record or report required by this chapter or in an application for an amendment thereof, or in an application for a certified copy of a vital record or vital report, or supplies false information intending that the information be used in the preparation of any certificate, record or report, or amendment thereto;
(b) Without lawful authority and with intent to deceive, makes, counterfeits, alters, amends or mutilates any certificate, record or report required by this chapter or a certified copy of a certificate, record or report;
(c) Obtains, possesses, uses, sells, furnishes or attempts to obtain, possess, use, sell or furnish to another, for any purpose of deception, any certificate, record or report required by this chapter or certified copy thereof so made, counterfeited, altered, amended or mutilated, or that is false in whole or in part or that relates to the birth of another person, whether living or deceased;
(d) Without lawful authority, possesses any certificate, record or report required by this chapter or a copy or certified copy of a certificate, record or report that has been stolen or otherwise unlawfully obtained; or
(e) As an employee of the Center for Health Statistics or of any office established pursuant to ORS 432.035, furnishes or processes a certificate of birth, knowing that the certificate or copy is to be used for the purposes of deception.
(2) Unlawful use of a vital record or vital report is a Class C felony. [1997 c.783 §42]
432.995 Obstructing the keeping of vital records or vital reports; criminal penalty. (1) A person commits the crime of obstructing the keeping of vital records or vital reports if the person knowingly and willfully:
(a) Refuses to provide information required by this chapter or rules adopted thereunder;
(b) Transports or accepts for transportation, interment or other disposition a dead body without an accompanying permit as provided in this chapter; or
(c) Fails to perform in a timely manner any of the provisions of this chapter.
(2) The provisions of subsection (1)(c) of this section do not apply to the officers or employees of the courts of this state acting in an official capacity.
(3) Obstructing the keeping of vital records or vital reports is a Class A misdemeanor. [1997 c.783 §43]
