Updated: Dec 29, 2022
Some Oregon lawyers and consumers are cynically misusing the Oregon Home Solicitation Sales Act ORS 83.710 - 83.750 (OHSSA) to avoid paying contractors, arguing that all contractors are home solicitors required to provide statutory notices...and if the contractor does not provide the notice, the consumer is entitled to enjoy the benefits of all of the contractors work and materials provided and a refund of any down payment.
The Oregon Home Solicitation Sales Act was implemented in 1971 to provide a state corollary to the federal Home Solicitation Rule, now 16 CFR 429. In 2005, the legislature amended the OHSSA, specifically to address conflicting provisions between the federal rule and the OHSSA. Then Assistant Attorney General Robert Roth provided a Memorandum and testimony to the Senate Subcommittee reviewing the proposed changes legislation. Audio Recording and Exhibit, Senate Business and Economic Development Committee, SB 214, March 31, 2005 (Statement of Robert Roth). In his written materials and in his oral testimony during the 2005 work sessions, Roth clarified that the scope and purpose of the statute and the proposed amendments were squarely aimed at door-to-door and telephonic solicitations, sales that may take place in a hotel from out of state actors who hard sale consumers who then suffer buyer’s remorse. The colloquy in the work session identifies a concern that these out of state business were harming Oregon businesses, and consumers, by these oppressive sales tactics.
Oregon’s Home Solicitation Sales Act, currently provides consumers the right to cancel contracts in limited and defined transactions in which a Seller “solicits” a buyer. In response to buyer’s remorse experienced by door-to-door solicitations, and telephone solicitations, Oregon’s statute at ORS 83.720(1) provides consumers a three-day “cooling off period” which is triggered by two
1. The Buyer signs a contract with the Seller that complies with the Act
2. The Buyer makes a payment by cash or check.
Some consumers and their attorneys are hitting back with counterclaims when contractors seeks payment for their services.
In response to a routine bill for services he admittedly requested from a local electrician, one homeowner claimed that he had an unlimited and perpetual right to cancel multiple contracts for electrical services in his home and demanded his money back, and that he was entitled to all the electrical work done on his home for free because the contractor did not provide him an OHSSA 3-day notice of a right to cancel that complied with ORS 83.710 to 83.750.
But in this case, the homeowner had solicited the electrician directly. The electrician was not a door-to-door salesman, and was called to the home by the consumer after the consumer sought a referral from his gardener. Nonetheless, the homeowner's lawyer attempted to turn the electrician into the "solicitor," who was merely responding to a phonr call from a customer.
The legislative intent of the OHSSA is clearly to protect consumers, not to give consumers a windfall solely because they did not receive a written agreement and notice provision “that complies with the act” when the statute itself provides an alternative mechanism, payment by check, that starts the three day cooling off period.
Lawyers and consumers should not use this consumer protection statute to avoid paying their bills.
CR Electrical LLC v. Patrick Landers. Clackamas County Court Case No. 22CV07503
Arbitrator Laurie Zwingli's Decision that OHSSA does not apply in this case where Patrick Landers called an electrician and made multiple oral contracts over several months to secure electrical work on his home. The arbitrator awarded the contractor, CR Electrical, a judgment for the amounts Patrick Landers refused to pay. The arbitrator also ruled that Landers, whose own lawyer early in the case acknowledged that the legislature never intended for the OHSSA be use this way, had to pay all of the electrician's attorney fees.