Allied Structural v. CCB

“Except as provided in subsections (4) and (5) of this section, any person who violates any provision of this chapter or any rule adopted by the Construction Contractors Board shall  forfeit  and  pay  into  the  General  Fund  of  the  State Treasury a civil penalty in an amount determined by the board of not more than $5,000 for each offense.” ORS 701.992(1).

Koontz sought a contractor’s license for Allied Structural and was subsequently licensed but failed to notify the CCB of his work near areas frequented by children, as required by ORS 701.102(2)(d). Because Koontz was a convicted sex offender, CCB determined that Koontz was unfit for licensure, subsequently revoking his license and imposing a $5000 penalty. Koontz appealed the CCB’s order and argued that the revocation should be reversed and that the penalty imposed by CCB was improper. “Except as provided in subsections (4) and (5) of this section, any person who violates any provision of this chapter or any rule adopted by the Construction Contractors Board shall  forfeit  and  pay  into  the  General  Fund  of  the  State Treasury a civil penalty in an amount determined by the board of not more than $5,000 for each offense.” ORS 701.992(1). The Court agreed that Koontz was unfit for licensure, however, the Court held that CCB did not have statutory authority to impose a civil penalty based on a determination that a licensee is unfit because of their qualifying criminal convictions listed in ORS 701.098(1)(i). The Court reasoned that a penalty inquiry asks “did the person violate a statute or rule and, if so, should they be monetarily penalized.” Said inquiry did not apply here because criminal convictions do not require a finding of unfitness, CCB determined Koontz was unfit because he failed to provide criminal conviction information to CCB. Civil penalty set aside; otherwise affirmed.