Marsh v. Builders Board , 54 Or. App. 242 ( 1981 )

GILLETTE, J.

Petitioner seeks review of an order of the Builders Board (Board) requiring that he pay $1,196.47 to Sunburst Building Products (Sunburst), for whom petitioner had installed aluminum siding. Petitioner contends that the Board had no jurisdiction to issue the order because he was not served with notice of the proceedings which resulted in the order. We agree and reverse the Board’s order.

The facts are not in dispute. Petitioner did work for Sunburst from approximately December 21, 1979, through January 18, 1980. Sunburst filed the present claim for improper work with the Board on August 5, 1980. An investigator inspected the work for the Board on October 7, 1980, and noted that petitioner had moved and was working in Las Vegas, Nevada.

A hearing was scheduled for October 13, and notice was sent by certified mail to the last address which the Board had on file for petitioner. The notice was returned to the Board undelivered. The hearing was rescheduled to November 18 at Sunburst’s request; notice was again sent by certified mail to the same address and again returned, marked "Moved, left no address.” The hearing was held; petitioner did not appear. On December 22, the Board issued a final order requiring that petitioner pay Sunburst the cost of correcting the work he had done. This order was also mailed to petitioner’s last known Oregon address and was also returned.

Petitioner was registered with the Board from June 15, 1979, to June 15, 1980, pursuant to ORS 701.055(1):

"A person shall not do or submit a bid to do work as a builder unless he has a certificate of registration issued by the board. * * *”

In order to register, a builder must submit an application that contains, among other things, the builder’s address. ORS 701.075. The certificate of registration issued by the Board is valid for one year from the date of issuance and may be renewed by the same process as for an original application. ORS 701.115. Pursuant to ORS 701.080 provides that:

"It shall be the duty of a builder to notify the board of any change of address under subsection (7) of ORS 701.075. Any communication directed by the board to the last-known address of record shall be considered delivered when deposited in the United States mail and sent registered or certified or post office receipt secured.”

The claim against petitioner is a contested case under the Administrative Procedure Act, ORS ch 183, and notice is required pursuant to ORS 183.415:

"(1) In a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice, served personally or by registered or certified mail.”

The question presented here is whether the mailing of notice by the Board to his last known address is "reasonable notice” under ORS 183.415, when petitioner was no longer registered with the Board and did not in fact receive notice of the proceedings. We hold that it is not.

The Board points out that this is the same type of provision for notice that was upheld in State v. Buen, 13 Or App 426, 509 P2d 865, rev den (1973), in which notice of suspension of a driver’s license under ORS 482.570 was challenged. Petitioner responds that, once his registration had expired, he no longer had a duty to notify the Board of a change of address and, therefore, notice provided pursuant to ORS 701.080 is no longer "reasonable” under ORS 183.415.

It seems clear that the duty established in the first sentence of ORS 701.080 can be imposed only upon builders who are registered with the Board. However, the duty does not extend indefinitely after a person or entity has once registered. It is also apparent that the duty established by the first sentence of the statute is the basis for the presumption created by the second sentence of that section, 1. e., it is the requirement that a builder notify the Board of any change of address which makes it reasonable to presume that notice sent to that address is sufficient.

In this case petitioner’s obligation to notify the Board of a change of address terminated when his certificate of registration with the Board expired on June 15, 1980.¹ After that time it is no longer "reasonable” merely to send notice to the last address on file with the Board unless petitioner actually received such notice. In this case he did not.

Reversed.

1 We are not now presented with the question of whether the Board could require that builders who once register notify the Board of a change of address for a certain period after expiration of certification so that they may be reached within a reasonable time after completing work they have undertaken as registered builders.