Premises owners should be aware that at least one automated external defibrillator (“AED”) may be required in their buildings. On January 1, 2010, Senate Bill (S.B.) 556, codified as ORS 431.690, took effect, requiring certain building owners to place at least one automated external defibrillator (“AED”) on their “premises.” The requirement applies to “places of public assembly” which are defined as “facilities” that have at least “50,000 square feet” of “floor space” and where: (1) the “public congregates for purposes such as deliberation, shopping, entertainment, amusement or awaiting transportation;” or “business activities are conducted;” and (2) at least 25 people “congregate” there on a “normal business day.” S.B. 556 (1)(a)-(b).
In 2011, S.B. 1033 amended ORS 431.690 to require the placement of at least one AED in public and private schools and health clubs as well.
In other words, businesses and facilities with over 50,000 square feet of floor space must have a defibrillator on their premises if at least 25 people “congregate” there on a normal day. A copy of the statute requiring AEDs is found at http://www.oregonlaws.org/ors/431.690
It is safe to assume that most product manufacturing facilities comprise 50,000 or more square feet. However, despite the fact that this law has been in effect for more than three years, many Oregon businesses affected by the law are not compliant.
The AED law does not provide a definition for the word “congregate,” nor does it specify whether 25 people must be present at one time or can come and go over the course of an entire business day. When Oregon courts interpret ambiguous language, they focus primarily on the text and context of the statute and secondarily on legislative history. State v. Gaines, 346 Or. 160, 172, 206 P.3d 1042 (2009). When analyzing the text of a statute, it is useful to consider the dictionary definition of any ambiguous words. The dictionary definition of “congregate” is “to come together; to assemble; to meet,” or “to collect into a group, crowd, or assembly.” Black’s Law Dictionary 301 (6th ed., West 1990), Merriam Webster’s Collegiate Dictionary 243 (10th ed., Merriam-Webster, Inc. 1997)
Given the dictionary definitions, one could reasonably argue that the new law applies only to businesses that have at least 25 people present at some point during the day (i.e. “assembled” or “together” at one time). However, the legislative history of the bill may suggest a different interpretation. S.B. 556 originally had no 25-person requirement, and therefore would have applied to all businesses with floor space exceeding 50,000 square feet. This specification requiring at least 25 people to congregate was added by way of an amendment suggested during a work session of the Health Care and Veterans’ Affairs Committee (held on April 4, 2009). At that meeting, Senator Wayne Morse expressed concern that the bill would require industrial warehouses with very few employees to install AEDs. One of the bill’s sponsors, Senator Jeff Kruse, agreed and said that they intended the bill to apply to “big department stores,” shopping centers, “office buildings” and the like, but not sparsely populated warehouses. Relying on this legislative history, it is more likely that the 25 person requirement was not intended to exempt stores that have more than 25 visitors during a day even if they are not all present at the same time.
For a business such as a large brick and mortar retailer, there are two threshold questions that determine whether ORS 431.690 (S.B. 556 applies). First, does the store or other business have over 50,000 square feet of floor space? And, second, do at least 25 people congregate at the business on a typical business day? If the answer to both questions is yes, the business is subject to the AED requirement. If a minimum of 25 people did not congregate during a typical business day, then there is a good argument that the business would be exempt from the law.
Note that the statute places no limitations on the reason the 25 people have congregated in one place. The statute provides a nonexclusive list of some of the reasons people have for gathering in these places – “deliberation, shopping, entertainment, amusement or awaiting transportation.” In the context of a “big box” retailer, for example, the 25 people would likely consist of any person present in the store including, but not limited to, all employees, shoppers, repair or maintenance contractors, or anyone else visiting the store.
Although this insight into the legislative history may be interesting, businesses should not get lost in debating the letter of the statute or meaning of what “congregate” signifies. If the business believes it might in any way meet the parameters of the statutory requirements, they should simply install an AED.
The law does not specify where the AED should be located or contain any provisions regarding access. The law merely specifies that the AED shall be “on the premises.” Based on the absence of any specification, it does not appear that the AED necessarily need be available to any member of the public in the establishment at the time the AED is needed.
Part of S.B. 556 (now codified at ORS 30.802) Provides Protection From Liability For Those Who Comply With The AED Requirement
A provision of S.B. 556, now codified at ORS 30.802, provides a fairly broad immunity provision for those locations which comply with the statutory requirement and maintain an AED on premises, so long as the business is in compliance with the particulars of the immunity provision such as making sure there are employees trained in the use of the AED. A copy of the statute providing liability protection is found at http://www.oregonlaws.org/ors/30.802
The cost of AEDs has dropped precipitously with increased competition and more efficient mass production. The benefits of compliance with the Oregon statute, including immunity from suit, vastly outweigh the risks of non-compliance. Moreover, there is conclusive evidence that AEDs save lives. If you have questions, please contact our office.
Olson Brooksby often represents national retailers with large brick and mortar locations.