specially concurring.
Although the majority reaches the correct result, it does so on broader grounds than necessary. Accordingly, I concur in the majority’s result but not its analysis.
Both the majority and the dissent incorrectly conclude that ORS 671.625 is unambiguous. Subsection (3) provides only that “contracts” not in substantial compliance with the statute may not be enforced, while subsections (1) and (2) use the term “contracts and billings.” Absence of the word “billings” in subsection (3) might indicate that the legislature intended “billings,” but not unwritten “contracts,” to be enforceable. See OAR 808-20-010 (minimum standards for written contracts); OAR 808-20-020 (minimum standards for billings). Moreover, subsection (3) simply does not specify whether a theory of quasi-contract is permissible. Because the statute is ambiguous, we look to legislative history and to the legislature’s intention in enacting the statute to resolve the ambiguity. ORS 174.020; State v. Parker, 299 Or 534, 540, 704 P2d 1144 (1985).
As introduced, section ll1 of 1979 Senate Bill 3 provided:
“A contract that does not comply with this section may be disregarded by any party to the contract other than the landscape contractor.”
Senator Kulongoski noted that section 11 provided for “nonpayment” in the event that an unwritten contract was used. Tape recording 13, Senate Committee on Agriculture and Natural Resources, April 2, 1979, Side 1 at 1287-end. He emphasized that the provision was meant to penalize severely landscapers who did not use written contracts.2 On April 2, 1979, the Agriculture Committee amended section 11. As amended, it contained the same wording as ORS 671.625(3) does now. The legislative history shows that the sole reason *418for the change was to make sure that the legislature’s intention, “nonpayment” of unwritten contracts, would be enforceable.3
The legislature’s goal, punishment in the form of “nonpayment” for the use of unwritten contracts, is carried out only if we construe ORS 671.625(3) to prohibit quantum meruit recovery. That is true because, in many cases, the recovery in quantum meruit (reasonable value of goods and services delivered) and recovery on the contract (contract price) would be the same, and because quantum meruit would be an available theory in nearly every case.4 The legislature did not intend the penalty for failure to use a written contract to be nothing.
However, in this case we need decide only whether the statute permits quantum meruit recovery. Thus, I expressly disavow the majority’s unnecessary conclusion that “a claim for compensation for any landscaping work performed by plaintiffs pursuant to an oral agreement therefore cannot be the subject of litigation.” 93 Or App at 416, 762 P2d 1037 (1988). Compare ORS 701.065(1) (unregistered builder may not “bring or maintain in any court of this state a suit or action for the performance of any work on a residential structure or for the breach of any contract”). We need not, and should not, decide whether any action other than quantum meruit is barred by ORS 671.625(3).
Warden and Newman, JJ., join in this specially concurring opinion.Section 11 was later renumbered and adopted as section 13.
At one point, Kulongoski commented that the message behind section 11 was that “if [landscapers] don’t use written contracts [they] don’t stay in business.” Tape recording 13, Senate Committee on Agriculture and Natural Resources, April 2,1979, Side 1 at 1287-end.
The bill was amended because an assistant attorney general informed the administrator of the Landscape Advisory Board that the original provision could not be enforced in court. The basis for that opinion is not in the legislative record.
The majority’s interpretation also serves to prevent landscapers from engaging in all types of overreaching, in the absence of a written contract. The dissent’s interpretation prevents only price overreaching.