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City of Corvallis v. Phi

Court of Appeals of Oregon

August 15, 2018

CITY OF CORVALLIS, Plaintiff-Appellant,
v.
PI KAPPA PHI, Defendant-Respondent.

          Argued and submitted January 9, 2017

          Benton County Circuit Court 15CR05381; Locke A. Williams, Judge.

          David E. Coulombe argued the cause for appellant. With him on the briefs was Fewel, Brewer & Coulombe.

          Jessica E. May argued the cause for respondent. With her on the brief was Arnold Law.

          Before DeHoog, Presiding Judge, and Hadlock, Judge, and Aoyagi, Judge. [*]

         Case Summary:

         Plaintiff City of Corvallis appeals a trial court order affirming a municipal court order declaring plaintiff's “hosting” ordinance unconstitutional. Plaintiff challenges the trial court's determination that state law preempts the ordinance. Held: The trial court did not err because state law preempts the ordinance. Plaintiff's hosting ordinance creates a strict liability crime that punishes property owners for conduct committed by others on the property. That conflicts with the legislature's deliberate choice not to punish property owners in those circumstances under ORS 471.410(3).

         Affirmed.

          [293 Or.App. 320] HADLOCK, J.

         Plaintiff City of Corvallis appeals a trial court order affirming a municipal court order allowing defendant's demurrer and declaring plaintiff's "hosting" ordinance unconstitutional. Plaintiff assigns error to the trial court's determination that state law preempts the local ordinance. We affirm.

         Because this case comes to us on a demurrer, we need not recite the facts in detail. State v. Illig-Renn, 341 Or. 228, 230 n 2, 142 P.3d 62 (2006). Plaintiff cited defendant for violating, along with another ordinance, Corvallis Municipal Code (CMC) 5.03.040.010.10(1), which provides that "[n]o person shall permit, allow or host a juvenile party at his or her place of residence or premises under the person's control while alcoholic liquor is consumed or possessed by any minor." CMC 5.03.040.010.01(3) defines "juvenile party" as "[a] social gathering attended by one or more persons under the age of twenty-one (21)." The ordinance states expressly that violation of its terms "is intended to be a strict liability crime," that "proof of a mental state" is not required, and that violation of the ordinance is a Class A misdemeanor. CMC 5.03.040.010.10(3) and (4).

         Defendant demurred, arguing, in part, that CMC 5.03.040.010.10 is unconstitutional because ORS 471.410(3), part of the Oregon Liquor Control Act, preempts it. That statutory provision, which we discuss in more detail later, generally prohibits a person who is present and in control of private property from knowingly allowing a minor who is not the person's own child or ward to consume alcoholic liquor on the property. The first time that a person violates ORS 471.410(3), that person has committed a Class A violation; each subsequent violation "is a specific fine violation" with a presumptive fine of $1, 000. ORS 471.410(10).

         The municipal court allowed defendant's demurrer and declared the ordinance invalid. Plaintiff appealed to the circuit court, arguing that the ordinance is a valid exercise of its home rule authority not preempted by state law. The trial court affirmed the municipal court's order. On appeal, plaintiff assigns error to the trial court's order. We review [293 Or.App. 321] the trial court's ruling for errors of law. State v. Walsh, 288 Or.App. 331, 332, 406 P.3d 152 (2017).

         Oregon grants municipalities home rule authority in Article XI, section 2, of the Oregon Constitution.[1] A party's argument that a city exceeded its home rule authority by enacting an ordinance can implicate two questions: first, whether the ordinance is authorized by the city's charter or a state statute and second, if so, "whether [the ordinance] contravenes state or federal law." City of La Grande v. PERB, 281 Or. 137, 142, 576 P.2d 1204, affd on reh'g, 284 Or. 173, 586 P.2d 765 (1978). In this case, the parties focus on the second question. Defendant contends that plaintiff's ordinance contravenes, or conflicts with, state law; plaintiff contends that it does not.

         The test for whether state law conflicts with a local ordinance is "whether the local rule in truth is incompatible with the legislative policy, either because both cannot operate concurrently or because the legislature meant its law to be exclusive." Id. at 148. "In the area of civil or administrative ordinances regulating local conditions, it is reasonable to assume that the legislature did not mean to displace local ordinances, unless that intention is apparent." City of Portland v. Dollarhide, 300 Or. 490, 501, 714 P.2d 220 (1986). But Oregon courts apply a different test for ordinances that purport to create crimes. Recognizing that Article XI, section 2, subjects home rule provisions to "the Constitution and criminal laws of the State of Oregon," the Dollarhide court was "left * * * with the inescapable conclusion that the voters who adopted Article XI, section 2 [, ] envisioned a stricter limitation on the lawmaking power of cities in respect of criminal laws than with regard to civil or regulatory measures" and reversed the assumption that the legislature did not intend to displace local ordinances unless the intent is apparent. Id. at 497, 501 ("The analysis of compatibility begins * * * with the assumption that state [293 Or.App. 322] criminal law displaces conflicting local ordinances which prohibit and punish the same conduct, absent an apparent legislative intent to the contrary." (Emphasis in original.)).

         We begin our analysis by considering which of the Dollarhide tests-the civil/regulatory or the criminal- applies in this context. Plaintiff argues that the civil/ regulatory analysis applies, as ORS 471.410(3) is not a criminal law, both because it falls outside of the criminal code and because the Liquor Control Act's primary purpose is regulatory. Defendant counters that ORS 471.410(3) creates a crime, as evidenced by the criminal nature of subsections (1) and (2) of the same statute, [2] the fact that the state is a party, and that ORS 131.005(6) includes violations in its definition of "criminal action."

         The parties' arguments, focused as they are on the statutory provision, overlook part of the analysis. To determine whether the regulatory or the criminal analysis applies, we must consider both the nature of the statutory provision and the nature of the ordinance that the statute arguably preempts. After all, if the voters intended to strictly limit the ability of municipalities to adopt criminal ordinances even in contexts in which the state legislature also believed that criminalizing certain types of conduct was appropriate, the voters must also have intended to strictly limit municipalities' authority to criminalize behavior that the state legislature has specifically decided not to criminalize. That is, a criminal municipal ordinance can conflict with "the criminal laws of the State of Oregon" for purposes of Article XI, section 2, if it criminalizes behavior that the legislature has chosen should not be subject to criminal sanction, whether that legislative choice is itself reflected in a criminal statute or in a different statutory provision. Cf. City of Portland v. Jackson, 316 Or. 143, 149, 850 P.2d 1093 (1993) ("When a local criminal ordinance prohibits conduct, unless the legislature [293 Or.App. 323] has permitted that same conduct, either expressly or under circumstances in which the legislative intent to permit that conduct is otherwise apparent, the ordinance is not in conflict with state criminal law * * *."); State v. Tyler, 168 Or.App. 600, 604, 7 P.3d 624 (2000) ("the test for whether a state law preempts a local civil or criminal ordinance is whether the local rule is incompatible with the legislative policy"; "because of the constitutional provision the assumption is that the legislature did intend to displace a criminal ordinance" (emphasis in original)).[3] Accordingly, we look to both the city ordinance and the state statute to determine which of the Dollarhide tests to apply

         Although ORS 471.410(3) defines a noncriminal violation, it is part of a statute that creates misdemeanor crimes. ORS 471.410(1), (2). Thus, although subsection (3) itself does not create a crime, it is part of a statute that reflects the legislature's intention to criminalize certain conduct and to not criminalize other conduct. Moreover, plaintiff's ordinance expressly provides that a violation of its terms constitutes a Class A misdemeanor, with each conviction carrying a mandatory sentence that, upon a third conviction, includes imprisonment.[4] CMC 5.03.040.010.10(4). Consequently, we apply the criminal law analysis. Cf. Dollarhide, 300 Or. at 503 ("As long as a city ordinance employs civil or administrative procedures and sanctions lacking punitive significance, * * * the validity of the ordinance must meet only the [civil regulatory test] rather than the more stringent constraints [293 Or.App. 324] of the phrase in Article XI, section 2, that expresses the dominance of state criminal laws over the creation and punishment of local criminal offenses.").

         An ordinance that criminalizes conduct conflicts with a state statute if it "either prohibits conduct that the statute permits [] or permits conduct that the statute prohibits." State v. Krueger, 208 Or.App. 166, 169, 144 P.3d 1007 (2006). Defendant contends that the ordinance prohibits conduct that ORS 471.410 permits. To determine whether that is so, we examine both the ordinance and the statute with which it is claimed to conflict. Jackson, 316 Or. at 151. Next, "we determine what conduct the ordinance prohibits." Id. Finally, we determine whether the statute permits that conduct. Id. A statute permits conduct if the legislature (1) expressly precludes local legislation on a subject ("occupies the field"), (2) expressly permits specified conduct, or (3) "otherwise manifest[s] its intent to permit specified conduct." Id. at 147-48 (emphasis in original). If the statute permits conduct that the ordinance prohibits, the laws conflict and the statute displaces the ordinance. Id. at 151.

         We begin by examining the ordinance and the statute. Defendant was charged with hosting a party for minors in violation of CMC 5.03.040.010.10(1), which, as set out above, provides that "[n]o person shall permit, allow or host a juvenile party at his or her place of residence or premises under the person's control while alcoholic liquor is consumed or possessed by any minor." CMC 5.03.040.010.01(3) defines "juvenile party" as "[a] social gathering attended by one or more persons under the age of twenty-one (21)." CMC 5.03.040.010.10(2) provides an affirmative defense in the event that "the alcoholic liquor is provided by the minor's parent or guardian ***." The ordinance does not include any mental state requirement; rather, it expressly creates a "strict liability" crime. CMC 5.03.040.010.10(3). Thus, the ordinance prohibits a person from permitting, allowing, or hosting a social gathering attended by one or more persons under 21 years of age at the person's "place of residence or premises under the person's control while alcoholic liquor is consumed or possessed by any minor," regardless of whether the person does so knowingly or with any other culpable [293 Or.App. 325] mental state, unless the alcohol is provided by the minor's parent or guardian.

         As noted, defendant argues that the ordinance conflicts with ORS 471.410(3) of Oregon's Liquor ...


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