428 P.3d 905
Or. Ct. App.2018Background
- Corvallis passed a municipal "hosting" ordinance (CMC 5.03.040.010.10) making it a Class A misdemeanor, strict liability, to permit/host a "juvenile party" (one or more under 21) where alcohol is consumed or possessed, with a narrow parental/guardian defense.
- Defendant was cited under that ordinance; he demurred arguing state law preempts the ordinance (ORS 471.410(3) of the Oregon Liquor Control Act).
- ORS 471.410(3) prohibits a person who "exercises control over private real property" from knowingly allowing a non-child/ward under 21 to consume alcohol on the property; it includes a knowing mens rea and applies only to controllers present and in control at the time.
- Municipal court sustained the demurrer and declared the ordinance invalid; the circuit court affirmed; City of Corvallis appealed to the Court of Appeals.
- The central legal question: whether the state statute preempts the city criminal ordinance under Article XI, §2 (home rule) because the city criminalized conduct that the legislature chose to criminalize only with a knowing mental state.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to apply the civil/regulatory or criminal preemption test | The statute is regulatory/noncriminal, so the less stringent civil test applies | The statute is part of a criminal scheme and the ordinance creates a criminal offense, so the criminal preemption test applies | Applied the criminal-law preemption analysis because the ordinance creates a misdemeanor and the statute is part of criminal provisions |
| Whether the city ordinance prohibits conduct that the state permits (i.e., implicit preemption) | The Liquor Control Act does not address the same "juvenile party" conduct; no clear legislative intent to permit conduct the ordinance forbids | ORS 471.410(3) addresses juvenile parties and requires a knowing mens rea, so the legislature permitted non-culpable conduct that the ordinance forbids | The statute manifests a deliberate legislative choice to require a knowing mens rea; the strict-liability ordinance conflicts with state law and is preempted |
| Whether the Liquor Control Act "occupies the field" of liquor regulation | The city argues the Act does not occupy the field and local regulation remains allowed | Defendant notes preemption need not be express to displace conflicting ordinances | Court: Act does not occupy the field; occupation of the field not necessary here because conflict arises from differing mens rea and punishment |
| Whether legislative history supports that the legislature intended to permit non-culpable hosting | City contends history shows different targets and did not intend to preempt local juvenile-party ordinances | Defendant points to legislative history adding "knowingly" and other amendments showing the statute targets those knowingly allowing underage drinking | Court: Legislative history confirms the legislature deliberately chose a knowing mental state (to avoid imposing liability on unaware property owners); that choice implies permission for non-culpable conduct and preempts strict-liability municipal crime |
Key Cases Cited
- City of Portland v. Dollarhide, 300 Or. 490 (1986) (state criminal law generally displaces conflicting local criminal ordinances absent legislative intent to the contrary)
- City of Portland v. Jackson, 316 Or. 143 (1993) (state law preempts local ordinance if the statute permits the conduct the ordinance prohibits; identifies three ways statute can permit conduct)
- City of Portland v. Lodi, 308 Or. 468 (1989) (legislative history can show an implicit legislative choice to permit conduct, supporting preemption)
- State v. Robison, 202 Or. App. 237 (2005) (state criminal law preempted a local strict-liability ordinance where legislature limited criminalization by requiring a mens rea)
- State v. Krueger, 208 Or. App. 166 (2006) (conflict exists when an ordinance prohibits what a statute permits or permits what a statute prohibits)