Schwartz v. Washington CountySchwartz v. Washington County
Argued and submitted June 5, 2025.
Tony L. Aiello, Jr., Tyler Smith & Associates, P.C. Canby, argued the cause and filed the briefs for petitioners on review.
Janet Schroer, Washington County Counsel, Portland, argued the cause for respondent on review. Eamon McMahon, Washington County Counsel, Hillsboro, filed the brief. Also on the brief was John E. Mansfield.
Joseph A. Pickels, Brisbee & Stockton LLC, Hillsboro, filed the brief for amicus curiae 21+ Tobacco and Vapor Retail Association.
Lydia Anderson-Dana, Stoll Stoll Berne Lokting & Schlachter P.C., Portland, filed the brief for amici curiae African American Tobacco Control Leadership Council, American Cancer Society Cancer Action Network, American Heart Association, American Lung Association, American Medical Association, Campaign for Tobacco-Free Kids, Kaiser Permanente, Oregon Coalition of Local Health Officials, Oregon Medical Association, Oregon Pediatric Society, Parents Against Vaping e-cigarettes, Truth Initiative, and Upstream Public Health.
JAMES, J.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
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* Appeal from Washington County Circuit Court, Andrew R. Erwin, Judge. 332 Or App 342, 550 P3d 20 (2024).
At issue in this case is the validity of Washington County Ordinance (WCO) 878, which bans the sale of flavored tobacco and flavored synthetic nicotine products to anyone in the county, regardless of age. Plaintiffs—retailers of tobacco and nicotine products with locations in Washington County (the retailers)—filed an action for declaratory and injunctive relief against the county, contending, as relevant here, that Oregon‘s Tobacco Retailer Licensure scheme (referred to in this opinion as Senate Bill (SB) 587 (2021) and codified at
In general, a local ordinance adopted by a home rule county in Oregon—which includes Washington County—is preempted by state law only if the local ordinance cannot operate concurrently with a statute on the same subject or if the legislature intended the state law to be exclusive. As we will explain, WCO 878 is not preempted by SB 587 under either test. Accordingly, we affirm the decision of the Court of Appeals.
I. BACKGROUND
We begin with some background relating to the enactment of Oregon‘s tobacco retail licensing scheme and Washington County‘s subsequent adoption of its ordinance banning flavored tobacco products.
A. Oregon‘s Tobacco Retail Licensure Scheme
In 2021, the legislature enacted SB 587, creating a statewide tobacco retail licensure scheme that requires anyone desiring to sell tobacco products in Oregon to be licensed
By creating a licensing scheme for retailers of tobacco products, SB 587 enabled the DOR to develop an accurate database of current retailers for purposes of oversight and compliance. Indeed, the stated purpose of SB 587 is “to improve enforcement of local ordinances and rules, state laws and rules and federal laws and regulations that govern the retail sale of tobacco products and inhalant delivery systems.”
“A person may not make a retail sale of a tobacco product or an inhalant delivery system at or from a premises located in this state unless the person sells the tobacco product or inhalant delivery system at or from a premises licensed or otherwise authorized under
ORS 431A.198 orORS 431A.220 .”
“A city or local public health authority that, on or before January 1, 2021, and pursuant to an ordinance adopted by the governing body of the city or local public health authority, enforced standards described in
ORS 431A.218(2)(a) and required that a person that makes retail sales of tobacco products or inhalant delivery systems in an area subject to the jurisdiction of the city or local public health authority hold a license or other authorization issued by the city or local public health authority may continue to enforce the standards and require the license or other authorization on or after January 1, 2022.”
“[t]he real question was what to do with the entities that currently have [local tobacco licensing] programs. And, truthfully, the easiest thing to do would just do a statewide preemption and eliminate those [local programs]. However, we recognize that some of the entities who currently have those [programs] may have gone even a little further than what the current state law would be[,] and some of [those entities], maybe all of them, would want to keep those [programs] in place. And so instead of preempting them, I came up with an idea to basically flip that and make them, in terms of the local ordinances, the ones that stay, and the state overlay or mandate wouldn‘t apply as long as the locals continue their programs. And, so, I think it really allows the best of both worlds and that those who already acted on this are protected and those who don‘t have a current licensing system will then be licensed by the state.”
Video Recording, Senate Committee on Health Care, SB 587, Mar 10, 2021, at 00:44:50 (comments of Sen Tim Knopp), https://olis.oregonlegislature.gov (accessed Apr 29, 2026). Thus, as Senator Knopp stated, the issue was resolved by including in SB 587 a section—later codified at
SB 587 specifically provides that local governments continue to have coregulatory authority over the sale of
“(a) Enforce, pursuant to an ordinance enacted by the governing body of the local public health authority, standards for regulating the retail sale of tobacco products and inhalant delivery systems for purposes related to public health and safety in addition to the standards described in paragraph (b) of this subsection, including qualifications for engaging in the retail sale of tobacco products or inhalant delivery systems that are in addition to the qualifications described in
ORS 431A.198 .”2
As we will explain in detail later in this opinion, the extent of a local government‘s authority to enact ordinances governing the sale of tobacco products consistent with
B. Washington County Ordinance 878
In the fall of 2021, Washington County held a series of public hearings on flavored tobacco use by teens, and it found that “youth tobacco use is increasing in Washington County and the tobacco industry continues to use strategies that target child[ren] including the advent of new products, like flavored tobacco products.” The county therefore concluded that “flavored tobacco * * * should not be sold in Washington County.”
As noted, under
“[a]ny synthetic nicotine product3 or tobacco product that contains a taste or smell, other than the taste or smell of tobacco, that is distinguishable by an ordinary consumer either prior to or during the consumption of the product, including, but not limited to, any taste or smell relating to chocolate, cocoa, menthol, mint, wintergreen, vanilla, honey, molasses, fruit, or any candy, dessert, alcoholic beverage, herb, or spice.”
WCO 878, Exhibit A, 2.20 B.4
C. The Present Dispute
In February 2022, the retailers sued Washington County in circuit court, seeking, among other things, to enjoin its enforcement of WCO 878 on the ground that that ordinance was expressly or implicitly preempted by SB 587. Washington County moved to dismiss the retailers’ complaint for failure to state a claim under former
In July 2022, the trial court issued a letter opinion enjoining Washington County from enforcing WCO 878. In September 2022, the court issued a ruling on the county‘s
Before the Court of Appeals, the county argued that the trial court, when it assessed whether WCO 878 was the type of ordinance contemplated by
The retailers responded by pressing their argument that
The Court of Appeals agreed with Washington County, concluding that SB 587 does not preempt WCO 878 and reversing the trial court‘s ruling. The court observed that this court had held, in Owen v. City of Portland, 368 Or 661, 667, 497 P3d 1216 (2021), that preemption depends on whether “a local law is incompatible with state law, either [1] because both cannot operate concurrently or [2] because the legislature meant its law to be exclusive.” Schwartz, 332 Or App at 355 (brackets in Schwartz; internal quotation marks omitted). Applying that standard, the Court of Appeals first examined the text, context, and legislative history of SB 587 to ascertain whether the legislature intended SB 587 to be exclusive. The court stated that that statute does not contain wording expressly indicating that the legislature intended it to preempt local ordinances like WCO 878. Id. at 356. Rather, the court stated,
The retailers sought, and this court allowed, review.
II. ANALYSIS
Before this court, the retailers argue that a license issued pursuant to SB 587 “creates a liberty interest and provides express permission to engage in otherwise unlawful conduct.” They contend that that liberty interest gives them the right to sell all types of nicotine products and preempts local ordinances that prohibit retailers from fully utilizing their licenses. In the retailers’ view, “the very issuance of a license (permission) to engage in conduct provides legislative intent to preclude [local public health authorities] from prohibiting the legislatively authorized conduct.” The retailers also argue that WCO 878 is not an ordinance “enacted by the governing body of the local public health authority [to enforce] standards for regulating the retail sale” of tobacco products and, therefore, it is not the type of ordinance that is expressly allowed by
As a framework for our analysis, we begin by examining what is required to establish that a state statute preempts a local ordinance.
Since 1906, the authority of local governments to govern themselves has been enshrined in multiple provisions of the Oregon Constitution, collectively known as the “home rule” provisions.
The validity of local action depends, first, “on whether it is authorized by the local charter or by a statute,” and second, “on whether it contravenes state or federal law.” La Grande/Astoria v. PERB, 281 Or 137, 142, 576 P2d 1204, adh‘d to on recons, 284 Or 173, 586 P2d 765 (1978). As a preliminary matter, we note that the retailers do not contend that, aside from any conflict with state law, Washington County‘s adoption of WCO 878 would not be a valid exercise of its home rule authority. Nor could they. Washington County‘s charter permits the county to exercise its authority over matters of county concern, and there can be no question that one such matter is the health and welfare of its citizens.
Because “both municipalities and the state legislature in many cases have enacted laws in pursuit of substantive objectives, each well within its respective authority, that were arguably inconsistent with one another,” we resolve potential conflicts by asking “whether the local rule in truth is incompatible with the [state] legislative policy, either because both cannot operate concurrently or because the legislature meant its law to be exclusive.” Id. at 148; see also Northwest Natural Gas Co. v. City of Gresham, 359 Or 309, 336, 374 P3d 829 (2016) (quoting La Grande/Astoria, 281 Or at 148-49); Owen v. City of Portland, 368 Or 661, 667, 497 P3d 1215 (2021) (same). The party must overcome the presumption “that the legislature does not mean to displace local civil or administrative regulation of local conditions by a statewide law.” Rogue Valley Sewer Services v. City of Phoenix, 357 Or 437, 454, 353 P3d 581 (2015).
Turning to the second question—even if a state law and a local law could logically coexist, the former will be held to preempt the latter if the legislature “unambiguously expresse[d] an intention to preclude local governments from regulating” in the same area. Gunderson, LLC v. City of Portland, 352 Or 648, 663, 290 P3d 803 (2012); see also State ex rel. Haley v. City of Troutdale, 281 Or 203, 211, 576 P2d 1238 (1978) (because any legislative intent to preempt local action exceeding state “minimum” construction standards was “not unambiguously expressed[,] local requirements compatible with compliance with the state‘s standards are not preempted”). In Rogue Valley, we made a point of emphasizing Gunderson‘s use of the word “unambiguously.” Rogue Valley, 357 Or at 454 (“Only where the legislature ‘unambiguously expresses an intention to preclude local governments from regulating’ in the same area governed by an applicable statute can that presumption against preemption be overcome.” (quoting Gunderson, 352 Or at 663 (emphasis in Rogue Valley)). That emphasis bears further repetition. As we have noted, the legislature is well aware of how to use language to signal its intent to preempt local regulation—either by using the word “preempt” specifically or using the phrase “no local authority shall enact.” See, e.g.,
We turn to apply those principles to the case at issue.
A. Is concurrent operation of WCO 878 and SB 587 impossible?
The retailers argue that WCO 878 is incompatible with SB 587 because the statute and the ordinance cannot operate concurrently, insofar as, in the retailers’ view, SB 587 grants them the “right” to sell all types of tobacco products anywhere in the state and WCO 878 prohibits them from selling some tobacco products in Washington County. In other words, the retailers argue, retailers cannot simultaneously have statutory permission to engage in conduct and be prohibited from engaging in the same conduct by a local ordinance. To support that argument, the retailers begin with the uncontroversial premise that SB 587 governs licensure, and a license grants “permission to act”—that is, permission “to engage in a business or occupation or in an activity otherwise unlawful.” Chamber of Commerce of the United States v. Whiting, 563 US 582, 595, 131 S Ct 1968, 179 L Ed 2d 1031 (2011) (“A license is a right or permission granted in accordance with law * * * to engage in some business or occupation, to do some act, or to engage in some transaction which but for such license would be unlawful.” (Internal quotation marks omitted.)). The retailers then reason that, because SB 587 grants licensees permission to sell nicotine products, that statute grants licensees a “liberty interest” in selling all types of nicotine products. We disagree with that leap. Conditioning the legality of an activity on obtaining a license is not the same thing as conferring a “right” to engage in the activity.
The retailers point to nothing in the text or legislative history of SB 587 that suggests that the legislature intended to confer upon licensees the right to sell all types of tobacco products. SB 587 makes selling tobacco products at unlicensed premises unlawful,
Logically, the fact that a statute authorizes the government to grant licenses to sell a category of products does not mean that, in enacting that statute, the legislature intended to confer on licensees the right to sell all products that might potentially fall into that category. And it does not logically follow that, because licenses authorize the sale of a category of products, local governments are necessarily precluded from banning a subset of products within that category. We need not and do not decide whether regulations concerning discrete products could, in theory, be written
B. Does SB 587 unambiguously express the intent to preclude local ordinances like WCO 878?
We turn, then, to consider the retailers’ argument that WCO 878 is preempted by SB 587 because the legislature intended to preempt such ordinances by enacting
SB 587 includes a section entitled “local regulation,”
“[e]nforce, pursuant to an ordinance enacted by the local public health authority, standards for regulating the retail sale of tobacco products and inhalant delivery systems for purposes related to public health and safety in addition to the standards described in paragraph (b) of this subsection [permitting local public health authorities also to enforce state standards, established by state law or rule, relating to the regulation of the retail sale of tobacco products], including qualifications for engaging in the retail sale of tobacco products or inhalant delivery systems that are in addition to the qualifications described in
ORS 431A.198 .”
The retailers argue that WCO 878 is not a “standard for regulating the retail sale” of tobacco as that phrase is used in
As the dictionary definitions set out above indicate, both “standard” and “regulate” are broad terms, covering a wide array of topics. The statute does include one limitation, however—the standards for regulating the retail sale of tobacco products must be “for purposes related to public health and safety.” The retailers’ interpretation of the statute would limit what can be a “standard for regulating” the retail sale of tobacco products to rules governing “how or the manner in which” sales can occur, but not to include whether sales of certain products can occur. That interpretation adds words to the statute that the legislature did not include. In addition, that limitation omits what has been inserted by ignoring the phrase “for purposes related to public health and safety.” See
Whatever uncertainty may exist, however, the critical point is that nothing in
The retailers’ second argument that WCO 878 is not a “standard for regulating the retail sale” of tobacco products is based on the fact that
Paragraph (b) of
“(A) Administer and enforce standards established by state law or rule relating to the regulation of the retail sale of tobacco products and inhalant delivery systems for purposes related to public health and safety if the local public health authority and the Oregon Health Authority enter into an agreement pursuant to
ORS 190.110 [authorizing units of local government and state agencies to cooperate]; or“(B) Perform the duties described in this section in accordance with
ORS 431.413(2) or(3) [describing powers and duties of local public health authorities].”
There are at least two problems with the retailers’ argument. One is that it misinterprets
“[s]ubject to
ORS 431A.220 [providing that local governments that adopted their own licensure requirements before the enactment of SB 587 can continue to enforce those requirements], ensure that state standards established by state law and rule regarding the regulation of the retail sale of tobacco products and inhalant delivery systems are administered and enforced consistently throughout this state.”
Retailers additionally argue that that WCO 878 is not a “standard for regulating the retail sale” of tobacco in that it is a prohibition on the retail sale of certain tobacco products and, in the retailers’ view, the authority to regulate does not include the authority to prohibit.8 They con-
Those arguments do not persuade us. First, we are not looking for unambiguous expressions of permission for local regulation, we are looking for unambiguous expressions of prohibition on local regulation. That simply isn‘t present here. It cannot reasonably be disputed that “regulating” may entail “prohibiting.” For instance,
To summarize, then, our review of the text of
Finally, the retailers argue that legislative history supports their interpretation. They point to two statements taken from legislative hearings on SB 587, one expressing the witness‘s “concern” that the legislature would adopt a “patchwork approach” to licensing rather than a “coordinated statewide approach,”9 and another by a sponsor of SB 587, Senator Steiner Hayward:
“I would note also that a lot of the major retailers who have outlets across the state are very supportive of this bill because there‘s starting to be a patchwork of licensure regulation in different counties around the state and they are eager to have a single system that they can use as the baseline and they don‘t have to have different rules for different stores in different counties.”
Moreover, even if we were to agree with the retailers that those two statements might reflect a possible legislative intention to preclude local ordinances like WCO 878, that would not be sufficient for us to conclude that SB 587 preempts WCO 878. Again, in determining whether a local ordinance is preempted by a state statute, we look for unambiguously expressed intentions of the legislature. Gunderson, 352 Or at 663. In light of that standard, we are mindful that, in some endeavors of statutory interpretation, this court is “not at liberty to give effect to any supposed intention or meaning in the legislature, unless the words to be imported into the statute are, in substance at least, contained in it.” Patton v. Target Corp., 349 Or 230, 243, 242 P3d 611 (2010) (quoting Whipple v. Howser, 291 Or 475, 480, 632 P2d 782 (1981)). Here, the words are not, in substance, contained in the statute, and, therefore, the statute does not unambiguously express the intention of the legislature to preempt local ordinances like WCO 878. To the contrary, as discussed,
III. CONCLUSION
At bottom, all of the retailers’ arguments rely on the premise that SB 587 expressly grants licensees permission to sell all types of tobacco products. They then argue that WCO 878, as a ban on the sale of flavored tobacco products, is a partial prohibition on engaging in the same conduct
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
Notes
“(A) Administer and enforce standards established by state law or rule relating to the regulation of the retail sale of tobacco products and inhalant delivery systems for purposes related to public health and safety if the local public health authority and the Oregon Health Authority enter into an agreement pursuant to
“(B) Perform the duties described in this section in accordance with
“(A) Bidis, cigars, cheroots, stogies, periques, granulated, plug cut, crimp cut, ready rubbed and other smoking tobacco, snuff, snuff flour, cavendish, plug and twist tobacco, fine-cut and other chewing tobaccos, shorts, refuse scraps, clippings, cuttings and sweepings of tobacco and other forms of tobacco, prepared in a manner that makes the tobacco suitable for chewing or smoking in a pipe or otherwise, or for both chewing and smoking;
“(B) Cigarettes as defined in
“(C) A device that:
“(i) Can be used to deliver tobacco products to a person using the device; and
“(ii) Has not been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for any other therapeutic purpose, if the product is marketed and sold solely for the approved purpose.”