Schwartz v. Washington CountySchwartz v. Washington County
Tony L. Aiello, Jr., argued the cause for respondents. Also on the brief was Tyler Smith & Associates, P.C.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Philip Thoennes, Assistant Attorney General, filed the brief amicus curiae for State of Oregon.
Steven C. Berman, Lydia Anderson-Dana, Stoll Stoll Berne Lokting & Shlachter P.C., and Dennis A. Henigan filed the brief amici curiae for 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, Cascade AIDS Project, 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.
Before Tookey, Presiding Judge, Egan, Judge, and DeVore, Senior Judge.
TOOKEY, P. J.
Reversed and remanded.
TOOKEY, P. J.
Defendant Washington County appeals a judgment permanently enjoining it from enforcing Washington County Ordinance (WCO) 878, which bans the sale and distribution of flavored tobacco and flavored synthetic nicotine products in Washington County. The trial court enjoined WCO 878 because it concluded that WCO 878 is preempted by Oregon‘s statewide scheme for tobacco retail licensure (TRL),
We conclude that WCO 878 is not preempted by Oregon‘s scheme for TRL. Therefore, we reverse and remand.
I. BACKGROUND
Prior to turning to a description of this litigation and an explanation of why Oregon‘s scheme for TRL does not preempt WCO 878, we provide an overview of that scheme, Washington County‘s authority as a “home rule” county, and WCO 878.
A. Senate Bill 587 (2021) and TRL in Oregon
In 2021, the Legislative Assembly passed Senate Bill (SB) 587, which, for the first time, created a statewide scheme for TRL in Oregon. Oregon‘s scheme for TRL is codified at
The purpose of SB 587 was “to improve enforcement of local ordinances and rules, state laws and rules and federal laws and regulations that govern the retail sale of tobacco products3 and inhalant delivery systems.”4
At the time that SB 587 was enacted, Oregon was in the minority of states that did not require tobacco retailers to hold a license to sell tobacco products, and tobacco was the only age-restricted product in Oregon that a retailer did not need a license to sell.
Nevertheless, several political subdivisions in Oregon had enacted ordinances requiring retailers to hold a license or other authorization issued by the political subdivision in order to sell tobacco products, although Washington County did not have such a licensure or authorization scheme in place. See, e.g., Testimony, Senate Committee on Health Care, SB 587, Mar 1, 2021 (statement of Rachel Banks) (noting that “[c]ounties such as Multnomah, Clatsop and Klamath are enforcing strong tobacco retail licenses“). The result was that a “patchwork approach of local licensing programs” was starting to develop throughout Oregon. See Testimony, Senate Committee on Health Care, SB 587, Mar 1, 2021 (statement of Shawn Miller, Northwest Grocery Association) (explaining that the Northwest Grocery Association supported SB 587 because it “has always been concerned with a patchwork approach of local licensing programs and would rather have a coordinated state-wide approach versus additional Counties adopting their own programs“).
During the discussions on SB 587, an issue arose regarding what to do about the TRL programs in those political subdivisions that already had their own TRL programs if the state was to begin issuing its own licenses for retail sales under SB 587. Senator Tim Knopp explained that some of the local TRL programs may “go further than” the state TRL scheme likely would and recognized that some of the political subdivisions with existing TRL programs “would want to keep those [TRL programs] in place.” Audio Recording, Senate Committee on Health Care, SB 587, Mar 10, 2021, at 00:45:00 (comments of Sen Tim Knopp), https://olis.oregonlegislature.gov (accessed Mar 13, 2024). For that reason, the legislature did not want to “preempt[]” those existing local programs, and it also did not want to require a retailer licensed to sell in a particular jurisdiction under a local TRL program also to be required to obtain a state-issued license. E.g., id.; Audio Recording, Senate Committee on Health Care, SB 587, Mar 17, 2021, at 00:05:20 (comments of Rep Kathleen Taylor), https://olis.oregonlegislature.gov (accessed Mar 13, 2024) (explaining that it was “not the intent of the bill to stack multiple licenses on retailers“).
The result of those discussions was the licensure scheme that was enacted by the legislature and codified at
“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 or431A.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 and after January 1, 2022.”
However,
Finally,
“(1) Except as provided in subsection (8) of this section, the Department of Revenue shall issue licenses to, and annually renew licenses for, a person that makes retail sales of tobacco products or inhalant delivery systems at qualified premises.
“(2) To be qualified for licensure under this section, a premises:
“(a) Must be a premises that is fixed and permanent;
“(b) May not be located in an area that is zoned exclusively for residential use; and
“(c) Must meet any qualification for engaging in the retail sale of tobacco products and inhalant delivery
systems enacted as an ordinance by the governing body of a local public health authority under
ORS 431A.218 , provided that the department has knowledge of the qualification pursuant to an agreement entered into underORS 431A.212 .“*****
“(8) The department may not require a person that makes retail sales of tobacco products or inhalant delivery systems to obtain a license under this section if the person holds a license or other authorization issued by a city or local public health authority pursuant to
ORS 431A.220 .”
Thus, under
Additionally, in defining the respective roles and responsibilities of the state and political subdivisions, Oregon‘s scheme for TRL contains a provision expressly allowing the “governing body of a local public health
“Each local public health authority may:
“(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 ;“(b)(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 [.]”
(Emphases added.)
Further,
As SB 587 worked its way through the legislative process, it received support from various groups that expressed their support because the bill was largely understood to not prevent political subdivisions from creating additional regulations regarding tobacco products and inhalant delivery systems, as evinced by
Indeed, Ashcom specifically stated that, even if SB 587 was enacted, Washington County intended to move forward with its own ordinance which would include additional “protective strategies,” including regulation of flavored tobacco products—specifically, limiting the sale of those products to “establishments that are 21 and over“—and prohibiting price promotions. Audio Recording, Senate Committee on Health Care, SB 587, Mar 1, 2021, at 00:46:25 (comments of Gwyn Ashcom), https://olis.oregonlegislature.gov (accessed Apr 2, 2024). That is, Washington County intended to adopt an ordinance regulating retail sales of tobacco products even if SB 587 was enacted and retailers obtained a state issued license.
We also note, however, that there is some testimony in the legislative record that could be read to demonstrate an understanding that SB 587 would prevent regulation of the sale of tobacco products by local governments when a state license had been issued; in other words, when an entity had obtained a state issued license, they could not also be regulated by local governments. See Testimony, Senate Committee on Health Care
Ultimately, as enacted, SB 587 did contain a provision expressly preempting cities and local public health authorities from adopting ordinances that prohibit “a premises that makes retail sales of tobacco products or inhalant delivery systems from being located at the same address as a pharmacy,” though cities and local public health authorities can continue to enforce such ordinances if the ordinances had been adopted prior to September 25, 2021.
B. Washington County‘s Authority as a Home Rule County
In 1958, Oregon voters approved a constitutional amendment allowing counties to adopt a home rule charter.7 As amended,
“The Legislative Assembly shall provide by law a method whereby the legal voters of any county, by majority vote of
such voters voting thereon at any legally called election, may adopt, amend, revise or repeal a county charter. A county charter may provide for the exercise by the county of authority over matters of county concern.”8
(Emphasis added.)
In 1962, Washington County adopted a home rule charter that provides it with “authority over matters of County concern, to the full extent granted or allowed by the Oregon Constitution and laws of the State.” Washington County Charter, ch II, § 20.
We note that, in addition to the preemption issue that is now before us, plaintiffs’ complaint alleged that WCO 878 violated
C. WCO 878
On November 2, 2021, the Board of Commissioners of Washington County, adopted WCO 878, which is entitled, “An ordinance to Prohibit Flavored Tobacco, Flavored Synthetic Nicotine, Prohibiting Coupon and Price Promotions, and Repealing Ordinance 599.” In WCO 878, the Board of Commissioners stated the finding, among others that it expressed, that “youth tobacco use is increasing in Washington County and the tobacco industry continues to use strategies that target child including the advent of new products, like flavored products, synthetic nicotine and inhalant delivery systems (vape products).”
WCO 878 provides, as relevant here, that in Washington County:
“No person shall sell, offer for sale, or otherwise distribute any flavored tobacco product or flavored synthetic nicotine product.”
WCO 878, Exhibit A, 2.30(B).
WCO 878 defines “flavored product,” in part, as:
“Any synthetic nicotine product 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.”9
WCO 878, Exhibit A, 2.20(B).
D. The Instant Litigation
On April 29, 2022, plaintiffs—businesses with locations in Washington county and owners of those businesses—filed a complaint in the Washington County Circuit Court seeking declaratory and injunctive relief. Plaintiffs’ complaint alleged that WCO 878 is preempted by Oregon‘s scheme for TRL, i.e.,
On what the trial court treated as cross-motions for summary judgment, the trial court concluded that WCO 878 is preempted by state law and enjoined its enforcement. In light of that ruling, the trial court dismissed as moot plaintiffs’ claim that WCO 878 could not apply to incorporated cities within Washington County.
Defendant appeals the resulting judgment.10
II. ANALYSIS
On appeal, in its sole assignment of error, defendant contends that the trial court erred in concluding that WCO 878 is preempted by Oregon‘s scheme for TRL. Plaintiffs disagree; they contend that the trial court was “correct in ruling that Senate Bill 587” preempted WCO 878.
“The analytical process for determining whether state law preempts a local law in Oregon is well established.” Owen v. City of Portland, 368 Or 661, 667, 497 P3d 1216 (2021). The question is whether “a local law is ‘incompatible’ with state law, ‘either [1]
A. The Legislature Did Not Intend for SB 587 to be Exclusive
We first turn to whether the “legislature meant its law to be exclusive“; that “boils down to whether the legislature ‘unambiguously expressed its intent’ to preempt laws like the ordinance.” Owen, 368 Or at 668 (quoting Rogue Valley Sewer Services v. City of Phoenix, 357 Or 437, 454, 353 P3d 581 (2015)). Put another way, “we assume legislature does not mean to displace local civil or administrative regulation of local conditions by a statewide law unless that intention is apparent.” Rogue Valley Sewer Services, 357 Or at 450 (internal quotation marks omitted). As is the case in other contexts, “we ascertain the intentions of the legislature by examining the text of the statute in its context, along with any relevant legislative history, and, if necessary, relevant canons of statutory construction.” Board of Cty. Comm. of Columbia Cty. v. Rosenblum, 324 Or App 221, 239, 526 P3d 798 (2023).
At the outset, “we note that, when the legislature wishes to preempt local government regulation in
claims on the merits, and plaintiffs have not assigned error to those rulings. Nor have plaintiffs assigned error to the trial court‘s ruling dismissing their claim concerning application of WCO 878 to incorporated cities within Washington County as moot.
a particular field, it knows how clearly to do so.” AT&T Communications v. City of Eugene, 177 Or App 379, 394, 35 P3d 1029 (2001), rev den, 334 Or 491 (2002); see, e.g.,
As indicated above, SB 587 contained certain provisions preempting local governments from regulating aspects of the sale of tobacco products and inhalant delivery systems.
But Oregon‘s scheme for TRL does not contain language indicating that the legislature wished to entirely preempt local governments from regulating tobacco and synthetic nicotine products. To the contrary, as set forth above,
And that is what Washington County did with its prohibition on “flavored tobacco” sales set forth in WCO
878—which we understand to largely amount to a restriction on certain ingredients. See Webster‘s Third New Int‘l Dictionary 2223 (unabridged ed 2002) (“standard” can mean, among other things, “something that is established by authority *** as a model or example to be followed” and “a definite level or degree of quality that is proper and adequate for a specific purpose“). That is, WCO 878 is a standard as authorized by
If the legislature had intended for SB 587 to divest political subdivisions of any ability to regulate tobacco products, we can see no
The understanding that the legislature did not intend to preempt local government regulation of tobacco and nicotine product sales in enacting SB 587 is also supported by the legislative history of that bill as set forth above, which, we think, reflects an understanding that SB 587, although intended to prevent a “patchwork quilt” of licensure requirements, was not intended to preempt local governments from “enacting stronger, tailored policies that reflect community needs.” Testimony, Senate Committee on Health Care, SB 587, Mar 1, 2021 (statement of Rachel Banks); see also, e.g., Testimony, Senate Committee on Health Care, SB 587, Mar 1, 2021 (statement of Gwyn Ashcom). As described above, the limited preemptive effect of SB 587 was discussed during the hearings on SB 587.
Further, as discussed above, although there was some testimony in the legislative history that could be read to demonstrate an understanding that SB 587 would prevent regulation of the sale of tobacco products by local
governments when a state license had been issued, e.g., Testimony, Senate Committee on Health Care, SB 587, Mar 1, 2021 (statement of Shawn Miller, Northwest Grocery Association), it appears to us that that understanding was, at most, a minority perspective, and it is inconsistent with the plain text of
For those reasons, in our view, the legislature did not “unambiguously express[] its intent to preempt laws like the ordinance.” Owen, 368 Or at 668 (internal quotation marks omitted). We thus conclude that legislature did not mean “for its law to be exclusive.” Id. at 667 (internal quotation marks omitted).
B. WCO 878 Can Operate Concurrently with ORS 431A.190 to 431A.220
We turn to the question whether WCO 878—or at least the prohibition on the sale of flavored tobacco and flavored synthetic nicotine products contained therein—is preempted because it “cannot operate concurrently” with
We have explained that “[a] local ordinance is not incompatible with state law simply because it imposes greater requirements than does the state.” Thunderbird Mobile Club v. City of Wilsonville, 234 Or App 457, 474, 228 P3d 650, rev den, 348 Or 524 (2010) (internal quotation marks omitted). Instead, “a local law is preempted only to
the extent that it ‘cannot operate concurrently’ with state law, i.e., the operation of local law makes it impossible to comply with a state statute.” Id.; see also Rogue Valley Sewer Services, 357 Or at 455 (citing Thunderbird Mobile Club, 234 Or App at 474, for that proposition).
As described above,
WCO 878 is not preempted merely because it prohibits the sale of a product which is allowed, in certain circumstances, to be sold under Oregon‘s scheme for TRL. Oregon Restaurant Assn. v. City of Corvallis, 166 Or App 506, 511, 999 P2d 518 (2000) (“[W]e are reluctant to assume that the legislature, in adopting statewide standards, intended to prohibit a locality from requiring more stringent limitations within its particular jurisdiction.“); see also Thunderbird Mobile Club, 234 Or App at 460 (concluding ordinances requiring owners of mobile home parks to obtain a closure permit from the city and to compensate displaced tenants were not preempted by the Oregon Residential Landlord and Tenant Act, even though “the ordinances impose[d] greater requirements on owners of mobile home parks than mandated by the Residential Landlord and Tenant Act“).
Because a retailer can comply with both Oregon‘s scheme for TRL and WCO 878‘s prohibition on the sale and distribution of flavored tobacco and flavored synthetic nicotine products in Washington County by not selling those products in Washington County, compliance with both WCO 878 and
delivery systems, but does not require tobacco retailers to sell any particular type of tobacco product or inhalant delivery system, Oregon‘s scheme for TRL can operate concurrently with WCO 878, which prohibits the sale of a certain type of tobacco and nicotine product.
On appeal, plaintiffs point to a different test for preemption than we apply in this opinion: They contend that preemption of a local ordinance occurs “when a statute permits actions that [the] ordinance prohibits, or prohibits actions that [the] ordinance permits.” The difficulty with plaintiffs’ argument is that, as explained in Thunderbird Mobile Club, that test is the test that “applies to the preemption of local criminal laws by a state criminal statute.” Id. at 475 (so noting, and explaining that the “preemptive effect of a state criminal statute is determined by a different test than the *** standards for preemption of civil regulations“). That test is not applicable here.
III. CONCLUSION
In sum, we conclude that the trial court erred when it concluded that WCO 878 is preempted by
Reversed and remanded.