Burke v. Oxford House of Oregon Chapter V ( 2004 )

ARMSTRONG, J.

Defendants Oxford House of Oregon Chapter V, Oxford House-Ramona, and Oxford House, Inc., appeal from a judgment for plaintiff on a claim under the Oregon Residential Landlord and Tenant Act (ORLTA). Defendants’ two assignments of error amount to an assertion that the trial court erred in entering summary judgment for plaintiff because ORLTA does not apply to them. Defendants present two arguments. First, they argue that ORS 90.110 excludes them from ORLTA’s coverage. Second, they argue that, to the extent ORLTA applies to them, it is preempted by the Federal Anti-Drug Abuse Act of 1988, 42 USC § 300x-25 (2000). Because we conclude that ORS 90.110 does indeed exclude defendants from ORLTA’s coverage, we need not address defendants’ preemption argument. We reverse.

Because the trial court ruled on cross-motions for summary judgment, we determine whether either party is entitled to judgment as a matter of law. Stevens v. Bispham, 316 Or 221, 223, 851 P2d 556 (1993). For the following reasons, we conclude that defendants are entitled to judgment under that standard.

Oxford House, Inc., is a national organization dedicated to helping recovering drug and alcohol addicts make the transition to independent lives in an environment that allows them to continue their recovery process without professional supervision. To promote that goal, Oxford House, Inc., and local organizations such as Oxford House of Oregon Chapter V have established unsupervised halfway houses for recovering addicts. The Oxford House model is based on three basic rules: (1) each house must be a self-governing democracy; (2) each house must be financially self-sufficient; and (3) any person using drugs or alcohol must be immediately expelled from the house. Oxford House-Ramona is an Oxford House located in Portland.

Plaintiff lived in Oxford House-Ramona. By majority vote, her coresidents found her in violation of an Oxford House rule prohibiting disruptive behavior. They evicted her from the house with 15 minutes’ notice, and she complied. She subsequently brought an action against defendants, claiming that defendants had evicted her in violation of ORLTA’s eviction requirements, specifically ORS 90.400. The trial court concluded (1) that the parties had a landlord-tenant agreement of the type covered by ORLTA; (2) that defendants were not exempt from ORLTA under ORS 90.110; (3) that the relevant provisions of ORLTA were not preempted by the Federal Anti-Drug Abuse Act of 1988; and (4) that plaintiff was entitled to her requested relief. Defendants challenge the last three conclusions on appeal.

Properly understood, two of the exclusions in ORLTA operate to exclude plaintiffs residential arrangement with defendants from the act: (1) ORS 90.110(3), which excludes “[o]ccupancy by a member of a fraternal or social organization in the portion of a structure operated for the benefit of the organization”; and (2) ORS 90.110(1), which excludes “ [residence at an institution, public or private, if incidental to detention or the provision of medical, geriatric, educational, counseling, religious or similar service, but not including residence in off-campus nondormitory housing.”

ORLTA broadly sweeps non-owner-occupied residential rental relationships into its coverage. ORS 90.115 provides that ORLTA “applies to, regulates and determines rights, obligations and remedies under a rental agreement, wherever made, for a dwelling unit located within this state.” However, ORS 90.110 excludes a limited class of rental arrangements from coverage under ORLTA. ORS 90.110 provides:

“Unless created to avoid the application of this chapter, the following arrangements are not governed by this chapter:

“(1) Residence at an institution, public or private, if incidental to detention or the provision of medical, geriatric, educational, counseling, religious or similar service, but not including residence in off-campus nondormitory housing.

“(2) Occupancy of a dwelling unit for no more than 90 days by a purchaser prior to the scheduled closing of a real estate sale or by a seller following the closing of a sale, in either case as permitted under the terms of an agreement for sale of a dwelling unit or the property of which it is a part. The occupancy by a purchaser or seller described in this subsection may be terminated only pursuant to ORS 91.130. A tenant who holds but has not exercised an option to purchase the dwelling unit is not a purchaser for purposes of this subsection.

“(3) Occupancy by a member of a fraternal or social organization in the portion of a structure operated for the benefit of the organization.

“(4) Transient occupancy in a hotel or motel.

“(5) Occupancy by a squatter.

“(6) Vacation occupancy.

“(7) Occupancy by an employee of a landlord whose right to occupancy is conditional upon employment in and about the premises. However, the occupancy by an employee as described in this subsection may be terminated only pursuant to ORS 91.120.

“(8) Occupancy by an owner of a condominium unit or a holder of a proprietary lease in a cooperative.

“(9) Occupancy under a rental agreement covering premises used by the occupant primarily for agricultural purposes.”

The enumerated exclusions essentially fall into two groups: (1) exemptions for short-term housing and (2) exemptions for housing where the primary relationship between the parties is something other than a traditional residential landlord-tenant relationship.¹ The exclusions in ORS 90.110(4) and (6) govern short-term housing (“transient occupancy in a hotel or motel” and “vacation occupancy” respectively). Underlying those exclusions is an assumption that the occupant of the property has a primary residence somewhere other than the property at issue and that short-term housing should not be subject to ORLTA. The remainder of the exclusions exempt arrangements where the primary relationship between the parties is something other than a traditional residential landlord-tenant relationship.

In the latter category of exemptions, the legislature has recognized that the encouragement of the underlying, primary relationship is more important than the protection of tenants. For example, ORS 90.110(2) recognizes that it is often necessary in real estate sale agreements for either the seller or buyer of real property to possess the property for a period of time while legal title is in the hands of the other party. Thus, the legislature exempted those arrangements from ORLTA to avoid burdening real estate transactions with the requirements of the act. ORS 90.110(7) recognizes that the relationship of employer and employee is the predominant relationship in situations in which an employee lives and works on the employer’s property. It reflects that by exempting the landlord-tenant relationship from most aspects of ORLTA.

The same principle applies to the exemptions in ORS 90.110(1) and (3). Both subsections describe relationships in which the primary relationship between the parties is the relationship that is described in the subsections rather than the landlord-tenant relationship that the parties also share.

For example, the relationship between a fraternity member who lives on fraternity property and his fraternity predominates over the landlord-tenant relationship that exists between them by the fact of his residence. But for his membership in the fraternity, he would not be a tenant of the fraternity. With ORS 90.110(3), the legislature chose to subordinate the landlord-tenant relationship to the membership relationship so that, if an individual’s membership is terminated, the fraternity can demand that he vacate its premises without compliance with the strictures of ORLTA.

Similarly, the relationship between a hospital and its patients predominates over the landlord-tenant relationship, as does the relationship between a nursing home or a college dormitory and its residents. ORS 90.110(1) makes clear that changes in the primary relationships should not be burdened by ORLTA. If a college student drops out of classes, the college should not be required to allow him to remain in his dorm room for 30 days. Nor should a hospital be required to give a patient 30 days’ notice to vacate her room after the hospital has decided to discharge her. Thus, both ORS 90.110(1) and (3) create exemptions from ORLTA for housing where the primary relationship between the parties is something other than the traditional residential landlord-tenant relationship.

It is with that understanding in mind that we must construe the language of ORS 90.110(1) and (3) and apply it to the facts of the case before us. The proper interpretation of those provisions is that they exclude defendants from ORLTA.

We start with ORS 90.110(3), which excludes from ORLTA “[o]ccupancy by a member of a fraternal or social organization in the portion of a structure operated for the benefit of the organization.” Applying the legislature’s intent when it excluded fraternal and social organizations reveals that defendants are both fraternal and social organizations.²

Although the legislature did not define either “fraternal” or “social,” it did define “organization.” Under ORS 90.100(26), “ ‘[organization’ includes a corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest, and any other legal or commercial entity.” The record reflects that defendant Oxford House, Inc., is a nonprofit corporation and that defendants Oxford House of Oregon Chapter V and Oxford House-Ramona are unincorporated associations. Thus, there is no dispute that defendants are organizations. The question becomes whether they are fraternal or social organizations.³

The word “fraternity” can be understood to describe

“1: a group of people associated or formally organized for a common purpose, interest, or pleasure: as a: a religious or ecclesiastical brotherhood b: a usu. organized group of men of the same class, occupation, interest, or pursuit: COMPANY, GUILD : fraternal order c: a national or local men’s student organization formed chiefly for social purposes having secret rites and a name consisting of usu. three Greek letters; also : an organization of alumni who were members of such an organization d: a student organization for scholastic, professional, or extracurricular activities; esp : a national honorary organization including students and alumni [.]”

Webster’s Third New Int’l Dictionary 903 (unabridged ed 2002). As the above description shows, fraternities are not limited to student groups; they also include associated groups of people with the same pursuit. Although it is not dis-positive of the issue, it is nonetheless persuasive to recognize that defendants thought of themselves as a fraternity even before this litigation began. See Oxford House Manual: An Idea Based on a Sound System for Recovering Alcoholics and Addicts to Help Themselves 3 (2d ed 1999) (“[Oxford House] is a very special fraternity.”); id. at 4 (acknowledging that the fraternity house concept served as the model for the first Oxford House). Defendants are organized groups of people with the same pursuit: sober, independent living.

The involvement of Oxford House “alumni” in the organization further supports the conclusion that defendants are fraternal organizations. Alumni contribute financially to the program and provide ongoing support. In fact, Oxford House Tradition Nine provides, “Members who leave an Oxford House in good standing are encouraged to become associate members and offer friendship, support, and example to newer members.” Former Oxford House members who participate in that way are part of the national Oxford House Tradition Nine Club, whose members “share their experience, strengths and hope in order to expand the Oxford House movement and keep it operating and expanding in a way to assure other recovering individuals the same opportunity they have enjoyed.”

Defendants also are fraternal organizations in the “confederation” sense of the word. “Confederation” can be understood to mean “an act of confederating or a state of being confederated : a compact for mutual support [.]” Webster’s at 475. A “confederacy’ is, among other things, “a league or compact between two or more persons, bodies of men, or states for mutual support or common action.” Id. (emphasis added). Defendants are groups of people who have come together to provide mutual support in battling addiction; their compacts are the membership agreements in which each individual agrees to remain drug and alcohol free so long as each resides at an Oxford House. In that sense, they are confederates in a confederation and are, thus, a fraternal organization.

Furthermore, defendants are social organizations. “Social” means, among other things, “involving allies or confederates.” Webster’s at 2161. In light of the above “confederation” discussion, defendants are organizations involving confederates in the battle against addiction. “Social” also can be understood to mean “of, relating to, or concerned with the welfare of human beings as members of society.” Id. Defendants are organizations formed to aid individuals with addictions. Certainly, that concerns the welfare of human beings as members of society. While it may be a benefit to the residents themselves, as opposed to society as a whole, it is still a social purpose. It follows that defendants are social organizations.

For us so to hold is not a novel construction of “social organization,” for that is precisely the conclusion that a court reached in YMCA of Stamford v. Bentley, 37 Conn L Rptr 397 (Conn Super Ct 2004). There, the purported landlord — the YMCA — argued that it was excluded from the scope of Connecticut’s landlord-tenant act because it is a social organization under a provision identical to ORS 90.110(3). The court, applying a dictionary definition of “social” very similar to the one quoted above,⁴ concluded that the YMCA was indeed a social organization because its “programs exemplify [its] commitment to promoting the welfare of its members.” Id. at 399. The YMCA presented the Connecticut court with an organization that worked to better the welfare of its own members, that is, a social organization that focuses on its own members rather than society as a whole. The Connecticut court concluded that promoting the benefit of its own members was sufficient to render the YMCA a “social organization.”

The dissent argues that the Connecticut court concluded that the YMCA was a social organization largely based on a statement in the YMCA’s charter, which “describes the primary purpose of the organization as to ‘carry out various charitable projects for the religious, social and educational improvement of its members.’ ” Id. While that statement may have played a role in the court’s conclusion, the result in the case did not depend on the proposition that the YMCA intended to engage in charitable activities. The court was at least as persuaded by the YMCA’s “commitment to promoting the welfare of its members.” Id. In any event, to the extent that an organization’s statements about itself are persuasive as to whether it is covered by ORLTA, we note that Oxford House’s incorporation certificate identifies as the organization’s first purpose: “[t]o improve the rehabilitation, industrial, and social condition and environment for recovering alcoholics, by the development of plans and programs for their recovery and rehabilitation and by establishing, operating, and maintaining homes for recovering alcoholics.” (Emphasis added.)

Having concluded that defendants are fraternal and social organizations, we must address whether plaintiffs room was a “portion of a structure operated for the benefit of the organization.” ORS 90.110(3). Plaintiff insists that it was not and that, if the defendants are fraternal or social organizations, then only the common areas of Oxford House-Ramona are operated for the benefit of the organization. Plaintiff is incorrect on both points. Oxford House as an organization benefits from the operation of sleeping quarters like plaintiffs. First, it receives a financial benefit that allows it to operate. Second, by having its inembers live under the same roof, Oxford House creates the community on which it relies to promote sobriety and independent living. Finally, to accept plaintiffs argument that only the common areas of the house are operated for the benefit of the organization and are therefore excluded under ORS 90.110(3) would create the absurd result under which defendants would be bound to warrant the habitability of plaintiffs sleeping quarters but would not be so bound with respect to the kitchen, bathroom, living room, and other areas of the house. Either all of Oxford House-Ramona is operated for the benefit of the organization or none of it is. We conclude that all of it is, and it is thus exempt from ORLTA.

The dissent maintains that ORS 90.110(3) does not apply to defendants because plaintiffs residency is not incidental to defendants’ primary purpose. We disagree with that proposition on two levels. First, as we discuss in other parts of this opinion, Oxford House’s primary purpose is to assist addicts in recovery, not to provide housing. Second, whether residence is incidental to some other purpose is relevant only to the analysis under ORS 90.110(1) and, as we discuss below, that analysis in that context reveals that plaintiffs residence at Oxford House was incidental to her receipt of services similar to counseling.

Second, the dissent incorrectly understands our opinion. It reads our opinion to recognize in each exemption in ORS 90.110a requirement that the occupancy or residency be incidental to the organization’s purpose to qualify for exempt status. We recognize no such requirement because there is none. To the extent that the dissent understands our classification of the various exemptions in ORS 90.110 into two classes, one of them being “exemptions for housing where the primary relationship between the parties is something other than a traditional residential landlord-tenant relationship,” to import a “primary purpose” test into every exemption, that understanding is wrong. The primary relationship between parties may be something other than a landlord-tenant relationship even if the primary purpose of the landlord or tenant or both is housing. For example, the primary purpose of a home buyer who takes possession of a residential property before the close of the real estate transaction is to establish a residence, and the primary purpose of the seller who allows him to do so is to provide housing. Often there is even consideration in such a transaction. Nonetheless, the primary relationship between these parties is not a landlord-tenant relationship. Instead, the primary relationship between them is buyer-seller.

Similarly, an individual may choose to join a fraternity solely for the housing aspect of the relationship, or a fraternity may even organize solely for housing purposes. Nonetheless, the primary relationship between the parties is that of member-fraternity, not landlord-tenant. The dissent’s primary purpose rule — purportedly derived from legislative history and maxims of statutory construction — would contradict the plain language of ORS 90.110(3) by subjecting to ORLTA coverage fraternal or social organizations whose primary purpose is to provide housing for their members. For that reason, among others, the dissent’s interpretation cannot be correct.

The defendants are not only exempted from ORLTA by ORS 90.110(3) but by ORS 90.110(1) as well. ORS 90.110(1) excludes from ORLTA “Residence at an institution, public or private, if incidental to detention or the provision of medical, geriatric, educational, counseling, religious or similar service, but not including residence in off-campus nondormitory housing.” To satisfy that exclusion, there must be (1) an institution (2) that provides medical, geriatric, educational, counseling, religious or similar services and (3) residence at that institution must be incidental to the provision of those services.

Plaintiff contends that defendants’ argument under ORS 90.110(1) is not preserved because defendants did not specifically refer to that subsection in making their arguments to the trial court. Defendants acknowledge that they did not refer specifically to ORS 90.110(1), but they maintain that the issue is preserved because they argued that “housing was incidental” and “whether housing was incidental has no relevance except under ORS 90.110(1).” We need not decide whether defendants’ reference to incidental housing was sufficient because, even if it were not, we still must address the applicability of ORS 90.110(1). Defendants preserved the general issue whether they are exempt from ORLTA, and we are required to interpret the applicable statutes correctly even when preservation in the trial court does not occur. See, e.g., Miller v. Water Wonderland Improvement District, 326 Or 306, 309 n 3, 951 P2d 720 (1998); Burk v. Hall, 186 Or App 113, 118, 62 P3d 394, rev den, 336 Or 16 (2003).

An “institution” can be understood to be “something that is instituted * * * as * * * an established society or corporation : an establishment or foundation esp. of a public character.” Webster’s at 1171. Founded in 1975, with hundreds of locations today, Oxford House certainly is an established corporation and therefore satisfies the first requirement of ORS 90.110(1).⁵ Thus, the question becomes whether defendants provide the requisite services.

Defendants do not provide medical, geriatric, educational, or religious services. Furthermore, defendants admitted that they do not provide on-site professional counseling services. Nonetheless, the environment of self-policing and mutual support at Oxford House combines with the zero-tolerance principles to amount to services similar to counseling; that is, Oxford House provides peer supervision, support, and counseling. The record is replete with support for the conclusion that the services that members of an Oxford House provide to one another are similar to counseling services.⁶

Before a recovering addict is accepted as a member in an Oxford House, she must go through an intense interview with a current member. One of the questions the interviewer asks is this: “Can you tell us behaviors that may indicate that you may be headed toward a relapse? If we see these behaviors in you, would you comply with a House vote for special requirements?” The point of that inquiry is to enable the residents of an Oxford House to intervene if one of their fellow members appears to be headed toward a relapse. If intervention is not in fact counseling, then it is at least similar to counseling. “Counseling” can be understood to be “a practice or professional service designed to guide an individual to a better understanding of his problems and potentialities by utilizing modern psychological principles and methods!.]” Webster’s at 518. Intervention by fellow Oxford House members before a relapse can guide the troubled member to a better understanding of her problems and prevent her from returning to addiction.⁷

One “special requirement” that an Oxford House vote may impose if the house suspects that a member is headed toward a relapse is that the troubled member attend Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) meetings. While many Oxford House members participate in AA or NA, participation is not generally a requirement. However, according to Oxford House Tradition 4, “[i]f a resident’s non-attendance at AA or NA meetings is causing problems— for the individual or the house — the residents may vote at a meeting to make meeting attendance for a particular member a condition of living in the house.”

Members of Oxford House provide to one another, within a safe environment, services analogous to those provided by professional counselors in the field of rehabilitation. Each member has financial, social, administrative, and emotional duties to the other members. Without the three basic rules — self-governance, financial self-sufficiency, and automatic expulsion for relapse — and the accompanying duties, according to Oxford House founder J. Paul Molloy, “it is too easy to lapse into abuse again.” According to Molloy, “[a]n essential component of recovery is security derived from living in a clean and sober environment with peer support that encourages responsible individual behavior.”

One example reflected in the record of how the mutual support network functions to encourage sobriety at an Oxford House is the house’s efforts to be sure no one feels alone. On that point, Molloy says, “One factor leading to relapse is loneliness. The Oxford House concept remedies this problem by placing two persons to a room where practical. By having * * * a roommate, an individual in times of loneliness, despair, anger, rejection, depression, or having a bad day, will be able to have another recovering individual to talk to about her problem, and obtain a constructive manner to deal with the problem other than resort to drugs and alcohol.”- In the mutually supportive environment of the Oxford House, each member “reinforce [s the] other’s desire to stay clean and sober forever.” Even plaintiff admitted that, at Oxford House, the residents look to each other for support.

As a voluntary association of recovering addicts, Oxford House provides a support network for its members that amounts to counseling. On this point, Molloy stated:

“AA, which was founded in 1935, provides the other strong support for the Oxford House system which is the notion of relying upon voluntary self-help, which, as you probably know from Alexis de Tocqueville [sic] wrote a book, Democracy in Action when he toured the United States in 1835.

“And he was a Frenchman who came over here and has a whole chapter on voluntary associations. And, of course, Oxford House is very much a voluntary association. Groups who are recovering alcoholics and drug addicts, you know, take advantage of the First Amendment and say, hey, we want to form an association. And they group together and help each other stay clean and sober.”⁸

Those highlights of the record establish that defendants provide services similar to counseling to their residents. Thus, the question becomes whether residence at Oxford House is incidental to those services. It is.

Unless its use here is ambiguous, we must give the term “incidental” its plain meaning. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993). “Incidental” can be understood to mean “subordinate, nonessential, or attendant in position or significance: as * * * occurring as a minor concomitant [.]” Webster’s at 1142 (emphasis added). That meaning is consistent with the construction given the term by the Washington Court of Appeals in Sunrise Group Homes, Inc. v. Ferguson, 55 Wash App 285, 777 P2d 553 (1989). In Sunrise Group Homes, Inc. the court was asked to determine whether the Washington counterpart to ORLTA applied to a particular congregate care home. Id. at 286, 777 P2d at 554. The Washington court concluded that it did not, because the plaintiffs residence at the facility was incidental to the services that she received there. Id. at 289, 777 P2d at 555. The court stated that incidental “does not mean that room and board must be trivial or unimportant in comparison with the overall institutional purpose; it means that living there is subordinate or attendant to the institutional purpose.” Id. (emphasis added). Without citing Webster’s, the Washington court used a dictionary description of the uses of incidental in its construction of that term.

Residence at Oxford House is merely attendant to defendants’ institutional purposes. The purpose of an Oxford House is to provide a group environment in which members can support and help each other maintain sobriety and achieve self-reliance. The three basic rules reflect the goals of sobriety, self-governance, and self-support. Residence at the facility is attendant to those purposes, just as residence in a campus dormitory is attendant to college enrollment, Sunrise Group Homes, Inc., 55 Wash App at 289, 777 P2d at 555, and residence at a nursing home is attendant to around-the-clock geriatric care.

As defendants persuasively argued in their motion for summary judgment:

“[P]rospective Oxford House members do not seek housing where it may be convenient for them. Nor do they look for a home that they think is aesthetically pleasing, or in a neighborhood that they particularly enjoy. Potential members seek out available memberships in Oxford Houses, specifically in an attempt to join the organization. Prospective members want to benefit from the other members’ support and from the members’ common goal of a healing environment. In other words, the physical surroundings of an Oxford House are secondary to the support and emotional benefit of belonging to a group of one’s peers.”

In those ways, residence at Oxford House is fundamentally different from traditional housing. People seeking membership at Oxford House are seeking to maintain their sobriety, establish themselves financially, and govern their own lives without the “overseer” that typically accompanies residence at a halfway house. The fact of residence is subordinate or attendant to those purposes. Thus, residence at an Oxford House is incidental to the counseling-like services that residents receive.⁹

Because we conclude that defendants are excluded from the scope of ORLTA by ORS 90.110(1) and (3), we must resolve a final question before concluding that ORLTA does not apply to defendants: whether the arrangement between plaintiff and defendants was created to avoid the application of ORLTA to defendants. See ORS 90.110 (providing exclusions from ORLTA for certain arrangements “[u]nless created to avoid the application of this chapter”). Plaintiff points to Oxford House documents that explain the importance of entering into leases for new Oxford Houses in the name of the entity rather than an individual and argues that defendants have structured themselves to avoid the requirements of ORLTA. At most, those documents show that Oxford House is careful about the relationship between it and the ultimate landlord, namely the property owner. However, that relationship is not at issue in this case. The relationship in question here is that between plaintiff and defendants. Plaintiffs evidence does not show that relationship to have been created to avoid the application of ORLTA. Whether viewed as a relationship subject to ORS 90.110(1) or (3), the relationship between plaintiff and defendants was created to assist plaintiff with her recovery from addiction. This is not an instance where a property owner calls its tenants “members” and creates a purported social organization in order to seek to avoid the burdens of ORTLA, nor is it an instance where a landlord provides purported educational classes to its tenants and calls itself an educational institution. As the trial court recognized, “Oxford House exists for the sole purpose to assist drug and alcohol dependent individuals in their recovery.” That purpose is necessarily the horse before the cart that is the living arrangement.

In sum, ORS 90.110 excludes Oxford Houses from the reach of ORLTA. A correct application of the statute requires the conclusion that defendants are indeed fraternal and social organizations under ORS 90.110(3) as well as institutions that provide counseling-like services to which residence is incidental under ORS 90.110(1), and that the arrangement between plaintiff and defendants was not created to avoid the application of ORLTA. The primary relationship between plaintiff and defendants was not their landlord-tenant relationship. Whether characterized as a membership relationship with a fraternity or social organization or as a supportive relationship in an institution that provides services similar to counseling, the parties5 primary relationship is not burdened by ORLTA. The trial court erred in concluding otherwise and in granting plaintiffs motion for summary judgment and denying defendants’ motion.

Reversed and remanded.

1 The dissent asserts that the exclusions in ORS 90.110 “ought to be strictly and narrowly construed” to avoid undermining the purposes of ORLTA. 196 Or App at 748 (Edmonds, J., dissenting). That assertion reflects a discredited presumption that courts formerly used in construing statutes. See generally Norman J. Singer, 2A Sutherland Statutory Construction § 47.11(5th ed 1992). If that principle were sound, then the Bill of Rights would have to be strictly and narrowly construed to avoid undermining the function of representative government. At bottom, there is no reason to presume that the policies embodied in the exceptions are more or less important than the policies embodied in the general provisions of the act. Our task is to make sense of them as a whole.

2 The exclusions listed in the various subparagraphs of OES 90.110 are not mutually exclusive; nor should the particular categories within each subparagraph be read to be mutually exclusive. Just as a nursing home may be an institution that provides both medical and geriatric services, and an organization such as an Elk’s Lodge can be both fraternal and social, so too can an on-campus fraternity house satisfy the exclusions under both OES 90.110(1) and (3).

3 The dissent insists that the answer to that question cannot be determined by consulting the text and context of the statute. It looks instead to legislative history and general maxims of statutory construction. It relies on a comment to the Uniform Residential Landlord and Tenant Act that the act “is not intended to apply where residence is incidental to another primary purpose * * Uniform Residential Landlord and Tenant Act §1.202 Comment, 7B ULA 539 (2000). It appears to believe that that statement bears on the proper interpretation of the exemption in ORS 90.110(3); that is, that fraternal and social organizations must have a primary purpose other than housing in order to come within the exemption. As we discuss later in the opinion, we disagree. But we pause at this point to note one aspect of the legislative history cited by the dissent. Only one exemption in ORS 90.110 requires housing to be incidental to another purpose, the exemption in ORS 90.110(1). It is clear from the commentary to the uniform act that the phrase on which the dissent relies applies to only some of the exclusions in ORS 90.110, and the exception for fraternal and social organizations is not one of them. The complete sentence from the comments on which the dissent relies reads, “[The Act] is not intended to apply where residence is incidental to another primary purpose such as residence in a prison, a hospital or nursing home, a dormitory owned and operated by a college or school, or residence by a landlord’s employee such as a custodian, janitor, guard or caretaker rendering service in or about the demised premises.” URLTA § 1.202 Comment. Furthermore, seven sentences later the commentators provide a comment specific to the fraternal and social organization exception that makes no reference to purposes, primary or otherwise. In sum, the legislative history relied on by the dissent does not shed any insight into the intent behind ORS 90.110(3).

4 The Connecticut court used Merriam-Webster’s Collegiate Dictionary, which defines “social” in a nearly identical manner to Webster’s Third New Int’l Dictionary. YMCA of Stamford, 37 Conn L Rptr at 399. Compare Webster’s at 2161 (“of, relating to, or concerned with the welfare of human beings as members of society”) with Merriam-Webster’s Collegiate Dictionary 1114 (10th ed 1993) (“of or relating to human society, the interaction of the individual and the group, or the welfare of human beings as members of society’). The Connecticut court focused on the phrase “the welfare of human beings as members of society.” Merriam-Webster’s at 1114.

5 The dissent maintains that “defendants are not the kinds of institutions that ORS 90.110(1) excludes from ORLTA coverage.” 196 Or App at 750 (Edmonds, J., dissenting). To support that conclusion, it relies on Gray v. Pierce County Housing Authority, 123 Wash App 744, 97 P3d 26 (2004). There the court concluded that a public housing authority that provided educational services was not an “institution” under the Washington Residential Landlord Tenant Act. However, the Washington statute is not identical to ORLTA, and the Washington court relied heavily on the aspects that are different. The Washington statute exempts

“[r]esidence at an institution, whether public or private, where residence is merely incidental to detention or the provision of medical, religious, educational, recreational, or similar services, including but not limited to correctional facilities, licensed nursing homes, monasteries and convents, and hospitals[.]”

RCW 59.18.040 (emphasis added). The second, italicized half of the Washington provision is absent from ORS 90.110(1). The Gray court viewed those words to limit the types of institutions that could claim the exemption. See Gray, 123 Wash App at 758-59, 97 P3d at 33 (“PCHA asks this court to construe this provision as applying to any ‘institution’ offering residence incidental to providing one or more of the enumerated services. * * * However, we cannot simply ignore the second half of the provision. The provision, by its plain terms, applies only to institutions similar in kind to those specifically enumerated. Here, PCHA is not an ‘institution’ as the term is used in the statute; its institutional purpose is not to provide educational services.” (Emphasis added; citation and footnote omitted.)) In the absence of similar language, the Oregon statute cannot be interpreted to include a similar limitation on the types of institutions that are exempt under ORS 90.110(1).

6 The dissent argues that ORS 90.110(1) requires defendants, as organizations, to provide services similar to counseling and that any such services provided to Oxford House residents are provided by other residents and not by defendants. That argument falsely assumes that there is a separate existence between an Oxford House and its members. An Oxford House is its members. Business associations like defendants can act only through their agents, and here defendants’ members are their agents. Plaintiff herself implicitly acknowledges that because her entire theory rests on the fact that, when members of an Oxford House act, it is, in fact, Oxford House acting. She was evicted by other members of an Oxford House. If the actions of their members may be imputed to the defendants when they vote to evict another member, then their counseling-like actions must be imputed as well.

7 Oxford House-Ramona member Shannon Stowell testified at her deposition, ‘Whenever I feel like I want to use, I know I can go to one of [my fellow members.] ”

8 That excerpt from the record also supports our conclusion that defendants are fraternal organizations within the meaning of ORS 90.110(3).

9 The dissent disagrees with that conclusion as well, objecting that the primary purpose of Oxford house is “to provide low-cost housing in which individuals can support each other as they recover from addictions.” 196 Or App at 751 (Edmonds, J., dissenting). The dissent relies for support for that statement on the trial court’s written finding that

“Oxford house exists for the sole purpose [of] assist[ing] drug and alcohol dependant individuals in their recovery, the way in which Oxford House does so is to provide drug and alcohol free housing. It is the housing that is central to the relationship.”

With respect, the finding actually cuts the other way. The trial court did not find that the primary purpose of Oxford House is to provide low-cost housing. In fact, the trial court found, and the record supports, that defendants’ sole purpose is to assist addicts with recovery. For example, the first purpose listed in Oxford House, Inc.’s, incorporation certificate (which some might call a primary purpose), is “[t]o improve the rehabilitation, industrial, and social condition and environment for recovering alcoholics, by the development of plans and programs for their recovery and rehabilitation and by establishing, operating, and maintaining homes for recovering alcoholics.” Granted, housing may be central to that relationship, but it is nonetheless incidental, just as housing is central in a residential geriatric facility yet incidental to the facility’s sole purpose of assisting seniors in their daily living.