Schwartz v. Washington County ( 2024 )

342 May 1, 2024 No. e280
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Jordan SCHWARTZ, an individual;
Jonathan Moran, an individual; Serenity Vapors, LLC,
a domestic limited liability company;
Torched Illusions, LLC,
a domestic limited liability company;
Belal Yahya, an individual;
and Hookah Cafe, LLC, dba King’s Hookah Lounge,
a domestic limited liability company,
Plaintiffs-Respondents,
v.
WASHINGTON COUNTY,
a political subdivision of the State of Oregon,
Defendant-Appellant.
Washington County Circuit Court
22CV04836; A179834
Andrew Erwin, Judge.
Argued and submitted March 28, 2024.
John Mansfield argued the cause and filed the brief for
appellant.
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
Cite as 332 Or App 342 (2024) 343
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.
344 Schwartz v. Washington County
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), ORS
431A.190 to 431A.220.1 On appeal, in its sole assignment of
error, defendant contends that the trial court erred in ruling
that WCO 878 is preempted by Oregon’s scheme for TRL.2
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 cod-
ified at ORS 431A.190 to 431A.220.
1
ORS 431A.190 to 431A.220 are the codification of Senate Bill (SB) 587
(2021), which was enacted as Oregon Laws 2021, chapter 586. As discussed below,
SB 587 created Oregon’s scheme for TRL. For the most part, the trial court opin-
ion and the parties’ briefing cite sections of SB 587. In this opinion, we refer to the
relevant provisions of the Oregon Revised Statutes.
2
We note that amicus curiae the State of Oregon has filed a brief in support
of defendant, in which it contends that WCO 878 is not preempted.
We further note that 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, 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, have filed a brief in support of defendant, in which they
contend that WCO 878 is not preempted and argue that a ban on the sale of
flavored tobacco and flavored synthetic nicotine products provides residents of
Washington County greater protection against the “harms of flavored tobacco
and nicotine products” than the protection offered by Oregon’s scheme for TRL.
Cite as 332 Or App 342 (2024) 345
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
products[3] and inhalant delivery systems.” 4 ORS 431A.192.
It aimed to do so by requiring a license or other authori-
zation for a retailer to sell tobacco products and inhalant
delivery systems. See Audio Recording, Senate Committee
on Health Care, SB 587, Mar 1, 2021, at 00:04:50 (comments
of Rep Kathleen Taylor), https://olis.oregonlegislature.gov
(accessed Mar 3, 2024) (explaining that “[w]ithout requiring
a [tobacco retailer] to obtain a license, * * * enforcement of
our existing laws is difficult”).
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
3
ORS 431A.175(1)(b) defines “tobacco products” as:
“(A) Bidis, cigars, cheroots, stogies, periques, granulated, plug cut,
crimp cut, ready rubbed and other smoking tobacco, snuff, snuff flour, cav-
endish, 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 ORS 323.010 (1); or
“(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 ther-
apeutic purpose, if the product is marketed and sold solely for the approved
purpose.”
See ORS 431A.190(5) (providing that for purposes of ORS 431A.190 to
431A.216, “tobacco products” has the meaning given that term in ORS 431A.175);
ORS 431A.218(1)(d) (providing that for purposes of ORS 431A.218, “tobacco prod-
ucts” has the meaning given that term in ORS 431A.175).
4
ORS 431A.175(1)(a)(A) defines “inhalant delivery system,” in part, as:
“(i) A device that can be used to deliver nicotine or cannabinoids in the
form of a vapor or aerosol to a person inhaling from the device; or
“(ii) A component of a device described in this subparagraph or a sub-
stance in any form sold for the purpose of being vaporized or aerosolized by a
device described in this subparagraph, whether the component or substance
is sold separately or is not sold separately.”
See ORS 431A.190(2) (providing that for purposes of ORS 431A.190 to 431A.216,
“inhalant delivery system” has the meaning given that term in ORS 431A.175);
ORS 431A.218(1)(b) (providing that for purposes of ORS 431A.218, “inhalant
delivery system” has the meaning given that term in ORS 431A.175).
346 Schwartz v. Washington County
the only age-restricted product in Oregon that a retailer
did not need a license to sell. Testimony, Senate Committee
on Health Care, SB 587, Mar 1, 2021 (statement of Rachel
Banks, Public Health Director, Oregon Health Authority);5
Audio Recording, Senate Committee on Health Care, SB 587,
Mar 1, 2021, at 00:04:15 (comments of Rep Kathleen Taylor),
https://olis.oregonlegislature.gov (accessed Mar 3, 2024).
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 sup-
ported 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 addi-
tional Counties adopting their own programs”).
During the discussions on SB 587, an issue arose
regarding what to do about the TRL programs in those polit-
ical 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
5
The legislative history of SB 587 contains conflicting information regard-
ing the precise number of states that did not have a statewide TRL program at
the time SB 587 was under consideration by the Legislative Assembly, but the
majority did already have a statewide licensure program in place. See Testimony,
Senate Committee on Health Care, SB 587, Mar 1, 2021 (statement of Rachel
Banks) (“Oregon is one of only seven states that does not require tobacco retailers
to have a license.”); Testimony, Senate Committee on Health Care, SB 587, Mar 1,
2021 (statement of Ivy Jones, Associate Government Relations Director, Oregon
Medical Association) (“Oregon is one of thirteen states without a statewide licen-
sure [program], and we believe it is time we create one.”).
Cite as 332 Or App 342 (2024) 347
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 juris-
diction 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.ore-
gonlegislature.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
ORS 431A.194, ORS 431A.220, ORS 431A.198, and ORS
431A.218, which, as explained below, includes provisions
that permit cities and local public health authorities to
continue their licensing programs if those programs were
in place on or before January 1, 2021, and, in those juris-
dictions, allows retailers to sell tobacco products without a
state-issued license if they have a license or other authoriza-
tion issued by the jurisdiction.
ORS 431A.194 prohibits the retail sale of a tobacco
product or an inhalant delivery system from any premises
that is not licensed under either ORS 431A.198 or ORS
431A.220, providing:
“A person may not make a retail sale of a tobacco prod-
uct 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 or
431A.220.”
ORS 431A.220 provides that cities and local pub-
lic health authorities that had a TRL program for sales of
tobacco products and inhalant delivery systems prior to
January 1, 2021, may continue to run and enforce those
TRL programs:
348 Schwartz v. Washington County
“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 authoriza-
tion on and after January 1, 2022.”
However, ORS 431A.218(7) prohibits cities or local
public health authorities from requiring “a person that
makes retail sales of tobacco products or inhalant delivery
systems to hold a license or other authorization issued by
the city or local public health authority in addition to [a]
license issued” by the state under ORS 431A.198, “except as
provided by ORS 431A.220”—that is, unless the local licen-
sure or authorization program was in place on or before
January 1, 2021.
Finally, ORS 431A.198 provides for retail licenses
for tobacco sales issued by the Department of Revenue
(DOR). It requires the DOR to issue a license when certain
circumstances are met, but also provides that the DOR can-
not require a retailer to have a DOR-issued license to sell
tobacco products or inhalant delivery systems when the
retailer has a license or other authorization issued by a city
or local public health authority pursuant to ORS 431A.220:
“(1) Except as provided in subsection (8) of this sec-
tion, 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 exclu-
sively for residential use; and
“(c) Must meet any qualification for engaging in
the retail sale of tobacco products and inhalant delivery
Cite as 332 Or App 342 (2024) 349
systems enacted as an ordinance by the governing body of
a local public health authority under ORS 431A.218, pro-
vided that the department has knowledge of the qualifi-
cation pursuant to an agreement entered into under ORS
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 ORS 431A.194, ORS 431A.220, ORS
431A.198, and ORS 431A.218, a retailer is required to be
licensed or authorized to sell tobacco products and inhalant
delivery systems by a political subdivision that had a licen-
sure or authorization system in place prior to January 1,
2021, or by the state, but not by both, see Testimony, Senate
Committee on Health Care, SB 587, Mar 1, 2021 (statement
of Shawn Miller, Northwest Grocery Association) (“The bill
allows Counties to continue their programs but would not
layer the statewide license on top of the local license.”); cities
and local public health authorities cannot require retailers
to obtain a license issued by the city or local public health
authority if a TRL program was not in place requiring such
license or authorization prior to January 1, 2021; and, where
a license or other authorization was required to sell tobacco
products in a city or county on or before January 1, 2021,
pursuant to a local law, the DOR cannot require a state-is-
sued license to sell tobacco products or inhalant delivery
systems in that jurisdiction.
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 author-
ity” to enforce “standards for regulating the retail sale of
tobacco products and inhalant delivery systems” in addition
to those imposed by state law.6 Specifically, as relevant, ORS
431A.218(2) provides:
6
ORS 431A.218(1)(a) defines “governing body of a local public health author-
ity” with reference to ORS 431.003, which defines it to mean, among other things,
the “governing body of a county.”
350 Schwartz v. Washington County
“Each local public health authority may:
“(a) Enforce, pursuant to an ordinance enacted by the
governing body of the local public health authority, stan-
dards 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 inhal-
ant delivery systems that are in addition to the qualifica-
tions 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[.]”
Further, ORS 431A.218(4) permits local public health
authorities to “impose a civil penalty not to exceed $5,000
on a business that engages in the retail sale of tobacco prod-
ucts or inhalant delivery systems for violating a standard
described in subsection (2).”
As SB 587 worked its way through the legislative pro-
cess, it received support from various groups that expressed
their support because the bill was largely understood to not
prevent political subdivisions from creating additional reg-
ulations regarding tobacco products and inhalant delivery
systems, as evinced by ORS 431A.218(2)(a). For example,
Rachel Banks, Public Health Director at the Oregon Health
Authority, testified in support of SB 587, and explained
that “a strong tobacco license system does not preempt local
governments from enacting stronger, tailored policies that
reflect community needs and values” and that SB 587 cre-
ates an “opportunity [that] can be expanded through local
action that is more protective and targets health inequities.”
Testimony, Senate Committee on Health Care, SB 587, Mar 1,
2021 (statement of Rachel Banks (emphasis added)). Gwyn
Ashcom, the Tobacco Prevention Coordinator for Washington
County Public Health, testified that Washington County
supported SB 587, which “ensure[d] local public health can
Cite as 332 Or App 342 (2024) 351
pass stronger time, place, manner requirements, and enforce-
ment mechanisms.” Testimony, Senate Committee on Health
Care, SB 587, Mar 1, 2021 (statement of Gwyn Ashcom
(emphasis added)); see also Testimony, Senate Committee on
Health Care, SB 587, Mar 1, 2021 (statement of Ivy Jones,
Associate Government Relations Director, Oregon Medical
Association) (“SB 587 will work to hold retailers accountable
and create a statewide program, while also allowing for local
jurisdictions to have flexibility.”).
Indeed, Ashcom specifically stated that, even if SB
587 was enacted, Washington County intended to move for-
ward with its own ordinance which would include additional
“protective strategies,” including regulation of flavored
tobacco products—specifically, limiting the sale of those prod-
ucts to “establishments that are 21 and over”—and prohib-
iting price promotions. Audio Recording, Senate Committee
on Health Care, SB 587, Mar 1, 2021, at 00:46:25 (com-
ments 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 regu-
lated by local governments. See Testimony, Senate Committee
on Health Care, SB 587, Mar 1, 2021 (statement of Shawn
Miller, Northwest Grocery Association) (“[B]usinesses would
not be regulated by both State and local entities under the
passage of SB 587.”); Audio Recording, Senate Committee
on Health Care, SB 587, Mar 1, 2021, at 00:37:40 (com-
ments of Shawn Miller), https://olis.oregonlegislature.gov
(accessed Mar 13, 2024) (stating SB 587 is a “responsible
way to look at and prevent underage access to tobacco” and a
“better approach than looking at banning different products
or banning locations * * * and it makes it statewide”).
352 Schwartz v. Washington County
Ultimately, as enacted, SB 587 did contain a pro-
vision expressly preempting cities and local public health
authorities from adopting ordinances that prohibit “a prem-
ises 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 author-
ities can continue to enforce such ordinances if the ordi-
nances had been adopted prior to September 25, 2021.
ORS 431A.218(6); see also Testimony, Senate Committee on
Health Care, SB 587, Mar 1, 2021 (statement of Shawn Miller)
(“[A]dvocates at the County level have pushed extreme license
restrictions such as banning tobacco sales of locations that
have a pharmacy. * * * Senate Bill 587 preempts these local
pharmacy restrictions.”). But that pharmacy co-location pre-
emption in ORS 431A.218 was, at least as understood by
the Oregon Coalition of Local Health Officials and County
Commissioners, which supported the SB 587, an exception
to SB 587’s otherwise nonpreemptive approach to local reg-
ulation. See Testimony, Senate Committee on Health Care,
SB 587, Mar 1, 2021 (statement of Oregon Coalition of Local
Health Officials and County Commissioners) (“[Oregon
Coalition of Local Health Officials] and the Counties have
agreed to one preemption in the bill. While local public
health and local governments are usually very opposed to
preemption we have agreed to this one as a compromise to
pass this bill this session. We would not support another
preemption that further restricts local public health author-
ities from regulating the time, place, and manner in which
tobacco products, including e-cigarettes, are sold.”).
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 char-
ter.7 As amended, Article VI, section 10, of the Oregon
Constitution provides, in pertinent part:
“The Legislative Assembly shall provide by law a method
whereby the legal voters of any county, by majority vote of
7
In the United States, “home rule” generally means an arrangement under
which units of local government are “permitted to frame their own charters and
regulate their local affairs.” Orval Etter, County Home Rule in Oregon, 46 Or L
Rev 251, 252 (1967) (internal quotation marks omitted).
Cite as 332 Or App 342 (2024) 353
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 Article VI, section 10, of the Oregon
Constitution, because, in plaintiffs’ view, “[i]t is a matter of
state concern, and not county concern, whether to prohibit
or permit the sale of products for which one is required to
obtain a license under SB 587.” The trial court dismissed
that claim on the merits, and plaintiffs have not assigned
error to that ruling on appeal. Thus, for purposes of this
appeal, we assume that, absent preemption, the enactment
of WCO 878 was a valid exercise of Washington County’s
home rule authority under its charter.
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 oth-
ers 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).”
8
Additionally, in 1973, the legislature enacted ORS 203.035(1), which cur-
rently provides that “the governing body or the electors of a county may by ordi-
nance exercise authority within the county over matters of county concern, to
the fullest extent allowed by Constitutions and laws of the United States and of
this state.” That statute “obliterate[d] most distinctions between the powers of
general law counties and home rule counties.” Allison v. Washington County, 24
Or App 571, 581, 548 P2d 188 (1976).
354 Schwartz v. Washington County
WCO 878 provides, as relevant here, that in Washington
County:
“No person shall sell, offer for sale, or otherwise dis-
tribute 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 bev-
erage, herb, or spice.”9
WCO 878, Exhibit A, 2.20(B).
D. The Instant Litigation
On April 29, 2022, plaintiffs—businesses with loca-
tions in Washington county and owners of those businesses—
filed a complaint in the Washington County Circuit Court
seeking declaratory and injunctive relief. Plaintiffs’ com-
plaint alleged that WCO 878 is preempted by Oregon’s
scheme for TRL, i.e., ORS 431A.190 to 431A.220, and
sought an injunction against defendant enforcing WCO 878.
Plaintiffs’ complaint also alleged that WCO 878 “cannot
apply to incorporated cities within Washington County.”
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 plain-
tiffs’ claim that WCO 878 could not apply to incorporated
cities within Washington County.
Defendant appeals the resulting judgment.10
9
Excluded from the definition of “flavored product” in WCO 878 is “any product
that has 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.” WCO 878, Exhibit A, 2.20(B).
10
Plaintiffs’ complaint also alleged that WCO 878 violated Article I, section 20,
of the Oregon Constitution and that it was “arbitrary and capricious.” As with
the Article VI, section 10, claim, discussed above, the trial court dismissed those
Cite as 332 Or App 342 (2024) 355
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] because both cannot operate con-
currently or [2] because the legislature meant its law to be
exclusive.’ ” Id. (quoting La Grande/Astoria v. PERB, 281 Or
137, 148, 576 P2d 1204, aff’d on reh’g, 284 Or 173, 586 P2d
765 (1978)). We understand plaintiffs to contend that WCO
878 is preempted for both reasons.
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 legis-
lature ‘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 legisla-
ture 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 legis-
lature by examining the text of the statute in its context,
along with any relevant legislative history, and, if neces-
sary, 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 legisla-
ture 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.
356 Schwartz v. Washington County
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., ORS
166.170(1) (“Except as expressly authorized by state stat-
ute, the authority to regulate in any matter whatsoever the
sale, acquisition, transfer, ownership, possession, storage,
transportation or use of firearms or any element relating
to firearms and components thereof, including ammunition,
is vested solely in the Legislative Assembly.”); ORS 801.038
(“A city, county or other local government may not enact or
enforce any charter provision, ordinance, resolution or other
provision regulating the use of cellular telephones in motor
vehicles.”).
As indicated above, SB 587 contained certain provi-
sions preempting local governments from regulating aspects
of the sale of tobacco products and inhalant delivery sys-
tems. ORS 431A.218(6)(a) (prohibiting 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”); ORS 431A.218(7) (prohibiting
cities and local public health authorities from requiring a
license in addition to a license issued under ORS 431A.218,
except as provided by ORS 431A.220, which, as noted, pro-
vides that cities and local public health authorities that had
a TRL program for sales of tobacco products and inhalant
delivery systems prior to January 1, 2021, may continue to
run and enforce those TRL programs).
But Oregon’s scheme for TRL does not contain lan-
guage indicating that the legislature wished to entirely pre-
empt local governments from regulating tobacco and syn-
thetic nicotine products. To the contrary, as set forth above,
ORS 431A.218(2)(a) expressly allows “the governing body of
the local public health authority” to enforce ordinances that
set “standards for regulating the retail sale of tobacco prod-
ucts and inhalant delivery systems for purposes related to
public health and safety in addition to the standards” pre-
scribed by state law. (Emphasis added.)
And that is what Washington County did with its
prohibition on “flavored tobacco” sales set forth in WCO
Cite as 332 Or App 342 (2024) 357
878—which we understand to largely amount to a restric-
tion 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 ade-
quate for a specific purpose”). That is, WCO 878 is a stan-
dard as authorized by ORS 431A.218(2)(a).
If the legislature had intended for SB 587 to divest
political subdivisions of any ability to regulate tobacco
products, we can see no purpose in including the provision
in ORS 431A.218(6)(a) prohibiting cities and local public
health authorities from adopting ordinances that prohibit
a premises that makes retail sales of tobacco products from
being located at the same address as a pharmacy. State v.
Stamper, 197 Or App 413, 418, 106 P3d 172, rev den, 339
Or 230 (2005) (“[W]e assume that the legislature did not
intend any portion of its enactments to be meaningless sur-
plusage.”). That provision would have been surplusage, and
we do not think it is; it shows that the legislature thought
about preemption, and acted where it thought action was
necessary.
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 sup-
ported 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
358 Schwartz v. Washington County
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 ORS 431A.218(2)(a), which expressly allows
for the adoption and enforcement of local ordinances which
set “standards for regulating the retail sale of tobacco
products * * * in addition to the standards” prescribed by
state law. State v. Kelly, 229 Or App 461, 466, 211 P3d 932,
rev den, 347 Or 446 (2009) (“Cherry-picked quotations from
single legislators or of nonlegislator witnesses, are likely to
be given little weight, as the likelihood that such scraps of
legislative history represent the views of the institution as a
whole is slim.”); Suchi v. SAIF, 238 Or App 48, 55, 241 P3d
1174 (2010), rev den, 350 Or 231 (2011) (“Even assuming that
the legislative history supported claimant’s interpretation,
we are required not to construe a statute in a way that is
inconsistent with its plain text.”).
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 quota-
tion 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 fla-
vored synthetic nicotine products contained therein—is pre-
empted because it “cannot operate concurrently” with ORS
431A.190 to 431A.220. Similar to our conclusion above, we
conclude that WCO 878 it is not so preempted.
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
Cite as 332 Or App 342 (2024) 359
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, ORS 431A.190 to ORS 431A.220
provide for a statewide TRL scheme in Oregon. That scheme
prohibits the “retail sale of a tobacco product or an inhal-
ant delivery system at or from a premises located in this
state unless the person sells the tobacco product or inhal-
ant delivery system at or from a premises licensed or other-
wise authorized under ORS 431A.198 [providing for licenses
issued by DOR] or ORS 431A.220 [providing for licenses or
other authorization issued by political subdivisions].” In con-
trast, WCO 878 prohibits the sale and distribution of “any
flavored tobacco product or flavored synthetic nicotine prod-
uct” in Washington County.
WCO 878 is not preempted merely because it prohib-
its the sale of a product which is allowed, in certain circum-
stances, 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 nic-
otine products in Washington County by not selling those
products in Washington County, compliance with both WCO
878 and ORS 431A.190 to 431A.220 is not “impossible”; in
other words, because Oregon’s scheme for TRL merely per-
mits license holders to sell tobacco products and inhalant
360 Schwartz v. Washington County
delivery systems, but does not require tobacco retailers to
sell any particular type of tobacco product or inhalant deliv-
ery system, Oregon’s scheme for TRL can operate concur-
rently 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 pre-
emption of local criminal laws by a state criminal statute.”
234 Or App at 475 (so noting, and explaining that the “pre-
emptive 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 ORS 431A.190
to 431A.220.
Reversed and remanded.