Along Came Trudy LLC v. OLCC ( 2024 )

No. 38 January 24, 2024 295
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
ALONG CAME TRUDY LLC,
dba Along Came Trudy,
Petitioner,
v.
OREGON LIQUOR AND CANNABIS COMMISSION,
Respondent.
Oregon Liquor and Cannabis Commission
OLCC21V003; A178679
Argued and submitted December 5, 2023.
Joseph O. Huddleston argued the cause for petitioner.
Also on the briefs were Kevin L. Mannix and Kevin L.
Mannix, P.C.
Inge D. Wells, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
KAMINS, J.
Affirmed.
296 Along Came Trudy LLC v. OLCC
Cite as 330 Or App 295 (2024) 297
KAMINS, J.
This is a petition for judicial review of an order
of the Oregon Liquor and Cannabis Commission (OLCC).
Petitioner, doing business as a restaurant and event venue
in Lane County, Oregon, challenges the OLCC’s cancella-
tion of its liquor license as a sanction for three violations of
OAR 845-006-0345(15), an administrative rule of the OLCC
prohibiting a licensee from violating “an order issued by the
Governor.” The OLCC charged petitioner with violations of
Governor Kate Brown’s Executive Order 20-66 (EO 20-66)
by permitting indoor dining at its restaurant during a time
when indoor restaurant dining was prohibited in Lane
County as a result of the COVID-19 pandemic. Petitioner
does not dispute that it violated EO-26 but contends that
the OLCC erroneously relied on EO-26’s incorporation of a
“guidance” of the Oregon Health Authority that petitioner
contends was legally invalid and enforced in violation of the
Oregon Constitution. The petition presents questions of stat-
utory and constitutional construction that we review under
ORS 183.482(8)(a) to determine whether the OLCC “errone-
ously interpreted a provision of law.” We conclude that the
OLCC did not err and therefore affirm.
STATUTORY CONTEXT
ORS chapter 401 contains the statutory provisions
governing emergencies.1 As relevant here, ORS 401.165(1)
(2009)2 provided that the Governor “may declare a state of
emergency by proclamation * * * after determining that an
emergency has occurred or is imminent.” ORS 401.025(1). A
state of emergency declared by the Governor continues until
it is terminated either by the Governor or the Legislative
Assembly. ORS 401.204(1) (providing that “[t]he Governor
shall terminate the state of emergency by proclamation
when the emergency no longer exists, or when the threat of
an emergency has passed”); ORS 401.204(2) (providing that
1
An “emergency,” as defined in ORS 401.025(1), is “a human created or natu-
ral event or circumstance that causes or threatens widespread loss of life, injury
to person or property, human suffering or financial loss, including but not limited
to * * * disease.”
2
All further references are to the 2009 version of the statute, which was
in effect at the relevant time. The statute was amended in 2021, Or Laws 2021
ch 539, § 33, but the amendments do not bear on the issues presented.
298 Along Came Trudy LLC v. OLCC
the state of emergency “may be terminated at any time by a
joint resolution of the Legislative Assembly”).
The Governor has wide-ranging statutory author-
ity during a declared state of emergency. That includes
“complete authority over all executive agencies of state gov-
ernment and the right to exercise, within the area desig-
nated in the proclamation, all police powers vested in the
state by the Oregon Constitution in order to effectuate the
purposes of this chapter,” ORS 401.168(1), as well as the
power to “[r]equire the aid and assistance of any state or
other public or quasi-public agencies in the performance of
duties and work attendant upon the emergency conditions
in such area.” ORS 401.175(5). Additionally, ORS 433.441(4),
provides:
“If a state of emergency is declared as authorized under
ORS 401.165, the Governor may implement any action
authorized by ORS 433.441 to 433.452.”
The actions authorized by ORS 433.441 to 433.452 include
requiring the closure of facilities, regulating goods and ser-
vices, and controlling or limiting “entry into, exit from, move-
ment within, and the occupancy of premises in any public
area subject to or threatened by a public health emergency,”
as reasonably necessary to respond to the emergency. ORS
433.441(3)(d).
Thus, after the declaration of a state of emergency,
within the limits of statutes and the state and federal con-
stitutions, the Governor has broad authority under ORS
401.165 to 401.236 to take the actions authorized by those
statutes “to effectuate the purposes” of ORS chapter 401.
ORS 401.168(1).
Most significant to our analysis, ORS 401.192(1)
provides:
“All rules and orders issued under authority conferred
by ORS 401.165 to 401.236 shall have the full force and
effect of law both during and after the declaration of a
state of emergency. All existing laws, ordinances, rules
and orders inconsistent with ORS 401.165 to 401.236 shall
be inoperative during the period of time and to the extent
such inconsistencies exist.”
Cite as 330 Or App 295 (2024) 299
EMERGENCY DECLARATION AND EO 20-66
Pursuant to ORS 401.165(1), on March 8, 2020,
the Governor declared a state of emergency related to the
COVID-19 pandemic. During the subsequent months, the
Governor issued a series of executive orders.
In December 2020, the Governor issued EO 20-66,
which included a directive to the OHA to develop guidance
for the public, employers, and certain sectors of the economy
relating to protective measures tied to the spread of COVID-
19 in the community, identified by various risk levels. 3
EO 20-66 stated that the guidance would be subject to
approval by the Governor and would be published on the
websites of the Governor and the OHA. The executive order
further provided:
3
EO 20-66 provided in part:
“Oregon Health Authority (OHA) to issue guidance for the public,
employers, and sectors.
“Throughout this pandemic, Oregon’s response has shifted as condi-
tions on the ground have shifted, and as emerging science and data have
given us greater clarity regarding the best ways to manage this pandemic.
Maintaining the flexibility to nimbly adjust as conditions and knowledge
change is critical to an effective emergency response. Accordingly:
“a. I delegate to OHA the authority to develop and issue, and from time to
time revise, binding guidance for the public, for employers, and for particular
sectors of the economy, to implement the directives of this Executive Order.
OHA guidance may also provide definitions, clarifications, or needed modi-
fications to the directives in this Executive Order, and may identify certain
business types, the operation of which is prohibited during this emergency.
The Governor will approve OHA guidance before it is issued. Upon approval,
the OHA guidance will become part of the directives of this Executive Order
and will be published online on Governor Brown’s website * * * and the OHA
website * * *.
“b. As described more fully in paragraph 10 of this Executive Order, once
approved by the Governor and published, guidance issued to implement this
Executive Order is enforceable to the same extent this Executive Order is
enforceable.
“c. In order to continue to control the spread and risk from COVID-19
in Oregon, individuals, businesses, and other covered entities are directed
to comply with applicable OHA guidance issued under the authority of this
Executive Order.
“d. Any guidance previously issued under the authority of Executive
Orders 20-27 or 20-65 continues under the authority of this Executive Order
unless and until that guidance is rescinded or modified by OHA or the issu-
ing agency.”
(Underlining and boldface in original.)
300 Along Came Trudy LLC v. OLCC
“Upon approval, the OHA guidance will become part of the
directives of this Executive Order[.]”
EO 20-66 provided that, once approved and published,
the “guidance issued to implement this Executive Order
is enforceable to the same extent this Executive Order is
enforceable” and that “individuals, businesses, and other
covered entities are directed to comply with applicable
OHA guidance issued under the authority of this Executive
Order.”
EO 20-66 further directed the OHA to issue guid-
ance “defining, and setting safety measures, operational
limitations, and capacity limits” for certain businesses,
including “eating and drinking establishments,” based on
the level of risk for each county. The executive order pro-
vided that, after approval by the Governor, such guidance
would become binding.
EO 20-66 further directed “state agencies with
regulatory enforcement authority,” including the OLCC,
to enforce “the directives in this Executive Order, the Risk
Level Metrics, and any guidance issued by OHA or other
state agencies to implement this Executive Order.”
Effective December 3, 2020, as directed in EO 20-66
and authorized by ORS 433.441(3), the OHA issued, and the
Governor’s office approved, sector guidance for eating and
drinking establishments. That guidance required those
establishments to limit maximum capacity based on the
designated risk level for the county “in which the establish-
ment is located.” It is undisputed that on the dates alleged
in the notice of proposed cancellation, Lane County was des-
ignated as “extreme risk,” and that all indoor restaurant
dining was prohibited.
THE OLCC’s ADMINISTRATIVE RULES
Under ORS 471.315(1)(a)(A), the OLCC is autho-
rized to cancel or suspend the liquor license of a licensee if
the licensee has violated any of the liquor statutes or rules
adopted by the OLCC. In response to the Governor’s COVID-
19 related executive orders and the OHA’s sector guidance
for eating and drinking establishments, the OLCC promul-
gated two administrative rules. OAR 845-006-0345(15)
Cite as 330 Or App 295 (2024) 301
(2020) prohibited licensees from engaging in activity related
to alcohol that “violates an order issued by the Governor.”4
OAR 845-006-0345(16) (2020) prohibited licensees from vio-
lating “a public health law, as defined in ORS 431A.005, that
is created pursuant to an order issued by the Governor.” The
temporary rules became effective March 22, 2020, and the
final rules became effective December 18, 2020.
THE OLCC ORDER
It is undisputed that petitioner, doing busi-
ness as a restaurant in Lane County, chose not to com-
ply with the OHA’s guidance relating to indoor dining. In
November 2021, the OLCC notified petitioner of the proposed
cancellation of its liquor license, as a penalty for three viola-
tions of OAR 845-006-0345(15) (2020) or, alternatively, OAR
845-006-0345(16) (2020). After a contested case hearing, an
administrative law judge (ALJ) found that, on at least three
occasions, petitioner had allowed indoor dining, in violation
of OHA guidance and OAR 845-006-0345(15). That finding
is not challenged. The ALJ concluded that the appropriate
penalty for petitioner’s “repeated and intentional” violations
of OAR 845-006-0345(15) was the cancellation of petitioner’s
license. The OLCC adopted the ALJ’s order, rejecting peti-
tioner’s contention that the OHA’s guidance relating to indoor
dining constituted an invalid administrative rule rather than
a part of EO 20-66.5
APPEAL
As the Supreme Court stated in Elkhorn Baptist
Church v. Brown, 366 Or 506, 25, 466 P3d 30 (2020), “the
Governor’s broad emergency powers are limited both by stat-
utes and by the state and federal constitutions.” Petitioner’s
assignments of error on judicial review assert statutory and
constitutional limitations on the Governor’s authority to
4
OAR 845-006-0345(15) provides:
“No licensee or permittee will engage in or permit any activity relating
to the manufacture, possession, sale, purchase, transportation, importation
or delivery of alcoholic liquor that violates an order issued by the Governor. A
licensee’s or permittee’s failure to follow this rule creates an immediate and
serious danger to the health and safety of all patrons and employees on the
premises. Violation of this section is a Category II violation.”
5
The OLCC order is stayed pending judicial review.
302 Along Came Trudy LLC v. OLCC
incorporate the particular OHA guidance into an executive
order in the context of a declared emergency. In its first three
assignments of error, petitioner attacks the OHA guidance
and its validity as a part of EO 20-66. Petitioner contends that
the Governor did not have authority to delegate to the OHA
responsibility to develop guidance for indoor dining for inclu-
sion into EO 20-66. Additionally, petitioner contends that,
even if the Governor could delegate that responsibility to the
OHA, the guidance that the OHA developed should have been
separately filed with the Secretary of State, as required by
ORS 183.355, and should have been adopted as an adminis-
trative rule under ORS chapter 183. In its fourth assignment,
petitioner contends that ORS 401.192 violates provisions of
the Oregon Constitution, Article I, sections 21 and 22, that
prohibit the legislature from delegating law-making functions
to the Governor and prohibit the Governor from suspending
laws. In its fifth assignment of error, petitioner contends that
the guidance of the OHA could not be implemented without a
determination of a violation by the OHA.
A. First Through Third Assignments of Error, Challenging
Statutory Validity
Petitioner’s first through third assignments of error
raise statutory challenges to the validity of the OHA guid-
ance as a part of EO 20-66. We have recently held that, upon
the Governor’s approval, the OHA’s guidance became a part
of EO 20-66. JGB Enterprises, LLC v. OLCC, 325 Or App
326, 353 n 8, 529 P3d 262 (2023). We adhere to that conclu-
sion and reject each of petitioner’s contrary arguments for
the reasons explained below.
1. Contention that guidance must be in text of EO 20-66
Petitioner contends that the OHA guidance was not
a valid part of EO 20-66, because it was not set forth in the
text of the executive order. But EO 20-66 states explicitly
that OHA guidance, once approved by the Governor, “will
become part of the directives of this Executive Order.” ORS
chapter 401 does not mandate any particular form for an
executive order entered within the Governor’s emergency
authority; nor does it limit the Governor’s authority to seek
guidance from agencies—in fact, the power to seek such
Cite as 330 Or App 295 (2024) 303
guidance is explicitly stated in ORS 401.175(5) (authorizing
Governor to “[r]equire the aid and assistance of any state or
other public or quasi-public agencies in the performance of
duties and work attendant upon the emergency conditions in
such area”). We conclude that it was within the Governor’s
emergency authority under ORS chapter 401 to seek guid-
ance from the OHA and to incorporate that guidance, as
approved by the Governor, within EO 20-66.
2. Contention that guidance must be filed with Secretary
of State
The Governor’s executive order was filed with the
Secretary of State, but the guidance developed by the OHA
was not.6 Petitioner contends that, even assuming that the
Governor could delegate responsibility to the OHA to develop
guidance for an executive order, the OHA’s guidance could
not become a part of the executive order until it was filed
with the Secretary of State, as required by ORS 183.355(5)
(“A certified copy of each executive order issued, prescribed
or promulgated by the Governor shall be filed in the office of
the Secretary of State.”). Petitioner contends that the failure
to separately file the guidance rendered it invalid.
The OLCC responds that the failure to file the
guidance with the Secretary of State does not invalidate
the guidance. The OLCC notes that there is no require-
ment in ORS chapter 401 for a Governor’s executive order
issued in the context of an emergency to be filed with the
Secretary of State. Additionally, the OLCC contends, the
Governor’s exercise of the emergency power through execu-
tive orders is not subject to the procedural requirements of
the Administrative Procedure Act (APA).
We agree with the OLCC that the failure to file the
OHA guidance with the Secretary of State did not render
it invalid. As a textual matter, although ORS 183.355(5)
states that a certified copy of “each executive order issued,
prescribed or promulgated by the Governor” shall be filed
with the Secretary of State, there is no provision stating
that, to be valid, an executive order must be filed with the
6
As the executive order required, however, the OHA guidance was placed
on the Governor’s and the OHA’s websites, and there is no contention of a lack of
actual notice of its contents.
304 Along Came Trudy LLC v. OLCC
Secretary of State. That contrasts with ORS 183.355(6)(a),
which relates to administrative rules and states explicitly
that “[a] rule is not valid or effective * * * until the rule is
filed in accordance with this section.” The legislature thus
knows how condition the validity of an order on filing with
the Secretary of State.
Further, as we have noted, the Governor’s powers
after the declaration of an emergency are broad. Consistent
with that broad authority, under ORS 401.192(1), “[a]ll rules
and orders issued under authority conferred by ORS 401.165
to 401.236 shall have the full force and effect of law both
during and after the declaration of a state of emergency.”
It is undisputed that EO 20-66 was issued by the Governor
under the authority of ORS 401.165 to 401.236. It therefore
had the “full force and effect of law.” EO 20-66 encompassed
the Governor’s directive to the OHA to provide guidance
that, with the Governor’s approval, would be incorporated
into the executive order. Any procedural hurdle that might
otherwise apply, outside of the context of an emergency dec-
laration, cannot deprive the executive order of the full force
and effect of law.7 Thus, even assuming, as petitioner argues,
that the OHA guidance incorporated into EO 20-66 should
have been separately filed with the Secretary of State, the
failure to separately file the guidance with the Secretary of
State did not render it invalid. We reject petitioner’s argu-
ment that our construction renders ORS 183.355(5) super-
fluous. The statute applies to executive orders, but in the
context of a declared emergency, an executive order entered
within the Governor’s authority under ORS 401.165 to
401.236 is not rendered invalid by a failure to file it with the
Secretary of State.
3. Contention that guidance must be adopted as an
administrative rule
Executive orders of the Governor do not consti-
tute administrative rules. ORS 183.310(9)(e). Although
ORS chapter 401 leaves little doubt that the Governor’s
emergency executive orders can be implemented through
7
We note that the rule-making procedures set forth in ORS 183.335 to
183.355 include, among other requirements, proper notice of proposed rulemak-
ing, fiscal impact statements, a hearing, and public participation.
Cite as 330 Or App 295 (2024) 305
administrative rules, see ORS 401.192(1) (providing that,
in the context of a declared emergency, “[a]ll rules and
orders issued under authority conferred by ORS 401.165 to
401.236 shall have the full force and effect of law”), peti-
tioner has not demonstrated that ORS chapter 401 requires
that the Governor’s emergency executive authority be car-
ried out only through administrative rule. See PNW Metal
Recycling, Inc. v. Oregon Dept of Environmental Quality, 371
Or 673, 685, 540 P3d 523 (2023) (Petitioner failed to demon-
strate that rulemaking was the “required path.”). See also
Homestyle Direct, LLC v. DHS, 354 Or 253, 266, 311 P3d
487 (2013) (“Whether an agency is required to adopt a pol-
icy that qualifies as a ‘rule’ solely by means of rulemaking
procedures depends on whether the legislature has declared
that rulemaking is the sole acceptable means of adopting
the particular policy at issue.”). Our conclusions that the
Governor lawfully directed the OHA to develop guidance,
and that that guidance, after the Governor’s approval, was
incorporated within EO 20-66, dispose of petitioner’s con-
tention that the guidance was required to be adopted as an
administrative rule.
More to the point, however, ORS 183.310(9) defines
a “rule” to include “any agency directive, standard, regula-
tion * * * that implements, interprets or prescribes law or
policy.” (Emphasis added); see also PNW Metal Recycling,
Inc, 371 Or at 687 (noting that ORS 183.310(9) refers to an
“agency directive, standard, regulation or statement of gen-
eral applicability that implements, interprets or prescribes
law or policy”). Although by its form and general applicabil-
ity the OHA guidance bears the characteristics of an admin-
istrative rule, the OLCC correctly concluded that the OHA
guidance did not constitute an administrative rule, because
it was not an “agency directive, standard, regulation or
statement of general applicability.” The guidance, although
developed by OHA, was a directive of the Governor.
We recognize that in Mooney v. Oregon Health
Authority, 314 Or App 809, 810, 500 P3d 79 (2021), we stated in
dictum that a guidance of the OHA relating to the Governor’s
emergency COVID-19 executive orders appeared to be an
administrative rule to which rule adoption procedures of
306 Along Came Trudy LLC v. OLCC
the APA would apply. Mooney, however, is distinguishable.
Mooney was itself a rule challenge under ORS 183.400 to
a guidance issued by OHA. We did not need to decide in
Mooney whether the guidance was in fact an administrative
rule, because we determined that the petitioner’s challenge
to the guidance was moot, the guidance having been super-
seded by additional guidance and an administrative rule.
Mooney is distinguishable in other ways as well. The
statement from Mooney that petitioner cites also observed
that the record did not demonstrate that the OHA guidance
was part of an executive order. Id. (“[T]here is nothing on the
face of the guidance or in the record supplied to us by the
OHA (which contains only the guidance itself) that would
permit the conclusion that it is itself an unreviewable execu-
tive order of the Governor.”). Here, in contrast, the disputed
OHA guidance was approved by the Governor’s office and
explicitly incorporated into EO 20-66. Finally, Mooney did
not address the effect of ORS 401.192, which we have con-
cluded is crucial to the analysis of the Governor’s powers
under ORS 401.165 to 401.236. We reject petitioner’s conten-
tion that Mooney requires the conclusion here that the OHA
guidance issued pursuant to EO 20-66 was required to be
adopted as an administrative rule.
B. Fourth Assignment of Error—Constitutionality
1. Article I, section 21
Article I, section 21, of the Oregon Constitution pro-
vides that “[n]o * * * law [shall] be passed, the taking effect of
which shall be made to depend upon any authority, except as
provided in this Constitution[.]”8 That section is understood
to prohibit a delegation by the legislature of the authority
to make laws, but to allow a law enacted by the legislature
to become effective upon the happening of a defined contin-
gency. See Marr v. Fisher et al., 182 Or 383, 388, 187 P2d 9668
Article I, section 21, provides:
“No ex-post facto law, or law impairing the obligation of contracts shall
ever be passed, nor shall any law be passed, the taking effect of which shall be
made to depend upon any authority, except as provided in this Constitution;
provided, that laws locating the Capitol of the State, locating County Seats,
and submitting town, and corporate acts, and other local, and Special laws
may take effect, or not, upon a vote of the electors interested.”
Cite as 330 Or App 295 (2024) 307
(1947) (Under Article I, section 21, although “the legislature
cannot delegate its power to make a law, it is well settled
that it may make a law to become operative on the happen-
ing of a certain contingency or future event.”). Petitioner
contends in its fourth assignment of error that, to the extent
that ORS 401.192 declares that all rules and orders entered
under the authority of ORS 401.165 to 401.236 “shall have
the full force and effect of law” and that “[a]ll existing laws,
ordinances, rules and orders inconsistent with ORS 401.165
to 401.236 shall be inoperative during the period of time
and to the extent such inconsistencies exist,” the statute vio-
lates Article I, sections 21, as an unlawful delegation to the
Governor of the power to suspend state laws in the context of
an emergency.9 As explained below, we reject the contention.
The purpose of Article I, section 21, is to “prevent
unlawful delegation of legislative authority” to make laws.
Marr, 182 Or at 388. In State v. Long, 315 Or 95, 99, 843
P2d 420 (1992), the court said that the constitutional pro-
hibition on delegation of legislative powers is not absolute.
The legislature may delegate authority to other bodies “to
adopt rules that define or implement broad statutory stan-
dards.” Id. at 101. Whether the legislature unconstitution-
ally delegates its authority in any particular instance, the
court said, depends “on the presence or absence of adequate
legislative standards and whether the legislative policy has
been followed.” Id. at 102. See State v. Davilla, 234 Or App
637, 230 P3d 22, adh’d to on recons, 124 Or App 87, 860 P2d
894 (1993), rev den, 318 Or 350 (1994) (same). Here, the leg-
islature’s enactment of ORS 401.192(1) did not delegate to
the Governor the authority to enact legislation. Rather, the
legislature expressed the policy that, upon the happening
of a contingency—the declaration of a state of emergency—
the Governor shall have the authority to take the actions
described in ORS 401.165 to 401.236, and that the Governor’s
“rules and orders” made under the authority of ORS 401.165
to 401.236 “shall have the full force and effect of law.” The
9
The OLCC contends that petitioner failed to preserve its argument under
Article I, section 21. We have reviewed the record and conclude that petitioner’s
argument is preserved, thinly. Although petitioner did not cite that constitutional
provision in any of its briefing to the OLCC, at an “exceptions” hearing before the
OLCC, petitioner’s counsel did make the same argument under Article I, section
21.
308 Along Came Trudy LLC v. OLCC
statute reflects the legislature’s completed policy to provide
the Governor with broad enforceable authority in an emer-
gency to take the actions that are necessary, as described by
the standards set forth ORS 401.165 to 401.236, to protect
public health and safety. And as a protective backstop, the
Legislative Assembly provided in ORS 401.204(2) that the
state of emergency “may be terminated at any time by a
joint resolution of the Legislative Assembly.” We reject peti-
tioner’s contention that ORS 401.192 constitutes an unlaw-
ful delegation of the legislature’s authority to enact laws.
There is no violation of Article I, section 21.
2. Article I, section 22
Petitioner makes a similar argument under Article I,
section 22, of the Oregon Constitution, which provides that
“[t]he operation of the laws shall never be suspended, except
by the Authority of the Legislative Assembly.” Petitioner
contends that ORS 401.192 violates Article I, section 22, in
that it allows the Governor—rather than the legislature—
to override and thereby suspend state law in the event of
an emergency. We disagree that ORS 401.192 provides for a
suspension of state law by the Governor. Rather, the statute
prioritizes the Governor’s emergency orders issued under
the authority of ORS 401.165 to ORS 401.236, to the extent
that state law is inconsistent. But if, and to the extent that
that statement of priority might constitute a “suspension” of
state law, we conclude that it is a suspension “by the author-
ity of the legislature,” through the legislature’s enactment of
ORS 401.192. There is no violation of Article I, section 22.
C. Fifth Assignment of Error—Implication of ORS
471.333(3)
ORS 471.333(3) provides:
“[The OLCC] may refuse to issue, cancel or suspend a
license under ORS 471.313, 471.315 or 471.425 for main-
taining an insanitary establishment in violation of ORS
447.010 to 447.156 and 447.992 or the laws, orders or rules
relating to public health of the Oregon Health Authority or
the State Department of Agriculture only when the agency
charged with enforcing those laws, orders or rules finds
that the licensee is in violation of them and renders a final
order adverse to the licensee.”
Cite as 330 Or App 295 (2024) 309
In its fifth assignment of error, petitioner contends that the
OLCC violated ORS 471.333(3) by cancelling its license “for
maintaining an insanitary establishment” in the absence
of a final order from the OHA. However, the OLCC did not
cancel petitioner’s license for maintaining an insanitary
establishment, but for violating OAR 845-006-0345(15) by
failing to comply with EO 20-66. As we recently held in JGB
Enterprises, LLC, 325 Or App at 352-53, a violation of OAR
845-006-0345(15) does not implicate ORS 471.333(3). We
therefore rejected petitioner’s contention.
SUMMARY AND CONCLUSION
To summarize, the challenged OHS guidance does
not lack validity because it was not incorporated in the text
of EO 20-66, was not separately filed with the Secretary of
State, and was not adopted by OHA as an administrative
rule. ORS 401.192 does not violate provisions of the Oregon
Constitution that prohibit the legislature’s delegation of its
authority to enact or suspend laws. The OLCC’s order deter-
mining that petitioner violated OAR 845-006-0345(15) does
not implicate ORS 471.333.
In conclusion, the OLCC did not err in determining
that petitioner was in violation of OAR 845-006-0345(15) and
imposing the sanction of cancellation of its liquor license.
Affirmed.