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OR Not to Smoke (At Least While They Shop)
by Ron Davis

Shopping centers throughout Oregon may soon feel the impact of a tough new smoking ban imposed in one of the cities in that state.

The city is Corvallis, and the ban, enacted recently into law by Corvallis officials, takes a similar state anti-smoking law one step further and has withstood a strong challenge to its legality.

The state law, the Oregon Indoor Clean Air Act, prohibits smoking in public places except in smoking areas approved by the state health department. The Act does not prohibit smoking in other locations, and it provides that the regulations "are in addition to and not in lieu of any other law regulating smoking."

The Corvallis law bans smoking "in all enclosed places within the city or located on city-owned property." Businesses, including shopping centers and their tenants, must post no-smoking signs in every area where smoking is prohibited and at the entrances to buildings in which smoking is entirely prohibited. Violations of the law can result in fines that can range between $50 and $500 for a person who "owns, manages, operates or otherwise controls the use of" any premises subject to the law and who fails to comply with its provisions.

Opponents of the law argue that the Oregon Indoor Clean Air Act "preempts," or takes precedence over, the Corvallis law and therefore makes the Corvallis law invalid and unconstitutional. And they sued to prevent enforcement of the Corvallis law.

The Oregon Supreme Court upheld the legality of the Corvallis law, explaining, "We are reluctant to assume that the state legislature, in adopting statewide standards, intended to prohibit a locality from requiring more stringent limitations within its particular jurisdiction. There is absolutely nothing in the Act that would overcome that reluctance and justify us in characterizing the Act as limiting Corvallis's ability to adopt additional restrictions on smoking in public places. There would, indeed, be an issue of preemption only if Corvallis had attempted to permit smoking in areas where the Act prohibited it. Because Corvallis did not do so, the Act does not preempt the Corvallis law." (Oregon Restaurant Assn. v. Corvallis, 999 P.2d 518 [Or.App. 2000])

Decision: April 2000
Published: July 2000



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