BP West Coast Products, LLP v. Oregon Department of Justice

396 P.3d 244, 284 Or. App. 723, 2017 Ore. App. LEXIS 483
CourtCourt of Appeals of Oregon
DecidedApril 12, 2017
DocketA156902
StatusPublished
Cited by3 cases

This text of 396 P.3d 244 (BP West Coast Products, LLP v. Oregon Department of Justice) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
BP West Coast Products, LLP v. Oregon Department of Justice, 396 P.3d 244, 284 Or. App. 723, 2017 Ore. App. LEXIS 483 (Or. Ct. App. 2017).

Opinions

TOOKEY, J.

BP West Coast Products, LLP (BP) challenges the validity of OAR 137-020-0150, a rule adopted by the Attorney General, which pertains to a service station’s posting of gas prices on signs visible from the street and dispensing devices. BP argues that “[t]he Administrative Rule’s definition of ‘condition’ and all portions of the Rule that incorporate or rely on the definition of ‘condition’ are invalid because they exceed the authority of the Attorney General to adopt.” We disagree; ORS 646.930 establishes the minimum requirements for a service station’s posting of fuel prices, and it does not prohibit the Attorney General from adopting rules under ORS 646.608(1)(u) to identify and prohibit “any other unfair or deceptive conduct” concerning the display of fuel prices. Accordingly, we conclude that OAR 137-020-0150(1)(b) is valid.

ORS 646.930 establishes the statutory requirements that a service station must meet if it has a fuel price sign that is visible from the street. Subsection (1)(a) provides that a person operating a “service station, business, or other place for the purpose of retailing and delivering gasoline, diesel or other fuel” may “display on a sign visible from the street the lowest cash prices charged for the sale of the lowest grades of gasoline, diesel or other fuel.” Subsection (2)(b) provides that, if “a cash price displayed on a sign is available only under some conditions, the sign and the dispensing device must clearly state the conditions.”

With that statutory framework in mind, we turn to the challenged rule provision, OAR 137-020-0150(1)(b). The definition of “condition” was added when the rule was revised in 2010. OAR 137-020-0150(1)(b) defines “condition” as “any payment method (e.g., credit), service level (e.g., full service or mini service), or any other modifying circumstance affecting the price per unit of measurement of motor vehicle fuel from the lowest cash price [.] ”

Our review of OAR 137-020-0150 is governed by ORS 183.400. “Under ORS 183.400(1), ‘any person’ may petition this court to determine the validity of a rule.” Assn. of Acupuncture v. Bd. of Chiropractic Examiners, 260 Or App 676, 678, 320 P3d 575 (2014). However, “[i]n reviewing [726]*726a rule challenge under that statute, we may declare the rule invalid only if we conclude that it violates constitutional provisions, exceeds the statutory authority of the agency that adopted the rule, or was adopted without complying with rulemaking procedures.” Id. Under ORS 183.400(4)(b), our determination of whether OAR 137-020-0150(1)(b) exceeds the statutory authority of the Attorney General to adopt the rule “is limited to a determination of whether the rule, as written, is valid [.] ” GTE Northwest, Inc. v. Public Utility Commission, 321 Or 458, 464, 900 P2d 495 (1995), cert den, 517 US 1155 (1996). BP’s facial challenge to OAR 137-020-0150 (1) (b) fits within the prescribed scope of our review.1

We agree with the parties that the term “conditions,” as used in ORS 646.930(2)(b), is an inexact term. See Nulph v. Board of Parole, 279 Or App 652, 657-58, 381 P3d 948 (2016), rev allowed, 360 Or 851 (2017) (discussing the three categories of statutory terms). Because “conditions” is an inexact term, we examine the statute to determine what the legislature intended by using the term “conditions.” See Springfield Education Assn. v. School Dist., 290 Or 217, 223, 621 P2d 547 (1980) (“Inexact terms *** require agency interpretation and judicial review for consistency with legislative policy.”). “If the agency interpretation is embodied in a rule, and the rule is otherwise lawful, the rule will be upheld on judicial review * * * if the interpretation can be determined to be within the statutory intent [.] ” Id. at 228 (citing ORS 183.400(4)(b)).2

As noted, BP argues that the definition of “condition” and all portions of OAR 137-020-0150 that incorporate the definition of “condition” are invalid under ORS 183.400(4)(b) because the definition of “condition” under OAR 137-020-0150(1)(b) exceeds the Attorney General’s rulemaking authority. BP notes that “the legislature expressly delegated [727]*727to the Attorney General the limited authority to adopt rules ‘to aid in the implementation’” of ORS 646.930 under Oregon Laws 1985, chapter 751, section 2, and, as a result, “the Attorney General’s rulemaking authority under ORS 646.930 is limited to the adoption of rules that are consistent with the legislative policy expressed in the statute.” The crux of BP’s argument is that ORS 646.930 prohibits the Attorney General from adopting a rule that defines “conditions” in a way that could require “the display of conditions that increase the lowest cash price rather than conditions to obtaining the lowest cash price.” See Garrison v. Dept. of Rev., 345 Or 544, 548-49, 200 P3d 126 (2008) (“[A] rule created within a statutory scheme cannot amend, alter, enlarge upon, or limit statutory wording so that it has the effect of undermining the legislative intent.”).

The Attorney General contends that the legislature has given the Attorney General the authority under ORS 646.608(1)(u) to adopt rules so that the Attorney General can protect consumers and effectively implement ORS 646.930. In the Attorney General’s view, “ORS 646.930, as amended, is not a legislative blessing allowing gasoline retailers to provide misleading information to consumers; [and OAR 137-020-0150] is fully consistent with its actual legislative purposes, as revealed by the text, context, and legislative history.”

We begin by identifying the legal framework established by OAR 137-020-0150(1)(b).

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Cite This Page — Counsel Stack

Bluebook (online)
396 P.3d 244, 284 Or. App. 723, 2017 Ore. App. LEXIS 483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bp-west-coast-products-llp-v-oregon-department-of-justice-orctapp-2017.