[235]*235RICHARDSON, J.
Defendant was charged with indecent exposure under Portland City Code (PCC) § 14.24.060. He demurred, contending that ORS 163.465 preempts the ordinance. The trial court agreed and dismissed the charge. The city appeals, and we affirm.
PCC § 14.24.060 provides, in part:
“It is unlawful for any person to expose his or her genitalia while in a public place or place visible from a public place, if the public place is open or available to persons of the opposite sex.”
ORS 163.465 provides, in part:
“(1) A person commits the crime of public indecency if while in, or in view of, a public place the person performs:
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“(c) An act of exposing the genitals of the person with the intent of arousing the sexual desire of the person or another person.”
Because the general issue with which we are concerned has arisen so frequently and been treated so variably by the two appellate courts in recent years, we begin by discussing the relevant precedent in some detail. Under Article XI, section 2, one of the Home Rule Amendments to the Oregon Constitution, the legislative authority of cities is made “subject to the Constitution and criminal laws of the State of Oregon.” In La Grande/Astoria v. PERB, 281 Or 137, 148-49, 576 P2d 1204, on rehearing 284 Or 173, 586 P2d 765 (1978), the Supreme Court explained generally how the criminal law “reservation” in the amendment bears on whether municipal criminal legislation is preempted by state law:
“It is reasonable to interpret local enactments, if possible, to be intended to function consistently with state laws, and equally reasonable to assume that the [state] legislature does not mean to displace local civil or administrative regulation18 of local conditions by a statewide law unless that intention is apparent.
[236]*236La Grande/Astoria was concerned with civil legislation. The court first had occasion to apply its dictum to criminal legislation in City of Portland v. Dollarhide, 300 Or 490, 714 P2d 220 (1986), where the issue was whether the city ordinance provisions criminalizing and fixing the penalty for prostitution were preempted by the state prostitution statutes. The court said:
“The essential test for displacement of local ordinances (civil or criminal) by state law is whether the local rule is ‘incompatible with the legislative policy, either because both cannot operate concurrently or because the legislature meant its law to be exclusive.’ [La Grande/Astoria v. PERB, 281 Or 137, 148, 576 P2d 1204, on rehearing 284 Or 173, 586 P2d 765 (1978).] In the area of civil or administrative ordinances regulatinglocal conditions, it is reasonable to assume that the legislature did not mean to displace local ordinances, unless that intention is apparent. See, e.g., State ex rel Haley v. City of Troutdale, 281 Or 203, 576 P2d 1238 (1978) (finding no manifest legislative intent to exclude local provisions which ‘supplemented’ the state building code). The reservation in Article XI, section 2, however, reverses this assumption with respect to state criminal law.
“The analysis of compatibility begins then with the assumption that state criminal law displaces conflicting local ordinances which prohibit and punish the same conduct, absent an apparent legislative intent to the contrary. * * *
“The inquiry does not end here, of course, because we have yet to decide how much symmetry between state and city criminal laws is required by Article XI, section 2, so as not to be in conflict. Harlow v. Clow, [110 Or 257, 223 P 541 (1924), overruled on other grounds, Landreth v. Gladden, 213 Or 205, 223, 324 P2d 475 (1958)], a case decided relatively close in time to the adoption of Article XI, section 2, suggests that, in order that the defining elements of a city’s crime not conflict with state law, they must virtually ‘duplicate’ the state law elements. We state the rule that in determining whether the defining and prohibiting provisions of a city criminal ordinance conflict with a state criminal statute, the test is whether the ordinance prohibits an act which the statute permits, or permits an act which the statute prohibits.” 300 Or at 501-02. (Emphasis in original; footnote omitted.)
Applying those principles, the court concluded that the prohibitory aspects of the ordinance, which virtually duplicated [237]*237the state statute, were not preempted, but that the city-penalty, which exceeded that under the statute, was “displaced.”
The Supreme Court revisited the issue in City of Portland v. Lodi, 308 Or 468, 782 P2d 415 (1989), where the question was whether the city prohibition of carrying a concealed pocketknife with a blade longer than a specified length was preempted by ORS 166.240, the state statute that criminalizes carrying certain concealed knives but not knives of the kind in question. The court said:
“The preemption issue arises under Article XI, section 2, of the Oregon Constitution, which authorizes the voters of a city to enact and amend the city’s charter ‘subject to the Constitution and criminal laws of the State of Oregon.’ The background of the quoted phrase and its judicial interpretation were reviewed in City of Portland v. Dollarhide, 300 Or 490, 714 P2d 220 (1986). That decision involved a penal ordinance which prohibited prostitution in terms essentially identical to the state’s criminal code but, unlike the state law, imposed mandatory minimum penalties. This court held that the primacy of the state’s criminal law over city penal ordinances forbade the city not only to extend the reach of an offense but also to increase the penalties for a substantively identical offense without a showing of legislative consent to such an extension.
* * * *
“The City further objects to the Court of Appeals’ conclusion that the statute permits the carrying of the kind of concealed knife that the ordinance prohibits. The Court of Appeals drew from Dollarhide, 300 Or at 502, the proposition that a city ‘cannot prohibit an act that the statute permits,’ 94 Or App at 738. The City argues that statutory silence should not be construed as ‘permission.’
“The word ‘permits’ lends itself to this argument, but the preemption issue is the same without the word. In theory, what the legislature ‘permits’ can range from express permissive terms to total inattention and indifference to a subject. The search is not for particular words but for a political decision, for what the state’s lawmakers either did or considered and chose not to do. The search for a negative decision, in the context of preemption, can involve variations ranging from mere inaction on a bill or other proposal, which hardly represents a collective judgment, to rejection of a [238]*238proposal by vote after debate (perhaps even after passage by one house), which may be a collective decision although it also falls short of affirmative lawmaking.” 308 Or at 471-74. (Footnote omitted.)
The court then looked to the legislative history of the statute, and discerned an intent to disallow the criminalization of carrying concealed knives of the kind prohibited by the city. The court based its decision on affirmative evidence of a preemptive intent. Although it nominally reiterated the assumption of preemption standard, its decisional analysis assumed nothing.
We applied the Dollarhide-Lodi principles in Denton Plastics, Inc. v. City of Portland, 105 Or App 302, 804 P2d 1199 (1991), and State v. Long, 106 Or App 389, 807 P2d 815, clarified 107 Or App 284, 812 P2d 831 (1991). We summarized in Long:
“In Denton Plastics[, Inc.] v. City of Portland, 105 Or App 302, 305, 804 P2d 1199 (1991), we articulated a two-step preemption analysis: (1) Does the ordinance conflict with state law? (2) If so, did the legislature intend to permit a conflict? Legislative permission ‘can range from express permissive terms to total inattention and indifference to a subject.’ City of Portland v. Lodi, 308 Or 468, 474, 782 P2d 415 (1989). There are two types of conflict. The first is facial, when an ordinance directly contradicts a state law in an area of substantive policy. In the criminal context, the facial conflict arises because the ordinance prohibits an act that the state permits or permits an act that the state prohibits. City of Portland v. Dollarhide, 300 Or 490, 502, 714 P2d 220 (1986). If the laws conflict facially, the ordinance is preempted, because the legislature has made a political policy decision. See City of Portland v. Lodi, supra, 308 Or at 474 (1989).
“The second type of conflict is when laws dealing with the same subject differ in part but are still compatible as a whole. See City of Portland v. Dollarhide, supra, 300 Or at 498-499; Harlow v. Clow, 110 Or 257, 223 P 541 (1924). This type of conflict is not necessarily fatal to the ordinance. For example, a criminal ordinance and a state statute may prohibit the same general act, but there may be differences in either the elements of, or penalties for, the offenses. In that situation, there is a rebuttable presumption that the ordinance is preempted because of Article XI, section 2, of the Oregon [239]*239Constitution. See Denton Plastics[, Inc.] v. City of Portland, supra, 105 Or App at 306; see also 6 McQuillan, Municipal Corporations, § 23.05, 507 (3d ed, 1988 rev).
“A criminal ordinance that conflicts with state law in that way overcomes the presumption if it is shown that the legislature made a political decision not to preempt. If such a decision was made, the legislature has determined that the ways in which the ordinance differs are properly left within municipal power. An ordinance may complement a field not exclusively occupied by state law.” 106 Or App at 393.
We found no conflict between the state and local provisions in Denton Plastics or Long, and we found a legislative decision not to preempt in Long, in part because the legislature had considered but not adopted an express preemption provision.
It is difficult to fathom, under the existing Oregon authority, what the questions are in preemption cases, let alone the answers. The uncertainty begins with the language that we have quoted from Dollarhide. It first states that the “essential test,” in the criminal as well as the civil context, is whether the local provision is incompatible with state law, because the two cannot operate concurrently or because the state legislature intended its law to be exclusive. The court then restated the La Grande/Astoria proposition that “displacement” is “assumed” in the context of criminal law. However, the court immediately restated that proposition, with the intended or unintended modifier that it applies only to conflicting local legislation, which, in the absence of clearly expressed legislative intent to tolerate it, is preempted. The court then went on to define the test for a conflict as being whether the ordinance prohibits what the statute permits or permits what the statute prohibits.
At least three possible and partially inconsistent standards inhere in the Dollarhide formulation: (1) There is an assumption of preemption of all local criminal laws; (2) the assumption applies only when the state and local provisions conflict; or (3) there is an assumption that they do conflict. Dollarhide also leaves unexplained how any or all of those tests tie back to the two components in its “essential test,” i.e., concurrent operation and intended exclusivity. However, the overriding difficulty in applying Dollarhide is not that its precise meaning is unclear; rather, it is that Dollarhide [240]*240contains language to support almost every imaginable rationale and result in every preemption case.
Lodi does nothing to ameliorate the confusion. It emphasizes that the legislature must have made a political decision but, against the backdrop of Dollarhide and La Grande/Astoria, it is unclear whether that decision must have been one to permit what the local legislation prohibits or one that negates a preemptive intent. Read in isolation, Lodi is susceptible to the understanding that the “assumption” of preemption was abandoned there. See Denton Plastics, Inc. v. City of Portland, supra, 105 Or App at 306-07. However, Lodi stated the court’s adherence to the assumption principle, even though it did not apply it.
Although they are internally sensible, Denton Plastics and State v. Long, supra, are hard to reconcile with Dollarhide. Many of the tests or possible tests under the Supreme Court’s opinion seem to disappear in Denton Plastics and Long-, they are replaced by the questions of whether the provisions conflict and, if so, whether the legislature intended to allow the conflict. Some of the Dollarhide tests remain as sub-questions in Long and Denton Plastics, but their ultimate search is for conflict rather than for the “essential” Dollarhide factors of concurrent operation and intended exclusivity. Also, the “assumption” of preemptive intent, to which the Supreme Court decisions refer, was converted into a “rebuttable presumption” in our two decisions.
The term “assumption” in La Grande/Astoria and Dollarhide may have been an unfortunate and probably unintended word choice, insofar as it implies an evidentiary presumption. The meaning of legislation is a question of law. We therefore understand the court’s meaning to have been that the “reservation” for state criminal law in Article XI, section 2, lends guidance to discerning the legislature’s intent to preempt or not to preempt; however, it does not make the determination of legislative intent a matter of presumptions, burdens of proof or weighing of evidence, instead of the question of law that it always has been and necessarily must be.
[241]*241 Nevertheless, the word “assumption” in the Supreme Court opinion necessarily means that the search for legislative intent in criminal law preemption cases does not begin in equipoise: The starting premise is that preemption was intended unless the language or history of the statute indicates otherwise. There is no magic formula for applying the assumption. A nonpreemptive intent can be manifested through express statutory language that allows local legislation, see State v. Lopez-Vega, 111 Or App 252, 826 P2d 48 (1992); through the defeat of a bill that would have been expressly preemptive, see State v. Long, supra-, and through myriad other ways, affirmative and negative, that statutory language and legislative history can reveal a particular intent.1
The existence of conflict between state and local enactments, and of the legislature’s intent whether to tolerate it, is not, as we suggested in Denton Plastics and Long, the exclusive focus of preemption analysis. The existence of conflict will usually answer the first of the two “essential” questions under Dollarhide — whether the statute and the ordinance can operate concurrently. However, it has little to do with the second question — whether the legislature meant its law to be exclusive. Denton Plastics and Long read Dollarhide wrongly, to the extent that they understand it to say that the critical search is for a legislative intent to allow conflicting local legislation; rather, notwithstanding its acknowledgment of an occasional legislative intent not to displace conflicting local laws, the essential concern in Dollarhide was with the preemption of any local criminal enactments, conflicting or not, and the court said that local legislation that does not conflict with state statutes may nevertheless be preempted if the legislature intended its law to be exclusive.
Denton Plastics and Long are incorrect in their premise that local legislation that differs from state law, but [242]*242is “compatible as a whole” with it, is “conflicting” legislation within the meaning of Dollarhide. Legislation of that kind satisfies the Dollarhide standard of being capable of operating concurrently with state law. See 300 Or at 498-99. City of Portland v. Lodi, supra, on which our cases relied, does not support the conclusion that the focus of all preemption analysis is on the existence of conflict and on the state legislature’s intent to tolerate it or not. Lodi happened to deal only with those questions, because the court concluded there, on the basis of perceived legislative intent, that the ordinance prohibited what state statute permitted. Lodi does not suggest, contrary to Dollarhide, that that is the end point of the inquiry in all criminal law preemption cases, and it certainly does not end the inquiry in cases such as Denton Plastics and Long, where the local and state provisions were not in conflict.2
The Dollarhide tests were presumably meant to be internally consistent and susceptible to practical application. Hence, we understand “conflict” to mean the converse of capability of concurrent operation, and the test for both is whether an ordinance permits or prohibits what a statute treats in the opposite way. If the answer is yes, the ordinance is preempted, unless there is a clear statutory intent to the contrary. If the answer is no, the question remains whether the legislature intended its law to be exclusive in the area. The other “tests” in Dollarhide have no bearing on that question. It turns on legislative intent, which is to be discerned from the usual sources, subject to the “assumption” of a preemptive intent. To the extent that Denton Plastics, Inc. v. City of Portland, supra, and State v. Long, supra, are inconsistent with what we have said here, we overrule them, and we leave it to the Supreme Court to make any revisions in its own case law that it might recognize as appropriate.
[243]*243We turn to the specific issue in this case. Defendant argues that the ordinance conflicts with ORS 163.465, because the ordinance prohibits an act that the statute permits. ORS 163.465 prohibits public exposure when it is done with the intent of arousing sexual desire. PCC § 14.24.060 prohibits public exposure, without regard to whether the act is done with the intent to arouse. As in Lodi, the legislative history here reveals an intent to permit what the city ordinance prohibits. In the Commentary to Tentative Draft No. 1 of the Proposed Oregon Criminal Code, the Criminal Law Revision Commission discussed what would become ORS 163.465:
“Indecent or lewd exposure of the person to the public view is a common law misdemeanor and it has been made a specific offense under many state statutes.
“Subsections (1) and (2) proscribe the performance of certain sexual activity in a public place. There is no mens rea requirement here; the commission of the act in public for whatever reason constitutes the offense.
“Subsection (3) requires an intent to arouse the sexual desire of the actor or another. An accidental or negligent exposure would not violate this section." Commentary to Proposed Oregon Criminal Code 70, Tentative Draft No. 1, § 17 (February, 1970). (Emphasis supplied.)
See also Minutes, Criminal Law Revision Commission, December 13, 1969, p 57.
In addition, the legislature considered and rejected an amendment that would have eliminated the “intent” requirement in ORS 163.465. The predecessor statutes, former ORS 167.145 and former ORS 161.3103 (repealed by Or [244]*244Laws 1971, ch 743, § 432), did not make the intent to arouse sexual desire an element of the offense. The House Committee on the Judiciary considered an amendment to delete the “intent” requirement from ORS 163.465(1)(c), but it was not adopted by the Committee. See Minutes, House Committee on the Judiciary, May 17, 1971, p 5.
We conclude that the legislature intended in ORS 163.465 to permit what the ordinance proscribes. The city argues, however, that the legislative history of the state criminal code as a whole negates a preemptive intent: It contends that ORS 166.0254 prohibits the public exposure of genitalia without the intent to arouse. The city relies on the Commentary to the Final Draft of the Proposed Oregon Criminal Code:
“Paragraph (c) [of ORS 163.465(1)] requires an intent to arouse the sexual desire of the actor or another. An exposure that is not sexually motivated would not violate this section, but might he ‘disorderly conduct ’ ” Commentary to Proposed Oregon Criminal Code 129, Final Draft and Report, § 120 (July, 1970). (Emphasis supplied.)
Even if non-sexually motivated acts of exposure can be unlawful under the disorderly conduct statute, that does [245]*245not suggest that the legislature intended to permit the prohibition of accidental or negligent public exposure. That behavior would not be unlawful under ORS 166.025(1), unless the person committed the crime with the intent to cause public inconvenience, annoyance or alarm or “recklessly created a risk thereof.” The commentary demonstrates that, by requiring the intent to cause public inconvenience, the Criminal Law Revision Commission intended to avoid a strict liability offense like the one under the city’s ordinance. See Commentary to Proposed Oregon Criminal Code 214, Final Draft and Report, § 220 (July, 1970); see also Minutes, Senate Criminal Law and Procedure Committee, March 16, 1971, p 2.
Because both statutes on which the city relies contain scienter elements and the ordinance prohibits exposure regardless of the actor’s mental state, it prohibits what the state legislature intended to permit. The ordinance is preempted, and the trial court properly allowed the demurrer.
Affirmed.