author: NELSON, J.

text:
    In the MATTER OF the COMPENSATION OF Cozmin I. GADALEAN, Claimant.
    Cozmin I. Gadalean, Respondent on Review, v. SAIF Corporation and Imperial Trucking, Inc., Petitioners on Review.
    SC S065203
    Supreme Court of Oregon.
    Argued and submitted May 10, 2018. April 18, 2019
    Julie Masters, SAIF Corporation, Salem, argued the cause and filed the briefs on behalf of petitioners on review.
    Julene M. Quinn, Portland, argued the cause and filed the brief on behalf of respondent on review.
    Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, and Nelson, Justices, and Landau, Senior Justice pro tempore.

      Duncan and Garrett, JJ., did not participate in the consideration or decision of this case.

   NELSON, J.

This case requires us to decide whether the definition of "worker" in the Workers' Compensation Law encompasses a claimant injured during a preemployment drive test that consisted of an actual delivery for an employer. To qualify for workers' compensation, a claimant must be a "worker." ORS 656.027. ORS 656.005(30) defines "worker," in part, as a person "who engages to furnish services for a remuneration." Claimant, a commercial truck driver, was sent on a supervised delivery by and for employer as a preemployment drive test. He was injured when he fell from employer's truck. The Workers' Compensation Board (the board) denied claimant coverage, concluding that he did not qualify as a worker at the time of the injury. The Court of Appeals reversed, holding that Oregon's minimum wage laws would have entitled claimant to be paid for the delivery and that, therefore, he was a worker within the meaning of the workers' compensation statute. Gadalean v. SAIF , 286 Or. App. 227, 398 P.3d 503 (2017). For the reasons that follow, we conclude that the Court of Appeals erred, and we affirm the board's denial of coverage.

FACTS

We take the historical facts from the board's findings set out in its order. Those include the earlier findings of an administrative law judge (ALJ), which the board adopted along with its own factual summary.

In May 2014, claimant responded to employer's job advertisement for a truck driver position. He applied for the position by email and submitted his resume online. He also completed a drug screen and provided employer with copies of his current Commercial Driver's License, medical card, social security card, and DMV records, along with the results of the drug screen.

Soon thereafter, employer's owner, Van Hyning, had claimant come to his office for an interview, where they discussed his application and the requirements of the job. Claimant was scheduled to take a mandatory U.S. Department of Transportation (DOT) pre-employment driving test.

The board found that no offer of employment was made during that meeting.

On June 4, 2014, claimant met with Hanson, one of employer's truck drivers, for the driving test. Claimant drove one of employer's trucks, with Hanson as a passenger, to a designated delivery location. While disconnecting hoses from the trailer at that location, claimant fell four or five feet from the truck to the ground. He landed on his left hip and experienced significant pain. Claimant's injury rendered him unable to drive the truck, and Hanson drove to the next stop, where they picked up an empty container before returning to employer's premises.

Van Hyning did not ask claimant to come back to finish the driving test. Claimant did not fill out any employment tax forms. He did not receive any written offer of employment.

After the accident, claimant sought medical treatment for his injury and was diagnosed with left hip strain. On June 10, 2014, claimant filed an injury claim with SAIF, alleging that he had injured himself on June 4, while working for employer as a truck driver. Claimant also submitted Workers' Compensation Form 801 to employer. On that form, under "date worker hired," employer wrote "preemployment driving test," because claimant had not been hired yet and the driving test and evaluative process had been unpaid work.

As part of SAIF's investigation of his claim, claimant told a SAIF investigator that he had understood that Van Hyning had "want[ed] to evaluate me," which was why he had sent claimant with another driver. Claimant did not know whether June 4 had been considered a training day or a preemployment evaluation day. As he understood it, the agreement was that Van Hyning would assess how he performed on June 4, and, if he passed, he would "continue working." Claimant also told the investigator that he had not received any written offer of employment nor filled out any employment tax form.

SAIF denied compensability of the claim, asserting that claimant had not been a subject worker at the time of the injury because he had not met the definition of "worker" in ORS 656.005(30). On claimant's request, an ALJ later conducted a hearing, at which he considered the investigator's report and the testimony of three witnesses: claimant, Van Hyning, and Hanson.

Claimant testified that, when he first met with Van Hyning, he was given a job description and a schedule, and told what his pay would be. Claimant further asserted that Van Hyning had told him that he had the job before the safe driving test, did not say that claimant was being evaluated that day, and had agreed to pay claimant 25 percent of the gross profit from the delivery claimant was to complete.

The investigator's report summarized claimant's understanding somewhat differently:

"Van [H]yning 'wants to evaluate me[,]' which was the reason he sent [claimant] with another driver. [Claimant] did not receive a written job offer. Van [H]yning did not tell [claimant] he got the job just [he] wanted [claimant] to drive with another driver. The point was not to offer a job but to evaluate how good [claimant] can do the job. [Claimant] could not define June 4, as a training day or evaluation day. [Claimant] said that Van [H]yning was going to send [him] to work for one day to see how he does and if [claimant] did a good job he would continue working. On June 4, 2014, [claimant] said he drove the truck to a warehouse in Clackamas. [Claimant] did not fill [out] any employment tax forms. He did not receive any written job offer."

(Alterations in original.)

Van Hyning testified that he could not remember what he specifically had told claimant in their meeting prior to the drive, but that he had not hired claimant. He explained that it was his usual practice to tell applicants that they would be required to take an unpaid safe driving test as part of the evaluation process. According to Van Hyning, a safe driving test was required by DOT, and every driver hired by employer had to take and pass the test. The employer's test involved putting the individual in a regular delivery scenario and having the prospective employee drive in real-world situations with an experienced driver. Individuals participating in the safe driving test were not placed on any insurance. For individuals who passed the test, Van Hyning would meet with them again to discuss the job in more detail and see if they were still interested. Van Hyning testified that, at that point in time, he would have told claimant that he had been hired and required him to fill out tax forms.

Van Hyning also explained that, if claimant had been an employee when he was injured on the delivery, he would have been paid. Van Hyning did not think that the employer had received any benefit from claimant's participation in the delivery because Hanson, who had been paid for his work that day, would have been driving the route even if claimant had not been there.

During Hanson's testimony, he estimated that claimant had driven about 30 miles before he was injured. Hanson also testified that he took a safe driving test before he was hired, and he did not think a driver could be evaluated without doing the "road test." He also verified that every potential employee of employer had to take the road test prior to employment.

The ALJ affirmed SAIF's denial of the claim after determining that, at the time of his injury, claimant had not been hired and had not received any kind of remuneration or promise of future remuneration, and was therefore not a subject worker. In making that determination, the ALJ discredited claimant's testimony that he had been told that he would be paid twenty-five percent of the gross profit for the delivery. In that regard, the ALJ specifically stated that claimant's testimony "at [the] hearing was at odds with his prior *** statement" and "was vague or contradictory."

By contrast, the ALJ found Van Hyning and Hanson credible. The ALJ found that "Van Hyning [had] asked claimant to engage in an unpaid driving test" and that claimant had understood that "there was no employment agreement at that time or promise of future remuneration." The ALJ also determined that "Van Hyning emphasized to claimant that the driving test was required by DOT, was unpaid, and he would not even consider hiring claimant until he successfully passed the driving test."

Claimant sought review of the ALJ's order by the board. The board affirmed on review and on reconsideration, adopting the ALJ's findings of fact. One member dissented, explaining that she considered employer's receipt of claimant's services without remuneration unjust and would, therefore, infer the presence of an implied contract establishing claimant as a subject worker. She noted that, although not controlling, the minimum wage statutes supported finding an implied-in-law contract.

Claimant filed a petition for judicial review in the Court of Appeals. On review, claimant did not take issue with any of the board's findings of fact. Instead, he contended that the board should have looked beyond the workers' compensation statutes to the minimum wage law to determine applicability of benefits.

The Court of Appeals reversed the board, concluding that claimant indeed had qualified as a worker at the time of his injury because he had been "put to work" and thus was entitled to receive the minimum wage for the delivery he made. The court reasoned that, under ORS 656.005(30), a "worker" is someone who enters into a contract to work for pay. The court noted that, (1) in the absence of specific statutory exemptions, under the minimum wage statute, ORS 653.025, a person must be paid a wage for work; and (2) what claimant did for employer was "work" as a matter of law, regardless of whether employer had the subjective or even primary purpose of evaluating him in anticipation of permanent employment. Gadalean , 286 Or. App. at 229-30, 398 P.3d 503.

The Court of Appeals then determined that claimant had furnished services to employer requiring remuneration because employer had conceded that claimant had performed the activities of a regularly employed driver, that the delivery had been performed in the ordinary course of employer's business, and that employer probably had been compensated for the delivery. The court also indicated that employer had received the benefit of being able to evaluate claimant's driving without disrupting its ordinary delivery schedule or expending resources to administer a separate driving test. Id. at 231, 398 P.3d 503.

SAIF petitioned for review. We allowed review to address the proper interpretation of the definition of "worker" set out in ORS 656.005(30), specifically, the meaning of the phrase "engages to furnish services for a remuneration."

ANALYSIS

In this case, neither claimant nor petitioner challenged the board's factual findings in its final order. As a result, those findings are binding for the purposes of our review. Multnomah County Sheriff's Office v. Edwards , 361 Or. 761, 776, 399 P.3d 969 (2017). Thus, we review only the legal question of whether claimant was a "worker" under the board's factual findings. See ORS 183.482(8)(a) (court reviews legal conclusions for errors of law). Under ORS 656.005(30), a "worker" is "any person *** who engages to furnish services for a remuneration."

SAIF argues that the Court of Appeals erred in concluding that an agreement for remuneration existed between claimant and employer as a matter of law based on the minimum wage statute. SAIF reasons that, for claimant to have been a "worker" for workers' compensation purposes, ORS 656.005(30) requires a contract with an express or implied agreement between the employer and a person "who engages to furnish services for a remuneration." It argues that the Court of Appeals used the minimum wage law to find a contract implied at law, which it contends was improper because the Workers' Compensation Law is a creature of statute and, thus, common-law remedies cannot be substituted for its requirements.

Claimant responds, relying on the Court of Appeals reasoning in Amos v. SAIF , 72 Or. App. 145, 694 P.2d 998 (1985), that we should look to minimum wage law to determine whether he was a "worker" under the Workers'

Compensation Law. Claimant argues that the Court of Appeals correctly chose to apply Oregon minimum wage law to conclude that the definition of "worker" had been satisfied because claimant had agreed to perform work and was entitled to remuneration as a matter of law. He contends that the requirement "for a remuneration," ORS 656.005(30), can be implied when required by law and that, as a matter of public policy, the law mandates that someone who is put to work be treated as a worker under both the minimum wage law and the Workers' Compensation Law.

Claimant's reliance on Amos , however, is misplaced: even if we were to endorse the Court of Appeals' reasoning in Amos , we disagree that it applies here. In Amos , the Court of Appeals concluded that it was appropriate for the board to apply Oregon's paternity laws to determine whether a claimant was entitled to benefits as an "illegitimate child," in the absence of a statutory definition of illegitimacy under the Workers' Compensation Law. 72 Or. App. at 149, 694 P.2d 998. In this case, by contrast, the legislature has defined "worker" for the purposes of the Workers' Compensation Law. The minimum wage law would not be helpful in determining any aspect of the definition of "worker"; indeed, under claimant's proposed application, the minimum wage law would substitute for large parts of the statutory definition of "worker." Neither the board nor the courts may substitute express statutory requirements with incompatible provisions from other statutes or common law. See generally ORS 174.010 (when construing statutes, courts may neither insert what has been omitted nor omit what has been inserted); see also ORS 656.003 ("Except where the context otherwise requires, the definitions given in this chapter govern its construction.").

We are thus confronted with an issue of statutory construction to determine the legislature's intended meaning of ORS 656.005(30) and, if employer had claimant perform an activity for which minimum wage law requires a wage, whether claimant therefore had "engage[d] to furnish services for a remuneration." We resolve that issue in accordance with the framework for statutory interpretation described in PGE v. Bureau of Labor and Industries , 317 Or. 606, 610-12, 859 P.2d 1143 (1993), and State v. Gaines , 346 Or. 160, 171-73, 206 P.3d 1042 (2009), which require us to examine the text of the statute in context, together with helpful legislative history.

Turning first to the text of ORS 656.005(30), it provides, in part:

" 'Worker' means any person, including a minor whether lawfully or unlawfully employed, who engages to furnish services for a remuneration, subject to the direction and control of an employer ***."

That definition, in turn, uses other words that are not defined. We presume that the legislature intended those words to mean what they mean in ordinary usage. State v. Dickerson , 356 Or. 822, 829, 345 P.3d 447 (2015). "Engage" is used in ORS 656.005(30) as an intransitive verb. As such, the most relevant definition for "engage" is "to enter into or take on an obligation." Webster's Third New Int'l Dictionary 751 (unabridged ed. 2002). The legislature, however, did not define a worker solely as one who takes on an obligation. It further chose to specify what that obligation must entail-that the claimant will "furnish services for a remuneration, subject to the direction and control of an employer."

The parties agree that an obligation to "furnish services" for a "remuneration" are independent elements of the statutory requirement to be a worker. SAIF argues, however, that remuneration must be a part of the agreement between employer and claimant for claimant to have been a worker. Antithetically, claimant contends that an entitlement to remuneration here, by way of the minimum wage law, is sufficient to satisfy the "for a remuneration" requirement and that the only agreement that must exist between the parties is for the claimant to be put to work.

The parties' disagreement thus centers around what the legislature meant when it said that the services are furnished "for " a remuneration. Although "for" has many definitions, all the potentially relevant definitions connote a similar meaning: that the subject acted with an expected result. See Webster's at 886 (defining "for" as "in order to bring about or further"; "with the purpose or object of"; or "in order to obtain or gain"). The most plausible reading of the statute, therefore, is that a worker is one who satisfies both components of the definition by demonstrating that (1) he or she undertook an obligation to furnish services; and (2) that he or she did so for -with the expected result of-remuneration. Because the expectation of remuneration arises out of the circumstances of the claimant's relationship with an alleged employer, we also conclude that the claimant's expectation of remuneration must reasonable in light of the circumstances.

Noting that the plain text requires an expectation of remuneration, which, as noted, must be reasonable, we turn briefly to the Court of Appeals' opinion and parties' arguments as they pertain to minimum wage law. The Court of Appeals did not engage in our normal statutory interpretation framework; instead, it concluded that the minimum wage law was dispositive of claimant's status as a worker under ORS 656.005(30). That court reasoned that what claimant did for employer was "work" and that, under minimum wage law, a person must be paid for work. Thus, the Court of Appeals concluded, claimant qualified as a worker, because he was entitled to remuneration under an implied-in-law contracts theory. Gadalean , 286 Or. App. at 230, 398 P.3d 503.

We disagree with that approach. Under the implied-in-law theory on which the Court of Appeals relied, a contract implied in law creates an entitlement to remuneration. See Derenco v. Benj. Franklin Fed. Sav. and Loan , 281 Or. 533, 557, 577 P.2d 477, cert. den. , 439 U.S. 1051, 99 S.Ct. 733, 58 L.Ed.2d 712 (1978) (discussing that a contract implied in law is not a contract; " 'it is simply a rule of law that requires restitution to the plaintiff of something that came into defendant's hands but belongs to the plaintiff in some sense' " (quoting Dan B. Dobbs, Remedies § 4.2, 235 (1973))). ORS 656.005(30), however, requires something different than an entitlement to remuneration: By requiring an "engagement to furnish services for a remuneration," it requires a claimant to have acted expecting remuneration. Thus, a contract implied in law, whether by function of the minimum wage law or otherwise, is insufficient, standing alone, to fulfill the statutory requirement that a claimant engaged to furnish services "for a remuneration." The statute's requirement that a claimant have reasonably expected remuneration is at odds with an application of an implied-in-law contract that would make a claimant a "worker" based entirely on an entitlement to remuneration, in the absence of any expectation of that benefit. The Court of Appeals erred in concluding otherwise.

In this court, claimant proposes a variation of the Court of Appeals' construction. He contends that, if an employer is required to remunerate a claimant under the minimum wage law for services that the claimant performed, then the fact that remuneration is required qualifies the claimant as a "worker" because it would fulfill the statutory requirement that the agreement be "for a remuneration." Stated differently, any agreement to provide services for less than required wages under the minimum wage law is reformed by the minimum wage law to include remuneration at the statutorily required rate.

We disagree that minimum wage law operates to convert claimant into a "worker" under ORS 656.005(30). The question is not whether the agreement required remuneration, but whether, in engaging to furnish services, a claimant reasonably expected remuneration.

SAIF therefore is correct that claimant's proposed application of the minimum wage statute would improperly substitute the definition of "employ" under minimum wage law for the legislature's chosen definition of "worker" in the workers' compensation scheme. See generally ORS 653.025 (no employer shall "employ" or agree to employ at wages lower than those required under the statutory scheme);

ORS 653.010(2) ("employ" means to suffer or permit to work). Having resolved any confusion as to the effect of minimum wage law on claimant's status as a worker under ORS 656.005(30), we return to our familiar statutory interpretation framework and examine the context and legislative history of that statute.

The context of ORS 656.005(30) supports our understanding that, to qualify as a worker, a claimant must engage to furnish services reasonably expecting remuneration. Relevant context "includes other provisions of the same statute and other related statutes." PGE , 317 Or. at 611, 859 P.2d 1143. "When the legislature uses different terms in related statutes, we presume that the legislature intended different meanings." State v. Guzek , 322 Or. 245, 265, 906 P.2d 272 (1995). The same rule applies if the legislature used different terms in the same statute. See State v. Keeney , 323 Or. 309, 316, 918 P.2d 419 (1996) (citing State v. Harp , 299 Or. 1, 7 n. 7, 697 P.2d 548 (1985), for principle); see also Jordan v. SAIF, 343 Or. 208, 217, 167 P.3d 451 (2007) ("[The] use of a term in one section and not in another section of the same statute indicates a purposeful omission.").

In the Workers' Compensation Law, the legislature chose to define "employer" as "any person *** who contracts to pay a remuneration for *** the services of any person." ORS 656.005(13)(a). That is, to establish that an employer is subject to the act, the claimant need only demonstrate that, with respect to at least one person, there is a contract for remuneration in exchange for that person's services to the employer. Notably, the legislature's use of "contracts" to define "employer" under ORS 656.005(13) -but not "worker" under ORS 656.005(30) -indicates that the legislature intended the definition of "worker" to require something different from a contract. Although the definition of "worker" in ORS 656.005(30) includes all the requisite elements of a contract-and, as explained below, has long been construed as requiring a contract-the legislature chose to define "worker" with emphasis on the claimant's engagement, i.e. the claimant's taking on of an obligation that meets the statutory requirements. It is thus consistent with that claimant-focused inquiry to interpret the definition of "worker" as requiring a determination of the claimant's reasonable expectations. With that context in mind, we turn to the development of the statute over time.

Prior to the enactment of the Workers' Compensation Law, the employer-employee relationship was defined and used at common law primarily to establish vicarious liability against an employer by a third party. Lex K. Larson, 7 Larson's Workers' Compensation Law §§ 60.01, 60.04 (Matthew Bender rev.

ed., 2018). Because liability was being imposed on the employer for the actions of its agent, the inquiry focused on the principal. Whether an agent was an employee (and the employer subject to vicarious liability) was thus determined by "the principal's control of, or right to control, the agent's conduct." Eads v. Borman , 351 Or. 729, 738, 277 P.3d 503 (2012) ; Schaff v. Ray's Land & Sea Food Co., Inc. , 334 Or. 94, 99-100, 45 P.3d 936 (2002).

In enacting the Workers' Compensation Law, the legislature expanded on the common-law definition of "employ" to bring a claim within the scope of the act, requiring evidence of the elements of a contract as well as requiring a right to control. ORS 656.005(30) ; see also Vient v. State Indus. Acc. Commission , 123 Or. 334, 335-36, 262 P. 250 (1927) (noting that the relationship between an employer and employee under workers' compensation "originates wholly in contract"). The legislature also made workers' compensation the exclusive remedy for workers, abolishing the common-law remedies that workers could pursue against employers for workplace injuries in favor of a system of no-fault insurance that more sustainably distributes losses. ORS 656.012 ; see Smothers v. Gresham Transfer, Inc ., 332 Or. 83, 125-26, 23 P.3d 333 (2001) (discussing the substitution of workers' compensation as the exclusive remedy for workplace injuries in place of common-law causes of actions), overruled on other grounds by Horton v. Oregon Health and Science University , 359 Or. 168, 376 P.3d 998 (2016). By statute, an employee who is a subject worker does not have common-law claims against the employer. The employee has only workers' compensation insurance benefits, and those benefits are statutorily capped. See Smothers , 332 Or. at 125, 23 P.3d 333 ; see also Clarke v. Oregon Health Sciences University , 343 Or. 581, 616-17, 175 P.3d 418 (2007) (Balmer, J., concurring) (discussing Smothers and the limitations on recovery that are exchanged for a no-fault system). In light of that consequence, and because it is the worker who is affected, it is likely that the legislature intended that the applicability of the Workers' Compensation Law depend, in part, on the worker's agreement and expectations.

Following adoption of the Workers' Compensation Law, the legislature made several amendments, which provide some insight into the legislature's intended meaning of ORS 656.005(30). Prior to 1959, the Workers' Compensation Law provided that a worker was one who "engages to furnish his services, subject to the direction and control of an employer." Former ORS 656.002(15) (1957). In 1959, the legislature added to that definition the phrase, "for a remuneration." Former ORS 656.002(16) (1959). Although we have found nothing in the legislative history that explains that amendment, we understand it as intended to further codify the legislature's chosen standard by which workers' compensation is imposed on a worker. Employees are subject to the act if they take on an obligation to furnish services "for a remuneration."

Our analysis of the text and context ultimately leads us to conclude that a variety of scenarios could implicate ORS 656.005(30). For example, a claimant may take on an obligation to provide services having expressly agreed with the employer that he or she will do so for a remuneration, with the result that the claimant would have a reasonable expectation of remuneration. Or, a claimant may take on an obligation to furnish services, but there may be silence between the employer and claimant as to whether the services will be remunerated, which poses the question whether the claimant could prove any reasonable expectation of remuneration based on the circumstances. As explained below, however, when the record demonstrates that an employer has agreed that a claimant will provide services, but also has told the claimant that there will be no remuneration, the claimant cannot have reasonably expected a remuneration and, thus, does not qualify as a "worker."

APPLICATION

Returning to this case, the board found that employer had told claimant that he would not be paid for the pre-employment drive test and discredited claimant's assertion that he would be paid 25 percent of the gross profit for the delivery. As the board stated, "[T]he record only establishes that claimant had a possibility of employment dependent on whether he passed the safe driving test, which he did not." Because the board found, based off the ALJ's determination, that claimant had been told by employer that he was to perform the test and to do so without remuneration, claimant did not qualify as a "worker" under ORS 656.005(30) for the purpose of the Workers' Compensation Law.

The decision of the Court of Appeals is reversed. The order of the Workers' Compensation Board is affirmed.

      Van Hyning testified (and SAIF argues on review) that federal rules promulgated by the federal DOT require the safe driving test to occur before a driver can be hired.

      The ALJ's findings of fact did not state whether Van Hyning had been asked about claimant's charge that he would be paid a percentage of the profit for the delivery.

      In an implied-in-fact contract, the parties' agreement is inferred, in whole or in part, from their conduct. Larisa's Home Care, LLC v. Nichols-Shields , 362 Or. 115, 129 n. 5, 404 P.3d 912 (2017). This court has explained that a contract implied in fact arises "where the natural and just interpretation of the acts of the parties warrants such [a] conclusion." Owen v. Bradley , 231 Or. 94, 103, 371 P.2d 966 (1962).

      We need not-and do not-decide whether claimant was entitled to minimum wage.

      In light of our conclusion, explained below, that claimant did not prove a reasonable expectation of remuneration, we do not decide today whether-once a claimant has taken on an obligation to provide services for a remuneration-an injury sustained prior to the start of the remunerable duties might be compensable.

      The Restatement (Second) of Agency notes that, for liability to be imposed, a servant need not know the identity of the principal, so long as the principal "consent[s] to receive the service and has the power of direction over the servant's conduct to the same extent" as if the principal's identity were known to the servant. § 220-224 (1958).

      In 1959, ORS 656.002(15) (1957) was amended by Oregon Laws 1959, chapter 448, section 1, to become ORS 656.002(16) (1959). The statute was subsequently renumbered as ORS 656.005 in 1975 and then again amended by Oregon Laws 1977, chapter 804, section 1.

      When compared to other amendments to ORS 656.005(30), it is evident that the 1959 amendment narrowed the circumstances in which a claimant could be a worker. For example, in 1967, the legislature amended the statute to "includ[e] minors whether lawfully or unlawfully employed." Former ORS 656.002(21) (1967). In doing so, the legislature broadened the scope of employees who could potentially be "workers" without altering the requisite relationship that must exist between employer and employee for an employee to qualify as a "worker." By contrast, by adding the phrase "for a remuneration," the legislature narrowed the nature of the relationship.


source: Caselaw Access Project

author: BALMER, J.

license: Public Domain

text:
    STATE of Oregon, Respondent on Review, v. Victor UROZA-ZUNIGA, Petitioner on Review.
    CC C141815CR (SC S065368)
    Supreme Court of Oregon.
    Argued and Submitted September 11, 2018. April 18, 2019
    Anna Belais, Deputy Public Defender, Office of Public Defense Services, Salem, argued the case and filed the briefs for the petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.
    Jordon R. Silk, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Philip Thoennes, Assistant General Counsel, and Jayme Hafner, Assistant General Counsel, League of Oregon Cities, Salem, filed the brief for amici curiae League of Oregon Cities and City of Beaverton.
    Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, Nelson and Garrett, Justices.

      Kistler, J., retired December 31, 2018, and did not participate in the decision of this case.

   BALMER, J.

This case began with an arrest for public drinking, in violation of the Beaverton City Code. That arrest led to a search, a charge of drug possession, a denied motion to suppress, a trial to the court, a conviction for unlawful possession of methamphetamine, and an unsuccessful appeal. On review, defendant directs our focus to the beginning of this chain of events, the arrest. Beaverton prohibits drinking alcoholic beverages in any public place. Beaverton Code (BC) 5.02.083. Yet, ORS 430.402(1)(b), a state statute, prohibits Beaverton, along with all other local governments, from regulating or proscribing "[p]ublic drinking, except as to places where any consumption of alcoholic beverages is generally prohibited." Defendant argues that that statute preempts Beaverton's public drinking ordinance, making his arrest illegal and the fruits of that arrest subject to suppression. The state, along with amici curiae the City of Beaverton and the League of Oregon Cities, argues that it falls within ORS 430.402(1)(b) 's exception, and it is therefore not preempted. We hold that Beaverton's public drinking ordinance is not preempted by ORS 430.402(1)(b) and affirm defendant's conviction.

The pertinent facts are not in dispute. In August 2014, a Beaverton police officer responded to a call from a Plaid Pantry employee, reporting people drinking in the store's parking lot. When the officer arrived, he observed defendant and two other men drinking beer next to a van. The officer saw defendant put his beer into the van. Another officer arrived, and the two officers obtained consent to search the van. The search turned up four open beer bottles. Defendant was arrested for violating Beaverton's prohibition on public drinking.

One of the officers inventoried defendant's property. He discovered a small quantity of methamphetamine in defendant's wallet. Defendant was charged with unlawful possession of methamphetamine, ORS 475.894. He moved to suppress the evidence discovered during the inventory on the grounds that it was the product of an unlawful arrest. Defendant argued that the arrest was invalid because BC 5.02.083, the municipal ordinance under which he had been arrested, is preempted by a state statute, ORS 430.402.

BC 5.02.083 provides, "No person shall consume alcoholic liquor or possess an open container of an alcoholic beverage while in or upon any public place, unless authorized by the Commission or by subsection B of this section." In turn, "public place" is defined by BC 5.02.010 as

"[a] place to which the general public has access and includes, but is not limited to, hallways, lobbies and other parts of apartment houses and hotels not constituting rooms or apartments designed for actual residence and highways, streets, schools, places of amusement, parks, playgrounds, and premises used in connection with public passenger transportation."

ORS 430.402 provides,

"(1) A political subdivision in this state shall not adopt or enforce any local law or regulation that makes any of the following an offense, a violation or the subject of criminal or civil penalties or sanctions of any kind:
"(a) Public intoxication.
"(b) Public drinking, except as to places where any consumption of alcoholic beverages is generally prohibited.
"(c) Drunk and disorderly conduct.
"(d) Vagrancy or other behavior that includes as one of its elements either drinking alcoholic beverages or using cannabis or controlled substances in public, being an alcoholic or a drug-dependent person, or being found in specified places under the influence of alcohol, cannabis or controlled substances.
"(e) Using or being under the influence of cannabis or controlled substances."

(Emphasis added.)

The trial court denied defendant's motion, reasoning that BC 5.02.083 is not preempted because it falls within the exception in ORS 430.402(1)(b). Defendant waived his right to a jury trial and was convicted by the court after a trial on stipulated facts.

Defendant appealed, assigning error to the denial of his motion to suppress and renewing the argument that he made in the trial court. The state argued that BC 5.02.083 had not been preempted.

The Court of Appeals reasoned that

"[o]n its face, the text of ORS 430.402(1)(b) both bars municipalities from penalizing public drinking and carves out a broad exception for 'places where any consumption of alcoholic beverage is generally prohibited.' (Emphasis added.) Stated another way, the text of the statute suggests that a municipality may ban the consumption of alcohol in any place it designates so long as the ban is a general prohibition on public drinking (i.e ., rather than regulating what kind or volume of alcohol may be consumed). [BC] 5.02.083 does just that-it generally prohibits the consumption of all alcohol in public areas-and, therefore, it falls squarely within the exception carved out in ORS 430.402(1)(b)."

State v. Uroza-Zuniga , 287 Or. App. 214, 220, 402 P.3d 772 (2017). Determining that the context and legislative history supported that meaning, the Court of Appeals held that the ordinance was valid and affirmed defendant's conviction. Id . at 220-21, 224, 402 P.3d 772. We allowed review.

This case involves the intersection of state and local authority. The Oregon constitution provides that

"[t]he Legislative Assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon * * *."

Or. Const., Art. XI, § 2. That provision, along with Article IV, section 1(5), of the Oregon Constitution (reserving initiative powers over local legislation), gives Oregon municipalities their own, "home rule" authority "to regulate to the extent provided in their charters." Rogue Valley Sewer Services v. City of Phoenix , 357 Or. 437, 445, 353 P.3d 581 (2015). The City of Beaverton's charter, in turn, provides that

"The city shall have all powers which the constitutions, statutes, and common law of the United States and of this state expressly or impliedly grant or allow municipalities, as fully as though this charter specifically enumerated each of those powers."

Charter for the City of Beaverton, Chapter II, section 4. Under the powers granted by that charter, the City of Beaverton enacted the ordinance at issue in this case.

But local authority is not absolute. We have recognized that

"a general law addressed primarily to substantive social, economic, or other regulatory objectives of the state prevails over contrary policies preferred by some local governments if it is clearly intended to do so, unless the law is shown to be irreconcilable with the local community's freedom to choose its own political form."

LaGrande/Astoria v. PERB , 281 Or. 137, 156, 576 P.2d 1204, adh'd to on recons. , 284 Or. 173, 586 P.2d 765 (1978). That is, subject to certain limitations not pertinent here, the state government is permitted to preempt local ordinances.

Several of our past preemption cases have articulated tests to determine when a local criminal ordinance conflicts with a state criminal law. City of Portland v. Dollarhide , 300 Or. 490, 714 P.2d 220 (1986) ; City of Portland v. Jackson , 316 Or. 143, 850 P.2d 1093 (1993) ; City of Portland v. Lodi , 308 Or. 468, 782 P.2d 415 (1989). This case, however, does not concern preemption by implication. ORS 430.402 expressly states which local ordinances it preempts, alongside categories of local ordinances that the legislature did not wish to preempt. See Jackson , 316 Or. at 147, 850 P.2d 1093 (noting that former ORS 430.325(1) (1993), renumbered as ORS 430.402(1) (2011), was an example of the legislature "occupy[ing] an entire field of legislation on a subject, and expressly preclud[ing] local legislation on the subject"). In this context, whether ORS 430.402(1) is intended to interpret the Beaverton ordinance is solely a matter of statutory construction.

To resolve this case, we must therefore interpret ORS 430.402. We begin with the text. State v. Gaines , 346 Or. 160, 171, 206 P.3d 1042 (2009). ORS 430.402 provides,

"(1) A political subdivision in this state shall not adopt or enforce any local law or regulation that makes any of the following an offense, a violation or the subject of criminal or civil penalties or sanctions of any kind:
"* * * * *
"(b) Public drinking, except as to places where any consumption of alcoholic beverages is generally prohibited."

Defendant argues that ORS 430.402(1)(b) is best read to establish a broad prohibition on local laws penalizing "public drinking." He reads the exception to permit ordinances prohibiting public drinking only if they include an additional element-that the conduct occurs in certain "places." But, defendant argues, that additional element cannot be identical to or coextensive with the concept of public drinking-that is, the "places where" drinking may be prohibited cannot include all public places. Otherwise, defendant argues, the exception would nullify the rule- ORS 430.402(1)(b) would allow the prohibition of all public drinking.

The state argues that, under ORS 430.402(1)(b), "local governments may regulate public drinking within their jurisdictions wherever they choose, as long as they ban any consumption of alcohol from those places." Similarly, amici argue that the ban on local laws against public drinking in ORS 430.402(1)(b) permits local governments to enact a general ban on drinking alcoholic beverages in any or all public places as long as those bans are without regard to the type of beverage or its alcohol content.

One clearly ambiguous word in ORS 430.402(1)(b) is the word "generally," which, can mean "with respect to all : UNIVERSALLY "; "in a reasonably inclusive manner : in disregard of specific instances and with regard to an overall picture"; or "on the whole : as a rule." Webster's Third New Int'l Dictionary , 945 (unabridged ed. 2002). The use of the word "any" to modify "consumption of alcoholic beverages"

suggests that the legislature did not intend "generally" to mean "reasonably inclusive"-it would be somewhat contradictory to speak of a "reasonably inclusive" ban on "any" consumption of alcoholic beverages. Similarly, although ORS 430.402(1)(b) could be read to allow local bans on public drinking in the types of places where any consumption of alcoholic beverages is "as a rule"-that is, customarily-prohibited, that would be circular. Drinking could be banned where drinking is usually banned.

It makes the most textual sense to read "generally" to mean "universally"; then the phrase "places where any consumption of alcohol is generally prohibited" would refer to places where there is a ban "with respect to all" drinking. On that reading, ORS 430.402(1)(b) would allow a ban on drinking in a public place only if that ban was complete or comprehensive-that is, a ban that proscribes drinking of all alcoholic beverages at all times of day.

Defendant, however, focuses not on the word "generally" but on the word "places," arguing that it suggests that a local government may prohibit public drinking in particular locations but may not prohibit it in all public "places." That argument finds no purchase. Nothing about the word "places" suggests a limit on the number of places where a local government might ban alcohol. To the extent that defendant's argument rests on the intuition that "everywhere" is a single "place," the legislature has informed us that "[t]he singular number may include the plural and the plural number, the singular." ORS 174.127(1). And if the argument is that "all public places" is not really a place at all, it is a least composed of "places," in all of which drinking may be prohibited provided that the prohibition is general. Moreover, any limit along those lines would not be administrable in any principled manner- ORS 430.402(1)(b) supplies no standard for determining when drinking has been prohibited in too many places. As we read ORS 430.402(1)(b), a local ordinance may ban drinking in some public places or in all public places without being preempted. It is only when the ban on drinking in a given public place is partial or selective that ORS 430.402(1)(b) preempts local authority.

Defendant's other textual argument is that, so construed, the exception nullifies the rule. Beaverton, defendant argues, has enacted a ban on public drinking, exactly what ORS 430.402 prohibits. But that argument begs the question. As we read it, ORS 430.402(1)(b) does not prohibit all bans on public drinking, it requires that in any public place where drinking is banned, the ban must be general. ORS 430.402 (1)(b) may not include the prohibition for which defendant advocates, but it is not a nullity. Without ORS 430.402(1)(b), a municipality could enact a ban on public consumption of only some types of alcohol or a ban on public drinking that applied only at certain times of day. With it, such ordinances-prohibitions on public drinking that are not general bans on all public drinking-are expressly preempted.

We turn next to legislative history. The legislature enacted ORS 430.402 in 1971. Or. Laws 1971, ch. 622, § 3. It formed part of a comprehensive effort

"to end the longstanding practice of dealing with public drunkenness as a criminal offense * * * and to treat it instead as a health problem. A central aim of this legislative reform was to repeal penal laws against public intoxication and to redirect police responsibility toward taking intoxicated persons to their homes or other safe shelter rather than jailing the person in a police 'drunk tank.' "

State v. Okeke , 304 Or. 367, 370-71, 745 P.2d 418 (1987) (footnote omitted). As originally enacted, the first section of that law stated:

"The Legislative Assembly finds alcoholism is an illness. The alcoholic is a sick person and should be afforded treatment for his illness."

Or. Laws 1971, ch. 622, § 1.

When first introduced, in the Senate, the text that became ORS 402.430 preempted local public drinking ordinances without exception:

"No county, municipality or other political subdivision of this state shall adopt any local law, ordinance, resolution or regulation rendering public intoxication, public drinking, drunk and disorderly conduct, or vagrancy or other behavior that includes as one of its elements either drinking in public or being a common drunkard or being found in enumerated places in an intoxicated condition, an offense, a violation or the subject of criminal or civil penalties or sanctions of any kind. Nothing in this section contained shall affect any laws, ordinances, resolutions or regulations against drunken driving, driving under the influence of alcohol, or other similar offenses that involve the operation of motor vehicles."

Bill File, SB 431, Mar 17, 1971 (introduced bill).

The House rewrote that section, changing the formatting and adding several exceptions, including the one at issue in this case:

"(1) No political subdivision in this state shall adopt any local law, ordinance, resolution or regulation that makes any of the following an offense, a violation or the subject of criminal or civil penalties or sanctions of any kind:
"(a) Public intoxication, except that the political subdivision may adopt a local law, ordinance, resolution or regulation identical to section 221, chapter ___, Oregon Laws 1971 (Enrolled Senate Bill 40).
"(b) Public drinking, except as to places where any consumption of alcoholic beverages is generally prohibited.
"(c) Drunk and disorderly conduct.
"(d) Vagrancy and other behavior that includes as one of its elements either drinking in public or being a common drunkard or being found in specified places in an intoxicated condition.
"(2) Nothing in subsection (1) of this section shall affect any local law, ordinance, resolution or regulation of any political subdivision in this state against drunken driving, driving under the influence of alcohol, or other similar offenses that involve the operation of motor vehicles."

Bill File, SB 431, Apr. 21, 1971, (-2 amendments). Little in the legislative record sheds light on what the legislature understood the added exception in paragraph (1)(b) to accomplish.

Defendant argues that in light of the purpose of SB 431-the decriminalization of alcoholism-the exception in ORS 430.402(1)(b) should be interpreted to allow only limited local regulation of public drinking. But that appeal to a general legislative purpose is unpersuasive. In many cases, as then-Professor Linde observed, "the search for a goal beyond the enacted policy itself will be illusory because a policy often results from the accommodation of competing and mutually inconsistent values * * *." Hans A. Linde, Due Process of Lawmaking , 55 Neb. L. Rev. 197, 212 (1976). Many bills contain both provisions that advance their principal purposes and provisions that may limit their pursuit of those goals to protect other interests. That is particularly evident here. As introduced, SB 431 included a total ban on local public drinking ordinances. But during the legislative process the Legislative Assembly added an exception to that prohibition. Here, the Legislative Assembly's general purpose to decriminalize alcoholism sheds little light on the breadth of the exception that it drafted, because that exception was itself a move away from complete preemption. In the absence of more specific legislative history, the question of how the competing interests-decriminalization and local control-were reconciled is best resolved by the text that the legislature enacted.

In this case, there is no such specific legislative history. Both parties point to an exchange between Representatives Crothers and Peck. As Representative Crothers explained the exception to the ban on local public drinking ordinances in response to questions from Representative Peck, "You can't make public drinking an offense unless it is generally prohibited in that place." Tape Recording, House Committee on Health, Education, and Welfare, SB 431, May 7, 1971, Tape 2, Side 1 (statement of Rep Morris Crothers). As Representative Crothers further elaborated, "It's generally prohibited in parks and you can still prohibit drinking in parks under this wording. * * * You can just say by city ordinance we're not going to let you drink in certain places."Id .

The parties emphasize different portions of that exchange. Defendant points to Representative Crothers' use of "certain places" and the selection of parks as an example of a place where drinking can be banned-that, he argues, favors his view that ORS 430.402(1)(b) allows local governments to ban drinking in some places but not every public place. The state, by contrast, emphasizes that, as Representative Crothers explained the law, local governments remained in control of public drinking ordinances and Representative Crothers' first explanation, that "[y]ou can't make public drinking an offense unless it is generally prohibited in that place." Tape Recording, House Committee on Health, Education, and Welfare, SB 431, May 7, 1971, Tape 2, Side 1.

Aside from observing that Representative Crothers' explanation is consistent with our interpretation of the text, we decline to read much into it. Representative Crothers' first rephrasing of the statute, "you can't make public drinking an offense unless it is generally prohibited in that place," retains, rather than pins down, the statute's ambiguous use of the word "generally," and thus does little to confirm or to refute our view of its meaning. Representative Crothers' choice of the park as an example of where drinking can be banned also tells us little-there is no indication that his example was intended to be exhaustive. And Representative Crothers' single, passing use of "certain places," rather than simply "places," to describe where drinking can be banned cannot make up for the absence of "certain places" in the text of the statute.

In short, the purpose, history, and legislative record of ORS 430.402(1)(b) shed little light on what types of laws it was intended to preempt. As far as we can tell, our reading of ORS 430.402(1)(b) is consistent with its purpose. ORS 430.402(1)(b) preempts selective bans on public drinking, of the sort that could be directed specifically at alcoholics-such as a regulation barring consumption of malt liquor in a certain public place, or a ban on public drinking only during hours when most of the public does not drink. The other local laws that ORS 430.402(1) preempts include bans on "public intoxication," ORS 430.402(1)(a), "drunk and disorderly conduct," ORS 430.402(1)(c), or "vagrancy or other behavior that includes as one of its elements * * * being an alcoholic," ORS 430.402(1)(d) -laws that would turn alcoholism into a status offense or would be applied primarily to alcoholics. It seems reasonable that the legislature would be most concerned with local public drinking laws that similarly targeted alcoholics. As we interpret ORS 430.402 (1)(b), it permits complete prohibitions of public drinking, but that does not seem particularly anomalous. It is consistent with a legislative decision to allow local governments to retain regulatory authority over public drinking, while also ensuring that those bans were not crafted in ways that targeted alcoholics. In any event, nothing in the legislative history persuades us to depart from our interpretation of the text.

The application to this case is straightforward. Beaverton's public drinking ordinance provides that

"[n]o person shall consume alcoholic liquor or possess an open container of an alcoholic beverage while in or upon any public place, unless authorized by the Commission or by subsection B of this section."

BC 5.02.083(A). It is a general ban on drinking in public places-it applies to all types of alcoholic beverages consumed in those places at all times of day. Accordingly, Beaverton's ordinance was not preempted. It follows that defendant's arrest was valid and the trial court properly denied his motion to suppress.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

      Defendant also argued that BC 5.02.083 conflicted with, and was impliedly preempted by, ORS 811.170 (prohibiting open containers in cars on public highways). The trial court and the Court of Appeals rejected that argument and we did not allow review on that issue.

      That definition is identical to the definition of "public place" in ORS 161.015(10).

      The state also argued that the arrest was reasonable, regardless of whether the ordinance is preempted. Because we agree with the state that the ordinance is not preempted, we do not reach that question.

      Moreover, it seems to be customary for Oregon municipalities to ban drinking in all types of public places, so the circularity of that interpretation would make ORS 430.402(1)(b) a nullity. See, e.g ., Albany Municipal Code 7.08.040; Astoria Code 5.370; Aurora Municipal Code 9.08.020; Baker City Code § 113.21; Bend Code 5.15.005; Coquille Code 9.08.050; Corvallis Municipal Code 5.03.040.010.06; Eugene Code 4.190(1); Grants Pass Municipal Code 5.68.010(A); Gresham Revised Code 7.10.120; Lebanon Municipal Code 12.12.020; Madras Ordinance 497, § 19; Redmond Code 5.170; Roseburg Municipal Code 7.02.030; Sheridan City Code 9.12.020; Springfield Municipal Code 5.256; Tigard Municipal Code 7.32.180; Toledo Municipal Code 9.04.090.

      We do not mean to suggest that those are the only features a ban must have in order to qualify as general. Defendant does not argue that Beaverton's ordinance is insufficiently comprehensive, or that any feature of the ordinance, beyond its geographic scope, causes it to be preempted by ORS 430.402(1)(b).

      Since 1971, the legislature has expanded that text to encompass drug dependency as well:
      "The Legislative Assembly finds alcoholism or drug dependence is an illness. The alcoholic or drug-dependent person is ill and should be afforded treatment for that illness. To the greatest extent possible, the least costly settings for treatment, outpatient services and residential facilities shall be widely available and utilized except when contraindicated because of individual health care needs."
      ORS 430.315.

      That text was derived from the Uniform Alcoholism and Intoxication Treatment Act, although SB 431 omitted some of the exceptions contained therein:
      "(a) No county, municipality, or other political subdivision may adopt or enforce a local law, ordinance, resolution, or rule having the force of law that includes drinking, being a common drunkard, or being found in an intoxicated condition as one of the elements of the offense giving rise to a criminal or civil penalty or sanction.
      "(b) No county, municipality, or other political subdivision may interpret or apply any law of general application to circumvent the provision of subsection (a).
      "(c) Nothing in this Act affects any law, ordinance, resolution, or rule against drunken driving, driving under the influence of alcohol, or other similar offense involving the operation of a vehicle, aircraft, boat, machinery, or other equipment, or regarding the sale, purchase, dispensing, possession, or use of alcoholic beverages at stated times and places or by a particular class of persons ."
      Uniform Alcoholism and Intoxication Treatment Act, § 19 (1971) (emphasis added).

      The uniform law upon which SB 431 was based demonstrated a similar concern with the possibility that a local government "may interpret or apply any law of general application to circumvent" its restrictions. Uniform Alcoholism and Intoxication Treatment Act, § 19(b) (1971).


author: DUNCAN, J.

text:
    STATE of Oregon, Respondent on Review, v. Patrick Allen SPARKS, Petitioner on Review.
    CC 14CR08738, 140331053 SC S065728
    Supreme Court of Oregon.
    Argued and submitted November 1, 2018. April 18, 2019
    Sarah Laidlaw, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for the petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.
    Timothy A. Sylwester, Senior Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Jesse Wm. Barton, Salem, filed the brief for amici curiae Oregon Justice Resource Center and Pacific Sentencing Initiative, LLC.
    Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices.

      Kistler, J., retired December 31, 2018, and did not participate in the decision of this case.

   DUNCAN, J.

Defendant appealed the trial court's imposition of three consecutive probation revocation sanctions, the Court of Appeals affirmed, and this court allowed defendant's petition for review. On review, defendant argues that, under a provision of the sentencing guidelines, OAR 213-012-0040(2)(b), a trial court must find a separate probation violation for each consecutive probation revocation sanction it imposes. Thus, according to defendant, in order for the trial court to impose three consecutive sanctions as it did, it had to find three separate violations.

We need not, and do not, address defendant's argument regarding OAR 213-012-0040(2)(b), because the trial court found 10 separate violations. Specifically, the trial court found one violation of a condition that defendant not use illegal drugs and nine violations of a condition that defendant not contact the victim of his crimes. On review, defendant argues that the trial court erred in finding nine violations of the no-contact condition. According to defendant, the state alleged only a single violation of the no-contact condition and, therefore, failed to provide sufficient notice to support a finding of more than one violation of that condition. For the reasons explained below, we reject defendant's argument that the state's notice was insufficient to support the trial court's findings of multiple violations of the no-contact provision. Therefore, we conclude that, even under defendant's interpretation of OAR 213-012-0040 (2)(b), the trial court could find enough separate violations to support the consecutive sanctions it imposed. Accordingly, we affirm.

We begin with the historical and procedural facts. This appeal involves two criminal cases, which have been consolidated for review. In the first case, defendant was charged with multiple crimes against the victim, TM, with whom he had been in a relationship. Pursuant to a plea agreement, defendant pleaded guilty to one count of felony fourth-degree assault and one count of attempted second-degree assault, each constituting domestic violence. The trial court imposed a presumptive 30-month prison term on the felony fourth-degree assault count. The presumptive sentence on the attempted second-degree assault count was 31 to 36 months' imprisonment but, based on a stipulation by the parties, the trial court imposed a downward departure sentence of 60 months' probation.

In the second case, defendant was again charged with multiple crimes involving TM. Defendant pleaded guilty to two counts of tampering with a witness. The presumptive sentence for each of those counts was also 31 to 36 months' imprisonment, but the trial court imposed stipulated downward departure sentences of 60 months' probation on each count.

Shortly after defendant finished serving his prison term on the felony fourth-degree assault, the trial court issued a notice in each of the two cases for defendant to appear for a probation violation hearing. The notices appointed an attorney to represent defendant and directed defendant to contact that attorney. The notices did not specifically allege what conditions of probation defendant had violated. Instead, they stated that "a copy of the allegations and discovery will be provided to you through your attorney." As described more fully below, before the probation violation hearing, defendant received a copy of a probation violation report alleging that he had violated certain conditions of his probation.

At the probation violation hearing, the trial court began by recounting the crimes for which defendant was on probation, specifically, attempted second-degree assault in the first case and two counts of tampering with a witness in the second case. The trial court then described the probation violation allegations against defendant:

"The probation violation report from [defendant's probation officer] *** alleges that [defendant] violated his probation for several different-in several different respects.
"First of all, in having contact with [TM], the victim in these cases, in violation of the conditions of probation. Secondly, in failing to abide by the [probation officer's]
directions with respect to being within 1,000 feet of [TM's] home, school, work. And lastly, that he used illegal drugs in violation of the conditions of probation.
"So those are the allegations and the history."

As described on the record by the trial court, the probation violation report stated that defendant had violated the condition that he not have contact with TM by sending her letters from prison. The trial court asked defense counsel whether defendant wanted to admit any of the violations. Defense counsel told the trial court that defendant would stipulate that "he did write the letters and send the letters that are before us." The trial court addressed defendant directly, stating that "the violation report alleges seven letters from prison between November 20, 2014 and February 1, 2015," and asking defendant whether he was admitting that he wrote those letters. Defendant confirmed that he was.

Defense counsel also told the trial court that defendant was admitting that he had used methamphetamine. The trial court asked defendant directly whether he was admitting the alleged drug use, and defendant said that he was.

Defendant disputed the allegation that he had failed to abide by his probation officer's direction to not come within 1000 feet of TM's work place. The parties litigated that allegation, and the trial court ultimately concluded that the state had failed to establish a probation violation with respect to that allegation.

TM testified that defendant had sent her nine letters (not just seven) from prison. The state introduced the letters and their envelopes, and they were received into evidence without objection as State's Exhibit 5. Each envelope contained a different postmark date. The letters expressed defendant's hatred of TM and contained implicit and explicit threats that defendant would harm TM and her family.

After the presentation of the evidence, the trial court again asked defense counsel whether defendant was stipulating that "he sent letters to [TM] from prison *** multiple letters from prison and that he used methamphetamine after his release from prison." Defense counsel confirmed that defendant was stipulating to those factual allegations. The trial court then stated, "I find, as a matter of fact, based on the stipulations of the defendant, that he wrote multiple letters to [TM] while he was in prison and that he used methamphetamine."

The trial court turned to the parties' legal arguments. Defense counsel argued that defendant could not be sanctioned for sending TM the letters because he had already received a prison sanction for doing so. The trial court rejected that argument on the grounds that defendant had not presented any evidence that he had received a prison sanction and that, even if he had, imposition of a prison sanction would not preclude imposition of probation sanctions. The trial court then found that defendant had violated his probations "for sending the nine letters *** to the victim that constitute State's Exhibit 5" and "for use of illegal substances, the methamphetamine."

The trial court and the parties then turned to the issue of the appropriate disposition.

Based on defendant's threats to TM and her family and his violent criminal history, the prosecutor asked the trial court to revoke defendant's probation on all three counts, impose a 36-month revocation sanction on each one, and order defendant to serve the sanctions consecutively. Defense counsel objected to the imposition of three consecutive sanctions:

"[DEFENSE COUNSEL]: Yeah, very quickly, as far as three consecutive sentences, I don't think the court has authority since there's only two violations here. The most the court can impose is two-
"THE COURT: Well-
"[DEFENSE COUNSEL]: -consecutive-
"THE COURT: -I found nine violations of the court's order that he not have contact with the victim. Exhibit 5 are nine separate letters that constitute contact or attempted contact.
"[DEFENSE COUNSEL]: Okay.
"THE COURT: So, as a matter of fact, I find nine separate violations of that."

TM and defendant then made statements to the trial court. Defendant told the trial court that he wrote the letters because of mental health problems, for which he had not been able to get help while in prison.

The trial court then summarized its findings and decision to revoke defendant's probation:

"THE COURT: So, first of all, with respect to the authority of the court to impose multiple violation sanctions, I find that Exhibit 5 constitutes nine separate violations of his probation in all three of these counts in these two case numbers.
"I also find that the defendant-I've previously noted on the record the defendant used methamphetamine in violation of the law.
"The combination of those violations that I have found justify revocation of his probation on all three counts. Separately even if the-if there had been no violation found with respect to the methamphetamine use, the contact with the victim as evidenced by Exhibit 5 nine times, that alone without regard to the methamphetamine violation constitutes grounds for revocation of all three counts."

The trial court imposed a 36-month revocation sanction on each probation count and ordered defendant to serve them consecutively. After the trial court announced the sanctions, defense counsel stated, "I would also put on the record my argument that the nine letters were alleged as a single violation and I would assert that they are one continuing course of conduct given my client's mental state."

Defendant appealed, arguing that OAR 213-012-0040(2)(b) requires a separate probation violation for each consecutive probation sanction and that the trial court could not treat the individual letters as separate violations because the state failed to allege them as separate violations. The Court of Appeals affirmed, without a written opinion. State v. Sparks , 289 Or. App. 642, 412 P.3d 1218 (2017). Defendant then petitioned this court for review, asserting, among other things, that his appeal presented the same issue as State v. McFerrin , 289 Or. App. 96, 408 P.3d 263 (2017), rev. allowed , 362 Or. 794, 416 P.3d 1096 (2018), in which the Court of Appeals had held that a defendant whose probation was revoked based on two probation violations could receive more than two consecutive sanctions. This court allowed review.

On review, defendant renews the arguments he made in the Court of Appeals, contending first that, under OAR 213-012-0040(2)(b), each consecutive probation revocation sanction that a trial court imposes must be based on a separate probation violation. Defendant argues that the text, context, and legislative history of OAR 213-012-0040(2)(b) all support his interpretation of the rule. The state makes several counterarguments in response. However, we need not resolve the parties' dispute about the meaning of the rule if the trial court properly found the number of violations that defendant contends it needed to find. As we will explain, it did.

As recounted above, the state alleged that defendant violated three conditions of probation and the trial court found that he violated two of those conditions: the condition prohibiting him from contacting TM and the condition prohibiting him from using illegal drugs. The trial court further found that defendant violated the no-contact condition nine times. Thus, the trial court found that defendant committed 10 separate probation violations, which-even under defendant's interpretation of OAR 213-012-0040 (2)(b) -is sufficient to support the three consecutive sanctions that the trial court imposed.

Defendant argues that the trial court lacked authority to find multiple violations of the no-contact provision because the state alleged only one violation of that condition. Defendant bases his argument on the Due Process Clause of the Fourteenth Amendment to the United States Constitution. He asserts that, "[b]ecause due process requires that a defendant receive complete and timely notice of alleged probation violations before a probation violation hearing, a trial court may not find violations that the state has not alleged in a properly served show-cause document." He further asserts that, in this case, the state "provided notice that it was alleging only three probation violations," and the trial court found that the state had failed to prove one of them, leaving only two. Therefore, according to defendant, "the law permitted [the trial court] to consecutively impose no more than two revocation sanctions."

The premise of defendant's argument is that he did not have notice that the state was alleging multiple violations of the no-contact condition. But, as explained below, that position is not supported by the record. Therefore, even assuming the Due Process Clause requires the notice that defendant contends it does, defendant has failed to establish that he did not receive that notice.

As recounted above, the trial court issued defendant notices to appear, and the notices informed defendant that an attorney had been appointed to represent him and that "a copy of the allegations and discovery" would be provided to him through his attorney. Then, at the probation violation hearing, the trial court reviewed the allegations in the probation violation report. As defendant's appellate counsel acknowledged at oral argument before this court, defendant had received a copy of the report before the hearing. And, as the trial court stated during the hearing, the report "alleges seven letters from prison between November 20, 2014 and February 1, 2015." Thus, the record shows that defendant had received written notice before the hearing that the state was alleging that he had sent seven letters to TM from prison.

Defendant does not dispute that he had written notice that the state was alleging that he had sent seven letters to TM from prison. In fact, defendant has attached a copy of the probation violation report to his brief on the merits in this court, and the report states that defendant had "repeatedly" contacted TM. It also states that TM had provided defendant's probation officer with "seven different letters that she received from [defendant] while he was in custody" and that the letters had been "submitted to the District Attorney for discovery."

As we understand it, defendant's argument is that, even though he had notice that the state was alleging that he had sent seven letters to TM, he did not have notice that the state was alleging that the act of sending each letter constituted a separate probation violation. Defendant appears to base his argument, in part, on the formatting of the probation violation report. The report has a section entitled "Violations/ Substantiations" and, within that section, there are three numbered subsections, one for each of the probation conditions defendant was alleged to have violated. The subsections are entitled "1.) Violation of Special Condition: No Contact with Victim, [TM]"; "2.) Violation of General Condition #3: Abide by the Direction of the Supervising Officer"; and "3.) Violation of General Condition #2: No Use or Possession of Controlled Substances." Each subsection contains allegations of specific acts by defendant. The first subsection, which concerns the no-contact condition, includes the allegations regarding the letters. It appears that defendant is arguing that, because those allegations are included in a single subsection, the state was alleging them as a single violation. That argument is unavailing. As defendant concedes, if a probationer commits two separate acts that violate the same probation condition, those separate acts can constitute separate violations. Thus, the fact that the acts of sending the letters violated the same condition does not mean that the state could not, or did not, allege that the acts were separate violations. And here, although the allegations concerning the no-contact provision are in the same subsection, they are specific enough to put defendant on notice that the state was alleging separate violations, because they alleged that defendant had "repeatedly"

contacted TM and had sent "seven different letters" over the course of several months.

Defendant also appears to base his argument on statements by the prosecutor. In his brief on the merits in this court, defendant asserts that "at the beginning of the probation violation hearing, the parties agreed before the court that the state was proceeding on the three alleged probation violations." The transcript of the hearing does not support that assertion. As quoted above, at the outset of the hearing the trial court described the allegations in the probation violation report, specifically that defendant had violated three conditions of probation. 364 Or. at 699-700, 439 P.3d at 981-82. Neither the prosecutor nor the trial court indicated that the state was alleging only three violations . To the contrary, the trial court told defendant that the probation violation report alleged that he sent seven letters to TM from prison.

In sum, we reject defendant's argument that the state only alleged one violation of the no-contact condition. Therefore, even under defendant's interpretation of OAR 213-012-0040(2)(b), the trial court could impose the three consecutive probation sanctions that it did. Consequently, we affirm.

The decision of the Court of Appeals and the judgments of the trial court are affirmed.

      OAR 213-012-0040(2)(b) provides, "If more than one term of probationary supervision is revoked for separate supervision violations, the sentencing judge may impose the incarceration sanctions concurrently or consecutively."

      In arguing that the Due Process Clause requires advance written notice of probation violation allegations, defendant cites ORS 137.557(2)(c) and OAR 291-058-0040. ORS 137.557(2)(c) governs probation violation citations issued under ORS 137.553 and requires that the citations contain a "brief description of the asserted probation violation." OAR 291-058-0040 governs Department of Corrections notices to probationers and states that the notices "shall be provided to the offender at the time of or after the offender is presented with a copy of the Violation Report/Sanction Reporting form describing the alleged violations behavior." It is not clear whether defendant is arguing that the state violated ORS 137.557(2)(c) and OAR 291-058-0040. If he is, he failed to preserve those arguments. He did not assert a violation of either ORS 137.557(2)(c) or OAR 291-058-0040 in the trial court. And, the record contains no information about whether he received a citation under ORS 137.553 or a Department of Corrections notice under OAR 291-058-0040 or, if he did, what those citations contained.

      Because, even under defendant's interpretation of OAR 213-012-0040 (2)(b), the trial court needed to find only three separate violations-and it could do so if it found one violation for methamphetamine use and two or more violations for the letters-defendant does not argue that he had notice of only the seven letters mentioned in the probation report, not the additional two introduced at the hearing.


text:
    PORTFOLIO RECOVERY ASSOCIATES, LLC v. SANDERS
    A159821(S066455)
    Supreme Court of Oregon.
    March 28, 2019
    Review Allowed.


text:
    STATE v. ANDREWS, Joshua Brandon
    A162029(S066479)
    Supreme Court of Oregon.
    March 28, 2019
    Review Allowed.


text:
    BRYANT v. ALLSTATE INDEMNITY COMPANY
    Yarbrough v. Allstate Indemnity Company
    A164171(S066423)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    COMBS, Julian Harold v. CAIN
    A163103(S066359)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    DURHAM, David G. v. CAIN
    A163991(S066390)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    EMRYS, a Personal Representative of the ESTATE OF Barbara CABALLERO v. FARMERS INSURANCE COMPANY OF OREGON
    A163480(S066332)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    MAY TRUCKING COMPANY v. EMPLOYMENT DEPARTMENT
    A151597(S064379
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    PARTIN, Richard v. CAIN
    A163652(S066454)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    STATE v. CLARDY, Sirgiorgio Sanford, III
    A154794(A154795)(A154068)(S065699)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    STATE v. EASTON, Steven Ray
    A164549(S066412)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    STATE v. GALLOWAY, Nathan Wayne
    A159696(S066378)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    STATE v. GUERRERO-PEREZ, Arturo
    A164095(S066417)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    STATE v. HARVEY, William Bedford
    A159321(S064995)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    STATE v. M. T. H.
    A166708(S066531)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    STATE v. N. L.
    A166840(S066540)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    STATE v. PEREZ-PEREZ, Edward
    A164277(S066464)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    STATE v. RIDENOUR, Kenneth
    A163967(S066344)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    STATE v. SIERRA-TELLO, Osvaldo David
    A164034(S066503)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    STATE v. THARP, Cory Howard
    A158640(S064996)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    STATE v. WITTER, Robert Lee
    A163467(S066353)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    DEPARTMENT OF HUMAN SERVICES v. A. M. G.
    A164955(A164956)(A164957)(S065688)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    DEPARTMENT OF HUMAN SERVICES v. B. W. L.
    A168744(S066521)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    DEPARTMENT OF HUMAN SERVICES v. C. R. R.
    A167931(A167932)(A167933)(S066483)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied


text:
    GARRISON, Kirk W. v. AMSBERRY
    A164436(S066502)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    MOORE, Randy Vincent v. STATE of Oregon
    A164517(S066391)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    ODOMS, Donald C. v. KELLY
    A165645(S066515)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    REEVES, Benjie Allen v. NOOTH
    A157444(S066484)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    STATE v. BURKE, Tab Pfannebecker
    A164093(S066435)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    STATE v. CLARDY, Sirgiorgio Sanford, III
    A154794(A154795)(A154068)(S065566)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    STATE v. HUNT, Tatiana Aleksandrovna
    A166519(S066516)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    STATE v. LEIGHTY, Taryn Craig
    A165053(S066538)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    STATE v. PAREDES, Francisco Javier
    A158345(S064269)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    STATE v. WALSH, Joshua Vincent
    A155201(S065545)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.


text:
    DEPARTMENT OF HUMAN SERVICES v. J. M. T. M.
    A165749(S065867)
    Supreme Court of Oregon.
    March 29, 2019
    Review Denied.


text:
    STATE v. BLOODGOOD, Robert Dale, III
    A164351(S066442)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.