Wetzel v. Jackson County

No. 747             August 20, 2025                    801

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                     Jerry WETZEL,
                   Petitioner-Appellant,
                             v.
                  JACKSON COUNTY,
                 Respondent-Respondent.
              Jackson County Circuit Court
                  22CV02700; A182483

  David J. Orr, Judge.
  Submitted July 23, 2025.
    James R. Dole and Watkinson Laird Rubenstein, P. C.
filed the brief for appellant.
  Madison T. Simmons filed the brief for respondent.
  Before Kamins, Presiding Judge, Jacquot, Judge, and
Armstrong, Senior Judge.
  JACQUOT, J.
   Reversed and remanded for further proceedings consistent with this opinion.
802                                Wetzel v. Jackson County

        JACQUOT, J.
         Petitioner appeals a general judgment reversing in
part and affirming in part a hearings officer’s order with
respect to Jackson County Code (JCC) violations and imposing a fine. In three assignments of error, he argues that the
trial court erred when it misconstrued the applicable law,
determined that substantial evidence supported the hearings officer’s findings, and modified the fine imposed by the
hearings officer. We reverse and remand for further proceedings consistent with this opinion.
          Petitioner, a landowner, was charged with 108 violations of the JCC after law enforcement discovered that petitioner’s tenant had constructed and was operating 54 greenhouses for growing marijuana and had established unsafe
electrical systems, without the requisite permits. After a
hearing, the hearings officer entered a final order concluding that petitioner had violated the JCC on all 108 counts
by willfully permitting his tenant to engage in the above
operations, and fined petitioner $150,000—the amount of
rent that petitioner had collected from the tenant. Petitioner
then sought a writ of review from the trial court. The trial
court, after briefing and oral argument, reversed the hearings officer’s order with respect to the 54 counts for building
the greenhouses, but upheld the order with respect to the
54 counts for installing illegal electrical systems inside the
greenhouses, and reduced petitioner’s fine to $75,000.
          “We review a trial court’s decision to deny a writ of
review and affirm a lower tribunal’s decision for errors of law
and substantial evidence.” Zanetti v. City of Portland, 

, 

 (2024), rev den, 

 (2025);
see ORS 34.040 (upon petition for a writ of review, the circuit
court reviews the lower tribunal’s decision for errors of law
and substantial evidence); see also ORS 34.100 (“Upon the
review, the [circuit] court shall have power to affirm, modify, reverse or annul the decision or determination reviewed
…. From the judgment of the circuit court on review, an
appeal may be taken in like manner and with like effect as
from a judgment of a circuit court in an action.”).
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         In his first assignment of error, petitioner describes
his position as “simple: he was cited for violating JCC
1420.04 (chapter 1420),[1] not for violating JCC 202.99(a).”2
(Emphasis in original.) He argues that because his citation
specified JCC 1420.04 as the violation, but liability was determined under JCC 202.99(a), he was “convicted of violating
a code provision for which he was not specifically charged.”
However, petitioner misunderstands the code scheme. JCC
202.99(a) provides a definition of “violation” that applies
to “any act declared in these Codified Ordinances to be a
violation.” It is not itself a separate violation. Instead, it
explains the methods by which someone can commit a violation, which includes willfully permitting another to violate a provision. The violation is JCC 1420.04, which prohibits installing electrical systems absent required permits.
Accordingly, JCC 202.99(a) applies to JCC 1420.04, and JCC
1420.04 provides the specific violation petitioner is alleged
to have committed. The citation did not need to specify JCC
202.99(a) as a separate violation, and petitioner’s citation
was not inadequate as he argues.

   1
       JCC 1420.04 provides, in part:
       “It shall be a violation of this section for any person to build, construct,
   maintain, enlarge, alter, repair, move, change the character use of a building or structure regulated by the State Building Code, or cause any such
   work to be done, or to install any electrical … systems regulated by the
   State Building Code or to occupy any premises, including dwellings, or other
   buildings or structures, unless all permits required for such premises under
   any prevailing law have been obtained and are in force and, if required, a
   certificate of occupancy has been obtained. No person shall violate or fail to
   comply with any of the provisions of the Oregon State Structural Specialty
   Code, Mechanical Specialty Code, [or] Electrical Specialty Code[.]”
   2
     JCC 202.99(a) provides:
       “Violation - Of any provision of these Codified Ordinances is deemed a
   County violation. A County violation is any offense designated as a violation in these Codified Ordinances. ‘Offense’ and ‘violation’ have the same
   meaning for purposes of these Codified Ordinances. Every person who commits, attempts to commit, conspires to commit, or aids or abets in the commission of any act declared in these Codified Ordinances to be a violation,
   whether individually or in connection with another person, or as principal,
   agent or accessory, shall be guilty of such violation. Every person who falsely,
   fraudulently, forcibly or willfully induces, causes, coerces, requires, permits
   or directs another to violate any provision of these Codified Ordinances shall
   likewise be guilty of such violation. Payment of a fine imposed under these
   Codified Ordinances does not relieve the violator of responsibility to remedy
   the violation.”
(Emphases added.)
804                                 Wetzel v. Jackson County

         In his second assignment of error, petitioner argues
that the trial court erred “when it found that substantial evidence supported the hearings officer’s finding that
Petitioner willfully violated the JCC.” His argument appears
to be twofold. First, he argues that the hearings officer and
trial court incorrectly construed “willful” conduct in the
ordinance. Second, he argues that there was insufficient
evidence that he willfully permitted the tenant’s violation.
        “The proper construction of a municipal ordinance
is a question of law, which we resolve using the same rules
of construction that we use to interpret statutes.” Waste
Not of Yamhill County v. Yamhill County, 

, 

 (2020) (internal quotation marks omitted).
Therefore, “[w]e look primarily to the [ordinance]’s text, context, and legislative history, although we may look also to
general rules of statutory construction as helpful.” Alfieri v.
Solomon, 

, 

 (2015). JCC 202.04(h)
provides a general rule that “[e]xcept as otherwise provided in this section, words and phrases shall be construed
according to the common usage of the language, provided,
however, that technical words and phrases and such others
as may have acquired a special meaning in the law shall be
construed according to such technical or special meaning.”
         The hearings officer’s final order endeavors to construe the term “willful” in JCC 202.99(a), which provides that
“[e]very person who falsely, fraudulently, forcibly or willfully
induces, causes, coerces, requires, permits or directs another
to violate any provision of these Codified Ordinances shall
likewise be guilty of such violation.” (Emphases added.) The
order states that Black’s Law Dictionary defines a “willful”
act as one “[p]roceeding from a conscious motion of the will;
voluntary; knowingly; deliberate. Intending the result which
actually comes to pass; designed; intentional; purposeful;
not accidental or involuntary.” The order explains that “[i]t
implies no requirement that the consequences of the act be
known to the willful actor. … JCCO 202.99(a) require[s]
only that Defendant ‘voluntarily, knowingly, deliberately’
intended that the greenhouses be constructed. It would not
require that he knew them, once constructed, to be beyond
compliance with the Building Code.” It further states that
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no “evil or ‘criminal’ intent or knowledge is required,” and
petitioner need only have “knowingly authorized the construction of the greenhouses and the installation of utilities
that furthered the agricultural activity,” not known that
the improvements were not in compliance with the building
code.
           Broadly, we must determine what intention and
knowledge a person must have to “willfully” permit a violation under JCC 202.99(a). Did petitioner need to knowingly
allow electrical systems without permits on his property,
or simply allow the electrical systems to be built? We have
recognized that “ ‘[w]illful’ and ‘willfully’ are notoriously
elusive terms, with their content varying qualitatively and
dramatically in different contexts. … Thus, while general
and legal dictionaries define the term as incorporating a
component of intentionality, Oregon law in some noncriminal contexts deems merely negligent conduct to have been
‘willful.’ ” State v. Nicholson, 

, 

(2016) (footnote omitted).
          The dictionary definitions of “willful” do not provide
an answer to that question, because explanations such as
“intending the result which actually comes to pass” could
refer to either result: a violation of the code, or the construction of the electrical systems. See Webster’s Third New Int’l
Dictionary 2617 (unabridged ed 2002) (defining “willful”
as “done deliberately : not accidental or without purpose :
intentional”). Neither we nor the parties have identified any
precedent to aid us in our interpretation, and the available
comparisons are too dissimilar to be of assistance. See, e.g.,
Nicholson, 

 (defining “willful” in the context of contempt of court); Wilson v. Smurfit Newsprint Corp.,

, 

, rev dismissed, 

 (2005) (defining “willful” in the context of employer obligation to pay wages owed at employee termination); ORS
646.605(10) (defining “willful” for purposes of the Unfair
Trade Practices Act). There is no available legislative history regarding the provision’s enactment. Thus, we resort to
canons of statutory construction. Alfieri, 

. The
canon that proves most helpful to our analysis is that “the
meaning of words may be indicated or controlled by those
806                                Wetzel v. Jackson County

with which they are associated.” State v. Walker, 

,
15 n 5, 

 (2014) (internal quotation marks omitted); see also Pendergrass v. Fagan, 

, 

, rev den, 

 (2008) (“[W]hen the legislature
prohibits a list of different acts, the meaning of each term in
the list is determined in light of the common characteristics
of other terms in the same list.”).
          The term “willfully” in the provision is part of
a list of adverbs that also includes “falsely, fraudulently,
[or] forcibly.” Those terms connote something stronger and
more intentional than the county’s proposed interpretation
of “willful.” To interpret “willfully” to mean simply that
petitioner allowed the electrical systems to be constructed
without any knowledge or intention of violating the building code is incongruous with the other terms in the provision. In effect, the county’s reading of the provision imposes
strict liability on landowners for construction done on their
property, and there is no reason to believe that the provision’s enactors intended “willful” in this context to lack all
specific knowledge or intent to the extent of creating strict
liability. Given the intentionality and knowledge implied by
the other terms in the provision—“falsely, fraudulently, [or]
forcibly”—to “willfully” permit another person “to violate”
a provision implies that the permission was granted for
the violation, namely the construction absent required permits. That reading is in line with the text of the provision
in that the “violation” was not the construction of electrical
systems; the violation was the construction of electrical systems absent required permits.
         Because the hearings officer improperly construed
the applicable law, it was error for the trial court to deny
the writ if it appears that improperly construing the applicable law injured “a substantial interest of” petitioner. ORS
34.040 (“The writ shall be allowed in all cases in which a
substantial interest of a plaintiff has been injured and an
inferior court including an officer or tribunal other than
an agency as defined in ORS 183.310(1) in the exercise of
judicial or quasi-judicial functions appears to have: … (d)
Improperly construed the applicable law[.]”). “Making that
determination, and fashioning an appropriate remedy under
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ORS 34.100 in the light of that determination, are functions
best performed in the first instance by the circuit court.”
Lincoln Loan Co. v. City of Portland, 

, 

 (1993) (footnote omitted); ORS 34.100 (“Upon the
review, the court shall have power to affirm, modify, reverse
or annul the decision or determination reviewed, and if necessary, to award restitution to the plaintiff, or to direct the
inferior court, officer, or tribunal to proceed in the matter
reviewed according to its decision.”). Accordingly, we reverse
and remand to the trial court and do not need to address
petitioner’s other arguments.
        Reversed and remanded for further proceedings
consistent with this opinion.