Defendant was accused of violating ORS 167.222, which prohibits "frequenting a place where controlled substances are used." The complaint charged that defendant "did unlawfully and knowingly frequent and remain at [a specified] place where the defendant knowingly permitted persons to use, keep and sell illegal controlled substances * * *." Defendant demurred on the basis that ORS 167.222(1) is unconstitutionally vague and overbroad on its face, under both the Oregon and United States Constitutions. The trial court held that ORS 167.222(1) is too vague under the Oregon Constitution and, accordingly, sustained the demurrer. The state appeals; we reverse.
We must first examine defendant's state constitutional claims, and we need reach his federal theories only if his state claims fail. State v. Kennedy, 295 Or. 260, 262-65, 666 P.2d 1316 (1983). A demurrer on constitutional grounds is sustainable if the statute is vague or overbroad on its face. State v. Horn, 57 Or.App. 124, 128, 643 P.2d 1338 (1982).
Defendant's first argument is that the statute is vague. The Supreme Court has stated the standard for specificity of a criminal statute:
We applied that principle in holding that the predecessor of ORS 167.222(1) was constitutional. State v. Smith, 31 Or.App. 749, 755, 571 P.2d 542 (1977).
ORS 167.222(1) provides:
The operative words about which defendant complains are "frequents," "remains," and "knowingly permitting."
"Frequents" is defined by statute to mean "repeatedly or habitually visits, goes to or resorts to." ORS 167.222(4). The standard dictionary definition of "repeated" is "occurring again and again." American Heritage Dictionary (New College ed.) 1103; see also State v. Diede, 319 N.W.2d 818, 821-22 (S.Dak. 1982). "Habitually" means customarily or by regular usage or a course of dealing. Marks v. Herren, 47 Or. 603, 607-09, 83 P. 385 (1905); see also OEC 406.
"Knowingly" is also defined by statute:
That is the "culpable mental state" the legislature has chosen to impose for this crime. ORS 161.085(6).
"Remains" and "permitting" are not defined by statute. That being so, we apply the plain and ordinary meaning of the words. Perez v. State Farm Mutual Ins. Co., 289 Or. 295, 299, 613 P.2d 32 (1980). To remain is simply to stay. American Heritage Dictionary (New College ed.) 1099.
The most troublesome of the words at issue is "permit." This court has
Implicit in Kelso and the cases it cites is the fact that the person who "permitted" stock to run at large had the authority to fence them in. Kelso speaks of "his animals" escaping from "his enclosure." In ORS 167.222, "permitting" means that one who, (1) having legal authority over persons who use, keep, or sell illegal controlled substances, at the specified place where the defendant frequents or remains, (2) authorizes or consents to such use, possession, or sale.
Because each word is defined or definable with a reasonable degree of certainty, neither ORS 167.222(1) as a whole nor any word in it gives a judge or jury unbridled discretion to decide what conduct is criminal. Accordingly, the statute is not impermissibly vague under the Oregon Constitution.
Defendant also contends that ORS 167.222(1) is overbroad, because it reaches conduct protected by Article I, sections 8, 9, 20, 21, and 26 of the Oregon Constitution. State v. Robertson, supra, 293 Or. at 410, 649 P.2d 569.
Article I, section 8, protects speech. Although speech may be the means by which one expresses permission, ORS 167.222(1) does not punish speech. Rather, it is the physical act of keeping, maintaining, frequenting, or remaining — when combined with the act of consenting to illegal drug use, possession, or sale by a person over whom one has legal control — that is prohibited. The statute is not directed at, and only incidentally involves, speech. It does not violate Article I, section 8. State v. Robertson, supra, 293 Or. at 414-15, 649 P.2d 569; State v. Anderson, 56 Or.App. 12, 14, 641 P.2d 40 (1982).
Article I, section 9, prohibits unreasonable searches and seizures. Nothing in ORS 167.222(1) touches a right protected by that section.
Article I, section 20, grants equal privileges and immunities to all citizens; Article I, section 21, precludes ex post facto laws. Those sections provide a foundation for the analysis of vagueness, but they do not describe constitutionally protected activity that is reached by ORS 167.222(1).
Finally, Article I, section 26, relates to "assemblages of people" and provides, in relevant part:
As we have construed it, ORS 167.222(1) does not embrace a protected right of association. Article I, section 26, does not create or protect a right to permit others, over whom one has legal authority, to break the law by using or selling controlled substances.
In short, as construed above, ORS 167.222(1) does not reach conduct that is protected under the Oregon Constitution.
Because defendant's state law challenge fails, we consider his federal claims. His first argument is, again, that ORS 167.222(1)
Defendant's final argument is that ORS 167.222(1) covers conduct protected by the First, Fourth, and Fourteenth Amendments to the United States Constitution. Like the Oregon rule, the federal overbreadth standard bars statutes that encroach upon constitutionally protected activity. ORS 167.222 clearly applies to constitutionally proscribable conduct. Therefore, defendant must show that the statute as applied to him is unconstitutionally overbroad and that the infringement of his rights is substantial. Secretary of State of Maryland v. J.H. Munson Company, 467 U.S. 947, 965, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). Invalidation of a statute for overbreadth is "strong medicine" and should be a last resort. Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). That standard is more stringent than Oregon's.
The First Amendment protects rights of speech, assembly, petition for the redress of grievances, and exercise of religion. The Supreme Court has termed these First Amendment rights of association "expressive association." Roberts v. United States Jaycees, 468 U.S. 609, 622, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). As we construe it, ORS 167.222(1) does not infringe on constitutionally protected "expressive association" rights. The statute does not punish expression. Rather, it punishes only one who has authority to prohibit another from using or selling illegal substances and nonetheless authorizes that person to use or sell them. There is no federal associational right, for example, knowingly to permit others to use cocaine in one's home. ORS 167.222(1) does not violate the First Amendment.
The Fourth Amendment prohibits unreasonable searches and seizures. Nothing in ORS 167.222(1) implicates that amendment.
The Fourteenth Amendment protects due process rights, including "liberty." One aspect of liberty is the right to associate with persons of one's choice. The United States Supreme Court has termed this the right of "intimate association." See, e.g., Roberts v. United States Jaycees, supra, 468 U.S. at 618-20, 104 S.Ct. at 3249-51, and cases cited therein. The right applies only to highly personal relationships. Roberts v. United States Jaycees, supra, 468 U.S. at 618, 104 S.Ct. at 3249-50; see also Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978); Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977). No such relationship is involved here.
Reversed and remanded.