dissenting.
I dissent. The majority is correct that LaGrande/Astoria v. PERB, 281 Or 137, 576 P2d 1204, on rehearing, 284 Or 173, 586 P2d 765 (1978), Portland v. Dollarhide, 300 Or 490, 714 P2d 220 (1986), and Portland v. Lodi, 308 Or 468, 782 P2d 415 (1989), are hardly models of consistency and clarity. However, since Lodi, this court has twice analyzed state preemption law and has by now developed a coherent, workable standard that is consistent with precedent: State v. Long, 106 Or App 389, 807 P2d 815 (1991); Denton Plastics, Inc. v. City of Portland, 105 Or App 302, 804 P2d 1199 (1990) (Denton/Long). Nevertheless, the majority opts to heave the proverbial baby out with the bath water by unnecessarily abandoning Denton/Long.
Both today’s majority and Denton/Long see preemption analysis as involving a two-part test and both rely on the same language in Dollarhide:
“The essential test for displacement of local ordinances (civil or criminal) by state law is whether the local rule is ‘incompatible with the legislative policy, either because both cannot operate concurrently or because the legislature meant its law to be exclusive.’ * * * In the area of civil or administrative *246ordinances regulating local conditions, it is reasonable to assume that the legislature did not mean to displace local ordinances, unless that intention is. apparent. * * * The reservation in Article XI, section 2, however, reverses this assumption with respect to criminal law.
“The analysis of compatibility begins then with the assumption that state criminal law displaces conflicting local ordinances which prohibit and punish the same conduct, absent an apparent legislative intent to the contrary.” 300 Or at 501. (Emphasis in original; citations omitted.)
Under the majority’s analysis, the inquiry is, first, whether the laws conflict or the ordinance cannot operate concurrently with a statute; and if it cannot, second, is the ordinance otherwise preempted because the legislature intended its law to be exclusive? 111 Or App at 243. Under Denton/Long, the test is, first, does the ordinance conflict with state law; and if it does, second, did the legislature intend to permit the potential conflict?
The main difference between Denton/Long and today’s decision is one of emphasis. Essentially, both standards begin by determining whether an ordinance conflicts with a statute.1 However, the majority ignores the key to preemption analysis in Oregon: The “assumption” of preemption for criminal ordinances created by the reservation in Article XI, section 2. That is why the second step in the Denton/Long analysis deals with the “assumption” of legislative intent.
The majority is probably correct that the phrase “rebuttable presumption” is an unfortunate choice of words; nevertheless, that is the term we are left with. Under Dol-larhide, we are to “assume” that the legislature did not intend to preempt (or “displace”) local civil or administrative ordinances, unless the legislature expressed an intention to the contrary. If the ordinance is criminal, however, then the “assumption” is “reversed.” Despite the majority’s assertion that determination of legislative intent is a question of law, *247and not a “matter of presumptions, burdens of proof or weighing of evidence,” that is exactly the situation we are left with after Lodi:
“In theory, what the legislature ‘permits’ can range from express permissive terms to total inattention and indifference to a subject. The search is not for particular words but for a political decision, for what the state’s lawmakers either did or considered and chose not to do. The search for a negative decision * * * can involve variations ranging from mere inaction on a hill * * * to rejection of a proposal by vote after a debate * * *.” Portland v. Lodi, supra, 308 Or at 474. (Footnote omitted.)
Therefore, the question of whether an ordinance is preempted does in fact turn on a rebuttable presumption. We start from the premise that a conflicting civil or administrative ordinance is not preempted, by a state statute, unless there is evidence of a legislative intent (i.e., a political decision) to prevent local regulation in that given area. Conversely, if a conflicting ordinance is criminal, then we begin with the presumption that the ordinance is preempted, unless there is evidence of a political decision to allow the potentially inconsistent laws.
In my view, we should adhere to Denton/Long. Under that standard, the threshold question is whether the municipal ordinance conflicts with state law. If the laws do not conflict, the ordinance is not preempted. State v. Long, supra, 106 Or App at 393, identified two types of conflict in preemption analysis: facial and potential conflict. Facial conflict occurs either when an ordinance contradicts the language of a state statute or when the state statutory scheme displaces local regulation. City of Portland v. Dollarhide, supra. If the laws facially conflict, then the ordinance is preempted, because the legislature has made a “political decision” regarding the specific form of government regulation in that area.
Even if there is no facial conflict, the laws may potentially conflict if they are inconsistent in part, but still compatible as a whole. When criminal laws potentially conflict, the presumption is in favor of preemption: An ordinance is preempted, unless the legislature intended to allow municipalities to regulate conduct that is also governed by statute.
*248There are two questions presented in this appeal: First, whether an ordinance is preempted if it criminalizes conduct not prohibited in a corresponding state statute, but when that same conduct is prohibited in another statute; and, second, whether we can read a state of mind requirement into PCC § 14.24.060.
PCC § 14.24.060 provides, in part:
“It is unlawful for any person to expose his or her genitalia while in a public place or place visible from a public place, if the public place is open or available to persons of the opposite sex.”
ORS 163.465 provides, in part:
“(1) A person commits the crime of public indecency if while in, or in view of, a public place the person performs:
<<$ * * * *
“(c) An act of exposing the genitals of the person with the intent of arousing the sexual desire of the person or another person.” (Emphasis supplied.)
In applying the Denton/Long analysis, we first look to see whether the laws facially conflict. Defendant contends that PCC § 14.24.060 does facially conflict with ORS 163.465, because it criminalizes public exposure without the intent to arouse, which the statute allows.2 Simply because the statute does not prohibit public exposure without the intent to arouse, it does not follow that the statute allows such conduct and precludes any local regulation of public exposure. Portland v. Lodi, supra, 308 Or at 474, held that, although statutory silence may suggest that the legislature intended to allow conduct not prohibited by the statute, it can equally *249suggest that the legislature determined that further regulation is properly left within the power of a municipality. Statutory silence alone cannot create a facial conflict with a municipal ordinance. The laws here do not facially conflict, so the ordinance is not automatically preempted.
The next question is whether the laws potentially conflict. As in State v. Long, supra, there is a potential conflict in that the laws regulate the same subject, but there are differences in the elements of the offenses. Under Den-ton/Long, this type of conflict is not necessarily fatal to the ordinance. Because the laws are criminal in nature, there is a rebuttable presumption that the ordinance is preempted, because of the reservation in Article XI, section 2. The presumption is avoided by a criminal ordinance if the legislature intended to allow the potential conflict. Portland v. Lodi, supra, 308 Or at 474.
Defendant contends that there is no evidence of a legislative intent to allow an inconsistency. The city disagrees, arguing that, although public nudity without an intent to arouse is not prohibited as “public indecency,” the legislature prohibited that type of nudity under “disorderly conduct.” There is support for city’s position. The legislature did not intend ORS 163.465 to operate as the exclusive prohibition of public nudity. For example, some public exposure would not rise to the level of public indecency, but would still be punishable as disorderly conduct. ORS 166.025.3 Moreover, the legislature only intended to exclude from criminal prosecution mere negligent or accidental exposures — not all exposures without a specific intent to arouse.4
*250That addresses the first question in this case: An ordinance is not preempted if it criminalizes conduct not prohibited in a corresponding state statute, if the same conduct is prohibited in another statute. Therefore, PCC § 14.24.060 is not preempted by ORS 163.465, because the legislature also prohibits public exposures that recklessly create the risk of public inconvenience, annoyance or alarm by ORS 166.025. However, ORS 166.025 would preempt PCC § 14.24.060 if the latter punishes a negligent or accidental public exposure, because the city would then punish behavior that the state allows.
Our previous cases have sufficiently limited the reach of PCC § 14.24.060 to allow us to imply a requirement of at least a “reckless” intent. In City of Portland v. Gatewood, 76 Or App 74, 708 P2d 615 (1985), rev den 300 Or 477 (1986), the defendant challenged PCC § 14.24.060 as over-broad, thereby violating Article I, section 8, of the Oregon Constitution. The defendant contended that the ordinance also encompassed permitted behavior, i.e., protected expression. Relying on State v. Jackson, 224 Or 337, 356 P2d 495 (1960), overruled on other grounds, State v. Henry, 302 Or 510, 732 P2d 9 (1987), we rejected the argument, recognizing our duty to interpret a constitutionally challenged statute in a manner that will sustain its validity, if possible. We concluded that PCC § 14.24.060 is intended to reach only non-protected public exposure and is to be interpreted and enforced accordingly. City of Portland v. Gatewood, supra, 76 Or App at 81. The ordinance is not overbroad, because it regulates conduct that the Portland City Council has determined to be injurious to health, safety and morals, i.e., public indecent exposure not intended as a protected symbolic or communicative act. 76 Or App at 82. Consequently, I would hold that PCC § 14.24.060 does not condemn purely accidental or negligent exposures. The ordinance requires at least recklessness by the actor.
*251The majority suggests that local criminal ordinances are preempted unless they are virtually identical with a state statute. I disagree. The issue in preemption analysis is whether the legislature decided not to prohibit local regulation of certain conduct. Ordinances often complement a field not exclusively occupied by state law. See State v. Long, supra, 106 Or App at 393. The authority of a municipality to enact reasonable legislation to regulate conduct that is thought to be detrimental to the public’s health, safety and morals is indisputable. City of Portland v. Gatewood, supra, 76 Or App at 79.
PCC § 14.24.060 is not preempted by ORS 163.465, because the legislature intended only to preclude criminal prosecutions of negligent or accidental exposures, not to preclude local regulation of public nudity.
I dissent.
Joseph, Rossman and Durham, JJ., join in this dissenting opinion.In Denton/Long, we saw the question of whether the legislature intended its law to be exclusive as part and parcel of the first question: Do the laws conflict? If the legislature intended its law to bar municipalities from local regulation in a given area, then any action a municipality took in that area would necessarily conflict with state law.
This is the first time that ORS 163.465 has come before us under a preemption challenge. Previous cases involving it have dealt with defendants exposing themselves in a department store, State v. Dugger, 73 Or App 109, 698 P2d 491 (1985), or to passing motorists on Interstate 5, State v. Daniel, 98 Or App 695, 780 P2d 784 rev den 308 Or 660 (1989), or to neighbors from inside the defendant’s own home, State v. Louis, 296 Or 57, 672 P2d 708 (1983); or masturbating in public restrooms, State v. Holt, 291 Or 343, 630 P2d 854 (1981); State v. Owczarzak, 94 Or App 500, 766 P2d 399 (1988); State v. Casconi, 94 Or App 457, 766 P2d 397 (1988); urinating on a sidewalk, State v. Jones, 103 Or App 123, 796 P2d 670 (1990), rev den 311 Or 166 (1991); engaging in a sexual act, State v. Culmsee, 91 Or App 63, 754 P2d 11 rev den 306 Or 414 (1988); and nude dancing. State v. Brooks, et al, 275 Or 171, 550 P2d 440 (1976). None of the cases dealt with the “intent” element of the statute, because the defendants’ intent to arouse was not at issue on appeal.
The Criminal Law Revision Commission, Oregon Criminal Code of 1971, for Senate Bill 40 stated in its summary of “indecent exposure” that “[p]aragraph (c) [the section at issue in this case] requires an intent to arouse the sexual desire of the actor or another. An exposure that is not sexually motivated would not violate this section, but might under the certain circumstances be ‘disorderly conduct’ ” under the state statute. Reprinted in Proposed Oregon Criminal Code, Final Draft and Report, § 120, Public Indecency, at p 129 (July, 1970).
The legislative commentary to ORS 163.465 reads:
“Indecent or lewd exposure of the person to the public view is a common law misdemeanor and it has been made a specific offense under many state statutes.
“Subsections (1) and (2) proscribe the performance of certain sexual activity in a public place. There is no mens rea requirement here; the commission of the act in public for whatever reason constitutes the offense.
*250“Subsection (3) requires an intent to arouse the sexual desire of the actor or another. An accidental or negligent exposure would not violate this section." (Emphasis supplied.)
Oregon Criminal Code 1972, Preliminary and Tentative Drafts, Art. 13, “Sexual Offenses,” Tentative Draft No. 1 at p 70 (Feb 1970), reported by Criminal Law Revision Comm., Subcomm. No. 2.