685 N.E.2d 300 | Ohio Ct. App. | 1996
Lead Opinion
Defendant-appellant Barefoot Grass Lawn Service ("Barefoot Grass") appeals from a no contest plea conviction for violation of an ordinance enacted by plaintiff-appellee city of Fairview Park requiring notice before applying lawn chemicals.
Fairview Park commenced this action by filing a criminal complaint against Barefoot Grass in the Rocky River Municipal Court on July 3, 1995. The complaint alleged that Barefoot Grass applied chemicals/pesticide on a residential property within the municipality without having given prior notice to a specified abutting property owner as required by Codified Ordinances 741.02(a) and 741.02(b).
Barefoot Grass filed a motion to dismiss on the grounds that the Fairview Park ordinance was specifically preempted by R.C.
The trial court denied Barefoot Grass's motion to dismiss the charges without opinion. The parties stipulated that Barefoot Grass complied with state law, that the neighbor designated in the complaint did not request notice on the proposed pesticide application, and that Barefoot Grass did not provide notice to the neighbor under the Fairview Park ordinance. Barefoot Grass thereafter pleaded no contest to the charges and was found guilty by the municipal court. The *308 municipal court imposed a $250 fine and court costs, which were suspended pending appeal. Barefoot Grass raises the following related assignments of error in this accelerated appeal:
"The trial court erred in overruling defendant/appellant's motion to dismiss and finding defendant/appellant guilty of violating Fairview Park Codified Ordinance Nos. 741.02(A) and 741.02(B).
"The trial court erred in upholding and enforcing Fairview Park Codified Ordinance Nos. 741.02(A) and 741.02(B)."
These assignments are well taken.
Barefoot Grass argues generally that the Fairview Park pesticide preapplication notice ordinance is unenforceable because it is contrary to provisions in the Ohio Revised Code. Fairview Park argues to the contrary that the ordinance is valid and does not conflict with Ohio law.
Public health, safety, and environmental regulations are frequently enforced by different levels of government. In the case at bar, each party cites authority regarding regulation of other matters to support its arguments concerning the validity of Fairview Park's pesticide notice ordinance. Cases involving issues of supremacy of law, however, are difficult to apply from one subject to another because of the different regulatory structures governing, for example, foods, drugs, poisons, hazardous substances, and wastes.1 The parties have cited no authoritative pronouncement in the area of regulation of pesticides in Ohio.2
Pesticides are comprehensively regulated by the state of Ohio in R.C. Chapter 921. R.C.
"(A) After the effective date of this rule, no licensee shall: *309
"(1) Apply any lawn pesticides to residential lawns in any municipal corporation or subdivided area of a township unless:
"* * *
"(b) They have made a reasonable attempt to provide, on the previous business day or before, both the approximate time of application and their company name and telephone number to any occupant of a residence whose property abuts to the property on which lawn pesticide is to be applied who has notified the licensee in writing, providing their name, address and telephone number, that he/she wishes to receive prior notification of lawn pesticide applications. The license holder must make available either by telephone or in writing all information listed in paragraphs (A)(1)(a)(i) to (A)(1)(a)(vii) of this rule to an abutting property owner who contacts the license holder following a lawn chemical application requesting this information."
R.C.
"No person who is licensed, regulated, or registered under section
Fairview Park Codified Ordinances Chapter 741 applies to lawn chemical applicators. Barefoot Grass was charged with violating Section 741.02 of the ordinances, which, unlike the above Revised Code provisions, requires lawn chemical applicators to provide preapplication notice to occupants of abutting property regardless of whether they request such notice. Section 741.02 provides in part as follows:
"NOTICE AND DUTIES TO OCCUPANTS OF ABUTTING PROPERTY.
"(a) No person licensed under Ohio R.C.
"(1) The date and approximate time of lawn chemical application;
"(2) The name and telephone number of the employer of the applicator;
"(3) The chemical type (fertilizer, pesticide or defoliant) of each lawn chemical to be applied. *310
"(b) In the event that an applicator is unable to provide twenty-four hour prior notification to persons residing on property that abut property on which the lawn chemical is to be applied due to the absence or inaccessibility of such persons, the applicator shall leave a written notice at the residence prior to the time of application which shall provide the information specified in subsections (a)(1), (2) and (3) hereof."
The sole issue is whether these ordinance notice provisions are invalid because they conflict with the regulations adopted under the Ohio Revised Code.
The Ohio Supreme Court has established a three-part test which generally applies to determine whether local ordinances are invalidated by state law regulating the same matters.Ohio Assn. of Private Detective Agencies, Inc. v. N. Olmsted
(1992),
The parties cite and have become mired in a dispute concerning the scope of two cases arising in the context of hazardous waste environmental laws: Fondessy Enterprises, Inc.v. Oregon (1986),
In Fondessy the Ohio Supreme Court discussed the third requirement of the three-part test for invalidating a local ordinance, viz., the existence of a conflict between the ordinance and state law. The Fondessy court focused on whether the ordinance permits what the statute forbids. Id. at paragraph two of the syllabus, following Struthers v. Sokol (1923),
As a result of our review in accordance with Supreme Court case law, we conclude that the ordinance is a police regulation, the statute is general law, the ordinance impermissibly conflicts with the state statute, and the ordinance is, therefore, invalid. Accord Automatic Refreshment Serv. v.Cincinnati (1993),
Fairview Park does not dispute (1) that its ordinance involves the exercise of its police powers rather than its powers of self-government or (2) that the Revised Code provides for the adoption of general laws that establish uniform *311 statewide standards of conduct. Fairview Park contends, however, that its ordinance does not conflict with the Revised Code because the ordinance provides merely (1) a different manner of providing notice or (2) permissible "dual conditions."
This argument is unpersuasive. State law has established specific standards governing notice prior to the proposed application of pesticides by state-licensed applicators. Regulations adopted pursuant to R.C.
There is a conflict between an ordinance and a statute if the ordinance prohibits what the state statute permits. In this case, the Revised Code permits state-licensed pesticide applicators like Barefoot Grass to apply pesticides without giving notice to residents of abutting property who do not make a written request for such notice. Fairview Park's ordinance, on the other hand, prohibits the application of pesticides without giving prior notice to all occupants of abutting property, including those who make no request.
Fairview Park's reliance on Horisk's Salvage Pool v.Strongsville (1993),
In this case, however, both state law and the challenged ordinance expressly govern notice requirements prior to the application of pesticides. The language of the state notice regulations, Ohio Adm. Code
Fairview Park's contention that this case involves improper preemption by state law of its challenged ordinance rather than invalidation because of conflict between state law and ordinance lacks merit. We recognize that the Ohio Revised Code statutes governing pesticides contain an express preemption provision similar to the hazardous waste statutes in Clermont. Compare R.C.
Fairview Park persuasively argues that its ordinance provides neighbors and the general public with a more effective opportunity to minimize or avoid contact with pesticides than the state regulations. However, it is not for this court to decide which rule is better. The Ohio General Assembly expressly delegated the authority to the Department of Agriculture to determine the adequacy of pesticide preapplication notice. The proper way to change the pesticide application notice requirements is through the Ohio General Assembly or Department of Agriculture, not by enacting a conflicting local ordinance.
The supremacy of R.C.
Accordingly, the two assignments of error are well taken.
The judgment of the municipal court is reversed, and final judgment is hereby entered for Barefoot Grass.
Judgment reversed.
MATIA and KARPINSKI, JJ., concur.
JAMES D. SWEENEY, P.J., dissents.
Dissenting Opinion
I respectfully dissent.
The majority concludes that Codified Ordinances of Fairview Park 741.02(A) and 741.02(b) and R.C.
In Struthers v. Sokol (1923), 108 Ohio State 263, 140 N.E. 519, the word "conflict" was defined by quoting The Century Dictionary as "discord of action, feeling or effect; antagonism as of interests or principles; counteraction, as of causes, laws or agencies of any kind; opposing action or tendency; opposition; collision." The court stated that "no real conflict can exist unless the ordinance declares something to be right which the state law declares to be wrong, or vice versa. There can be no conflict unless one authority grants a permit or license to do an act which is forbidden or prohibited by another." This "principle is easier stated than applied."Automatic Refreshment Serv., Inc. v. Cincinnati (1993),
In the case sub judice, both the city ordinance and the state statute permit the appellant to spread pesticides. The statute provides notice to abutting owners only upon certain conditions, and the ordinance provides simply that notice must be given. The ordinance does not "declare something to be right which the state law declares to be wrong, or vice versa." I would find that no conflict exists between the state statute and the city ordinance, and would affirm the appellant's conviction.