Cleveland v. StateCleveland v. State
Case Information
*1
[Cite as
Cleveland v. State
,
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97679
CITY OF CLEVELAND PLAINTIFF-APPELLANT vs.
STATE OF OHIO
DEFENDANT-APPELLEE JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-687935
BEFORE: Kilbane, J., Blackmon, A.J., and Cooney, J.
RELEASED AND JOURNALIZED: August 9, 2012 *2 ATTORNEYS FOR APPELLANT
Barbara Langhenry
City of Cleveland Interim Director of Law
Gary S. Singletary
Assistant Director of Law
Cleveland City Hall, Room 106
601 Lakeside Avenue
Cleveland, Ohio 44114-1077
ATTORNEYS FOR APPELLEE
Mike Dewine
State of Ohio Attorneys General
Pearl M. Chin
Jeannine Lesperance
Assistant Attorney General
Constitutional Offices Section
30 East Broad Street, 17th Floor
Columbus, Ohio 43215-3428
MARY EILEEN KILBANE, J.:
{¶1}
The city of Cleveland (“the City”) appeals from the order of the trial court
that rejected its challenge to the preemption provision of
provides:
Any person, firm, copartnership, voluntary association, joint-stock association, company, or corporation, wherever organized or incorporated, that is engaged in the towing of motor vehicles is subject to regulation by the public utilities commission as a for-hire motor carrier under this chapter. Such an entity is not subject to any ordinance, rule, or resolution of a municipal corporation, county, or township that provides for the licensing, registering, or regulation of entities that tow motor vehicles.
{¶4}
Also in March 2003, the Ohio General Assembly rescinded the exclusion
set forth in
of transportation for-hire motor carriers, and preempted local laws pertaining to the
licensing, registering, or regulation of entities that tow motor vehicles regulation.
CCO 677A remained in effect. The City maintained that the state statute
unconstitutionally interfered with its home-rule authority, and in reliance upon CCO
677A, impounded tow trucks that did not meet the City’s licensing requirements.
See Rodriguez v. Cleveland
,
simply added tow trucks to its PUCO scheme of regulating motor transportation
companies.
PUCO authority to supervise and regulate “motor transportation companies” since 1923,
and this term has included tow trucks since 2003. Applying the analytic framework set
forth in
Canton v. State
,
of a comprehensive statewide scheme of regulations. The state further argued that
{¶10}
The state additionally noted that
{¶11}
On November 17, 2011, the trial court concluded that
the trial court erred in concluding that
grant of summary judgment is de novo.
Grafton v. Ohio Edison Co.
,
demonstrate its entitlement to summary judgment.
Dresher v. Burt
,
(1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party. Once the moving party has met its initial burden, the nonmoving party must
produce competent evidence establishing the existence of a genuine issue for trial.
Dresher
at 288. In responding to a motion for summary judgment, a nonmoving party
may not rest on “unsupported allegations in the pleadings.”
Harless v. Willis Day
Warehousing Co.
, 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978). Rather,
constitutionality.
State v. Bloomer
, 122 Ohio St.3d 200,
amendment, gives municipalities the “authority to exercise all powers of local *8 self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”
{¶18}
As explained in
Am. Fin. Servs. Assn. v. Cleveland
, 112 Ohio St.3d 170,
[T]he constitutional provision as adopted gave municipalities the exclusive power to govern themselves, as well as additional power to enact local health and safety measures not in conflict with general laws, [but] “exclusive state power was retained in those areas where a municipality would in no way be affected or where state dominance seemed to be required.” (Emphasis sic.)
Id
. at ¶ 27, quoting Vaubel,
Municipal Home Rule in Ohio
, at 1107-1108 (1978).
In ,
uniformity.”
Ohio Assn. of Private Detective Agencies, Inc. v. N. Olmsted
, 65 Ohio St.3d
*9
242, 244,
is a general law for purposes of home-rule analysis. The statute must “(1) be part of a
statewide and comprehensive legislative enactment, (2) apply to all parts of the state alike
and operate uniformly throughout the state, (3) set forth police, sanitary, or similar
regulations, rather than purport only to grant or limit legislative power of a municipal
corporation to set forth police, sanitary or similar regulations, and (4) prescribe a rule of
conduct upon citizens generally.” , 95 Ohio St.3d 149,
1. Statewide and Comprehensive Legislative Enactment In determining whether a challenged statute is part of a comprehensive,
statewide scheme or plan, courts look to the range of activity subject to regulation under
the enactment and whether it serves a statewide concern.
See Clermont Environmental
Reclamation Co. v. Wiederhold
,
{¶24}
In this matter, we note that in the Motor Carrier Safety Act of 1984, the
United States Department of Transportation, through the Federal Motor Carrier Safety
Regulations, implemented safety regulations for drivers of commercial motor vehicles.
Gruenbaum v. Werner Ent., Inc
., S.D.Ohio No. 09-CV-1041,
{¶25}
enactments, deregulated the motor carrier industry, and in 49 U.S.C. 14501(c) of the Interstate Commerce Commission Termination Act, Congress enacted a provision preempting “a State, political subdivision of a State, or political authority of 2 or more States [from enacting or enforcing] a law, regulation, or other provision having the force *11 and effect of law related to a price, route, or service of any motor carrier * * * with respect to the transportation of property.” In June 2002, the United States Supreme Court acknowledged that Section
14501 generally preempts state and local regulation, but under an exception set forth in
Section 14501(c)(2)(A), states maintained “safety regulatory authority” and authority to
require minimum financial responsibility. The court therefore concluded that the state
power preserved in Section 14501(c)(2)(A) may be delegated to municipalities,
permitting them to exercise safety regulatory authority over local tow truck operations.
See Columbus v. Ours Garage & Wrecker Serv., Inc
.,
The Ohio Constitution currently grants municipalities within the State general authority “to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with the general laws.” Art. XVIII, § 3. * * * Particularly relevant here, Ohio has exempted tow trucks from the State’s regulation of motor carriers,§ 4921.02(A)(8) , thus leaving tow truck regulation largely to the cities. Cincinnati v. Reed, 27 Ohio App.3d 115,500 N.E.2d 333 (1985).
* * *
§ 14501(c)(2)(A) shields from preemption only “safety regulatory authority” (and “authority of a State to regulate * * * with regard to minimum amounts of financial responsibility relating to insurance requirements”). Local regulation of prices, routes, or services of tow trucks that is not genuinely responsive to safety concerns garners no exemption from § 14501(c)(1)’s preemption rule.
{¶29}
In March 2003, following the
Ours Garage
decision, the Ohio General
Assembly rescinded the exclusion for tow trucks set forth in
Any person, firm, copartnership, voluntary association, joint-stock
association, company, or corporation, wherever organized or incorporated,
that is engaged in the towing of motor vehicles is subject to regulation by
the public utilities commission as a for-hire motor carrier under this chapter.
Such an entity is not subject to any ordinance, rule, or resolution of a
municipal corporation, county, or township that provides for the licensing,
registering, or regulation of entities that tow motor vehicles.
This overview of the events surrounding the enactment of
indicates that tow trucks were simply included within the state’s regulation of for-hire motor carriers following the Ours Garage decision. Moreover, we conclude that this matter is similar to the situation presented
in ,
comprehensive zoning plan, the Supreme Court noted:
R.C. Chapter 3781 relates to building standards but varies widely in its content * * *.
Moreover, the state does not have a statewide zoning scheme, nor does the
state have a comprehensive plan or scheme for the licensing, regulation, or
registration of manufactured homes. Instead,
federal regulation of motor carriers, there has not been a comprehensive legislative
enactment with respect to tow truck enterprises. To date, the legislature has not set forth
a comprehensive plan or scheme for the licensing, regulation, or registration of tow truck
enterprises. Instead, the existing scheme pertains to for-hire motor carriers and adopts
federal safety regulations. This absence of a comprehensive scheme for tow truck
operations stands in stark contrast with the detailed, comprehensive scheme through
which the City sought, through its police powers, to regulate tow truck operations under
CCO 677A. We therefore cannot infer an intent to preempt local legislation based upon
broad regulatory enactment in this field. Accordingly, we conclude that
2. Uniform Operation Throughout the State General laws must “apply to all parts of the state alike.” Canton , 95 Ohio
St.3d 149,
forth in
[T]he statute will effectively apply only in older areas of the state, i.e., cities
where residential areas no longer have effective deed restrictions or no
longer have active homeowner associations. Because we find that
companies or otherwise include them in the PUCO regulatory scheme for for-hire motor
carriers. The exclusion for private tow truck enterprises defeats the claimed statewide
*16
concern of generally regulating tow truck enterprises, because it permits that which the
statute prohibits. This exclusion is therefore inconsistent with the statute’s purpose of
providing uniform regulation throughout the state. As was the case in ,
regulation imposed upon public for hire tow truck operators is not applicable to private
tow truck enterprises and arbitrarily permits disparate rules and regulations regarding
those companies. Accordingly, we find that
3. Establishes Police Regulations Rather Than Granting or Limiting Municipal
Legislative Power Proceeding to the third prong of the general law test outlined in Canton , we
next consider whether
4. Prescribes a Rule of Conduct Upon Citizens Generally With regard to the final element of the Canton test, the Linndale Court also
defined general laws as “those operating uniformly throughout the state, prescribing a
rule of conduct on citizens generally and operating with general uniform application
throughout the state under the same circumstances and conditions.”
Linndale
at 54.
Statutes that pertain to certain entities only do not prescribe a rule of conduct upon
citizens generally, so they do not meet this element.
Id
. Conversely, statutes that go
beyond merely limiting municipal authority and establish a rule of conduct for those who
are the subject of the legislation have satisfied this element of the
Canton
test.
See Am.
Fin. Servs. Assn.
,
citizens generally, we conclude that it is not a part of a system of uniform statewide
regulation on the subject of tow truck operation. It is a statute that simply provides that
municipalities, counties, and townships may not license, register, or regulate entities that
tow motor vehicles; it does not prescribe a rule of conduct upon citizens generally.
Accordingly, the fourth element of the
Canton
test is not met.
In accordance with the foregoing,
forth in , so we conclude that it is not a general law. Further, because
Ohio’s motion for summary judgment. We reverse that order and direct the trial court to enter summary judgment in favor of the City. Reversed and remanded with instructions to enter judgment in favor of
appellant.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
PATRICIA A. BLACKMON, A.J., CONCURS;
COLLEEN CONWAY COONEY, J., DISSENTS (SEE SEPARATE DISSENTING OPINION)
COLLEEN CONWAY COONEY, J., DISSENTING: I respectfully dissent. I would affirm the trial court judgment.
Statewide and Comprehensive
The first prong of the
Canton
test requires the statute in question be part of a
statewide and comprehensive legislative enactment. The City argues that
legislation because they are not 1) newly enacted, nor 2) specifically tow truck regulations. I am not persuaded by this argument because neither is a requirement under the Canton test. By defining any organization that operates tow trucks as “for-hire motor
carrier[s]” under this statute,
{¶49} Thus, I would find that the statute in question satisfies the first prong of the Canton test.
Uniformity
{¶50} The second prong of the test requires that the statute apply to all parts of the State alike and operate uniformly throughout the State.
{¶51}
The State argues that
Police, Sanitary, or Similar Regulations {¶52} The third prong of the test requires that the statute set forth police, sanitary, or similar regulations, rather than purport only to grant or limit legislative power of a municipal corporation. The City concedes that the regulation of tow trucks in the context of traffic
regulation is clearly an exercise of the State’s police power. As addressed above in the first prong, prior case law indicates that individual statutes should not be read in isolation but within the larger statutory scheme. R.C. Chapter 4921 in its entirety, along with the *22 PUCO, clearly sets forth regulations as opposed to strictly limiting the municipality’s legislative power.
{¶54}
Thus, I would find that
Rule of Conduct Upon Citizens
The fourth prong of the test requires that the statute prescribes a rule of conduct upon citizens generally.
{¶56}
The City fails to articulate a reason why this statute does not prescribe a rule
of conduct upon citizens generally, and instead rehashes its argument that the law limits
the municipality’s legislative power without setting forth independent regulations. The
State compares
Canton
“general law” test.
Having satisfied the four elements of the test, I would find that
Notes
[1] In that case, Rodriguez filed suit in federal court against the City, the arresting officers, and others alleging a violation of 42 U.S.C. 1983 and other claims, and the City defendants claimed that they were entitled to qualified immunity based upon the facial validity of CCO 677A. Ultimately, the United States Court of Appeals for the Sixth Circuit agreed that the defendants in that