OHIO ASSOCIATION OF PRIVATE DETECTIVE AGENCIES, INC., APPELLANT, v. CITY OF NORTH OLMSTED, APPELLEE.
No. 91-1886
Supreme Court of Ohio
Submitted September 22, 1992—Decided December 16, 1992.
65 Ohio St.3d 242
Michael R. Gareau, Director of Law, and James M. Dubelko, for appellee.
Thompson, Hine & Flory, Daniel W. Hammer and Stephen F. Gladstone, urging reversal for amici curiae, Brink‘s Incorporated and Independent Armored Car Operators Association, Incorporated.
Lee I. Fisher, Attorney General, and Christopher B. McNeil, Assistant Attorney General, urging reversal for amicus curiae, Ohio Department of Commerce, Division of Licensing.
“Municipalities shall have 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 general laws.” (Emphasis added.)
In State ex rel. Canada v. Phillips (1958), 168 Ohio St. 191, 5 O.O.2d 481, 151 N.E.2d 722, paragraph four of the syllabus, this court interpreted the foregoing language as follows:
“The words, ‘as are not in conflict with general laws’ found in Section 3 of Article XVIII of the Constitution, modify the words ‘local police, sanitary and other similar regulations’ but do not modify the words ‘powers of local self-government.’ ”
Accordingly, in Auxter v. Toledo (1962), 173 Ohio St. 444, 20 O.O.2d 71, 183 N.E.2d 920, the court intimated that a three-step process is involved in determining whether a municipal ordinance must yield to the provisions of a state statute. Initially, it must be ascertained whether the local ordinance seeks to exercise a power of local self-government or constitutes a police regulation. In Auxter, supra, at 446, 20 O.O.2d at 72, 183 N.E.2d at 922, the court observed that:
“* * * [A]ny municipal ordinance, which prohibits the doing of something without a municipal license to do it, is a police regulation within the meaning of
Section 3 of Article XVIII of the Ohio Constitution .”
Appellee attempts to distinguish Auxter from the instant case by contending that it seeks not to “license” but to “register” security personnel. This argument is without merit. Whatever the distinction may be between licensing and registration, such distinction does not convert the latter into the exercise of a power of local self-government. Regulation of private employment can hardly be argued to be a matter involving the structure or operation of a charter municipality.
The second inquiry involves a determination of whether the state legislation is a general or special provision. Id. at 447-448, 20 O.O.2d at 73, 183 N.E.2d at 923. A general law has been described as one which promotes statewide uniformity. Thus, in State ex rel. McElroy v. Akron (1962), 173 Ohio St. 189, 194, 19 O.O.2d 3, 6, 181 N.E.2d 26, 30, it was observed:
“Once a matter has become of such general interest that it is necessary to make it subject to statewide control so as to require uniform statewide regulation, the municipality can no longer legislate in the field so as to conflict with the state.”
Considered in isolation, such a provision may fail to qualify as a general law because it prohibits a municipality from exercising a local police power while not providing for uniform statewide regulation of the same subject matter. See Youngstown v. Evans (1929), 121 Ohio St. 342, 168 N.E. 844. However, consideration of
The final inquiry concerns whether a conflict exists between the state and local provisions. Auxter, supra, 173 Ohio St. at 448, 20 O.O.2d at 73, 183 N.E.2d at 923. While the appellate court conceded that a conflict existed, it nevertheless concluded that the local ordinance validly exacted a fee because the state law was not deemed to be one of general application. Nonetheless, appellee attempts to address the conflict issue. Appellee contends that no conflict exists because the ordinance neither can nor does attempt to prohibit the practice of private investigation within the city of Westlake. Rather, appellee maintains that the ordinance merely requires that members of the regulated profession register with the municipality. Despite this resourceful argument, appellee ignores the fact that the failure to register and pay the registration fee precludes security personnel from working in the municipality and exposes them to misdemeanor liability if they attempt to do so.
Consequently, inasmuch as the local ordinance restricts an activity which a state license permits, the ordinance is in conflict with a general law of the state and violates
We therefore conclude that a municipal ordinance which attempts to exact a fee for the registration or licensure of private investigators, security guard providers or their employees, constitutes a local police regulation. Where, as here, the fee provision in such ordinance conflicts with the statewide regulatory program established pursuant to
Judgment reversed and cause remanded.
MOYER, C.J., DOUGLAS, H. BROWN and RESNICK, JJ., concur.
HOLMES and WRIGHT, JJ., dissent.
WRIGHT, J., dissenting. I respectfully dissent. The court‘s decision reflects a misunderstanding of the scope and purpose of the Home Rule Amendment to the Ohio Constitution and seriously undermines the constitutionally protected power of municipal corporations. I am writing to explain my disagreement with the court over a single, but crucial, element of its analysis.
I
In deciding this appeal, the court correctly used the three-step process outlined in Auxter v. Toledo (1962), 173 Ohio St. 444, 20 O.O.2d 71, 183 N.E.2d 920. The court also properly applied the facts of this case to the first and third steps in that process. I do not disagree with the holding that the North Olmsted ordinance constitutes a police regulation or the conclusion that the ordinance directly conflicts with
I do disagree, however, with the court‘s treatment of the second step in the three-step process. That step requires the court to determine whether
Because I cannot agree that the Home Rule Amendment affords municipal corporations such hollow protection, I must dissent.
II
To understand the term “general laws” one must first study the purpose and scope of the Home Rule Amendment. Prior to 1912, political subdivisions of the state derived their authority to act from legislation passed by the General Assembly. In 1912, however,
The Home Rule Amendment gives municipal corporations the power to enact two sorts of ordinances: (1) ordinances that exercise powers of local self-government and (2) police, sanitary, and other similar regulations as are not in conflict with the general laws. See State ex rel. Arey v. Sherrill (1944), 142 Ohio St. 574, 578-579, 27 O.O. 505, 507, 53 N.E.2d 501, 504. As observed by the majority, it is the second type of ordinance with which we are concerned in this case. In providing municipal corporations with the power to enact police regulations, the drafters of the Amendment engaged in delicate balancing: on one hand they gave municipal corporations broad power to enact such regulations, on the other they recognized “that police, sanitary and other similar regulations were not purely local matters and therefore should continue to be controlled by general law.” (Emphasis sic.) Arey, supra, at 578-579, 27 O.O. at 507, 53 N.E.2d at 504. We have the duty to interpret the Home Rule Amendment in a way that respects both municipal autonomy and the need for uniform application of general laws. The key to this task lies in defining the term “general laws” with both precision and consistency.
In West Jefferson v. Robinson (1965), 1 Ohio St.2d 113, 30 O.O.2d 474, 205 N.E.2d 382, this court defined “general laws” in a way that balances the interest of municipal autonomy with the interest of uniform application of laws enacted by the General Assembly. “[G]eneral laws,” the court held, are “statutes setting forth police, sanitary or similar regulations and not statutes which purport only to grant or to limit the legislative powers of a municipal corporation to adopt or enforce police, sanitary or other similar regulations.” Id. at paragraph three of the syllabus. This rule recognizes the principle that the General Assembly can enact laws that regulate the conduct of people in this state; but it cannot enact a law the sole purpose of which is to strip constitutionally granted power from a municipal corporation.
One commentator explains:
“As they do not include enabling laws, ’general laws’ do not encompass legislative efforts to restrict power granted to the municipal corporation by the people through their constitution, unless that constitution so provides. The only express limitation upon municipal Home Rule is the ‘no conflict’ provision. As has already been seen, the provision has not been construed to authorize the state to exclude a municipality from a field by means of the state‘s own regulation of the field—to preempt the field. It would seem even more clear that this provision is not to be construed as justifying a simple denial of power. Moreover, so to construe it would create the incongruous situation of retaining in a large area of municipal affairs a two step legislative enabling power, through withdrawal and rebestowal. Rather than establishing self-government, this interpretation of the amendment would make the position of the municipality worse than it had been before, as it would subject it to the necessity of running the gauntlet of interpretation twice. Then too, if this was intended, the language used, ‘not in conflict with general laws,’ seems inappropriate in comparison with what might have been used, such as, ‘except as denied by the legislature’ or, even, ‘to the extent granted by the legislature.‘” (Emphasis added.) Vaubel, supra, at 63-64.
General laws are those laws “operating uniformly throughout the state, * * * which prescribe a rule of conduct upon citizens generally * * *,” Garcia v. Siffrin (1980), 63 Ohio St.2d 259, 271, 17 O.O.3d 167, 174, 407 N.E.2d 1369, 1377-1378 (citing Schneiderman v. Sesanstein [1929], 121 Ohio St. 80, 167 N.E. 158), not laws that regulate the power of municipal corporations. A law that simply grants or denies municipal power is not a general law because the power to enact ordinances already has been granted to municipal corporations by the Ohio Constitution. If it were otherwise, the grant of power contained in the Home Rule Amendment would be a nullity and we would return to the time before 1912 when the legislature completely controlled the scope of municipal power.
Youngstown v. Evans (1929), 121 Ohio St. 342, 168 N.E. 844, is on point. In Evans, a state statute provided that municipalities could make the violation of a city ordinance a misdemeanor and could punish violators by fine or imprisonment. The statute also established maximum limits for those penalties. The cities of Cleveland and Youngstown, however, had ordinances with penalties in excess of what was permitted by the statute. Faced with this conflict, this court held that the provision of the state statute setting maximum penalties was nothing more than a limitation on municipal power and therefore was not a general law. The court wrote that the state statute “is a general law in the limited sense that it operates uniformly throughout the state. It is not a general law in the sense of prescribing a rule of conduct upon citizens
Therefore, in determining whether
III
The court of appeals correctly held that
First,
The second part of the first sentence of
Second, the final sentence of
The reasoning used to uphold the validity of a local ordinance in Garcia v. Siffrin, supra, is applicable here.
North Olmsted‘s power to enact a police regulation licensing security providers comes from the Constitution and is recognized in the first sentence of
IV
There are three identifiable problems with the majority‘s analysis. First, the majority ignores precedent. As previously discussed, West Jefferson v.
Second, the majority relies heavily on cases that are patently distinguishable from this case because they involved comprehensive regulatory statutes. In State ex rel. McElroy v. Akron (1962), 173 Ohio St. 189, 19 O.O.2d 3, 181 N.E.2d 26, a state statute required that all watercraft operated in the state have state licenses, imposed a licensing fee that was held to be an excise tax, and stated that no political subdivision could require an additional license or fee from watercraft operators. This case appears to have convinced the majority to hold that the North Olmsted licensing fee is impermissible because the state itself requires a license and a licensing fee of security providers. See
Like McElroy, Westlake v. Mascot Petroleum Co. (1991), 61 Ohio St.3d 161, 573 N.E.2d 1068, involved a comprehensive statewide regulatory scheme. Under the liquor permit statute involved in Westlake, “exclusive authority to regulate the sale and consumption of alcoholic beverages is vested in the Ohio Department of Liquor Control and the Ohio Liquor Control Commission.” Id. at 167, 573 N.E.2d at 1073. Therefore, the city of Westlake‘s attempt to enforce a zoning regulation to extinguish privileges arising from a valid state liquor permit was held to be impermissible. Again, the factor that distinguishes Westlake from our case is that the liquor licensing statute created a comprehensive regulatory scheme while
The value of the rule of West Jefferson, and the reason why we should follow it in this case, is that it protects local governments from gratuitous state legislation. I fail to see how the licensing fee prohibition in
I would affirm the court of appeals on the ground that
HOLMES, J., concurs in the foregoing dissenting opinion.