Ohioans for Concealed Carry, Inc. v. City of ClydeOhioans for Concealed Carry, Inc. v. City of Clyde
Lead Opinion
{¶ 1} The issue presented in this case concerns whether Clyde City Ordinance No. 2004-41, which prohibits licensed handgun owners from carrying concealed handguns in Clyde city parks, is a valid exercise of the municipality’s home-rule power according to Section 3, Article XVIII, of the Ohio Constitution. Because the ordinance is an exercise of the municipality’s police power that conflicts with a general law, the ordinance is unconstitutional. Accordingly, we affirm the judgment of the court of appeals.
H.B. 12
{¶ 2} In January 2004, the General Assembly enacted Am.Sub.H.B. No. 12. Effective in April 2004, the bill created a licensing procedure for handgun owners in Ohio. See
{¶ 3} Specifically, this matter requires review of
{¶ 4}
{¶ 5} “(B) A valid license issued under section 2923.125 or 2923.1213 of the Revised Code does not authorize the licensee to carry a concealed handgun in any manner prohibited under division (B) of section 2923.12 of the Revised Code or in any manner prohibited under section 2923.16 of the Revised Code. A valid
{¶ 6} “(1) A police station, sheriffs office, or state highway patrol station, premises controlled by the bureau of criminal identification and investigation, a state correctional institution, jail, workhouse, or other detention facility, an airport passenger terminal, or an institution that is maintained, operated, managed, and governed pursuant to division (A) of section 5119.02 of the Revised Code or division (A)(1) of section 5123.03 of the Revised Code;
{¶ 7} “(2) A school safety zone, in violation of section 2923.122 of the Revised Code;
{¶ 8} “(3) A courthouse or another building or structure in which a courtroom is located, in violation of section 2923.123 of the Revised Code;
{¶ 9} “(4) Any room or open air arena in which liquor is being dispensed in premises for which a D permit has been issued under Chapter 4303. of the Revised Code, in violation of section 2923.121 of the Revised Code;
{¶ 10} “(5) Any premises owned or leased by any public or private college, university, or other institution of higher education, unless the handgun is in a locked motor vehicle or the licensee is in the immediate process of placing the handgun in a locked motor vehicle;
{¶ 11} “(6) Any church, synagogue, mosque, or other place of worship, unless the church, synagogue, mosque, or other place of worship posts or permits otherwise;
{¶ 12} “(7) A child day-care center, a type A family day-care home, a type B family day-care home, or a type C family day-care home, except that this division does not prohibit a licensee who resides in a type A family day-care home, a type B family day-care home, or a type C family day-care home from carrying a concealed handgun at any time in any part of the home that is not dedicated or used for day-care purposes, or from carrying a concealed handgun in a part of the home that is dedicated or used for day-care purposes at any time during which no children, other than children of that licensee, are in the home;
{¶ 13} “(8) An aircraft that is in, or intended for operation in, foreign air transportation, interstate air transportation, intrastate air transportation, or the transportation of mail by aircraft;
{¶ 14} “(9) Any building that is owned by this state or any political subdivision of this state, and all portions of any building that is not owned by any governmental entity listed in this division but that is leased by such a governmental entity listed in this division;
{¶ 15} “(10) A place in which federal law prohibits the carrying of handguns.”
{¶ 17} The General Assembly went even further, however, providing in an uncodified portion of H.B. 12 that “[n]o municipal corporation may adopt or continue in existence any ordinance * * * that attempts to restrict the places where a person possessing a valid license to carry a concealed handgun may carry a handgun concealed.” H.B. 12, Section 9, 150 Ohio Laws, Part II, 3390.
{¶ 18} Shortly after H.B. 12 took effect, the city of Clyde passed Ordinance 2004-41. That ordinance provides: “No person located within the confines of any City Park shall knowingly carry or have, on or about his person or readily to hand, any deadly weapon, irrespective of whether such person has been issued a license to carry a concealed handgun pursuant to Ohio
{¶ 19} Ohioans for Concealed Carry, Inc., filed an action in August 2004 seeking an order striking down the ordinance and, further, seeking injunctive relief prohibiting Clyde from curtailing gun owners’ rights. Both Ohioans for Concealed Carry, Inc., and Clyde moved for summary judgment. The trial court granted judgment in favor of Clyde, relying on the Sixth District Court of Appeals’ decision in Toledo v. Beatty,
{¶ 20} Ohioans for Concealed Carry appealed that determination to the San-dusky County Court of Appeals. While the case was on appellate review, the General Assembly enacted 2006 Sub.H.B. No. 347, creating
{¶ 21} The court of appeals used
{¶ 22} Clyde appealed that determination to this court, and we accepted the discretionary appeal.
Article XVIII — The Home Rule Amendment
{¶ 23} The Home Rule Amendment to the
{¶ 24} A home-rule analysis presents a three-step process. Am. Fin. Servs. Assn. v. Cleveland,
{¶ 25} The second step, which becomes necessary if the local ordinance is an exercise of police power, requires a review of the statute to determine whether it is a general law under our four-part test announced in Canton v. State,
{¶ 26} The final step in the analysis, therefore, is to determine whether the ordinance conflicts with the statute, i.e., “whether the ordinance permits or licenses that which the statute forbids * * *, and vice versa.” Struthers v. Sokol (1923),
{¶ 27} Clyde makes two separate arguments in support of its position that the ordinance is a constitutional exercise of its home-rule power. First, Clyde argues that regulation of its city parks is purely a matter of local self-government and, therefore, that the city is within its power to enact the legislation regardless of the applicable state statute. Second, Clyde argues that even if the ordinance is an exercise of its police power,
{¶ 28} Ohioans for Concealed Carry, on the other hand, maintains that the very language of the ordinance supports the conclusion that it is one of police power and that the regulation of firearm possession is a prime example of the exercise of that power. Ohioans for Concealed Carry also contends that the exceptions, though numerous, apply uniformly throughout the state and do not affect uniform application or enforcement, meaning that the statute constitutes a general law. Because the arguments presented require examination of multiple aspects of the home-rule analysis, we will conduct a complete examination of each facet of that test.
{¶ 29} Before beginning our analysis, however, we note that the appellate court held that
{¶ 30} The first step of the home-rule analysis, as noted, is to determine whether the ordinance is an exercise of police power or of local self-government. As this court recently noted, “[a]n ordinance created under the power of local self-government must relate ‘solely to the government and administration of the internal affairs of the municipality.’ ” Marich,
{¶ 31} In Marich, we examined Norton Codified Ordinance 440.01, which “regulat[ed] the traffic that pass[ed] through the municipality by placing size requirements on the vehicles that may be driven there.” Id. at ¶ 15. Emphasizing that the ordinance served “to protect drivers and pedestrians who might be traveling on those roads,” we held that it embodied an exercise of the municipality’s police power. Id. In reaching this holding, we reiterated that traffic ordinances “in general” constitute exercises of a municipality’s police power because they operate to protect the public. Id. at ¶ 14; see also Mendenhall,
{¶ 32} In Ohio Assn. of Private Detective Agencies, Inc. v. N. Olmsted (1992),
{¶ 33} Furthermore, though we have never spoken directly on the subject of firearm regulation as an exercise of police power in the home-rule context, we stated in Klein v. Leis,
{¶ 34} Several appellate courts, consistent with Klein, have held that local ordinances regulating firearm possession are police-power regulations. In Cincinnati v. Baskin,
{¶ 35} The ordinance at issue here is an exercise of Clyde’s police power. First, the ordinance does not “relate ‘solely to the government and administration of the internal affairs of the municipality.’ ” Marich,
{¶ 36} Second, the ordinance imposes a penalty just as the ordinances presented in Marich, Baskin, Mendenhall, and Ohio Assn. of Private Detective Agencies. Here, violation of the Clyde ordinance results in a first-degree misdemeanor. But whether criminal or civil, an ordinance’s penalty is aimed at curbing the regulated behavior for the general welfare of a municipality’s citizens.
{¶ 37} Finally, the plain language of the ordinance undermines any argument that it is one relating to local self-government. Section 2 of the ordinance, for example, declares that it is “an emergency measure necessary for the preservation of the public peace, health and safety.” While a municipality’s description or classification of its enactments is not dispositive, Section 2 clearly supports our determination and provides further support for the nature of the ordinance. The ordinance is therefore an exercise of Clyde’s police power, and we proceed to the next step in our analysis.
General-Law Analysis
{¶ 38} We next consider whether
{¶ 39} We proceed to evaluate the statute under each prong of the test.
{¶ 40} We look first to the language of the statute to determine whether it creates a statewide comprehensive legislative enactment.
{¶ 41} The General Assembly could not have been more direct in expressing its intent for statewide comprehensive handgun-possession laws. We therefore hold that
Uniform Application of the Statute
{¶ 42}
{¶ 43} We rejected a similar argument in Marich. There, the Bob Bennett Construction Company argued that by granting power to cities over the regulation of street permits, “the General Assembly established a system that will inherently vary to some degree from jurisdiction to jurisdiction.” Marich,
{¶ 45} The statute at issue here, however, has no similar differential application. See Marich,
{¶ 46} Furthermore, the statute is not arbitrary in its differentiation between private and public property. See
{¶ 47} There is a distinction between public and private property. A private landowner is the sole possessor of private property. Eastwood Mall, Inc. v. Slanco (1994),
{¶ 48} We therefore conclude that the public/private distinction does not affect the uniform application of this statute.
Police, Sanitary, or Similar Regulation
{¶ 49} The third prong of the general-law test is whether the statute “ ‘set[s] forth police, sanitary, or similar regulations, rather than purports] only to grant or limit legislative power of a municipal corporation to set forth police, sanitary, or similar regulations.’ ” Am. Fin. Servs. Assn.,
{¶ 50}
Prescription of a Rule of Conduct for Citizens
{¶ 51} This inquiry requires little discussion.
{¶ 52} Accordingly,
Conflict Analysis
{¶ 53} The final step in a home-rule analysis is the conflict test, which asks whether the ordinance prohibits that which the statute permits, or vice versa. See Struthers,
Conclusion
{¶ 54} Clyde City Ordinance No. 2004-41 is an exercise of the municipality’s police power that conflicts with
Judgment affirmed.
Dissenting Opinion
dissenting.
{¶ 55} The General Assembly’s stated purpose in enacting
{¶ 56} However, these exceptions generally treat private property owners (as well as private persons leasing public land) as a separate class, giving them the authority to decide in most circumstances whether concealed handguns will be allowed on their property.
{¶ 57} Pursuant to Section 3 of the Home Rule Amendment, Article XVIII of the Ohio Constitution, a state statute will take precedence over a local ordinance only if “(1) the ordinance is in conflict with the statute, (2) the ordinance is an exercise of the police power, rather than of local self-government, and (3) the statute is a general law.” Canton v. State,
{¶ 58} However, I do not agree that
{¶ 59} In fact, this case provides a prime example of the types of arbitrary and unreasonable conduct discussed in Canton. Suppose that there are two parks in Clyde on opposite sides of the street; Park A is owned by the city, and Park B is owned by a private corporation.
{¶ 60} The single fact that Park A is publicly owned and Park B is privately owned changes the rules for whether concealed handguns will be allowed in the parks. The statute completely regulates public property while having essentially no effect on most forms of private property (with rare exceptions like
{¶ 61} This different treatment of public and private property is patently arbitrary and unreasonable; it affects one class of land solely on the basis of ownership, which has little to do with the relative safety of allowing concealed handguns on a particular type of property.
{¶ 62} The majority tries to sidestep these problems by citing our decision in Marich v. Bob Bennett Constr. Co.,
{¶ 63} We answered this concern by holding that a statutory system that varies “to some degree from jurisdiction to jurisdiction” can still be a general law, as “mere differences in the interpretation and application of the statutory language are not enough to prevent a statute from applying to all parts of the state and operating uniformly throughout it.” Id. at ¶ 22, 25. We acknowledged that different municipalities might interpret “good cause shown” to mean different things, but held that the basic process for receiving a permit was the same throughout the state. Id. at ¶ 25, 26.
{¶ 64} With
{¶ 65} Given the arbitrary and unreasonable distinction between public and private landowners, the fact that the law is subject to the will of private
Notes
. Appellant Clyde notes in its brief that the Whirlpool Corporation owns a private park in Clyde, with facilities similar to those in municipal parks, such as a swimming pool, tennis courts, and ball fields.
. {¶ a} Although not a reason under our ease law for concluding that
{¶ b} It is unfortunate that the passion of those who believe in the right of virtually any adult to carry a concealed weapon (subject to the statutory exceptions) has pushed aside the fundamental belief in Ohio that matters that directly affect the safety of a community may be determined by local government, where the voices of those citizens most directly affected may be heard and
Dissenting Opinion
dissenting.
{¶ 66} In E. Liverpool v. Columbiana Cty. Budget Comm.,