2006 proved to be a very challenging year for municipal home rule authority. Court cases, ballot issues, and legislative activity limiting municipal regulation of predatory lending, seing residency requirements for city employees, regulating lawsuits against lead paint manufacturers, enacting smoking bans, and limiting the closure of railroad crossings are some of the more notable examples. At the very end of the year, gun control and the use of traffic cameras joined the list.

In the last days of 2006, the Ohio General Assembly adopted two pieces of legislation that further limited municipal home rule authority. 2006 Ohio House Bill 347 expanded state regulation on concealed weapons, stripping municipalities of their authority to pass local ordinances governing the same topic. 2006 Ohio House Bill 56 sought to limit local ability to use traffic cameras to impose civil fines. Citing concerns about the impingement on local authority, the governor vetoed both bills. Yet today, one bill is the law while the other is not. This article provides a brief overview of both bills and the litigation that surrounds both of these controversial issues.

House Bill 347 — Concealed Weapons Bill

At the same time that two Ohio cities were defending their home rule authority to regulate weapons, the Ohio General Assembly was debating a new state law on the subject. Cincinnati and Toledo both prevailed on their challenges when the courts found that the state laws involved did not completely preempt local regulation of the subject. With House Bill 347, the General Assembly enacted a comprehensive law regulating concealed weapons, specifically announcing its intention to preempt local laws in codified language.

Cincinnati’s Ordinance

In Cincinnati v. Baskin1, issued December 8, 2006, the Ohio Supreme Court upheld the City of Cincinnati’s home rule authority to regulate semiautomatic firearms. The key issue for the Court was whether or not the municipal ordinance conflicted with R.C. § 2923.17. The Court examined the Cincinnati ordinance and applied its well-established test for determining whether or not R.C. § 2923.17 was a general law for purposes of Section 3, Article XVIII of the Ohio Constitution. The Supreme Court found that R.C. § 2923.17, regulating possession of semiautomatic firearms with a capacity of thirty-one cartridges, was a general law for purposes of home rule analysis. However, the Court noted that the state law did not specifically regulate or prohibit possession of semiautomatic firearms capable of firing thirty-one cartridges or less. The Cincinnati ordinance prohibited possession of semiautomatic firearms with a capacity of more then ten rounds.

Since state law did not contain language to address firearms with this lower capacity, the Court concluded that the General Assembly intended to permit municipalities to regulate possession of semiautomatic firearms with a capacity of thirty-one rounds or less. The Court ruled, “the ordinance does not prohibit what the statute permits,” and upheld Cincinnati’s regulation.

Toledo’s Ordinance

The Sixth District Court of Appeals reached a similar result in City of Toledo v. Beatty2. The Toledo City Council adopted an ordinance to prohibit carrying a concealed weapon in a municipal park. R.C. § 2923.126 contains a list of areas where concealed weapons are prohibited, even by individuals licensed to carry concealed handguns, but does not include city parks.

The Beatty Court found that the state law was not a general law because it did not have uniform application to all citizens of the state. Although R.C. § 2923.126 contained an express pronouncement that it was enacted to ensure uniformity throughout the state, the law itself created certain exceptions by permitting private employers to establish rules regarding concealing and carrying handguns by their employees in privately owned facilities and automobiles. As such, the Court found R.C. § 2923.126 is not a general law and upheld the Toledo ordinance on that basis.

House Bill 347

At the same time the Courts were reviewing the Beatty and Baskin cases, the Ohio General Assembly was debating a new concealed carry law. Perhaps as a result of the judicial activity in this area, H.B. 347 contains strict and specific language aimed at squarely preempting any municipal regulation of the field. Permanent codified law announces “the need to provide uniforms laws throughout the state regulating the ownership, possession, purchase, other acquisition, transport, storage, carrying, sale, or other transfer of firearms, their components and their ammunition.” The codified law continues, expressing the General Assembly’s intention to preempt municipal regulation:

Except as specifically provided by the United States Constitution, Ohio Constitution, state law, or federal law, a person, without further license, permission, restriction, delay, or process, may own, possess, purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its components, and its ammunition.

Finally, the law requires that a court award costs and attorney fees to any person who prevails in a challenge to any ordinance, rule or regulation that conflicts with the provisions of state law.

Seemingly, characteristics of the state laws at issue in the Beatty and Baskin cases which led those Courts to find room for municipal regulation, were addressed in H.B. 347. House Bill 347 attempts to preempt an estimated eighty local gun regulations by including specific, codified language in the law.

On December 7, 2006, just one day before the Supreme Court issued its ruling in the Baskin case, Governor Taft vetoed H.B. 347. In vetoing the bill, Governor Taft specifically referenced his concerns about preempted local gun regulations. Within days, the Ohio General Assembly overrode the veto and enacted H.B. 347 into law. It went into effect on March 14, 2007.

Litigation as to the preemptive effect of H.B. 347 on local municipal ordinances has already been threatened. Whether or not the General Assembly’s announced intent in H.B. 347 will be sufficient to overcome home rule authority will likely be determined in the courts.

House Bill 56: Regulation of Traffic Cameras

The use of traffic cameras was also the subject of significant litigation and the focus of the General Assembly in 2006. Again, municipal home rule authority was at the center of the controversy.

Court Activity

Numerous local political subdivisions have enacted various ordinances allowing for photo enforcement of red-light and speeding violations and implementing civil fines for violations. At least five legal challenges were brought in various state and federal courts throughout Ohio and include claims that local laws allowing the use of traffic cameras conflict with state laws seing criminal penalties for similar offenses.

The first rulings by courts in these cases resulted in conflicting decisions. The U.S. District Court for the Northern District of Ohio, Eastern Division upheld an Akron ordinance allowing traffic camera enforcement. But the Trumbull County Court of Common Pleas struck down a similar Girard Ordinance. As a result, on December 8, 2006, Federal Court Judge David D. Dowd certified the following question to the Ohio Supreme Court for decision:

Whether a municipality has the power under home rule to enact civil penalties for the offense of violating a traffic signal light or for the offense of speeding, both of which are criminal offenses under the Ohio Revised Code.

On February 7, 2007, the Ohio Supreme Court agreed to answer the question posed by Judge Dowd. Similar challenges pending in other Ohio courts have been stayed to await the ruling by the Ohio Supreme Court.

House Bill 56

2006 Ohio House Bill 56 included numerous provisions limiting the ability of local governments to use traffic cameras. Unlike other laws that expressly announce legislative intent to pre-empt local regulation or contain such specific restrictions that any municipal ordinance would necessarily conflict with state law, H.B. 56 permitted local use of traffic cameras. However, the bill placed significant restriction on local ability to adopt and enforce such regulation. Among other things, H.B. 56.

• Allowed the use of traffic cameras only to enforce traffic control or railroad signal violations unless a law enforcement officer is present at the location of the device and issues the ticket.

• Prohibited the local authority from photographing, videotaping, or producing a digital image of the driver for the purpose of enforcing traffic laws.

• Limited the amount of fines.

• Prohibited local authorities from entering into contracts with vendors that are contingent upon the number of tickets issued of fines assessed.

• Required that all traffic cameras conform to standards to be adopted by the Ohio Department of Transportation.

Because of these restrictions, a number of local leaders urged Governor Taft to veto H.B. 56. On January 5, 2007, he did, again citing concerns as to municipal home rule authority and the preemption of local control. Governor Taft specifically noted his belief that local governments and local law enforcement agencies needed to have the flexibility to control and enforce traffic laws within their jurisdiction.

In the case of H.B. 56, the veto was not overridden, and it was not enacted in law.

Conclusion

Gun control laws, traffic cameras and home rule authority will, in all likelihood, continue to be significant issues of concern for municipalities in 2007. Litigation over all three issues continues, and it is possible that the General Assembly will revisit regulation of traffic cameras later this year. Although it is still early, 2007 is also looking like a challenging year for municipal home rule authority.

Footnotes

1. Cincinnati v. Baskin, 112 Ohio St. 3d 279, 2006-Ohio-6422, 859 N.E.2d 514 (2006).

2. City of Toledo v. Beatty, 2006-Ohio-4638, 2006 WL 2578765 (Ct. App. 6th Dist. Lucas County 2006).

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   Reprinted from Finley’s Ohio Municipal Service, with the permission of the publisher and copyright owner, West Group.