Jurek v. Ohio Motor Vehicle Dealers Board , 99 Ohio App. 3d 437 ( 1994 )

I respectfully dissent from the majority opinion, as the state has failed miserably to justify the rational basis for this unwarranted discrimination between two classes of people equally situated. It is my opinion that both R.C. 4517.12(B) and Ohio Adm. Code 4501:1-3-09 are unconstitutional, and I will explain below.

R.C. 4517.12(B) provides in relevant part as follows:

"If the applicant is a corporation or partnership, the registrar may refuse to issue a license if any officer, director, or partner of the applicant has been guilty of any act or omission that would be cause for refusing or revoking a license issued to such officer, director, or partner as an individual. The registrar's finding may be based upon facts contained in the application or upon any other information he may have. Immediately upon denying an application for any of the reasons in this section, the registrar shall enter a final order together with his findings and certify the same to the motor vehicle dealers' and salespersons' licensing board." (Emphasis added.)

The statute gives too much discretion to the registrar without a guideline, and that is troubling. The registrar is free to deny one corporation a license to operate an automobile dealership for the crimes of its officers while nothing stops the same registrar from granting another corporation license, even if the officers have committed the same offense as those in the denied corporation. Even though R.C. 4517.12(B) appears neutral, its application invites discrimination, courtesy of the legislature.

Ohio Adm. Code 4501:1-3-09 reads:

"(A) The registrar shall deny the application of any person for a motor vehicle dealer's license, distributor's license or auction owner's license or for the renewal of a motor vehicle dealer's license, distributor's license or auction owner's license if the registrar finds that the applicant has been convicted of a felony, except as provided below.

"(B) Paragraph (A) of this rule shall not apply if theconviction occurred prior to the effective date of this rule and was not related to the selling, taxing, licensing, or regulation of sales of motor vehicles, and if the applicant held a valid motor vehicle dealer's license, distributor's license or auction owner's license within twelve months immediately preceding the date of the application." (Emphasis added.)

The law remains that the standard for reviewing a challenge to the constitutionality of a legislative enactment that does not impinge upon a fundamental right is whether it bears any rational basis to the state's interest. Massachusetts Bd. ofRetirement v. Murgia (1976), 427 U.S. 307, 96 S.Ct. 2562,49 L.Ed.2d 520; Lindsley v. Natl. Carbonic Gas Co. (1911),220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369. The majority outright holds that the denial in the instant case does not impinge upon a fundamental right. I beg to differ. It seems to me that a denial of a right to make a living creates an undue hardship and impinges on a fundamental right especially in this case where appellant was already in the business which he has been denied the right to continue. But since appellants did not argue on the issue of the application of the administrative code to his fundamental right, I will not make the argument for them.

Appellants' main challenge is the application of Ohio Adm. Code 4501:1-3-09, which as is enacted does violate the Equal Protection Clause. It does not rationally explain why a person convicted of a felony before the enactment of the code is a better citizen to hold a dealer's license than a person convicted after the enactment. Thus, while the state can legitimately deny licenses to convicted felons, Geisert v. OhioMotor Vehicle Dealers Bd. (1993), 89 Ohio App.3d 559,626 N.E.2d 960, it cannot discriminate between felons based only on the date of conviction without showing a rational basis for such classification.

The majority states and I am not persuaded that:

"The fact that post-1986 felons are subjected to automatic rather than discretionary denial does not violate appellant's equal protection rights, as appellee has demonstrated that automatic denial of licenses reduces the number of possibly unscrupulous dealers operating in the state."

This justification to uphold the statute and the administrative code is not rational, as I cannot imagine how the state can justify allowing its citizens to associate with one set of felons by declaring them good felons because they were convicted earlier while declaring others bad felons solely because they were convicted later. It seems to me that the judgment as to who are good or bad felons should fall on the citizens.

One unscrupulous dealer is one too many and if the state is serious about reducing the number of felons who sell automobiles, it should do so by denying licenses to all. If a state law is to be respected and obeyed by its citizens, then such law must be a neutral two-edged sword cutting one and all alike.

While Ohio Adm. Code 4501:1-3-09(B) is unconstitutional as it discriminates between two felons, the power of the state to deny felons licenses remains a legitimate state exercise of its police powers, which must be applied evenly.

Accordingly, I dissent.