Cleveland v. State ( 2012 )

[Cite as Cleveland v. State, 2012-Ohio-3572.]
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
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 R.C. 4921.30. For the reasons
set forth below, we conclude that R.C. 4921.30 is not a general law because it is not part
of a comprehensive, statewide legislative enactment, does not operate uniformly
throughout the state, does not set forth police regulations but simply purports to limit
municipal legislative power, and does not prescribe a rule of conduct upon citizens
generally. We therefore conclude that R.C. 4921.30 unconstitutionally limits a
municipality’s home-rule police powers, so we reverse the trial court’s grant of summary
judgment to the state and direct that the trial court enter summary judgment for the City.
{¶2} In 1981, the City adopted Cleveland Codified Ordinances (“CCO”) Chapter
677A, entitled “Tow Trucks,” adopted in 1981. Under the provisions of this chapter,
every person driving a tow truck within the city of Cleveland must obtain a license from
the City’s Commissioner of Assessments and Licenses. It additionally contains
provisions regarding the qualifications and fitness of tow truck operators, provisions
regarding identifying information for vehicles, provisions barring an uninvited response
to accident scenes, and rules outlining mandatory record keeping or “transport sheets”
detailing, inter alia, the location and charges for each tow.
{¶3} In March 2003, the Ohio General Assembly adopted R.C. 4921.30, which
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 R.C. 4921.02(A)(8), and therefore included companies “[e]ngaged in the
towing of disabled or wrecked motor vehicles” within the definition of a “[m]otor
transportation company.”
{¶5} This legislation, in effect, added tow trucks to the state’s PUCO regulation
of transportation for-hire motor carriers, and preempted local laws pertaining to the
licensing, registering, or regulation of entities that tow motor vehicles regulation.
{¶6} 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, 619 F.Supp.2d 461 (N.D.Ohio 2009).1
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
{¶7} On March 19, 2009, the City filed a declaratory judgment against the state
of Ohio, seeking determinations that (1) R.C. 4921.30 is not a “general law,” and (2) that
R.C. 4921.30 violates the City’s power of local self-government to regulate the towing of
motor vehicles. In its answer, the state denied that the City is entitled to declaratory
relief, and the parties subsequently filed dispositive motions.
{¶8} In its motion for summary judgment, the City maintained that the state had
simply added tow trucks to its PUCO scheme of regulating motor transportation
companies. R.C. 4921.30 is not part of a comprehensive legislative enactment for tow
truck operators, but rather, simply purports to abolish all local regulation. Moreover, the
preemption language is at odds with the local regulatory authority over motor
transportation companies recognized in R.C. 4921.25 that permits local subdivisions to
“make reasonable local police regulations relating to motor transportation companies * *
* not inconsistent with the authority of the PUCO.”
{¶9} In opposition, the state noted that the Ohio General Assembly has given the
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, 95 Ohio St.3d 149, 2002-Ohio-2005, 766 N.E.2d 963, the state
argued that R.C. 4921.30 does not simply limit the legislative power of cities, but is part
case were entitled to qualified immunity because it was unclear whether CCO 677A
came within the Section 14501(c)(2)(A)’s exception to federal preemption, and
because it was also unclear whether the ordinance was preempted by Ohio law.
Rodriguez v. Cleveland, 439 Fed.Appx. 433, (6th Cir.2011).
of a comprehensive statewide scheme of regulations. The state further argued that R.C.
4921.30 operates uniformly across the state and prevents “conflicting patchwork
regulation by the cities.” It additionally argued that R.C. 4921.30 is part of a safety
regulatory scheme that adopts and enhances safety regulations of the U.S. Department of
Transportation, and that it prescribes a rule of conduct upon citizens generally.
{¶10} The state additionally noted that R.C. 4921.30 preempts licensing,
registering, and regulation of entities that tow motor vehicles, but does not preempt all
local authority over tow trucks and allows municipalities to exercise local police powers
over matters outside the jurisdiction of the PUCO.
{¶11} On November 17, 2011, the trial court concluded that R.C. 4921.30 is a
valid general law that does not unconstitutionally infringe upon the City’s home-rule
authority and granted the state’s motion for summary judgment.
{¶12} The City now appeals. For its sole assignment of error, the City argues that
the trial court erred in concluding that R.C. 4921.30 is a general law and that its
preemption provision does not violate municipal home-rule authority.
{¶13} With regard to procedure, we note that appellate review of a trial court’s
grant of summary judgment is de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102,
105, 1996-Ohio-336, 671 N.E.2d 241.
{¶14} The moving party carries the initial burden of providing specific facts that
demonstrate its entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280,
292, 1996-Ohio-107, 662 N.E.2d 264. Civ.R. 56( C) provides that before summary
judgment may be granted, a court must determine:
(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.
{¶15} 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, Civ.R. 56
requires a nonmoving party to respond with competent evidence to demonstrate the
existence of a genuine issue of material fact.
{¶16} We additionally note that statutes enjoy a strong presumption of
constitutionality. State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d
1254, ¶ 41. The party challenging the constitutionality of a statute bears the burden of
proving that it is unconstitutional beyond a reasonable doubt. Id.{¶17} Section 3, Article XVIII of the Ohio Constitution, the home-rule
amendment, gives municipalities the “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.”
{¶18} As explained in Am. Fin. Servs. Assn. v. Cleveland, 112 Ohio St.3d 170,
2006-Ohio-6043, 858 N.E.2d 776:
[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).
{¶19} In Canton, 95 Ohio St.3d 149, 2002-Ohio-2005, 766 N.E.2d 963, at ¶ 9, the
Ohio Supreme Court set forth a three-part test for evaluating conflicts under the
home-rule amendment. Pursuant to that test, a state statute takes precedence over a
municipal ordinance and does not unconstitutionally infringe upon municipal home-rule
authority when: (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. Where the statute fails to meet all of these conditions, it is not a general
law, and, as such, it must yield to the municipal ordinance in question. Id. at 151.
{¶20} In this matter, the City alleged in its complaint and in its motion for
summary judgment that R.C. 4921.30 is not a “general law,” and therefore, that is the
focus of our analysis herein.
{¶21} “A general law has been described as one which promotes statewide
uniformity.” Ohio Assn. of Private Detective Agencies, Inc. v. N. Olmsted, 65 Ohio St.3d
242, 244, 1992-Ohio-65, 602 N.E.2d 1147. “Once a matter has become of such general
interest that it is necessary to make it subject to statewide control as to require uniform
statewide regulation, the municipality can no longer legislate in the field so as to conflict
with the state.” State ex rel. McElroy v. Akron, 173 Ohio St. 189, 194, 181 N.E.2d 26(1962).
{¶22} The Canton court adopted a four-part test for determining whether a statute
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.” Canton, 95 Ohio St.3d 149, 2002-Ohio-2005, 766
N.E.2d 963, at syllabus.
1. Statewide and Comprehensive Legislative Enactment
{¶23} 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, 2 Ohio St.3d 44, 48, 442 N.E.2d 1278 (1982); Ohioans
for Concealed Carry, Inc. v. Clyde, 120 Ohio St.3d 96, 2008-Ohio-4605, 896 N.E.2d 967.
{¶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, 2011 WL 563912 (Feb. 2,
2011). Ohio adopted the safety regulations in Ohio Adm.Code 4901:2-5-02. B&T
Express, Inc. v. Pub. Util. Comm., 145 Ohio App.3d 656, 662, 763 N.E.2d 1241 (10th
Dist.2001). See Ohio Adm.Code 4901:2-5-02.
{¶25} R.C. 4921.02 sets forth the general powers of the Public Utilities
Commission to regulate certain carriers, and includes in its definition of common carrier
“every corporation, company * * * engag[ed] in the business of transporting persons or
property, or the business of providing or furnishing such transportation service, for hire,
whether directly or by lease or other arrangement, for the public in general.”
{¶26} Prior to March 2003, R.C. 4921.02(A)(8) specifically excluded companies
“[e]ngaged in the towing of disabled or wrecked motor vehicles” from the definition of a
“[m]otor transportation company.” See Am.Sub.H.B. 87.
{¶27} Over time, however, the federal government has, through various
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
and effect of law related to a price, route, or service of any motor carrier * * * with
respect to the transportation of property.”
{¶28} 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., 536 U.S. 424, 438, 122 S.Ct. 2226,
153 L.Ed.2d 430 (2002). The court also stated that “[t]ow trucks, all parties to this case
agree, are ‘motor carrier[s] of property’ falling within § 14501(c)’s compass.” The court
explained:
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 R.C. 4921.02(A)(8), and
therefore included companies “[e]ngaged in the towing of disabled or wrecked motor
vehicles” within the definition of a “[m]otor transportation company.”
{¶30} Also in March 2003, the Ohio General Assembly adopted R.C. 4921.30,
which 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.
{¶31} This overview of the events surrounding the enactment of R.C. 4921.30
indicates that tow trucks were simply included within the state’s regulation of for-hire
motor carriers following the Ours Garage decision.
{¶32} Moreover, we conclude that this matter is similar to the situation presented
in Canton, 95 Ohio St.3d 149, 2002-Ohio-2005, 766 N.E.2d 963. In Canton, the city’s
ordinance prohibited “manufactured homes” within the city limits as principal or
accessory structures for residential use. Thereafter, the legislature enacted R.C.
3781.184 that pertained to manufactured homes. Subsections (A) and (B) addressed
construction and safety standards, Subsection (C) of the statute prohibited political
subdivisions from barring or restricting manufactured homes in single-family zones,
Subsection (D) set forth an exception to subsection ( C) and permitted private landowners
to incorporate restrictive covenants in deeds to prohibit the inclusion of, among other
things, manufactured homes.
{¶33} In concluding that Subsections (C) and (D) are not part of a statewide and
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, R.C. 3781.184(A) and (B)
simply refer to the current federal standards regulating the construction of
manufactured homes. A United States district court has held that “[t]he
[Federal Manufactured Home Construction and Safety Standards Act of
1974, Section 5403, Title 42, U.S.Code] preempts only construction and
safety standards and does not apply to local zoning ordinances that purport
to regulate the placement of certain types of dwellings in the community.”
The court held that the codes at issue (Canton Ordinances 1123.57 and
1129.11) are zoning ordinances not aimed at construction and safety
standards. “Because Congress intended to regulate safety and construction
only, local laws aimed at purposes outside that area are not preempted by
the Act. There is no indication that Congress intended to regulate any
other aspect of the manufactured home industry.” See Ohio Manufactured
Hous. Assn. v. Canton (Dec. 4, 1998), N.D. Ohio No. 5:97 CV 1190.
Accordingly, we conclude that R.C. 3781.184(C) and (D) do not provide for
uniform, statewide regulation of manufactured housing.
Canton at ¶ 23-24.
{¶34} Similarly, in this matter, although there has been considerable state and
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 R.C. 4921.30 is
not part of a statewide and comprehensive legislative enactment.
2. Uniform Operation Throughout the State
{¶35} General laws must “apply to all parts of the state alike.” Canton, 95 Ohio
St.3d 149, 2002-Ohio-2005, 766 N.E.2d 963, at ¶ 13, quoting Schneiderman v.
Sesanstein, 121 Ohio St. 80, 82-83, 167 N.E. 158 (1929).
{¶36} In this matter, however, the definition of motor transportation company set
forth in R.C. 4921.02(A), does not include private motor carriers, as it incorporates an
exclusion for companies meeting the definition set forth in R.C. 4923.02(A), i.e.,
companies “engaged in the business of private carriage of persons or property, or both, or
of providing or furnishing such transportation service, for hire * * *[.]”
{¶37} Therefore, private tow truck companies may have their own rules, policies,
and practices. Again, Canton is instructive. In evaluating the statutory exception to
R.C. 3781.184, which provided that, “[t]his section does not prohibit a private landowner
from incorporating a restrictive covenant in a deed, prohibiting the inclusion on the
conveyed land of manufactured homes,” the Ohio Supreme Court noted:
[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 R.C.
3781.184(D) permits that which the statute prohibits, we find that it is
inconsistent with the statute’s stated purpose, i.e., to encourage placement
of affordable manufactured housing units across the state. Thus, we hold
that R.C. 3781.184(C) and (D) do not have uniform application to all
citizens of the state, and as such are not general laws.
{¶38} Likewise, in this matter, R.C. 4921.30 does not apply to private tow
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
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 Canton,
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 R.C. 4921.30 does not have uniform
operation throughout the state.
3. Establishes Police Regulations Rather Than Granting or Limiting Municipal
Legislative Power
{¶39} Proceeding to the third prong of the general law test outlined in Canton, we
next consider whether R.C. 4921.30 sets forth police, sanitary, or similar regulations; or,
instead, simply purports only to grant or limit legislative power of a municipal
corporation to set forth police, sanitary, or similar regulations. Again, the legislature has
not established police regulations for the operation of tow truck enterprises, and the R.C.
4921.30 preemption provision is not part of a larger regulatory scheme for tow truck
operators. That is, in the years following the enactment of R.C. 4921.30, no other
statutory provisions have been enacted to address such enterprises, and there is no clear
indication that tow truck regulation is indeed a matter of such general interest that it is
necessary to make it subject to statewide control. Like R.C. 4549.17, which was
deemed unconstitutional in Linndale v. State, 85 Ohio St.3d 52, 1999-Ohio-434, 706
N.E.2d 1227, R.C. 4921.30 is “simply a limit on the legislative powers of municipal
corporations to adopt and enforce specified police regulations.” Therefore, we conclude
that the preemption language simply curtails the City’s police powers in this area and
does not meet the third element of the Canton test.
4. Prescribes a Rule of Conduct Upon Citizens Generally
{¶40} 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., 112 Ohio St.3d 170, 2006-Ohio-6043, 858 N.E.2d 776.
{¶41} In determining whether R.C. 4921.30 prescribes a rule of conduct upon
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.
{¶42} In accordance with the foregoing, R.C. 4921.30 does not meet the test set
forth in Canton, so we conclude that it is not a general law. Further, because R.C.
4921.30 is not a general law, it unconstitutionally attempts to limit municipal home-rule
authority.
{¶43} We therefore conclude that the trial court erred in granting the state of
Ohio’s motion for summary judgment. We reverse that order and direct the trial court to
enter summary judgment in favor of the City.
{¶44} 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:
{¶45} I respectfully dissent. I would affirm the trial court judgment.
Statewide and Comprehensive
{¶46} 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 R.C. 4921.30
is not part of such legislative enactment, while the State argues that when taken in context
with PUCO regulations, R.C. 4921.30 is clearly part of a statewide and comprehensive
legislative enactment.
{¶47} The City argues that the PUCO regulations do not constitute statewide
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.
{¶48} By defining any organization that operates tow trucks as “for-hire motor
carrier[s]” under this statute, R.C. 4921.30 successfully encompassed all tow truck
operators under the pre-existing laws of the PUCO. In turn, R.C. 4921.30 is part of the
PUCO, an undisputed statewide legislative enactment. The City’s interpretation of the
statute in question appears to occur in a vacuum, not acknowledging PUCO on a
statewide basis. See Am. Fin. Servs. Assn. v. Cleveland (“AFSA”), 112 Ohio St.3d 170,
2006-Ohio-6043, 858 N.E.2d 776 (the Ohio Supreme Court found that legislation that
defined covered loans and authorized the state to “solely regulate” said loans was part of
comprehensive statewide legislation). See also Ohio Assn. of Private Detective Agencies
v. N. Olmsted, 65 Ohio St.3d 242, 1992-Ohio-65, 602 N.E.2d 1147 (Ohio Supreme Court
found that a statutory provision, when considered in isolation, “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, when the
provision’s chapter is read in its entirety it could reveal a statewide regulation.)
{¶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 R.C. 4921.30 does apply to all parts of the State alike
and operates uniformly throughout the State. The City does not dispute this argument.
Thus, I would find that R.C. 4921.30 satisfies the second prong of the Canton “general
law” test.
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.
{¶53} 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
PUCO, clearly sets forth regulations as opposed to strictly limiting the municipality’s
legislative power.
{¶54} Thus, I would find that R.C. 4921.30 satisfies the third prong of the Canton
“general law” test.
Rule of Conduct Upon Citizens
{¶55} 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 R.C. 4921.30 to the statutes found in AFSA and in Cleveland v. State, 128
Ohio St.3d 135, 2010-Ohio-6318, 942 N.E.2d 370, both of which were found to satisfy
the fourth prong by prescribing a rule of conduct upon citizens generally. When taken as
a whole, it appears to me that R.C. Chapter 4921 and the PUCO establish rules of conduct
for all Ohio operators who provide intrastate towing services, without exception. I see
no distinction for private motor carriers as the majority finds, nor has the City raised such
a claim.
{¶57} Thus, I would find that R.C. 4921.30 satisfies the fourth prong of the
Canton “general law” test.
{¶58} Having satisfied the four elements of the Canton test, I would find that R.C.
4921.30 constitutes a “general law” and does not violate the Home Rule Amendment of
the Ohio Constitution. The City has failed to meet its burden of showing beyond a
reasonable doubt that R.C. 4921.30 violated the Ohio Constitution.
{¶59} Accordingly, I would affirm the trial court.