NOV 0 g 1006 MARCIA J MENGEL SUPREME COURE pc F H pk COUNSEL FOR PLAINTIFF-APPELLEE, CITY OF TOLEDO IN THE SUPREME COURT OF OHIO

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1 IN THE SUPREME COURT OF OHIO City of Toledo, ) Case No Plaintiff-Appellee, -vs- Bruce Beatty, Defendant-Appellant. ) ) ) ) ) On Appeal from the Lucas County Court of Appeals, Sixth Appellate District APPELLEE'S MEMORANDUM IN RESPONSE TO APPELLANT'S MEMORANDUM IN SUPPORT OF JURISDICTION Daniel T. Ellis ( ) (Counsel of Record) Anspach, Meeks, Ellenberger, LLP 300 Madison Avenue, Suite 1600 Toledo, Ohio Telephone: (419) Fax: (419) delis(c^ansroachlaw.com William V. Stephenson, Esq. ( ) 9309 Rudolph Road Rudolph, Ohio Telephone: (419) COUNSEL FOR DEFENDANT-APPELLANT, BRUCE BEATTY John T. Madigan, Director of Law City of Toledo Department of Law One Govemment Center, Suite 1710 Toledo, Ohio Telephone: (419) Fax: (419) john.madiganc^a toledo.oh.gov NOV 0 g 1006 MARCIA J MENGEL SUPREME COURE pc F H pk COUNSEL FOR PLAINTIFF-APPELLEE, CITY OF TOLEDO

2 TABLE OF CONTENTS EXPLANATION OF WHY THIS CASE IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION... 1 STATEMENT OF CASE AND FACTS... 3 ARGUMENT IN OPPOSITION TO PROPOSITIONS OF LAW... 5 Response to Proposition of Law No. 1. R.C. Section is not a general law of the State of Ohio which preempts a conflicting local ordinance since it does not have uniform application throughout the State Response to Proposition of Law No. 2. Toledo Municipal Park Rule No. 18 is not a general prohibition which bans the carrying of firearms in violation of Article 1, Section 4 of the Ohio Constitution... 7 Response to Proposition of Law No. 3. Toledo Municipal Park Rule No. 18 banning all weapons in City parks has only a minimal impact, if any, on Appellant's right to freedom of expression... 8 Pa e CONCLUSION CERTIFICATE OF SERVICE ii

3 THIS IS NOT A CASE OF PUBLIC OR GREAT GENERAI. INTEREST REOUIRING THE SUPREME COURT TO EXERCISE ITS JURISDICTION The Appellant makes the broad allegation that the decision of the Court of Appeals threatens the rights of all properly licensed citizens, including citizens of other states, from lawfully carrying concealed weapons. This case does not involve any general prohibition or limitation against the canying of concealed handguns by state licensees. What it does involve is a local park rule that prohibits the possession of various types of weapons in City of Toledo parks. The Appellant, Bruce Beatty, was not charged with carrying his handguns in a public street or while operating a motor vehicle. The violation occurred when he brought a firearm into a City of Toledo park. Mr. Beatty and all licensed handgun owners of similar mind can continue to live their lives without any fear of contravening the Toledo Municipal Code. They will be allowed to carry their loaded handguns anywhere in the City of Toledo except those places prohibited under R.C., Section (B) or (C) and City of Toledo parks. The location and identity of the Toledo parks is not a secret. The Appellant can easily traverse the City of Toledo without entering a park. He remains free to enjoy our parks system and express his views concerning the right to bear arms while in a park. As long as he does not carry a firearm while doing so, he need not fear prosecution. The Appellant's constitutionally protected right to bear arms has not been seriously infringed by the Court of Appeals' decision or City of Toledo Parks Rule NO. 18. As stated previously, Mr. Beatty continues to enjoy the right to carry his weapon in other public and private places where not prohibited by state law. Notwithstanding the Court of Appeals' decision that R.C., Section did not meet the requirements of a general law, this case 1

4 involves the application of an ordinance creating a power local self-government not subject to constitutional limitations. Municipalities cannot exercise "police powers" as set forth in Article XVIII, Section 3, of the Ohio Constitution if they conflict with the general law of Ohio. No such constitutional limitation applies to the exercise of powers of local self-government. In Rispo Realty & Development Co. v. City of Parma (1990), 55 Ohio St.3d 101, the Ohio Supreme Court noted that "[t]he words, as are not in conflict with general laws"...modify the words "local police, sanitary and other similar regulations" but do not modify the words "powers of local selfgovernment." Id at 103, quoting from State ex rel. Canada v. Phillips (1958), 168 Ohio St. 191, paragraph four of the syllabus. The Ohio Supreme Court has also stressed that a power of local self-government "includes such powers of govemment as, in view of their nature and field of operation, are local and municipal in character." Billings v. Cleveland Ry. Co. (1915), 92 Ohio St In McDonald v. Columbus (1967), 12 Ohio App.2d 150, the Franklin County Court of Appeals found that the provision for parks and recreational facilities was an exercise of the powers of local self-government and not the exercise of a municipalities' police powers within the meaning of Article XVIII, Section 3 of the Ohio Constitution. The Court explained, "[t]here is no doubt that the providing of parks, playgrounds, and recreation centers is a power of local self-govemment. Such power is recognized and supported by a variety of legislative enactments that detail the procedures for the land acquisition and supervisory control of such projects. A number of sections of the Revised Code are noted. A variety of methods of securing land for `public grounds, parks, park entrances, free recreation centers' is provided in Section , 2

5 Revised Code, as well as the power to `hold, improve, protect, and preserve such areas." Id. at 152. The above ordinance and rules are limited to the regulation of activities in the City's parks. They have no effect on the possession or use of weapons in any other place. As such, they are an exercise of local self-government and cannot be circumscribed by the general laws of the State of Ohio. Recently, the Sixth District Court of Appeals restated the test for deterrrrining whether an ordinance falls within the area of local self-government. In American Financial Services Association v. City of Toledo, 6th Dist. No. L , 2005-Ohio-2943, the court stated, "If the result effects only the municipality itself with no extraterritorial effects, the subject is clearly within the power of local self-government and is a matter for the determination of the municipality." Cleveland Elec. Illum Co. v. City ofpainesville (1968), 15 Ohio St.2d 125, 129. Here, Rule No. 18 has no impact on persons outside the borders of the City of Toledo. It has no effect on those who seek to carry firearms outside the confines of the City's parks. As such, it is purely an exercise of local self-government authority, not subject to conflict with the general laws of Ohio. The Court of Appeals was correct in its judgment that R.C., Section did not meet the qualifications of a general law of the State of Ohio. The Court need not have addressed that question since the City of Toledo Park rules was an exercise of local self-government power which is not subject to the Constitution's conflict test. STATEMENT OF THE CASE AND FACTS This action was originally brought by police officers of the City of Toledo. At all times mentioned herein, Toledo is a municipal corporation operating under a Charter adopted pursuant to Article XVIII, Section 7 of the Constitution of Ohio. Under its Charter, the City of Toledo

6 established the Department of Parks and Recreation. That department is managed by a director who is authorized by the Municipal Code to exercise certain powers, including the power to promulgate rules governing the operation of parks. Toledo Municipal Code hi 1996, the Director of the Department of Parks and Recreation promulgated Rule No. 18, barring the possession of weapons in the City's parks. The City of Toledo operates 135 parks scattered throughout the City. Ottawa Park, the City's largest, contains a golf course, tennis court, an ice rink and a number of other facilities available to children and adults. This park is also posted with signs prohibiting the possession of guns in the park. On April 9, 2005, Appellant, Bruce Beatty entered the park carrying a.45 caliber semi-automatic pistol. In a staged event designed to attract media attention, the Appellant admitted to City of Toledo uniformed police officers that he was carrying a loaded, operable firearm. Sergeant Sandra Salinas, of the Toledo Police Department, seized the weapon from Beatty, recorded its serial number and issued an all-purpose citation to the Appellant, charging him with a violation of Toledo Municipal Code, Section and Rule 18 of the Rules of the Director of Parks and Recreation. The gun was subsequently returned to the Appellant by Sergeant Salinas. Appellant Beatty pleaded not guilty to the resulting criminal charges. The Toledo Municipal Court found the Appellant guilty of a minor misdemeanor and assessed a fine and court costs. The Lucas County Court of Appeals affirmed the decision of the trial court, finding that R.C., Section did not preempt the City of Toledo Park Rule and Ordinance, since R.C., Section was not a general law of Ohio. 4

7 ARGUMENT 1. Response to Proposition of Law No. 1. R.C. Section is not a general law of the State of Ohio which preempts a conflicting local ordinance since it does not have uniform application throughout the State. The Court of Appeals found that R.C. Section was not a general law of the State of Ohio and must, therefore, yield to the City's park rule prohibiting handguns in parks. The Court found that the statute was not a general law since it did not operate uniformly throughout the State. Under Article XVIII, Section 3 of the Ohio Constitution, a state statute which conflicts with a municipal ordinance, must yield to the ordinance unless it is a general law of the State of Ohio. The Supreme Court has defined a general law as one enacted by the General Assembly "to safeguard the peace, health, morals and safety, and to protect the property of the people of the state." Moreover, general laws must apply to "all parts of the state alike". Schneiderman v. Sesonstein (1929), 121 Ohio St. 80, Later, in Garcia v. Siffrim Residential Assn. (1980), 63 Ohio St.2d 259, 17 0.O.3d 167, the court emphasized that general laws "...are laws operating uniformly throughout the state...which prescribe a rule of conduct with general uniform application throughout the state under the same circumstances and conditions." Id. 63 Ohio St.2d at 271. In Canton v. State (2002), 95 Ohio St.3d 149, 2002-Ohio-2005, the Ohio Supreme Court reviewed a state statute that ostensibly prohibited municipalities from enacting zoning restrictions on the location of manufactured homes. The Court found that the statute did not meet the qualifications of a general law of Ohio since it permitted private property owners to restrict the placement of manufactured homes through restrictive covenants in deeds. The Appellant argues that R.C. Section was adopted to preserve and protect the fundamental constitutional right to bear arms. In acting to protect this" fundamental right", the 5

8 General Assembly enacted eleven exceptions where permission to carry a concealed weapon can be denied. This was done in an obvious attempt to appease critics of the law and avoid the Governor's veto. The places where weapons are prohibited include both public and private property. The last two exceptions contained in R.C., Section (C) effectively swallow the rule. Here, the statue allows any private employer or any private property owner to prohibit the carrying of a concealed weapon on their property. This exception potentially makes the vast majority of land in the State of Ohio off limits to a state licensed concealed weapon carrier. Similar unbridled authority given to private land owners to restrict the placement of manufactured homes on their property was found by the Supreme Court to be an unreasonable, arbitrary and capricious classification. As such, it prevented the uniform application of the law throughout the State. Canton v. State, p. 30. The same arbitrary, capricious and unreasonable restrictions placed on the right to carry a concealed weapon make R.C., Section non-uniform and, therefore, not a general law of the State of Ohio. The Appellant and other concealed carry licensees cannot leave the public streets without the risk of entering property where weapon possession is forbidden. Even while on a public street in a motor vehicle, the concealed carry permittee must expose his weapon when approached by a law enforcement officer. The City of Toledo prohibition against carrying a handgun in public parks is a minimal curtailment of the right to bear arms compared to restrictions contained in the statute itself. With so many exceptions, including the potential exclusion of all private property, R.C., Section creates non-uniform classifications of places where guns can be carried which is arbitrary, unreasonable and capricious. 6

9 2. Response to Proposition of Law No. 2. City of Toledo Park Rule No. 18 is not a general prohibition which bans the carrying of firearms in violation of Article I, Section 4 of the Ohio Constitution. In his second Proposition of Law, the Appellant argaes that the City of Toledo Park Rules bar the canying of all firearms in violation of Article I, Section 4 of the Ohio Constitution. This characterization of the City's park rule is exaggerated and incorrect. Park Rule NO. 18 prohibits weapons in City of Toledo parks, not in the City generally. In Arnold v. Cleveland (1993), 67 Ohio St.3d 35, the Supreme Court recognized that Article I, Section 4 of the Ohio Constitution created a fundamental right to bear arms upon the people of Ohio, but the Court added, "...this right is not absolute." Id. at 46. Municipalities in Ohio have been granted the authority to limit constitutional guarantees by police powers conferred under Article XVIII, Section 3 of the Ohio Constitution. "Municipalities shall have authority to exercise all powers of local selfgovernment and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws." In Cincinnati v. Carroll (1943), 141 Ohio St. 535, 26 O.O. 116, the Supreme Court set forth the standards a court must follow in review of an enactment under the police power. "Laws or ordinances passed by virtue of the police power which limit abrogate constitutionality guaranteed rights must not be arbitrary, discriminatory, capricious or unreasonable and must bear a real and substantial relation to the object sought to beobtained, namely, the health safety, orals or general welfare of the public." Id. at 539. This is not, as the Appellant mistakenly argues, the "strict scrutiny" test of constitutionality but a "substantial relation" or "intermediate scrutiny" test. Under this test, the ordinance in question must bear a real and substantial relation to a governmental interest such as 7

10 public safety. The ordinance need only be reasonable even if it is broad in scope. Arnold v. Cleveland, supra. at 48. A handgun is a deadly weapon. Even if the owner of a gun is licensed by the State to carry it, the danger of accidental discharge and subsequent injury to others remains. Toledo Municipal Parks Rule No. 18 advances the substantial govemmental interest of protecting other park goers and the gun owner himself from harm. Even assuming that concealed carry licensees will act responsibly, there remains a threat of harm to other park users that occurs when a weapon becomes lost or stolen. The dangers of harm to children who find a loaded weapon laying on the ground or a thief who sees an opportunity to steal a gun and use it to commit a crime are very real threats to public safety. A public park is a place where children and families typically come together and expect to enjoy recreational and sports activities in safety. The Appellant has failed to advance any compelling need to be armed which outweighs the City's interest in protecting other park users from potential harm. Toledo Municipal Code, Section and Park Rule No. 18 prohibiting the possession of firearms in municipal parks is a proper exercise of the police power under Section 3, Article XVIII of the Ohio Constitution and does not violate Section 4, Article I. 3. Response to Proposition of Law No. 3. Toledo Municipal Park Rule No. 18 banning all weapons in City parks has only a minimal impact, if any, on Appellant's right to freedom of expression. In this third Proposition of Law, the Appellant advances the novel argument that carrying a concealed handgun into a City park is expressive conduct protected by the First Amendment of the United States Constitution. Mere possession of a firearm is not an exercise of freedom of speech. An ordinance that regulates firearms possession is not a limitation of speech. Federal courts have held that if the challenged policy does not regulate expression in some manner, the 8

11 First Amendment is not implicated. Northern Indiana Gun & Outdoor Shows, Inc. v. Brian Hadman, et al., 104 F.Supp.2d 1009 (N.D. Indiana, 2000). To be labeled speech, conduct must be undertaken with "an intent to convey a particularized message... [and] the likelihood...that the message would be understood by those who viewed it." Spence v. State of Washington, 418 U.S. 415, 41 L.Ed.2d 842, 94 S.Ct (1974). In Nordyke v. King, 319 F.3d 1185 (9th Cir. 2003), the Court of Appeals examined whether possession of a gun can be considered expressive conduct protected by the First Amendment. Citing, Spence v. State, supra., the Court found: "Gun possession can be speech where there is `an intent to convey a particularized message, and the likelihood [is[ great that the message would be understood by those who viewed it.' Spence, 418 U.S. at , 94 S.Ct As the district court noted, a gun protestor burning a gun may be engaged in expressive conduct. So might a gun supporter waving a gun at an anti-gan control rally. Flag waving and flag buming are both protected expressive conduct. See Johnson, 491 U.S. at , 109 S.Q Typically a person possessing a gun has no intent to convey a particular message, nor is any particular message likely to be understood by those who view it." Nordyke at That reasoning is especially applicable here, where the Appellant brought his concealed handgun onto park grounds. The purpose of this event was to celebrate the first anniversary of Ohio's concealed carry licensing statute. The Appellant accomplished this with a "birthday party" complete with speeches and a cake in the shape of a 45 caliber pistol. His intent to bring a loaded firearm to this event was announced to the media ahead of time. The purpose of bringing the weapon was to draw a response by the police and hopefully result in Mr. Beatty's arrest, not to make a statement. If a statute is not directed narrowly and specifically at expression or conduct commonly associated with expression, the challenge based upon an attack or freedom of speech must fail. 9

12 For these reasons, the Appellee moves that the Court reject this appeal as one that is neither of great public interest or presents a substantial constitutional question. Respectfully submitted, 11

13 CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing Appellee's Memorandum in Response was sent by regular United States mail this.2- day of November, 2006 to David T. Ellis, Esq., Anspach, Meeks, Ellenberger, LLP, 300 Madison Avenue, Suite 1600, Toledo, Ohio and William V. Stephenson, Esq., 9309 Rudolph Road, Rudolph, Ohio 43462, Counsel for Appellant; and to Stephen P. Carney, State Solicitor and Holly J. Hunt, Assistant Solicitor, Ohio Attorney General, 30 East Broad Street, 17th Floor, Columbus, Ohio 43215, Counsel for Amicus Curiae. /. Madigan, Directoly Law JTM/dbBeatty-MemorandunlnResponse 11/I/06 12

14 IN THE TOLEDO MUNICIPAL COURT, LUCAS.,C.OWNM,, OHIO CITY OF TOLEDO, * Case P10:" ERB O -^ -= Plaintiff, vs. BRUCE BEATTY, Defendant. DECISION AND JOURNAL ENTRY Judge Gene A. Zmuda These matters came before this Court for hearing upon Defendant's Motion to Dismiss the charge. Defendant contends that the charge should be dismissed because Ohio Revised Code preempts enforcement of City Ordinance and any rule promulgated therefrom BACKGROUND For purposes of this motion, the facts before the Court establish that Defendant Bruce Beatty on April 19, 2005, was observed carrying a loaded firearm in Ottawa Park. At the time Mr. Beatty was observed carrying a loaded firearm in Ottawa Park, he did have on his person a license to carry a firearm issued by the State of Ohio pursuant to Ohio Revised Code The carrying of a firearm of any description is prohibited in all parks located in the City of Toledo, with the exception of law enforcement officers. This prohibition is based on the rule promulgated by the Director of Natural Resources for the City of Toledo in 1996 pursuant to authority conferred upon the Director by T.M.C Defendant contends that the provisions of

15 O.R.C permits Mr. Beatty to carry a firearm in Ottawa Park and that the Toledo Municipal Code Ordinance and Rule 18 promulgated therefrom are in conflict with state law and should therefore be struck down. Defendant contends that the provisions found in O.R.C as well as Section 9 of H.B. 12 now prohibit the enforcement of any municipal ordinance which attempts to regulate the carrying of a concealed firearm to anyone who is properly licensed to do so pursuant to O.R.C LAW Defendant contends that the regulation barring carrying of any firearm in a park in the City of Toledo conflicts with O.R.C and should be held unenforceable. The relevant provisions of Ohio Revised Code state as follows: (A)...Except as provided in divisions (B) and (C) of this section, a licensee who has been issued a license under Section or of the Revised Code may carry a concealed handgun anywhere in this state if the licensee also carries a valid license and a valid identification when the licensee is in actual possession of the concealed handgun***. (B) A valid license issued under section or of the Revised Code does not authorize the licensee to carry a concealed handgun in any manner prohibited under division (B) of section of the Revised Code or in any manner prohibited under section of the Revised Code. A valid license does not authorize the licensee to carry a concealed handgun into any of the following places: (1) A police station, sheriff's office, or state highway patrol station, premises controlled by 2

16 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 of the Revised Code or division (A)(1) of section of the Revised Code; (2) A school safety zone, in violation of section of the Revised Code; (3) A courthouse or another building or structure in which a courthouse is located in violation of section of the Revised Code; (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 of the Revised Code; (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; (6) Any church, synagogue, mosque, or other place of worship, unless the church, synagogue, mosque or other place of worship posts or permits otherwise; (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 Iicensee...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 the licensee, are in the home; 3

17 (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; (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 that is listed in this division; (10) A place in which federal law prohibits the carrying of handguns. Defendant contends that the language found in O.R.C directly conflicts with the regulation promulgated pursuant to T.M.C forbidding the carrying of a firearm in a municipal park. As such, Defendant contends the City is preempted from enforcement of its local ordinance. The City contends that the Home Rule provisions of Article XVIII of the Ohio Constitution allow enforcement of the City's local ordinance notwithstanding the provisions of state statute. ARTICLE XVIII, Section 3 of the Ohio Constitution sets forth the "Home Rule" and provides: "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." The Ohio Supreme Court has articulated the following test in citing alleged conflicts between state and local ordinances. The Court held: 4

18 "The state statute takes precedence over a local ordinance when ( 1) the ordinance is in conflict with the statute, (2) the ordinance is in exercise of the police power, rather than local self-government, and (3) the statute is a general law." Canton v. State 95 Oh. St. 3d 149, p.9 Case law appears to provide multiple approaches in determining whether or not a municipal ordinance conflicts with a general state statute.' Having evaluated the various approaches employed by other courts in the state when confronted with this issue, this Court is satisfied that the best analysis is the approach taken by the Sixth District Court in American Financial Services Association v. City of Toledo. Sixth District No. L , 2005-Ohio The Sixth District Appellate Court applied a "heads-on-collision" test which was enunciated by the Ohio Supreme Court in Struthers v. Sokol (1923), 108 Oh. St There, the court stated that "In deciding whether a municipal ordinance conflicts with a general state statute, `the test is whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa." Id at paragraph 2 of the syllabus. The Lucas County Court of Appeals went further and held "A police ordinance is not in conflict with general law upon the same subject merely because certain specific acts are declared unlawful by the ordinance, which acts are not referred to in the general law, or because certain specific acts are omitted in the ordinance but referred to in the general law, or because different penalties are provided for the same acts, even though greater penalties are imposed by the municipal ordinance." (Citing Struthers at 5

19 paragraph 3 of the syllabus) In addition, the Supreme Court of Ohio has held that in the absence of specific statutory language that limits local regulation there is no conflict between state rules that provide minimal requirements and local rules that provide restrictive regulation. (See Middleburg Hts. v. Ohio Bd. of Bldg. Stds., (1992) 65 Oh. St. 3d 510, ) Thus, as long as no conflict is presented, the City may adopt greater protections, requirements, or standards than those of the State. American Financial Services Association Id at paragraph 43. Both parties in this case have submitted case authority attempting to support their respective positions regarding whether or not a conflict exists between the City's ordinance and the state statute. Here the City ordinance is limited to the City's attempt to regulate its local parks. The legislation in no way attempts to regulate the licensing of carrying concealed weapons in the city of Toledo. Moreover, the regulation was promulgated in To the extent that Defendant relies on case law in which municipal ordinances conflicted with the licensing as promulgated by state statute, those cases are factually distinguishable and therefore not applicable here. In American Financial Services Association v. City of Toledo, the court was confronted with an actual state statute that attempted to preempt municipal regulation in predatorial lending matters. The General Assembly passed O.R.C which specifically set forth law that the state is sole regulator of predatory lending and any ordinance or any other action of municipal corporation 'An excellent analysis of the conflicting and sometimes inconsistent analyses of the Supreme Court's decisions pertaining to municipal home rule and preemption case law can be found in Dayton v. State 157 6

20 attempting to regulate loans or other forms of credit is preempted. The appellate court found O.R.C to be unconstitutional as a clear violation of Home Rule provision. American Financial Services paragraph 44. In this case there is no corresponding pre-emption statute accompanying the carrying concealed handgun law. Defendant has cited Section 9 of H.B. for the proposition that the General Assembly has specifically stated the Legislature's intent is to preempt municipal regulation of carrying concealed handguns. The Court concurs with the City's argument relying on the appellate courts in Lucas and Cuyahoga Counties holding that the General Assembly cannot by mere legislative act declare a law to be a general law and thereby give it preemptive effect. Such actions invade the province of the judicial branch. To do so in this case would also negate application of the analysis of the Home Rule doctrine which has been promulgated by courts of this state over the past sixty years. This Court finds persuasive the analysis quoted by the Sixth District and enunciated in American Financial Services Association v. City of Cleveland as follows: "The Home Rule Amendment was adopted in Before that time, municipalities could exercise only those powers delegated by statute. In early decisions concerning the amendment, it was expressed that 'the bottom [line] of the 'Municipal Home Rule' amendment was to emancipate, to free, the cities and villages of Ohio from interference, exploitation and ripper legislation by the general assembly of Ohio, and to leave the matter of the government of the cities to the people of the cities.' (citation omitted) It F Oh. App. 3d 736, 2004-Ohio

21 was also stated that `the object of the home-rule amendment was to permit municipalities to use this intimate knowledge and determine for themselves in the exercise of all the powers of local self-government how these and similar local affairs should be conducted.' (citation omitted) Later decisions have also recognized that 'the purpose of the Home Rule amendments was to put the conduct of municipal affairs in the hands of those who knew the needs of the community best, to wit, the people of the city. (citation omitted) Courts must be mindful of these principles when conducting a home-rule conflict analysis and 'when it is possible***to harmonize the general law and municipal ordinances, the same should be done.' (citation omitted) Clearly, home rule establishes that a`one size fits all' solution by statewide legislative enactment is not always in the best interests of the people as Justice Ralph Locher stated in his concurring opinion in Fondessy. "'It is my view that the adoption of home rule in Ohio was as important a step in government to this state as the federal Constitution was to the United States as a whole. To disenfranchise communities in the name of expediency and to relegate home rule to the dustbins of benign neglect cannot be countenanced by this court. Today's decision should serve to revivify our constitutional commitment to the people of this state to control their own destinies."' (citation omitted) Id at paragraphs 45 through 46 In applying the state carrying concealed law and its impact on the city ordinance, it is this Court's conclusion that the city ordinance does not expressly forbid that which the state law permits. The regulation is nothing more than the City's attempt at local ooli ina and re ul tion of its parks. And it is therefore within the City of Toledo's home rule powers to establish such rules. Here, this Court rejects Defendant's argument that O.R.C contains the only restrictions upon which individuals can be prevented from 8

22 carrying concealed weapons. Indeed, a careful analysis of O.R.C establishes the legislation has not set forth an exhaustive list of those locations within the state of Ohio in which a duly licensed handgun owner is not permitted to carry a concealed handgun. Moreover, the statute contains no language that the list of restricted locations are the only locations where handgun owners can be prevented from carrying their concealed firearms. For example, Defendant cites Subsection 7 which concerns the daycare facilities but conveniently excludes the most pertinent component of that section in his argument which states that "a licensee who resides in a...family daycare home...[may] carry a concealed handgun in a part of the home that is dedicated or used for day-care purpose at any time during which no children, other than children of that licensee, are in the home." Further, (C) sets forth a mechanism by which private individuals may prevent licensees from carrying concealed handguns onto their property. What is nowhere found in the state statute is any language which indicates that the exclusions enumerated in are the only exceptions to 4_ where duly licensed individuals can lawfully carry concealed handguns. Indeed, given the open-endedness of some of the exclusions contained in such a prohibition would be inherently inconsistent with the manner within which the General Assembly has framed the enumerated exclusions.z z"undoubtedly, more effective legislation could be written, but that is not the function of the courts....the problem with courts making judgments about the effectiveness of legislation is that perfect legislation is never written... Legislatures, not courts, are in the best position to make [appropriate] policy decisions." Dayton v. State 157 Oh. App. 3d 736, 2004-Ohio Paragraph 89 (Court declining to provide clarity for ambiguity found in predatory lending legislation) This Court likewise believes that a less ambiguous written statute would provide clarity for citizens of Ohio regarding their rights to carry concealed firearnis in the state of Ohio and as the court in Dayton has done declines to undertake that task herein. 9

23 This Court finds that the General Assembly has enacted a law which allows for individuals who are properly licensed to carry handguns in the state of Ohio. In doing so, the General Assembly further recognized that carrying a concealed handgun is not unlimited but rather can be restricted. Toledo Municipal Code and its rule forbidding firearms in Toledo parks is not in conflict with O.R.C It is reasonably constrained to local government's attempts to regulate its parks. To hold otherwise would lead to an inconsistent application of state law. Indeed, in oral argument held before this Court the Defendant conceded that if the park in question wasn't a public park but rather a privately run park that the privately run paric could prohibit Mr. Beatty from carrying his concealed handgun into that park. Accordingly, this Court finds that the city's ordinance is not in conflict with state law. Having determined Toledo's ordinance is not in conflict with state law, the state statute shall not take precedence over local ordinance. Canton (Id). Moreover, this Court need not evaluate the remaining test as enunciated in Canton (Id) so as to find invalid and unconstitutional the City's Ordinance. IT IS THEREFORE ORDERED defendant's Motion to Dismiss is found not well taken and denied. Date Judge Gene A. Zmuda 10