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Thread: Is the City of Kettering violating State Law (ORC 9.68)

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    Regular Member Makarov's Avatar
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    Is the City of Kettering violating State Law (ORC 9.68)

    The City of Kettering, Parks and Recreation department recently removed all their “No Gun Signs” in their parks, except for the Fraze Pavilion.

    The Fraze Pavilion is an outdoor amphitheater that holds many concerts throughout the summer. All activities at the Fraze are outside. Although they do sell alcohol by a private vender, the grounds on the Fraze are city owned and people who have CCW permits should be allowed to attend.

    I contact the Law Director for the City of Kettering on this issue; he references ORC 2923.126 (B) (9) that allows the no gun sign to be legal. I don’t see it that way. Any advice.


    2923.126 Duties of licensed individual.

    (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 license does not authorize the licensee to carry a concealed handgun into any of the following places:
    (9) Any building that is a government facility of this state or a political subdivision of this state and that is not a building that is used primarily as a shelter, restroom, parking facility for motor vehicles, or rest facility and is not a courthouse or other building or structure in which a courtroom is located that is subject to division (B)(3) of this section;
    Last edited by Makarov; 06-18-2012 at 10:04 AM.

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    Does this amphitheater have walls or a roof? If it is completely open air, ask the Law Director why he thinks it is a building.

    Even if it is a building, does it meet this definition of "government facility" from ORC 2923.126 (G)(3)(a):

    (3) “Government facility of this state or a political subdivision of this state” means any of the following:

    (a) A building or part of a building that is owned or leased by the government of this state or a political subdivision of this state and where employees of the government of this state or the political subdivision regularly are present for the purpose of performing their official duties as employees of the state or political subdivision;

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    Regular Member Makarov's Avatar
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    The stage is self contained outside and does have a roof but it does not overlap seating. I would classify it as an open Air arena.
    The Law director says because their is occupied building near by (police department, concession building), etc filled with working goverment employees that is why ORC justifies the gun sign.
    Last edited by Makarov; 06-18-2012 at 01:21 PM.

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    Regular Member MyWifeSaidYes's Avatar
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    I worked on Kettering's park rules here:

    http://www.ohioccwforums.org/viewtopic.php?f=27&t=61003


    They never replied, so they were on my 30-day follow-up list.

    It's good to know that the park signs are down.

    Fraze Pavilion should not be posted.

    According to their own website:
    http://www.fraze.com/visiting-fraze/about-the-venue/

    Fraze Pavilion is southwestern Ohio’s premiere outdoor entertainment venue...
    So it's definitely NOT a building.

    It's proximity to an enumerated government facility is not relevant.

    Anybody want to write them an email to that effect?
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    Regular Member MyWifeSaidYes's Avatar
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    I just sent this to Jim Long, Kettering city prosecutor, as well as a few other folks he was copying emails to.

    Mr. Long-

    An acquaintance told me that "No firearms" signage in Kettering parks has been corrected.

    Can you confirm this for me?


    At the same time, I was told that Fraze Pavillion was posted with "No firearms" signs.

    I have never been to Fraze Pavillion, but their website, which has some great pictures of that venue, also says "FIREARMS ARE STRICTLY FORBIDDEN!" Their emphasis, not mine.

    What puzzles me is why that venue is posted.

    It is owned by the city and it is not a building (it's even advertised as an outdoor venue).

    It was mentioned that it might be because it is proximate to government buildings, but that is not relevant. There are no laws restricting firearms from being near buildings, only in them.

    In addition to confirming that park signs have been corrected, can you let me know why Fraze Pavillion is still posted?

    Thanks!

    -"MWSY"
    ------------------------------------------------------------
    What does a caring, sensitive person feel when they are forced to use a handgun to stop a threat?

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    Regular Member Makarov's Avatar
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    I've talked to Jim Long about this issue. He says the Fraze is classified as a building under Ohio law...ORC 3781.06. After reading the reference below, I cannot see how the Fraze Pavillon fits any of these definitions. Sounds like he is just throwing stuff out there to side track this issue. I plan on making a video, or taking pictures of Fraze and posting them here for better evalutation by everyone.

    http://codes.ohio.gov/orc/3781.06
    Last edited by Makarov; 06-19-2012 at 08:53 AM. Reason: aFTER

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    Regular Member MyWifeSaidYes's Avatar
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    Ask him which law allows posting a CITY owned building.
    ------------------------------------------------------------
    What does a caring, sensitive person feel when they are forced to use a handgun to stop a threat?

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    Regular Member Makarov's Avatar
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    City buildings are described as "Political Subdivisions" in ORC 2923.126. The Fraze has building on its grounds; such as a stage, or concession building. They should be off limits according to law if you conceal carry, but to call the entire Fraze Pavilion a building, is ridicules. To me their argument doesn’t stand. That would be like saying that all county fairgrounds are off limits to anyone with a CCW. Again I think everyone needs to put the heat on Kettering because it seems they are putting on a show of smoke and mirrors.
    Last edited by Makarov; 06-20-2012 at 07:51 AM.

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    Regular Member Makarov's Avatar
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    Here is my letter to Mr Long.

    Dear Mr Long,

    As an ad-vid defender of Second Amendment rights and state law, I find it difficult to understand how ORC 3781.06 is used to classify the Fraze Pavilion as a city building. If that was the case, then I argue that any county fairgrounds would be off limits to Concealed Carry Weapons (CCW) license holders. According to Ohio law, and there is legal cases supporting this argument, CCW licensees are allowed carrying weapons on county fairground property as long as they do not enter the buildings. The Fraze Pavilion clearly falls in line with the fairground concept.

    Your cooperation in this matter is greatly appreciated. Please respond promptly.



    Sincerely

  10. #10
    Accomplished Advocate color of law's Avatar
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    First off, open carry is perfectly legal in any state building. There are only five locations in the state that disallows the carrying of weapons all together.

    Jails
    Court housed
    State run mental hospitals ( there are only 7 in the state)
    Schools - K through 12 (not colleges)
    Bars (unless you have a CCL)

    Title 2923 deals with Open air Arenas as it relates to class D liquor permits.

    This guy is way out in left field.

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    Regular Member MyWifeSaidYes's Avatar
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    So...

    Open carry get-together at Fraze Pavilion this summer?



    IF they don't change their minds, of course.
    ------------------------------------------------------------
    What does a caring, sensitive person feel when they are forced to use a handgun to stop a threat?

    Recoil.

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    Regular Member Makarov's Avatar
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    It seems the Parks and Rec's Website still reflects weapons prohibition. That should change according to the law director. He states the police were not enforcing that rule and the city council just ruled to rescind the parks prohibition. Obviously the city of Kettering is slow in this process because they agree with it.
    Last edited by Makarov; 06-20-2012 at 08:18 AM.

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    Regular Member RCall's Avatar
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    Quote Originally Posted by MyWifeSaidYes View Post
    So...

    Open carry get-together at Fraze Pavilion this summer?



    IF they don't change their minds, of course.
    We would have to wait until next year, the Alice Cooper show was June 13th.
    Last edited by RCall; 06-20-2012 at 10:09 PM. Reason: Grammer

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    Thumbs up

    Quote Originally Posted by MyWifeSaidYes View Post
    So...

    Open carry get-together at Fraze Pavilion this summer?



    IF they don't change their minds, of course.
    Looks like it's somewhere northwest-ish of Xenia? I'd give it my best shot to be there if it becomes necessary.

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    Quote Originally Posted by RCall View Post
    This all sounds very similar to the "County fairground" issue that arose several years ago.
    The Highland County fairground is still posted. The county commissioners won't take it down saying that they aren't their signs. I'm planning on talking with a few of you about it at the picnic.

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    Quote Originally Posted by MyWifeSaidYes View Post
    So...

    Open carry get-together at Fraze Pavilion this summer?



    IF they don't change their minds, of course.

    Sounds like a good idea....

    Where is Kettering?? lol

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    Oh, I see, Dayton area... lol. Forgot we were talking about Kettering and focused only on the pavilion map!

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    Regular Member MyWifeSaidYes's Avatar
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    JmE-

    Regarding Highland County fairgrounds, do you have anything in writing or email from the county commissioners that you can post here or PM me?

    What I do is send them an email or leave them a voicemail that I want to open carry at whatever location, and can I please have them confirm what the firearms rules actually are at that location.

    Of course, if their laws do not restrict firearms and they have no gunbusters signs anywhere, I would never bother sending the message in the first place.

    They either reply with the laws or rules they have published, which we already know are wrong, or they say what I want to do is perfectly legal. Often they will add that they don't enforce any laws or rules that pertain to firearms.

    This is when you politely introduce them to Ohio Revised Code 9.68 and casually mention that they could be sued for just having the law on their books or having a sign posted.

    THAT is the part that causes most entities to do something. You don't have to threaten a lawsuit, just tell them they are vulnerable. If you still get pushback, remind them that Cleveland took ORC 9.68 all the way to the Ohio Supreme Court AND LOST.

    If you are a smart-alec, you can ask them how good they think THEIR lawyers are and if there is enough money in the county budget to pay for them.
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    What does a caring, sensitive person feel when they are forced to use a handgun to stop a threat?

    Recoil.

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    Regular Member RCall's Avatar
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    Quote Originally Posted by JmE View Post
    The Highland County fairground is still posted. The county commissioners won't take it down saying that they aren't their signs. I'm planning on talking with a few of you about it at the picnic.
    Just to make certain you are talking about the county commission saying the signs don't belong to them, not the county fair commission?

    Quote Originally Posted by MyWifeSaidYes View Post
    JmE-

    If you are a smart-alec, you can ask them how good they think THEIR lawyers are and if there is enough money in the county budget to pay for them.
    Back to the topic on The Fraze, I read a newspaper article just the other day about the City of Kettering being around $200,000.00 over budget on legal fees due to lawsuits and the city law director not having an assistant for some amount of time now. Im thinking they might work a little harder than they usually would to try to keep something like this out of court. (Unless they can drag it out to the next fiscal year.)

    As a matter of fact, here is the article: http://www.daytondailynews.com/news/...d-1392671.html

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    Quote Originally Posted by MyWifeSaidYes View Post
    Regarding Highland County fairgrounds, do you have anything in writing or email from the county commissioners that you can post here or PM me?
    There's nothing in writing except my email to them containing a copy of the AG's opinion regarding no GB posts for the open part of county fairgrounds.

    Quote Originally Posted by MyWifeSaidYes View Post
    What I do is send them an email or leave them a voicemail that I want to open carry at whatever location, and can I please have them confirm what the firearms rules actually are at that location.
    There was an article in the local paper about no Sheriff's Department coverage for that next fair. Of course, I commented on the online version (Who's who apparently read the online comments a lot in the town) about how that was okay as citizens have the option of carrying so they can protect themselves if the need arose. This was followed by some comments in agreement. I took it further and asked when the county was going to remove those illegitimate signs from the fence so that those citizens not aware that the signs were unenforceable would not be deterred from carrying. My comments were a nudge to the county commissioners to remove the signs and save face.

    They didn't so I followed up with an email to the county commissioners. It got ignored so I followed up with a telephone call and was told the email wasn't sent. I then told the lady that was okay, just put me on the agenda for the meeting as I'd bring it up personally before the commissioners. She stammered and instantly found my email. I asked her when a commissioner would call me back and she said within two days. I told her that if they didn't then I'd be calling to get my item on the agenda on the third day. A commissioner called me back (maybe that same day or next, can't remember) and asked that our conversation be completely "off the record." That is the part that I will discuss in person. Bottom line is that they recognize that the signs are illegitimate and unenforceable but claim that the signs are not theirs.

    Quote Originally Posted by MyWifeSaidYes View Post
    Of course, if their laws do not restrict firearms and they have no gun busters signs anywhere, I would never bother sending the message in the first place.

    They either reply with the laws or rules they have published, which we already know are wrong, or they say what I want to do is perfectly legal. Often they will add that they don't enforce any laws or rules that pertain to firearms.
    At first he tried to hint that firearms were prohibited on the fairgrounds. It took me a few seconds to end that line of conversation. We politely tangoed (part of that "off the record conversation"). The end result was that they already knew that people can lawfully carry on the open fairgrounds OC or CC. Their position is that it's not their signs so they can't take them down. I will say that the commissioner is very, very worried about seeing people open carry and he knows that it is perfectly legal. He simply doesn't like open carry.

    Quote Originally Posted by MyWifeSaidYes View Post
    This is when you politely introduce them to Ohio Revised Code 9.68 and casually mention that they could be sued for just having the law on their books or having a sign posted.
    Told him and he already knew.

    Quote Originally Posted by MyWifeSaidYes View Post
    THAT is the part that causes most entities to do something. You don't have to threaten a lawsuit, just tell them they are vulnerable. If you still get pushback, remind them that Cleveland took ORC 9.68 all the way to the Ohio Supreme Court AND LOST.
    That's what I did... reminded him that someone, at sometime is likely to sue them and the county will lose; and that the county had been sued right and left on other matters recently and were losing many. He said he was already aware that they could be sued and they would likely be defeated. I also told him that I open carry in the county and will likely open carry at the fair whenever my health allowed (he already knew about my health and probably knows me on sight as many officers in the county do). He didn't like me open carrying and doesn't want that but fell way short of saying that I would be stopped in any way.

    If you are a smart-alec, you can ask them how good they think THEIR lawyers are and if there is enough money in the county budget to pay for them.
    I know some of the attorneys and they know me; they also know that I don't back loser positions in actual court matters... we all have mutual respect as some of them helped me out and I've helped some of them. It'd almost assuredly be an outside hire firm to represent the county. They do that all the time in the county and nearby city.

    My health at the time simply didn't allow me to take him to the mat on this. I figured that when my health improved to where I could hold a good head of steam then I'd tackle it with gusto. I wasn't even able to attend the fair that year. If I had, I'd most certainly have open carried my largest and shiniest sidearm... those signs would've probably come down that night.

    I didn't want to write a book but thought others might want to read about it. This hasn't been a separate thread because I'm not sure if I'm ready to take it on alone yet; don't like to start something and not finish it. We'll talk, if you want, when I see you.

    BTW: The commissioner with whom I spoke often runs the ticket gate around many of those no gun signs. He knows they are there and he has always known of my disapproval; even before the signs were a no-no. I would often snarl, growl, and complain about them. I guess I should go and take some photos of the signs right by where he sits to take entrance tickets each year?

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    Quote Originally Posted by RCall View Post
    Just to make certain you are talking about the county commission saying the signs don't belong to them, not the county fair commission?
    Yeah, it was one of the commissioner. We know each other casually and he did me a favor once many years ago. BTW: The county and city are just about broke. They can't afford another lawsuit right now. Might be similar in Kettering and other places in Ohio.

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    I'm back on topic now...

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    For what it's worth OFCC went round and round and round with several counties about their fairgrounds and 'No guns' policies for a few years. (As memory serves much of that took place beofre ORC 9.68, statewide preemption, was the law of the land.) Anyhow some counties claim the fairgrounds are owned/operated privately, and are NOT public entities. (Following the money seemed to gretaly contradict many of those claims by the way.)

    Just a little background as to the past, you would think with ORC 9.68 in place for a spell now these types of battles wouldn't still have to be fought. But alas city, township, and county parks are still being found with "fresh" gunbuster signage in place from time to time.

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    Makarov, I hope that your letter will get them to change positions in Kettering. I'm anxious to read their reply.



    Quote Originally Posted by Brian D. View Post
    For what it's worth OFCC went round and round and round with several counties about their fairgrounds and 'No guns' policies for a few years. (As memory serves much of that took place beofre ORC 9.68, statewide preemption, was the law of the land.) Anyhow some counties claim the fairgrounds are owned/operated privately, and are NOT public entities. (Following the money seemed to gretaly contradict many of those claims by the way.)
    Yes, I remembered that. This fairground is owned by the county so it's public property. With the city park, I made one passing comment to an attorney friend of mine on the street one day and the sign was removed a few days later. It was early on and it surprised me that it was done just from a simple comment or perhaps he was already pushing the city to remove them anyway. I was hoping to get lucky again with this commissioner.

    Quote Originally Posted by Brian D. View Post
    Just a little background as to the past, you would think with ORC 9.68 in place for a spell now these types of battles wouldn't still have to be fought. But alas city, township, and county parks are still being found with "fresh" gunbuster signage in place from time to time.
    They're aware and he explained their preference in the private conversation. I really didn't like where he went with it. Basically, they aren't doing the typical thing one might think with it. I believe that if I send a solid letter well before the next fair giving them a final chance to remove the sign, they don't after a week, put it on the agenda for the next meeting and someone presents clear, concise evidence of their error; they are likely to remove the sign and post the buildings. But then again, I've been wrong many times before.

    Thanks for the heads up and information.
    Last edited by JmE; 06-21-2012 at 10:02 PM. Reason: I meant public property

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    Accomplished Advocate color of law's Avatar
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    Brian D can tell you that the Reading OH signs came down when I called the city solicitor. The police chief personally took them down.

    Green Township (Hamilton County) on notice removed it from their posted rules.

    Both Reading OH and Green Township police chiefs are pro gun.

    And OFCC had no involvement in either one.

    Most things in Hamilton County get resolved because of us residents, not some gun organization.
    Last edited by color of law; 06-21-2012 at 11:28 PM.

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