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Thread: Question regarding the legality of a local ordinance

  1. #1
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    Question regarding the legality of a local ordinance

    Below is the City of Findlay, Codified Ordinance 123.02, I question whether or not ORC 9.68 preempts certain sections of it, making them invalid. What say the gallery?

    123.02 AUTHORITY IN A CIVIL EMERGENCY.
    (a) Whenever the Mayor determines that an emergency exists as a result of any natural disaster or man-made calamity, or clear and present danger thereof, or riot, insurrection, mob action or other civil disturbance causing danger of injury or damage to persons or property, the Mayor shall have the power to impose by proclamation any or all of the following regulations necessary to restore the peace and order of the City:


    (1) Prohibit or limit the number of persons who may gather or congregate on the public highways or public sidewalks or any outdoor place, or in any theater, restaurant, place of public assembly or commercial establishment to which the public has access;


    (2) Restrict or prohibit movement within, above or beneath the area or areas which are imperiled by the public danger or emergency;


    (3) Establish a curfew during such hours of the day or night prohibiting persons from being out-of-doors during the curfew;


    (4) Prohibit or restrict the retail sale, distribution or giving away of gasoline or other liquid, flammable or combustible products in any container other than the gasoline tank properly affixed to a motor vehicle;


    (5) Order the closing of gasoline stations and other establishments engaged in the retail sale, distribution, dispensing or giving away of liquid, flammable or combustible products;


    (6) Prohibit or restrict the sale, distribution, dispensing or giving away of any firearms or ammunition of any character whatsoever;


    (7) Order the closing of any and all establishments or portions thereof engaged in the sale, distribution, dispensing or giving away of firearms or ammunition;


    (8) Prohibit or restrict the carrying or possession on the public streets or public sidewalks or in any public park or square or any other public place a weapon or any object intended to be used as a weapon, including, but not limited to, firearms, bows and arrows, air rifles, sling shots, knives, razors, broken bottles, fire bombs, missiles of any kind, clubs, blackjacks, billies, chains or similar items;


    (9) Prohibit or restrict the retail sale, distribution, dispensing or giving away of acids, caustics or any chemicals or other substances capable of being used singly or in combination to cause injury or damage to persons or property;


    (10) Call on regular and auxiliary law enforcement agencies and organizations within or without the City to assist in preserving and keeping the peace within the City.


    (b) When the Mayor determines that an emergency exists as set forth in subsection (a) hereof, he shall immediately proclaim in writing the existence of the emergency and the time of its inception and shall issue a proclamation thereof to the public through the news media, and such other means of dissemination as are available.


    (c) Any emergency proclaimed in accordance with the provisions of this section shall terminate after seventy-two hours of the issuance thereof or on the issuance of a proclamation determining an emergency no longer exists, whichever occurs first. The emergency may be extended for such additional periods of time as determined necessary by the Mayor.


    (d) The powers conferred by this section are in addition to any other power which may be conferred by federal law, state statute or City ordinance and nothing in this section shall be construed to modify or limit such authority, powers, duties and responsibilities of any officer or public official as may be provided by law. Nothing in this section shall be construed to permit suspension of the privilege to a writ of habeas corpus.


    (e) No person shall fail to obey the lawful order of any police officer, militiaman, fireman, member of the National Guard or other authorized person acting under orders or authority issued under the provisions of this section.


    (f) Whoever violates any prohibition contained in, or knowingly fails to perform any duty required by a proclamation, order or regulation issued and in effect pursuant to this section, shall be guilty of a misdemeanor of the first degree.
    *My bolding for emphasis

    I'm curious as to how this Ordinance falls in line with ORC 9.68. As such that ORC 9.68 preempts local ordinances, and it specifically states:

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

    My understanding is that, short of Federal or State Law, no local ordinance can prohibit the possession, sale, or carrying of a firearm, as long as you're not 'under disablity' of course.

  2. #2
    Accomplished Advocate color of law's Avatar
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    IMHO - 9.68 trumps the local Ordinance. And the mayor swore an oath to both the U.S. and Ohio Constitutions. He can shut down gun shops.

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    As far as I can tell, the only part of the ordinance that runs afoul of 9.68 would be (8), and then only the parts of (8) that allow him to restrict carry and possession of firearms.

    (6) and (7) would only be in violation of 9.68 if any orders of closure or restriction of sales were limited to firearms and ammo only. General laws that closed down all stores in an emergency area and barred all sales might be unlawful some other way, but not in violation of 9.68.

    But, in answer to your basic question. Yes, 9.68 does preempt sections of that ordinance.

    Does it predate 9.68 or Cleveland v. Ohio? If so, they might not have gotten around to modifying it or might not even realize that it violates State law. Point it out to them.

    If it postdates C v. O, then you have a rogue city on your hands (or incompetent boobs on the council, or both). Again, point out the error of their ways--on the record.

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    Quote Originally Posted by color of law View Post
    IMHO - 9.68 trumps the local Ordinance. And the mayor swore an oath to both the U.S. and Ohio Constitutions. He can shut down gun shops.
    Only by an ordinance that specifies hours and/or locations where stores may sell guns--and any zoning restriction solely on gun sales cannot be city-wide.

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    Accomplished Advocate color of law's Avatar
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    Quote Originally Posted by color of law View Post
    IMHO - 9.68 trumps the local Ordinance. And the mayor swore an oath to both the U.S. and Ohio Constitutions. He can shut down gun shops.
    Quote Originally Posted by eye95 View Post
    Only by an ordinance that specifies hours and/or locations where stores may sell guns--and any zoning restriction solely on gun sales cannot be city-wide.
    Incorrect. All I said was the mayor can shut down gun shops. For example, the mayor has the power to suspend any business license.

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    Quote Originally Posted by color of law View Post
    Incorrect. All I said was the mayor can shut down gun shops. For example, the mayor has the power to suspend any business license.
    He cannot do so in a way that generally shuts down gun sales, which is what the ordinance is saying he can do.

    ...does not result in a de facto prohibition of the commercial sale of firearms, firearm components, or ammunition for firearms in areas zoned for commercial, retail, or industrial uses.
    If he were to suspend all the business licenses for all and only firearms businesses, he would violate the above provision of 9.68.

    If you are talking about individual licenses or individual shops, or even a small group of them, then that is not the topic of this thread. On the topic of this thread, no, the mayor may not "(7) Order the closing of any and all establishments or portions thereof engaged in the sale, distribution, dispensing or giving away of firearms or ammunition."

    He could shut down all business in an area, but he may not target firearms businesses.

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    Accomplished Advocate color of law's Avatar
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    Quote Originally Posted by eye95 View Post
    He cannot do so in a way that generally shuts down gun sales, which is what the ordinance is saying he can do.



    If he were to suspend all the business licenses for all and only firearms businesses, he would violate the above provision of 9.68.

    If you are talking about individual licenses or individual shops, or even a small group of them, then that is not the topic of this thread. On the topic of this thread, no, the mayor may not "(7) Order the closing of any and all establishments or portions thereof engaged in the sale, distribution, dispensing or giving away of firearms or ammunition."

    He could shut down all business in an area, but he may not target firearms businesses.
    Your foolhardy.

    Move on....

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    Question regarding the legality of a local ordinance

    Quote Originally Posted by color of law View Post
    Your [sic] foolhardy.

    Move on....
    Ranks right up there with "Your an idiot," my favorite bit of Internet idiocy!

    You could point out where you think I am wrong, or you can resort to juvenile insults. I notice with disappointment that you chose the latter.

    Ah, well, I know a little bit more about you now.


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    Quote Originally Posted by eye95 View Post
    As far as I can tell, the only part of the ordinance that runs afoul of 9.68 would be (8), and then only the parts of (8) that allow him to restrict carry and possession of firearms.

    (6) and (7) would only be in violation of 9.68 if any orders of closure or restriction of sales were limited to firearms and ammo only. General laws that closed down all stores in an emergency area and barred all sales might be unlawful some other way, but not in violation of 9.68.
    Well, (6) and (7) specify 'firearms or ammunition' so I would think that they are limited to firearms and ammo only. CO 123.01 specifies that the Mayor can close down any 'non-essential services' which includes commercial, industrial, and retail, so I suppose that gets them around 9.68 if they close ALL businesses in the area.

    Quote Originally Posted by eye95 View Post
    But, in answer to your basic question. Yes, 9.68 does preempt sections of that ordinance.

    Does it predate 9.68 or Cleveland v. Ohio? If so, they might not have gotten around to modifying it or might not even realize that it violates State law. Point it out to them.

    If it postdates C v. O, then you have a rogue city on your hands (or incompetent boobs on the council, or both). Again, point out the error of their ways--on the record.
    As to whether or not it predates 9.68, the certification says:
    We, Lydia Mihalik, Mayor, and Denise DeVore, Clerk of Council, of Findlay, Ohio, pursuant to Ohio R.C. 731.23 and 731.42, hereby certify that the general and permanent ordinances of the City of Findlay, Ohio, as revised, rearranged, compiled, renumbered as to sections, codified and printed herewith in component codes are correctly set forth and constitute the Codified Ordinances of the City of Findlay, Ohio, 1992, as amended to January 2, 2013.
    Granted, they may have overlooked this. I may have to attend a City Counsel meeting. Thanks for your input so far.

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    Accomplished Advocate color of law's Avatar
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    JustJack,

    The Ordinances (123.02) has been around since at least 1979. You need to ask eye95 why he did not tell you that.

    He (eye95) should have also told you to read ORC 3761.16 read ORC 5502.21 thru 5502.51, as well as the Administrative Code.

    State-created liberty and property interests, including the right to bear arms for defense and security, are protected by the Due Process Clause. Municipalities may face liability under section 42 USC 1983 where they breach their duties imposed by state and/or the U.S. And Ohio Constitution.

    I'm sure eye95 would have gotten around to telling you this at some point.

    Good luck with City Counsel and their law director.
    Last edited by color of law; 07-07-2013 at 08:19 PM.

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    I sent an email off to the Law Director. We'll see how long it takes him to answer, if he does at all, and what he has to say. I'll post his reply in here once I get it.

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    Quote Originally Posted by color of law View Post
    JustJack,

    The Ordinances (123.02) has been around since at least 1979. You need to ask eye95 why he did not tell you that.
    What the hell? Did you happen to notice where I asked the poster whether the ordinance predated or postdated 9.68? It is irrelevant to whether the ordinance violates 9.68, but it is relevant to whether the city is being rogue or just careless.

    He (eye95) should have also told you to read ORC 3761.16 read ORC 5502.21 thru 5502.51, as well as the Administrative Code.

    State-created liberty and property interests, including the right to bear arms for defense and security, are protected by the Due Process Clause. Municipalities may face liability under section 42 USC 1983 where they breach their duties imposed by state and/or the U.S. And Ohio Constitution.

    I'm sure eye95 would have gotten around to telling you this at some point.

    Good luck with City Counsel and their law director.
    I should have told him no such thing for two reasons: One, he was asking whether the ordinance violated 9.68. It does. Two, what you cite discusses two things. First, it empowers local authorities to cordon off areas during riot, not natural disaster and not the entire city (unless the scope of the riot is the entire city). Second, the massive cite you provide generally makes rules for public security. There is no reason that I "should" give him such a massive citations. Care to narrow your citation to something specific that overrides the prohibitions that apply to local governments in 9.68?

    So, no, I wouldn't have gotten around to telling him any such things.

    Now to address your manner of posting: You're behaving like an ass. Shall we discuss the topic in an adult manner? I tend not to bother with folks posting in such a juvenile manner.
    Last edited by eye95; 07-07-2013 at 11:18 PM.

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    Quote Originally Posted by JustJack View Post
    I sent an email off to the Law Director. We'll see how long it takes him to answer, if he does at all, and what he has to say. I'll post his reply in here once I get it.
    I look forward to reading what he has to say.

    Thanks.

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    Quote Originally Posted by eye95
    Now to address your manner of posting: You're behaving like an ass.
    Okay, lunch with Color of Law, Eye95 and Werz. Tickets for admission start at $100 each. Any takers?

    Just kidding. At that price, I'd never cover the property damage!
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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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    Re: Question regarding the legality of a local ordinance

    Quote Originally Posted by MyWifeSaidYes View Post
    Okay, lunch with Color of Law, Eye95 and Werz. Tickets for admission start at $100 each. Any takers?

    Just kidding. At that price, I'd never cover the property damage!
    I would honestly pay that.

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    Quote Originally Posted by MyWifeSaidYes View Post
    Okay, lunch with Color of Law, Eye95 and Werz. Tickets for admission start at $100 each. Any takers?

    Just kidding. At that price, I'd never cover the property damage!
    So he waits for me to return to Virginia before he opens the ticket booth. Sheesh I have all the luck.

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    Since I had yet to receive a reply as of 8-20-13, I sent a second email. I received the following answer today.
    Mr. Grim:



    Thank you for the question and voicing your concerns. I am aware that this very issue was addressed by the Ohio Supreme Court in the case of Cleveland v. State of Ohio (2010). I agree that the Cleveland case preempts the enforcement of many of the actions set forth in 123.02 (6) and (8). However, the “emergency” contemplated in this section of our code would generally give rise to a request for state or federal assistance i.e. National Guard etc. which may or may not enjoy or employ that authority. The actions you speak of will not be authorized by the Mayor.



    Feel free to contact me if you have any other questions or concerns regarding this matter.
    So, as I understand his answer, ORC does preempt the ordinance, but since they'd only use it during an emergency during which they would be requesting State or Federal aid, the ordinance isn't preempted? Can someone who speaks lawyer explain this answer to me?

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    Regular Member MyWifeSaidYes's Avatar
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    Quote Originally Posted by JustJack
    Can someone who speaks lawyer explain this answer to me?
    IANAL, but I can translate pretty well...he blew you off.

    Basically he said, "Oh, OUR mayor would NEVER do THAT."

    Did you read ORC 3761.16 to see how far out of whack the Findlay ordinance really is?

    Basically, Findlay says the Mayor can shut down ALL businesses (that would be a zoning issue) or he can shut down the 'portion' of a business that sells guns and ammo. That seems okay under ORC 3761.16 and ORC 9.68 IF the gun store is in a cordoned off riot area.

    The part that needs addressed is that such 3761.16 is specific to a riot (or a clear and present danger of one), and it is specific to a "cordoned off area" and not the entire town.
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    Recoil.

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    Thanks MYSY, that was pretty well my understanding of it as well. Basically, he's saying that 123.02 (6) and (8) would only be used during an 'emergency' (like how no one will narrow that down any, just what is an emergency?) and that it would only be used if said 'emergency' was bad enough to require State or Federal assistance, and that in that case, it would be the State of Feds that would be enacting that ordinance. But, if that is the case (which we all know it probably isn't), why have the ordinance at all? If the only time you'd need it is when someone else is calling the shots, let them use ORC or USC, why bother even having a local ordinance?

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    I don't think emergency powers would be OK with the federal courts ... did they not do that during katrina and the federal judge there slapped it down (regarding closing of gun stores) ... or some other case in another location?

    I recall reading an opinion but cannot recall the specific case...anyone else remember?

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