City ordinances mimic state law

A sub-forum for the purpose of discussing ORC 9.68 compliance. This sub-forum is strictly for the discussion of progress in individual cities and their respective parks.

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This sub-forum is strictly for the purpose of submitting of, and status updates related to, ORC 9.68 compliance. This could mean park bans, open carry bans, or anything that is a compliance issue. Note the format in which original threads were created. We'll track each individual case here and post updates if assistance is needed, etc. You may start a new thread here to notify us of a non-compliant scenario. Please try to research contact information for each city, village, etc, Email, fax, and postal addresses are great. Digital photos of infractions (Signs) are ideal. With limited exceptions this is NOT a discussion forum.

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rmalehorn
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City ordinances mimic state law

Post by rmalehorn »

Why would a city have a series of ordinances that virtually mimic the ORC? This concerns me as I live in such a city and when the laws change at the end of the month I might be in violation of an ordinance that no longer mirrors the ORC.
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BobK
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Re: City ordinances mimic state law

Post by BobK »

It is all about the money.

If you are charged with a violation of state statute, a percentage of the fine goes to the state. If you are charged with a city ordinance charge instead, the city keeps the money.

If you are charged under an obsolete city charge that is not supported in state statute, then 9.68 is your defense.
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Re: City ordinances mimic state law

Post by bigdan390 »

What BobK Said ^^^^^^^^^^^
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Re: City ordinances mimic state law

Post by rmalehorn »

Ahh, light in the tunnel, it is a train coming.
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Re: City ordinances mimic state law

Post by jgarvas »

Technically, the municipal ordinances violate ORC 9.68. Where is this?
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Re: City ordinances mimic state law

Post by cashman966 »

jgarvas wrote:Technically, the municipal ordinances violate ORC 9.68. Where is this?
As long as the ordinances are worded the same as state or federal law I don't think that they would be in violation, as those restriction are allowed under 9.68. Only those restrictions not already provided for in state or federal law are prohibited.

A municipal ordinance that mimics state law places no additional restrictions on a person.

Once the state or federal law changes they would become a violation under 9.68 unless they were amended to once again reflect the wording in the state or federal law they mimic.

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.
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Re: City ordinances mimic state law

Post by JediSkipdogg »

I would agree with Cashman. As long as the wording is the same I don't see how it would be any violation
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Re: City ordinances mimic state law

Post by jgarvas »

JediSkipdogg wrote:I would agree with Cashman. As long as the wording is the same I don't see how it would be any violation
Consider this:
the general assembly finds the need to provide uniform laws throughout the state
The Ohio Legislature sought out to create statewide uniformity. If individual towns had the authority to create "mirrored" laws we could end up with some towns that have, some towns that have not. This would not be uniform statewide since the type of court you would end up in would be based on the manner in which you were charged. Consider other parts of ORC 9.68:
...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.
If you're charged with a local ordinance that takes you to a local magistrate acting as a Mayor's court it is further restriction, further process. You typically have two choices in a Mayor's court: No contest, or guilty as charged. Any time you want to plead not guilty in a mayor's court they have to re-schedule your case in the municipal court. Granted, they could send you there first, but the point of local ordinances and Mayor's court is to reap all of the rewards of people pleading guilty or no contest. Its a huge money grab in my opinion, and its why they want to charge you with local ordinances in the first place.
(B) In addition to any other relief provided, the court shall award costs and reasonable attorney fees to any person, group, or entity that prevails in a challenge to an ordinance, rule, or regulation as being in conflict with this section.
Any gun law ordinance that isn't a zoning ordinance (that also doesn't effectively ban city wide via zoning) is technically "in conflict" with ORC 9.68 even if it isn't in conflict with its corresponding state statute, and therefor should be removed from the books. Any local gun law enacted or maintained by a local government harms the uniformity intent of ORC 9.68.

Uniformity would include uniform enforcement and uniform penalty clauses. The concept behind statewide pre-emption is that local governments should not be permitted to enact laws that you must go study and learn - even if they are exactly the same as State of Ohio law in effect. Statewide pre-emption "uniformity" means there is a single set of laws everywhere in the State of Ohio: Those that the State and federal government enacted.

In order for a person in Cleveland, Ohio and a person in Youngstown, Ohio to be charged "uniformly" with carrying a concealed handgun should they not both be charged with the same exact state statute? I would suggest that was the legislature's (and our) intent in enacting ORC 9.68. Should they not all be taken to a uniform court system as opposed to a mayor's court for a misdemeanor charge?

Municipal ordinances can only be "misdemeanors", while state and higher statutes can carry felony charges. Its impractical for any local gun control ordinance to mirror any of the State of Ohio statutes that come with a felony charge and not effectively weaken the enforcement. We can all agree that local ordinances are not the US Constitution, The Ohio Constitution, state law, or federal law. Local ordinances*, by their very existence, "conflict" with the legislatures intent in drafting ORC 9.68. To the best of my knowledge, neither Ohio Supreme Court ruling on ORC 9.68 indicated that local governments could continue to enact or enforce local gun control ordinances in the decision that ORC 9.68 was constitutionally sound.

* The legislature didn't prohibit zoning ordinances, because zoning is a function of local self government and would have been a big home-rule violator. The fact that a "type" of ordinance is exempted from ORC 9.68 further points to the argument that its the only type of ordinance that is permissive with respect to firearms and ORC 9.68. There is no exemption in ORC 9.68 for ordinances that "mirror" Ohio law.

Even if this theory is wrong, its what we should be pushing and educating until it's proven wrong in a court. Local gun laws should not exist.
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gmhiggins
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Re: City ordinances mimic state law

Post by gmhiggins »

I don't see how they could enforce any additional law at a city level. Assuming the state charges the individual, any further charges for the same offense (ex. Carrying a concealed weapon) would clearly be a violation of the Fifth Amendment, would it not?

A portion of the total fine paid going to the city is one thing, but being charged with the violation of two identical laws at two different levels.....I just don't think it can be done. I can't see it falling under a separate sovereigns exemption of the Fifth Amendment, but I'll admit I'm rather green on that.
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Re: City ordinances mimic state law

Post by JediSkipdogg »

gmhiggins wrote:I don't see how they could enforce any additional law at a city level. Assuming the state charges the individual, any further charges for the same offense (ex. Carrying a concealed weapon) would clearly be a violation of the Fifth Amendment, would it not?

A portion of the total fine paid going to the city is one thing, but being charged with the violation of two identical laws at two different levels.....I just don't think it can be done. I can't see it falling under a separate sovereigns exemption of the Fifth Amendment, but I'll admit I'm rather green on that.
You never get charged by both. That would be plain flat out double jeopardy. I'm going to use Speed as an example. You can be caught for speeding 37 in a 25. The officer then has at his discretion to charge you with the local city ordinance or a state ordinance, not both. If you are charged with the city ordinance, the city ordinance will follow your entire court case. You can request to transfer your case to a municipal court from the mayor's court so you can take it to a jury trial, however, it will still be with the city ordinance. Also, if you appeal your conviction, it will then be appealed in a municipal court first. If the max fine of the mayor's court ticket is $55+court costs and the equal state/municipal violation is $70+court costs you will only be required to pay the $55+costs if you appeal. However, if they charge you under the same state code, you are responsible for the $70 charge.

I'm hoping that what you meant by charged twice.
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Re: City ordinances mimic state law

Post by gmhiggins »

JediSkipdogg wrote: You never get charged by both. That would be plain flat out double jeopardy. I'm going to use Speed as an example. You can be caught for speeding 37 in a 25. The officer then has at his discretion to charge you with the local city ordinance or a state ordinance, not both. If you are charged with the city ordinance, the city ordinance will follow your entire court case. You can request to transfer your case to a municipal court from the mayor's court so you can take it to a jury trial, however, it will still be with the city ordinance. Also, if you appeal your conviction, it will then be appealed in a municipal court first. If the max fine of the mayor's court ticket is $55+court costs and the equal state/municipal violation is $70+court costs you will only be required to pay the $55+costs if you appeal. However, if they charge you under the same state code, you are responsible for the $70 charge.

I'm hoping that what you meant by charged twice.
Right, that's my point...the city couldn't charge you under those ordinances, since the state would.
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Re: City ordinances mimic state law

Post by BobK »

gmhiggins wrote:Right, that's my point...the city couldn't charge you under those ordinances, since the state would.
You are a little confused.

Get pulled over by a Columbus cop, for example, for reckless operation and the cop can choose to charge you under either state law or city ordinance, but not both.
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rmalehorn
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Re: City ordinances mimic state law

Post by rmalehorn »

jgarvas wrote:Technically, the municipal ordinances violate ORC 9.68. Where is this?
This is Willoughby Ohio, Lake County. Chapter 549 is the Firearms section, here is the excerpt for concealed carry:
549.02 CARRYING CONCEALED WEAPONS.

(a) No person shall knowingly carry or have, concealed on the person’s person or concealed ready at hand, any of the following:
(1) A deadly weapon other than a handgun;
(2) A handgun other than a dangerous ordnance;
(3) A dangerous ordnance.
(b) No person who has been issued a license or temporary emergency license to carry a concealed handgun under Ohio R.C. 2923.125 or 2923.1213 or a license to carry a concealed handgun that was issued by another state with which the Attorney General has entered into a reciprocity agreement under Ohio R.C. 109.69, shall do any of the following:
(1) If the person is stopped for a law enforcement purpose, and is carrying a concealed handgun, fail to promptly inform any law enforcement officer who approaches the person after the person has been stopped that the person has been issued a license or temporary emergency license to carry a concealed handgun and that the person then is carrying a concealed handgun;
(2) If the person is stopped for a law enforcement purpose and if the person is carrying a concealed handgun, knowingly fail to keep the person’s hands in plain sight at any time after any law enforcement officer begins approaching the person while stopped and before the law enforcement officer leaves, unless the failure is pursuant to and in accordance with directions given by a law enforcement officer;
(3) If the person is stopped for a law enforcement purpose and if the person is carrying a concealed handgun, knowingly disregard or fail to comply with any lawful order of any law enforcement officer given while the person is stopped, including, but not limited to, a specific order to the person to keep the person’s hands in plain sight.
(c) (1) This section does not apply to any of the following:
A. An officer, agent or employee or this or any other state or the United States, or to a law enforcement officer, who is authorized to carry concealed weapons or dangerous ordnance, or is authorized to carry handguns and is acting within the scope of the officer’s, agent’s or employee’s duties;
B. Any person who is employed in this State, who is authorized to carry concealed weapons or dangerous ordnance or is authorized to carry handguns, and who is subject to and in compliance with the requirements of Ohio R.C. 109.801 unless the appointing authority of the person has expressly specified that the exemption provided in subsection (c)(1)B. hereof does not apply to the person.
C. A person’s transportation or storage of a firearm, other than a firearm described in divisions (G) to (M) of Ohio R.C. 2923.11 in a motor vehicle for any lawful purpose if the firearm is not, on the actor’s person;
D. A person’s storage or possession of a firearm, other than a firearm described in divisions (G) to (M) of Ohio R.C. 2923.11 in the actor’s own home for any lawful purpose.
(2) Subsection (a)(2) of this section does not apply to any person who, at the time of the alleged carrying or possession of a handgun, is carrying a valid license or temporary emergency license to carry a concealed handgun issued to the person under Ohio R.C. 2923.125 or 2923.1213 or a license to carry a concealed handgun that was issued by another state with which the Attorney General has entered into a reciprocity agreement under Ohio R.C. 109.69, unless the person knowingly is in a place described in division (B) of Ohio R.C. 2923.126.
(d) It is an affirmative defense to a charge under subsection (a)(1) of this section of carrying or having control of a weapon other than a handgun and other than a dangerous ordnance, that the actor was not otherwise prohibited by law from having the weapon, and that any of the following applies:
(1) The weapon was carried or kept ready at hand by the actor for defensive purposes, while the actor was engaged in or was going to or from the actor’s lawful business or occupation, which business or occupation was of a character or was necessarily carried on in a manner or at a time or place as to render the actor particularly susceptible to criminal attack, such as would justify a prudent person in going armed.
(2) The weapon was carried or kept ready at hand by the actor for defensive purposes, while the actor was engaged in a lawful activity and had reasonable cause to fear a criminal attack upon the actor, a member of the actor’s family, or the actor’s home, such as would justify a prudent person in going armed.
(3) The weapon was carried or kept ready at hand by the actor for any lawful purpose and while in the actor’s own home.
(e) No person who is charged with a violation of this section shall be required to obtain a license or temporary emergency license to carry a concealed handgun under Ohio R.C. 2923.125 or 2923.1213 as a condition for the dismissal of the charge.
(f) (1) Whoever violates this section is guilty of carrying concealed weapons. Except as otherwise provided in this subsection or subsection (f)(2) of this section, carrying concealed weapons in violation of subsection (a) of this section is a misdemeanor of the first degree. Except as otherwise provided in this subsection or subsection (f)(2) of this section, if the offender previously has been convicted of a violation of this section or of any offense of violence, if the weapon involved is a firearm that is either loaded or for which the offender has ammunition ready at hand, or if the weapon involved is dangerous ordnance, carrying concealed weapons in violation of subsection (a) of this section is a felony and shall be prosecuted under appropriate State law. Except as otherwise provided in subsection (f)(2) of this section, if the weapon involved is a firearm and the violation of this section is committed at premises for which a D permit has been issued under Chapter 4303, of the Revised Code or if the offense is committed aboard an aircraft, or with purpose to carry a concealed weapon aboard an aircraft, regardless of the weapon involved, carrying concealed weapons in violation of subsection (a) of this section is a felony and shall be prosecuted under appropriate State law.
(2) If a person being arrested for a violation of subsection (a)(2) of this section promptly produces a valid license or temporary emergency license issued under Ohio R.C. 2923.125 or 2923.1213 or a license to carry a concealed handgun that was issued by another state with which the Attorney General has entered into a reciprocity agreement under Ohio R.C. 109.69, and if at the time of the violation the person was not knowingly in a place described in division (B) of Ohio R.C. 2923.126, the officer shall not arrest the person for a violation of that subsection. If the person is not able to promptly produce any of those types of license and if the person is not in a place described in that section, the officer may arrest the person for a violation of that subsection, and the offender shall be punished as follows:
A. The offender shall be guilty of a minor misdemeanor if both of the following apply:
1. Within ten days after the arrest, the offender presents a license or temporary emergency license to carry a concealed handgun issued under Ohio R.C. 2923.125 or 2923.1213 or a license to carry a concealed handgun that was issued by another state with which the Attorney General has entered into a reciprocity agreement under Ohio R.C. 109.69, which license was valid at the time of the arrest to the law enforcement agency that employs the arresting officer.
2. At the time of the arrest, the offender was not knowingly in a place described in division (B) of Ohio R.C. 2923.126.
B. The offender shall be guilty of a misdemeanor and shall be fined five hundred dollars ($500.00) if all of the following apply:
1. The offender previously had been issued a license to carry a concealed handgun under Ohio R.C. 2923.125 or a license to carry a concealed handgun that was issued by another state with which the Attorney General has entered into a reciprocity agreement under Ohio R.C. 109.69, and that was similar in nature to a license issued under Ohio R.C. 2923.125 and that license expired within the two years immediately preceding the arrest.
2. Within forty-five days after the arrest, the offender presents any type of license identified in subsection (f)(2)A.1. of this section to the law enforcement agency that employed the arresting officer, and the offender waives in writing the offender’s right to a speedy trial on the charge of the violation that is provided in Ohio R.C. 2945.71.
3. At the time of the commission of the offense, the offender was not knowingly in a place described in division (B) of Ohio R.C. 2923.126.
C. If neither subsection (f)(2)A. nor B. of this section applies, the offender shall be punished under subsection (f)(1) of this section.
(3) Except as otherwise provided in this subsection, carrying concealed weapons in violation of subsection (b)(1) hereof is a misdemeanor of the first degree, and, in addition to any other penalty or sanction imposed for a violation of subsection (b)(1) hereof, the offender’s license or temporary emergency license to carry a concealed handgun shall be suspended pursuant to Ohio R.C. 2923.128.

If, at the time of the stop of the offender for a law enforcement purpose that was the basis of the violation, any law enforcement officer involved with the stop had actual knowledge that the offender has been issued a license or temporary emergency license to carry a concealed handgun, carrying concealed weapons in violation of division (b)(1) of this section is a minor misdemeanor, and the offender’s license or temporary emergency license to carry a concealed handgun shall not be suspended pursuant to division (A)(2) of Ohio R.C. 2923.128.
(4) Except as otherwise provided herein, carrying concealed weapons in violation of subsection (b)(2) or (b)(3) hereof is a misdemeanor of the first degree. If the offender has previously been convicted or pleaded guilty to a violation of Ohio R.C. 2923.12(B)(2) or (B)(4) or a substantially equivalent municipal ordinance, carrying concealed weapons is a felony and shall be prosecuted under appropriate state law. In addition to any other penalty or sanction imposed for a violation of subsection (b)(2) or (b)(3) hereof, the offender’s license or temporary emergency license to carry a concealed handgun shall be suspended pursuant to Ohio R.C. 2923.128(A)(2).
(g) If a law enforcement officer stops a person to question the person regarding a possible violation of this section, for a traffic stop, or for any other law enforcement purpose, if the person surrenders a firearm to the officer, either voluntarily or pursuant to a request or demand of the officer, and if the officer does not charge the person with a violation of this section or arrest the person for any offense, the person is not otherwise prohibited by law from possessing the firearm, and the firearm is not contraband, the officer shall return the firearm to the person at the termination of the stop. If a court orders a law enforcement officer to return a firearm to a person pursuant to the requirement set forth in this subsection, division (B) of Ohio R.C. 2923.163 applies. (ORC 2923.12)
Sorry, it lost the formatting, I searched firearms and got alot of hits :http://www.conwaygreene.com/Willoughby/ ... -h.htm&2.0
Bob from Willoughby
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