Weir v. Rimmelin, 84-246

• Decision Date: 28 December 1984
• Docket Number: No. 84-246,84-246
• Citation: 15 OBR 151,15 Ohio St.3d 55,472 N.E.2d 341
• Parties: , 15 O.B.R. 151 WEIR, Director, Ohio Department of Transportation, Appellant, v. RIMMELIN et al., Appellees.
• Court: Ohio Supreme Court

Page 55

15 Ohio St.3d 55

472 N.E.2d 341, 15 O.B.R. 151

WEIR, Director, Ohio Department of Transportation, Appellant, v. RIMMELIN et al., Appellees.

No. 84-246.

Supreme Court of Ohio.

Dec. 28, 1984.

Syllabus by the Court

Where state and local regulations concerning unlawful conduct do not conflict, the state and municipality have concurrent authority under the police power to enforce their respective directives inside the corporate limits of the city.

Appellant, David L. Weir, Director of the Ohio Department of Transportation, caused to be filed several complaints alleging that numerous outdoor advertising devices in the city of Toledo violated certain requirements within R.C. Chapter 5516 and Ohio Adm.Code Chapter 5501:2-2. The defendants named in the complaints, William Rimmelin et al. and Root Outdoor Advertising, Inc., appellees herein, possessed interests in the billboards through ownership, leasing, or otherwise. Appellant sought to have the advertising removed and appellees permanently enjoined from placing future advertisements on the billboards.

The signs were stationed along interstate and state primary highways within the corporate limits of Toledo. The alleged violations include sign locations within six hundred sixty feet of roadways and five hundred feet from entrance and exit ramps.

The trial court dismissed all of the actions, by either a judgment on the pleadings or summary judgment. The court ruled that in the absence of a conflict with any general state law, the exclusive authority to regulate outdoor advertising within city corporate limits is provided to the municipality by the home rule provision of Section 3, Article XVIII of the Ohio Constitution. The court of appeals affirmed the trial court's ruling.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Anthony J. Celebrezze, Jr., Atty. Gen., Michael H. Igoe and Mark G. Kelsey, Asst. Atty. Gen., for appellant.

Schnorf & Wanick, David M. Schnorf and Stephen C. Roach, Toledo, for appellee Rimmelin.

Daniel Bishop, Toledo, for appellee Root Outdoor Advertising, Inc.

HOLMES, Justice.

This appeal centers on the authority of different governmental entities to regulate outdoor advertising billboards within a municipality's corporate boundaries. The precise issue is whether a city has exclusive authority to enforce the regulations pertaining to such devices. Based on the following, we hold that where state and local regulations concerning unlawful conduct do not conflict, the state and municipality have concurrent authority under the police power to enforce their respective directives inside the corporate limits of the city.

In 1965, Congress passed the Highway Beautification Act (Section 131 et seq., Title 23, U.S.Code) in an effort to achieve uniformity in statutory provisions which forbid the maintenance of advertising structures within a specified distance from interstate highways. The Act currently provides financial incentives to states which prohibit advertising structures along interstate highways in conformance with the requirements of the federal legislation. Specifically, the Act allows a ten percent reduction in available federal highway funds if a state does not effectively control the maintenance of such advertising devices. In 1971, the Ohio General Assembly amended provisions within R.C. Chapter 5516 and in 1972, Ohio Adm.Code Chapter 5501:2-2 was promulgated to reflect the regulations contained in the Highway Beautification Act.

The city of Toledo enacted a comprehensive sign code in Chapter 1377 et seq., Title 9, Toledo Municipal Code. Appellees contend that Toledo has exclusive authority to regulate outdoor advertising within its corporate limits pursuant to Section 3, Article XVIII of the Ohio Constitution. Appellees rely on the line of home rule cases which permit a city to exercise its powers of local self-government in the absence of a conflicting general law enacted pursuant to the state's police power. See Hilton v. Toledo (1980), 62 Ohio St.2d 394, 405 N.E.2d 1047 ; Dies Electric Co. v. Akron (1980), 62 Ohio St.2d 322, 405 N.E.2d 1026 ; Canton v. Whitman (1975), 44 Ohio St.2d 62, 337 N.E.2d 766 ; State, ex rel. Canada, v. Phillips (1958), 168 Ohio St. 191, 151 N.E.2d 722 . However, our prior cases are not precise guidelines for the issue presented as they do not grant a municipality the exclusive authority to regulate certain conduct within its boundaries.

The Home Rule Amendment to the Ohio Constitution confers a significantly high degree of sovereignty upon municipalities. Angell v. Toledo (1950), 153 Ohio St. 179, 91 N.E.2d 250 . However, the amendment does not provide cities the absolute power of local self-government. Whitman, supra; State, ex rel. Giovanello, v. Lowellville (1942), 139 Ohio St. 219, 39 N.E.2d 527. Where the General Assembly has enacted legislation pursuant to the state's police power which governs a statewide concern, the statute takes precedence over ordinances enacted under the home rule authority of municipalities. Clermont Environmental Reclamation Co. v. Wiederhold (1982), 2 Ohio St.3d 44, 442 N.E.2d 1278; State, ex rel. Evans v. Moore (1982), 69 Ohio St.2d 88, 431 N.E.2d 311 ; Cleveland Elec. Illum. Co. v. Painesville (1968), 15 Ohio St.2d 125, 239 N.E.2d 75 .

There is little doubt that the regulation of outdoor advertising along interstate and primary highways is a matter of statewide concern, and a reasonable and proper exercise of the state's police power. Ghaster Properties, Inc. v. Preston (1964), 176 Ohio St. 425, 200 N.E.2d 328 . See, also, Stuckey's Stores, Inc. v. O'Cheskey (1979), 93 N.M. 312, 600 P.2d 258; Newman Signs, Inc. v. Hjelle (N.D.1978), 268 N.W.2d 741, appeal dismissed (1979), 440 U.S. 901, 99 S.Ct. 1205, 59 L.Ed.2d 449; Natl. Advertising Co. v. State (1977), 91 N.M. 191, 571 P.2d 1194; Markham Advertising Co. v. State (1968), 73 Wash.2d 405, 439 P.2d 248, appeal dismissed (1969), 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 512; In re Opinion of the Justices (1961), 103 N.H. 268, 169 A.2d 762. Although the state's regulatory power is quite apparent, we do not find any legislative intent in the federal Highway Beautification Act, or R.C. Chapter 5516, to preempt municipal regulation of outdoor advertising signs. Cf. Art Neon Co. v. City and County of Denver (C.A. 10, 1973), 488 F.2d 118, certiorari denied (1974), 417 U.S. 932, 94 S.Ct. 2644, 41 L.Ed.2d 236. In fact, R.C. 715.27 ¹ allows municipal regulation of billboards within city corporate limits. Thus, we conclude that municipal corporations may lawfully regulate outdoor advertising devices as a legitimate exercise of local self-government if such regulations do not conflict with a general state law. 7 McQuillin, Municipal Corporations (3 Ed.Rev.1981), Section 24.380.

Under the general concept of preemption, a local ordinance is valid if it is consistent with the related state statute. The query is whether the local regulation complements the statute.

In determining if a municipal ordinance is in conflict with a general state statute, "the test is whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa." Village of Struthers v. Sokol (1923), 108 Ohio St. 263, 140 N.E. 519 at paragraph two of the syllabus. In the present case, the municipal ordinance does not specifically prohibit the maintenance of outdoor advertising structures within six hundred sixty feet of an interstate highway or within five hundred feet of a highway interchange or exit ramp. Nevertheless, the regulation prohibits an outdoor advertising device which "[v]iolates any provision of any Federal or State of Ohio law relative to outdoor advertising." Chapter 1393.14(h), Title 9, Toledo Municipal Code. This provision clearly satisfies the Sokol standard as the municipal ordinance incorporates state law.

It does not necessarily follow, as appellees suggest, that due to the compatibility of the ordinance and statute, the municipality has exclusive authority to enforce its regulations thereby precluding enforcement of state laws within city boundaries. A review of case law does not present any case which would support this view. Rather, it has long been recognized by this court that a state statute and a municipal ordinance have the same force and effect within city limits. Schell v. DuBois (1916), 94 Ohio St. 93, 103, 113 N.E. 664. See, generally, Zucht v. King (1922), 260 U.S. 174, 43 S.Ct. 24, 67 L.Ed. 194; Hayes v. Michigan Central RR. Co. (1884), 111 U.S. 228, 237, 4 S.Ct. 369, 372, 28 L.Ed. 410; Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Grambo (1921), 103 Ohio St. 471, 134 N.E. 648; 56 American Jurisprudence 2d (1971), Municipal Corporations, Sections 407, 434, and cases cited therein.

We believe the present situation is analogous to the enforcement of drunk driving regulations. The state and many municipalities have similar provisions which prohibit persons from operating a motor vehicle while under the influence of alcohol. A state highway patrolman has the duty to enforce the state's provision along our interstate and primary highway systems. The officer certainly possesses the authority to stop a driver suspected of driving under the influence on these highways. If we were to agree with appellees' theory, however, we would place a barrier at the city's corporate line and prevent the patrolman from enforcing state law once he entered the municipality. It would then be left to the city to exclusively enforce its own regulations inside the barrier. This would lead to the erratic enforcement of both state and local laws which is clearly not an acceptable result.

Therefore, we hold that where state and local regulations concerning unlawful conduct do not conflict, the state and municipality have concurrent authority under the police power to enforce their respective directives inside the corporate limits of the city.

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