City of Cleveland v. State

989 N.E.2d 1072

City of CLEVELAND, Plaintiff–Appellee

v.STATE of Ohio, Defendant–Appellant.

No. 98616.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

March 28, 2013.

Mike DeWine, Attorney General of Ohio by Pearl M. Chin, Assistant Attorney General, Columbus, OH, for appellant.

Barbara A. Langhenry, Director of Law by Gary S. Singletary, Shirley A. Tomasello, Assistant Directors of Law, Cleveland, OH, for appellee.

Samantha Graff, Research Director, Oakland, CA, Mark A. McGinnis, Donald J. McTigue, J. Corey Colombo, McTigue and McGinnis, L.L.C., Columbus, OH, Julie Ralston Aoki, William Mitchell College of Law, St. Paul, MN, Amicus Curiae.

Before: STEWART, A.J., E.A. GALLAGHER, J., and ROCCO, J.

EILEEN A. GALLAGHER, J.

{¶ 1} The state of Ohio appeals from the order of the Cuyahoga Court of Common Pleas finding R.C. 3717.53 to be (1) an unconstitutional attempt to preempt the city of Cleveland (“the city”) from exercising its home rule authority and (2) that the amendments to R.C. 3717.53 contained within Am. Sub. H.B. 153 are in violation of the one-subject rule. For the reasons set forth below, we conclude R.C. 3717.53 is not a general law because it is not part of a comprehensive, statewide legislative enactment; does not operate uniformly throughout the state; does not set forth police regulations but simply purports to limit municipal legislative power and does not prescribe a rule of conduct upon citizens generally. We, therefore, conclude that R.C. 3717.53 unconstitutionally limits a municipality's home rule police powers. We further find the amendments to the statute within Am. Sub. H.B. 153 are in violation of the one-subject rule and affirm the judgment of the trial court.

{¶ 2} In April of 2011, the city adopted Cleveland Codified Ordinances (“CCO”) 241.42, entitled “Foods Containing Industrially–Produced Trans Fat Restricted.” The ordinance provides as follows:

(a) No foods containing industrially-produced trans fat, as defined in this section, shall be stored, distributed, held for service, used in preparation of any menu item or served in any food shop, as defined in Section 241.03(b) of this code or successor provision, except food that is being served directly to patrons in a manufacturer's original sealed package.

(b) For purposes of this section, a food shall be deemed to contain industrially-produced trans fat if the food is labeled as containing, lists as an ingredient, or has vegetable shortening, margarine or any kind of partially hydrogenated vegetable oil. However, a food whose nutrition facts label or other documentation from the manufacturer notes the trans fat content of the food is zero (0) grams as labeled then it shall not be deemed to contain industrially-produced trans fat.

(c) Food shops shall maintain on site the original labels identifying the trans fat content or an affidavit provided the food supplier identifying the trans fat content of the food products supplied, or other approved alternative documentation for all food products:

(1) That are, or that contain, fats, oils or shortenings;

(2) That are, when purchased by such food shops, required by applicable federal and state law to have labels; and

(3) That are currently being stored, distributed, held for service, used in preparation of any menu items, or served by the food service establishment.

Documentation Instead of Labels. Documentation acceptable to the Director and based upon information. Documentation acceptable to the Director, from the manufacturers of such food products, indicating whether the food products contain vegetable shortening, margarine or any kind of partially hydrogenated vegetable oil, or indicating trans fat content, may be maintained instead of original labels.

Documentation required when food products are not labeled. If baked goods, or other food products restricted pursuant to division (a) of this section, that are or that contain fats, oils or shortenings, are not required to be labeled when purchased, food shops shall obtain and maintain documentation acceptable to the Director and based upon information, from the manufacturers of the food products, indicating whether the food products contain vegetable shortening, margarine or any kind of partially hydrogenated vegetable oil, or indicating trans fat content.

(d) The Director of Public Health may make rules and regulations to secure proper enforcement of this section.

(e) Whoever violates this section is liable to the City of Cleveland for a civil offense and shall receive a warning on the first offense; on the second offense, shall be fined one hundred fifty dollars ($150.00); on a third offense shall be fined two hundred fifty dollars ($250.00); and beginning with the fourth offense, shall be fined three hundred fifty dollars ($350.00) and each day a violation occurs shall be a separate offense. Any person charged with the commission of a civil offense under this section may appeal to the Director of Public Health, or his or her designee. The appeal shall be taken not later than twenty (20) days from the date of the civil charge. Failure to file an appeal or pay the costs imposed within this time period shall constitute a waiver of the right to contest the charge and shall be considered an admission.

(f) This section shall take effect on January 1, 2013 with respect to oils, shortenings and margarines containing industrially-produced trans fat that are used for frying or in spreads; except that the effective date of this section with regard to oils or shortenings used for deep frying of yeast dough or cake batter, and all other foods containing industrially-produced trans fat, shall be July 1, 2013.

{¶ 3} In 2011, the Ohio General Assembly enacted Am. Sub. H.B. 153 which, among other things, amended R.C. 3717.53, entitled “Regulation of food nutrition information at food service operations.” R.C. 3717.53 states:

(A) As used in this section:

(1) “Food nutrition information” includes, but is not limited to, the caloric, fat, carbohydrate, cholesterol, fiber, sugar, potassium, protein, vitamin, mineral, allergen, and sodium content of food. “Food nutrition information” also includes the designation of food as healthy or unhealthy.

(2) “Political subdivision” and “local legislation” have the same meanings as in section 905.501 of the Revised Code.

(3) “Consumer incentive item” means any licensed media character, toy, game, trading card, contest, point accumulation, club membership, admission ticket, token, code or password for digital access, coupon, voucher, incentive, crayons, coloring placemat, or other premium, prize, or consumer product that is associated with a meal served by or acquired from a food service operation.

(B) The director of agriculture has sole and exclusive authority in this state to regulate the provision of food nutrition information and consumer incentive items at food service operations. The director may adopt rules for that purpose in accordance with Chapter 119 of the Revised Code, including rules that establish a schedule of civil penalties for violations of this section and rules adopted under it. Subject to the approval of the joint committee on agency rule review, portions of the rules may be adopted by referencing all or any part of any federal regulations pertaining to the provision of food nutrition information and consumer incentive items.

The regulation of the provision of food nutrition information and consumer incentive items at food service operations and how food service operations are characterized are matters of general statewide interest that require statewide regulation, and rules adopted under this section constitute a comprehensive plan with respect to all aspects of the regulation of the provision of food nutrition information and consumer incentive items at food service operations in this state. Rules adopted under this section shall be applied uniformly throughout this state.

(C) No political subdivision shall do any of the following:

(1) Enact, adopt, or continue in effect local legislation relating to the provision or nonprovision of food nutrition information or consumer incentive items at food service operations;

(2) Condition a license, a permit, or regulatory approval on the provision or nonprovision of food nutrition information or consumer incentive items at food service operations;

(3) Ban, prohibit, or otherwise restrict food at food service operations based on the food nutrition information or on the provision or nonprovision of consumer incentive items;

(4) Condition a license, a permit, or regulatory approval for a food service operation on the existence or nonexistence of food-based health disparities;

(5) Where food service operations are permitted to operate, ban, prohibit, or otherwise restrict a food service operation based on the existence or nonexistence of food-based health disparities as recognized by the department of health, the national institute of health, or the centers for disease control.

{¶ 4} On January 3, 2012, the City filed a declaratory judgment against the state of Ohio, seeking determinations that (1) R.C. 3717.53 is not a “general law,” (2) that R.C. 3717.53 represents an unconstitutional attempt to preempt the city's municipal home rule authority, (3) that the General Assembly's amendments to R.C. 3717.53 as adopted in Am. Sub. H.B. 153 violate the one-subject rule of the Ohio Constitution, and (4) that the city's enactment and enforcement of CCO 241.42 is a proper exercise of local home rule authority. In its answer, the state denied that the city is entitled to declaratory relief, and the parties subsequently filed dispositive motions.

{¶ 5} On June 11, 2012, the trial court granted summary judgment in favor of the city, holding that R.C. 3717.53 is not a general law, the attempted enforcement of R.C. 3717.53 is an unconstitutional attempt to preempt the city from exercising its home rule powers, the amendments to R.C....