Inconsistencies in Ohio’s home rule authority highlighted by tobacco legislation
A person vaping. Photo by WEWS national team.
The following article was originally published on News5Cleveland.com and is published in the Ohio Capital Journal under a content-sharing agreement. Unlike other OCJ articles, it is not available for free republication by other news outlets as it is owned by WEWS in Cleveland.
State lawmakers in Ohio have been able to pick and choose which local governments have the authority to pass ordinances, with conservative policies typically passing through and progressive ones being shut down, according to an OCJ/WEWS analysis.
A heated debate on the Ohio House floor at 1:15 a.m. last Thursday led to the passage of a bill directly targeting left-leaning cities.
The City of Columbus banned flavored tobacco products on Tuesday, saying the corporations responsible for them have targeted children and Black Americans, thus causing a new epidemic of tobacco and nicotine use.
The next day, a provision was added to a bill on tobacco taxes to prevent any city or municipality from regulating smoking, vaping, and other e-cigarette usage and sales.
State Rep. Jon Cross, R-Kenton, added it to House Bill 513, which originally just dealt with tobacco and nicotine product taxes, allowing a distributor to obtain a refund of excise taxes remitted on certain bad debts. Once he heard about Columbus, he said he was going to make sure the ordinance was stopped.
“We want to sit there and say, ‘Oh, don’t get fat, we’re going to cancel double cheeseburgers,'” Cross said, seemingly imitating a local government official.
During the nearly 17-hour marathon session, the lawmaker argued this could cause cities like Cleveland, Cincinnati and Columbus to ban anything considered unhealthy.
“We’re going to get rid of the Big Gulp,” he argued, still mimicking, while lawmakers sitting behind him stifled laughter. “No 32-ounce Cokes.”
Although humorous to exhausted lawmakers who would sit and debate bills for five more hours, Cross said the point is really about the free market.
“I think governments going to be picking winners and losers on what you can and can’t eat or drink or you use,” Cross told OCJ/WEWS. “We don’t want it to be a backdoor on an infringement of our rights and freedoms.”
But Ohio Mayors Alliance Executive Director Keary McCarthy said the argument isn’t really about soda, fast food, or even flavored vapes. It is about local rule.
“There has been a growing trend of provisions passed by the state legislature that very directly conflict with home rule in Ohio,” McCarthy said.
Municipal home rule allows cities and villages in Ohio to have the constitutional right to certain powers, including establishing laws in accordance to the self-government clause. If something doesn’t interfere with laws in the Ohio Revised Code, cities have the right to make their own policies, Keary argued, citing Section 3.
“When the heavy hand of state government comes down from central Ohio, from Columbus, our capital city, and says, ‘Oh, you can’t do it this way, you have to do it this way,’ it conflicts with that sacred right to home rule that is embedded in our constitution,” he added.
Lawmakers have started to strip powers away from municipalities, which can be seen with this new tobacco bill, but also with bills to prevent gun safety measures, plastic bag bans, and teaching about race in school. The Ohio Municipal League has been tracking 22 bills in total this session that it believes overstep its rights, or at least are “of interest.”
The state is able to do this through preemption laws, which allows state government to override local laws.
Argument 1 — Financial impact
This bill doesn’t infringe on home rule because it involves the private sector and commerce, which has an impact at the statewide level, Cross said.
“I think what we have is really not an issue of health and safety,” Cross said. “It’s an issue of revenue and taxes.”
Columbus could be losing hundreds of millions of dollars, he added.
“What the taxpayers don’t realize is, the city of Columbus is probably gonna have to tax the taxpayers more money to make up for that loss of revenue,” he said.
OCJ/WEWS asked if that would just be a problem for Columbus to deal with, since their voters elected the individuals who are in power. Cross said it becomes a state problem.
“The challenge is cities come to us begging and pleading, ‘Please don’t cut our local government funds, please, please, please, we need more money,’ but then they don’t realize when they go out and do things like this — they’re cutting tremendous amount of tax revenue,” he added.
Then the state must deal with figuring out what to do with the newly-needy municipality.
“You can’t get rid of things and decrease your revenue,” the lawmaker added. “But then come back to us and expect us to fill the coffers when you’ve committed your own financial suicide.”
McCarthy, on the other hand, argues that this is about the safety and livelihood of children. Columbus Mayor Andrew Ginther, who is at the center of this debate, highlighted the need to protect children in a press conference last Friday.
“There has been a systemic targeting of young people, the amount of vaping these fruit-flavored tobacco products that they’re gearing towards disproportionately African Americans,” Ginther said. “This has become a real epidemic coming out of the pandemic, and you could talk to public school officials all over the state.”
Educators and police have continued to ask the following question as gun bills get passed, but it applies in this circumstance: Is there a price to put on a child’s life?
Argument 2 — Second Amendment rights
Columbus has also recently tried to ban large-capacity magazines and make it a crime if someone does not properly store a firearm. This has been a debate since 2019, but a common pleas judge ruled last Thursday that this ordinance could not take effect.
Ohio’s Constitution has even stronger protections for gun rights than the federal code, according to Rob Sexton with the Buckeye Firearms Association.
“It just makes it crystal clear that people have the right to own and keep and possess firearms for their own defense,” Sexton said. “Unfortunately, that hasn’t stopped some of Ohio’s largest cities from continuously trying to find ways around it.”
Columbus is trying to use the argument that guns are not just a public health emergency, but also a “public nuisance,” and thus the government can limit magazines.
In came Senate Bill 185, which would make sure municipalities can’t create their own gun laws. It would prohibit any government authority from stopping gun sales or taking firearms during an emergency or crisis.
It was introduced by Rep. Tim Schaffer, R-Lancaster, and is meant to address the Second Amendment not having a pandemic or natural disaster clause. Emergency is a loose term – no firearm or any accessory like ammunition such as in a riot, civil disorder, public nuisance, or an “emergency of whatever kind or nature.”
But for McCarthy, there is no violation of the Second Amendment.
“Limiting magazine capacity is not an infringement on the Second Amendment in our U.S. Constitution,” he said. “Requiring safe storage of firearms so kids don’t end up getting a gun and doing something very horribly tragic — that is not a limit on the Second Amendment right.”
Officials around the state agree with him, including Cleveland Mayor Justin Bibb.
“We’re proposing several measures to the legislature to reduce gun violence in the state of Ohio — First and foremost, establishing extreme risk protection orders, also enhancing Ohio’s gun purchasing background check system, implementing a statewide safe storage law, and reinstating the duty to notify provision,” Bibb said during a press conference on Friday. “And restoring local control on certain gun safety measures.”
Sexton admits that he feels gun rights are completely protected, but there is a gray area when it comes to issues like tobacco.
To spell out the trend here, most if not all of these policies, despite having bipartisan backing, tend to be seen as progressive laws.
So when does home rule end and the legislature begin?
There should be a balance, McCarthy said.
“Cities are trying to protect their communities, to be responsive to their neighbors who elected them, and state government says, ‘No, you can’t do it that way, you have to do it our way,'” he said. “That’s just not right.”
OCJ/WEWS found there are inconsistencies in how and when lawmakers get involved in home rule issues.
There are numerous other examples just like these two, but the policies that are often supported by the legislature tend to come from conservative areas of the state.
Cross addressed these contradictions.
“It really depends on the person’s point of view of, well, is this my bill or is this our local issue?” Cross responded. “I think it’s always hard to decide when one begins and when one ends.”
He likes to think of what he called a common sense approach to analyzing home rule, he said.
Despite having his bill in the midst of this debate, he said he does really support local authority.
“I believe the best decision-making can happen at a local level,” the lawmaker added. “Local decision-making for schools and businesses, you know, things that we can do to take care of our police and fire.”
This, however, conflicts with his actions as a lawmaker. He is a cosponsor of both H.B. 327 and 322, which would prohibit all local schools from teaching topics considered controversial.
He is also a cosponsor of H.B. 563, which would limit local regulation of Airbnb businesses — as well as numerous other bills that deal with regulations that police and cities have asked to keep at the local level.
That being said, he acknowledges that these decisions are extremely complicated and multifaceted.
“I think we just have to make sure we get a pause and have a bigger conversation about the impact that has on jobs, businesses, tax revenue, income from municipalities, and all those things go into play before people realize the damage it could cause,” he added.
Putting forward a bill at 1:15 a.m. isn’t exactly a bigger conversation, according to McCarthy and other critics of the legislation.
Gov. Mike DeWine has hinted that he will be vetoing the bill, or at least the provision banning municipalities from regulating tobacco products.
“Well, there’s the bill that has to do with cigarettes,” DeWine told reporters last Thursday. “I’m not going to say what I’m going to do with it, but you might want to go back and look what I did in the U.S. Senate in that area.”
DeWine has consistently been working towards regulating smoking products, and even as recently as 2019 called for legislation to ban flavored vaping liquid.
McCarthy is optimistic DeWine will veto the bill. Cross said he has spoken with the governor to make sure he “understood the core function of the original bill” and the financial impact.
“Making sure that we’re not finding… backdoors or loopholes to ban things.”
“We have to find some common ground, that’s where most of Ohioans are,” McCarthy said. “We have a bipartisan coalition of mayors who are working in good faith and in extending an olive branch to lawmakers to help address some of these issues.”
There is room for a happy medium, Cross said. McCarthy agreed.
“It’s always the debate whether it’s home rule, or are we consistent across the state,” Cross added. “I am open to that debate.
“One would hope that we could find consistency in lawmaking, right?”
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