A Franklin County Appeals Court panel this week affirmed a trial court’s judgment that a state law devised to preempt Ohio cities’ regulation of tobacco products is unconstitutional.

The Tenth District Court of Appeals panel found that R.C. 9.681 blatantly disregarded the state constitution’s Home Rule Amendment, which grants municipalities independent authority to exercise all powers of local self-government and to adopt local regulations that do not conflict with general laws.

“We find the trial court did not err in granting the motion for permanent injunction on the state’s enforcement of R.C. 9.681 against appellees,” Tenth District Judge David Leland wrote for the appellate panel.

The city of Columbus passed an ordinance to ban the sale of flavored tobacco products Dec. 12, 2022, according to case background.

The ordinance also authorized the Columbus Department of Public Health to enforce the city’s tobacco laws and health code and established a system of civil penalties for violating tobacco regulations, effective Jan. 1, 2024.

On Dec. 14, 2022, committee members in the state Senate amended House Bill 513 to enact R.C. 9.681 to prohibit all local regulation of tobacco products.

The General Assembly passed HB 513 the same day, and Gov. Mike DeWine vetoed the bill Jan. 5, 2023.

On June 30, 2023, the General Assembly passed HB 33, a budget bill that included R.C. 9.681’s prohibition on local regulation of tobacco products, summary continued.

DeWine struck that portion from the bill, through the line-item veto process, July 3, 2023. The governor’s veto subsequently was overridden by sufficient votes in both houses of the General Assembly.

“R.C. 9.681 almost exclusively purports to deprive municipalities of their constitutional authority to implement police power regulations of tobacco,” Leland wrote. “The only exception to the statute’s derogation of municipal power is the provision claiming to permit municipalities to levy certain taxes, a power already granted by the Home Rule Amendment.”

The city of Columbus, joined by a number of other Ohio cities, including Hilliard, Grandview Heights and Gahanna, filed a complaint to challenge the constitutionality of the state law and to seek a temporary restraining order, a preliminary injunction, permanent injunctive relief and a declaratory judgment.

The Franklin County Common Pleas Court held a hearing on appellees’ request for a temporary restraining order April 19, 2024, summary detailed.

The court granted the temporary restraining order, prohibiting the enforcement of R.C. 9.681 pending a full trial on the merits.

The state subsequently filed a motion to dismiss and motions in limine, requesting the preclusion of witness testimony and evidence at trial.

The trial court held a bench trial on May 17, 2024. The court overruled both of the state’s motions in limine but noted the state’s standing objection to the presentation of any evidence.

“The Home Rule Amendment was adopted to allow municipalities to do precisely this sort of legislating, but the General Assembly through R.C. 9.681 claims the exclusive power to regulate tobacco,” Leland continued. “If this statute were enforced as written, the state could move to strike down as illegal any city ordinance regulating tobacco. Cities would lose the power to enforce their tobacco laws, both criminal and civil. They would lose authority to keep city parks free of tobacco. They could no longer regulate tobacco marketing. Licensing and zoning of convenience stores that sell tobacco products might be invalidated.”

He noted that the Home Rule Amendment explicitly established a role for municipalities in these regulatory matters.

“By prohibiting cities from protecting their residents from the lethal scourge of tobacco use, the statute here undermines the fundamental principle of the Home Rule Amendment that the government closest to the people serves the people best,” he added.

The panel determined that the state failed to establish that the trial court abused its discretion in denying its motions in limine, allowing for testimony on behalf of the city.

“We presume the court in conducting the bench trial considered evidence only insofar as it was relevant,” Leland wrote. “The court ruled in the state’s favor on every count except the home rule question… . Finding no abuse of discretion in the trial court’s evidentiary rulings, we accordingly overrule the state’s second assignment of error.”

Tenth District Judges Michael Mentel and Kristin Boggs concurred with Leland’s opinion.