[Cite as Fenton v. Fischer, 2017-Ohio-7746.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
EVERETT L. FENTON :
:
Plaintiff-Appellant : Appellate Case No. 2017-CA-6
:
v. : Trial Court Case No. 2016-CV-169
:
SHERIFF GENE C. FISCHER, in his : (Civil Appeal from
capacity as Sheriff of Greene County : Common Pleas Court)
:
Defendant-Appellee :
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OPINION
Rendered on the 22nd day of September, 2017.
...........
STEPHEN D. BEHNKE, Atty. Reg. No. 0072805, 865 South Dixie Drive, Vandalia, Ohio
45377
Attorney for Plaintiff-Appellant
NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Greene County Prosecuting
Attorney, 61 Greene Street, Xenia, Ohio 45385
Attorney for Defendant-Appellee
.............
TUCKER, J.
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{¶ 1} Everett Fenton appeals from a judgment of the Greene County Common
Pleas Court affirming a decision of the Greene County Sheriff to deny his application for
a license to carry a concealed weapon. He contends that the denial of the license is
contrary to law because it is based on an erroneous interpretation of the concealed
handgun legislation.
{¶ 2} We conclude that the relevant statute, R.C. 2923.125, does not require the
denial of Fenton’s license application. Accordingly, the judgment of the common pleas
court is reversed.
I. Facts and Procedural History
{¶ 3} On February 8, 2016, Fenton submitted to the Greene County Sheriff's Office
an application for a license to carry a concealed handgun pursuant to R.C. 2923.125. In
the application, Fenton denied any prior conviction for any offense set forth in R.C.
Chapter 2925 involving the possession of a drug of abuse. However, a criminal records
check revealed that in 1999 Fenton was convicted in Georgia of possession of marijuana
in an amount less than one ounce. Georgia law classified the offense as a
misdemeanor.
{¶ 4} On February 29, 2016, Greene County Sheriff Gene Fischer notified Fenton
that his application had been denied on the grounds that Fenton was disqualified from
obtaining a license by his prior Georgia conviction. Fenton filed an administrative appeal
in the common pleas court pursuant to R.C. 119.12.
{¶ 5} On December 30, 2016, the common pleas court affirmed Fischer’s decision
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finding that Fenton had been convicted of an offense that precluded the issuance of a
license. This appeal follows.
II. Standard of Review
{¶ 6} This court, in Salgado v. Montgomery Cty. Sheriff, 2d Dist. Montgomery Nos.
26502 and 26572, 2015-Ohio-3387, set forth the standard for review to be utilized in
administrative appeals regarding concealed handgun licensure:
Pursuant to R.C. 2923.125(D)(2)(b), a decision of a county sheriff to
deny an application for a concealed handgun license is appealable under
R.C. 119.12 to the common pleas court. R.C. 119.12 provides the
standard of review for the common pleas court:
The court may affirm the order of the agency
complained of in the appeal if it finds, upon consideration of
the entire record and any additional evidence the court has
admitted, that the order is supported by reliable, probative,
and substantial evidence and is in accordance with law. In
the absence of this finding, it may reverse, vacate, or modify
the order or make such other ruling as is supported by reliable,
probative, and substantial evidence and is in accordance with
law.
As discussed by the Supreme Court of Ohio in Bartchy v. State Bd.
of Edn., 120 Ohio St.3d 205, 2008–Ohio–4826, 897 N.E.2d 1096, ¶ 37, a
review by the common pleas court of an administrative agency decision
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requires a factual inquiry and a legal inquiry. Both the common pleas court
and the appellate court must give deference to the agency's resolution of
any evidentiary conflicts, and factual findings are presumed to be correct,
absent an abuse of discretion. Id. However, questions of law must be
reviewed de novo to determine whether the administrative order is in
accordance with law. Anguiano v. Ohio Dept. of Edn., 2d Dist. Darke No.
2014–CA–2, 2014–Ohio–2810, ¶ 6, citing Bartchy, supra. The case before
us requires a determination whether the trial court properly interpreted and
applied the statutory qualifications for obtaining a concealed handgun
license. “The interpretation of a statute involves a purely legal question.
Thus, we conduct a de novo review of a trial court's judgment interpreting a
statute and afford no deference to the trial court's interpretation of a statute.”
Washington Cty. Home v. Ohio Dept. of Health, 178 Ohio App.3d 78, 2008–
Ohio–4342, 896 N.E.2d 1011, ¶ 27 (4th Dist.).
Id. at ¶ 8-9.
III. Analysis
{¶ 7} Fenton’s sole assignment of error states as follows:
THE LOWER COURT ERRED BY UPHOLDING THE SHERIFF’S
DENIAL OF MR. FENTON’S CHL BECAUSE HIS CONVICTION UNDER
O.G.C.A. 16-13-2(b) IS THE EQUIVALENT OF A MINOR MISDEMEANOR
UNDER OHIO LAW, AND THEREFORE IS NOT A PROHIBITING
CONVICTION.
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{¶ 8} Fenton contends that the trial court erred in affirming Fischer’s decision. In
support, he notes that while the applicable Georgia statute makes possession of one
ounce of marijuana a misdemeanor offense, Ohio labels the same offense as a minor
misdemeanor. Thus, he argues that the Georgia offense should not have been
considered because R.C. 2923.125(D)(5) prohibits the consideration of a minor
misdemeanor in making a handgun licensure determination.
{¶ 9} In 2004, the Ohio General Assembly enacted Am.Sub.H.B. No. 12 which
estabished a licensing procedure for handgun owners in Ohio. R.C. 2923.125 governs
applications to carry a concealed handgun and “specifically sets out the eligibility
requirements and procedures one must follow to receive a permit * * *.” State v.
Pawelski, 178 Ohio App.3d 426, 2008–Ohio–5180, 898 N.E.2d 85, ¶ 25 (2d Dist.).
{¶ 10} Of relevance hereto, R.C. 2923.125(D)(1)(e) directs the sheriff to deny a
license if the applicant has “been convicted of or pleaded guilty to a felony or an offense
under Chapter 2925., 3719., or 4729. of the Revised Code that involves the illegal
possession, use, sale, administration, or distribution of or trafficking in a drug of abuse; *
* * [or] any other offense that is not previously described in this division that is a
misdemeanor punishable by imprisonment for a term exceeding one year.”1 Offenses
classified as minor misdemeanors cannot be considered when making a concealed
handgun licensure determination. R.C. 2923.125(D)(5).
{¶ 11} Fenton was convicted of possession of marijuana in violation of Ga. Code
Ann., Section 16-13-2(b) which states:
1
Marijuana is a “drug of abuse.” R.C. 2925.01(B); R.C. 3719.011(A); R.C. 3719.01(C);
R.C. 3719.41(C)(19).
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Notwithstanding any law to the contrary, any person who is charged with
possession of marijuana, which possession is of one ounce or less, shall be
guilty of a misdemeanor and punished by imprisonment for a period not to
exceed 12 months or a fine not to exceed $1,000.00, or both, or public works
not to exceed 12 months.
{¶ 12} In Ohio, possession of marijuana in an amount less than 100 grams
constitutes a minor misdemeanor. R.C. 2925.11(C)(3)(a) and (b). As noted by Fenton,
an ounce is the equivalent of 28.349 grams. Thus, in Ohio, Fenton would have been
charged with a minor misdemeanor.2
{¶ 13} The question raised in this appeal is whether an offense charged as a
misdemeanor in another state, but defined as a minor misdemeanor in Ohio, can be used
to disqualify an applicant under R.C. 2923.125. The statute does not explicitly address
this issue.
{¶ 14} Neither party has cited, nor have we found, any caselaw on point.
However, we have reviewed cases dealing with the application of the laws of other states
to the laws of Ohio. For example, with regard to sex offender registration, the legislature
has stated that an out of state sexually oriented offense subject to registration must be
substantially equivalent to the offenses for which Ohio requires registration. See State
v. Lloyd, 132 Ohio St.3d 135, 2012-Ohio-2015, 970 N.E.2d 870.
{¶ 15} Additionally, with regard to expungement of criminal records for offenses
committed in other states, the Ohio Supreme Court has indictaed that the purpose of
2
Fenton’s offense would have been classified as a minor misdemeanor under Ohio law
both at the time of his 1999 conviction and at the time of his license application.
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expungement, i.e., providing relief to qualified offenders in order to facilitate their prompt
transition into productive societal roles, is paramount to any interests that the state where
the offender was convicted might possess. Barker v. State, 62 Ohio St.2d 35, 40-41, 402
N.E.2d 550 (1980). “To require Ohio to subordinate its announced policy, however wise
or unwise it may be, for that of the lex loci delictus, would be repugnant to this state’s
interests with respect to its residents.” Id. at 41. “Since each state has both the
constitutional authority to enact its own laws, and the corollary right to apply them with
respect to persons or events within its borders in a manner consistent with the limits of
due process, the Full Faith and Credit Clause [of the Constitution of the United States]
does not ordinarily compel the displacement of local law with the conflicting law of another
state, notwithstanding the undeniable applicability of the conflicting law in the other
jurisdiction with reference to the same persons or events.” Id. at 40-41.
{¶ 16} These cases indicate that Ohio intends its citizens’ rights and liabilities to
be determined by Ohio law. “The Ohio legislature has a right, in the interest of self
government, to enact laws for the benefit and protection of its citizens and to determine
what those interests may be.” State ex rel. Gain v. Rossi, 7th Dist. Mahoning No. 98-
CA-51, 1999 WL 148364, * 7 (Mar. 9, 1999).
{¶ 17} With this in mind, we turn next to the issue of interpreting R.C. 2923.125.
“The primary goal in construing a statute is to ascertain and give effect to the intent of the
legislature.” In re M.W., 133 Ohio St.3d 309, 2012-Ohio-4538, 978 N.E.2d 164, ¶ 17,
citing State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471, ¶ 11. The
principles of statutory construction require a court to look at the specific language
contained in the statute, and if that language is unambiguous, to then apply the clear
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meaning of the words used. Roxane Laboratories, Inc. v. Tracy, 75 Ohio St.3d 125, 127,
661 N.E.2d 1011 (1996). R.C. 1.42 provides that “[w]ords and phrases shall be read in
context and construed according to the rules of grammar and common usage.” A court
must give effect to the words used in a statute without deleting or adding any words.
Pearn v. DaimlerChrysler Corp., 148 Ohio App.3d 228, 2002-Ohio-3197, 772 N.E.2d 712,
at ¶ 63, citing Lesnau v. Andate Ent., Inc., 93 Ohio St.3d 467, 471, 756 N.E.2d 97 (2001).
However, “[i]t is a well recognized principle of law that courts may interpret rules and
statutes where they are vague or silent as to details necessary for their just application.”
East Ohio Gas Co. v. Walker, 59 Ohio App.2d 216, 221, 394 N.E.2d 348 (8th Dist. 1978).
{¶ 18} R.C. 2923.125 states that the General Assembly’s intent, with regard to
Ohio’s concealed handgun license law, is to be “compliant with the national instant
criminal background check system,” and to ensure that a person with a concealed
handgun license is “eligible lawfully to receive or possess a firearm in the United States.”
Thus, it is clear that the statute requires a nationwide criminal background check prior to
the issuance of a license in order to ensure that persons with certain disabilities, such as
criminal convictions and mental defects, cannot obtain a license to carry a concealed
handgun. Ohio has recognized the “need to provide uniform laws throughout the state”
regulating ownership and possession of firearms. Cleveland v. State, 128 Ohio St.3d
135, 2010-Ohio-6318, 942 N.E.2d 370, ¶ 2. R.C. 2923.125 is just one of many statutes
forming a comprehensive enactment regulating guns within the State of Ohio. Id. at ¶
17-21. Thus, R.C. 2923.125 cannot be considered in a vacuum when determining the
legislature’s intent. Id.
{¶ 19} In determining intent, we note that R.C. 9.68 explicitly states that gun
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ownership is a “fundamental individual right” that is a “constitutionally protected right in
every part of Ohio.” Cleveland at ¶ 2. Thus, it is clear, from a reading of R.C. 9.68, that
the General Assembly regards the constitutional right to bear arms within the State as an
important limit upon gun legislation.
{¶ 20} A review of R.C. 2923.125 reveals that only certain Ohio criminal violations
act to prevent licensure. Specifically, with regard to drug offenses, the statute refers to
R.C. Chapter 2925. R.C. 2923.125, however, does not make any reference to the
criminal laws of other states when defining the conduct that will result in the denial of a
license. With regard to marijuana, Ohio has found that possession of any amount less
than 100 grams (3.52 ounces) constitutes a minor misdemeanor. Fenton was convicted
in Georgia of possession in an amount less than an ounce. That amount does not even
constitute a fourth degree misdemeanor in Ohio, as that degree of offense requires
possession of more than three times the amount Fenton possessed.
{¶ 21} The State argues that we must rely on the classification of an offense by the
state in which the crime was committed. While we understand the State’s argument, we
find that, given the facts of this case, reliance upon another state’s classification has
resulted in an infringement upon Fenton’s recognized rights in contravention of Ohio law.
{¶ 22} We conclude that in determining whether R.C. 2923.125 precludes issuing
a license to a person convicted of a crime in another state, the offense must be one that
would merit such preclusion under the terms of the criminal statutes set forth in the
statute; i.e., Ohio criminal laws. The mere fact that another state might classify an
offense as a more serious crime than does Ohio is not enough, in our view, to determine
whether the offender should be denied a license. Conversely, this State should be free
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to deny a license application of any individual who committed an offense in another state
that is classified as a lesser degree of offense than the crime would be classified under
Ohio law.
{¶ 23} Fenton’s sole assignment of error is sustained.
IV. Conclusion
{¶ 24} Fenton’s sole assignment of error being sustained, the judgment of the court
of common pleas is reversed and remanded for proceedings consistent with this opinion.
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HALL, P.J. and WELBAUM, J., concur.
Copies mailed to:
Stephen D. Behnke
Nathaniel R. Luken
Hon. Stephen Wolaver