American Financial Services Ass'n v. City of Cleveland

O’Donnell, J.

{¶ 1} We are called upon again to consider the Home Rule Amendment to the Ohio Constitution — this time in connection with predatory lending, the subject of legislation enacted by the Ohio General Assembly commonly known as Sub.H.B. No. 386 and of local ordinances in the cities of Dayton and Cleveland.

{¶ 2} This case has been certified to us as a conflict between the Second District Court of Appeals, which determined, in its comprehensive review of the law in this field, that predatory lending was not a proper subject for regulation by local ordinance, and the Eighth District Court of Appeals in the instant case, which held that the Cleveland ordinances regulating lending were within Cleveland’s home-rule power.

Substitute House Bill No. 386

{¶ 3} In February 2002, the Ohio General Assembly enacted Sub.H.B. No. 386, 149 Ohio Laws, Part IV, 6938, including new sections R.C. 1.63 and 1349.25 through 1349.37, which incorporated much of the substance of the federal Home Ownership and Equity Protection Act (“HOEPA”) of 1994 into Ohio law, requiring lenders to make certain disclosures to mortgagors on certain loans. That legislation defines covered loans as consumer credit mortgage loans that involve Ohio property and are considered “mortgages” as defined in HOEPA, i.e., those having an interest rate that exceeds by more than ten percentage points the yield on Treasury securities or having points and fees that exceed eight percent of the loan or exceed $400.

{¶ 4} Specifically, R.C. 1349.25(D) defines “covered loan,” which is the subject of the predatory-lending regulation, as “a consumer credit mortgage loan transaction that meets both of the following criteria:

*171{¶ 5} “(1) The loan involves property located within this state.

{¶ 6} “(2) The loan is considered a mortgage under section 152(a) of the ‘Home Ownership and Equity Protection Act of 1994,’ 108 Stat. 2190, 15 U.S.C.A. 1602(aa), as amended, and the regulations adopted thereunder by the federal reserve board, as amended.”

{¶ 7} The federal statute referred to, Section 1602(aa), Title 15, U.S.Code, states:

{¶ 8} “(1) A mortgage referred to in this subsection means a consumer credit transaction that is secured by the consumer’s principal dwelling, other than a residential mortgage transaction, a reverse mortgage transaction, or a transaction under an open end credit plan, if—

{¶ 9} “(A) the annual percentage rate at consummation of the transaction will exceed by more than 10 percentage points the yield on Treasury securities having comparable periods of maturity on the fifteenth day of the month immediately preceding the month in which the application for the extension of credit is received by the creditor; or

{¶ 10} “(B) the total points and fees payable by the consumer at or before closing will exceed the greater of—

{¶ 11} “(i) 8 percent of the total loan amount; or

{¶ 12} “(ii) $400.”

{¶ 13} The Ohio statutes impose numerous limitations on the terms and conditions of covered loans, including the amount of a loan payment that can be collected up front from loan proceeds and a prohibition of balloon payments for loans with terms of fewer than five years. R.C. 1349.27.

{¶ 14} Following enactment of Sub.H.B. No. 386, the city of Cleveland promulgated Cleveland Codified Ordinance 659.02, prohibiting any “predatory loan,” defined by 659.01(f) as a loan secured by a first mortgage and having an interest rate between four and a half and eight percentage points above the yield on certain Treasury securities or secured by a junior mortgage and having an interest rate between six and a half and ten percentage points above that Treasury yield and that were made under certain enumerated circumstances, i.e., flipping (refinancing under specified conditions), requiring balloon payments, excessive financing of points and fees, and increasing interest rates upon default.

{¶ 15} As a result of the enactment of the Cleveland ordinances, American Financial Services Association, a national trade association representing various financial institutions, filed a complaint in the Cuyahoga County Common Pleas Court seeking declaratory and injunctive relief, asserting that the city’s ordinances conflicted with the state statutes involving predatory lending. The trial court granted summary judgment, invalidated the city’s predatory-lending ordi*172nances, and found that the state statutes constituted general laws in conflict with the local ordinances.

{¶ 16} Cleveland appealed that determination to the court of appeals, which reversed the trial court and held that the city’s predatory-lending ordinances did not conflict with the state statutes, 159 Ohio App.3d 489, 2004-0hio-6416, 824 N.E.2d 553, at ¶ 37, that the General Assembly could not extinguish the legislative power of a municipal corporation granted by the Constitution, and that R.C. 1.63 was not a general law. Id. at ¶ 30. After determining that its decision conflicted with a decision of the Second District Court of Appeals in Dayton v. State, 157 Ohio App.3d 736, 2004-0hio-3141, 813 N.E.2d 707, the Eighth District certified the following two questions for review:

{¶ 17} “I: Whether R.C. 1.63 is a general law for purposes of Ohio’s home rule amendment.

{¶ 18} “II: Under a home rule analysis, whether local predatory lending ordinances that impose stricter requirements on lending transactions conflict with the state’s predatory lending statutes.”

{¶ 19} In the conflict case, Dayton v. State, 157 Ohio App.3d 736, 2004-Ohio-3141, 813 N.E.2d 707, the Second District Court of Appeals reviewed dozens of Ohio Supreme Court home-rule cases and described what it regarded as inconsistent forms of analysis used to decide them. In resolving its case, the Second District followed the conflict analysis outlined in Fondessy Ents., Inc. v. Oregon (1986), 23 Ohio St.3d 213, 23 OBR 372, 492 N.E.2d 797, instead of a preemption analysis, and pointed out that the Eighth District Court of Appeals had also used the same conflict analysis in an earlier home-rule case, Fairview Park v. Barefoot Grass Lawn Serv., Inc. (1996), 115 Ohio App.3d 306, 311-312, 685 N.E.2d 300. Dayton, 157 Ohio App.3d 736, 2004-0hio-3141, 813 N.E.2d 707, at ¶ 81. The court in Dayton determined that the regulation of predatory lending involved the use of police power, that the state had enacted general laws on the same subject, that Dayton’s local predatory-lending ordinances conflicted with state legislation by regulating loans that were otherwise lawful in Ohio, and that R.C. 1.63, considered in context as part of a comprehensive statutory enactment, constituted a general law. Id. at ¶ 86, 92,101, 97, and 110.

{¶ 20} We accepted both certified questions and also granted discretionary review to consider the matter and resolve the conflict between the appellate jurisdictions. 105 Ohio St.3d 1496, 2005-0hio-1666, 825 N.E.2d 620.

{¶ 21} On appeal to this court, American Financial presents two major contentions: (1) R.C. 1.63, considered in context as part of Sub.H.B. No. 386, constitutes a general law of the state and (2) the Cleveland ordinances conflict with state statutes by prohibiting loans permitted by state law. Cleveland contends that R.C. 1.63 is an invalid limitation on its legislative authority and that the city can *173regulate lending because the statute is not a general law. We will address these arguments separately.

Article XVIII — The Home Rule Amendment

{¶ 22} Section 3, Article XVIII, the Home Rule Amendment to the Ohio Constitution, authorizes municipalities “to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

{¶ 23} The first step in a home-rule analysis is to determine “whether the matter in question involves an exercise of local self-government or an exercise of local police power.” Twinsburg v. State Emp. Relations Bd. (1988), 39 Ohio St.3d 226, 228, 530 N.E.2d 26, overruled on other grounds, Rocky River v. State Emp. Relations Bd. (1989), 43 Ohio St.3d 1, 20, 539 N.E.2d 103. If an allegedly conflicting city ordinance relates solely to self-government, the analysis stops, because the Constitution authorizes a municipality to exercise all powers of local self-government within its jurisdiction. On the other hand, if, as is more likely, the ordinance pertains to concurrent police power rather than the right to self-government, the ordinance that is in conflict must yield in the face of a general state law.

{¶ 24} In the instant case, American Financial and the city of Cleveland agree that the ordinances are police regulations; therefore, we need not consider whether the ordinances constitute an example of local police power because that issue is not contested. We shall next consider whether the state statutes involved here are general laws and, if so, whether the local ordinances are in conflict with them.

{¶ 25} As a preliminary matter, however, we think it important to address the doctrines of statewide concern and preemption as related to home-rule cases.

The Statewide-Concern Doctrine and Preemption

{¶ 26} The Home Rule Amendment to the Ohio Constitution authorizes municipalities to exercise “all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.” Section 3, Article XVIII. As George W. Knight, a Franklin County delegate to the 1912 Constitutional Convention, explained during debate on the home-rule provision, the delegates designed the measure to empower municipalities to establish different forms of local self-government, to implement local ordinances not in conflict with general laws of the state, and to “do those things * * * which are not forbidden by the lawmaking power of the state.” 2 Proceedings and Debates of the Constitutional Convention of the State of Ohio (1913) 1433. Significantly, he explained that the drafters of *174the amendment intended to “leave the power of the state as broad hereafter with reference to general affairs as it has ever been.” Id.

{¶ 27} Thus, the delegates intended the Home Rule Amendment to distinguish between state and municipal lawmaking authority. Although the constitutional provision as adopted gave municipalities the exclusive power to govern themselves, as well as additional power to enact local health and safety measures not in conflict with general laws, “exclusive state power was retained in those areas where a municipality would in no way be affected or where state dominance seemed to be required.” (Emphasis sic.) Vaubel, Municipal Home Rule in Ohio (1978) 1107-1108. That is, where matters of statewide concern are at issue, the state retains the power — despite the Home Rule Amendment — to address those matters. See Cleveland Elec. Illum. Co. v. Painesville (1968), 15 Ohio St.2d 125, 129, 44 O.O.2d 121, 239 N.E.2d 75 (explaining that the “power granted under Section 3 of Article XVIII relates to local matters and even in the regulation of such local matters a municipality may not infringe on matters of general and statewide concern”). Similarly, “exclusive municipal power was created by the Amendments insofar as local self-government power is exercisable by charter municipalities * * *.” (Emphasis sic; footnotes omitted.) Vaubel, Municipal Home Rule in Ohio, at 1108. This dichotomy, however, resulted in a third area of shared power “involving the adoption of police regulations, with points of friction between enactments of the two levels of government subject to resolution by the ‘no conflict’ test.” Id.

{¶ 28} As we have stated, “ ‘It is a fundamental principle of Ohio law that, pursuant to the “statewide concern” doctrine, a municipality may not, in the regulation of local matters, infringe on matters of general and statewide concern.’ ” Reading v. Pub. Util. Comm., 109 Ohio St.3d 193, 2006-0hio-2181, 846 N.E.2d 840, ¶ 33, quoting State ex rel. Evans v. Moore (1982), 69 Ohio St.2d 88, 89-90, 23 O.O.3d 145, 431 N.E.2d 311. We have consistently upheld this principle. See State ex rel. Evans v. Moore, 69 Ohio St.2d at 90, 23 O.O.3d 145, 431 N.E.2d 311 (prevailing-wage law superseded local wage regulation); State ex rel. Villari v. Bedford Hts. (1984), 11 Ohio St.3d 222, 225, 11 OBR 537, 465 N. E.2d 64 (calculation of employee benefits), overruled on other grounds, State ex rel. Adkins v. Sobb (1986), 26 Ohio St.3d 46, 48, 26 OBR 39, 496 N.E.2d 994; State ex rel. Adkins, 26 Ohio St.3d 46, 26 OBR 39, 496 N.E.2d 994 (vacation-leave credits); Cleveland Elec. Illum. Co. v. Painesville, 15 Ohio St.2d at 129, 44 O.O.2d 121, 239 N.E.2d 75 (transmission of electricity through high-voltage lines); State ex rel. McElroy v. Akron (1962), 173 Ohio St. 189, 194, 19 O.O.2d 3, 181 N.E.2d 26 (licensing of watercraft).

{¶ 29} We recognize, however, that the application of “statewide concern” as a separate doctrine has caused confusion, Dayton, 157 Ohio App.3d 736, 2004-Ohio-*1753141, 813 N.E.2d 707, ¶ 32-76, because some courts have considered the doctrine a separate ground upon which the state may regulate. As stated by Vaubel, the term “statewide concern” describes “the extent of state police power which was left unimpaired by the adoption of the Home Rule Amendments as well as * * * those areas of authority which are outside the outer limits of ‘local’ power, i.e., those matters which are neither ‘local self-government’ nor ‘local police and sanitary regulations.’” Vaubel, Municipal Home Rule in Ohio, at 1108. We agree with the Second District Court of Appeals in its conclusion that the doctrine is relevant only in “deciding, as a preliminary matter, whether a particular issue is ‘not a matter of merely local concern, but is of statewide concern, and therefore not included within the power of local self-government.’ ” Dayton, 157 Ohio App.3d 736, 2004-Ohio-3141, 813 N.E.2d 707, ¶ 76, quoting Billings v. Cleveland R. Co. (1915), 92 Ohio St. 478, 485-486, 111 N.E. 155.

{¶ 30} Thus, the statewide-concern doctrine falls within the existing framework of the Canton test, and courts should consider the doctrine when deciding whether “the ordinance is an exercise * * * of local self-government,” Canton v. State, 95 Ohio St.3d 149, 2002-Ohio-2005, 766 N.E.2d 963, ¶ 9, or whether “a comprehensive statutory plan is, in certain circumstances, necessary to promote the safety and welfare of all the citizens of this state.” Kettering v. State Emp. Relations Bd. (1986), 26 Ohio St.3d 50, 55, 26 OBR 42, 496 N.E.2d 983. As we explained more than 50 years ago, the Home Rule Amendment was designed to give the “broadest possible powers of self-government in connection with all matters which are strictly local,” but the framers of the amendment did not want to “impinge upon matters which are of a state-wide nature or interest.” (Emphasis added.) State ex rel. Hackley v. Edmonds (1948), 150 Ohio St. 203, 212, 37 O.O. 474, 80 N.E.2d 769.

{¶ 31} Through Sub.H.B. No. 386, the General Assembly has expressed its intent to preempt municipal regulation and occupy the field of regulation of predatory lending as an issue of statewide concern. A statement by the General Assembly of its intent to preempt a field of legislation is a statement of legislative intent and may be considered to determine whether a matter presents an issue of statewide concern, but does not trump the constitutional authority of municipalities to enact legislation pursuant to the Home Rule Amendment, provided that the local legislation is not in conflict with general laws. As discussed in Fondessy Ents., Inc. v. Oregon, 23 Ohio St.3d at 216, 23 OBR 372, 492 N.E.2d 797, the constitutional authority of municipalities to enact local police regulations emanates from the Constitution and “cannot be extinguished by a legislative provision.” In accordance with the approach followed in Fondessy, we reaffirm that the conflict analysis as mandated by the Constitution should be used in resolving home-rule cases.

*176General-Law Analysis

{¶ 32} In Canton v. State, 95 Ohio St.3d 149, 2002-0hio-2005, 766 N.E.2d 963, syllabus, we announced a four-part test defining what constitutes a general law for purposes of home-rule analysis: “a statute must (1) be part of a statewide and comprehensive legislative enactment, (2) apply to all parts of the state alike and operate uniformly throughout the state, (3) set forth police, sanitary, or similar regulations, rather than purport only to grant or limit legislative power of a municipal corporation to set forth police, sanitary, or similar regulations, and (4) prescribe a rule of conduct upon citizens generally.” The statute at issue in Canton prohibited municipalities from restricting the location of manufactured homes but contained an exception permitting property owners to use restrictive covenants in deeds to prohibit placement of manufactured homes on certain properties. We held that the pertinent sections of the state statutes did not meet the test, and we invalidated them and permitted Canton to restrict the location of manufactured homes.

{¶ 33} Sub.H.B. No. 386 in effect incorporated parts of the Home Ownership and Equity Protection Act of 1994, i.e., the federal predatory-lending law, into the Revised Code in Ohio’s predatory-lending laws, at R.C. 1349.25 through 1349.37. That legislation defined covered loans, R.C. 1349.25(D), and authorized the state to “solely * * * regulate the business of originating, granting, servicing, and collecting loans and other forms of credit in the state and the manner in which any such business is conducted, * * * in lieu of all other regulation of such activities by any municipal corporation or other political subdivision,” R.C. 1.63(A). (Emphasis added.) Therefore, with respect to the first part of our general-law analysis, Sub.H.B. No. 386 is clearly part of comprehensive statewide legislative regulation that relates to all consumer mortgage lending. The existence of this comprehensive statewide legislation and the language of Sub.H.B. No. 386 at R.C. 1.63 permitting the state to “solely * * * regulate the business of originating, granting, servicing, and collecting loans” indicate that this is an area “where state dominance seem[s] to be required.” Vaubel, Municipal Home Rule in Ohio, at 1107-1108.

{¶ 34} The second part of our general-law analysis requires that the statute apply uniformly to all parts of the state. Ohio’s predatory-lending law subjects every entity making loans in Ohio to the same obligations. Local ordinances such as the ones enacted by the cities of Dayton and Cleveland prevent uniformity because they subject lenders to different, nonuniform standards depending upon the local municipal regulation. Accordingly, our conclusion is that this legislation clearly meets the second part of the test for general laws.

{¶ 35} The third part of the Canton test requires that the statute set forth regulations rather than only restrict the ability of a municipality to enact legislation. Thus, “general laws” include statutes “setting forth police, sanitary *177or similar regulations and not statutes which purport only to grant or to limit the legislative powers of a municipal corporation to adopt or enforce police, sanitary or other similar regulations.” (Emphasis added.) W. Jefferson v. Robinson (1965), 1 Ohio St.2d 113, 30 O.O.2d 474, 205 N.E.2d 382, at paragraph three of the syllabus. As stated above, the parties agree that this case involves the use of police power. Sub.H.B. No. 386, as part of a comprehensive regulatory plan, limits and regulates certain lending practices. As such, it fulfills the requirement of this part of the Canton test.

{¶ 36} Finally, in accordance with the fourth part of the test, the statute involved must prescribe a rule of conduct upon citizens generally. In this regard, Sub.H.B. No. 386 establishes rules of conduct for all lenders in Ohio and also provides remedies for all consumers subject to predatory loans if lenders violate the state statute. Accordingly, we conclude that Ohio’s predatory-lending statutes are general laws because they are part of a comprehensive and uniform statewide enactment setting forth a police regulation that prescribes a general rule of conduct for lending in Ohio.

Conflict Analysis

{¶ 37} Having concluded that Ohio’s predatory-lending statutes constitute general laws, we next consider whether the Cleveland ordinances are in conflict with those state statutes.

{¶ 38} American Financial argues that the Cleveland ordinances conflict with the Revised Code because they prohibit certain terms in loans with interest rates three and a half percentage points below the state’s definition of a covered loan in Ohio and because they impose additional restrictions upon and prohibit loans in some instances that are otherwise permissible pursuant to statute.

{¶ 39} Cleveland, on the other hand, contends that its ordinances do not conflict with the state statutes, because its regulatory scheme is prohibitory, meaning that its ordinances do not authorize loans or lending activities actually prohibited by the state. Cleveland further contends that the lack of regulation by the state on certain topics allows local municipal regulation to be more stringent than the state regulation.

{¶40} In Struthers v. Sokol, we announced the standard for determining whether municipal regulations conflict with general laws of this state: “In determining whether an ordinance is in ‘conflict’ with general laws, the test is whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa.” Struthers v. Sokol (1923), 108 Ohio St. 263, 140 N.E. 519, at paragraph two of the syllabus.

{¶ 41} An examination of our jurisprudence reveals that we have also applied a conflict-by-implication test, which is consistent with the conflict analysis in Struthers. In Schneiderman v. Sesanstein (1929), 121 Ohio St. 80, 86, 167 N.E. *178158, we stated, “When the law of the state provides that a rate of speed greater than a rate therein specified shall be unlawful, it is equivalent to stating that driving at a less[er] rate of speed shall not be a violation of law; and therefore an ordinance of a municipality which attempts to make unlawful a rate of speed which the state by general law has stamped as lawful would be in conflict therewith.” In addition, the court noted, “It is not the province of the court to formulate or declare a policy.” Id. at 87, 167 N.E. 158.

{¶ 42} Further, in Neil House Hotel Co. v. Columbus (1944), 144 Ohio St. 248, 29 O.O. 403, 58 N.E.2d 665, the city of Columbus enacted an ordinance prohibiting all liquor sales after midnight, despite a state statute prohibiting liquor sales after 2:30 a.m. There, we determined that when a state statute proclaimed that liquor may not be sold after a designated hour, “it is equivalent to saying that sales up to that time are lawful, and an ordinance which attempts to restrict sales beyond an earlier hour is in conflict therewith and must yield.” Id. at 253, 29 O.O. 403, 58 N.E.2d 665.

{¶ 43} And more recently, in Lorain v. Tomasic (1979), 59 Ohio St.2d 1, 13 O.O.3d 1, 391 N.E.2d 726, we considered whether a municipal ordinance establishing a maximum charity bingo payout per session of $1,500, less than the maximum $3,500 allowed by state statute, was authorized by the Home Rule Amendment. We concluded that a conflict existed and held that the local ordinances destroyed the uniform application of a statewide statutory scheme and prevented charities from conducting lawful operations pursuant to state law.

{¶ 44} In Sheffield v. Rowland (1999), 87 Ohio St.3d 9, 11, 716 N.E.2d 1121, we decided a home-rule case involving a state statute that required a license from either a local board of health or the state Environmental Protection Agency for all facilities processing construction and demolition debris. In that case, the village of Sheffield had enacted a local ordinance that prohibited all such debris facilities in the village, despite the fact that the state had authorized them by way of a license to operate. Id. at 11-12, 716 N.E.2d 1121. We concluded that the local ordinance conflicted with the state statute because it prohibited the operation of a state-authorized facility. Id. at 12, 716 N.E.2d 1121.

{¶ 45} And in Middleburg Hts. v. Ohio Bd. of Bldg. Stds. (1992), 65 Ohio St.3d 510, 512-513, 605 N.E.2d 66, we considered a state statute, R.C. 3781.01, that established minimum uniform building requirements, which provided that a municipality could make further and additional regulations not in conflict with the state statute. The city of Middleburg enacted structural and fire-safety construction standards that exceeded the standards adopted by the state. Id. at 511, 605 N.E.2d 66. We held that the local standards conflicted only when they prohibited that which the state allows or required that which the state prohibited; thus, because the state had adopted minimum requirements and invited additional municipal regulation, the state did not occupy the field and thereby preempt *179municipal regulation, and we concluded that the stricter ordinance standards did not conflict with the state statute.

{¶ 46} In accordance with our earlier decisions in Schneiderman, Neil House, Lorain, Sheffield, and Middleburg Hts., we conclude that any local ordinances that seek to prohibit conduct that the state has authorized are in conflict with the state statutes and are therefore unconstitutional.

{¶ 47} In this case, the Cleveland ordinance purports to regulate loans with interest rates three and a half percentage points below those that the state regulates. Specifically, the city of Cleveland in Section 659.02(a)(1) of Cleveland Codified Ordinances prohibits any “predatory loan,” which is defined in Section 659.01(f) as either a first mortgage loan having an interest rate between four and a half and eight percentage points above the yield on Treasury securities or a junior mortgage with an interest rate between six and a half and ten percentage points above the yield on Treasury securities, either of which also includes specified loan terms. In addition to a lower threshold for regulation, the municipal ordinance imposes stricter standards and additional requirements on lenders through mandatory loan counseling for the borrower, Section 659.02(a)(2); requiring a specified loan-disclosure notice three days prior to closing on any home-improvement loan, Section 659.03; and requiring the filing of certification of compliance contemporaneously with the recording of a mortgage, Section 659.04. The ordinance also prohibits any direct payments to home-improvement contractors of the proceeds of any residential loan having an interest rate within the specified ranges, Section 659.02(a)(3), and provides criminal penalties for certain violations of the ordinance, Section 659.99.

{¶ 48} Thus Cleveland has undertaken to regulate the making of a loan authorized by the General Assembly. This is directly contradictory to the syllabus in Struthers v. Sokol because these ordinances seek to forbid what the statutes allow. Accordingly, the loan regulations of the ordinances are unconstitutional.

{¶ 49} We therefore answer both certified questions in the affirmative: R.C. 1.63, considered in context as part of Sub.H.B. No. 386, is a general law as it affects the ordinances at issue, and Cleveland Codified Ordinances 659.01(f), 659.02(a)(1), (2), and (3), 659.03(a), 659.04, and 659.99 are in conflict with Sub.H.B. No. 386. For these reasons, the judgment of the Eighth District Court of Appeals is reversed.

Judgment reversed.

Moyer, C.J., Lundberg Stratton and Lanzinger, JJ., concur. O’Connor, J., concurs in judgment only. Resnick and Pfeifer, JJ., dissent.