dissenting.
{¶ 77} It has long been established that “[i]n 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. See, also, State v. Burnett (2001), 93 Ohio St.3d 419, 431, 755 N.E.2d 857; Middleburg Hts. v. Ohio Bd. of Bldg. Stds. (1992), 65 Ohio St.3d 510, 512, 605 N.E.2d 66. In other words, “[n]o real conflict can exist unless the ordinance declares something to be right which the state law declares to be wrong, or vice versa.” Sokol at 268, 140 N.E. 519.
{¶ 78} It is also well established that “in order for such a conflict to arise, the state statute must positively permit what the ordinance prohibits, or vice versa, regardless of the extent of state regulation concerning the same object.” Cincinnati v. Hoffman (1972), 31 Ohio St.2d 163, 169, 60 O.O.2d 117, 285 N.E.2d 714. See, also, State ex rel. King v. Summit Cty. Council, 99 Ohio St.3d 172, 2003-Ohio-3050, 789 N.E.2d 1108, at ¶ 39; Cleveland v. Raffa (1968), 13 Ohio St.2d 112, 114, 42 O.O.2d 329, 235 N.E.2d 138.
{¶ 79} In applying this test to the present dispute, Justice Pfeifer points out in his dissent that “the state statutes do not explicitly permit lenders to make predatory loans at any lower rate [of interest than is covered under the statutes]. The state has stayed out of the fray in that regard.” ¶ 118. This should end the inquiry, as Cleveland’s ordinances are not in conflict with the state’s legislation. By prohibiting loans with interest rates below the rate of loans that the state has undertaken to regulate, Cleveland has not prohibited any conduct or activity that the state has positively allowed or declared to be a right.
{¶ 80} But along comes the majority with a newly created “conflict-by-implication test.” The majority claims that its test “is consistent with the conflict analysis in Struthers.” ¶ 41. Yet the only time that an implied-conflict test has *187been mentioned in any of the court’s home-rule cases over the 83 years since Struthers was in a dissent by Justice Lloyd Brown in Cincinnati v. Hoffman, 31 Ohio St.2d at 180-181, 60 O.O.2d 117, 285 N.E.2d 714. And Justice Brown was decidedly more forthright in suggesting the test than is today’s majority, for he at least presented it for what it is — an alternative to the Struthers test. Id. at 180, 60 O.O.2d 117, 285 N.E.2d 714 (Brown, J., dissenting).
{¶ 81} The majority does not define its new test or provide any boundaries for its application. Based on this test, however, the majority reasons that by prohibiting certain lending practices on certain mortgage loans carrying an interest rate of more than ten percentage points above the yield on Treasury securities, the state has impliedly granted lenders an irrefragable right to engage in those same predatory practices in all counties and cities throughout Ohio, so long as they charge a lower interest rate. Having thus found implicit state authority for freedom from regulation while charging interest up to the threshold rate at which the statutory regulations are triggered, the majority is then able to conclude that the ordinances and statutes are in conflict because the former prohibit certain loans with interest rates three and a half percentage points below the rate at which the state has impliedly authorized them.
{¶ 82} This kind of reasoning has already been rejected by the court. Thus, in Columbus v. Barr (1953), 160 Ohio St. 209, 212, 52 O.O. 24, 115 N.E.2d 391, the court held, “Prescribing a specific penalty for the operation of gambling transactions for one’s own profit does not by indirection legalize the same transactions if carried on not for profit.” Similarly, in Benjamin v. Columbus (1957), 167 Ohio St. 103, 4 O.O.2d 113, 146 N.E.2d 854, the court held that an ordinance prohibiting the possession or control of pinball machines regardless of whether they award free plays is not in conflict with a state statute prohibiting the possession or control of gambling devices that by definition include only those pinball machines that award free plays. The court explained:
{¶ 83} “Apparently, to the extent that they fail to prohibit the possession or control of machines such as described in the * * * ordinance, the statutes of Ohio may be said to permit such possession or control. However, there is no statute or constitutional provision which authorizes the possession or control of such machines.
{¶ 84} “ * * *
{¶ 85} “ ‘The ordinance merely goes further than the statute in prescribing a penalty for engaging in gambling transactions not covered by the statute.’ ” Id. at 118, 4 O.O.2d 113, 146 N.E.2d 854, quoting Barr, 160 Ohio St. at 212, 52 O.O. 24, 115 N.E.2d 391.
{¶ 86} What the court recognized in these cases, but the majority neglects or refuses to acknowledge, is that permission to act without consequence under state *188law is not equatable to permission to act irrespective of municipal regulation. The former may be implied, but the latter kind of permission, which is the essence of home-rule analysis, requires some positive grant of authority by the General Assembly. Otherwise, any form of conduct that could have been but was not expressly prohibited by a state law on the subject would automatically exceed the reach of municipal authority, and there would be little left for municipal regulation.1
{¶ 87} Nevertheless, the majority purports to have extracted its test from five of our previous home-rule decisions. Two of the cited decisions have no value whatsoever in the present discussion. In Sheffield v. Rowland (1999), 87 Ohio St.3d 9, 716 N.E.2d 1121, the village of Sheffield prohibited debris facilities that were licensed by the state, and the court simply held that the village could not constitutionally prohibit what the state had licensed. Nothing was implied. And it is rather obvious that the court did not find any implied permission under the state statutes or standards in Middleburg Hts. v. Ohio Bd. of Bldg. Stds., 65 Ohio St.3d 510, 605 N.E.2d 66, since the court did not find any conflict in that case.
{¶ 88} The remaining three cases are the heart and soul of the majority’s test. In each of these cases, the court held (or purportedly held) that a conflict existed between a statute that prohibited the performance of an act beyond a stated threshold and an ordinance that prohibited the same act from being performed beyond a lower designated threshold. Lorain v. Tomasic (1979), 59 Ohio St.2d 1, 4, 13 O.O.3d 1, 391 N.E.2d 726 (ordinance prohibiting the payment of prize money in excess of $1,200 conflicts with statute forbidding the payment of prize money in excess of $3,500); Neil House Hotel Co. v. Columbus (1944), 144 Ohio St. 248, 253, 29 O.O. 403, 58 N.E.2d 665 (ordinance forbidding liquor sales after midnight conflicts with state laws permitting liquor sales after 1:00 a.m. and prohibiting liquor sales after 2:30 a.m.); Schneiderman v. Sesanstein (1929), 121 Ohio St. 80, 86, 167 N.E. 158 (ordinance prohibiting driving in excess of 15 miles per hour conflicts with statute prohibiting driving in excess of 25 miles per hour).
*189{¶ 89} But nothing in these cases suggests or supports the establishment of any sort of general rule with respect to the interpretation of statutes setting forth a prohibitory threshold. Instead, the opinions train on the particular facts of the case and the specific language in the statute. Aside from the stated threshold, the statutes in these cases contained language that either directly permitted the conduct that the ordinance prohibited or specifically established its own limitation as the only limitation controlling such conduct.
{¶ 90} In Schneidermcm, for example, the court did not rest its decision on the mere fact that former G.C. 12603 established a higher prohibited rate of speed than the ordinance. Although the court did say that the statute’s prohibition against driving in excess of a specified rate of speed “is equivalent to stating that driving at a less[er] rate of speed shall not be a violation of law,” it immediately went on to explain:
{¶ 91} “If such conflict does not appear from the mere fact that the ordinance has assumed to prohibit a rate of speed less than that prohibited by statute, and therefore permitted thereby, the consideration of section 12608, General Code, in connection with section 12603, General Code will leave no doubt upon that subject.
{¶ 92} “ * * * The legislative intent and purpose is clearly manifest in the statute [G.C. 12608] when it declares that ‘the provisions of section twelve thousand six hundred and three shall not be diminished, restricted or prohibited by an ordinance, rule or regulation of a municipality or other public authority.’ Thus it is clearly and conclusively provided that any rate of speed other than that expressly prohibited must be regarded as permitted. * * * A local regulation certainly is in conflict with a general law covering the same subject if it attempts to prohibit that which the statute has expressly provided shall not be ‘diminished, restricted or prohibited.’ ” Id., 121 Ohio St. at 86-87,167 N.E. 158.
{¶ 93} The court further explained:
{¶ 94} “Practically the same proposition was presented in [Ex parte Daniels (1920), 183 Cal. 636, 192 P. 442] as is before the court in the instant case. * * * The statute under consideration in the Daniels case * * * prohibited traveling at an unsafe rate of speed, but in no case in excess of a certain maximum, and then expressly prohibited municipalities from fixing as a maximum a lower rate of speed. The court held that thus was the intention of the Legislature clearly manifested ‘to declare that the limitation upon speed fixed in the law shall be the only limitation controlling the conduct of the driver of a motor vehicle upon the streets and highways of the state.’ It is stated * * *, in the majority opinion, that ‘It seems to have been the legislative purpose, by the declaration that “the limitations as to the rate of speed herein fixed shall be exclusive of all other *190limitations,” to authorize vehicles to travel at those limits within cities and counties.’ ” Id. at 88, 167 N.E. 158, quoting Daniels, 183 Cal. at 643, 192 P. 442.
{¶ 95} Indeed, the court in Daniels specifically stated, “If the legislature had merely fixed the maximum speed limit, it is clear that local legislation fixing a lesser speed limit would not be in conflict therewith, but would be merely an additional regulation.” Id. at 645,192 P. 442.
{¶ 96} The court in Schneiderman did not, therefore, finally conclude that G.C. 12603 by itself implied a right to drive at any rate of speed not therein prohibited. Instead, the court ultimately held that “[i]t was the legislative purpose, clearly manifested by the provisions of Sections 12603 and 12608, General Code, to permit vehicles to travel upon the streets and highways of the state at any rate of speed not expressly prohibited by statute.” Id. at 90,167 N.E. 158.
{¶ 97} The majority ignores this lengthy and crucial discussion, choosing instead to rely on a single sentence in Schneiderman as support for the creation of its conflict-by-implication test.
{¶ 98} Similarly, in Neil House Hotel Co., the statute did in fact expressly permit what the ordinance prohibited. The regulations promulgated by the Liquor Control Board pursuant to G.C. 6064-3 prohibited certain permit holders from selling liquor between the hours of 2:30 a.m. and 5:30 a.m. The ordinance prohibited the sale of liquor after midnight. However, the enabling measures of the Liquor Control Act did not merely proscribe the sale of intoxicants past the hour of 2:30 a.m., but also expressly permitted their sale after 1:00 a.m. Id. at 252, 29 O.O. 403, 58 N.E.2d 665. Indeed, the court did not hold that the state measures impliedly permitted the sale of liquor up to 2:30 a.m. or that the ordinance conflicted with those measures because it prohibited the sale of liquor before 2:30 a.m. Instead, the court held that the state measures “permit the sale and consumption of beer and intoxicating liquors on the premises of designated permit holders after the hour of midnight, and a municipal ordinance which fixes midnight as the time when the sale and consumption of such beverages must cease, is in conflict therewith and invalid in that respect.” (Emphasis added.) Id. at paragraph three of the syllabus. The passage quoted by the majority is merely an adjunct to this holding.
{¶ 99} Finally, the appellant in Tomasic was a bingo operator for a charitable organization that was specifically licensed by the state to conduct bingo operations in accordance with the regulatory provisions of the statute. The statute, which contained both the licensing procedure and the prohibition in question, had been enacted pursuant to a recent constitutional amendment that legalized charity bingo. It was these facts, coupled with the statute’s prohibition against the payout of more than $3,500 in prizes during any bingo session, that led the court to conclude that the statute gave a licensed charitable organization the right *191to pay out up to a maximum of $3,500. Thus, the court explained that “[a]s part of the regulatory scheme the General Assembly has indicated that once a charitable organization is properly licensed, it has a right, pursuant to R.C. 2915.09(B)(5), to pay out up to, but no more than, $3,500 at any bingo session.” 59 Ohio St.2d at 3, 13 O.O.3d 1, 391 N.E.2d 726. Indeed, the court never mentioned Schneiderman or Neil House Hotel in its opinion.
{¶ 100} The majority’s claimed support for its conflict-by-implication test is therefore illusory. In order for a conflict to arise in the present context, the state statute must expressly permit what the ordinance forbids or at least give some positive indication that its particular limitation is exclusive of municipal regulation. General expressions of preemption in statutory schemes are insufficient to establish the exclusivity of any particular limitation on conduct. See Fondessy Ents., Inc. v. Oregon (1986), 23 Ohio St.3d 213, 215-217, 23 OBR 372, 492 N.E.2d 797.
{¶ 101} Justice Pfeifer is absolutely right: “Municipalities’ constitutionally granted right to self-governance should not be undone by implication.” ¶ 118. I respectfully dissent.
Pfeifer, J., concurs in the foregoing opinion.. Other courts have likewise rejected an implied-conflict analysis for purposes of Section 3, Article XVIII of the Ohio Constitution. See, e.g., Columbus v. Spingola (2001), 144 Ohio App.3d 76, 759 N.E .2d 473 (holding that state statute prohibiting certain forms of ethnic intimidation does not impliedly permit other forms of intimidation); Harris v. Fitchville Twp. Trustees (N.D.Ohio 2001), 154 F.Supp.2d 1182, 1187 (finding no conflict between local ordinance that prohibited the establishment or operation of an adult cabaret within 1,000 feet of certain real estate and state statute that prohibited the establishment or operation of an adult cabaret within 500 feet of such real estate); Mentor Green Mobile Estates v. Mentor (Aug. 23, 1991), 11th Dist. No. 90-L-15-135, 1991 WL 163450 (holding that city ordinance prohibiting more than eight mobile home units per acre does not conflict with state legislation arguably prohibiting more than 12 mobile home units per acre); E. Cleveland v. Scales (1983), 10 Ohio App.3d 25, 27, 10 OBR 32, 460 N.E.2d 1126 (holding that former state statute prohibiting certain persons from possessing firearms did not impliedly give other persons a right to possess firearms as against municipal registration requirements).