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What do Tow Trucks & Bicycles Have In Common?

By: Steve Magas, January 22, 2014

What do tow trucks and bicycles have in common?  A case released yesterday by the Ohio Supreme Court doesn’t mention “bicycles” at all but could have a big impact on the governing of bicycle riders on the roadways in Ohio.

The Answer is that both Tow Trucks and Bicycles face two types of regulation – state and local….  In Cleveland v. State, released by the Ohio Supreme Court on January 21, 2014, the Court held that a sentence of a state law which took away the power of a municipality to regulate tow trucks violated the Ohio Constitution and had to be “severed” from the balance of the statute!

This made Tow Truck Owners sad, and local politicians very happy…

Tow Truck operators are not happy with the Ohio Supreme Court's decision to allow local regulation

Tow Truck operators are not happy with the Ohio Supreme Court’s decision to allow local regulation

 

Ohio is a “Home Rule” state.  This means that local cities, villages, towns and burgs have a LOT of power to control what happens within their communities.  Ohio’s “Home Rule” concept is not something that sprung up willy nilly in a random court case.  It is found in Article XVIII, Section 3 of the Ohio Constitution.

Since local governments derive regulatory power from the Ohio Constitution, state laws which conflict with this power may be deemed invalid and unconstitutional.

Section 3 of Article XVIII of the Ohio Constitution reads as follows:

  • “Municipalities shall have authority 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.”

So two types of power are granted – “Local self-government” and the power to adopt local “police, sanitary and similar” laws.  The limiting language requiring local laws not be “in conflict with general laws” only applies to the latter.

So easy, squeezy… right? Quick and dirty analysis and anyone can figure out if a local law is cool or not?

For example, if “the law” says cities can’t ban bikes from normal, non-freeway, types of roads, then a city which bans bikes from city streets is in violation, right? Slam dunk, eh?

Ummmmm….. Not quite…

For example, there is a line of case law which states that under the concept of “local self-government” comes the power to “regulate municipal streets.”  This local power, relative to bicycles, is recognized and confirmed by  Ohio Revised Code.  O.R.C. Sec. 4511.07. This statute states:

  • 4511.07
  • (A) Sections 4511.01 to 4511.784511.99, and 4513.01 to 4513.37 of the Revised Code do not prevent local authorities from carrying out the following activities with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power:
  • ***  (8) Regulating the operation of bicycles ; provided that no such regulation shall be fundamentally inconsistent with the uniform rules of the road prescribed by this chapter and that no such regulation shall prohibit the use of bicycles on any public street or highway except as provided in section4511.051 of the Revised Code;
  • (9) Requiring the registration and licensing of bicycles, including the requirement of a registration fee for residents of the local authority;

Prior to 2006, subsection 8 did not contain the nice language limiting the power of local governments to pass laws “fundamentally inconsistent” with state traffic laws.  It also did not contain the ban on bike bans.  These two very important provisions were developed by the Ohio Bicycle Federation and submitted with a Bicycle Safety package we called the “Better Bicycling Bill” – aka House Bill 389.

HB 389 contained a number of very valuable and important changes to Ohio law. In addition to the two changes to ORC 4511.07 listed above, they include:

  • Amending the “slow speed” or “impeding traffic” provision to adopt the appellate court’s holding in State v. Steve Selz
  • Amend ORC 4511.31 relative to “hazard zones” AKA “double yellow lines” to permit passing of slower moving vehicles.
  • Amend ORC 4511.39 relative to “turn signals” relative to cycling and to permit a cyclist to keep both hands on the bars when needed for safety
  • Make it clear that traffic violations on a bicycle do not add “points” to one’s driving record
  • Add the “C Section” to 4511.55′s AFRAP rules, adding some definitional values to the word “practicable” as including concepts of “safe and reasonable” movement, and providing a legal basis for the “Bikes May Use Full Lane” concept on narrow roads.

Fortunately, we had a friendlier Ohio legislature in 2006 than we do today. [I doubt that we could get this bill out of committee today.] However, back in 2006, after quite a bit of wrangling and after a number of us testified repeatedly in Columbus, we got the bill out of the House committee and onto the floor of the House where it passed unanimously. It passed unanimously in the Senate as well and was signed into law by then Gov. Taft.

Many cities revamped their “bike laws” to reflect the numerous changes contained in HB 389. Some did not. Let’s look at Bay Village, Ohio, for example.

Bay Village is a gorgeous little town on the coast of Lake Erie in northern Ohio with some 15,000+ people.  Family Circle magazine ranked it as one of the Ten Best Towns for families.  Bicycling in the little village, however, is highly regulated… in a very unfriendly and  unsafe manner –  a manner inconsistent with Ohio law.

They don’t hide it – it’s right there on the Bay Village website, under Info For New Residents:

  • Bicycle Riders:
  • Experience has proven that cyclists are safe on sidewalks and we encourage all to ride bicycles on sidewalks. However, pedestrians do have the right-of-way and cyclists are required to yield on sidewalks. All bikes used in Bay Village must have a local license, obtained at the Bay Village Police Station. There is no charge for the license and it is valid for as long as you own the bike. For safety reasons, bike riding is prohibited on roadway on the following heavily traveled streets: Clague Road, Columbia Road, and Dover Center Road. (Joggers note: jogging is prohibited on roadway on Clague, Lake, Wolf, Columbia, Dover Center, Cahoon, Osborn, west of Cahoon Road, Bassett, Bradley and Walker Roads.)

So there you go – 4511.07 says cities can’t ban bikes.  Bay Village says “no bicycling” on particular city streets which are “heavily traveled.”  Legal?  Who knows…

What are these highly dangerous heavily traveled roads, anyway? Are they littered with the bodies of cyclists of yore? Filled with potholes, sewer grates, bike eating dogs or worse?

Here’s a Google Map shot of Columbia Road – a road so dangerous that cyclists must be banned from riding it – can’t you just  SMELL the high level of Dangerosity -

Columbia Road- NO BIKES ALLOWED

 

 

Bay Village’s Bike Laws were given a grade of  D- here.  Other troublesome laws include a mandatory “path” law that prohibits riding in the street when there is a path next to the road.  You are not allowed to ride on the “berm” of streets where bikes are banned. On streets where are are allowed to ride, you must ride “within three feet of the right edge…”

Legal? In violation of 4511.07?  Or is 4511.07 an unconstitutional attempt to limit Bay Village’s “home rule” powers?

If you check out the website put together by Fred Oswald you can find all sorts of cities, villages and burgs which have simply awful Bike Laws.  Indeed, Bay Village is not even the worst of the bunch… the quaint little village of Avon gets an “F Minus”

So how does the Tow Truck case impact all of this?  The Tow Truck Case does NOT mean Cyclists Lose/Cities Like Bay Village Win… Rather, the case reinforces how goofy these issues are and how unpredictable the outcomes can be.

The analysis is complex- You start here:

“A state statute takes precedence over a local ordinance when ‘(1) the ordinance is an exercise of the police power, rather than of local self- government, (2) the statute is a general law, and (3) the ordinance is in conflict with the statute.’ ”  In the Towing Case, the court found : “No one disputes that any city ordinance regulating towing entities would be a matter of police power or safety rather than an exercise of self- government. Thus, any city ordinance of this type must yield if it conflicts with a general state law.”

So, the next analysis is to determine if the statute is a “general law.” There is a “four part test” here -

“To constitute 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.”

In the Tow Truck Case, the law had a specific sentence which troubled the Supreme Court:  “[towing entities are] not subject to any ordinance, rule, or resolution of a municipal corporation, county, or township that provides for the licensing, registering, or regulation of entities that tow motor vehicles.”

The Court held that this sentence “…violates the third prong of the… test by purporting to limit legislative power of a municipal corporation to set forth police, sanitary, or similar regulations.”  The court said the second sentence “…fails to set forth any police, sanitary, or similar regulations…” and that “… the broad language of the second sentence of R.C. 4921.25 directly contradicts the language of Article XVIII, Section 3 of the Ohio Constitution, which provides that “[m]unicipalities shall have authority * * * to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.””

The court, in an extremely rare unanimous decision, held that this sentence unconstitutionally limited municipal Home Rule Authority and “severed” the sentence from the statute- i.e,held that it is simply no longer valid and enforceable.  So now cities may regulate tow trucks willy nilly, as the Tow Truck Industry feared…

No cases have challenged bike bans, or mandatory side path laws imposed by Bay Village and other cities.  Under the statewide statutory scheme, bicycles are vehicles and the movement of bicycles on the roads is governed by a variety of state laws which clearly and unambiguously recognize a person’s right to operate a bicycle on the roadway.  However, 4511.07 also recognizes a municipality’s right to “regulate” the operation of bicycles within its borders, subject to the two provisos – no bike bans and consistent traffic laws…

What about 4511.07?  Is a “ban on bike bans” an attempt by the state to “limit legislative power of a municipal corporation to set forth police, sanitary, or similar regulations?”  Can each city in Ohio decide which of its roads are “too dangerous” for bicycle riders and simply ban riders from those roads, or are they governed by this statewide “ban on bike bans?” Does the state have the power to say “Bikes may ride on all non-freeways” or does Home Rule offer a city the constitutional right to say “No Bikes Allowed?”

At this point, it’s too close to call in my mind –  but the Tow Truck case certainly gives the city a map of an argument to suggest it could win…

 

 

 

Printed from: http://www.ohiobikelawyer.com/uncategorized/2014/01/what-do-tow-trucks-bicycles-have-in-common/ .
© 2014.

4 Comments   »

  • Khal Spencer says:

    You say “…Under the statewide statutory scheme, bicycles are vehicles and the movement of bicycles on the roads is governed by a variety of state laws which clearly and unambiguously recognize a person’s right to operate a bicycle on the roadway…”

    Seems to me it would be incongruous with the movement of bicycles under state law that upon riding from town A to town B, one has to move from 4 foot from the shoulder to 3 foot from the shoulder just as one could not be expected to have a double line change meaning from one town to the next. Has that been examined? Towns and villages cannot, presumably, use home rule power to change the basic rules of vehicle operation.

  • Robb says:

    This seems like a challenge to me, we should all band together and start riding these mean streets until one of us gets arrested or ticketed and then we can press the issue.

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