[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                          :


                                                ...........

                                               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.
                                                                                       -2-




       {¶ 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
                                                                                     -3-


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
                                                                                            -4-


       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.
                                                                                           -5-


       {¶ 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).
                                                                                        -6-


       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.
                                                                                           -7-


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
                                                                                         -8-

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
                                                                                         -9-


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
                                                                                      -10-


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.

                                    .............



HALL, P.J. and WELBAUM, J., concur.



Copies mailed to:

Stephen D. Behnke
Nathaniel R. Luken
Hon. Stephen Wolaver
