[Cite as Southerland v. Rankin, 2014-Ohio-2542.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

William Southerland, Jr., [Individually            :
and as Class Representative],
                                                   :
                Plaintiff-Appellant,
                                                   :
v.                                                                       No. 13AP-1040
                                                   :                 (C.P.C. No. 13CV-7698)
Mike Rankin [Registrar,
Ohio Bureau of Motor Vehicles]                     :              (REGULAR CALENDAR)
et al.,
                                                   :
                Defendants-Appellees.
                                                   :


                                          NUNC PRO TUNC1

                                          D E C I S I O N

                                     Rendered on June 12, 2014


                Goldenberg Schneider, L.P.A., Jeffrey S. Goldenberg and
                Todd B. Naylor, for appellant.

                Michael DeWine, Attorney General, and William J. Cole, for
                appellees.

                  APPEAL from the Franklin County Court of Common Pleas

TYACK, J.

        {¶ 1} William Southerland, Jr., is appealing from the dismissal of his case filed in
the Franklin County Court of Common Pleas.                    He assigns a single error for our
consideration:



1This nunc pro tunc decision was issued to correct a clerical error contained in the style of the original
decision released on June 10, 2014, and is effective as of that date.
No. 13AP-1040                                                                         2


              The trial court erred by dismissing Plaintiff-Appellant
              William Southerland Jr.'s complaint based on an erroneous
              construction of R.C. 4507.24(B) that improperly expanded
              R.C. 4507.24(A)(2)'s deputy registrar's fee provision to cover
              applications for temporary instruction permits even though
              the plain text of R.C. 4507.24(A)(2) only refers to
              applications for driver's licenses, motorized bicycle licenses,
              and renewals thereof.

       {¶ 2} Counsel for Southerland submits the following six issues as relevant to our
consideration of the merits of his assignment of error:
              1. Whether R.C. 4507.24(A) authorizes the Bureau of Motor
              Vehicles to charge temporary instruction permit applicants a
              $3.50 deputy registrar's fee in addition to application fees set
              forth in R.C. 4507.23, even though R.C. 4507.24(A) specifies
              by its very terms that the deputy registrar's fee applies only
              to "each application for renewal of a driver's license," R.C.
              4507.24(A)(1), and "each application for a driver's license, or
              motorized bicycle license, or for renewal of a such a license."
              R.C. 4507.24(A)(2). (Assignment of Error I).

              2. Whether R.C. 4507.24(B), which states that the deputy
              registrar's "fees prescribed by [R.C. 4507.24(A)] shall be in
              addition to the fee for a temporary instruction permit and
              examination, a driver's license, a motorized bicycle license,
              or duplicate thereof," expands the scope of R.C. 4507.24(A)
              to cover transactions beyond those categories specifically
              enumerated in R.C. 4507.24(A)(1) and R.C. 4507.24(A)(2).
              (Assignment of Error I).

              3. Whether R.C. 4507.24(A) is unambiguous and must
              therefore be applied as written. (Assignment of Error I).

              4. Whether the trial court's interpretation of R.C. 4507.24
              runs afoul of the canon of statutory construction expressio
              unius est exclusion alterius which holds that "to express or
              include one thing implies the exclusion of the other, or of the
              alternative." (Assignment of Error I).

              5. Whether the trial court's interpretation of R.C. 4507.24
              improperly renders R.C. 4507.24(A)'s own language
              superfluous and meaningless in contravention of a canon of
              statutory construction. (Assignment of Error I).
No. 13AP-1040                                                                        3


             6. Whether the 79-year legislative history of R.C. 4507.24
             unequivocally demonstrates that deputy registrar's fees do
             not apply to applications for temporary instruction permits.
             (Assignment of Error I).

      {¶ 3} As stated more succinctly by appellant:

             This putative class action alleges that the Ohio Bureau of
             Motor Vehicles is violating the Ohio Revised Code by
             charging more than $18.50 for applications for temporary
             instruction permits.

      {¶ 4} Southerland is the father of three children who in recent years have gotten
temporary instruction permits. He is asserting on behalf of himself and the class he
attempts to have recognized that he overpaid for the permits because he was assessed a
deputy registrar's fee each time he helped his children get such a permit. He bases his
assertion on R.C. 4507.23 and 4507.24(A). R.C. 4507.23 reads:
             Except as provided in division (I) of this section, each
             application for a temporary instruction permit and
             examination shall be accompanied by a fee of five dollars.

             (B) Except as provided in division (I) of this section, each
             application for a driver's license made by a person who
             previously held such a license and whose license has expired
             not more than two years prior to the date of application, and
             who is required under this chapter to give an actual
             demonstration of the person's ability to drive, shall be
             accompanied by a fee of three dollars in addition to any other
             fees.

             (C)

             (1) Except as provided in divisions (E) and (I) of this section,
             each application for a driver's license, or motorcycle
             operator's endorsement, or renewal of a driver's license shall
             be accompanied by a fee of six dollars.

             (2) Except as provided in division (I) of this section, each
             application for a duplicate driver's license shall be
             accompanied by a fee of seven dollars and fifty cents. The
             duplicate driver's licenses issued under this section shall be
             distributed by the deputy registrar in accordance with rules
             adopted by the registrar of motor vehicles.
No. 13AP-1040                                                                  4



           (D) Except as provided in division (I) of this section, each
           application for a motorized bicycle license or duplicate
           thereof shall be accompanied by a fee of two dollars and fifty
           cents.

           (E) Except as provided in division (I) of this section, each
           application for a driver's license or renewal of a driver's
           license that will be issued to a person who is less than
           twenty-one years of age shall be accompanied by whichever
           of the following fees is applicable:

           (1) If the person is sixteen years of age or older, but less than
           seventeen years of age, a fee of seven dollars and twenty-five
           cents;

           (2) If the person is seventeen years of age or older, but less
           than eighteen years of age, a fee of six dollars;

           (3) If the person is eighteen years of age or older, but less
           than nineteen years of age, a fee of four dollars and seventy-
           five cents;

           (4) If the person is nineteen years of age or older, but less
           than twenty years of age, a fee of three dollars and fifty cents;

           (5) If the person is twenty years of age or older, but less than
           twenty-one years of age, a fee of two dollars and twenty-five
           cents.

           (F) Neither the registrar nor any deputy registrar shall
           charge a fee in excess of one dollar and fifty cents for
           laminating a driver's license, motorized bicycle license, or
           temporary instruction permit identification cards as required
           by sections 4507.13 and 4511.521 of the Revised Code. A
           deputy registrar laminating a driver's license, motorized
           bicycle license, or temporary instruction permit
           identification cards shall retain the entire amount of the fee
           charged for lamination, less the actual cost to the registrar of
           the laminating materials used for that lamination, as
           specified in the contract executed by the bureau for the
           laminating materials and laminating equipment. The deputy
           registrar shall forward the amount of the cost of the
           laminating materials to the registrar for deposit as provided
           in this section.
No. 13AP-1040                                                                   5


           (G) Except as provided in division (I) of this section, each
           transaction described in divisions (A), (B), (C), (D), and (E)
           of this section shall be accompanied by an additional fee of
           twelve dollars. The additional fee is for the purpose of
           defraying the department of public safety's costs associated
           with the administration and enforcement of the motor
           vehicle and traffic laws of Ohio.

           (H) At the time and in the manner provided by section
           4503.10 of the Revised Code, the deputy registrar shall
           transmit the fees collected under divisions (A), (B), (C), (D),
           and (E), those portions of the fees specified in and collected
           under division (F), and the additional fee under division (G)
           of this section to the registrar. The registrar shall pay two
           dollars and fifty cents of each fee collected under divisions
           (A), (B), (C)(1) and (2), (D), and (E)(1) to (4) of this section,
           and the entire fee collected under division (E)(5) of this
           section, into the state bureau of motor vehicles fund
           established in section 4501.25 of the Revised Code, and such
           fees shall be used for the sole purpose of supporting driver
           licensing activities. The registrar also shall pay five dollars of
           each fee collected under division (C)(2) of this section and
           the entire fee collected under division (G) of this section into
           the state highway safety fund created in section 4501.06 of
           the Revised Code. The remaining fees collected by the
           registrar under this section shall be paid into the state
           bureau of motor vehicles fund established in section 4501.25
           of the Revised Code.

           (I) A disabled veteran who has a service-connected disability
           rated at one hundred per cent by the veterans'
           administration may apply to the registrar or a deputy
           registrar for the issuance to that veteran, without the
           payment of any fee prescribed in this section, of any of the
           following items:

           (1) A temporary instruction permit and examination;

           (2) A new, renewal, or duplicate driver's or commercial
           driver's license;

           (3) A motorcycle operator's endorsement;

           (4) A motorized bicycle license or duplicate thereof;
No. 13AP-1040                                                                              6


              (5) Lamination of a driver's license, motorized bicycle
              license, or temporary instruction permit identification card
              as provided in division (F) of this section.

              An application made under division (I) of this section shall
              be accompanied by such documentary evidence of disability
              as the registrar may require by rule.

R.C. 4507.24(A) reads:

              (A) Except as provided in division (C) of this section, the
              registrar of motor vehicles or a deputy registrar may collect a
              fee not to exceed the following:

              (1) Four dollars and fifty cents commencing on January 1,
              2004, and six dollars and twenty-five cents commencing on
              October 1, 2009, for each application for renewal of a driver's
              license received by the deputy registrar, when the applicant
              is required to submit to a screening of the applicant's vision
              under section 4507.12 of the Revised Code;

              (2) Three dollars and fifty cents commencing on January 1,
              2004, for each application for a driver's license, or motorized
              bicycle license, or for renewal of such a license, received by
              the deputy registrar, when the applicant is not required to
              submit to a screening of the applicant's vision under section
              4507.12 of the Revised Code.

       {¶ 5} The State of Ohio entities assert that these code sections must be read in
pari materia with R.C. 4507.24(B) which reads:
              (B) The fees prescribed by division (A) of this section shall be
              in addition to the fee for a temporary instruction permit and
              examination, a driver's license, a motorized bicycle license,
              or duplicates thereof. The fees retained by a deputy registrar
              shall compensate the deputy registrar for the deputy
              registrar's services, for office and rental expense, and for
              costs as provided in division (D) of this section, as are
              necessary for the proper discharge of the deputy registrar's
              duties under sections 4507.01 to 4507.39 of the Revised
              Code.

       {¶ 6} Specifically, Southerland argues and his complaint alleges that R.C. 4507.23
authorizes the charging of only $18.50 for temporary instruction permits. He asserts that
R.C. 4507.24(A) refers to taking an additional fee for deputy registrars for applications for
No. 13AP-1040                                                                            7


driver's licenses and motorcycle licenses only. He asserts that driver's licenses do not
include temporary instruction permits, so R.C. 4507.24(A) does not authorize the
additional charge for temporary instruction permits. Since R.C. 4507.24(A) does not
expressly authorize the add on from his point of view, he argues the add-on fee cannot be
assessed.
       {¶ 7} We disagree with the initial assertion that temporary instruction permits
are not driver's licenses. Temporary instruction permits give persons learning to drive a
motor vehicle the authority to operate a motor vehicle on public streets and highways in
the State of Ohio. Persons with temporary instruction permits have certain restrictions on
their driving, but they would have no authority to operate a motor vehicle on a public
street or highway in Ohio but for the temporary instruction permit.              Temporary
instruction permits are a form of driver's license.
       {¶ 8} We note that the words "driver" and "license" are defined by statute.
"Driver" is defined in R.C. 4509.01(B) as follows:
              "Driver" means every person who drives or is in actual
              physical control of a motor vehicle.

       {¶ 9} "License" is defined in R.C. 4509.01(C):
              1. "License" includes any license, permit, or privilege to operate a motor
              vehicle issued under the laws of this state including:
              2. Any temporary instruction permit or examiner's driving permit;
              3. The privilege of any person to drive a motor vehicle whether or not
              such person holds a valid license;
              4. Any nonresident's operating privilege.

       {¶ 10} These definitions are specifically applicable to R.C. 4509.01 to 4509.78, but
are an implication that the phrase "driver's licenses" is meant to include temporary
instruction permits. The definitions in R.C. 4507.01 have not been updated for years and
therefore they do not include the phrase "temporary instruction permit." Instead, the
definition refers to "probationary license" and defines the phrase as follows:
              "Probationary license" means the license issued to any
              person between sixteen and eighteen years of age to operate
              a motor vehicle.
No. 13AP-1040                                                                              8


       {¶ 11} The phrase "driver's license" is defined in R.C. 4507.01 as follows:

              "Driver's license" means a class D license issued to any person
              to operate a motor vehicle or motor-driven cycle, other than a
              commercial motor vehicle, and includes "probationary
              license," "restricted license," and any operator's or chauffeur's
              license issued before January 1, 1990.

       {¶ 12} These definitions are consistent with considering "temporary instruction
permit" as a form of driver's license for purposes of R.C. 4507.01 et seq.
       {¶ 13} Because the temporary instruction permits are a form of driver's license, the
statutes set forth above, particularly R.C. 4507.24(A) and (B), expressly authorize the
$3.50 deputy registrar's fee.
       {¶ 14} Even if a temporary instruction permit is not viewed as a form of driver's
license, R.C. 4507.24(B) expressly authorizes an additional fee for a temporary instruction
permit and examination. R.C. 4507.23 does not expressly bar such a fee. It enables a fee
to be charged and lists the fees it expressly allows. Expressly allowing one fee does not
bar the State of Ohio from charging additional fees, especially given the clear statutory
enactment of R.C. 4507.24(B). R.C. 4507.23 and 4507.24 need to be read together and
both given effect. In technical terms, they need to be read in pari materia.
       {¶ 15} The trial court correctly construed the pertinent statutes.            The sole
assignment of error is overruled. The judgment of the Franklin County Court of Common
Pleas is affirmed.
                                                                        Judgment affirmed.

                         SADLER, P.J., and O'GRADY, J., concur.
